*1 setting the amount bail. The court is also authorized to look nature of the
offenses and in setting their circumstances Tanner, parte
bail. Ex See Cascio, parte Ex S.W.2d
Tex.Cr.R. and Ex
parte Psaroudis, Tex.Cr.App., 508 S.W.2d
390.
Appellant that he did not own
any property.
We hold that the bail is not exces
sive. judgments are affirmed. WILSON, Appellant,
Winton Lee Texas, Appellee.
The STATE of
No. 46816. Appeals
Court of Criminal of Texas. 12, 1974.
June July
Rehearing Denied
According Brooks, the search was appellant standing conducted while “was partner there, my with behind his car be- tween his patrol car and the car.” Brooks testify was the witness to at guilt stage of the trial and the record reflects that following occurred at the testimony: conclusion of his “Mr. [prosecutor] Stewart : We have stipulation between counsel for the De- myself fendant and the material marijuana. there found “Mr, Stevens for appellant]: [counsel stipulate We will that the stuff turned Buddy Stevens, Houston, appellant. over marijuana, to the chemist how- ever, certainly object we will in- Vance, Atty., Carol S. Dist. C. James troduction of it in evidence. Stewart, Brought, Attys., Stu Asst. Dist. Vollers, Houston, Atty., upon “The State’s Court: Based an unlawful Jim Austin, for the search and State. seizure? Yes, Honor,
“Mr. Stevens: Your based on an unlawful search and seizure OPINION and based under this .rights Defendant’s guaranteed him under the 14th Amend- DAVIS, Commissioner. ment of the United States Constitution. Appeal is taken from conviction “The Court: It is overruled.” possession of marihuana. Trial was before plea guilty. the court of not Pun- light foregoing stipula years, pro- ishment was assessed at three tion, argu we find no merit in the State’s bated. appellant’s illegal ment that contention of outset, appellant At contends the search without merit in that the contra admitting court erred in evidence which band was never into evidence. introduced was the fruit search. unreasonable Further, do not we find Satillan sup stopped ap- Officer testified he Brooks ports position appellant State’s pellant running light a red at Montrose timely object failed to claimed inad night in Houston Westheimer on missible The first evidence evidence. appellant’s of November Before being in appellant’s marihuana complete stop, vehicle came to a stipulation came in the in which observed “he made a move with clearly objection voiced to its admissi hand After (2) to between the seats.” two bility. complied The appellant with the stop ap- came Brooks asked require objections rules which pellant the car step “to out to the rear of introduction of be made at the evidence my partner searched where was.” Brooks time the evidence is Brazzell v. offered. cigarette box car and found a State, Tex.Cr.App., 481 S.W.2d Satil cigarettes be- containing three hand rolled State, supra. lan v. tween the seats the two-door bucket stop- It is contended that the initial Mustang cigarettes were automobile. ping of the vehicle for the traffic violation depart- later turned over to the lab illegal, appellant urges but ment. (December 30, 1970), nia held that search of his automobile which followed who Clearly, bending pas- observed movement of unreasonable. senger being chased for traf- the vehicle in the instant case cannot automobile fic charge,1 tied but must bot- violation lacked cause for give facts rise warrantless search tomed additional which of vehicle. the warrantless opinion In a well reasoned *3 State, Taylor appellant’s search v. of was first noted that the officer had no Tex.Cr.App., 421 403. S.W.2d prior reliable information defendant’s
