Montez v. State

ODOM, Before TOM G. DAVIS CLINTON, JJ. Koop arrived at address Street

OPINION p. observed approximately at 9:45 m. and CLINTON, Judge. area within fenced the black Chevrolet a This is an from a for appeal conviction thirty forty feet about to more felony possession of of offense sitting occupant with a male the driver’s trial than four ounces of marihuana. The occu- Koop seat. himself to the presented court at confinement punishment assessed Martinez,1 who pant, later as Joe identified in the Texas of for Department Corrections appellant he said that was not but years notwithstanding appellant’s three garage. inside the appellant could be found probation. sworn motion for him he The officer found told grounds presented, In the three of error him for the police was a and asked officer is in- appellant contends that evidence handed his keys Appellant to automobile. below; jury to support sufficient verdict of the trunk opened to who Koop illegal the fruits of an search gar- plastic two the vehicle and discovered timely over ob- introduced his twenty-four bage bags containing some jection; the trial court erred opinion formed the “kilos” of what he later refusing timely requested jury to submit a he did Koop testified that was marihuana. charge possession on the of lesser offense of trunk procure not search a warrant than We less four ounces of marihuana. infor- his as of the automobile inasmuch sustain the reverse. second contention and ade- not be mant had him there would told two, com- ground In error number of taking custody After quate time to do so. illegal is plaint fruits of an made contraband, pounds of the over fifty ap- search and over seizure were admitted Koop placed appellant under arrest pellant’s hearing timely objection. At the execute proceeded the residence to then Kenton suppress, on the motion to the search alluded to above. warrant Koop Department testi- Dallas appellant the front Koop wife of met at 16, 1976, that on he received August fied and, residence’s door after a search information from a confidential informant hundred approximately attic two revealed a con- appellant possession was in marihuana, she was arrested. pounds of too substance, marihuana. namely trolled complaint thrust noted he had received informa- spite fact that Officer prior August tion from his informant vehi- his effectively appellant and had both occasion, that, such infor- 1976 and on each well cle under control and could to be true and correct. proven mation search a warrant obtained information, Koop obtained upon Based vehicle, Though so. he did not do a search to search the residence a search did not secure testified that he desti- toward that appellant proceeded imprac- felt that it was warrant because he enroute, however, Koop re- nation. While so, advances appellant ticable do from this ceived additional information as to showing was made contention that no appel- same confidential informant that the war- to secure a why impracticable it was was at divid- garage May lant a rant, appel- the fact especially given ing up quantity a of marihuana in excess police his were both lant and vehicle told one hundred The informant pounds. custody. the officer that would contention, appellant support In of his long and that very remain at the 475 S.W.2d refers us to in a 1974 Stoddard he would the contraband find a situation not fact (Tex.Cr.App.1974), plates with Texas license black Chevrolet The defend- one bar. HPQ-274. totally unlike the up. Martinez walked Whatever Martinez that as he sat there recalled radio, doing, listening that the driver’s door radio or was seems either the car undisputed. portable he testified one. Martinez transistor lighter lighting cigarette with car showing is instant case no In the ticable. had been taken ant in Stoddard war- obtaining of a pos- why his arrest for following station made as to pursuant at his office practicable.” session of marihuana rant was not request- The officers to a search warrant. Coolidge v. also 752. See 475 S.W.2d permission ed to search 443, 91 S.Ct. New near the on the street parked which was 29 L.Ed.2d 564 worked; office where the defendant on Harris v. relies part, For the State defendant, however, request. refused (Tex.Cr.App.1972), 88 486 S.W.2d from the vehicle was taken keyA to the State, supra, and v. where both Stoddard person of his during a search defendant were supra, v. New Coolidge pro- the officers then police station and here, Harris, a confi- as In distinguished. they felt was a valid to obtain what ceeded de- police that told dential informant the defendant’s automo- warrant to search Doll the China arriving at would be fendant search revealed subsequent bile. bearing license in a white Cadillac Lounge in the trunk quantity of marihuana capsules 100 with “around “LTC 92” plates fingerprints with the replete vehicle of red birds a bunch of heroin and [barbitu- one containers of contra- Stoddard on ar- the accused saw The officers finding the warrant to search rates].” band. After vehicle, it, lock it park described defective, rive in the ad- the automobile the Court de- Following the lounge. and enter the remaining contention that dressed the arrest- officers per- lounge, the search of the vehicle was nevertheless fendant into the him; nothing in “exigent yielded circumstances” missible because after a search ed of a effectively precluded procurement contraband, him escorted they way Court, however, con- warrant at all. search turned vehicle where a back to his “exigent there were no circum- cluded that defendant heroin. The up quantity justified a war- stances” which would have appeal same contention Harris raised the the ac- rantless search of the automobile: of exi- lack makes-the that our custody was in at the time of cused a warrantless precluded gent circumstances search; possession of at locked which of an automobile search automobile; one least one set of Court, being secured. capable while the officer remained with the vehicle factual important however, out an pointed there was being prepared; warrant was Coolidge, between Stoddard distinction that the vehicle nothing tending to indicate Harris, other: hand, on the on the one moved; was no rea- to be there was about custodially former were in the the accused defendant’s that one of the son believe search was challenged confined before vehicle; might have moved the compadres accused, latter the whereas in the initiated have could not the defendant finally, to a subjected arrest and though under in- the automobile to move anyone alerted was still person, of his fruitless search police cus- he was in continuous asmuch as during the search scene present at the that he was very moment tody from situation this different In his automobile. reversing his office. But arrested at justification legal found the Harris Court conviction, pointed the Court defendant’s search, based on for an immediate out: continue to cause, notion in the ‘exigent hold that “We do not mean to him of the use deprive and to detain Harris never exist may circumstances’ obtain- found and officer while an of his car fact Nor does the parked of a car. case a search magistrate ed from is an which is searched upon an intrusion clearly been “would justifi- as an automatic automobile serve rights.” constitutional .. . The cation for a warrantless to choose required Happily, we are ‘exigent whether circumstances’ test or resolve the Harris imprac- between Stoddard of a warrant obtaining make the 214 is, fact, they meaningfully restricted. This

