# Morgan v. State

> Court of Appeals of Texas · October 19, 1995 · 906 S.W.2d 620

URL: https://www.frixlaw.com/law-library/cases/9671857

## Case

- **Full name:** Jim Dwain MORGAN and William Albert Martin, Appellants, v. the STATE of Texas, State
- **Court:** Court of Appeals of Texas
- **Decided:** October 19, 1995
- **Citations:** 906 S.W.2d 620; 1995 WL 515837
- **Precedential status:** Published
- **Opinion:** Dissent by Lattimore
- **Judges:** Richards, Lattimore, Dauphinot
- **Cited by:** 8 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/9671857

## Opinion text

LATTIMORE, Justice,
dissenting.
Jim Dwain Morgan and William Albert Martin (collectively “appellants”) were eon- *627 victed by a jury of the offense of possession of marihuana of under two ounces. 1 The jury assessed punishment for Jim Dwain Morgan at 120 days’ confinement in the Parker County Jail and a fine of $1,500.00; and for William Albert Martin at twenty-one days’ confinement in the Parker County Jail and a $500.00 fine. On appeal, appellants raise three points of error contending that: (1) the trial court erred in not suppressing evidence and allowing its admission at trial; (2) the trial court submitted an improper jury instruction; and (3) the jury selection did not comply with the Texas Government Code.
On February 21,1992, Department of Public Safety Trooper Pettigrew and Sergeant Cooper were on patrol on Interstate Highway 20 in Parker County, when they observed in the opposing lanes of traffic a pickup truck traveling fifty-three miles per hour in a sixty-five mile per hour zone. The officers turned around, followed the vehicle for five miles, and observed the driver “weave,” twice wandering from his lane of travel. When the officers stopped the pickup, the driver, William Albert Martin, met Trooper Pettigrew at the rear of the vehicle. Trooper Pettigrew detected an odor of alcohol and burnt marihuana on Martin, and thus administered field sobriety tests. Meanwhile, Sergeant Cooper, without communicating with Trooper Pettigrew, attempted to cheek the vehicle identification number (“VIN”) on the dashboard of the pickup by looking through the windshield. The VIN was partially concealed by a cloth dash cover because the opening in the cover designed to expose the VIN was not aligned properly with the VIN plate. Without first obtaining permission or otherwise requesting that the dashboard VIN be exposed for inspection, Officer Cooper opened the driver’s-side door to check the VIN on the doorjamb. Upon opening the door, Sergeant Cooper likewise detected the smell of marihuana. Jim Dwain Morgan was sitting in the passenger seat of the pickup with his hand on a rolled-up newspaper by his side. Sergeant Cooper observed a plastic bag containing a green leafy substance protruding from within the newspaper. When Sergeant Cooper asked who owned the vehicle, Morgan responded that he did. Sergeant Cooper testified that he then requested and received oral consent to search the vehicle. A plastic bag recovered in the search contained cigarette papers, lighters, and a green leafy substance later identified as marihuana. Both Martin and Morgan were subsequently arrested for possession of marihuana.
The trials of both Morgan and Martin were consolidated. Prior to trial, the trial court denied appellants’ motion to suppress evidence found during the search. The eases were tried to a jury and both Morgan and Martin were found guilty. At the punishment phase of the trial, the State introduced two prior convictions against Morgan — one for driving while intoxicated and another for possession of marihuana. No prior convictions were introduced against Martin.
In their first point of error, appellants contend that because there was no probable cause to justify the search of the pickup, the trial court erred in denying their motion to suppress evidence found during that search and allowing its admission at trial. To adequately address this point, it must first be determined whether opening the driver’s-side door to inspect the VIN on the doorjamb was a search under the Fourth Amendment of the United States Constitution and, if so, whether that search was unreasonable. If opening the door was reasonable, it must then be determined whether the act of searching the interior of the vehicle, once Sergeant Cooper smelled marihuana after opening the door, was constitutionally permissible under the Fourth Amendment. Finally, if these acts were permissible under the federal constitution, it must be determined whether the search and seizure provisions found in article I, section 9 of the Texas Constitution afford appellants greater protection than the federal counterpart. Because of its potentially controlling scope, the federal constitutional claim will be analyzed first.
