Duncan v. State

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction holding that the evidence obtained was the result of an unreasonable search and seizure. The evidence shows that the officer had a right to stop appellant.

On the night of November 13, 1974, at approximately 10:00 p. m., Officer William Purcell of the Freeport Police Department and Officer Broadus began checking bars in the 200 block of South A Street in Freeport. Their attention was drawn to appellant as he entered the Cozy Lounge. The officers went inside and asked him for identification. Appellant and the two officers walked outside where he showed them a valid Texas driver’s license. Appellant told the officers that he lived in Alvin and was picking up some beer for friends he was visiting in Freeport. Purcell testified that appellant never was under arrest and was free to leave at any time. He stated that while appellant appeared nervous during their conversation he had no reason to suspect him of any wrongdoing in that his explanation of his presence there sounded reasonable. Appellant then got in his car which was parked just down from Purcell’s patrol car. He backed out of the parking area across another lane of traffic and then used excessive acceleration in taking off, “his tires were spinning and throwing gravel.” The officer testified that he got in his patrol ear so that he could stop appellant and issue him a warning for improper backing and excessive acceleration. Purcell testified that appellant was in violation of the city ordinance relating to backing of a vehicle. He stated that he did not intend to give appellant a ticket but only a warning and that he was also curious to find out why appellant was driving a vehicle with Tennessee license plates. Purcell stopped appellant within a few blocks. When he got out of his patrol car, appellant got out of his car and approached him. He saw appellant putting something in his back pocket. When he got closer to him he noticed that the object in appellant’s back pocket was a plastic bag. While he could not see the contents of the plastic bag, the light of nearby street lights and businesses enabled him to see that the object was a plastic bag. Purcell stated that simultaneous with asking appellant about the bag he grabbed the bag and pulled it from appellant’s pocket. Appellant pushed Purcell and ran. Purcell gave chase down an alley and saw him throw down another bag. Finally he caught appellant by the hair and wrestled him to the ground and handcuffed him. As Purcell reached down to pick up the second bag, appellant started kicking at it in an attempt to scatter the contents. Purcell said that the bag contained a green leafy substance which he believed to be marihuana. The first bag contained the same substance as well as a piece of folded tinfoil which contained a brown powder. He then arrested appellant for possession of a controlled substance.

Article 14.01, Section b, V.A.C.C.P., provides that an officer may arrest for any offense committed in his presence. At the hearing on appellant’s motion for new trial, appellant introduced a copy of the section of the Freeport Code of Ordinances dealing with traffic. Section 36-166 of that Code states:

“No vehicle shall be driven backward unless such movement can be made with *734 reasonable safety and without interfering with other traffic.”

Purcell testified that appellant had violated the ordinance and that his manner of backing was a threat to the safety of pedestrians walking in and out between parked cars in that area. It is of no consequence that he only intended to give appellant a warning rather than a citation. Officer Purcell had the right to stop the vehicle. See Benny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971); Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Article 670ld, Section 153, V.A.C.S.

Since the officer had a right to stop appellant pursuant to the traffic violation the seizure of objects in plain view was proper. Holman v. State, 474 S.W.2d 247 (Tex.Cr.App.1971); Musgrove v. Eyman, 435 F.2d 1235 (9th Cir.1971). The situation here is like that found in Lewis v. State, supra. Here, as in Lewis , there are no fruits of a traffic offense. Here, as in Lewis , there is more than a mere arrest for a traffic offense. In Lewis , the defendant’s companions were observed making movements as if to place something under the seat. After three blocks of pursuit one of Lewis’ companions left the car in an apparent attempt to keep officers from getting near the front seat. One of the officers shined a flashlight into the car and observed a brown sack extending out from under the front seat. The search of the vehicle at the time was limited to an examination of the sack which was found to contain marihuana. Similarly, in the instant case appellant was observed putting something in his pocket as he approached Officer Purcell and when he was in the light the officer saw that it was a plastic baggie. When he attempted to obtain the baggie and question appellant about it, appellant fled. The finding of the contraband incident to the stop for the traffic violation is lawful under the facts of this case. The facts are sufficient to give the officer probable cause to further investigate as plastic baggies are commonly used to carry narcotics.

The judgment should be affirmed.