# Osban v. State

> Court of Criminal Appeals of Texas · September 17, 1986 · 726 S.W.2d 107

URL: https://www.frixlaw.com/law-library/cases/9645554

## Case

- **Full name:** Rusty Leon OSBAN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 17, 1986
- **Citations:** 726 S.W.2d 107; 1986 Tex. Crim. App. LEXIS 819
- **Precedential status:** Published
- **Opinion:** Concurring in part by Teague
- **Judges:** Tom G. Davis
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Heitman v. State, 1991 Tex. Crim. App. LEXIS 160 (1991).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645554

## How later opinions describe it (automated extraction)

- holding that search incident to arrest valid under federal constitution is equally valid under Texas Constitution

## Opinion text

TEAGUE, Judge,
concurring and dissenting.
Rusty Leon Osban, appellant, was convicted after a jury trial on an indictment that was returned on January 20, 1981, which alleged that he did on or about August 29, 1980, unlawfully appropriate several pistols worth at least $200 but less than $10,000. The pistols were recovered by the arresting officer from the locked trunk of an automobile that appellant had been driving when he was arrested for driving the motor vehicle while his Texas driver’s license had been suspended. The jury also assessed punishment at two years’ confinement in the Department of Corrections and a $3,000 fine.
On appeal, the Dallas Court of Appeals correctly ordered the appellant’s conviction reversed. See Osban v. State, 648 S.W.2d 790 (Tex.App. — Dallas 1983). The court of appeals held that the trial court reversibly erred when it overruled appellant’s motion to suppress the evidence. It relied upon Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1981) (On State’s Motion for Rehearing).
The Dallas Court of Appeals made two correct findings in its decision: (1) It found that there was no probable cause to search the locked trunk of the automobile that appellant had been driving prior to when he was arrested, and (2) it found that “the inventory search of the locked trunk [of the vehicle that appellant had been driving at the time he was arrested] was an unlawful search.”
I will first address the second finding that the court of appeals made.
The facts that were developed at the hearing on appellant’s motion to suppress reflect that after appellant was arrested he told the arresting officer “that there was someone, (his ex-wife), who was at that location, that he could leave the keys with [and] ... who could take custody of that car, (which was then legally parked), at that instant.” The officer refused to release the vehicle to appellant’s ex-wife, “because I didn’t know who the other person was. And it would be just the same as leaving it there unattended, because I didn’t know who she was.”
The officer is clearly mistaken because under our law it is not whether the officer knows the person that the accused requests have custody of his vehicle, but, instead, is whether the accused knows that person and is willing to have his vehicle released to that person.
An arrestee’s automobile may be impounded by the police if he has been removed from it and placed under custodial arrest and no other alternative is available to insure the protection of the vehicle. Smyth v. State, 634 S.W.2d 721 (Tex.Cr.App.1983); Benavides v. State, 600 S.W.2d 42 (Tex.Cr.App.1980). In Benavides v. State, 600 S.W.2d 42 (Tex.Cr.App.1980), this Court held that if other alternatives are available the police may not impound a motor vehicle that had been driven by the accused prior to when he was arrested by the police. In Stephen v. State, 677 S.W.2d 42, 44 (Tex.Cr.App.1984), fn. 1, this Court also stated the following: “Clearly, in the instant case, if appellant’s companion had had a valid driver’s license and it was appellant’s desire to leave his car with his companion, the officers should have respected his wishes. See Daniels v. State, 600 S.W.2d 813, 815 (Tex.Cr.App.1980).”
In this instance, the evidence is clear that the officer did not consider the alternative of releasing appellant’s vehicle to his, appellant’s, ex-wife. The arresting officer’s testimony also makes it clear that under no circumstances was he going to release appellant’s vehicle to appellant’s ex-wife.
*113 The majority errs in holding that the impoundment of the appellant’s vehicle was lawful.
I will next address the first finding that the court of appeals made, namely, that there was no probable cause to search the locked trunk of the automobile that appellant had been driving prior to his arrest.
First, I point out that it is difficult to put a handle on just what the majority opinion holds regarding whether there was probable cause to conduct a warrantless search of the locked trunk of the vehicle.
Is the majority holding that because the officer had probable cause to search the passenger compartment of the vehicle that this gave him probable cause to search the locked trunk of that vehicle? Is the majority holding that because the arresting officer saw in plain view a black molly in the ashtray of the vehicle, and also found inside of the ashtray two more black mollies, and also found over $3,000 that was over the sunvisor of the vehicle, that this gave him probable cause to believe that contraband was in the locked trunk of the vehicle? Is “suggesting” something now the equivalent of probable cause to search? Is an inarticulate hunch, suspicion, or good faith of the arresting officer now sufficient to constitute probable cause for a warrant-less search of a locked trunk of an automobile? Is the majority holding that if the police have probable cause to search the interior of a motor vehicle that this is probable cause to search every nook and cranny of that vehicle? Is the majority holding that if the police have lawfully arrested someone and they unlawfully impound the arrestee’s vehicle, but have probable cause to search the interior compartment of that vehicle, that this will warrant the police to disassemble the motor vehicle, from bumper to bumper?
A careful reading of the majority opinion makes it clear to me that only its author knows what the real and actual holding of the opinion is, and he apparently is not going to disclose in bold print that holding to anyone. And yet, his opinion gets the vote!!!
The arresting officer’s testimony clearly reflects that prior to the time he opened the locked trunk of the vehicle that appellant had been driving prior to when he was arrested he had no reason to believe, much less suspect, that the locked trunk of the vehicle might contain something that could be considered unlawful.
