*1 TAYLOR, Appellant, Arland Richard Texas, Appellee.
Thе STATE 40336. No. Appeals of Texas. Court of Criminal 14, 1967. June Rehearing Denied Oct. 1967. Rehearing Dec. Denied Second *2 Ray, Jr., L.
Ray Kirkpatrick, C. & Marshall, appellant. Allen, Atty., A. Dist.
Charles Austin, Douglas, Atty., and Leon B. State’s for the State.
OPINION
WOODLEY, Judge. Presiding possession is the unlawful offense marihuana; punishment, years. jury
Trial was before a Code of Procedure. Criminal
Appellant plea declined to enter a plea guilty the court entered the of not him. question disposi- which controls the appeal legality
tion of this appellant search of the ciga- marihuana the seizure of rettes, cigarette marihuana and butts bulk found in a can in the trunk. coffee at the courthouse
This search was made the other immediately upstairs. occupant car were taken of the who drove Patrolman Highway The State Waskom, where there the car from and searched magistrate, examined he obtained part car before front of the opened keys appellant and from the trunk and retained trunk. He closеd keys re-opened the trunk until mari- county discovered the seat and huana. * ** up
The search of automobile at back seat.” raised out of the at the as the search and seizure Upon well that the contained “Rolls seeing courthouse, money,” unreasonable the officer money, is аttacked as stacks of illegal. pistol, the man out ordered drew “flipped He car and handcuffed him. then *3 and relating the examination facts to a box” floorboard the lid off of on rear appel- at which search of the car pistols, re- a caliber and uncovered two .38 justify the lant are insufficient to contends and .32 caliber automatic. volver a as as arrest or rea- search incident to the States, 376 under Preston v. United sonable the officer keys by were obtained The car 881, 11 L.Ed.2d are opened be- appellant. He the trunk from : these where the courthouse сar fore to companion appellant and his were Appellant driving an hav- in cars. other plates. He was ing California license Patrolmen about stopped by Highway Texas upon Preston Relying Seat, County eight miles from 881, 11 L.Ed.2d 364, 84 S.Ct. a “no passing in for the traffic offense of and that examination appellant contends asked his driv- passing” zone. He was appellant had been the car after search said he had He was er’s license and none. of- magistrate’s it permitted to drive to any- if he or asked had other identification ap- to as an incident fice was not a search he thing with his name it and he said on passing in passing a no pellant’s arrest not, he had gave did and as reason that time and zone, at another a search because (more been in El than robbed Paso arrest. place simply not incident to the away). miles disposed extend to We are The automobile was not searched or ex- United in Preston v. rule announced at amined scene. There were some an auto prohibit inspection supra, to clothes and hanging the car the officers permitted been driver has mobile were not aware of the fact that there was a оf magistrate’s a few to drive it miles a passenger back seat. li has no fice in where the driver cases gives an un or cense identification that Patrolman told he explanation therefor. reasonable would be filed on and he was directed to patrol the magistrate’s follow car
office.
opinion
by the
recent
Aided
more
Supreme
State
Cooper
Court
patrolmen
When one of the
went into the
California,
magistrate
office to
for the
the other
wait
we
convinced
appellant’s car,
given
went to
the reason
office,
magistrate’s
at
search of the car
“Well,
being:
any
he didn’t have
identifi-
appellant, and the
by
it
driven
to where was
was,
any
cation who
didn’t have
identifi-
were
continuing
at the courthouse
search
him,
belonged
cation to show the car
justified as incident
arrest of the
to the
suspected
we
that it was stolen.”
license, registration
or
driver who had
for this
identification and who accounted
He looked in the car
if
“to see
there
by claiming that he
El
had been robbed
anything
might
there that
have a name
Paso,
away,
more than
750 miles
also
or identification in it” and
a
saw canvas
opened
Statute,
on the front floorboard. He
the Texas
Art. 18.22 Vernon’s
and,
the car
opening
door
he was
the'
duty
Ann.C.C.P.
it the
which makes
of of
bag, man who
to be groggy,
“seemed
consequences
ficers to
theft
somewhere near the state of intoxication
by seizing personal
property which
suspect
ON
MOTION
was OPINION
APPELLANT’S
ground
reasonable
have
FOR REHEARING
stоlen.
Supreme
by the
out
pointed
As
ONION, Judge.
California, su
Cooper v. State of
Court
States, supra,
in Preston v.
pra, and
brief,
scholarly presented
In a
whether
was not
question
decided
there
court-appointed
vig-
appellant’s able
counsel
law, but
by state
authorized
the search was
orously challenges the conclusion reached
reasonable
the search
whether
original opinion
the reasonable-
in our
as to
opinions
Both
Amendment.
the Fourth
ness
the “second” warrantless search
rea
that whether
make it clear
with-
Marshall of the automobile involved
and cir
depends upon the facts
sonable
appellant’s
out
consent.
