Alejandro Arrambide v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-360-CR AND NO. 3-91-361-CR



ALEJANDRO ARRAMBIDE,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NOS. 0912338 & 0912339, HONORABLE BOB JONES, JUDGE PRESIDING

Appeals are taken from convictions for the offenses of possessing a useable quantity of marihuana of more than four ounces but less than five pounds, and possession of a controlled substance, cocaine in an amount less than twenty-eight grams. Tex. Health & Safety Code Ann. §§ 481.112(b), 481.121(b)(3) (West 1992). After finding appellant guilty of both offenses, the court assessed punishment at eight years probated, and a five hundred dollar fine in each cause. In appellant's points of error one, two and three, complaint is made of the court's failure to suppress the evidence because the evidence was seized as the result of an illegal arrest. In points of error four and five, appellant asserts that the court erred in failing to find his consent to search was the result of an illegal arrest and not voluntarily given. We overrule appellant's points of error and affirm the judgments of the trial court.

Austin Police Officer Randal Milstead testified that he had received information from several sources that appellant was distributing cocaine and marihuana in exchange for property. Milstead related that on December 3, 1990, informants Kirk Reeves and Jim Thomas told him that the cocaine and marihuana they had in their possession had come from appellant. They advised Milstead that appellant preferred to take property like jewelry or cordless telephones in payment for narcotics. The informers furnished additional information regarding appellant, his telephone number, the name of his business, and his address.

Officer Milstead's check of appellant's telephone number, the name of appellant's business, and appellant's address confirmed the correctness of the informants' information. With the permission of an unnamed informant, Milstead "prepped" a tape in order that a call by the informant to appellant might be recorded. The taped calls that followed revealed that the informant advised "Alex" that Tony had brought "those phones by" and wanted a "couple of tapes." Alex asked if he wanted any more "vegetables," an offer the informant refused. Alex also wanted to know if he had any "jewelry." In a call made shortly thereafter, the informant told Alex that Tony had some "jewelry" and wanted "bell peppers" from the garden. The informant and Alex agreed to meet at the El Torito Restaurant at "a quarter after nine." Milstead believed it was appellant's voice on the tape because the number he dialed was listed in appellant's name and "he identified himself as Alex." Milstead knew from experience that narcotics "always have a code word" when transactions are made over the telephone. The informant advised Milstead that the code word for cocaine was "tapes" or "movies," and the code word for marihuana was "vegetables."

Milstead, accompanied by Austin Police officers James Fealy and Malcolm Wilson, arrived at the parking lot at El Torito "about 9:15 [p.m.]." Shortly after their arrival, the officers saw a vehicle enter the parking lot of the make and description the informants told Milstead appellant would be driving. The license number matched the number the informants had given Milstead. The person who stepped from the vehicle possessed the features of the person described by the informers. Appellant was arrested because he had agreed to "[d]eliver cocaine and marihuana to that location at that time. He had made an agreement to sell narcotics."

When evidence is presented on a motion to suppress, the court determines the credibility of the witnesses and is the sole trier of fact. Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986). The appellate court should defer to the trial court's findings of fact absent a clear abuse of discretion. Miller v. State, 815 S.W.2d 805, 809 (Tex. App.--Austin 1991, pet. ref'd).

Probable cause for a warrantless arrest exists when at that moment the facts and circumstances within the officer's knowledge and of which he has 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). 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).

Appellant points to the fact that the informants were not shown to have been reliable. An informant's veracity is relevant in determining the value of his report; it is one indicia of reliability to be balanced against others in an analysis of the totality of the circumstances. Gates, 462 U.S. at 230, 234. A low degree of veracity, however, may be compensated for by some other indicia of reliability. Id. at 233; see also, Alabama v. White, 110 S. Ct. 2412 (1990). In Angulo, the court stated that even when a tip is from an unknown informant, the fact that the informant is right about some things makes it more likely that he is right about other facts. 727 S.W.2d at 279. In the instant cause, every detail mentioned by the informers was verified, such as appellant's name, the name of his business, his telephone number and address, the description of appellant's vehicle, and appellant's physical description. Milstead learned from the telephone conversation that a person identified as "Alex" at the telephone number listed in appellant's name had agreed to deliver "vegetables" and "tapes" to the informant at the El Torito restaurant at 9:15 that evening for "phones" and jewelry. Milstead knew that code names are used in narcotic transactions.