car contained contraband nor was the offi- appellant that after cer any plain able to see in contraband “approached the and asked vehicle, view while standing outside the him was asked if he step out.” Brooks Mosk, speaking Supreme for Justice could see the box California, Court of said: “No, responded, car and I did not.” Un “The next relevant group of cases are Taylor State, Tex.Cr.App., like v. those in probable cause to search 403; W.2d Abbott v. gestures’ has been ‘furtive predicated on 142; State, Aldridge Tex. 472 S.W.2d v. or ‘furtive an occupant movements’ of of 171, Cr.App., 482 the officer did S.W.2d theory, course, the vehicle. of is not see criminal evidence of a violation although the officer does not actual- plain justify a of view which would ly see from contraband outside the the vehicle. vehicle, may reasonably infer the timing and of the direction occu- he was Brooks testified that not in fear pant’s movements that the latter of his life at the time he conducted the fact contraband which of search; standing be endeavoring he is From the to hide. patrol tween his car and car with actor, viewpoint theory of the rests partner. State, Brooks’ Unlike Imhoff v. on a is a psychological basis: ‘It sound 919, Tex.Cr.App., 494 S.W.2d impulse natural to hide on confrontation was not close to his vehicle sufficiently immediately any contraband’ conceivably that he lunged could have for posit We at can that sudden efforts con- a weapon, thereby justifying a search of cealment, flight like from the scene of a State, vehicle. See Lewis Tex.Cr. crime, may expressions con- well be of App., Madeley hand, guilt. sciousness of other On 488 S.W.2d in fact an en- may same motion Thus, question becomes one of tirely purpose: recog- ‘It is innocuous whether appel- the officer’s observation reasons for con- person’s nized that a brought lant before he his vehicle may spectrum cealment run the whole stop, “he made a with his hand move legitimate from the most motives seats,” (2) standing to between the two most heinous’ alone, is sufficient to establish difficulty “The is that from the view- appel- cause for a warrantless search of observer, point ges- an innocent lant’s automobile. guilty ture for a can often be mistaken Superior Court of Yolo potential movement. 729, Cal.Rptr. County, 3 Cal.3d misunderstanding in such a situation Supreme P.2d Court of Califor- obvious. holding resting driving petitioner
1. We do not
recent
find the
offense of
Supreme
operator’s
United States
Gustafson
a valid
li
automobile without
Florida,
cense,
taking
custody,
38 L.Ed.
U.S.
him into
Smith
applicable
(1973)
petition
2d 456
to be
to the facts
was entitled to make a full search of
Gustafson,
Supreme
er’s
the instant case.
incident
lawful arrest.”
(emphasis
supplied.)
therefore
ar
Court said:
“We hold
seats,
danger
reaching
this
that the
or between the
motion
“It is
because
a mere ‘furtive
in that
be no less natural
requires
than
direction would
law
more
them.
gesture’ to constitute
arrest. The United States
or to
“Furthermore, every motorist knows
recently
this
reaffirmed
speak
that the
will wish
with
York
rule in the
Sibron v. New
case of
him,
briefly;
simple prepara-
however
66-67,
(1968) 392
88 S.Ct.
tions for that conversation are therefore
‘deliberately fur
adjusted,
put
belts
shoes or hats
tightened,
garments
and outer
buttoned.
“
suggest
will
.
. Reflection
explana-
guilty
than
many more innocent
stops his car
“Finally, when a driver
‘leaning for-
act of
tions for a motorist’s
in
in which he knows
a situation
in the circum-
‘bending down’
or
ward’
vehicle,
cus-
alight
both
hand.
stances at
tomary
prudent
apply
and
for him
many
inYet
parking brake.
with, every motorist knows
begin
“To
handle or
parking
brake
automobiles
police
will
approaching
officer
that the
dashboard, and
or below the
lever
on
li-
driver’s
ask to see his
in all likelihood
compelled to lean
is therefore
driver
cense,
registration
probably
and
also
apply
downward
order to
forward or
move-
The observed
card of the car.
it.
nothing
ment, therefore, might well be
foregoing gestures'
reaching
“Each of the
act
the driver’s
more than
could rea-
degree resembles—and
his license
some
as to have
for his wallet so
sonably
movements
reaching
be mistaken for—the
inspection,
ready for
or
secreting contra-
engaged in
compartment
glove
steering post or
wholly
Yet each
as
band inside a car.
