Roosevelt Hutchins v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-584-CR





ROOSEVELT HUTCHINS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 0932821, HONORABLE JON N. WISSER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of possessing less than twenty-eight grams of cocaine. Texas Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. § 481.115, since amended). The district court assessed punishment at imprisonment for fifteen years. In his only point of error, appellant contends the court erred by overruling his motion to suppress evidence.

Austin police officer Joseph Stanish and a police cadet, Anthony Uballe, were patrolling East 12th Street at approximately 2:00 a.m. on May 14, 1993. According to Stanish, this is a high-crime area noted particularly for drug dealing. Stanish saw appellant, who was standing on the sidewalk, drop a small plastic bag of the sort commonly used to hold controlled substances. Stanish was acquainted with appellant, who had a reputation for selling "bimp," "a term we use for fake dope."

Stanish stopped his patrol car and instructed Uballe to detain appellant while he retrieved the plastic bag. In the bag, Stanish saw a white powder residue that he suspected was cocaine. Appellant was arrested and searched. Uballe found several rocks of what proved to be crack cocaine in appellant's pockets. The white powder in the plastic bag was not tested and was never positively identified.

Appellant argues that the officers did not have probable cause to arrest him, that the resulting search incident to his arrest was unlawful, and that the cocaine seized during that search should have been suppressed. A peace officer may arrest an offender without a warrant for any offense committed in the officer's presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 1977). Probable cause to arrest exists when the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant an officer of reasonable caution in the belief that the suspect has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).

Noting that no field test was conducted on the white powder contained in the plastic bag and citing his reputation for selling "bimp," appellant argues that the officers did not have probable cause to believe the substance in the plastic bag was contraband. We disagree. A showing of probable cause does not require proof that the officers' suspicions were correct. A practical, non-technical probability is all that is required. Miller v. State, 667 S.W.2d 773, 777 (Tex. Crim. App. 1984). Stanish had four years of experience as a police officer. Uballe had seen powder cocaine during his training. Given the time and place, appellant's reputation, and appellant's effort to discard the plastic bag when the officers approached, a reasonably prudent officer with the training and experience of the officers in this cause would be warranted in the belief that the substance in the plastic bag was contraband.

Alternatively, appellant argues that Uballe arrested him before Stanish recovered the plastic bag, and hence before probable cause to arrest existed. Appellant bases this argument on a portion of Uballe's testimony during cross-examination at the suppression hearing. Uballe answered affirmatively when asked, "And you stood there with my client handcuffed while he went to retrieve that bag?" Stanish testified, however, that appellant was not arrested and cuffed until after the bag with the white powder was recovered. The district court, as trier of fact at the suppression hearing, was free to resolve any ambiguities in the testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980). Appellant concedes in his brief that under the circumstances presented, the officers were justified in temporarily detaining him when they saw him drop the plastic bag. The testimony supports the conclusion that appellant was not arrested until after the bag and its contents were recovered.

The district court did not abuse its discretion in finding that appellant's warrantless arrest and search were lawful. The point of error is overruled and the judgment of conviction is affirmed.

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: October 26, 1994

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