Opinion

Carey v. State

  • 855 S.W.2d 85
  • 1993 Tex. App. LEXIS 1303
  • 1993 WL 142026
Court
Court of Appeals of Texas
Filed
May 6, 1993
Status
Published
Author
Robertson
On the bench
Robertson, Cannon, Bowers
Cited by
7 cases
Authority
More cited than 7.9%

finding evidence in matchbox

How later courts described this case

  • finding evidence in matchbox

Written by the judges who cited it.

The opinion

ROBERTSON, Justice,

dissenting.

The majority concludes that the investigative detention of appellant was justified and that the pat down search of appellant was justified. I agree. However, by some strained construction of the law and the facts, the majority concludes that the arresting officer was not justified in opening a’ matchbox which fell from appellant’s waistband to the ground during this admittedly lawful detention and pat down search. To this latter conclusion I dissent.

The record is clear that the matchbox was not obtained as a result of any search• the first time the officer saw the matchbox was when it hit the ground. While the facts of this case are not the same as in the classic abandonment cases, the same rule applies. In those cases there is no search — only the recovery of abandoned property. Washington v. State, 810 S.W.2d 313, 314 (Tex.App.—Houston [14th Dist.] 191, pet. ref’d) (see also cases cited therein). In this case there was no search — only the recovery of the property after it dropped to the ground.

As a postscript, it should be added that there is no evidence that the matchbox fell from appellant’s waist band other than by accident while the officer was conducting the pat down search. The rule that abandonment of contraband must be voluntary and not as a result of police misconduct, Hall v. State, 783 S.W.2d 14 (Tex.App.—Houston [14th Dist.] 1989, pet. ref’d), has no bearing upon the disposition of this case.

The judgment should be affirmed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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