*628 The State’s intrusion into a particular area cannot result in a Fourth Amendment violation unless the area is one in which there is a constitutionally protected, reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 360 , 88 S.Ct. 507, 516 , 19 L.Ed.2d 576, 587 (1967) (Harlan, J., concurring). The use and physical characteristics of automobiles result in a lessened expectation of privacy, as compared to homes. Cardwell v. Lewis, 417 U.S. 583, 590 , 94 S.Ct. 2464, 2469 , 41 L.Ed.2d 325, 335 (1974). This is not to say that a citizen surrenders all of his Fourth Amendment protections upon entering an automobile. See Delaware v. Prouse, 440 U.S. 648, 663 , 99 S.Ct. 1391, 1401 , 59 L.Ed.2d 660, 673 (1979). Nevertheless, automobiles are subject to pervasive regulation, and every operator of a motor vehicle must expect some intrusion into his privacy when the State moves to enforce those regulations. South Dakota v. Opperman, 428 U.S. 364, 368 , 96 S.Ct. 3092, 3096 , 49 L.Ed.2d 1000, 1004 (1976).
In New York v. Class, 475 U.S. 106 , 106 S.Ct. 960 , 89 L.Ed.2d 81 (1986), the United States Supreme Court addressed the question of whether the inspection of the dashboard and doorjamb VIN locations was a reasonable search under the Fourth Amendment. In Class , police officers stopped a vehicle for speeding and for having a cracked windshield. One officer then began to interview the driver, Class, who had exited the car. Class gave the officer his vehicle registration certificate and proof of insurance, but stated he had no driver’s license. Meanwhile, the other officer went directly to the car to get the VIN. That officer first opened the door to get the number from the doorjamb location (the only location for the VIN in pre-1969 cars), and not finding the number there, reached inside the car to remove papers from the dashboard to expose the VIN in that location. While doing so, the officer noticed a gun protruding from beneath the seat of the car. Consequently, Class was arrested for possession of the gun. The trial court denied a pre-trial motion to suppress the gun as evidence, but the New York Court of Appeals reversed, holding that in the absence of any justification for the search of Class’s car, the search was prohibited. Id.
The Supreme Court reversed the New York Court of Appeals, holding that in these circumstances, the police officer’s action did not violate the Fourth Amendment because the search was reasonable. In discussing the dashboard VIN location, the Court stated that:
[t]he VIN’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment. The exterior of the car, of course, is thrust into the public eye, and thus to examine it does not constitute a “search.” ... [Bjecause of the important role played by the VIN in the pervasive government regulation of the automobile and the efforts by the Federal Government to ensure that the VIN is placed in plain view, we hold that there was no reasonable expectation of privacy in the VIN.
Class, 475 U.S. at 114 , 106 S.Ct. at 966 , 89 L.Ed.2d at 90 . The Supreme Court further held that the intrusion into the interior of the vehicle to remove the papers from the dash was a Fourth Amendment search. Id. Turning its attention to the reasonableness of the search, the Court noted that Class left the car in order to meet the officers, and “[i]f respondent had stayed in his vehicle and acceded to such a request from the officer [to remove the papers obscuring the dashboard VIN], the officer would not have needed to intrude into the passenger compartment.” Id. at 115 , 106 S.Ct. at 966 , 89 L.Ed.2d at 91 . As further justification for the search, the Court stated that “[i]n light of the danger to the officers’ safety that would have been presented by returning respondent immediately to his car [because of the gun under the seat], we think the search to obtain the VIN was not prohibited by the Fourth Amendment.” Id. at 116 , 106 S.Ct. at 967 , 89 L.Ed.2d at 92 . The Court also recognized that:
[t]he VIN, which was the clear initial objective of the officer, is by law present in one of two locations — either inside the doorjamb, or atop the dashboard and thus ordinarily in plain view of someone outside the automobile. Neither of those locations *629 is subject to a reasonable expectation of privacy. The officer here checked both those locations, and only those two locations.... He did not even intrude into the interior at all until after he had checked the doorjamb for the VIN.
