“The question as to whether marihuana is a narcotic drug is one of law and not of fact.”
How later courts described this case
- “The question as to whether marihuana is a narcotic drug is one of law and not of fact.”
Written by the judges who cited it.
The opinion
CONCURRING OPINION ON STATE’S MOTION FOR REHEARING
PHILLIPS, Judge.
The majority denies the state’s motion for leave to file a motion for rehearing without written opinion. The writer was not a member of this Court when the original opinion was handed down. Therefore the following remarks concern my views on the issues raised.
The burden of proof is on the State to establish valid legal grounds for any involuntary detention of one’s person. Terry v. Ohio, 396 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 ; Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 ; Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.). To legally justify a stop under Sec. 13 of Art. 6687b, V.A.C.S., the burden is on the State to prove that the actual purpose of the stop is to determine whether the operator has a driver’s license. The State clearly failed to satisfy said burden. This being so, unless the proof factually shows suspicious circumstances or conduct to have been brought to the attention of the officer, visually or through report, which would reasonably motivate a diligent officer to stop appellant to procure information or an explanation, said stopping of appellant was an unlawful violation of his Fourth and Fourteenth Amendment rights and the evidence procured as a direct result of said unlawful stop must be excluded under the doctrine of Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 .
If classified according to a numerical scale of probative evidence of suspicious conduct or circumstances, the fact that an automobile operated on a public street bears an out of county license plate would rate zero. The fact that an operator of a motor vehicle is operating same twenty miles per hour within a city would rate zero. The officer’s conclusion that appellant seemed to be conscious of the officer’s presence and cautious by reason thereof, even if deemed factual, would rate another zero. Obviously, the total of the State’s evidence of suspicious conduct and circumstances is zero.
The doctrine of “Temporary Investigative Detention” must not be permitted by this Court to be used as a pretext or factually unjustified restriction on the individual’s freedom of movement. Such doctrine should be inelastically held by this Court to require the existence of factually suspicious circumstances or conduct as an absolute prerequisite to the right of an officer to do so.