anomaly they create.2 Since together Coolidge inquiry plu- as ground upon decided 1972 focus which the of a opinion distinguished to reasonableness warrantless Chambers rality Lewis, or search of a motor vehicle has moved .,” supra, . 417 . Cardwell v. U.S. away 594, somewhat from the custodial status 94 S.Ct. at 2471. operator of its owner or and more to the And, and Card- coupling further Chambers mobility potential of the vehicle itself. Lewis, Court went on Supreme well v. Thus, Lewis, learning from Cardwell moveability of the Lewis as to observe 2464, 2471, 594-595, U.S. car: (1973) L.Ed.2d Cady Dombrow fact, interrogation ses- “In because ski, 446-447, with that Lewis sion ended awareness 2530-2531, (1973), we have his car consti- had been arrested and that excep recently subdivided “automobile evidence, incriminating the incen- tuted requirement3 tion” to the warrant into potential removal tive and for the car’s “moving” and “movable” vehicles because substantially increased.” readily of “the in exi apparent difference We turn then to examine the circum- involved,” v. gencies Hudson 588 surrounding sei- stances the on-the-scene 348, (Tex.Cr.App.1979).4 S.W.2d 354 The appellant’s zure and search of conditioned, given classification in a is case his as well as custodial status at the time. turn, the partially at least on character stated, to we must For reasons about be vehicle, of the location the for as of motor discharge its conclude that the State did Supreme pointed Court has out in dis proving of the automobile ex- burden tinguishing v. su Coolidge New ception fits case.

pra, Maroney, from v. 399 U.S. Chambers 42, 1975, (1970): accompany- 26 and the officers L.Ed.2d 419 When garage5 ing him arrived at the present