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We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside the automobile. If the VIN is in plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.
Id. at 118-19 , 106 S.Ct. at 968-69 , 89 L.Ed.2d at 93-94 (emphasis added).
In the instant case, Sergeant Cooper first attempted to read the dashboard-mounted VIN. This act, by itself, was not a search because there was no privacy interest in that location due to its visibility from the exterior of the vehicle. However, because the VIN was partially obscured, the officer then opened the driver’s-side door to read the VIN from the secondary doorjamb location. Sergeant Cooper did not first ask the driver, nor the passenger (the owner) of the vehicle (who remained in the truck in plain view) to move the obstruction. According to Sergeant Cooper, the doorjamb VIN location was the sole object of this initial intrusion. These facts are distinguishable from the facts in Class . The presence of a passenger in the vehicle, who could have moved the dash cover if asked, and the lack of any safety concern are factors critical to a determination of this case. Accordingly, Sergeant Cooper’s action of opening the vehicle door to read the door jamb VIN location, after first unsuccessfully trying to read the dashboard VIN location, was a search within the meaning of the Fourth Amendment.
The evidence that appellants seek to suppress was a bag of marihuana partially concealed on the seat of the truck. Sergeant Cooper first became aware of the possible presence of marihuana when he opened the truck door, smelled the odor of burning marihuana, and saw a plastic bag possibly containing that drug. Sergeant Cooper then searched the truck and confiscated the marihuana. There is no question that this act is a search within the meaning of the Fourth Amendment. However, the Fourth Amendment by its terms only prohibits “unreasonable” searches. Reasonableness is determined by balancing the need for the search against the invasion which the search entails. Camara v. Municipal Court, 387 U.S. 523, 535-36 , 87 S.Ct. 1727, 1734-35 , 18 L.Ed.2d 930, 939 (1967). In justifying a particular intrusion, the police must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, justifiably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868, 1879-80 , 20 L.Ed.2d 889, 906 (1968). Generally, this balancing indicates that searches must be conducted pursuant to a warrant based on probable cause. United States v. Ventresca, 380 U.S. 102, 105-09 , 85 S.Ct. 741, 744-46 , 13 L.Ed.2d 684, 686-89 (1965). However, where the object of the search is a weapon, the weighty interest of police safety justifies warrantless searches based only on a reasonable suspicion of criminal activity, despite their substantial intrusiveness. Terry, 392 U.S. at 24-25 , 88 S.Ct. at 1881-82 , 20 L.Ed.2d at 907-08 . When police safety is less directly served by the search, more than objectively justifiable suspicion is necessary to make the intrusion legal. Class, 475 U.S. at 117 , 106 S.Ct. at 967 , 89 L.Ed.2d at 92 ; Pennsylvania v. Mimms, 434 U.S. 106, 107 , 98 S.Ct. 330, 331 , 54 L.Ed.2d 331, 334-35 (1977) (per curiam).