Officers may consider prior knowledge, personal observation, and reasonably trustworthy information in making the evaluation of probable cause. Holladay v. State, 805 S.W.2d 464, 472-73 (Tex. Crim. App. 1991). Based on the officers' verification of the informants' information, the additional knowledge the officers learned, and their knowledge of drug trafficking, we conclude that the officers had probable cause to believe that, when he was arrested, appellant had committed the offense of offering to sell a controlled substance. We reject appellant's contention that no violation of the law is shown. The offense of delivery by offer to sell is complete when, by words or deeds, a person knowingly offers to sell a controlled substance. Tex. Health & Safety Code Ann. § 481.002(8) (West 1992); Stewart v. State, 718 S.W.2d 286, 288 (Tex. Crim. App. 1986). We find that a reasonable person would have concluded that the representations of appellant constituted an offer to sell a controlled substance. ⁽¹⁾ We overrule appellant's points of error one, two and three.

In his fourth point of error, appellant contends the trial court erred in failing to find the consent to search form signed by appellant was the result of an illegal arrest. Following the arrest of appellant, the search of appellant's person and car failed to reveal any narcotics. Subsequently, appellant agreed to a search of his home where the officers found the cocaine and marihuana that forms the basis of the instant convictions. Although we have determined that appellant's arrest was legal, we will assume that the arrest was illegal in addressing this point of error. When an arrest is illegal, the question becomes "whether the consent to search was obtained by the exploitation of an illegal arrest or detention, or by means sufficiently distinguishable to be purged of the primary taint." Juarez v. State, 758 S.W.2d 772, 778 (Tex. Crim. App. 1988).

After appellant was arrested and placed in the police van, Officer Wilson read appellant his Miranda rights. Appellant was asked if he would consent to a search of his residence, a request appellant initially refused. Following appellant's denial of any knowledge of narcotic transactions, Officer Fealy told appellant that he did not believe he was telling the truth "and that we were going to the police station and intended to get to the bottom of it." In response to Fealy's question whether he would agree to a search of his residence, appellant stated he would agree subject to numerous stipulations, an offer Fealy declined. A discussion of options the officers might pursue took place out of the presence and hearing of appellant. Obtaining a search warrant and approaching appellant's wife with a request to search the residence were options the officers considered.

In the midst of the officers' consideration of the appropriate course to pursue, appellant conveyed word by another officer that he wanted to talk to Officer Fealy. Appellant told Fealy that he would agree to the search if the officers would not arrest or search his wife, not scare his wife or child, and allow him to talk to his wife before the officers entered the house. Appellant advised Fealy that he would take the officers to where the narcotics were located so that the officers would not "tear his house apart." Fealy related that he agreed to appellant's terms as long as there was no indication that appellant was not being truthful. Appellant was advised of his constitutional right to refuse permission to search. Milstead stated appellant read the consent to search form and stated that "he understood the rights therein and what he was doing." The consent form appellant signed contains a recitation that appellant had been informed of his constitutional right not to have a search made of the premises in question. Approximately fifteen to twenty minutes elapsed between the time of the arrest and appellant's agreement to allow the officers to search his residence. In contradiction of the officers' testimony, appellant testified that the officers threatened to tear down the door to his house with a battering ram that they threw at his feet and said they would arrest his wife if he did not sign the consent form.

