Faulkner v. State
549 S.W.2d 1
Tex. Crim. App.
1977
Check Treatment

*1 FAULKNER, Appellant, Norman Bernard Texas, Appellee.

The STATE 51235.

No. Texas. Appeals of of Criminal 17,

Nov. 1976. Motion For

Concurring Opinion On State’s

Rehearing April 1977. Blaine, Houston, R. appellant.

Victor Vance, Atty. Carol Dist. S. and James C. Brough Dodd, A. Edward Asst. .and Dist. .Houston, Vollers, Jim Attys., D. Atty. McAngus, and David S. Asst. State’s Austin, Atty., for the State.

OPINION ROBERTS, Judge. appeal is an from a

This conviction for of marihuana. A jury found guilty and the court assessed his years’ probation. at five punishment February occurred on 1974 and offense commenced October 1974. trial Holloway Franks and Officers Department stopped appel- Police Houston in their car on an passenger lant and a Freeway the Gulf around access road to *2 2 night question.

11:00 on the in Both offi- initial stop of appellant and his that cers testified their attention was was not passenger by probable appellant’s by vehicle drawn to the fact any cause to believe that crime had been or driving slowly that it was and bore out-of- being was committed. The officers saw no county and the that tags, people fact the any evidence of traffic offenses. The inar in the car seemed “cautious” or “conscious” hunch, suspicion, good ticulate faith of to proximity of the officers’ them. They suspecting the in car to be stolen they the car stopped testified that to cheek probable was insufficient to constitute license to see if operator’s and the car arrest, a cause for an or even temporary stolen; the operator’s license was was State, v. 489 detention. Talbert S.W.2d 309 a matter of routine and only checked as State, v. (Tex.Cr.App.1973); Brown 481 cause the officers had to believe the vehicle (Tex.Cr.App.1973). 106 S.W.2d out-of- was stolen was a “hunch.” county tags driving and slow of the appel any evidence

Appellant and Officer Franks both lant were not of got wrongdoing. them, vehicles of occupants out of their and met between And the “caution” the car’s in appellant produced police at which time a valid of the presence officers did not upon request. operator’s Texas At probable cause, level of rise to the either. time, Holloway Officer State, same walked (Tex.Cr. 511 531 Wilson S.W.2d and appellant’s around vehicle ascertained App.1974); State, Brown v. inspection that it bore valid sticker. He (Tex.Cr.App.1972). 112 his flashlight then shined into the automo- However, spotted give peace and in view on the Texas law does

