Paul Anthony Davis v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-221-CR





PAUL ANTHONY DAVIS,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT

NO. 39,942, HONORABLE RICK MORRIS, JUDGE

Appellant entered a plea of not guilty before the court to the offense of possessing, with intent to deliver, a controlled substance, cocaine, in an amount less than 28 grams. See Tex. Health & Safety Code Ann. § 481.112 (Pamph. 1992) ("Texas Controlled Substances Act"). Punishment, enhanced by a prior felony conviction for possession of cocaine, was assessed at forty-five years.

In a single point of error, appellant asserts that the trial court erred in admitting physical evidence obtained as the result of an illegal search and seizure. We overrule appellant's point of error and affirm the trial court's judgment.

Appellant's motion to suppress is directed to events occurring on January 11, 1991, when the vehicle in which appellant was a passenger was stopped by an officer of the Temple Police Department. Appellant was asked to get out of the vehicle, was searched, and contraband, identified as cocaine, was seized from appellant's person.

The series of events that resulted in the complained-of search and seizure began with a telephone call to Agent William Dorsey of the Organized Crime Unit of the Temple Police Department from a confidential informant shortly after 5:00 p.m. on January 11, 1991. Agent Dorsey, a six-year veteran with the Organized Crime Unit, testified that his primary duty was to enforce the narcotic laws.

Dorsey related that the informant advised him that the appellant and another black man were at the Waymon Manor Apartment's parking lot where appellant was selling crack cocaine from a blue Jeep Cherokee. Dorsey stated there had been numerous searches and arrests involving crack cocaine in the Waymon Manor area over the past two years.

Dorsey had known the informant for approximately one year prior to the occasion in question. During that time the informant had identified cocaine in Dorsey's presence and had furnished Dorsey with information "ten to fifteen times" that had resulted in arrests.

Dorsey and the informant had had previous discussions involving the Jeep described as belonging to one Chad Pickett. The informant furnished Dorsey with the license number of the Jeep, and Dorsey knew it to be the license number of Pickett's vehicle, but he did not record the number on this occasion. Dorsey stated there had been an "ongoing" investigation of appellant and that he had observed appellant in Pickett's blue Jeep on prior occasions.

Dorsey relayed the information he had received from the informant to Sergeant Gary Smith, a member of the Organized Crime Unit, who was on patrol in the area of the apartments. Dorsey advised Smith as to appellant's description, the vehicle he would be in, that another black male would be driving, and that they would shortly be leaving the Waymon Manor property. The communication was made by mobile phone rather than police radio. After furnishing Smith with this information, Dorsey left his office to join the search for appellant "to stop him and search him for narcotics." Dorsey stated that narcotic dealers would remain at the complex such as Waymon Manor for the short period of time needed to do business and "then get out of there," because they knew "we would usually receive a tip."

Sergeant (lieutenant at the time of trial) Smith testified that he knew appellant and was familiar with Chad Pickett's blue Jeep. Upon receiving Dorsey's communication, Smith proceeded toward the vicinity in question and spotted the blue Jeep Cherokee "approximately a half of block" from Waymon Manor. Smith was unable to identify the two occupants of the Jeep other than to observe that they were two black males. While Dorsey had not furnished him with a license number, Smith related that the Jeep had all of the characteristics of Chad Pickett's blue Jeep such as the size, number of doors, color, and type of seats. Smith stated that the sun was going down but there was sufficient light to see without artificial lighting. Smith turned and followed the vehicle. Prior to stopping the vehicle, Smith observed that the passenger leaned very far to the left. Smith stated "it appeared he was placing something under the seat. He was very active with his left hand and it was very obvious that he was doing something."

Upon stopping the Jeep, Smith ordered the occupants to place their hands on the dash board because of the nature of the offense and the movements he had witnessed in the vehicle, and because "I was concerned for my safety." Smith recognized appellant, but was not familiar with the driver. Shortly thereafter Dorsey arrived at the scene and asked appellant to step from the Jeep.

Dorsey patted appellant down, removing $433 in small bills and jewelry from him. Appellant was allowed to move behind the Jeep where he was watched by another officer who had responded to a request for additional help.

Smith advised Dorsey about the movements he observed appellant make prior to stopping the Jeep. A search of the area of the vehicle appellant occupied failed to reveal anything. Recalling that appellant's pants were partially undone when he had appellant step from the vehicle, Dorsey reached into appellant's pants and "got ahold of his underwear in the front and pulled them out to where I could look down into them." Dorsey observed a plastic bag between appellant's legs, removed the bag, and found the contents to be what he believed was a large amount of crack cocaine.

