rejecting the application of the plain view doctrine and 3 suppressing the pills found in an unlabeled brown prescription pill bottle because “[i]t was not immediately apparent to [the officer] that the bottle contained a controlled substance”
How later courts described this case
- rejecting the application of the plain view doctrine and 3 suppressing the pills found in an unlabeled brown prescription pill bottle because “[i]t was not immediately apparent to [the officer] that the bottle contained a controlled substance”
- holding that a defendant who borrowed a car had “standing” to complain about the admission of evidence obtained in a war-rantless search of the vehicle
- finding sufficient probable cause to authorize the initial stop given the failure to give a proper turn signal
- officer unlawfully seizes controlled substance from unlabeled prescription bottle
Written by the judges who cited it.
The opinion
DOUGLAS, Judge,
dissenting.
The majority of this Court reverses this case because it was not immediately apparent to the policeman who arrested Howard that the seized substance was contraband. The judgment should be affirmed.
Howard was seen by the police driving down a street in Houston. He made a left-hand turn without using the proper signal. The police turned on their warning lights and stopped him. As Howard was pulling over, one of the police officers testified that he saw Howard “dip down in his seat toward the steering wheel.” After Howard stopped, the police officers got out of their car and approached this vehicle. As they did, Howard also got out of his car. Officer R. W. Holland then testified to the following sequence of events:
“As he stepped out of the vehicle, I shone my flashlight into the vehicle and observed a brown plastic medicine jar containing a large amount of tablets on the floorboard right in front of the driver’s seat.”
The majority states that at that point it “was not immediately apparent to Holland that the bottle contained a controlled substance.”
The majority misses the point concerning evidence seized in plain view. In Holman v. State, 474 S.W.2d 247 (Tex.Cr.App.1971), the policeman saw the defendant pull off an interstate highway in a weaving and swerving manner, enter the driveway of a service station, get out of his pickup truck leaving the door open and stagger toward a telephone booth. The officer pulled up in the service station and approached the defendant to determine if there was anything wrong. He then turned around to return to his patrol car and, as he did so, he saw in plain view, through the defendant’s open door, large bottles with pills in them. The observation was made from a distance of some fifty-five feet. We held that that was sufficient evidence of a criminal violation to justify an arrest and subsequent search.
It need not have been immediately apparent to Officer Holland that the pills in the translucent bottle were a controlled substance; it need only be apparent that Howard was committing a criminal act. Article 4476-14, V.A.C.S. (Dangerous Drugs Act) sets forth the following criminal violation:
*607 “The following acts, the failure to act as hereinafter set forth, and the causing of any such act or failure are hereby declared unlawful, except as provided in Section 4:
“(a) The delivery or offer of delivery of any dangerous drug unless:
“(1) Such dangerous drug is delivered or offered to be delivered by a pharmacist, upon an original prescription, and there is affixed to the immediate container in which such drug is delivered or offered to be delivered a label bearing the name and address of the owner of the establishment from which such drug was delivered or offered to be delivered; the date on which the prescription for such drug was filled; the number of such prescription as filed in the prescription files of the pharmacist who filled such prescription; the name of the practitioner who prescribed such drug; the name of the patient, and if such drug was prescribed for an animal, a statement showing the species of the animal; and the directions for use of the drug as contained in the prescription; or
“(2) Such dangerous drug is delivered or offered to be delivered by a practitioner in the course of his practice and the immediate container in which such drug is delivered or offered to be delivered bears a label on which appears the directions for use of such drug, the name and address of such practitioner, the name of the patient, and if such drug is prescribed for an animal, a statement showing the species of the animal.
it * * *
“(d) The possession of a dangerous drug by any person unless such person obtained the drug under the specific provision of Section 3(a)(1) and (2) of this Act.” (Emphasis added)
The possession of the unlabeled medicine jar by appellant gave rise to an apparent violation of the Dangerous Drugs Act.
The distinction between labeled and unlabeled bottles is clear in light of Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976). There the Court held that the viewing of a prescription bottle with an attached label did not authorize an arrest and subsequent search under the plain view theory. In Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App.1973), however, the plain view doctrine did justify a search where the defendant, after being stopped for a traffic violation, got out of his car and a brown pill bottle fell out of the car onto the pavement. The police officer picked up the bottle and noticed that it contained three capsules containing what later was determined to be heroin. This was held to be a justifiable plain view seizure.
To hold, as does the majority, that a police officer must be able to immediately and precisely determine the exact nature of a criminal offense upon first glance before the plain view doctrine will be applicable is to put an unnecessary and constitutionally unjustifiable restriction upon legitimate police investigations.
The State’s motion for rehearing should be granted and the judgment should be affirmed.
W. C. DAVIS, J., joins in this dissent.