A warrantless search and seizure can be justified under four exceptions: the plain view doctrine, consent, the emergency doctrine, and the automobile exception. U.S. v. Armendariz-Mata, 949 F.2d 151, 153-54 (5th Cir.1991), cert. denied, 504 U.S. 945 , 112 S.Ct. 2288 , 119 L.Ed.2d 212 (1992); Stewart v. State, 681 S.W.2d 774, 777 (Tex.App.—Houston [14th Dist.] 1984, pet. ref'd) (op. on reh’g). A search warrant is unnecessary where there is probable cause to search an automobile stopped on highway; a vehicle is mobile, occupants are alerted, and the ear’s contents may never be found again if a warrant must be obtained. Chambers v. Maroney, 399 U.S. 42, 51 , 90 S.Ct. 1975, 1981 , 26 L.Ed.2d 419, 428 (1970); Cantu v. State, 754 *630 S.W.2d 512, 514 (Tex.App.-San Antonio 1988, no pet.). Permissible searches under the automobile exception must be based both upon probable cause to believe that a crime has been committed, and probable cause to believe that contraband or other evidence that the government could properly seize is contained in the vehicle. U.S. v. Hernandez, 901 F.2d 1217, 1220 (5th Cir.1990). Distinctive odors, detected by those qualified to know them, may alone establish probable cause for a search. U.S. v. McKeever, 906 F.2d 129, 132 (5th Cir.1990), cert. denied sub nom. Newman v. U.S., 498 U.S. 1070 , 111 S.Ct. 790 , 112 L.Ed.2d 852 (1991).
Here, Sergeant Cooper first attempted to read the VIN through the windshield from outside the car. Because part of the VIN was covered by the dashboard cover, Sergeant Cooper then resorted to the second VIN location, on the driver’s door frame. When he opened the door, the smell of marihuana immediately became apparent. At this point, Sergeant Cooper for the first time had probable cause to believe that the offense of possession of marihuana had been committed, and that the contraband could be contained in the vehicle. The United States Supreme Court in Class held that an officer was justified in opening a vehicle door to obtain a VIN when the dashboard VIN was obscured and the driver was not in the car. Class, 475 U.S. at 115 , 106 S.Ct. at 966 , 89 L.Ed.2d at 91 .
The Supreme Court concluded that the officer in Class “did not even intrude into the interior at all until after he had checked the doorjamb for the VIN.” Class, 475 U.S. at 118-19 , 106 S.Ct. at 968 , 89 L.Ed.2d at 98 . Here the location of the VIN on the doorjamb of the vehicle driven by one of the appellants is located so that it cannot be read by the officer or anyone else unless at least their head is inside the car and the door is open wide enough to admit a portion of the upper body of the viewer. It is not physically possible to check to see if the VIN placard is in place on the doorjamb and not intrude physically into the vehicle. It is not possible to do so without opening the car door to a substantial degree. Significantly, the numerals and letters of a VIN on the forward side of the doorjamb can not be read unless the head of the reader is inside the door opening. It is almost ludicrous to expect the officer to not place a portion of his upper body along with his head in the open doorway while reading the VIN plate. In addition, in the case at hand the passenger in the front seat remained in the car and was available to remove any impediment to a view of the dashboard mounted VIN if so requested. No such request was made of him. This alone is enough to distinguish this case from the fact situation related by the Supreme Court in Class .
In Class , if the Supreme Court majority opinion had not concluded, “If the VIN is in plain view of someone outside the vehicle there is no justification for governmental intrusion into the passenger compartment to see it,” one would conclude from the majority opinion that the VIN number, wherever located, is subject to intrusive police view, regardless of the circumstances. Class, 475 U.S. at 119 , 106 S.Ct. at 968 , 89 L.Ed.2d at 93-94 .
At least we know that the interior of a ear has Federal Constitutional protection against unreasonable searches.
Whether, hypothetically, if the automobile operator allows the dash mounted VIN to be obscured he has lost all U.S. Constitutional protection remains to be seen.
Appellants also assert that Sergeant Cooper’s actions constituted an unreasonable search under article I, section 9 of the Texas Constitution. Most of the Texas cases addressing search and seizure law have reached their holdings based on federal constitutional grounds. Even where Texas courts have addressed Texas constitutional guarantees related to search and seizure, those courts have found the Texas and federal provisions co-extensive. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). However, the court of criminal appeals has held that article I, section 9 of the Texas Constitution is not necessarily coterminous with the Fourth Amendment of the federal constitution. Id. at 690 ; see also Autran v. State, 887 S.W.2d 31, 37 (Tex.Crim.App.1994) (holding that article I, section 9 of the Texas *631 Constitution provides greater protection than its federal counterpart).