And
registration card.
obtain
time
innocent,
made at one
handbag
and has been
keep their
many
drivers
women
every driver
by virtually
other
another
license
—containing their
today. Accord-
the roads
passenger
floor
on
them on the
identification —next
ingly,
Carroll,2
language
illegal
such search of
his automobile
gestures
the fact
are
that an
found the marihua-
not ‘sufficient
themselves
na was
to warrant a man of
inadmissible.
reasonable caution
being
belief
[contraband]
Brooks,
P. A.
an officer
Houston
transported’ in the vehicle
obser-
under
Department,
that at
Police
10:35
vation.”
p.
Mustang
m.
drove his
automo-
through
light
bile
a red
at Montrose and
In Brown v.
lights
Westheimer Streets. With
this court
cited
flashing,
car
Brooks and
Superior
County,
supra,
Court of Yolo
partner,
Williams, pursued appellant
D.
J.
concluding that the observation
the offi
for some four blocks and
him for
cer that defendants’ shoulders
could
running
Appellant
light.
was the
red
seen moving
their
before
vehicle
Mustang.
appel-
one in the
Before
stopped was an insufficient basis for infer
stop,
complete
lant’s car
he made
came to
ring that defendants were concealing fire
move with his
hand
between the
arms
and did not constitute
seats.
two
His head and shoulders also
Brown,
for search of their car.
as in
right.
stopped,
moved
After the car
case,
the instant
a search of the vehicle re
step
Brooks
rear of
vealed
It is a well
contraband.
established
the car with
Officer Williams.
rule of
that a
justi
law
search cannot be
then
seats
looked between the two
uncovers,
fied
g., Whiteley
what it
e.
“hump” on the
a Marlboro
Warden,
Penitentiary,
Wyoming
401 U.S.
*5
cigarette
three Marlboro
box which had
91
(1971);
S.Ct.
537 State, 467 as of Act. Wallace v. mediately magistrate a taken before 608,this required, offi- S.W.2d hereinbefore no- duplicate prepare shall written cer when is “. it well settled containing the appear in tice to traf- person violating a a an officer sees li- person, and such name address of and law, him stop fic is authorized vehicle, any, the if cense number of per- to search his to that arrest incident place and charged, and time offense State, son. Ciulla ap- person and shall when where such .” (Tex.Civ.App.). however, Provided, pear in court. only State, speeding shall be the Rodgers v. See offense of mandatory issuance Tex.Cr. making Taylor W.2d and offense court, appear a written notice the trunk App., where 421 S.W.2d person then the arrested an automobile was searched if gives promise appear his written fol jail, after was in the defendant court, duplicate the written signing lowing a traffic arrest. prepared by officer; the arresting
notice
appellant being legal,
The arrest
further,
provided
shall not be
question
turns
the search of
now
mandatory
a writ-
give
an
officer
officer,
ar-
making
an
car. Does
any per-
appear
ten notice to
in court to
violation,
right
rest for a traffic
speeding
arrested
son
the offense of
the ar-
part
to search that
car where
person
when
operating
such
a vehicle
if
gun
might readily
rested
reach
licensed in
country
a state or
other than
permitted
ishe
to re-enter ?
resident
State
Texas or who is a
country
of a state
other than
stops
If an officer
and arrests the driver
(Emphasis supplied)
State
Texas.”
violation, he has
of a car for a traffic
the driver
take
to search
14.05,
Article
Ann.C.C.P., pro-
Vernon’s
weapon that
might
the driver
reach.
vides :
car,
the driver
seated in the
a search for
any weapon
might
readily
be
obtained
each
“In
case
ar-
enumerated where
permissible
would
Cali
under
Chimel
lawfully
rests
made without war-
fornia,
L.
rant,
making
officer or
(1969).
