*1 zens, even one whose highly conduct
suspect, as well as are too despicable, valua-
ble placed to be of pitchfork the end heap thereafter thrown onto the la-
beled “waiver of by technicality.” error
The Court fails do today to what I and thought do,
others it was created to is to make sure that no citizen of this
State ever deprived of his freedom
“except the due by course of the law of the I,
land.” Art. Sec. Texas Constitution.
I do not believe has been
accorded the due course the law of this
State to which he is entitled to receive. GONZALES, Appellant,
Moses G. Walker, Roush, Benjamin F. Donald A. Jr., (David court San Antonio K. appointed, Antonio, counsel), for Chapman, ap- San Texas, Appellee. The STATE of pellant. No. 665-82. White, Miguel Bill Diot. Mar- Atty., M. Texas, Court of Criminal Appeals tinez, J. Taylor, McKnight Dennis Elizabeth En Banc. Rosson, Attys., Asst. Dist. San Jerry Huttash, Antonio, Atty., and Robert March Walker, Austin, Atty., Alfred Asst. State’s for the State. PETITION
OPINION STATE’S FOR ON REVIEW DISCRETIONARY ONION, Presiding Judge. an from a con- appeal
This case involves Punish- possession viction for heroin. the trial court by ment was at life assessed appellant had jury after found that felony of- twice been convicted before Code, V.T.C.A., Penal 12.- fenses. § See was reversed 42(d). Appellant’s conviction unpublished in an Antonio per opinion by the San curiam (No. Court of Gonzales State Appeals. 04-81-00129-CR, 6/30/82). ground for was an Court of reversal in the *2 illegal concerning search Vogel and seizure. testified as follows We for discretionary review on significance of the balloons: that issue. I noticed he did have the balloons “[A]s appeared record or what to be balloons petitioner reveals that was were — involved in a minor in very automobile accident and were tongue they under his San Antonio. He was arrested officers tip small. Just about size at the scene and heroin in five contained your finger little which we had been balloons was seized from his mouth. This talked to pictures shown before in —I’ve evidence led to prosecution the instant and officers. advised They various narcotics conviction. their carry us most heroin carriers do tongue. Carry balloons under their
On January 1980 the con- trial court tongue their in ballons substance under hearing ducted a on petitioner’s motion to suppress. (sic) handy which makes it real for them they’re apprehended.” to swallow if Struxness,
Arthur D. a police officer for Antonio, the city of San was called to testi- Vogel appel- seized and Struxness both fy on behalf of the State. He had been a lant and a choke hold so that administered police officer for two years half appellant could not swallow the balloons. 1,1979 time of trial. July On he was on Appellant spit was forced to out the finally duty from 3 p.m. p.m. to 11 Struxness had balloons which were later to con- discovered gone to the scene of an accident to work tain heroin. traffic and assist the officer handling the On cross-examination Struxness testified accident. scene, While at the accident he that he had never arrested a heroin addict was talking appellant. with At that time with balloons in his mouth. No evidence Struxness observed appellant that was un- point this was elicited from Vogel. der the influence of some kind intoxi- cant, case, but that he of this disposing could not smell the Court liquor on appellant’s breath. At observed that: that time Struxness observed that having was trouble may “It is certain that a officer peace talking and there object was some under- any arrest an offender ‘for offense com- neath tongue. Struxness then observed presence mitted in his or within his view.’ a yellow and orange bright-colored object. 14.01(b) Tex.Code Crim.Pro.Ann. art. At this time curiousity Struxness’ (Vernon 1977). It is also well-settled that aroused, because as he testified: an officer seize contraband in any “[Djuring my schooling at the San An- plain view, (1) justifica- if a prior he has tonio Department Police a—it intrusion, (2) tion for his an inadvertent was shown to us as a way people that evidence, discovery incriminating transported heroin. This way is the they (3) immediately apparent knowledge did it. This is a way transporting incriminating. the evidence before him is Keeping heroin. it they case were Coolidge v. New Hampshire, U.S. approached by peace officer, they could 91 S.Ct. swallow it and the evidence would be no justi- While the officers in this case were good. Wouldn’t be obtainable.” upon appel- fied in their initial intrusion privacy by duty investigate lant’s their Vogel
Struxness then told Officer what accident, they the traffic while saw he had Vogel observed. testified that he objects’ we inadvertently, had been ‘colored investigating the automobile acci- sufficiently hold that not Vogel, talking dent. while State did appellant, prove apparent also it was immediately observed various colored balloons under appellant’s objects tongue. Vogel appellant’s also observed mouth that appellant incriminating was intoxicated but could were or contained evidence. not smell any appellant’s generalized intoxicants on Aside from the officers’ im- objects breath. pression presence that the of such in appellant’s mouth was consistent with This ‘immediately apparent’ aspect is cen- third-hand they accounts heard of had to the plain exception tral and is how heroin is transported, customarily relied on by appellant. here Howard and the State offered nothing to substantiate Coolidge, supra. then, both In this case the third factor Coolidge, stated in su- Maples Officer had to know that ‘incrimi- pra.” natory evidence was before him when he *3 State, seized the balloon.’ v. DeLao 550 The of Appeals then held: 289, (Tex.Cr.App.1977).” 