Franklin v. State

¶1dissenting.

¶2En banc consideration was requested.

¶3A majority of the Justices of the Court • voted to overrule the request for en banc consideration.

¶4O’CONNOR, J., dissenting from the overruling of the request for en banc consideration and noting her agreement with the dissenting opinion.

¶5concurring and dissenting.

¶6I respectfully dissent on the search issue related to the possession conviction. I would affirm the conviction for escape.

¶7The Fort Worth Court of Appeals outlined the various ways by which the State can justify a search without a warrant as follows:

Once the search was shown to be warrant-less, the burden shifted to the State to *783prove the reasonableness of the warrant-less search. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986). The U.S. Supreme Court has recognized several exceptions to the warrant requirement based on “the exigencies of the situations.” These exceptions are inventory search, the “plain-view” doctrine, “the automobile exception,” and a search and seizure incident to a lawful arrest. See Aitch v. State, 879 S.W.2d 167, 172 (Tex.App. — Houston [14th Dist.] 1994, pet. ref d).

¶8Pettigrew v. State, 908 S.W.2d 563, 567 (Tex. App. — Fort Worth 1995, pet. ref d).

¶9The plain-view doctrine does not apply for obvious reasons. The State argued before the trial court, but not before this Court, that the search was justified as an inventory search and/or as a search incident to arrest. The majority does not base its ruling on these latter exceptions, and I would suggest that the search in question would be outside the permissible scope of either.

¶10Although the majority says the cocaine was found during an “inventory of appellant’s vehicle,” the holding is solely justified under the automobile exception. It is true, as the majority states, that the trial court’s ruling will not be disturbed if it can be founded on the correct application of any theory of law. For purposes of my dissent, I assume without deciding that the case is properly considered under the automobile exception. I further believe that the officers acted on a reasonable suspicion that appellant was, at a minimum, possessing cocaine. However, I dissent on whether the reasonable suspicion of the officers ripened to a level reaching probable cause thereby justifying the war-rantless search of appellant’s automobile. Applying the Gates & Eisenhauer standards 1 to the paucity of information received by the officers from the tipster, coupled and considered with the officers’ limited experience with this informant, I would hold that there was not a substantial basis in the evidence to support the trial court’s finding of probable cause.

¶11What the Officers Knew About the Suspect

¶12The evidence shows the officers learned from the informant that: (1) Anthony Franklin (appellant) was selling narcotics (2) from a blue two-door Oldsmobile, and (3) the narcotics were being kept in the windshield wiper fluid container under the hood.

¶13Franklin was not a stranger to Officer P.J. Fuller. Officer Fuller stated during the suppression hearing that he knew Franklin on sight, that Franklin drove a blue two-door Oldsmobile, and further that he had been recently stopped by his partner and issued a citation for no driver’s license.

¶14The information that Franklin was selling narcotics was not corroborated by any independent investigation or surveillance of the officers. Further, how the informant knew what he said about Franklin was not disclosed with certainty in the evidence.

¶15The Basis of the Majority’s Decision

¶16The majority finds that, “viewing the totality of the circumstances, the tip of the informant was a ‘substantial basis’ to support the trial court’s ruling of probable cause.” The majority grounds its holding in the fact that the informant had provided accurate information on two previous occasions, and finds legal support for its conclusion in Jones v. State, 640 S.W.2d 918 (Tex.Crim.App.1982) and Vasquez.v. State, 699 S.W.2d 294, 295 (Tex.App. — Houston [14th Dist.] 1985, no pet.).

¶17Previous History With Informant

¶18The majority states that on two previous occasions the informant had provided accurate information. However, at the suppression hearing, Officer Fuller discussed only one definite occasion when the informant provided information which was found to be reliable:

Q. Let’s talk about that informant. With that informant had you received reliable information in the past?

A. Yes.

*784Q. Tell the court about those times that you had received rehable information.

A. ’ I received some information on a female who was selling narcotics out of an apartment complex near the location where Mr. Franklin was arrested.

Q. Were you later able to verify that information and determine that it was accurate and reliable?

A. Yes.

Q. On another occasion other than the one that involved the female suspect did the informant provide you with other information that turned out to be rehable?

A. Other than Mr. Franklin?

Q. Right.

A. That same — during that same conversation with a female, he also mentioned Mr. Franklin's name and stated he was selling narcotics, real brief on that, nothing in particular that time.2

Q. Okay. From that same informant, did you also receive information about a male suspect that you passed on to other HPD officers who then eventually made an arrest?

A. Yeah. I don’t remember the specifics on that but that’s correct.

¶19I find no case where an informant’s tip that led to an arrest only can be used as an indicia of reliability, particularly when coupled with only a single other instance of providing accurate information. The arrest mentioned by Officer Fuller, where he was unfamiliar with the specifics, may have been reliable, and it may not have. The information about the male suspect is simply too general and nonspecific for a judicial officer to make an independent judgment as to the informant’s trustworthiness. We are left with a single instance in the evidence, not two, that the tipster’s information, at least in the knowledge of Officer Fuller, had proven to be reliable and credible.

¶20Jones and Vasquez

¶21Jones is distinguished from the case at hand first by the fact the confidential informant had been correct on two prior occasions and second because of the “highly detailed nature of the informant’s allegations.” Jones, 640 S.W.2d at 919-20.

¶22Vasquez is distinguished from the ease at hand by the “detailed and comprehensive nature of the tip.” Vasquez, 699 S.W.2d at 295. Although it is indefinite as to how many times the informant in Vasquez had given reliable information in the past, the totality of circumstances test was met by the detail of the tip, and, importantly, by the officers’ independent corroboration of the information provided to them by the tipster.

¶23Conclusion

¶24I would find that the information provided by the tipster was not detailed and comprehensive as in Vasquez or Jones nor was the reliability of the informant shown to the degree that would overcome the lack of detail or corroboration of the tip.

¶25For the above mentioned reasons, I would reverse the trial court’s judgment as to the conviction for possession of cocaine. I would affirm the conviction for escape.