Milton v. State

PHILLIPS, Judge,

dissenting.

Though it is recognized that the federal constitution permits a public arrest upon probable cause without proof of exigent circumstances, U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, the State of Texas has the power to require by law the existence of exigency as a prerequisite to arrest upon representations of a credible person. Olson v. State, Tex.Cr.App., 484 S.W.2d 756; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. The Legislature of Texas has elected to establish said requirement by its enactment of Art. 14.04, V.A.C.C.P., which provides as follows:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

*195There was no evidence as to lack of availability of magistrates or even the officer’s opinion that a warrant could not be obtained. The only evidence bearing upon the subject is the fact that a tip from a credible informant that appellant had heroin on his person packaged in tinfoil observed by informant within the last 24 hours was received on the evening of Saturday, November 22, 1975, and that about 11:10 p. m. a surveillance was set up. The time lapse between the “tip” and the surveillance was not elicited. While normally magistrates may not be available on weekends at such hours, this was not established. Further, there was no showing that the officers had received information that appellant was about to escape. The only evidence bearing on escape was the fact that Officer Spriggs feared that when he entered the cafe upon approach of the patrol car the appellant would leave by the rear door.

Obviously, the State clearly failed to show that the offender was about to escape so that there was no time to procure a warrant and therefore the State failed to meet the requirements of Art. 14.04, supra, for a lawful seizure of appellant’s person.

Art. 14.03, V.A.C.C.P., as amended, provides as follows:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

To justify a warrantless arrest under said statute, there must be a showing that (1) appellant was found in a suspicious place and (2) that he was found under circumstances which reasonably show him to have been guilty of some felony or breach of the peace or threatening or about to commit some offense. Neither of said requirements is shown by the record in this case.

The majority contends that the arrest and incidental search of appellant was justified under the doctrine of “temporary detention for the purposes of investigation” as pronounced in Terry v. Ohio, 396 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Ablon v. State, Tex.Cr.App., 537 S.W.2d 267; Leighton v. State, Tex.Cr.App., 544 S.W.2d 394. The purpose of a temporary detention is to permit a reasonably motivated officer to procure information or an explanation as to suspicious circumstances or conduct without the full seizure of the person. This may be done when the existing information of the officer falls short of probable cause to effect an arrest or full seizure of one’s person. Terry v. Ohio, supra; Adams v. Williams, supra; and Ablon v. State, supra. The purpose of the seizure in this case is not shown to have been a temporary detention to procure information or an explanation as to suspicious conduct or circumstances which had been brought to the attention of the officers. The seizure herein was simply for the purpose of determining whether the appellant was in possession of contraband in accordance with the representation of a purportedly credible person. This being so, Art. 14.04, supra, prohibits said warrantless seizure of appellant’s person since there was no showing that appellant was about to escape so there was no time to procure a warrant. Lowery v. State, Tex.Cr.App., 499 S.W.2d 160; Honeycutt v. State, Tex.Cr.App., 499 S.W.2d 662. Said Art. 14.04, supra, contemplates that we look to the time of the making of the representation to the peace officer by a credible person and determine if at that time the offender was then about to escape so that there was no time to procure a warrant. The record here merely shows that the representation was made to the officer sometime on the evening of November 22, 1975, and that at about 11:10 p. m. a surveillance was set up at a cafe where appellant was expected to be. Said seizure of appellant’s person having been unlawful, the subsequent search of his person, which was the actual purpose of the arrest, cannot be justified by the unrealistic and thin argument that as he was being escorted out of a public place wherein the officers had seized his person he reached one hand into his jacket pocket. *196Actually, the reactions through fear, humiliation and indignancy of an innocent person upon being seized in a public place by officers would be reasonably expected to be more abnormal, unusual and unexplainable than that of the hardened criminal. Said arrest and subsequent search were unlawful and admission of the evidence obtained thereby is specifically prohibited by Art. 38.23, V.A.C.C.P.

For the reasons stated, I respectfully dissent.