“. . . case differs from Cool- it, driveway to it and what they found idge scope both of the search and car, along with turned out be in the circumstances of the seizure. others, were fenced.6 As premises Coolidge parked car was on the Since conversation, Koop he engaged Martinez driveway, the seizure of that defendant’s people” ga- observed “several inside entry upon pri- an required m., p. 9:45 Here, rage; although it was about vate in Chambers v. property. as appeared open be . . . automobile was seized Maroney appellant pointed was out to public.7 was not After public place a where access say it surely 4. While Hudson and other authorities dis- If that the 2. anomalous to “[i]t fully point physical private property on this dealt with and are cusses individual his by only and motor vehicle to search it at protected removal of a Fourth Amendment location, the same constitutional con- another suspected criminal behav- the individual is of apply a at the ior,” Court, 523, to a of vehicle siderations Municipal v. 387 U.S. Camara Maroney, Chambers 530, 1727, scene of seizure. (1967), 87 S.Ct. 18 L.Ed.2d 930 52, 1981. 399 U.S. at 90 S.Ct. at troubling paradox more is that whether a may parked public place locked automobile in a garage, generically aas referred to 5. While be seized and searched on cause is there, Martinez, employed it was said who depend made to on the nature custodial shop. paint body operator-the status of its owner or confinement, stricter higher protection is the ingress easy open, permitting gates 6. were against a warrantless seizure and search his however, parked his unit in egress; motor vehicle. the street. exception first enunciated Carroll however, Martinez, it was not testified 280, States, 132, 45 S.Ct. United indicating signs and that there were place about (1925) frequently L.Ed. has since been However, agreed also was closed. he in, Opper explicated, g., as e. South Dakota v. big shop” “the front door of 3096, man, on; eight people lights or there so L.Ed.2d 1000 . drinking “just personal beer after friends” keys Martinez, Q: If the car ga- [By into Mr. by him went Hinton]: fit Montez had hadn’t David rage,8 accosted confirmed or if he hadn’t Chevrolet identity keys to his automo- obtained you would have still any car view presence bile-all in the or of his trunk? got in the friends. A: Yes,sir. Card- point,

At this plurality like the Q: How Lewis, well v. we well find that might in the gotten have you would o* “a premises public amounted trunk? place” with and the encounter been means A: Whatever would enough of an that his car indication con- necessary. marihuana “the tained incentive and Q: Had al taken anything <y potential substantially for the removal car’s to arrest this Defendant you lowed However, testimony increased.” certain time that anybody or else guidance prose- you found you were aware before cuting attorney illuminates his own estima- marijuana trunk [sic] tion of the situation:9 car? “Q: [By object Mr. of your Hinton]: any reason arrest was no A: There being there to search that body at that time.10 Chevrolet, is that correct? Q: You get go down couldn’t Yes, A: sir. and back search warrant come

[******] expect that car to still have the shop, Ignacio Rojas, cause to him at that had a reasonable detain work. The owner the of confirmed the nature of the check out festive occasion time until I could the circumstanc- up “everybody and added drives when es.” drinking we’re beer.” the incredi We to remark on are constrained by year of ble statements made a ten veteran Koop 8. one As he entered recalled that Koop Department. Dallas apparently gone several officers rectly di- who possession very a had in at that moment his group they into the told the for the residence of warrant officers, charge, in were who was asked affidavit that named based on his own charged everybody a cautioned to “be cool for few min- felony appellant with the offense explained looking utes” and that “we were for marihuana, possession of which unconditional marijuana testimony get From other we [sic].” “And, ly provided, you are to ar commanded impression occupants bring person me each described rest and before spread eagle against garage. a wall of the in said Affidavit.” That command and accused 753, Sanders, 18.03, In Arkansas v. 99 S.Ct. by specifically V.A. is C.C.P., authorized Article 2586, (1979), writing regard warrant an arrest “[i]n Court, pointed Mr. Justice Powell out incorporated is no dif within a search warrant general applicable principles while to claims of separate arrest warrant issued ferent than an settled, Amendment are well Fourth violations independent so that a search warrant” “... Courts and law enforcement officers authority war to arrest under an arrest “the proper find it often application cases, difficult to discern incorporated a is not rant search warrant principles to individual these premises described in the search limited to the warrant,” giving because rise the circumstances State, 401, 516 S.W.2d Pecina vary suppression requests can almost infi- to nitely. Indeed, (Tex.Cr.App.1974). war without Moreover, apparently small an differ- authority appellant, propriety to arrest ranted frequently in the situation is ence factual by presence of of the intrusion continued controlling viewed as difference deter- premises is fellow officers on the and his mining rights.” Fourth Amendment State, Compare questionable. Simpson v. most course, problems, The same arise our (Tex.Cr.App.1972) with S.W.2d counterpart constitutional to the Fourth (Tex.Cr. Evans 530 S.W.2d Amendment, I, Article Section Constitution However, App.1975). we decide do not of Texas. challenged appellant point has not since only place his ap- but search of invasion on the later testified that he proached garage, “I had no automobile. in the place I arrest. I felt like reason to him under spent thereafter some time marijuana trunk, if mant and it [sic] did, is that correct? of other collecting number officers Cliff, him the in Oak accompany right.” A: That’s city must be hall drive from it back Thus, of Koop the articulated concern short, o’clock exceedingly especially at ten was, any, whatever marihuana there if night. at might somehow be removed the trunk than that the car automobile rather exigent circum- We must conclude that premises. itself would be moved from to exist. The stances have not been shown hand, With his car in own Carroll, supra, exception automobile hardly regarded could have the latter appellant’s automo- applicable because event a half very likely. With a dozen sub- moving. The “moveable” bile was not keeping other present every- officers exception thwarted classification of the “cool,” body we fail to perceive likelihood by keys being Koop’s hand. the car first. But be as it may, potential for the Whatever “incentive and point is that Koop automobile influenced car’s removaT’-factors to search then determined and there Lewis, plurality supra-were in Cardwell v. neither nor moving moveable. appel- by the detention of physical chilled thirty-five Some earlier minutes all of garage, lant and his friends in the mag- had obtained a search from a whom, glean testimony, we from the istrate in his sitting city courtroom arrested;12 home, his contemporaneously hall. ga- Asked to locate the be away, was about some three miles address, rage by other than testi- Thus, even raided and wife arrested.13 fied: location was not in a though

