# Carey v. State

> Court of Appeals of Texas · May 6, 1993 · 855 S.W.2d 85

URL: https://www.frixlaw.com/law-library/cases/9666943

## Case

- **Full name:** Michael D. CAREY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** May 6, 1993
- **Citations:** 855 S.W.2d 85; 1993 Tex. App. LEXIS 1303; 1993 WL 142026
- **Precedential status:** Published
- **Opinion:** Dissent by Robertson
- **Judges:** Robertson, Cannon, Bowers
- **Cited by:** 7 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/9666943

## How later opinions describe it (automated extraction)

- finding evidence in matchbox

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9666943. Public record. Not legal advice.