JAMES ALLEN DRUMM, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed June 8, 1992.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-91-00614-CR
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JAMES ALLEN DRUMM, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F90-31229-MH
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O P I N I O N
Before Justices Thomas, Maloney, and Kaplan
Opinion By Justice Thomas
        James Allen Drumm appeals his conviction for possession with intent to deliver amphetamine in an amount more than twenty-eight grams but less than 400 grams. After finding Drumm guilty, the trial court assessed punishment, enhanced by a prior conviction, at twenty years' confinement and a $2000 fine. In three points of error, Drumm complains that the trial court erred in failing to grant his motion to suppress because: (1) his detention was not reasonable in light of the facts known to the officers at the time; (2) the officers did not have probable cause to conduct a search; and (3) the officers did not have a search warrant. We overrule all the points and affirm the trial court's judgment.
FACTUAL BACKGROUND
        Between 10:00 p.m. and 4:00 a.m. on April 24, 1990, Dallas Police Officer Dorothy Claggett received a telephone call from a confidential informant, who had been reliable on many past occasions. The informant told Officer Claggett that a man in room 224 of the Comfort Inn Motel possessed a large quantity of amphetamine that he possibly had been selling. The informant described the man as a tall, very thin, white male and the man's vehicle as an older model brown and tan pickup truck with license plate number 261 1TL. The informant further stated that the man would be leaving the motel with a large quantity of amphetamine early the next morning. Finally, the informant told Officer Claggett that the amphetamine would be in either a briefcase or a black leather bag.
        Early in the morning of April 25, 1990, Officer Claggett and her partner, William Albert Hollingsworth, set up surveillance of room 224 at the Comfort Inn Motel. They saw the truck described by the informant parked in the vicinity of room 244. At about 9:30 a.m. the officers saw Drumm, who matched the informant's description of the man allegedly in possession of the amphetamine, leave room 224 and walk to the truck. He removed a small black leather bag from the truck and returned to the room. About thirty minutes later, Drumm returned to the truck and placed a briefcase in the truck cab. Shortly thereafter, he returned to the truck and placed the black leather bag into a cardboard Coca-Cola box in the bed of the truck.
        Drumm then drove the truck to the restaurant next to the motel. Officer Hollingsworth followed Drumm inside the restaurant and watched him eat breakfast. Drumm received four or five calls to his pager within ten to fifteen minutes and went outside to a telephone booth. About five minutes later, Drumm left the restaurant and drove in the opposite direction of the motel. The officers then stopped Drumm. During their warrantless search of the truck, officers found the black bag, which contained several plastic baggies full of white powder that smelled like amphetamine. The briefcase contained scales like those used in weighing narcotics for resale. Drumm was arrested for possession with intent to deliver.
        Drumm filed a pretrial motion to suppress all evidence obtained as a result of his detention and search. The motion alleges that the officers had no search or arrest warrant and no probable cause or reasonable suspicion that a crime was being committed and that, therefore, the detention and search violated the Fourth and Fourteenth Amendments of the United States Constitution; article I, section 9 of the Texas Constitution; and article 14.01 of the Texas Code of Criminal Procedure. After a hearing, the trial court denied the motion to suppress. At trial, the State offered all of the testimony and evidence adduced at the suppression hearing, and the trial court found Drumm guilty of possession with intent to deliver amphetamine.
 
MOTION TO SUPPRESS
        In three points, Drumm argues that the trial court erred in overruling his motion to suppress because (1) his detention was not reasonable, (2) the officers lacked probable cause to conduct a search, and (3) the officers had no search warrant.
        Evidence obtained in violation of the constitution must be suppressed, and the trial court has no discretion in the matter. Polk v. State, 738 S.W.2d 274, 276 (Tex. Crim. App. 1987); Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 1992). In determining whether police conduct was reasonable, courts examine the totality of the circumstances surrounding the complained-of incident. Armstrong v. State, 550 S.W.2d 25, 30 (Tex. Crim. App. 1977) (op. on reh'g).
        The trial court has broad discretion to determine the admissibility of evidence, and an appellate court will not reverse unless a clear abuse of discretion is shown. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). The trial judge is the sole factfinder at a hearing on a motion to suppress evidence, and the judge may choose to believe or to disbelieve any or all of a witness' testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980).
A. Reasonable Suspicion for Detention
        In the first point, Drumm contends that the trial court erred in denying his motion to suppress because his detention was not based on reasonable suspicion. He asserts that the events observed by the officers were as consistent with innocent activity as with criminal activity. The State responds that the officers properly stopped Drumm after they confirmed the information received from the reliable informant.