bile A appellant, stop search of the to floorboard. officers and detain motor and the automobile revealed passenger, ists for the limited purpose of checking ammunition, of .45 some live rounds caliber operators’ their State, licenses. Leonard v. powder, pills, large white some and a some 496 576 (Tex.Cr.App.1973); S.W.2d Black v. were money. of The officers unable to sum 491 S.W.2d 428 (Tex.Cr.App.1973). and open Appellant passen- the trunk. his provides Section 13 of V.A.C.S. ger were arrested and a wrecker was sum- . part, Any “. . peace officer may away. tow the car moned to any stop and detain motor vehicle determining for the of whether gates outside the The automobile was left person such has an operator’s license as salvage private yard proprie- where the required by this provision Section.” This morning. it tor discovered the next He fishing expeditions, does not authorize how popped open the trunk when testified (Tex. ever. Pruitt S.W.2d attempted yard. he to tow the car into the Cr.App.1965), grounds overruled on other trunk, pounds he saw five In the four or (Tex.Cr. Onofre v. A passing motorcycle police- marihuana. App.1972). flagged man was down and turned the ma- to the narcotics division. terial over question then becomes: What was challenges legality stop appellant’s of his the reason for Appellant vehi- search, and thus the was testimony initial arrest ad- cle? There extensive from found on this missibility question marihuana at the both officers both at the hearing suppress chain of end of the events followed. motion to and at prior Although motion trial. suppress He filed a to to trial objection check was and his admission advanced as one reason for the detention, during explained trial If the it was evidence was overruled. this was invalid, merely the marihuana all initial arrest a matter routine in such situa- subject suppression would be real reason the stopping later found tions. The poisonous “fruit of the tree” doc- automobile appellant’s appear under the would Wong tags have its out-of-county trine of Sun United and the slow, (1963). driving 83 S.Ct. L.Ed.2d “cautious” of its driver. U.S. Offi- Franks, A New who decision to Mexico officer used a made the statute very cer testified as follows: See. 13 of Art. 6687b in appellant, similar searching man and the trunk of his car in “Q Blaine) (by stopped Mr. You him be- Bloom, 19 Cr.L. 2060 (N.Mex.App., State driving cause he was fifteen or 16, 1976). March The court there said that hour twenty and he *3 officer could not use such regulatory the a your pres- to be conscious of seemed as an excuse check suspi- statute to out his plates on the ence and the “However, the actions police cions. county? car were from some other “A Yes sir. “A “Q You were “Q “A Yes sir. “Q Am I correct “A We were [*] That’s the him? to were Yes sir. stop [*] going the vehicle? going to the one only [*] to stop reason [*] that the see if the it? decided first reasons you stopped [*] plates [*] you phy tional F.2d purpose ment. See must tions meet mere tion 979.” S.Ct. 713 permitted by the statute 280, then become the subterfuge be in requirements of which would not be (10th constitutional 69 L.Ed. Carroll v. conformity Cir. 194 Tenn. or excuse for some other 543], unreasonable and fail to U.S., the requirement. v.U.S. with the When the deten- 698, 267 Fourth lawful the ac- U.S. Jenkins, 254 S.W.2d becomes a constitu- Amend- 132, Mur- 528 [45 were stolen or the car was stolen given reasons the police for officer’s and check license. his driver’s Pruitt, in supra, detention defendant “Q driving thirty If he had been at suspect, although likewise opera- were the thirty five hour and had license check given tor’s was as one of your not conscious of seemed be wrote, This Court them. presence and he had had Harris “Assuming however, that the patrolman County plates, you then stop appellant did to check his driver’s stopped would not have him to check license, patrolman then the had no his driver’s license? to make a search as incident to this Probably “A not.” Here, . . . . the In the case of Hall v. 488 presented had in his and (Tex.Cr.App.1973), police valid, a officer a unexpired officer driver’s license. stopped signal defendant for failure to finding This terminated patrolman’s right turn gun and discovered a responsibility under the in this matter.” holding seat. driver’s After the traffic ar- search in condemned Pruitt was the invalid, this rest Court noted that the de- shining flashlight of a in mere the back seat detention justified fendant’s could not be automobile. light of defendant’s re- 6687b, V.A.C.S., under Sec. of Art. ei- vealed case wine would have arresting When the ther. officer in that plain daylight. in view in the Onofre was asked if he would stopped case have State, supra, overruled Pruitt to this defendant for a license check if the extent, that, stating “The view rule had in a continued normal man- defendant go not into hibernation does at sunset.” violating laws, without apparently any ner But Pruitt’s discussion of the limitations on replied, very “I seriously doubt investigation of an based on an I would have.” operator’s valid, license check remain as the discussion Marshall United appel Even if it be said that could 185, (5th 1970) F.2d Cir. makes clear. justified detention was on the basis of lant’s 6687b, 13, V.A.C.S., Pruitt, Sec. Art. officers’ As in the cases supra, Bloom, subsequent infringed actions further on ap supra, there is testimony much rights under our state and federal pellant’s instant case that the officers’ detention appellant was for just constitutions. more than a rou- tine license Even them the The burden giving proof check. is on the State doubt, however, appears valid legal grounds benefit of this it establish for any invol- investigation beyond untary person. their here went detention of one’s Terry 1, purposes Ohio, 1868, its initiation. 396 U.S. 88 S.Ct. 20 L.Ed.2d 889; Williams, Adams v. 407 U.S. case, purpose In this of the detention 612; S.Ct. L.Ed.2d Hooper v. 6687b, strictly limited Art. Sec. 941 (Tex.Cr.App.). legally To V.A.C.S., accomplished and was when Offi- stop under 13 of justify Sec. cer Franks was shown the valid V.A.C.S., the burden is on the State to Holloway’s license. examination of Officer purpose that the actual prove inspection sticker and the interior of the to determine whether the clearly beyond car went license. clearly driver’s The State failed (Art. 6701d, which the made. stop was Sec. so, said burden. This satisfy being unless 140, V.A.C.S., concerning inspection stick- *4 proof factually suspicious shows circum- ers, permit does not detention as does Art. or conduct to brought stances have been scope investiga- The of Sec. an officer, of the attention visually or purposes jus- tion cannot exceed through report, reasonably which would its initiation. tified Maldonado a diligent motivate to stop appellant officer (Tex.Cr.App.1975). or procure explanation, information an State, supra, in- The case of Black stopping of said was an unlawful expansion of volved a similar of of his violation Fourth and Fourteenth officer, detaining after Art. 6687b when rights Amendment and the pro- evidence driver’s of a val- ascertaining the as a direct cured result of said unlawful license, looking regis- id went in the car for be stop must excluded under the doctrine of sight pistol tration The papers. of a Wong Sun United 371 U.S. subsequent discovery view and the 407, 9 L.Ed.2d 441. S.Ct. beyond marihuana were of the according classified to a If numerical initial investigation. holding This Court’s probative scale evidence of suspicious State, supra, Black v. contrary in is circumstances, or conduct fact that an overruled. operated public automobile street investigation Likewise the officers’ went county plate an out of bears would beyond by that authorized in this 6687b zero. The fact that an rate aof discovery case. The and subse- operating vehicle twenty motor same quent were therefore events “fruits city hour within would rate Wong United poisonous tree.” Sun v. The officer’s conclusion appel- zero. States, supra. to be conscious of seemed lant officer’s reasons, judgment For these is re- thereof, by and cautious presence reason versed and the cause remanded. factual, deemed would even if rate another Obviously, zero. the total of the State’s DOUGLAS, J., dissents. suspicious evidence conduct and circum- is zero. stances CONCURRING OPINION ON STATE’S “Temporary doctrine of Investigative The FOR MOTION REHEARING permitted must not be by Detention” this PHILLIPS, Judge. to be used as a pretext factually Court unjustified denies the motion restriction on majority The state’s the individual’s rehearing a motion of movement. for leave to file freedom Such doctrine opinion. be inelastically The writer was held without written should this Court to origi- this when the the existence require factually suspicious not a member handed down. Therefore or conduct as an opinion nal circumstances absolute concern views on of an following my prerequisite remarks officer to do the issues raised. so. sense, based on reason and