“A: of a It’s close-on the other side driveway as private as the viaduct, referred to as West Dallas. home, Coolidge as in v. New particular part In that it’s sometimes or become every person might referred to as in Oak who was Oak Cliff-close Cliff.” taking of what was aware sounding an garage precluded from Keeping leaving city hall in mind that after any- do powerless alarm or was rendered to Koop original from his mission was diverted with these by thing conversation his infor- about it.14 Under circumstanc- telephone plain everything during view” resulted sei- 11. cross Earlier examination posted that he one or some dollars in curren- conceded could have zure of fifteen hundred appellant’s cy Appellant’s more of the other officers with from the beer case. persons garage impounded. automobile and the while yet he or to another officer went obtain a warrant, explained search but he did not resi- afternoon five From o’clock because: surveillance had been continuous dence by plainclothes under (cid:127) Well, then, my people be, they “A: concern was for these If need officers. under time. Second- not arrest at that Mrs. Mon- to and restrain were available follow ly, felony being any there was a committed there toward the should she make move tez Thirdly, premises. I had a search premises. garage that I other wanted to execute location. wrote, dissenting in 14. As Mr. Justice Stewart you just time bother So didn’t have Q: with Lewis, supra, Cardwell getting another search warrant at 2473: forty away feet search a car that was likeli- Where there is no reasonable “. . . building. be that the automobile would or could hood Yes, A: sir. That’s correct.” moved, inappli- simply the Carroll doctrine * * * produced search of kilos cable. After his the trunk beyond marihuana, Koop placed appellant ar- facts of this case make clear under exception’ peradventure that the ‘automobile rest and turned him over to other officers who uphold transported Depart- the warrantless him to is not available the Dallas respondent’s before people car. Well ment. “the Likewise other seized, fairly put that the automobile was arrest" “there the time respondent keys complete building were se- his car- search made they the informant told him that es, exigency. there was no Hudson v. for a short the address supra; Coolidge v. New would be there at garage, at the Koop arrived time. When supra. appel- radio in listening to a someone was Accordingly, judgment is reversed Chevrolet, which had been lant’s 1974 black and the cause remanded. the informant. by described earlier who was in occupant pointed out DAVIS, TOM G. dissents. people. other garage with Before the court en banc. testified that to some ex- public. was contradicted This OPINION ON MOTION STATE’S by appellant. called by tent witnesses FOR REHEARING asked garage, went into DOUGLAS, trunk, Judge. where opened for the or kilos of twenty-four he found bricks submission, original majority On of a weighed pounds about 2.2 marihuana which panel pos- reversed conviction for each. session of more than four ounces of mari- home proceeded appellant’s huana because the evidence was introduced then Ap- the warrant. as a to make the search under result of a search of an automobile found pellant’s was there. Officers approximately where of mari- wife sixty pounds attic pound marihuana huana was about a found. In addition to the pounds Dodge in a car, and about two hundred amount of marihuana found garage. pickup truck in the some pounds two hundred was found at his pursuant home to a search warrant which right Did officers have a make the contained an appel- order for the arrest of automobile? The officers did lant. grant We motion for State’s a search warrant for the rehearing. but did have a search warrant for the resi- dence. The search warrant contained an appears There to be no about question appellant. order to arrest search of home. is not the informant reliability of At hearing suppress on the motion to questioned. alleged facts in the affida- automobile, the evidence obtained in the credible, was a vit show that the informant Officer Kenton of the Dallas Police person. gave The informant him reliable Department that he testified received infor- the license number of the mation from a confidential informant description make and and related appellant was in possession of