        A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 146 (1972); Gearing v. State, 685 S.W.2d 326, 327-28 (Tex. Crim. App. 1985). Circumstances short of probable cause to arrest may justify a temporary investigative detention. Gearing, 685 S.W.2d at 328. To justify the intrusion, the officer must have specific articulable facts which, in light of experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the detained person. Gearing, 685 S.W.2d at 328 (quoting Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983)). These facts must amount to more than a mere hunch or suspicion. Williams v. State, 621 S.W.2d 609 (Tex. Crim. App. 1981). There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987); Gearing, 685 S.W.2d at 328 (quoting Johnson, 658 S.W.2d at 626). Reasonable suspicion depends upon both the content of information possessed by police and its degree of reliability. Alabama v. White, 110 S. Ct. 2412, 2416 (1990). Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Gearing, 685 S.W.2d at 328 (quoting Johnson, 658 S.W.2d at 626).
        Courts have held that an informant's tip can give rise to reasonable suspicion or the greater standard of probable cause. See, e.g., White, 110 S. Ct. 2412; Illinois v. Gates, 462 U.S. 2317 (1983); Adams, 407 U.S. 143; Draper v. United States, 358 U.S. 314 (1959); Angulo v. State, 727 S.W.2d 276 (Tex. Crim. App. 1987); Roldan v. State, 698 S.W.2d 741 (Tex. App.--Beaumont 1985), pet. dism'd, 739 S.W.2d 868 (Tex. Crim. App. 1987). For example, in White, the Court held that an anonymous tip, as corroborated by independent police investigation, exhibited sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. White, 110 S. Ct. 2412, 2415 (1990). Our case is stronger than the case of an anonymous telephone tip. See Adams, 407 U.S. at 146. Here, Officer Claggett testified that the confidential informant had proved to be reliable on many occasions in the past, was trustworthy, and was "very credible." See Price v. State, 756 S.W.2d 777, 779 (Tex. App.--Corpus Christi 1988, no pet.) (one method of proving informant's reliability is to show informant provided truthful information in the past). Moreover, the informant provided Officer Claggett with several detailed facts: (1) the make, model, color, and license plate of the truck driven by the man in possession of amphetamine; (2) the motel and room number where the man was staying; (3) the man would leave the motel early the next morning; (4) the man had amphetamine in either a black bag or a briefcase; and (5) a physical description of the man. See Price, 756 S.W.2d at 779 (credibility of tip strengthened if given in great detail, which indicates strong basis for informant's knowledge). The only information not corroborated during police surveillance was whether Drumm actually possessed the amphetamine. See Price, 756 S.W.2d at 779 (informant's tip can be confirmed by independent police work that corroborates information received).
        Further, under the circumstances of this case, Drumm's activities were not as consistent with innocent activity as with criminal activity. We note that the officers testified that there was nothing unusual about a man staying in a hotel possessing a briefcase or a black leather bag, eating breakfast, or leaving the motel. The officers stated that it was suspicious that Drumm placed the black leather bag in the truck bed because he had placed everything else in the cab of the truck. Officer Claggett testified that, in her experience, people often keep illegal substances at a distance, as in the bed of the pickup truck. The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal activity. Angulo, 727 S.W.2d, at 279 (quoting Gates, 462 U.S. at 243 n.13). Absent the reliable informant's tip, Drumm's actions might have been as consistent with innocent activity as with criminal activity. Here, Drumm's seemingly innocent behavior became suspicious in light of the reliable informant's tip. Angulo, 727 S.W.2d at 279-80. The only part of the tip not verified was that Drumm carried amphetamine in either the black leather bag or the briefcase. The verified bits of the informant's tip made it more likely that the unverified bit of the information was likewise true. Draper, 358 U.S. at 314; Price, 756 S.W.2d at 780 (dealing with greater standard of probable cause). Thus, the officers reasonably could assume that either the black leather bag or the briefcase contained amphetamine. Having viewed the totality of the circumstances, we conclude that the officers had reasonable articulable suspicion to detain Drumm for further investigation. We overrule the first point.
B. Probable Cause to Search
        In the second point, Drumm argues that the officers had no probable cause to conduct the search. He contends that it does not require special knowledge to predict that a man will leave a motel with either a shaving kit or a briefcase, that most people staying at motels eat at restaurants, and that the officers observed no illegal conduct by Drumm. The State asserts that the reliable informant's tip coupled with independent police corroboration of the tip gave rise to probable cause to conduct the search.