*4
cumstances of
case.
each
Amendment is enforce
Fourth
the search
legality
the
of
Though
The
against
through
able
the
the Four
States
may
be determined
not
probable cause
on
teenth Amendment and
inadmissible
renders
facts, it is
after-acquired
its
or
from fruits
in violation
in a State court evidence seized
investigation
the
interesting to note that
Ohio,
provisions. Mapp
of its
v. State of
in
an
inspection
car was
which the
1081;
643,
1684,
81
6
367 U.S.
L.Ed.2d
S.Ct.
being
part
that the car
tegral
(1)
disclosed:
38.23,
See Article
Vernon’s Ann.C.C.P.
him;
belong to
by appellаnt did not
driven
his name as
(2)
gave
that
James
Waade,
is
true name
Dewayne
while his
test, in cases like
The relevant
Taylor;
man who
(3)
Richard Arland
the
bar,
that at
is whether the search was rea
gave his
up
back seat
raised
out of the
circumstances,
sonable
for
under all of the
Lawrence,
was
name as
Carlton
which
Rod
only
it is
that are
unreasonable searches
fictitious;
the
not a stolen car
(4)
car was
prohibited by the Fourth Amendment. Car
but the
in the canvas
had been
132,
roll
States,
v. United
S.
45
robbery
obtained in the
a bank.
280,
543;
Ct.
69
rea
L.Ed.
and that which is
sonable cannot be determined
a fixed
by
Preston, supra, the car
not
Unlike
was
formula;
Rabinowitz,
United States v.
339
custody
keep
to
it
the
into
for
driver
56,
430,
653,
U.S.
70 S.Ct.
L.Ed.
nor can
94
it,
or whomever he
but
sent
it be stated in rigid and absolute terms.
consequences
the
of theft.
145,
Harris v. United
67
Also,
pointed
Supreme
out
1098,91
short,
L.Ed. 1399. In
whether
cited,
Court in
the cases
relevant test
a search and seizure is
within
reasonable
procure
is not
it
whether
is reasonable to
the meaning of the Fourth Amendment de
warrant,
a search
but whether the search
pends upon the facts and circumstances of
was reasonable.
each
Cooper
California,
case.
v. State of
58,
386
U.S.
87 S.Ct.
This test is in
Texas Statutes to the seizure of property—there stolen must be reasonable
grounds suppose property seem, to be stolen. first would the fruits of blush, inadmissible to render Under the facts and circumstances of dealing In with question. the search case, this we conclude that the evidence ob- Preston, the search of an automobile tained as the result of the search said, car Supreme “Once lawfully obtained and trial Court United States court did not overruling appellant’s err in custody, arrest and an is under aсcused to suppress and exclude it. place, with- another made at then a search warrant, simply not incident to judgment is affirmed. out Preston, Supreme He unable passing” Court in a “no zone. In arrest.” or identification produce a warrant a driver’s license without not hold a search did paрers. it as in- only if made can reasonable pointed that out to an arrest. cident fully de- surrounding circumstances sought be sustained search was there the original opinion justified in our scribed upon and that the effort solely basis that officer, upon arresting in Was- arrival for which (1) failed the offense bеcause kom, dealing with suspecting that he was arrested Preston was the defendant was than a routine situation more serious vagrancy there could not be and since he had reasonable traffic offense and instrument, fruit, that of- evidence or grounds believing that be a in the there fense could nothing in the might be stolen. There is premise, insofar (2) suspected that the officers record to indicate protection arresting officers as the Considering any narcotics. concerned, escape prevention anof officer, the situation which confronted long there was need fоr a search car attempt to determine whether the jailed. defendant was or viola- was stolen not unreasonable Amendment. tive of Fourth See appear it For these reasons would not denied, Owens, cert. States (when the
the search at Marshall officers *5 878, 119 15 L.Ed.2d in- justified found the marihuana) can as (1965). cident to traffic offenses. arrest for stop fide or arrest Once a bona mean, however, that the This does not po offense, been a traffic has made for at
