# Giacona v. State > Court of Criminal Appeals of Texas · January 9, 1957 · 164 Tex. Crim. 325 URL: https://www.frixlaw.com/law-library/cases/9654189 ## Case - **Full name:** Rosie Giacona v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 9, 1957 - **Citations:** 164 Tex. Crim. 325; 298 S.W.2d 587; 1957 Tex. Crim. App. LEXIS 2103 - **Precedential status:** Published - **Opinion:** Dissent by Woodley - **Judges:** Davidson, Woodley - **Cited by:** 15 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/9654189 ## Opinion text WOODLEY, Judge, dissenting. Upon appellant’s request the jury was retired when the state sought to introduce evidence relating to the search, and, in the absence of the jury, the court heard the testimony of Officer N. Free and concluded that the evidence was admissible. Free testified that he received information about 7:30 P.M. “from a citizen” who stated “that there was a subject on the Snak-N-Pak lot with approximately two cans of marijuana; named this subject as Pete Giacona, gave us the license number and description of the car, the car being a 1951 Blue Ford, License Number MS 4737.” Officer Free was working under cover and not wanting to be revealed at the time, called officers Rogers and Miller and requested them to go to said drive-in at 6600 Main and attempt to arrest the subject. *328 Free and his partner, Officer Tucker, parked their car across the street, and saw Officers Rogers and Miller drive on to the lot. The 1951 Blue Ford was not there at the drive-in, but arrived about 8:20 P.M. and when it did Officer Free advised Rogers and Miller by radio that it was the car that had two cans of marijuana in it. The testimony offered by the state shows that Officer Miller approached the driver’s side of the car and took from Pete Giacona two Prince Albert tobacco cans which he had in his belt and which contained marijuana; that Officer Rogers came to the other side of the car and took from the hand of appellant a paper bag containing marijuana. The trial court correctly held that the search was on probable cause and admitted the testimony relating to the finding of the two cans of marijuana on the person of Pete Giacona as res gestae. The record shows that Officers Free and Tucker had been informed less than an hour before the search that the automobile contained marijuana and they acted upon this information. Free testified that he did not think he would have had time to obtain a warrant. Upon the information received by them the officers, seeing the car which had been described and pointed out to them, had probable cause to believe that there was marijuana in it and that a felony was being committed by the occupants in their presence. There appears to be no question but that the officers accepted and believed the information conveyed to them for they acted upon such information. Not only did the officers have probable cause to search the automobile, but the search was authorized by Sec. 15 of Art. 725b, V.A.P.C. Said article grants to all peace officers who have authority to and are charged with the duty of enforcing the provisions of the Uniform Narcotic Drug Act to enter and examine any vehicle when they have reason to believe and do believe that the vehicle contains a narcotice drug possessed in violation of *329 said Uniform Narcotic Drug Act; also the statute, in said section, authorizes such an officer to open and examine any box, parcel, package or receptacle in possession of any person which they have reason to believe and do believe contains such a narcotic drug. That the occupants of the automobile had possession of marihuana is beyond question; that information to that effect was in the hands of Officer Free and was communicated by him to the officers who made the search and arrest is also established. Under the majority holding these officers, charged with the duty of enforcing the law which makes the possession of a narcotic a felony, were without authority to interfere. To say that they should have secured a search warrant is no answer for, if the information the officers had did not constitute probable cause authorizing a search without warrant, it did not constitute sufficient grounds upon which to obtain the issuance of a search warrant. Also, Officer Free testified that he did not have time to secure a search warrant. I cannot agree that no marihuana was found in the car because appellant had the paper bag in her hand and Pete Giacona had the other marihuana in his belt. The fact that appellant was holding in her hand the paper bag containing a part of the marihuana does not belie the fact that marihuana was in the car. It, on the other hand, is cogent evidence that appellant was not a mere passenger who had no knowledge that there was marihuana in the car. I cannot agree that because the occupants of a vehicle are holding the receptacle containing the narcotic drug in their hands, or on their persons, the narcotic drug is not in the vehicle. Nor can I agree that Art. 725b V.A.P.C. restricts the searching officer to that which is in the vehicle, but not on the person or in manual possession of its occupants. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9654189. Public record. Not legal advice.