ROSIE GIACONA V. STATE
No. 28,620
Texas Court of Criminal Appeals
January 9, 1957
State‘s Motion for Rehearing Overruled (Without Written Opinion) February 27, 1957
325
Dan Walton, District Attorney, Thomas D. White, Assistant District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
DAVIDSON, Judge.
The offense is the possession of marijuana; the punishment, ten years in the penitentiary.
A member of the narcotics division of the police department of the city of Houston had information that Pete Giacona was in a certain automobile at a “drive-inn” lot in the city of Houston and that he had two cans of marijuana in his possession. Accompanied by other peace officers, the narcotics agent went to the drive-in lot in search of the car which had been described to him. No such car was there, at that time. The officers waited, and later saw Pete Giacona drive into the lot. His wife, the appellant, was with him in the car. The officer who was in charge signalled over radio to other officers and all converged upon the car. Both Pete Giacona and appellant were arrested and taken from the car.
Two cans of marijuana were found upon the person of Pete Giacona.
It is for the possession of this content of the bag that appellant stands here convicted.
The legality of appellant‘s arrest and the taking of the bag from her person is challenged.
The right to arrest appellant and to take the brown sack from her depends upon her acts and conduct.
The facts do not show that she was engaged in any act which would authorize her arrest by the officers without a warrant.
We are not here concerned with the question as to whether probable cause existed to warrant the search of the automobile of Pete Giacоna, because no marijuana was found as a result of any search of the car. So, the right to search the automobile is not before us.
The right to arrest appellant without a warrant could not be justified, because of any right to search the automobile under that provision of
The other provisions of said
An arrest without warrant cannot be predicated upon mere suspicion or belief. Gill v. State, 134 Texas Cr. Rep. 363, 115 S.W. 2d 923; Burton v. State, 152 Texas Cr. Rep. 444, 215 S.W. 2d 180; Moore v. State, 107 Texas Cr. Rep. 24, 294 S.W. 550.
The right to arrest without warrant is conferred and con
If
Moreover, it must be rememberеd that the right to arrest without warrant must be determined by the facts existing at the time of the arrest, and facts found as a result of the arrest cannot be utilized to authorize the arrest in the first instance. Tarwater v. State, 160 Texas Cr. Rep. 59, 267 S.W. 2d 410; Stewart, et al, v. State, 244 S.W. 2d 688; Timberlake v. State, 150 Texas Cr. Rep. 375, 201 S.W. 2d 647.
Becаuse of the receipt of the inadmissible evidence, the judgment is reversed and the cause is remanded.
WOODLEY, Judge, dissenting.
Upon appellant‘s request the jury was retired when the state sought to introduce evidence relating to the search, and, in the absence of the jury, the court heard the testimony of Officer N. Free and concluded that the evidence was admissible.
Free testified that he received information about 7:30 P.M. “from a citizen” who stated “that there was a subject on the Snak-N-Pak lot with approximately two сans of marijuana; named this subject as Pete Giacona, gave us the license number and description of the car, the car being a 1951 Blue Ford, License Number MS 4737.”
Officer Frеe was working under cover and not wanting to be revealed at the time, called officers Rogers and Miller and requested them to go to said drive-in at 6600 Main and attempt to arrest the subject.
The 1951 Blue Ford was not thеre at the drive-in, but arrived about 8:20 P.M. and when it did Officer Free advised Rogers and Miller by radio that it was the car that had two cans of marijuana in it.
The testimony offered by the state shows that Officer Miller approached the driver‘s side of the car and took from Pete Giacona two Prince Albert tobacco cans which he had in his belt and which contained marijuana; that Officer Rogers came to the other side of the car and took from the hand of appellant a paper bag containing marijuana.
The trial court correctly held that the search was on probable cause and admitted the testimony relating to the finding of the two cans of marijuana on the person of Pete Giacona as res gestae.
The record shows that Officers Free and Tucker had been informed less than an hour before the search that the аutomobile contained marijuana and they acted upon this information. Free testified that he did not think he would have had time to obtain a warrant.
Upon the information received by them the officers, seeing the car which had been described and pointed out to them, had probable cause to believe that there was marijuana in it and that a felony was being committed by the occupants in their presence.
There appears to be no question but that the officers accepted аnd believed the information conveyed to them for they acted upon such information.
Not only did the officers have probable cause to search the autоmobile, but the search was authorized by Sec. 15 of
Said article grants to all peace officers who have authority to and are charged with the duty of enforcing thе provisions of the Uniform Narcotic Drug Act to enter and examine any vehicle when they have reason to believe and do believe that the vehicle contаins a narcotice drug possessed in violation of
That the occupants of the automobile had possession of marihuana is beyond question; that information to that effect was in the hands оf Officer Free and was communicated by him to the officers who made the search and arrest is also established.
Under the majority holding these officers, charged with the duty оf enforcing the law which makes the possession of a narcotic a felony, were without authority to interfere.
To say that they should have secured a search wаrrant is no answer for, if the information the officers had did not constitute probable cause authorizing a search without warrant, it did not constitute sufficient grounds upon which to оbtain the issuance of a search warrant. Also, Officer Free testified that he did not have time to secure a search warrant.
I cannot agree that no marihuana was found in the car because appellant had the paper bag in her hand and Pete Giacona had the other marihuana in his belt.
The fact that appеllant was holding in her hand the paper bag containing a part of the marihuana does not belie the fact that marihuana was in the car. It, on the other hand, is cogеnt evidence that appellant was not a mere passenger who had no knowledge that there was marihuana in the car.
I cannot agree that becausе the occupants of a vehicle are holding the receptacle containing the narcotic drug in their hands, or on their persons, the narcotic drug is not in the vehicle.
Nor can I agree that