marihuana. dividing the marihuana at the people were given The informant had him information proba- sufficient garage. The officers had proved before this date that had be cor- appellant pos- ble cause to believe that the rect. Officer obtained a search war- sessed marihuana in the automobile. rant appellant. the residence of residence, While enroute to the he received Recently, Supreme the Court of the Unit Bannister, - U.S. additional information from the same infor- ed States in Colorado (1980), mant -, was at a held 66 L.Ed.2d 101 S.Ct. and that he probable Oak Cliff who had and noted that officers where it dividing approxi- and others there were an automobile cause could search the car mately pounds stopped one hundred of marihuana. was the scene or after station, police to a get He related that he did not a search was seized and moved Maroney, citing warrant for the because he did not Chambers U.S. have night time to do so at that time of and 26 L.Ed.2d 419 curely police custody. search warrant. And there was no realistic within was thus There absolutely any position respondent possibility in a no likelihood that the one else was could have either moved the car or meddled do so either.” during necessary with it to obtain a the time was for case, stopped speeding The car and there In the Bannister the Colorado a blue “that Springs Department probable observed was cause the contents moving along against the law.” 1967 Pontiac automobile GTO automobile offend[ed] legal speed a road at a speed above the by the was noted probable cause disappeared. limit. Short- but, according of Colorado Supreme Court thereafter, ly the officer heard a Court, it mis- Supreme to the United States ve- dispatch reporting radio theft of motor was re- takenly that a warrant concluded parts hicle which had occurred in the area seize quired a car door and and which announced a number and of the car stopping items within and his lug among the items chrome nuts legitimate, issuing a citation traffic of the missing provided description pro- of this case that the circumstances suspects. hearing two A few minutes after but, probable cause to arrest only vided report, spotted same car the officer Chambers, under Carroll and speed- he had seen earlier and it was with- incriminating items cause seize the After entered sta- ing. the car a service warrant. out a tion, the followed it there for the officer for petition certiorari The state’s purpose issuing a traffic citation United Supreme Court of the granted. The driver. constitutionally held the search States car, approached As the both of officer judgment Supreme permissible. The occupants, including respondent suppressing the evidence of Colorado Court Bannister, A be- stepped out. conversation set aside. en- respondent tween the officer and Sanders, 442 Arkansas v. Court noted Standing just sued. outside the closed 753, 760, 2586, 2591, door the officer front (1979), and, impliedly, held that least lug open glove observed nuts in an chrome it did not apply. compartment between the front inside lug bucket seats as two wrenches on as well many exigent There were as circumstanc- Recogniz- the back seat. floorboard of present es case as there companion ing respondent was authoriz- Bannister’s The search case. description suspected met of those aside; set reversal is judgment ed. The parts, officer stealing the vehicle motor rehearing granted. for State’s motion them. seized immediately He then arrested considered The other been grounds court lug nuts wrenches. The trial and overruled. suppress the motion to granted Court of Colorado affirmed Supreme judgment is affirmed. for petition filed

decision. The state Supreme certiorari Court ODOM, ROBERTS, PHILLIPS United States. The Court noted CLINTON, JJ., dissent. judicial process searches outside the Fourth were not authoriz- Amendment exceptions. ed unless there were The Court

wrote: recog- exceptions,

“... these One of

nized at since v. United least Carroll

States, [45 (1925), exists an auto-

L.Ed.2d 543] and the stopped

mobile or other vehicle it cause to believe [Citing of a crime.”

contains evidence 42, 90 Maroney, 399

Chambers v. (1970).]

Case Details

Case Name: Montez v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 17, 1980

Citation: 608 S.W.2d 211

Docket Number: 59179

Court Abbreviation: Tex. Crim. App.