Farmah v. State , 1994 Tex. Crim. App. LEXIS 78 ( 1994 )

OPINION ON APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

A jury convicted appellant of aggravated sexual assault and assessed punishment at thirty years imprisonment. The trial court found appellant guilty of aggravated robbery and assessed punishment at five years imprisonment. The Court of Appeals affirmed both convictions. Farmah v. State, 789 S.W.2d 665 (Tex.App.—Houston [1st] 1990). This court granted appellant’s petition for discretionary review.¹

The complainant was abducted in West University at gunpoint by two males who forced her into a car driven by a third male. The three men sexually assaulted and robbed her. She reported the crime and described the perpetrators as black males. She did not know their names and could not give a license plate number of the ear. She did, however, describe the car as a late 60’s or early 70’s model Buick with a white top over a maroon bottom.

Officer Johnson, of the West University Police, was assigned to investigate the case. Eight days after the sexual assault, he received information from a United Parcel Service driver who said that when he heard about the sexual assault, he realized that he had witnessed the .abduction. The driver wrote down the license plate number of the car in which the complainant was forced into and gave it to Johnson. The driver’s description of the car and his claim that two black males were involved was consistent with the information given by the complainant.

After receiving the license plate number, Johnson determined the registered owner of the car. When contacted, the registered owner said the car was sold several years before but did not have the buyer’s name. Johnson entered the information regarding the license plate number and car description as a vehicle wanted in connection with the abduction and sexual assault into the National Crime Information Center (N.C.I.C.) computer.

The day after the N.C.I.C. entry, a police dispatcher informed Johnson that a Houston Police Department officer, Horn, reported that he had the car and an “accompanying person.” Johnson went to the location and saw the car bearing the noted license plate number. Horn was detaining appellant until Johnson arrived. Johnson took appellant into custody after brief questioning. Appellant claimed to own the car but was unable to give a fixed address. Johnson stated he was afraid to release appellant while he secured an arrest warrant because appellant knew he was a suspect in a sexual assault investigation and would not give a fixed address, and Johnson knew of no ties appellant had to Harris County. He believed it would have been irresponsible to release appellant at that time and took him to the police department.

During the motion to suppress hearing, appellant testified that he was sitting on the back of a broken down car when Horn pulled up behind him, got out of his car, spoke to appellant, then got back into his car. Horn got out of his car a second time, handcuffed appellant and placed him in the back of the police car. Shortly thereafter, Johnson arrived and talked to appellant. Johnson then took appellant to the West University Police Department. Appellant testified that he told Johnson that he was driving a 1974 two-door white and maroon Buick with license plate number 783 QVE, and the car was not registered in his name.

Johnson was the only other witness called at the suppression hearing. After testifying regarding the case investigation and arrest, he described the activities which took place after he arrested appellant. When he arrived at the police department, he read appellant his Miranda² rights and talked with him for about two hours. They discussed the case and appellant gave additional facts that led Johnson to believe that appellant was involved in the assault. The complainant could not identify appellant from a photo spread. Johnson, however, told appellant that she had identified him. During the process, appellant was given food, drinks, and was not denied any requests. He was not promised anything in exchange for his written statement which was given three to four and one-half hours after arriving at the police station. Johnson testified that the statement contained the proper warnings, he read appellant the warnings earlier and repeated them when he read the statement. Appellant acknowledged that he understood the warnings and initialed each element of the warnings on the statement.

After the motion to suppress hearing, the trial court entered findings of fact and conclusions of law. The judge found the following: appellant possessed the described ear; he had no address, employment or ties to the county when taken into custody; Johnson had reason to believe that appellant owned the car used and met the general description, 1.e. a black male, of a sexual assault suspect; neither Horn nor Johnson had a warrant; appellant confessed four hours after his arrest; appellant received his warnings both orally and in writing before confessing; police adequately fed and cared for appellant before he confessed; the written statement was taken after Johnson falsely represented that the complainant identified appellant; the false representation was not calculated to produce an untruthful confession; and appellant voluntarily signed the confession.

The trial court concluded that Johnson had probable cause to place appellant in custody, and the lack of information concerning appellant and the distinct possibility that he would flee once notified that he was a suspect in an aggravated sexual assault acted as exigent circumstances which justified a warrantless arrest under Art. 14.04, V.A.C.C.P. The court also found that appellant gave his confession after knowingly, intelligently and voluntarily waiving his rights.

