Jose Alaniz v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00410-CR
Jose Alaniz, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0924713, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

Appellant entered a negotiated plea of guilty to the offense of possession of a usable quantity of marihuana of fifty pounds or less, but more than five pounds. Controlled Substances Act, 71st Leg., R. S., ch. 678, sec. 1, 481.121, 1989 Tex. Gen. Laws 2230, 2939 (Tex. Health & Safety Code Ann. 481.121, since amended). Punishment was assessed at confinement for five years, probated, and a fine of $2,500. Appeal is limited to the trial court's overruling appellant's motion to suppress. See Tex. R. App. P. 40(b)(1). We will overrule appellant's point of error and affirm the judgment of the trial court.

Austin police officer John Sisson testified that on July 5, 1992, he received a call from Austin airport officer Romelia Reyes informing him of a message she had received from an unnamed customs officer. Reyes advised Sisson that the customs officer had obtained the following information from a confidential informant:

 

On that date, she [Reyes] called and said that Harlingen called and said that there was a tall Hispanic male with a black mustache flying in from Harlingen carrying drugs. She stated that according to whoever she talked to that he was coming in on the 2:05 flight, that he checked in two suitcases, tag numbers 37-99-89 and tag number 37-99-90, and that the bags were described as a black tweed suitcase and a beige flowered suitcase.

 

Sisson arrived at the Austin airport in time for arrival of the flight and followed a person, identified as appellant, who fit the description he had been furnished. Sisson observed appellant remove the only two bags from the luggage carousel that matched the description of those alleged to have been carried by the suspect. Sisson, who had been trained in drug interdiction and drug characteristics, observed what he characterized as unusual behavior by appellant. Sisson stated that "as soon as he [appellant] came off the plane, he started looking all around--He appeared to be nervous and then he started walking fast."

After appellant claimed his bags and started to leave, Sisson approached him and advised him that he was an officer with the narcotics interdiction unit and would like to talk to him. Sisson advised appellant that he was not under arrest, and appellant expressed a willingness to talk to the officer. Appellant told Sisson that he was visiting an aunt in Austin for a "couple of days." Sisson advised appellant that he had received information that he was carrying drugs from Harlingen. Appellant denied drug involvement and agreed to Sisson's request to search his bags. On discovering that the bags were locked, Sisson asked appellant for a key. Appellant denied having a key and declined Sisson's request to open them another way. Upon Sisson asking how he was going to open the bags, appellant "just shrugged his shoulders."

Sisson testified that when he asked appellant if he had any narcotics in his luggage, "[H]e became very nervous. His voice was quivering. He couldn't stand still." At this point, Sisson advised appellant that he, along with his luggage, would be detained until a drug detector dog sniffed the bags. Sisson observed that the numbers on the tickets attached to appellant's bags matched the claim check numbers he had been furnished by Reyes. Sisson also noted that appellant's ticket showed that he had paid cash for a one-way ticket from a city that was known as a drug location source. Based on the foregoing observation, Sisson took appellant and his luggage to the airport police office where appellant was advised of his Miranda rights. Appellant declined to answer Sisson's question about why he was carrying two pieces of luggage for a two-day visit.

Upon learning that a drug detector dog was not available that day, a Sunday, appellant was told that he was free to leave but that his bags would be detained until the next day when the dog could sniff them. Sisson stated that appellant agreed to leave his bags, a phone number, and an address where he could be reached in Austin, and left the airport. A check of the address and phone number showed that both were nonexistent. The drug detector dog sniffed the bags the following day and gave a positive alert. A search warrant for appellant's luggage was obtained at 3:00 p.m. on Monday. A search of the bags resulted in the seizure of six bundles of marihuana wrapped in plastic with baby powder between each layer of marihuana.

In oral argument before this Court, counsel for appellant stated a factual dispute existed regarding whether Sisson possessed all of the information he detailed before detaining appellant. In State v. Comeaux, 786 S.W.2d 480 (Tex. App.--Austin 1990), aff'd, 818 S.W.2d 46 (Tex. Crim. App. 1991), issues were raised about whether the trial court "assumed, "found" and "felt" certain facts in ruling on a motion to suppress. The Comeaux court set forth the following standard by which a trial court's rulings on a motion to suppress are reviewed on appeal:

 

In reviewing a trial court's ruling on a motion to suppress evidence, the appellate court will not reverse that decision absent a clear showing that the trial court abused its discretion. As the sole trier of fact at the hearing on the motion, the trial judge is free to believe or disbelieve all or any part of any witness's testimony. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

 

Id. at 482 (citations omitted).

