recognizing that Article 727a was intended to overrule Welchek
How later courts described this case
- recognizing that Article 727a was intended to overrule Welchek
- state statute [now Article 38.23, supra ] requires the exclusion of evidence obtained in warrantless search without probable cause
Written by the judges who cited it.
The opinion
CONCURRING OPINION.
All the members of this court concur in the conclusions expressed by Chief Justice Taft in the case of Carroll v. United States, 69 L. E. 543, announcing the principles which control officers in searching automobiles in the absence of a search warrant. The difference among the members of the court is whether the facts in the present case bring it within the rule announced.
The facts before us are very short, being included in three pages of typewritten matter. An analysis of them constrains me to concur with Presiding Judge Morrow in holding that the facts known to the officers before they made the search did not furnish “probable cause” to authorize the act.
Officer Glasscock testified that the first time he ever saw appellant was when he and another State Ranger (Ezell) saw appellant traveling west in a Dodge coupe; that they turned and followed him something like a mile; that when they stopped and asked to look in his car he said nothing; that witness was rather in front of the car and Ezell went to the car before he (Glasscock) did, and when he came back Ezell said, “It is loaded;” that they then opened the back end of the car and ascertained that it contained whiskey. There is nothing in the record which in any way indicates upon what Ezell based his statement that the car was “loaded.” The evidence does not show any whiskey was exposed to view; on the contrary it appears from the record that it was in the back end of the car and that the officers could not see it until after they opened the back of the car. Ezell did not testify, therefore we do not have the benefit of the information upon which he based his statément that the car was “loaded.” Officer Glasscock testified he had no warrant for appellant’s arrest and says, “I just saw him and
suspected
he had some whiskey.” If I-understand the facts in the Carroll case they are entirely different from those here presented. The information in possession of the officers at the time they searched Carroll’s car did furnish “probable cause” to believe that he was transporting whiskey. The search was not based on sus
*20
picion alone, but facts were stated which furnished grounds for belief on the officer’s part that accused was violating the law. I feel that it would be of little benefit to again review the facts of the Carrol case.1 They are set out quite at length in the reported opinion and also in the opinions of my brethren. I have been unable to reach the conclusion that they furnish a parallel authorizing search in the instant case.
I therefore concur in the opinion expressed by Presiding Judge ■ Morrow that the facts did not. furnish “probable cause” to authorize the search of accused’s car, and that therefore the evidence obtained as a result thereof was illegally received in evidence under Article 4a of our C. C. P., and Chapter 49, Acts of the Thirty-ninth Legislature, and that the judgment must be reversed.
Hawkins, Judge.