On appeal, appellant contended that the confession was a given result of an illegal arrest and was not voluntarily given. The court of appeals first considered whether the arrest was proper under Art. 14.04. That court held that the officers had satisfactory proof that appellant had committed a felony: appellant was apprehended a day after the U.P.S. driver gave Johnson the licensed plate; Horn received information from the dispatcher regarding the sexual assault by black males; the car appellant was driving was not registered to him and was the car involved in the sexual assault; the fact finder could infer that Horn, after speaking with the dispatcher, was justified in detaining appellant under the circumstances; and appellant matched the physical description given by the complainant.

The court also held that there was satisfactory proof that appellant was about to escape since police apprehended appellant one day after they received information regarding the license number, appellant was unable to give an address, and he was also informed that he was a suspect in an aggravated sexual assault case. Given the facts, the court of appeals held that the arrest was justified under Art. 14.04.

The court also considered appellant’s claim that the illegal arrest tainted the subsequent confession. The court noted that police gave appellant his warnings several times and characterized Johnson’s statement to appellant regarding the complainant’s identification as an intervening circumstance that may have caused appellant to confess. Trickery and deception would not render a confession involuntary, according to the Court of Appeals, unless calculated to produce an untruthful confession. Also, the court held that there was no police misconduct. The court concluded that the warnings and absence of flagrant police misconduct outweighed the presence of an intervening circumstance and the four-hour lapse between the arrest and the confession.

In his petition, appellant argues that the first arrest by Horn was improper because there was no evidence of probable cause in that the State did not call Horn to testify. Appellant also argues that the second arrest was invalid because there is no evidence that Horn or Johnson had proof appellant had committed a felony or was about to escape.

Initially, we will discuss appellant’s claim that simply because Horn did not testify, there was no evidence regarding Horn’s knowledge about the offense or appellant. Johnson related the information given N.C.I.C. and the notification by the dispatcher that the car had been stopped. Appellant’s counsel objected to the information about the stop because it was hearsay.

Reasonable inferences arising from the evidence may be considered in determining whether probable cause existed. Gish v. State, 606 S.W.2d 883 (Tex.Cr.App.1980), Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). Johnson testified that he entered the information about the car in the N.C.I.C., and was notified a day later that the car had been stopped. He also testified that when he arrived at the described location, a Houston officer was detaining appellant. From the testimony in the record, we find that the trial court could reasonably infer that Horn stopped appellant based on the information which was entered in the N.C.I.C., specifically, that the car was connected with an abduction and sexual assault. Compare Cassias v. State, 719 S.W.2d 585 (Tex.Cr.App.1986) (facts in the search warrant affidavit did not support an inference that drugs were kept on premises to be searched).

The next issue concerns whether Horn’s arrest was proper. The record clearly shows that Horn arrested appellant before Johnson arrived at the scene.³ Thus, Horn had to have sufficient information to justify an arrest, coupled with circumstances which dispensed with the warrant requirement.

When one officer relies solely on another officer’s request to arrest a suspect, probable cause must be based on the requesting officer’s knowledge. Tarpley v. State, 565 S.W.2d 525 (Tex.Cr.App.1978). If the requesting officer has sufficient information to establish probable cause, then the arresting officer’s arrest will be justified. Id. See also Esco v. State, 668 S.W.2d 358 (Tex.Cr.App.1982), and discussion at 361, footnote 4, and Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). A warrantless arrest is authorized under Art. 14.04, only if the officers have probable cause to believe that the person arrested is the offender. See Dejarnette v. State, 732 S.W.2d 346 (Tex.Cr.App.1987).

In Garrison v. State, 726 S.W.2d 134 (Tex.Cr.App.1987), this Court considered officers’ information to connect the defendant with an offense. This Court noted that the sum of information known to the officers at the time of arrest may be considered in determining whether there was probable cause to arrest, citing Woodward v. State, 668 S.W.2d 337 (Tex.Cr.App.1984) (opinion on rehearing). The Court held that there was insufficient evidence to establish why the officers believed that particular defendant committed the offense.

