Scott v. State

OPINION

BROWN, Commissioner.

This is an appeal from a conviction for burglary. Appellant was tried before a jury which found him guilty and assessed punishment at five (5) years in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is not challenged. Appellant’s sole ground of error is that the trial court erred in overruling appellant’s motion to suppress evidence seized from the automobile in which appellant was a passenger, because the search was illegal.

The State’s only witness at the motion to suppress hearing was the arresting officer, J. S. Williamson. Williamson testified that he was a member of the Tactical Division of the City of Garland Police Department. He stated that he was on patrol, in plain clothes and driving an unmarked car, during the early morning hours of February 25, 1975, which was a Tuesday. He defined his patrol area at that time as the Towngate area, which consisted of fashionable new townhouses and a large apartment complex known as Eastgate located across the major thoroughfare servicing the area. Williamson characterized the area as a “high crime area” and stated that he was assigned to “burglary patrol” in that area based on a computer analysis of the likelihood of crime to be committed in that area during that particular time. He stated that there had been reports of hubcap thefts in the East-gate complex at a time prior to this particular occasion, but the precise time was not determined. He stated that at about 1:30 a. m. he saw a car coming from the direction of some of the newer townhouses on a street where only a few of the homes were occupied and some model townhouses were located. Williamson said that he pulled his car to the curb to observe the other car because “I [had] been down that area for several months, and during this time, at this time of night, there is no cars on that street . . . the people that live in that area . . . have the rear end garages . . . they pull in the alley and they go in homes . . . there is never any activity out there at night . .” He stated that there were no street lights in the area and that it was totally dark. The other car passed within a few feet of Officer Williamson’s vehicle and he stated that he could determine that it was a “white over blue '74 Cadillac” containing two black males in the front seat and what appeared to be “sheets of material” about five feet square propped up in the back seat.

Williamson stated that he turned his patrol car around and followed the Cadillac for approximately two blocks before turning on his red lights to stop it. He said that he reported to the radio dispatcher that he was “out on traffic” and requested a backup squad. He stated that he had observed no traffic violations and that the Cadillac had proceeded at an average speed. He testified that he stopped the car “purely to investigate due to the circumstances . under which (he) had seen it around the townhouses.” He stated that he asked the occupants of the car for their identification and the driver, a Mr. Smith, produced an identification card (it was not stated whether this card was a driver’s license). Appellant was sitting in the passenger seat of the car and produced no identification, but told Williamson his name and birth date. Williamson stated that as he approached the Cadillac to request identification, he passed the rear window of the car and determined that the “sheets of material” were oil paintings. He asked Smith and appellant what they were doing in the area and where they got the paintings and they responded that they had exited the nearby LBJ Freeway and had become lost on their way to decorate a friend’s apartment. A second officer arrived on the scene and Williamson sent him back to the townhouses to see if there were any signs of burglary. While the second officer was gone, Williamson radioed the dispatcher to check the identification of Smith and appellant (the record does not show the result of this radio check). The other officer then called Williamson over the radio to advise that it appeared that at least one of the townhouses had been burglarized and that there were bare spaces on the walls where pictures had been hanging.

Throughout the duration of this investigation (approximately twenty to thirty minutes) appellant and Smith alternately sat in their vehicle and paced up and down the road and expressed their dissatisfaction to Williamson at being detained. After receiving word from the other officer that the townhouse had been burglarized, Williamson placed appellant and Smith under arrest and put them in his patrol car. He then retrieved the keys to the Cadillac and opened the trunk where he discovered other decorative items apparently stolen from the townhouse.

The legality of the search of the Cadillac and the seizure of the items depends on the justification for the initial stop of the car. The constitutional validity of such an investigative stop depends on “specific and articulable facts and circumstances” and the officer’s reasonable inferences from those facts in each individual case. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). It is axiomatic that the investigative stop and the subsequent search cannot be justified by what is discovered. Sibron, supra; Brown, supra.

We compare the facts and circumstances in Brown, supra, with the instant case. In Brown, the Dallas police officer was on routine patrol in the downtown area of that city in an unmarked patrol car. At about 1:30 a.m. he saw a green Volvo bearing out-of-state license plates about one half block ahead of him on a poorly lighted, sparsely traveled street. He stated that his attention was attracted to the car because there were clothing and a box of crackers on the ledge between the back seat and rear window. He stated that he could see that the car contained four men, three of whom “fit the general description” of persons who had committed an armed robbery at a Dallas supermarket on the previous day. That general description consisted only of race and approximate height and weight. He stated that he observed the two men in the back seat turn around and look toward him and then move their shoulders. He concluded they were concealing firearms in the back seat. The car was subsequently stopped and searched and various items of contraband were found.

We determined that the officer’s justification for stopping the car was based on two facts, (1) his conclusion that they fit the general description of the armed robbers, and (2) his conclusion that the two men in the back seat were concealing weapons. We held his conclusions insufficient to justify the stop and search on the basis that the general description of height, weight and race would serve, at most, only to raise a mere suspicion that the men were the robbers and such an inarticulate hunch or suspicion of the officer is insufficient to constitute probable cause. Sibron, supra. We further held that such suspicion could not be transformed into probable cause by the movement of the two men in the back seat. This movement was not the type of “furtive gesture” which would indicate criminal activity, but was more in the nature of “ambiguous conduct which the arresting officers themselves have provoked.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973) also involved a similar set of circumstances. There the Austin police officer was on patrol near the University of Texas campus which he characterized as a “high crime area.” He observed the taillights of a car parked at a curb and saw a man enter the car. The car then slowly drove away and the officer followed for several blocks before stopping it “to make sure everything was in order.” The officer stated that he had observed no possible traffic violations. During this investigative stop, the officer observed a paper sack on the front seat and a plastic baggie sticking out of the paper bag. He stated he could discern a green, grass-like substance, later proven to be marihuana, inside the plastic bag. Appellants were subsequently arrested and the contents of the bag introduced as evidence. Citing Brown, supra, we held that the officer had no probable cause to stop appellant’s automobile.

In examining the officer’s testimony in the present ease, we note that, as in Brown, supra, and Talbert, supra, he saw no traffic violation which would justify the initial stop. Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975). We note also that the officer had received no police dispatch about a suspected automobile or person which might likewise have justified the initial stop. Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975). Compare Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974).

Therefore, the justification for Officer Williamson’s initial stop must rest on the specific and articulable facts and circumstances which he observed and from which he drew his inferences. Those facts and circumstances consist of (1) his awareness that there were reports of hubcap thefts in the nearby apartment complex; (2) his characterization «of the Towngate area as a “high crime area”; (3) his observation of two black males driving a white and blue 1974 Cadillac on a dark, sparsely traveled street at 1:30 a. m.;¹ and (4) his observation of the “sheeting material” in the back seat of the car.

We find the facts insufficient to justify the initial stop and it was, therefore, error to overrule appellant’s motion to suppress the evidence seized from the car.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

1 . Appellant called the project superintendent of the Towngate development as a witness at the motion to suppress hearing. He stated that some of the townhouses were owned by younger couples and that it was not unusual for them to entertain guests until late in the evening. He also stated that he had heard nothing about any crimes being committed in the development prior to this burglary, which tends to rebut the testimony that the area was a “high crime area.”