291 S.W.2d case, “In this testimony there was as to what Vogel Struxness and been told had Subsequently State, in v. 626 Sullivan police in classes, academy there but was (Tex.Cr.App.1982), S.W.2d 58 in dealing no indication that either of had ever them with the seizure of from partial- narcotics a any had personal experience with this ly unzippered pouch containing a dark type ‘drug Furthermore, packaging.’ bag brown bottle and plastic clear contain- there no ‘suspicious were facts cir- ing powder, a white we stated: that, cumstances’ along special- with such have, however, “We recognized that ob knowledge, ized would justified have the jects which inherently suspicious are not (Citations omitted.)” actions taken. can become so certain circumstanc under Thus, The Court of three es. the show that relied on deci- State can the aware, sions seizing of this court for its officer was the time of conclusion. seizure, the that drugs contraband are State, (Tex. DeLao v. 550 289 S.W.2d commonly packaged particular in a man Cr.App.1977), we following: stated the State, Boyd (Tex. ner. v. 621 616 S.W.2d “The urges State is a it well State, Cr.App.1981); v. Brown 617 known fact heroin is in bal- kept 1981); 196 (Tex.Cr.App. S.W.2d DeLao v. however, loons. The officer’s testimony, State, (Tex.Cr.App.1977). 550 289 S.W.2d does not cogni- demonstrate that was he specialized knowledge, in This combina zant of ‘well this known’ fact or immedi- with suspicious tion facts and circum ately aware that heroin the was in bal- stances, can sustain the State’s burden of loon at the time of the seizure. The proof. seizure must be based what on was “In this did case the not show State known the officer at he the time act- such Roehling specializ- that Officer had ed, yet this record contains not a scintilla state, knowledge. ‘[Ujpon ed He did see- of evidence that the officer knew what my professional it in ing personal alleges State now on ap- its brief I opinion thought may possibly it be some peal is a ‘well known’ fact. The burden is no more kind narcotic.’ This than a was on the State show facts authoriz- conclusion. It short of the falls far ing the seizure here challenged. Had the burden why to show the conclu- produced any issue, State evidence on was the time sion reasonable at might there have been shown basis for seizure. appeal, its claim on but this was not “Furthermore, the record does not (Citations omitted.) (Emphasis done.” any facts or cir- suspicious demonstrate supplied.) surrounding the seizure of cumstances State, Then in Brown S.W.2d supplied.) pouch.” (Emphasis (Tex.Cr.App.1981),1 we following made the observations: The distinction instant between
“For
plain
to apply,
doctrine
case and the three cases cited above is that
not only must the officer
legitimately
affirmatively
in this case
shows
record
position
object,
knowledge
view the
but it
officers
that heroin
that the
had
must be immediately apparent
po-
transported
to the
in the same manner as
was
lice that
have
they
doing.
evidence before them.
The Court
2926,
1116,
1. Texas’
for writ of certiorari
457 U.S.
fact that
missing
testimony
2022, 2027, 29
(1971).
L.Ed.2d 564
Disclaim
DeLao —
that the officers
cognizant
involved were
doctrine,1
ing
“plain
the
view”
the local
the fact
that heroin
kept
is
in balloons.
prosecuting attorney
mightily
has strived
to
discharge
legal theory
that burden under a
We also note that each search and seizure
by
devised and advanced
him and contested
question must
turn on the facts of each
below,2
by appellant in briefs
but so far the
case. Hardinge
State,
v.
concealing heroin. We also note that the identify trine has been to the circum- location of the balloons in the mouth and plain legal sig- stances in which view has tongue under the was an unusual circum nificance rather being simply than the stance which only could increase suspi the search, normal concomitant of any legal cion appellant was concealing a con illegal.” or trolled substance. opinion implies of Appeals Court
We conclude that under the facts of this and now this Court holds that if the officers case the officers’ observations of were knowledgeable enough about an as- attempt his to conceal the balloons in pect police (that commonly lore heroin is mouth, coupled with their knowledge of tied off in small balloons and then con- the use of balloons to carry heroin in the tongue), cealed under one’s when each ob- observed, manner were sufficient to autho- served that saw heroin in phenomenon they given by 1. probable One reason for review the State is treated the issue as one of cause for a applying that the Court of (See, erred in warrantless arrest. Brief for the State at “plain view” doctrine to the Appellant 4.).” My facts of this case and Brief for at under- since the warrantless search and seizure standing petition is that this Court justified as a search incident to valid joined by parties to decide the issue thus arrest. and, coincidentally, disapprove of the man- ner in which the treated the petition discretionary its for review question. Appellant State insists: “Both the State and 688
“plain view,” and acted accordingly. But
the first limitation of the is doctrine
“plain view is alone never enough justify evidence,” id., seizure warrantless
468,
State that this is simply not a case for
application of the doctrine.
Therefore, I respectfully my disassociate
self from the opinion Court, and urge
that we address substantial issue which
the State has raised in its for dis
cretionary review: That ap seizure
pellant was 14.01(b), authorized by Article
V.A.C.C.P., and that the “search” of his
mouth that followed permissibly inci State,
dent to the arrest. Hernandez v. 548 904, 905
S.W.2d (Tex.Cr.App.1977); gen see Watson, United
erally States S.Ct. L.Ed.2d It
must be public remembered that one in
place who is otherwise subject to a warrant-
less arrest has no reasonable expectation of *5 Santana,
privacy. United States v. S.Ct.
I dissent.
TEAGUE, J., joins.
Bobby Ray BEARDEN, Appellant, Texas, Appellee.
The STATE of
No. 64148. Texas,
Court of Criminal
En Banc.
April