Ed.2d 685
justified
arrest
adopting
all
might adopt
measures which he
in cases
us-
making
An
arrest is
traffic
of arrest under warrant.”
ing good
to have
who
a driver
been
or arrested for a
14.06,
Article
Ann.C.C.P., pro-
Vernon’s
get
safety pre-
offense
out of the car as a
*7
vides :
State, Tex.Cr.App.,
Grego
caution. See
Code,
“In each case enumerated in this
the making the shall take arrest blush, might appear At first that an person the taken arrested or have him permitted be search officer should not unnecessary delay without the before person arrest one’s car after a traffic magistrate the who have ordered in- ordinarily because traffic violations are magistrate arrest or the before some 6701d, nocuous Article offenses. Section county where the arrest was made with- 153,supra, gives ar- right an officer the out an . order. . .” Supreme rest for such offenses. The proof the Since shows held the Court of the United States has 6701d, violating supra, the of- Article right to of the traffic vi- appel- had a right ficers to arrest and take Robinson olator not unreasonable in the custody by lant into as authorized Section and Gustafson cases.
Merely a gets because a driver out of “. . .it then became the and upon being ‘duty car stopped prevent not to make at a should officer’ least vicinity an protecting cursory himself. the immediate search of opinion, officer decides take a traffic viola- of the driver’s this not to seat. our type tor magistrate jail, before a or to the of- of search was not authorized by fender get will back into the and it law but it was essential to insure quite possible safety weapon a could officer.” reached, and the be shot.1 officer could States, In Preston v. United 376 U.S. 364, 881, 777, ar-
No citizen wants to be searched after 84 S.Ct. 11 L.Ed.2d being stopped vagrancy rest was the defendant or arrested a traffic vio- for necessity parked A lation. and others who were in a car. We cannot overlook the police for such a search of the trunk search. Police officers must of the car protect per- occupants able station in the after the of the car were themselves while jail formance of their was held be unreasonable. duties. Black, Legislature provided speaking Our Mr. has for such Su- Justice preme Court, arrests and the of the United arrests and States person is “Unquestionably, when a good searches for traffic violations with arrested, lawfully fugitive murder, reason. A from a rob- right, warrant, a search to make without bery, burglary, crime, other who contemporaneous might not want an officer to check to see weapons. of the .” accused for offense, if he is wanted for could ob- some tain gun returning to his car allowing contemporaneous “The rule attempt shoot the officer who justified, example, by searches is stopped him. weapons things need to seize and other Cannon, In the recent case of might be used to assault an offi- Ill.App.Ct., First Dist. 310 N.E.2d cer. .” 673, a car was because the brake See Corbitt v. lights were out. the1 could When driver Taylor State, supra. Ag W.2d produce license, the officer asked States, 20, 29, nello v. United 269 U.S. get him to Passengers out 4, 5, S.Ct. 70 L.Ed. were get also asked to the car. out of Cannon, After searching the officer found Lane v. 424 S.W. pistol .38 caliber under the Anoth seat. 2d cert. denied 392 pistol er Il found in the search. The 20 L.Ed.2d the arrest was for a California, linois court cited Chimel su speeding The conviction violation. pra, in upholding the search auto for the pistol of a in the by glove mobile compartment officer after the traffic ar at the time of the ar rest and wrote: rest. This Court held the be rea- search to 1972, according burglary matters, 1. In re to the information seven met death at by Investigation prisoners, ceived Bureau of Federal hands of three were killed through reporting program mentally deranged persons, the uniform crime and one was Rico, United States and Puerto slain in connection with a civil disorder. *8 twenty-four officers were killed. officers 131 One hundred and of one the following thirty-one were killed under circum the hundred and officers were killed through Handguns : stances use of firearms. ninety were Thirty slayings. . . han- “. officers were slain in used .” dling matters, twenty-five (Emphasis supplied) disturbance were mahing twenty stops, Depart- According report hilled while of the Texas traffic attempting Safety, than arrests for crimes other ment of Public four officers were robbery burglary, investigating attempted ten sus- killed in in ar- Texas arrests or eight picious persons, in connection with rests for traffic violations in 1973.
