Satterwhite v. State

*97 TEAGUE, Judge,

dissenting.

For those readers unfamiliar with the location of the City of Live Oak, Texas, the official highway travel map of Texas that I have reflects that it is contiguous to the City of San Antonio, and its boundaries lie on both sides of Interstate 35 (east). The well known City of Selma, see December, 1974 and November, 1976 editions of Texas Monthly, is located contiguously to the east of Live Oak.

The record reflects that on March 13, 1979, at 10:17 o’clock p.m., Live Oak Police Officer Mark Jackley was “working radar” on Interstate 35, presumably being on the lookout for “speeders” who might then be driving in excess of the posted speed limit of 55 miles per hour. Given the territory and the terrain, Jackley did not have to wait long to catch a speeder. Jackley clocked the speed of the vehicle that was shown to be driven by the appellant at 82 miles per hour.

Art. 6701d, § 166(a), V.A.C.S., provides that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions, having regard to the actual and potential circumstances, then existing. However, driving a motor vehicle at a rate of speed in excess of the posted speed limit shall only be prima facie evidence that the speed is not reasonable or prudent and thus unlawful.

Section 148 of the statute, however, provides that the offense of speeding shall be the only offense in our traffic laws making mandatory the issuance of a written notice to appear in court; thus, the police may not, for this offense, take into custody the accused if he gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer. Two exceptions, which are not applicable to our facts, are if the speeding vehicle is licensed in a state or country other than Texas or if the speeding vehicle is being driven by a resident of a state or country other than Texas.

Based upon the radar reading, Jackley then pursued the vehicle later shown to be driven by the appellant in order to stop it and presumably to give appellant a speeding ticket, with him then being permitted to proceed on his way.

The appellant, however, did not stop his vehicle and, for reasons not reflected in this record, cut over into the grassy median area separating the north and south lanes of Interstate 35 where he then stopped his vehicle. Between the time when Jackley put on his warning lights, as well as when he was using his spotlight, until the appellant stopped his vehicle, there was much movement inside of the appellant’s vehicle, which was then occupied by the appellant and a female passenger, by both the appellant and his passenger. The appellant then got out of the vehicle he was driving and walked to the rear of his car. Jackley’s vehicle was then parked behind the appellant’s vehicle. After Jackley approached the appellant’s vehicle, he ordered the female passenger to remove herself from the car, which she did. Jackley then “patted down” both appellant and his female passenger “for weapons.” No weapons were found. When asked for a driver’s license, the appellant produced a temporary driver’s license in the name of “Bobby Ted Satterwhite.” The driver’s license apparently did not arouse any suspicion on the part of Jackley. During this time, the female passenger started moving toward the driver’s side of the door, but, after first disputing Jackley’s command to stop, she then complied with his order to return to the rear of the vehicle which she had been riding in. The appellant also commenced getting closer to Jackley, but, upon command, he backed off.

Given the above facts and circumstances, it would appear that a reasonable, prudent police officer would have, when he got the appellant’s vehicle stopped, if not before, called for a police back-up unit, or radioed for possible assistance to other law enforcement agencies, such as the Department of Public Safety, which also patrols *98 this location. However, Jackley did no such thing.

Jackley, instead, notwithstanding the previous suspicious movements of the appellant and his passenger, decided to then search the interior of the vehicle that the appellant had been driving. While Jackley was looking under the car seats, “for weapons,” both the appellant and his passenger started moving closer toward him and Jack-ley twice had to order them to back off to the rear of the car, which they did. Jack-ley, undaunted by the strange actions of the appellant and his passenger, continued searching the inside of the car. He eventually got to the glove compartment and after opening same, presumably with his back to the appellant and his passenger, found therein a pistol, which was later shown to be the murder weapon.

The appellant moved in the trial court to suppress the pistol as evidence, but the trial court overruled the motion.

Given the facts and circumstances of this case, as far as the initial stop, and as far as Jackley was concerned, there was only one violation committed, and that was the offense of speeding.

The majority opinion implicitly, but erroneously, holds that Jackley’s stopping the appellant’s vehicle for speeding then gave him the right to conduct a complete war-rantless search of the vehicle, as an incident to the lawful arrest. Such holding flies in the face of our statutory law. As previously pointed out, if a police officer stops a citizen motorist of this State for speeding and the citizen has a valid Texas driver’s license and is driving a vehicle with Texas plates thereon, without more, the arresting officer is not permitted to do anything more legally than to issue a traffic citation and send the driver on his way. The majority opinion also holds that because the appellant failed to stop, Jackley had the right to make a custodial arrest of the appellant for violating the provisions of Art. 6701d, § 186 and 75, V.A.C.S., fleeing or attempting to elude a police officer and, get this, failure to yield to an emergency vehicle, Jackley’s.

Given the facts and circumstances that went to the issue, I find that this kind of legal thinking and reasoning is preposterous and outlandish. Given a cursory reading of the cases cited by the majority opinion to support its position, they will simply not support its holdings.

The majority opinion does not end its ridiculous legal thinking and reasoning at this point; it plods forward and erroneously holds that Jackley had reasonable grounds to believe that he was in danger of bodily injury, thus giving him the right to conduct a complete search of the interior of the motor vehicle, “solely for his own protection.” The majority opinion concludes: “[T]he officer was justified in believing he was in danger.” Given the facts and circumstances of what occurred after Jackley stopped the appellant’s vehicle, this conclusion is totally erroneous. How any rational human being can conclude under the facts that Jackley had a “fear” that his life might have then been in danger is simply beyond my comprehension. The mere expression of a conclusion by a police officer that he was in fear should never be sufficient to authorize a warrantless arrest or a warrantless search of a person or his motor vehicle. Cf. Frazer v. State, 508 S.W.2d 362 (Tex.Cr.App.1974).

Clearly, Jackley’s warrantless search of the glove compartment and the warrantless seizure of the pistol therefrom were unlawful under the Constitution and statutory laws of this State. To the majority opinion’s contrary holding, I respectfully dissent.

MILLER, J., joins.