IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 1794-01

 

BRADLEY ROBERT DYAR, Appellant

v.


THE STATE OF TEXAS



ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
BASTROP COUNTY

Cochran, J., filed a concurring opinion in which Meyers and Johnson, JJ., joined.

O P I N I O N



I join the majority opinion. I add these comments in the fond hope that the Texas Legislature will one day revise article 14.03(a)(1) (1) to clarify the meaning of its provision that a peace officer may arrest, without warrant, certain "persons found in suspicious places." Professors Dix and Dawson call this article "[t]he most troublesome of the statutory provisions authorizing warrantless arrests," (2) and for good reason. It makes little sense. "The legislative rationale for exempting arrests made in 'suspicious places' from the warrant requirement is uncertain," but, Professors Dix and Dawson continue, this uncertainty "has never troubled the Texas courts." (3) Well, the phrase itself has troubled Texas courts and has engendered both convoluted constructions of the English language and impressive judicial gymnastics, as our courts have attempted to discern whatever it is that the Legislature might have meant by that phrase. Regardless of whether our interpretations accord with the Legislature's original or current intent, the phrase, "persons found in suspicious places," misleads the bench and bar.

The original purpose of that phrase is lost in the mists of early Texas history. It first appeared in a pre-Civil War statute which allowed city officials to establish local rules authorizing

the arrest without warrant, of persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws. (4)

Without that statewide authorization statute, local peace officers could not make warrantless arrests except in very limited circumstances. With ordinances passed under the authority of this statute, however, local officers could not only make warrantless arrests for felonies and breaches of the peace, but could also arrest those who were found in "suspicious places" who might soon commit such crimes. Thus, drunks in the bar were subject to warrantless arrest even though they had not yet breached the peace, prostitutes could be arrested as they plied their trade, (5) and those who acted like they were about to burglarize a store or home could be arrested before any crime occurred. (6) This was, quite frankly, a "suspicious persons" statute authorizing arrests under circumstances which would not pass constitutional muster today. (7) The provision permitted law enforcement to intervene, and arrest, escort out of town, or generally hassle those who were not welcome in Pleasantville, (8) as long as the offense committed or contemplated was a felony or breach of the peace. (9) These local ordinances legitimized investigatory detentions and arrests that would today be considered constitutionally offensive. (10)

Nonetheless, the statute has survived virtually unchanged for almost a century and a half, despite other enormous changes in constitutional and statutory search and seizure law. What is one to make of this provision today? We have stated that article 14.03(a)(1) "should be applied to authorize warrantless arrests in only limited situations[,]" (11) but our cases are less than crystal clear about precisely what those limited situations are.

I agree with the majority in its implicit holding that "places" are not inherently suspicious; rather it is people and circumstances taken together that are sometimes suspicious. Just as the Fourth Amendment does not protect places, it protects people, (12) any "place" may become suspicious when a person at that location and the accompanying circumstances raise a reasonable belief that the person has committed (or is about to commit) a crime and there is no time to obtain a warrant. If we wish to uphold the original intent of the pre-Civil War statute, but in accord with current constitutional considerations, we might do well to explain our prior holdings under the organizational principle of exigent circumstances. (13)

Thus, when police have probable cause to believe that person "X" has committed a felony or breach of the peace and he is found in "Y" location under "suspicious circumstances" and there is no time to obtain a warrant because: 1) the person will not otherwise remain at "Y" location; 2) the evidence of the crime will otherwise disappear; or 3) the person poses a continuing present threat to others, then police may arrest "X" without a warrant. (14) On the other hand, if there are no exigent circumstances that call for immediate action or detention by the police, article 14.03(a)(1) cannot be used to justify a warrantless arrest.

Until and unless the Legislature provides more precise language in article 14.03, I believe that this construction best adheres to the legitimate historical purpose and scope of the statute. This interpretation also complies with Fourth Amendment jurisprudence. Finally, federal cases applying the "exigent circumstances" doctrine provide an appropriate analytical framework for future fact scenarios under the statute.

With these comments, I join the majority.

Cochran, J.

Filed: April 23, 2003

Publish

1. Tex. Code Crim. Proc. art. 14.03(a)(1), reads:

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws[.]

2. George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure 9.61 at 555 (2d ed. 2001).

3. Id. at 556; see also id. 9.63 at 557 (stating, with remarkable understatement, that the substance of the "suspicious places" requirement is "remarkably obscure").

4. Tex. Code Crim. Proc. art. 211 (1856).

5. See Haller v. State, 72 Tex. Crim. 294, 295-96, 162 S.W. 872, 873 (1913) (upholding warrantless arrest of prostitute who "had been or was about to ply her vocation" under "suspicious places" statute).

6. See Woods v. State, 119 Tex. Crim. 43, 44-47, 46 S.W.2d 704, 704-05 (1932) (police officer was not justified in warrantless arrest and search of two men found in alleyway behind church because city had not formally enacted "suspicious places" ordinance pursuant to statewide statute; mayor testified that he "told [the marshal] to pick up suspicious characters without a warrant whether they were violating the law or not. In other words, it would be dangerous for a stranger to come there [Whitesboro] if he would hang around suspicious places"; suggesting that arrest of would-be burglars would have been lawful had ordinance been enacted).