The thrust of appellant's contention is that there was not probable cause for the officer to make a warrantless seizure of his luggage following his arrival in Austin. Probable cause for a warrantless arrest exists at the 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. 1978), cert. denied, 455 U.S. 955 (1979). The reviewing court must look at the "totality of the circumstances" in determining whether there existed a substantial basis for concluding that there was probable cause at the time in question. See Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Circumstances short of probable cause may justify temporary detention for purposes of investigation. See Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983). The officer must have possessed articulable facts that created some reasonable suspicion to connect the suspect with unusual activity that was related to crime. See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). "In justifying a stop, the police officer can make rational inferences from the articulable facts based upon the officer's personal knowledge and experience." Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992).

Appellant contends that United States v. Place, 462 U.S. 696 (1983) governs the instant cause. Place's behavior aroused the suspicion of officers as he waited in line at the Miami Airport to purchase a ticket to New York. As Place proceeded to the gate for his flight, officers approached him and asked to see identification and his ticket. Place complied with these requests and consented to the search of two bags he had checked. Because the flight was about to depart, the bags were not searched. Place's statement to the officers that he had recognized that they were police coupled with a variance in street addresses on the checked luggage, aroused the officer's suspicion. Additional investigation revealed that neither address existed and a telephone number Place had given the airline belonged to still another address. Based on the foregoing information, Miami officers called D.E.A. (Drug Enforcement Administration) authorities in New York. D.E.A. agents observed suspicious behavior when Place deplaned at La Guardia Airport. After Place claimed his luggage, the agents approached him and identified themselves as federal narcotic agents, to which Place responded that he knew they were "cops" and had spotted them on his arrival. Place advised the agents that Miami airport officers had searched his luggage, a representation that was contrary to information furnished the agents by Miami authorities.

When Place refused to consent to a search of his luggage, one of the agents advised him that they were going to take the luggage to a federal judge to obtain a search warrant. Place was allowed to leave, but was furnished a telephone number where the agents might be reached. Agents took Place's luggage to Kennedy Airport where a sniff test by a trained narcotics detection dog resulted in a positive reaction to the smaller of the two bags. Approximately ninety minutes had elapsed since the seizure of the bags. Because it was late on Friday afternoon, the agents waited until Monday morning to obtain a search warrant for the bag. Upon opening the bag, the agents discovered a quantity of cocaine. Id. at 698-99. The court held that while reasonable suspicion would allow officers to detain luggage for a brief investigative stop, the detention of Place's luggage for over ninety minutes was unreasonable in the absence of probable cause. See id. at 709.

In United States v. Sokolow, 490 U.S. 1 (1989), D.E.A. agents knew the following factors about Sokolow when he and his companion deplaned in Honolulu: (1) he had earlier paid $2,100 for two round-trip tickets from Honolulu to Miami from a roll of $20 bills, which appeared to contain a total of $4,000; (2) he had traveled under a name that did not match the name under which his telephone number was listed; (3) he had an original destination of Miami, a source city of illicit drugs; (4) he and his companion stayed in Miami for only 48 hours, even though a round trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage. Sokolow and his companion, along with their luggage, were taken to the D.E.A.'s airport officer where a narcotic detection dog gave a positive alert to Sokolow's bags. It was too late to secure a search warrant for the luggage. The agents retained the luggage and allowed Sokolow and his companion to leave. A search warrant was obtained the following morning, a search was conducted, and cocaine was seized from Sokolow's luggage. Id. at 3-6. The court held that while any one of these factors is consistent with innocent travel, when taken together they amount to reasonable suspicion to justify a temporary detention for purposes of investigation. Id. at 9. Implicit in Sokolow is that reasonable suspicion ripened into probable cause when the drug identification dog gave a positive alert.

In Eisenhauer v. State, 678 S.W.2d 947 (Tex. Crim. App. 1984), (1) the Court stated that the only question before it was whether the Court of Appeals had properly applied federal constitutional law in finding there was no probable cause for the defendant's warrantless arrest. The facts in Eisenhauer are similar to those in the instant cause except that the initial information received by Houston airport officer Furstenfeld was from a reliable confidential informant. The informant advised the officer that a Lee Eisenhauer would be leaving on a 1:30 p.m. flight to Miami and returning the same day with cocaine. The suspect's physical description and the clothing he would be wearing were included in the information furnished by the informant. Furstenfeld determined that a Lee Eisenhauer was on a 1:30 p.m. flight to Miami and had booked a return flight due to arrive in Houston at 8:00 p.m. that evening. At 8:03 p.m., Furstenfeld saw a person fitting the description given by the informant deplane from a Miami-Houston flight. The suspect walked at a fast pace, looking over his shoulder on two occasions. Furstenfeld and a fellow officer approached the suspect, identified themselves, and asked if they could talk to him. In response to the officer's request, the suspect furnished a ticket and other information that bore the name Lee Eisenhauer. Furstenfeld stated that Eisenhauer became nervous, his hands began to shake, perspiration broke out on his forehead, and he began to stutter when he was advised that they believed he was in possession of cocaine. Eisenhauer was arrested and a search of his person resulted in the seizure of cocaine. Id. at 949-50. The court stated that even though the informant was anonymous, he gave the officers detailed information about the suspect's attire, the schedule for his trip, and the purpose of the trip that enabled the officers to verify the informant's information except whether the suspect had accomplished his mission and whether the cocaine was on his person or in his bag. The court held that these circumstances, along with the suspect's actions on deplaning on return, together with his reactions when he was advised that the officers believed he possessed cocaine brought from Miami, furnished a substantial basis for the officers to conclude from the totality of the circumstances that there was probable cause to arrest Eisenhauer and conduct a search incident thereto. Id. at 955.