539 present The search the case not was not noting that the search sonable inci- unreasonable.2 a search based on cause but arrest, citing Hardin dent a lawful to The should be affirmed. 60. 387 S.W.2d State, MORRISON, Tex.Cr.R. In Sutton v. 157 Judge (dissenting). 894,895,this S.W.2d this agree the I cannot to reversal conviction, my to but I cannot subscribe appellant “There can no claim Douglas’ reasoning. the other brother On illegally The evidence arrested. align hand, majority’s accept do not the I dispute the search without Court, Superior su ment with is a settled after the arrest. It made pra. neces that a search is not rule warrant one sary in order to search the traf- In this case officer observed 73; p. Tex.Jur., plus under lawful arrest. speeding, other than fic violation State, right making Tones v. 48 Tex.Cr.R. overt act of “a move with L.R.A.,N.S., 1024, seats”, Am. which I W. hand to between the two Having a St.Rep. 455. Ann.Cas. deem sufficient establish right appellant, arrest and search both and the area to search right car. also had a gesture where the furtive had occurred. State, 307, 35 117 Tex.Cr.R. Stokes I dissent. State, Hayes Tex. 644,28 Cr.R. S.W.2d 556.” OPINION IN DENYING DISSENTING present case In the the officer LEAVE FILE STATE’S TO ON for his life but was not fear FOR REHEARING MOTION pistol that there could have been stated DOUGLAS, Judge. Perhaps under the he was box. his life mak-
not fear of because he was majority denies leave to file a mo- ing sure that the not reach could rehearing tion for holds still a weapon when he the car. returned to illegal. majority does the intend to What previous in the do with cited decisions good practice police for officers It dissenting opinion contrary to that are cursory weapons make a search for holding in this case? vicinity Illi- driver as the immediate case, supra. nois held Cannon cases, look In addition those let us at the decision Smoot v. Tex.Cr. summarize, au- of Texas To statutes opin App., in a 475 S.W.2d unanimous the arrest of an offender thorize presently ion this Court as constituted. custody. him into taking traffic laws and speeding. In that case arrest upheld has the search This Court opinion following: In that we find the limited an arrest as a as well has Upon pull being “. directed to search of over, vi- regulation appellant stopped his car and the arrest persons ‘made a the search of their motion to floor.’ He hurried- olators and not ly approached officer was though even ‘seem- excited, recognizes getting the of his life. It also ed nervous.’ After fear license, in the vicini- the officer to search driver’s the officer ty the arrest has been made. went to the driver’s of the car and of where side solely per- opinion as a motorist who been arrested is not to understood This violating mitting a full scale an automobile a traffic search of law. places readily accessible trunk or other *9 rusty floor ‘an old
saw on the board
hunting and a Marlboro box knife articles
cigarettes.’ retrieved these He ciga- marihuana
and found 9 handrolled box.”
rettes the Marlboro
and, and search
“We conclude the arrest legal.”
and seizure were case the officers had Smoot and then search-
defendant outside package cigarette
ed the Marlboro present cigarettes.
found marihuana
case, outside officers Wilson
car; they cigarette looked into a Marlboro cigarettes.
box and found marihuana Does ma- the difference?
What
jority rely upon no cause present box so, was there
case? rely majority case? Does Smoot protection officers ? outside the car—
Smoot case Smoot was present case. was Wilson Does
so majority hold no arrest was made present case? to file the motion re-
Leave State’s
hearing granted. should
should be affirmed. B.
Dedrick BAXTER, Appellant,
W. O. WETZEL, Appellee.
No. 6374. Texas, Appeals Civil
Court of El Paso.
April 10, 1974. Barton, Casebier,
Garland Warren D. Midland, appellant. Beard, Waco, appellee.
Mike