Under article I, section 9, a determination as to whether a search meets probable cause requirements requires an inquiry into whether an individual, by his conduct, exhibits an actual, subjective expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable. Kann v. State, 694 S.W.2d 156, 159 (Tex.App.-Dallas 1985, pet. ref'd). Probable cause for a search exists where the facts and circumstances within the knowledge of the officer on the scene, and of which the officer has reasonably trustworthy information, would lead a person of reasonable caution and prudence to believe that he or she will find the instrumentality of a crime or evidence pertaining to a crime. Brown v. State, 481 S.W.2d 106, 110 (Tex.Crim.App.1972); Ackenback v. State, 794 S.W.2d 567, 572 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). The inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause. Brown, 481 S.W.2d at 110 ; Ackenback, 794 S.W.2d at 572 . The reviewing court must look to the “totality of circumstances” to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action. This test is used for both warrantless and warrant seizures of persons and property. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.), cert. denied, 488 U.S. 848 , 109 S.Ct. 127 , 102 L.Ed.2d 101 (1988).
Even if an officer has probable cause to conduct a warrantless search, an exceptional situation is still necessary in order to uphold the validity of the search. Gonzalez v. State, 588 S.W.2d 355, 360 (Tex.Crim.App. [Panel Op.] 1979); Kann, 694 S.W.2d at 160 . However, Texas has recognized the legality of warrantless searches of vehicles under the “vehicle exception,” “exigent circumstances,” and “plain view” theories. Ackenback, 794 S.W.2d at 571-72 ; Spears v. State, 801 S.W.2d 571, 575 (Tex.App.-Fort Worth 1990, pet. ref'd). Under Texas law, the determination of whether evidence should be suppressed because it was obtained by an unconstitutional search or seizure is to be made by the trial court, and if the issue is fairly raised, the jury should be instructed to disregard any evidence that it believes was obtained by unconstitutional means. Tex. Code Crim.Proc.Ann. art. 38.23(a) (Vernon Supp.1995).
The only Texas case involving the inspection of a vehicle’s VIN is State v. Hammitt, 825 S.W.2d 131 (Tex.App.-Beaumont 1992, pet. ref'd). In that case officers came upon a stopped vehicle with a license plate number not registered in the police computers. The officer approached the vehicle to read the VIN from the windshield location, and saw contraband inside the car in plain view. That court held the trial court properly admitted the evidence, and stated that “[t]hese articulable, suspicious circumstances permitted [the officer] to, at the very least, approach the vehicle and radio-in the vehicle identification number in order to ascertain whether or not the law had been violated.” Hammitt, 825 S.W.2d at 134 . Furthermore, the appellant in Hammitt only asserted a federal constitutional right, and the opinion specifically states that it does not address whether the Texas Constitution provides any greater rights. Thus Hammitt does not reach the issue of whether opening the vehicle door to inspect a doorjamb VIN, when the windshield VIN is obscured, is a search under the Texas Constitution. Id. In briefing their article I, section 9 claim, appellants have not cited us to any case, other than Heitman , which suggests that Texas constitutional guarantees against unreasonable search and seizure are any greater, or must be analyzed any differently, than the corresponding federal constitutional claim. Nevertheless, Heitman compels us to independently analyze this claim. Heitman, 815 S.W.2d at 690 .
Thus, we must first determine, as a matter of law, whether appellants had a privacy interest in the doorjamb where the VIN was located. If we find, as did the United States Supreme Court, that there is no privacy interest in the doorjamb VIN location when the dashboard VIN is obscured, then we can not hold that a search occurred with the opening of the door. If on the other hand, we find that a privacy interest in the door *632 jamb does exist, then the question of reasonableness of the search must be decided based on a “totality of circumstances” test.