After arrival at appellant's residence, appellant directed officers to a closet in his home where a blue bag containing cocaine, marihuana, and a set of scales was recovered. Pursuant to appellant's direction, the officers went to a refrigerator where a quantity of marihuana was seized. Milstead testified that the officers concluded the search after appellant told them that they had recovered all of the narcotics.

After concluding that the arrest that preceded the defendant's consent to search was illegal, the court in Arcila v. State, 788 S.W.2d 587, 591 (Tex. App.--Dallas 1990), aff'd, 834 S.W.2d 357 (Tex. Crim. App. 1992), reviewed factors to be considered in determining whether the consent to search sufficiently attenuates the taint of the illegal arrest. In Arcila, the court stated:

Besides the factor of arrest, other significant circumstances include: (1) whether, and to what extent, officers exhibited a show of force, including a display of weapons; (2) whether the actions of the arresting officers can be classified as flagrant misconduct; (3) whether the police threatened to obtain a search warrant if the detainee did not acquiesce, or whether the police claimed a right to search; (4) whether the police first gave appellant his Miranda warnings; (5) whether the arrest was made in order to obtain consent; (6) whether appellant knew that he could refuse to allow a search; (7) whether consent was first offered by appellant or was in response to a police request; (8) appellant's education, intelligence, and physical condition; and (9) the proximity of the consent to the arrest, since an intervening time period can provide a degree of attenuation of the taint.

(citations omitted). It is not necessary that each of the above factors be found in favor of the State. Juarez, 758 S.W.2d at 780.

The determination of whether consent is voluntary is a question of fact to be determined from the totality of the circumstances. Juarez, 758 S.W.2d at 776. The court, as the sole trier of the facts, was free to disbelieve appellant's testimony that he was coerced into signing the consent to search form by threats to his wife or his property. No more than four officers were present and there is no evidence of any weapons being displayed. Although the officers initially asked appellant to consent, appellant requested the conversation with Fealy in which appellant stated that he would agree to the search.

In Bretti v. Wainwright, 439 F.2d 1042 (5th Cir. 1971), cert. denied, 404 U.S. 943 (1971), the court found that consent to search was shown by clear and convincing evidence following an illegal arrest where there was no evidence of coercive tactics, "and perhaps most important, there were significant 'intervening occurrences' between the alleged illegal arrest and the acquisition of evidence sought to be used." Bretti, 439 F.2d at 1045. After noting that the intervening circumstances were the constitutionally mandated warnings given the defendant, the Bretti court stated:

While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession, they do help ensure that the consent is free, voluntary, and untainted by the arrest's possible illegality. In the instant case the presence of these warnings leads us to conclude that any coercion flowing from the possible illegality of appellant's arrest was dissipated.

439 F.2d at 1046 (citations omitted).

In the instant cause, appellant was given the Miranda warnings and advised of his right not to consent. The officers testified that appellant stated that he understood his rights and his decision to consent. While only fifteen to twenty minutes elapsed between the arrest and the consent to search, the temporal proximity factor has been said to be "the least determinative factor involved." Juarez, 758 S.W.2d at 781. We find that any coercion flowing from the alleged illegal arrest was dissipated. The totality of the circumstances dictates that the State met its burden of proving by "clear and convincing evidence" that appellant freely and voluntarily relinquished his known rights. Arcila, 788 S.W.2d at 591. Appellant's fourth point of error is overruled.

In his fifth point of error, appellant asserts that his consent to search was coerced and not voluntarily given. We find that our disposition of appellant's fourth point of error is dispositive of this contention.

The judgments are affirmed.

Tom G. Davis, Justice

[Before Justices Jones, Kidd and Davis^*]

Affirmed on Both Causes

Filed: February 24, 1993

[Do Not Publish]

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

1. Appellant testified that "tapes" meant "cocaine," and "vegetables" was the name used for "pot." Since this was knowledge acquired following the arrest, it cannot be considered in determining whether probable cause existed to arrest appellant.