DISSENTING OPINION ON STATE’S common should MOTION FOR REHEARING not be set aside. The rehearing should_be motion for — DOUGLAS, Judge. the judgment should af-' granted be majority The denies the motion firmed. rehearing.

for leave to file motion for opinion reversing the conviction relies large part on Pruitt v. in a (Tex.Cr.App.1965),

S.W.2d in Onofre v.

been overruled (1972). majority stresses probable there was no cause for an probable required arrest. No cause is be- ALLEN, Larry Appellant, Lee an officer can fore motorist even if the detention is for a license check. There is a distinction between detention and an Texas, Appellee. The STATE of arrest. No. 54204. part worst of the majority opinion is Appeals Court of Criminal of Texas. that an dictum some legally cannot look one inside an automo *5 April 1977. majority bile. The writes: “The scope of investigation cannot the purposes an exceed majori its initiation.” The

ty also overrules Black v. (Tex.Cr.App. 1973), which held that legally

where an officer stopped a motorist if he

to determine had an pistol plain which was in view in the car

was admissible evidence. After the ma

jority opinion, officers cannot for their own pistol take a

protection plain which is legally stopped

view after a car has been sight illegal,

because the the rule that of an inves

under “[t]he

tigation cannot exceed the initiation.”

justified its Now an officer flashlight shine a into a car

cannot that has stopped. legally If he does so he testify about what he

cannot sees. If an sees a murder victim between the car, apparent reasoning

seats of

majority would be that the officer could not

testify finding body about because the check. was for Would

detention if an officer sees a apply

the same rule being committed in a car?

murder good A rule heretofore followed this Jerue, Houston, Roy E. appellant. may is that an officer take contra Vance, which is in view if he a right Atty., band Dist. M. Phyllis Carol S. Bell, Moore, be where he is. See Valdez v. Tyler Attys., Asst. Dist. Hous- rule, Vollers, (Tex.Cr.App. ton, That Atty., Jim D. and David