The United States Supreme Court, under the Fourth Amendment, justified its holding by pointing to the minimal privacy interest in automobiles generally, and the pervasive regulatory scheme created around the YIN. While we must follow this precedent to determine any federal constitutional grounds, we should decline to accept the Supreme Court’s rationale in determining whether appellants had a privacy interest in the vehicle’s interior doorjamb (or more appropriately the area obscured by a closed automobile door) on Texas constitutional grounds.
A VIN is not the Holy Grail. Determining a vehicle’s precise identity does not justify searching for the VIN, wherever it might be located. This reasoning is most prominently articulated by Justice Brennan’s dissent in Class :
However, even assuming that respondent had no reasonable expectation of privacy in the VIN, why is this relevant to the question we decide? [The searching officer] did not look for the VIN from outside of respondent’s vehicle, but searched the car without respondent’s consent in order to locate the VIN. By focusing on the object of the search — the VIN — the Court misses the issue we must decide: whether an interior search of the car to discover that object was constitutional. Regardless of whether he had a reasonable expectation of privacy in the VIN, respondent clearly retained a reasonable expectation of privacy with respect to the area searched by the police — the car’s interior. As the court below noted, “[t]he fact that certain information must be kept, or that it may be of a public nature, does not automatically sanction police intrusion into private space in order to obtain it.”
Class, 475 U.S. at 124 , 106 S.Ct. at 971 , 89 L.Ed.2d at 97 (Brennan, J., concurring in part and dissenting in part). Moreover, the Federal Highway Administration, in promulgating the regulation which provided for a VIN, provided a protection for the area of a vehicle that is revealed by opening its door:
This provision was also redrafted to make it clear that the number must be readable from a position outside the vehicle without moving any part of the vehicle. This precludes placing the number in a location such that, in order to read it, a door, trunk lid or other portion of the car’s body must be opened.
33 Fed.Reg. 10208 (1968) (emphasis added). Consequently, there is no reason to provide the police with access to the interior of the car, absent probable cause to search it.
Officer Cooper’s act of opening the door to view the doorjamb VIN was a search under the Texas Constitution. The door of a vehicle, just as the door of a home, is the barrier that maintains the privacy of the space within. The doorjamb was not visible from the exterior of the vehicle until the door was opened. Moreover, because the VTN on the doorjamb faces forward, the door must be opened completely to examine this VIN. Opening the door exposes the entire interior, and not just the doorjamb, to full view (and smell) from the exterior.
While the object of the search may be a factor to consider in the question of whether the search is reasonable, it should not be considered a factor in determining whether a search has occurred at all. The Supreme Court in Class only found a search when the officer reached inside the car. This ignores the fact that searches may be conducted by listening, smelling, and viewing, as well as physically rifling, through the constitutional protected space. See Katz, 389 U.S. at 353 , 88 S.Ct. at 512 , 19 L.Ed.2d at 583 (police use of listening device attached to outside of phone booth an unreasonable search). The appellants had a privacy interest in the interior of their vehicle, including the portion of the doorjamb which was only exposed when the car door was opened by the officer, consequently, Officer Cooper’s act of opening the door of the vehicle was a search under article I, section 9 of the Texas Constitution.
The court today examines the five factors considered by the court of criminal appeals in Autran . With respect to article I, section 9, the first three factors enable the examiner to determine only the possibility that this section provides a greater protection than the *633 Fourth Amendment — an issue that was settled in Autran . Using an Autrnn analysis, only the remaining two factors, “Comparable Jurisprudence” and “Practical Policy Considerations,” are dispositive as to whether a particular protection is provided by the Texas Constitution. The court today notes that there is no comparable jurisprudence concerning searches for the determination of VIN numbers. Consequently, the only factor which remains to be examined is the question of practical policy considerations.
