Bradley McKellop v. State ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-025-CR



BRADLEY McKELLOP,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

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

NO. 0922575, HONORABLE JON N. WISSER, JUDGE PRESIDING

After appellant's motion to suppress evidence was overruled, appellant entered a plea of guilty to the offense of possession of a controlled substance, cocaine, in an amount less than 28 grams. See Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.115 (West 1992). Pursuant to a plea bargain, punishment was assessed at ten years, probated, and a $750 fine. Appellant properly preserved for review the overruling of his motion to suppress. See Tex. R. App. P. 40(b)(1).

Austin Police Officer Dennis Clark testified that he received a call from an Officer Staha on March 11, 1992, that Staha had received information from a confidential informant that appellant would be delivering a quantity of cocaine in a black pickup truck bearing a certain numbered license plate to a specific place at a specific time. The informant, whose reliability was not established, "had things set up" and a "page had been placed and a phone call had been made with Mr. McKellop [appellant] in an agreement that he would deliver a quantity of crack cocaine to this location."

When Clark and a fellow officer first observed appellant, he was driving away from a video store at Rutland and North Lamar Streets, the location Staha had given them for the delivery. Upon Clark's advising Staha that appellant was leaving the designated place for delivery, Staha replied that "he thought he knew where it was going and told us the destination." Clark followed appellant until he parked his pickup at an apartment complex. Clark related that it was at the address designated by Staha in the last communication. It was a "pretty big apartment complex--a couple of hundred units." Clark partially blocked appellant's vehicle with the unmarked police car. Appellant was advised that they were officers conducting a narcotics investigation and Clark read appellant "his rights." Appellant was "patted-down," and with his permission, a search was conducted of appellant's pickup. Neither the "pat-down" of appellant nor the search of his vehicle revealed any narcotics. Appellant was wearing a "number of items of clothing," and because apartment dwellers were watching, the officers drove appellant "down the street behind a shopping center" before directing appellant to remove his layers of clothing. The officers found cocaine on appellant's person after he removed a "layer of warm-up pants."

Appellant urges that the search of his person violated the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution, and that the evidence should have been suppressed under article 38.23 of the Texas Code of Criminal Procedure.

We must first determine whether appellant was placed under arrest, since circumstances short of probable cause may justify temporary detention for purposes of investigation. Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983). In the instant cause, the partial blocking of appellant's vehicle, the "pat-down" of his person, the search of his vehicle, and the removal of appellant to another location where he was directed to remove his clothing dictate the conclusion that appellant was placed under arrest. See Tex. Code Crim. Proc. Ann. art. 15.22 (West 1977); United States v. Mendenhall, 446 U.S. 544, 554 (1980); Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App. 1988).

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).

The State cites the opinions in three cases to support its position that the reliability of the information furnished by the anonymous informer was sufficiently verified to establish probable cause: Angulo, 727 S.W.2d at 276; Whaley v. State, 686 S.W.2d 950 (Tex. Crim. App. 1985); and Mendizabal v. State, 732 S.W.2d 417 (Tex. App.--Houston [14th Dist.] 1987, no pet.).

In Angulo, the officers received a detailed description of the defendant and his companion and the vehicle they occupied from an anonymous informant. The informant furnished information that the suspects would be carrying narcotics to a specific numbered apartment in an apartment located at a designated address. In addition, officers had received information from a reliable confidential informant that a resident of that numbered apartment had been selling narcotics. Two officers testified relative to their surveillance of the apartment for suspected narcotics activity, one of the officers stating that he had personally observed what appeared to be narcotic related traffic in and out of the apartment on twenty-five occasions. The Angulo court concluded that the informer's tip, coupled with the police corroboration and the surveillance of the area based on previously gathered information about the apartment, provided the officers with probable cause. Angulo, 727 S.W.2d at 280.

In Whaley, an officer testified that the informant had given him information in the past relating to drug trafficking that had proven to be credible and reliable. On the occasions in question, the informant furnished the officer with detailed descriptions of the defendant, the clothing he was wearing, the type of bag he would be carrying, the location of the apartment complex, the apartment number, the time of defendant's departure from the apartment, and defendant's possession of cocaine. In concluding that probable cause had been established for defendant's arrest, the court noted that the officers were furnished information by an informant who had given reliable information in the past and all details given by the informant were corroborated by the officers except whether the defendant was carrying cocaine. Whaley, 686 S.W.2d at 951.

In Mendizabal, the informant had been found to be reliable on three previous occasions, the officers were able to verify all information furnished by the informant as to appellant's description, the address where he would be found, and the fact that he would be leaving the residence "real quick" in a "brown pickup truck." The only detail the officers were unable to verify was the informant's report that the defendant would have cocaine in his possession. The court concluded that the established reliability of the informant coupled with the officers' verification of the informant's information was sufficient under the "totality of the circumstances" analysis to create probable cause for a warrantless arrest. Mendizabal, 732 S.W.2d at 419.

In Eisenhauer v. State, 678 S.W.2d 947 (Tex. Crim. App. 1984) (approved in Eisenhauer v. State, 754 S.W.2d 159, 165 (Tex. Crim. App.), cert. denied, 488 U.S. 848 (1988)), cited by the State for use of the "totality of the circumstances" test, a reliable confidential informant gave officers a description of defendant and told them he would be flying to Miami and returning the same evening with cocaine. Officers were able to verify that defendant was leaving on a flight that afternoon and observed him get off a flight from Miami that evening. When the officers approached defendant about being a cocaine courier, defendant began to shake, sweat and stutter. The court noted that Florida had been recognized as a well-known source of drugs. The court concluded that under the "totality of the circumstances" test, there was a substantial basis for the officers to conclude that there was probable cause to arrest defendant. Id. 678 S.W.2d at 955.

In Coats v. State, 815 S.W.2d 715 (Tex. Crim. App. 1991), cited by appellant, an informant known to officers for three weeks told Parker County Officers that the defendant was on his way into Weatherford on a motorcycle, and they could find him with some "speed" at a specified address. One of the officers knew the defendant from having stopped him for a traffic violation. The officers proceeded to the address given by the informant, stopped and searched defendant, and found methamphetamine on defendant's person and under the motorcycle seat. In contrasting the information possessed by officers in Coats with that known by officers in Eisenhauer, the court noted that there was no showing as to the informant's reliability, nothing to show that Weatherford was a well known source of drugs and no evidence that defendant appeared nervous when he was stopped. While stating that the initial stop may have been justified based on the officers' reasonable suspicion that defendant was in possession of "speed" as the result of the informant's tip, there was no evidence of the officers possessing any additional information causing this suspicion to ripen into probable cause. Id. at 716-17.

In the instant cause, the reliability of the informer was not established. We may only infer that the informant furnished the information about appellant's ultimate destination. The only information given the officers about this location was Staha's statement "that he thought he knew where it [appellant's pickup] was going and told us the destination." The ultimate destination given was a large apartment complex rather than a particular apartment. There was no evidence that the officers had any knowledge that the apartment complex was a source of drug activity. Nor was there any showing of appellant's prior involvement with drugs or any observation of suspicious conduct on the day in question. While the informant's tip may have justified an investigatory stop, we conclude there was a lack of sufficient information to establish probable cause to arrest and search appellant.

The judgment is reversed and the cause remanded.

Tom G. Davis, Justice

[Before Chief Justice Carroll, Justices Aboussie and Davis^*]

Reversed and Remanded

Filed: August 25, 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).