Because a locked trunk of an automobile is probably one of the most secure places one might find, the “expectation of privacy in a locked trunk can be outweighed or overcome only by the showing of probable cause that, for example, the trunk contains a dangerous instrumentality, such as a gun or a bomb,” or there is probable cause “to believe ... contraband, or fruits of a crime are contained therein, and exigent circumstances exist to preclude the need to obtain a warrant.” Gill v. State, supra, at 319-320. Both causes are non-existent here.
It should not be questioned by anyone that “the expression, ‘inventory search,’ is not a talisman in whose presence the Fourth Amendment or Art. I, See. 9, of the Texas Constitution fades away and disappears.” Gill v. State, supra, at 319. This Court also stated in Gill v. State, supra, in which not a single dissenting vote was cast, the following: “Absent a showing of probable cause and exigent circumstances, a warrantless search of a locked automobile is per se illegal.” (319).
If the majority is implicitly holding that the finding of three black mollies and money in the interior of the vehicle that appellant had been driving prior to when he was arrested gave the arresting officer probable cause to search the locked trunk of the automobile, then it displays a poor understanding of the meaning of the legal concept of “probable cause.”
I believe that in the context of a warrant-less search conducted of a locked automobile trunk the legal term “probable cause” means that the searching officer has a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the trunk contains unlawful contraband, and exigent circumstances exist to dispense with obtaining a warrant. Brown *114 v. State, 657 S.W.2d 797, 801 (Tex.Cr.App.1983); Landa v. Obert, 45 Tex. 539 (1876); Munns v. Dupont de Nemours, 3 Wash.C.C. 31, 4 Hall Law J. 102, 1 Am.Lead.Cas., 17 Fed.Ca.993 (Case No. 9,926, Cir.Ct., D.Pa., May, 1811).
Even common sense should tell a rational person that the mere finding of three black mollies and a large sum of money inside the interior of an automobile would not, without more, give that person probable cause to believe that there is something unlawful inside of the locked trunk of that automobile. And yet, the majority opinion, in holding to the contrary, flies in the face of common sense.
I also find that the majority misreads what the Supreme Court stated and held in United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982). The Supreme Court did not hold in that case that if the police have probable cause to search the interior of a motor vehicle that this constitutes probable cause to search the locked trunk of that vehicle. The Court simply held that if police officers who have legitimately stopped an automobile have probable cause to believe that contraband is in the trunk of the automobile they may search the trunk under those circumstances. “The scope of a warrant-less search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” [My Emphasis]. 456 U.S., at 824 , 102 S.Ct., at 2172 . Cf. Esco v. State, 668 S.W.2d 358 (Tex.Cr.App.1982).
The majority of this Court, without any basis for its statement, states the following: “Here, not only contraband, but a large amount of cash was discovered, suggesting that the driver of the car might be involved in the sale of controlled substances and might possess larger quantities of such substances in the trunk.” [My Emphasis]. Is “suggesting” something now to be the equivalent of the legal term “probable cause?” How the finding of 3 black mollies and a large amount of cash in the interior of an automobile, without more, can constitute probable cause that the appellant had been earlier selling or was going to later sell black mollies escapes me for the moment. Such a statement by the majority makes about as much sense as saying that because there is probable cause to believe that all persons sitting in the interior of a lawfully stopped motor vehicle are illegal aliens that this constitutes probable cause that more illegal aliens are inside of the locked trunk of the vehicle. Cf., however, United States v. White, 766 F.2d 1328 (9th Cir.1985), 37 Cr.L. 2360, which held that an arresting border patrol officer, based upon what he observed from the outside of the vehicle, had “reasonable suspicion” to believe that illegal aliens were in the trunk of an automobile. This decision of the Ninth Circuit should be considered in light of the many reversals it has recently sustained by the Supreme Court. Because of these reversals, the present Ninth Circuit Court of Appeals appears to have gotten whatever message the Supreme Court was sending to it by way of the reversals. See The National Law Journal, Monday, August 19, 1985, and Monday, August 11, 1986.
Under the facts and circumstances of this case, the arresting officer had the right to search the locked trunk of appellant’s vehicle only if he had probable cause to believe that something unlawful was then contained inside the trunk and exigent circumstances existed to dispense with obtaining a warrant. United States v. Ross, supra. Thus, the scope of the search of appellant’s motor vehicle was limited only by the nature of the article for which probable cause exists. In this instance, the officer did not have probable cause to search the locked trunk of appellant’s automobile for anything, nor did the State establish exigent circumstances. Also see United States v. Wilson, 636 F.2d 1161 (8th Cir.1980); Mozzetti v. Superior Court, 4 Cal.3d 699 , 94 Cal.Rptr. 412 , 484 P.2d 84 (1971); State v. Boster, 217 Kan. 618 , 539 P.2d 294 (1975); State v. Sawyer, 174 Mont. 512 , 571 P.2d 1131 (1977); State v. Goff, 272 S.E.2d 457 (W.Va.1980). In making the warrantless search of the locked *115 trunk of appellant’s vehicle, the arresting officer acted unlawfully. The majority errs in upholding the search of the locked trunk. I dissent.
Notwithstanding its inability to understand the legal concept of probable cause to make a warrantless search of a locked automobile trunk, the majority does correctly hold that the Dallas Court of Appeals, in deciding the merits of appellant’s challenge to the sufficiency of the evidence, erroneously failed to consider all of the evidence, both admissible and inadmissible evidence. Therefore, I concur to that part of its opinion.
For all of the above reasons, I respectfully concur and dissent to the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645554. Public record. Not legal advice.