Our court today relies on the Supreme Court’s holding in Class to find that there was no reasonable expectation of privacy in the VIN located inside the doorjamb of a car. Class , 475 at 118, 106 S.Ct. at 968 , 89 L.Ed.2d at 93 . It fails to find a compelling rationale for acknowledging a greater privacy protection in article I, section 9. Yet the only way to examine the VIN on the doorjamb of the car is to open a device that is provided with a lock designed in part to provide just such privacy. The compelling rationale for such a privacy protection is that once we close the door to our automobiles, there is an expectation that nobody will open those doors without our permission, or without a compelling reason.
For rescue personnel, this compelling reason is the preservation of life. For police officers, this compelling reason is probable cause in its numerous forms, or the safety of the officers in question. In this case, no evidence has been advanced to indicate that the officers had reason to fear for their safety. It is possible or even likely that the officers could have determined probable cause for a search in this case, or that they would have been able to search the car as a consequence of incarcerating the driver and/or owner. However, rather than wait for either of these circumstances to evolve, they first searched the car, and only by doing so, developed a different probable cause for the search.
Consequently, on these facts, the search was unreasonable. There was no probable cause to believe that the vehicle was stolen, or reason to believe that appellants intended to obscure the VIN to hide evidence of theft. The presence of the dashboard cover, which Officer Cooper pointed to as justification for looking inside the car for the VIN, justifies not even a faint suspicion that the vehicle may be stolen. There is no statutory or regulatory basis providing for inspection of concealed or interior mounted VIN’s. Clearly, the dashboard location was mandated to allow VIN inspection without a search, but it does not follow that all VIN locations can be inspected without probable cause justifying the search. Nor did Sergeant Cooper, at the time he opened the door, have any reason to believe that contraband or evidence of a crime was contained within the truck.
This is not a situation as in Hammitt , where there were articulable facts indicating that the car might be stolen, justifying the inspection of the VIN. Nor is this case like Class , where no one was in the vehicle when the search occurred. Here, the truck’s seat was occupied (by the owner) when the officer opened the door. Also, this case does not involve any issue of police safety, as did Class . 2 Thus, the main reasons for the Supreme Court’s conclusion that the Class search was reasonable are not present in this case.
The dashboard of vehicles is often the repository of paper or other items which may temporarily obscure the windshield visible VIN. In most cases, these items can be removed by the owner, at the officer’s request, without the necessity of a search. Here, nothing prevented Sergeant Cooper from asking for the dashboard VIN to be uncovered. To be sure, there may be situations where the officer’s safety may be involved, as in Class , or where the facts suggest a purposeful obscuring of the windshield VIN. In these cases, the “totality of cireum- *634 stances” test can be used to determine whether a search, in the form of opening the door to view the doorjamb VIN, is reasonable. The police should not open a vehicle door on the scant excuse that the officer could not see all of the dashboard VIN, especially where it would have been possible, without any danger to the police, to have the obscuring material removed by the passenger/owner, who was already in the truck. Point of error one should be sustained.
Given this disposition of point of error one, points of error two and three are not addressed.
I dissent, the judgment of the trial court should be reversed.
. Act of May 18, 1989, 71st Leg., R.S., ch. 678, § 1, 1989 Tex.Gen.Laws 2230, 2939, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 2.02, 1993 Tex.Gen.Laws 3586, 3709 (current version at TexHealth & Safety Code Ann. § 481.121 (Vernon Supp.1995)).
. Even if there was a gun found in the search, we do not believe that an object found in a search can justify the fact that the search was conducted without probable cause. Only when the police have a reasonable suspicion that the vehicle contains a weapon within reach of the defendant may there be justification for a weapon search without full probable cause. Terry, 392 U.S. at 24-25 , 88 S.Ct. at 1881-82 , 20 L.Ed.2d at 907 -OS. Thus, the Supreme Court’s reasoning appears to be flawed on this point, which was one of its main reasons for holding that the search was reasonable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9671857. Public record. Not legal advice.