In the instant case, whether Horn had probable cause must be determined from Johnson’s information. Considering the evidence, including reasonable inferences, all Horn knew was that the car upon which appellant was seen sitting was possibly connected with an abduction and sexual assault. As in Garrison, the record lacks evidence to show Horn had any basis to connect appellant with the suspected, offenses. Johnson and Horn may have had probable cause to believe the car was involved in the offense, but nothing to show appellant was involved. As such, Johnson, and necessarily Horn, lacked probable cause to arrest appellant at the time Horn made the first arrest.⁴

Even if Horn merely detained appellant, as held by the Court of Appeals, Johnson did not obtain sufficient information after he questioned appellant to establish probable cause to support the subsequent arrest. Johnson testified that after he arrived at the location described by the dispatch, appellant confirmed that the car belonged to him. Other than that and appellant’s race, however, Johnson did not obtain any information to establish probable cause to believe that appellant was involved in the abduction and sexual assault. Given the facts, we find that there is insufficient evidence in the record to support a finding that Johnson had probable cause to support appellant’s second arrest.⁵

We therefore sustain appellant’s contention that the arrests were illegal because the officers lacked probable cause to connect appellant to the offense. Having found that appellant’s arrest was illegal, we must now determine whether the taint of the illegal arrests was sufficiently attenuated from the confession. The Court of Appeals properly noted that the four-factor test discussed in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), applies to determine whether a confession given after an illegal arrest is admissible. Those factors are:

1. Whether Miranda warnings were given;

2. The temporal proximity of the arrest and the confession;

3. The presence of intervening circumstances; and

4. The purpose and flagrancy of police misconduct.

In applying this test, the Court of Appeals held that the giving of Miranda warnings and the absence of flagrant police conduct outweighed the “intervening circumstance” regarding the false statement that the complainant had identified appellant and the four hour lapse between the arrest and the confession.

We agree that the giving of Miranda warnings weighs in the State’s favor. We also agree that Johnson’s false statement regarding the complainant identification and the time between the arrest and confession weigh in appellant’s favor.

We do not agree, however, that the flagrancy of misconduct militates in favor of a finding of taint attenuation. In the instant case, the officers lacked probable cause to arrest: the only connection between appellant and the offenses was his possession of the car and his race. This was not a situation in which officers made some technical error that invalidated the arrest; rather, there was a lack of probable cause to support the warrantless arrest. Thus, the arrest was clearly illegal and the illegality weighs strongly in appellant’s favor.

In sum, we find that the Brown factors indicate that the taint of appellant’s illegal arrests permeated the subsequent confession. The confession was therefore inadmissible. We therefore remand both causes to the court of appeals for a determination of harm per Tex.R.App.Pro. 81(b)(2). Gipson v. State, 844 S.W.2d 738 (Tex.Cr.App.1992); Higginbotham v. State, 807 S.W.2d 732 (Tex.Cr.App.1991). In light of our disposition on appellant’s first ground for review, we dismiss his second ground as being moot.

CLINTON, J., concurs in result.

1 . We granted the following grounds for review:

1. The First Court of Appeals erred by affirming the action of the trial court in refusing to suppress the alleged confession of Petitioner for the reason that said confession was obtained as a result of two illegal and warrantless arrests in violation of the rights accorded Petitioner under the Fourth Amendment to the Constitution of the United States and Article 14.04 of the Texas Code of Criminal Procedure.

2. The First Court of Appeals erred by affirming the action of the trial court in refusing to suppress the alleged confession of Petitioner for the reason that said confession was not voluntarily given, the same having been obtained as a result of an illegal arrest without any intervening cause, and through deception and coercion in violation of the rights of Petitioner as afforded by the Fourth Amendment to the Constitution of the United States and the Constitution and laws of the State of Texas.

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . The Court of Appeals described Horn’s actions as a detention but given appellant’s testimony that Horn handcuffed appellant and placed him in the back of the police car, the facts show that Horn arrested appellant.

4 . The State cites Esco for the rule .that a police broadcast which reports a felony and basic description of the suspect satisfies the requirements for a warrantless arrest under Art. 14.04. In Esco, the record contained evidence establishing that'the requesting officers had probable cause to believe the defendant committed the offense. In the instant case, Johnson did not have probable cause when the N.C.I.C. information was entered or when appellant was arrested to believe that appellant committed the offense. Thus, Esco is factually distinguishable.

5 . Since we found that there was insufficient information to establish probable cause to arrest, we need not determine whether the evidence showed that appellants was about to escape, the second requirement for a warrantless arrest under Art. 14.04.