In Daniels v. State, 718 S.W.2d 702 (Tex. Crim. App.), cert. denied, 479 U.S. 885 (1986), officers were at Houston Intercontinental Airport observing passengers deplane from a nonstop flight from Miami in an attempt to identify and intercept narcotic carriers. The officers were not in possession of any information regarding the passengers, but conducted the surveillance because the flight was from Miami, a source city for narcotics. The officers observed what they considered suspicious behavior by Daniels and his companion. Daniels was detained and a search of his person resulted in the seizure of cocaine. Id. at 703-04. The court found that the conduct the officers considered suspicious could describe the actions of a very large category of presumably innocent travelers and furnished no grounds for reasonable suspicion to justify an investigatory stop. Id. at 705. We find it significant that the court noted that this seemingly innocent activity might have been rendered suspicious if there had been an informant's tip as in Eisenhauer. Id. at 706.

Appellant urges that the officer did not believe that he had probable cause to search his luggage until Monday after the dog had given a positive alert to his luggage. It was not until this time that a search warrant was obtained, a lapse of time that would clearly be unreasonable in the absence of probable cause under Place. The legality of the seizure of appellant's bags turns on an objective assessment of the officer's actions in light of the information he possessed at the time of the seizure rather than the subjective intent of the officer. See Gordon v. State, 801 S.W.2d 899, 907 (Tex. Crim. App. 1990).

The pivotal issue in the instant cause is whether the officer had probable cause to seize appellant's luggage following the investigative detention of appellant. The officer's observations and investigations following appellant's arrival showed: (1) he was traveling from a source city, Harlingen; (2) he paid cash for a one-way ticket; (3) his luggage was locked and he did not have a key for it; (4) he merely shrugged his shoulders when asked how he was going to get into his luggage; (5) he looked all around as he came off the plane, appeared nervous and walked fast; and (6) when asked if he had narcotics in his luggage, he became very nervous, his voice quivered, and he could not stand still. If the officer's information had been limited to the foregoing factors, probable cause for the seizure of appellant's luggage would not have existed under Place. However, the officer had been furnished information from an unnamed informant whose reliability was not shown that a physically described Hispanic male would be arriving on a 2:05 p.m. flight from a drug source city, Harlingen, carrying drugs. Included in the report was the description of the bags and their tag numbers. The officer was able to confirm all of the foregoing information except appellant's possession of drugs.

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 analyzing the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230, 234 (1983). A low degree of veracity, however, can be compensated for by some other indicia of reliability. Id. at 233. In particular, corroboration of information in a tip may enhance the credibility of an informant. Because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts. Spinelli v. United States, 393 U.S. 410, 427-28 (1969) (White, J., concurring); Angulo, 727 S.W.2d at 279. Moreover, the fact that the informer was anonymous is not a critical factor. See Eisenhauer, 678 S.W.2d at 955.

In the instant cause we hold that the totality of the circumstances, i.e., the officer's verification of every facet of the informer's information except the appellant's possession of contraband, the appellant's actions in the airport after his arrival, together with his reactions when the officer asked if he had narcotics in his bag, furnished the officer with probable cause to seize appellant's luggage. See Angulo, 727 S.W.2d at 280; Eisenhauer, 678 S.W.2d at 955. Appellant's point of error is overruled.

The judgment is affirmed.

 

Tom G. Davis, Justice

Before Justices Jones, Kidd and Davis*

Affirmed

Filed: July 12, 1995

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. Eisenhauer's conviction was initially reversed by the First District of the Houston Court of Appeals, 657 S.W.2d 184 (Tex. App.--Houston [1st Dist.] 1983). The State's petition for review was granted and the Court of Criminal Appeals reversed and remanded in the above cause. On remand, the Court of Appeals again reversed the conviction. 684 S.W.2d 782 (Tex. App.--Houston [1st Dist.] 1984). On petition for review, the Court of Criminal Appeals reversed the judgment of the Court of Appeals and affirmed the judgment of the trial court, 754 S.W.2d 159 (Tex. Crim. App.), cert. denied, 488 U.S. 848 (1988), holding under Texas law that the totality of the circumstances test for probable cause applies to warrantless and warrant seizures of persons and property. Id. at 164. Using this standard the Court upheld Eisenhauer's arrest and the search incident thereto.