# Sarabia v. State > Court of Criminal Appeals of Texas · June 25, 1969 · 455 S.W.2d 231 URL: https://www.frixlaw.com/law-library/cases/5035941 ## Case - **Full name:** Fernando SARABIA v. The STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 25, 1969 - **Citations:** 455 S.W.2d 231; 1969 Tex. Crim. App. LEXIS 843 - **Precedential status:** Published - **Opinion:** Dissent by Onion - **Judges:** Belcher, Onion, Morrison - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5035941 ## Opinion text ONION, Judge (dissenting). While I join Judge Morrison in dissenting, I feel compelled to explain my reasons for doing so. The sole witness in the case was Officer James Jones who testified that on March 8, 1968, he saw the appellant in the 4500 block of Navigation Boulevard at approximately 2:30 a. m.,; that about fifteen minutes later he observed appellant in the 4700 block of Harrisburg Boulevard going in the opposite direction; that the appellant “more or less looked” at a couple “walking in the street.” Jones related that he (and apparently another officer) followed the appellant down Harrisburg and then north on Milby; that appellant made a “turn back to the right or the direction he just came from”; that at the time appellant was on Milby and the couple was on Eastwood; that appellant then instead of “turning back east” “turned back west on Preston” and “we followed him to the 3500 block where we stopped him.” Officer Jones related that after stopping the appellant and upon opening the door *234 of appellant’s car the first thing he noticed was a butcher knife; that a subsequent search of the car revealed a spent shell and a pistol in the glove compartment. Officer Jones testified that appellant was alone at the time, that both Navigation and Harrisburg Boulevards are well travelled streets though were not being heavily travelled at the time in question; that prior to stopping the appellant he had not observed him violate any law. Further, there is no evidence that the commission of any crime had been reported to the officer. When asked why he was in that particular' area Officer Jones answered: “A. This was the period of time we were having quite a few rape cases and we had been staying in that area a week and a half.” Under these facts and circumstances, I cannot agree that the officer had probable cause to arrest without a warrant. The search incident to that arrest being illegal, the fruits thereof were inadmissible. For these reasons, I must disagree with the majority. Further, I must call attention to the fact that authorities relied upon by the majority are simply not in point. Article 14.03, V.A.C.C.P., provides as follows: “Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws. Amended by Acts 1967, 60th Leg., p. 1735, ch. 659, § 9, eff. Aug. 28, 1967.” Surely it cannot be said that the well travelled public roads here involved were suspicious places or that the circumstances reasonably showed that appellant was guilty of some felony or breach of the peace or had threatened or was about to commit some offense. Jones’ attention was attracted to appellant merely because he was going in the opposite direction that he had been going on a different street fifteen minutes earlier and that as a motorist, he “more or less looked” at a couple “walking in the street.” I find it difficult to believe that it was the intent of the legislature in amending Article 14.03, supra, in 1967, to authorize a search with no more cause than is here shown particularly in view of the constitutional prohibition against unreasonable searches and seizures. Fourth Amendment, United States Constitution; Art. I, Sec. 9, Texas Constitution. This writer was the author of the opinions in Denham v. State, Tex.Cr.App., 428 S.W.2d 814 ; Wimberly v. State, Tex.Cr.App., 434 S.W.2d 857 , and Lewis v. State, Tex.Cr.App., 439 S.W.2d 351 , relied upon by the majority. These cases are clearly distinguishable upon their facts. In addition to an entirely different set of circumstances, Denham and Wimberly also involved valid arrests for traffic offenses. Lewis involved an arrest shortly after the officer had received a robbery report and came upon men fitting the description in the area. Likewise, in Cox the arrest was effected only after the officers who had received a disturbance with a pistol call arrived in the area and found a man fitting the description given attempting to leave. Nor can I conclude that if Officer Jones lacked probable cause for an arrest, his seizure and search of appellant and his automobile might have been justified at the outset if he had reasonable grounds to believe the appellant was armed and dangerous. See Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 . As pointed out in Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 , a police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. “Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search *235 for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, supra, 392 U.S. at p. 64 , 88 S.Ct. at p. 1903 , 20 L.Ed.2d at p. 935 . The testimony of Officer Jones reveals no such facts. Jones did not testify that he feared for his safety or that he suspected the appellant was armed or dangerous. Further, the nature and scope of the search was not that approved in Terry v. Ohio, supra, even if these circumstances had been present. The opinion of the majority seems so fundamentally wrong that I must vigorously dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5035941. Public record. Not legal advice.