        Probable cause for a search exists where the facts and circumstances within the knowledge of the officer on the scene and of which the officer has reasonably trustworthy information would lead a person of reasonable caution and prudence to believe that he will find the instrumentality of a crime of evidence pertaining to a crime. Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972). The inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause. Brown, 481 S.W.2d at 110. Probable cause deals with probabilities, not certainties. "It is enough, for purposes of assessing probable cause, that `corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,' thus providing a substantial basis for crediting the hearsay." Angulo, 727 S.W.2d at 280.
        In Draper, police officers corroborated detailed information provided by a known, reliable informant. Draper, 358 U.S. at 309-10. The Court stated that, once the officer had corroborated every other bit of the informant's tip, the officer had grounds to believe that the remaining unverified bit of the information -- that Draper would have heroin with him -- was likewise true. Draper, 358 U.S. at 313. The Court then held that the officer had probable cause to arrest Draper. Draper, 358 U.S. at 314. In Angulo, a police officer received a detailed anonymous telephone tip that a particular car containing narcotics would be at a particular address. Angulo, 727 S.W.2d at 277. The officer had conducted prior surveillance of the address and had received prior information from a reliable informant concerning activities at the address. Angulo, 727 S.W.2d at 277. The officer went to the address provided by the anonymous informant, where he corroborated every aspect of the tip except whether the vehicle actually contained narcotics. Angulo, 727 S.W.2d at 279. The Court of Criminal Appeals held that the anonymous tip coupled with the independent police corroboration and prior surveillance provided officers with probable cause to search the automobile. Angulo, 727 S.W.2d at 280.
        In our case, the officers' surveillance verified all but one of the details of the information given to Officer Claggett by the reliable informant. This gave the officers probable cause to believe that amphetamine was inside either the black leather bag or the briefcase. See Draper, 358 U.S. at 314; Angulo, 727 S.W.2d at 280; Harper v. State, 704 S.W.2d 546, 548 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). As previously stated, Drumm's seemingly innocent behavior became suspicious in light of the reliable informant's tip. Angulo, 727 S.W.2d at 279-80. We conclude that, under the totality of the circumstances, the officers had probable cause to search the black leather bag. Draper, 358 U.S. at 314; Price, 756 S.W.2d at 780; Harper, 704 S.W.2d at 548. We overrule the second point.
C. Necessity of a Search Warrant
        In the third and final point, Drumm complains that the search of the black bag required either his consent or a search warrant. FN:1 Drumm asserts that the warrantless search was improper because nothing about the closed, opaque, black leather bag disclosed its contents or suggested any criminal activity. He argues that any inferences about the bag's contents should have been drawn by a neutral magistrate. The State contends that the search was proper because the officers legitimately stopped Drumm's vehicle and had probable cause to believe that the black bag contained narcotics.
        A warrantless search is per se unreasonable. California v. Acevedo, 111 S. Ct. 1982, 1991 (1991). There are, however, exceptions to the warrant requirement. For example, the exigencies attendant to the ready mobility of automobiles justify stops and searches on facts giving rise to probable cause that the vehicle contains contraband without the protection afforded by a magistrate's prior evaluation of those facts. United States v. Ross, 456 U.S. 798, 806 n.8 (1982); Ackenback v. State, 794 S.W.2d 567, 572 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd). In short, officers may search an automobile without a warrant if the search is supported by probable cause. Acevedo, 111 S. Ct. at 1991. They need not apply for a warrant after detaining the automobile. Ross, 456 U.S. at 807 n.9. "The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather it is defined by the object of the search and the places in which there is probable cause to believe that it may be found." Acevedo, 111 S. Ct. at 1991 (quoting United States v. Ross, 456 U.S. 798, 824 (1982)). Police may search an automobile and the containers within it where they have probable cause to believe that contraband or evidence is contained. Acevedo, 111 S. Ct. at 1991.
        We previously concluded that the officers in this case had probable cause to believe that the black bag in the truck bed and/or the briefcase in the truck cab contained amphetamine. Further, the officers testified that, by the time they saw a person fitting the description provided by the informant come out of the room, it was too late to obtain a warrant because Drumm was preparing to leave. They further stated that, at the time of the stop, Drumm was driving the truck toward a major highway. They believed that Drumm was escaping the scene and that they might lose the truck if it entered the highway and that a chase could result in danger to other motorists. The officers also testified that the amphetamine could easily have been thrown or poured out of the truck window while Drumm was driving. We conclude that under these facts the officers could conduct a warrantless search of the black leather bag. Acevedo, 110 S. Ct. at 1991. We overrule the third point. We affirm the trial court's judgment.
 
 
 
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
910614F.U05
 
FN:1 It is undisputed that Drumm did not consent to the search of the black leather bag and that the officers did not have a search warrant.
File Date[06-08-92]
File Name[910614F]