search Marshall was unreasonable. any make arrest for can an additional lice valid, arrest for traffic was offenses dur unexpectedly disсovered other offense merely and was un- beginning of the If, investigation. ing the course of the raveling of legal ball of twine. regarding a questioning while motorist vehicle, evi operation an officer sees of his Appellant contends that the arrest view, open violation in dence of a criminal ing appellant officers illegal had ar acquires probable or in other manner some they required rest when him follow them charge, may ar on a more he cause serious place from the of arrest to of the the office thereto for that and incident rest offense of urgеs the Peace in Waskom. He Justice physical search conduct additional for that he should been have issued a notice States, appear 6701d, as authorized evidence. See v. United Article Sec Goodwin V.A.R.C.S., tion instead being 793; U.S.App.D.C. Busby v. 121 F.2d 347 a magistrate. before im He overlooks two 328; Cir., Statеs, Rig- United 9 296 portant acts. supra, Section manda is States, D.C., F.Supp. gins v. United 255 tory upon peace only officers in cases D.C., 777; Barnett, 258 United States v. person apprehended where the is for the 455; Clark, D.C., F.Supp. United States offense of speeding gives written his F.Supp. circum Under these 247 promise appear. It expressly not does stances, neither the arrest nor the search apply, even speeding cases, where the charge, to the tied to the but rather traffic vehicle country is licensed in a state or later violation discovered. Brown v. United Texas, other than nor would it be manda 976; States, U.S.App.D.C. 365 F.2d tory where the offense is driving motor Hardtop, United States v. One Cadillac 6687b, vehicle without a license. Article if D.C., F.Supp. 210. This is true even Section It V.A.R.C.S. should be re specific second statement of fact appellant called that vehicle licensed in arrest is made. Brown v. apрre California when he was hended, not speeding, passing supra. but for properly The search commenced at Marshall.
The officer entered
at
was continued
Marshall
in an effort
ascertain its true
Waskom
at
Waskom
delay
slight
after a
with the same con-
duty.
owner
It
then
as was his
tinuity
purposе by
arresting
“groggy”
indi-
officers.
discovered
of a
holding
the We
inclined
that the
hiding
as
to believe
vidual
in the
well
upon
wrappers
in Preston turned
the lack of con-
money (in
rolls
stacks
tinuity
purpose by
arresting
officers
Worth).
of the 1st National Bank of Ft.
Wood,
appel-
there.
197 Kan.
discovery
See State v.
This
rendered inconsistent
729;
416 P.2d
Price
statement
that he had been robbed.
lant’s
68;
U.S.App.D.C.
Arwine v.
quantity
62, 348 F.2d
rendered
It also
the source
this
Bannan, (6th Cir.)
pistols
money.
near the
It was
were found
our
view
evidence in
point
appellant
at this
com-
appellant
the case at bar that the arrest of
re-detained,
panion
not
were detained or
companion following
and his
the limited
offenses,
because of the traffic
but
Waskom,
search at
the au
removal of
apparent
offense or offenses unсovered.
subsequent
and the
tomobile to
constituting
search were a series of events
A
might
search of an automobile
be ex-
happening.
such cir
one continuous
Under
pected
place
to take
when and where the
at Marshall occurred
cumstances
arrest occurs. While the record does not
in
substantially contemporaneous with and
why
disclose
the officers could not have
cidental
to the arrest
Waskom itself.
thorough
made a
search at
it is
pres
not
The fact that
obvious
concluded under the circum-
ent at the Marshall search did
confronting
go immediаtely
stances
them to
being
to his
such search from
incidental
county
to the
thorough
seat
a more
Bannan,
Cir.)
(6th
arrest. Crawford v.
*6
accurate
It
doubtful if
search.
Preston
den.,
cert.
interpreted
police
should be
to mean a
offi-
den.,
1807, 14
reh.
L.Ed.2d
cer must
all
circumstances search or
116.
86 S.Ct.
15 L.Ed.2d
the,
complete
at the
vehicle
equally prudent
moment of arrest when an
was reason
Since such search
course of
action would
to move
able,
contraband
finding
then the
vehicle
to more convenient or suitable
pur
(marihuana),
totally unrelated to the
location for the searсh.
shown
pose
search,
admissible.
would be
approxi-
their arrival at
Seizable
of crime
items such as instruments
mately
appellant’s original
hour after
one
pos
or contraband which come into the
m.,
officers,
traffic arrest at 8:45 a.
searching in
lawfully
session
officer
of an
narcotiсs,
suspecting
still not
crime or for an
connection with another
immediately
continued
search of
purpose may
and used
other
be retained
automobile to determine who the
prosecution
to which
of the crime
was, why
possession
of two
he was
relate. Abel v. United
pistols
money
large
sum of
still
683, 4
also
See
wrappers,
bank
whether more
still
States, supra; Heffley v.
Carroll v. United
remained
and whether
State, Nev.,
had fact learned that reported prior the search at stolen ruled.