7. See Dix & Dawson, supra 9.61 at 556 (stating that this statute "most likely was viewed as delegating to local authorities the power to provide by ordinance for law enforcement officers to preventively intervene when they encountered suspicious persons").

8. See, e.g., Minter v. State, 70 Tex. Crim. 634, 641, 159 S.W. 286, 291-92 (1913) (stating that it is "the duty of every peace officer to preserve the peace within his jurisdiction[;]" thus, relying on "suspicious places" statute, "he shall use all lawful means ... [to] interfere, without warrant, to prevent or suppress crime").

9. See, e.g., San Antonio & Aransas Ry. Co. v. Griffin, 20 Tex. Civ. App. 91, 97, 48 S.W. 542, 545 (1898, writ ref'd) (illegal arrest under authorizing statute because false imprisonment plaintiff had not been shown guilty of some felony nor had he threatened to commit some such offense; he was arrested for having stolen one dollar's worth of coal from his employer, which, even in 1895, was not a felony); Gold v. Campbell, 54 Tex. Civ. App. 269, 276, 117 S.W. 463, 467-68 (1909, no writ) (illegal arrest, under authorizing statute, of false imprisonment plaintiff, a storekeeper who had sold handkerchiefs for more than buyer wanted to pay after their quality was discovered, because there was no evidence that plaintiff was "found in suspicious places, or 'under suspicious circumstances,' but at his own store in pursuit of his legitimate business").

10. See Dix & Dawson, supra, 9.61 at 556 ("the statute seems originally to have been designed to legitimize what today are investigatory stops under ordinances that today would certainly be regarded as constitutionally offensive"); see also Gerald S. Reamey, Arrests in Texas's "Suspicious Places": A Rule in Search of Reason, 31 Tex. Tech L. Rev. 931, 980 (2000) (noting that an "obvious difficulty" with the wording of article 14.03(a)(1) "is that the legislative intent behind passage of the 1856 statute has become obscured by time and, more importantly, by a significantly changed way of viewing constitutional constraints").

11. Johnson v. State, 722 S.W.2d 417, 421 (Tex. Crim. App. 1986).

12. Katz v. United States, 389 U.S. 347, 351 (1967) ("the Fourth Amendment protects people, not places").

13. See Reamey, supra at 976. Professor Reamey, attempting to make some sense out of the "suspicious places" language, states:

Necessity is the guiding principle in interpreting warrant exceptions. Therefore, not every crime scene qualifies as a suspicious place excusing a warrant. The correct question in crime scene cases is not whether an offense was committed at the place where the suspect is found, but whether some reason exists not to obtain prior judicial approval for the arrest. A certain level of exigency usually accompanies the bringing together of a suspect, criminal evidence (which may be evanescent), and probable cause in the place where the offense occurred.

Id. at 976-77 (footnotes omitted).

Some examples of earlier Texas cases which relied upon what is now article 14.03(a)(1) for arrests under what is now called the "exigent circumstances" doctrine include: Saldana v. State, 383 S.W.2d 599, 600-01 (Tex. Crim. App. 1964) (when officer, who had two cabins under surveillance for drug activities, saw taxicab come into cabin courts at 3:00 a.m., and saw defendant in front seat, heard crinkling noises, and saw something being stuffed under front seat, there was sufficient probable cause for immediate arrest without warrant); Baray v. State, 167 Tex. Crim. 456, 457-58, 321 S.W.2d 87, 88-89 (1958) (upholding legality of warrantless arrest under "suspicious places" ordinance when officers saw defendant drive up in car belonging to known narcotics dealer and observed him, upon officers' approach, look back and hurriedly drive away, throwing cigarettes from car window); Ringo v. State, 161 Tex. Crim. 93, 94, 275 S.W.2d 121, 122-23 (1955) (when officers stopped car because of suspicious circumstances and one officer radioed for car registration while other officer talked to defendant and discovered that he had no identification, had been unemployed since arriving in state, and car was not registered in defendant's name, "suspicious places" statute authorized defendant's warrantless arrest for "vagrancy and an investigation for automobile theft"); Mason v. State, 160 Tex. Crim. 501, 503-04, 272 S.W.2d 527, 528-29 (1954) (warrantless arrest under "suspicious places" statute upheld where officers saw two white men in early morning in Negro neighborhood carrying cardboard boxes, and, when officers stopped men and found that boxes contained about 60 packages of cigarettes, a radio, and book matches with address of barbecue stand on them, officers then took the men to the barbecue stand and found that it had been burglarized); McCutcheon v. State, 158 Tex. Crim. 419, 420-21, 252 S.W.2d 175, 175-76 (1952) (warrantless arrests under "suspicious places" ordinance upheld when officers saw defendants near laundry throwing objects over hedge, and, when police inquired, defendants denied having thrown anything but officer found two shirts behind hedge); compare Butler v. State, 151 Tex. Crim. 244, 245-46, 208 S.W.2d 89, 89-90 (1947) (warrantless arrest not authorized under "suspicious places" ordinance when store was burglarized on Thursday night, police matched defendant's license number and then arrested him without warrant at his home on Saturday).

14. See Dix & Dawson, supra, 9.64 at 562 (reading Johnson v. State "to permit warrantless arrests in situations where- generally speaking - circumstances do not permit the leisure of a judicial prearrest evaluation of evidence sufficiency").