The plastic bag and its contents were delivered to a chemist, Joe Budge, at the Department of Public Safety. Budge testified that tests he made upon the contents revealed the bag contained 3.51 grams of cocaine.

Appellant points to the fact that both officers testified that they made an investigative stop of appellant and his companion. Appellant asserts that absent specific information about the location of a weapon or contraband, an officer is not justified in making a search of a person beyond a pat-down. Appellant contends no probable cause existed to search appellant's person incident to a lawful arrest. While the officers' subjective belief that the stop was investigatory is a factor to be considered, the court will disregard their testimony if belied by the facts of the case. Ruth v. State, 645 S.W.2d 432, 435 (Tex. Crim. App. 1979).

The standard for reviewing the existence of probable cause is the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 238 (1983). The "totality of the circumstances" standard applies to warrantless as well as warrant searches. Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Officers may consider prior knowledge, personal observation, and reasonable trustworthy information in making their evaluation of probable cause. Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App. 1990); see also Holladay v. State, 805 S.W.2d 464, 472-73 (Tex. Crim. App. 1991) (enumerating factors relied on by officers).

In Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984), cited by appellant, the court held that even if the initial pat-down frisk was justified, when no weapon was found, further intrusions were constitutionally impermissible without probable cause to arrest. In Lippert, a search and arrest warrant authorized officers to arrest each person named in the affidavit at the described premises. Id. at 714. The defendant was not named in the warrant and made an appearance on the premises during the execution of the warrant. The only information possessed by the officers relative to the defendant's activities was that the defendant had been observed parking his car and walking to the premises in question on several occasions while the house was under surveillance. Id. at 715.

In Coats v. State, 815 S.W.2d 715, 716-17 (Tex. Crim. App. 1991), also cited by appellant, the court noted that the informer was not shown to have given the police any prior information. Further, there was an absence of evidence connecting the defendant with an area that was known as a source of drug activity. Id. at 717. The court found that while the officers' reasonable suspicion that the defendant may have possessed narcotics may have justified the original stop, there was no testimony that the officers gathered any additional information causing this suspicion to ripen into probable cause. Id. at 717.

Unlike Lippert and Coats, at the time appellant and his companion were stopped, the officers had information from an informer who had been proven to be credible that the appellant was making sales of crack cocaine at a named apartment complex. Agent Dorsey had observed the informer identify cocaine and the informer advised Dorsey that he had seen crack cocaine in appellant's hand. The premises where the sale was made had been the scene for numerous searches and arrests involving crack cocaine over the past two years. There had been an ongoing investigation of the appellant and the vehicle appellant was occupying by an officer whose primary duty was to enforce narcotic laws. Appellant was stopped and searched at a location about one-half block from the premises where the sales were reported to have been made. Only a short period of time separated the sales and the search of appellant. Just prior to the stop the officer observed appellant "was very active with his left hand."

Probable cause for a warrantless arrest exists when the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a prudent person in believing that the arrested person has committed or is committing an offense. Britton v. State, 578 S.W.2d 685, 689 (Tex. Crim. App. 1979). Applying this standard to the facts in the instant cause, we conclude that probable cause existed to arrest appellant and conduct a search of his person incident to an arrest at the time the officer stopped the vehicle in which appellant was a passenger.

Assuming, arguendo, that probable cause did not exist at the time of the initial stop, the officers clearly had articulable and reasonable suspicion to believe that appellant had committed a crime to justify a temporary detention. See Terry v. Ohio, 392 U.S. 1 (1968); Holladay, 805 S.W.2d at 469.

Agent Dorsey stated that he conducted a pat-down of appellant because he always feared for his safety when investigating narcotic offenses. The pat-down of appellant revealed that he had $433 on his person, fifteen of the bills being of the twenty dollar denomination. Dorsey stated that the going price for a rock of cocaine is twenty dollars. While it is unclear as to whether the amount and denomination of the bills were determined prior to the search of appellant's person, Dorsey testified that he knew appellant had been unemployed. While appellant's wearing of gold necklaces is not inherently significant, Dorsey stated that it was consistent with the attire of drug dealers. Dorsey learned from Smith that prior to Smith stopping the vehicle, appellant had been very active with his left hand. Dorsey observed that appellant's pants were partially undone when appellant stepped from the vehicle. By this time identity of the vehicle as the Jeep that had been the subject of an ongoing investigation because of its use in drug activity had been confirmed. Given the additional factors Dorsey learned after the initial stop, reasonable suspicion ripened into probable cause to arrest appellant and search his person. See Milton v. State, 594 S.W.2d 190, 194 (Tex. Crim. App. 1977). Appellant's point of error is overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice

[Before Justices Aboussie, Kidd and Davis^*]

Affirmed

Filed: January 29, 1992

[Publish]

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (1988).