The opinion
DISSENTING IN PART and CONCURRING IN PART
ODOM, Judge
(dissenting in part and concurring in part).
I disagree with the majority opinion that the police were authorized to search the automobile in question. The appellant was seen standing near a U Totem Store in Houston some fifteen minutes before the store was to be closed for the night. The officer who observed appellant at that location had previously seen an automobile parked near a closed service station. Appellant was questioned by the officer as to whether the automobile near the service station was his and he replied that it was not. The officer then noticed a bulge in appellant’s pocket. Asked what the bulge was, appellant replied that it was a pistol. At this point, the officer was authorized to arrest and search the appellant’s person. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 ; Brown v. State, Tex.Cr.App., 481 S.W.2d 106 . 1 See also, Article 14.03, Vernon’s Ann.C.C.P. The majority hold that this was sufficient probable cause to then search the automobile near the service station, since the key was in the ignition and a check of the hood of the automobile revealed that it was warm. I disagree.
Assuming, arguendo, that there was probable cause to believe that the automobile belonged to appellant, 2 the state failed to sustain its burden of showing exigent circumstances that would make the procuring of a search warrant impractical. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 ; Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L. Ed.2d 419 ; Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 ; Brown v. State, Tex.Cr.App., 481 S.W.2d 106 ; Stoddard v. State, Tex.Cr.App., 475 S.W. 2d 744 .
The majority seems to bottom its opinion on People v. Brown, 4 Cal.App.3d 382 , 84 Cal.Rptr. 390 , wherein the California court apparently holds that where a robber is caught in the act of a robbery, the search of an automobile in the near vicinity that *819 might reasonably be used as a get-away car is reasonable. In reaching its decision, the court’s theory is that if an automobile is an “instrumentality of the crime,” such as a get-away car, then it could be seized under the California “plain view” doctrine. In Brown, the court relied on People v. Superior Court, County of Contra Costa, 264 Cal.App.2d 794 , 70 Cal.Rptr. 795 , and quoted therefrom the following:
“We conclude that when the officers have reliable information strongly indicating the use of an automobile in the commission of a crime or in the escape of the offender, they may properly search that car even though it is unoccupied when found.”
However, in People v. Superior Court, County of Contra Costa, supra, there were exigent circumstances which made the procuring of a search warrant impracticable. The police therein arrived at the scene of a burglary, and a witness said the suspect fled on foot but that she thought he was connected with a white Cadillac parked and unoccupied in front of the building. The automobile offered the best clue to the burglar’s identity. By looking inside, for the purpose of getting the identity of the owner, the police might catch the burglar. It was only after a thorough discussion of the facts that the court concluded that the entry into the automobile for that purpose was reasonable. The Brown decision applies the “instrumentality of the crime” principle to a situation where exigent circumstances do not exist. 3
Further, the California Court in Brown did not rest its holding solely on the “instrumentality of the crime” theory. They buttressed the opinion on the California Vehicle Code, Section 2805, which authorizes a police officer to investigate an abandoned car to determine its ownership. No mention was made of exigent circumstances.
I submit that People v. Brown, supra, is not authoritative and should not be followed.
The effect of the majority opinion in the instant case is to delegate to the officer the sole discretion to determine whether probable cause exists to search an automobile even though there are no exigent circumstances which would make such an intrusion reasonable. Here, as in Stoddard, supra, appellant was in the custody of officers and had no opportunity to contact any other person or to get any weapon that may have been in the automobile, or to destroy any evidence therein. The automobile was not moving, and there was no one else in the area to drive it away. There is no reason why the officers might not have left one of their company in charge of the automobile while another went to a magistrate to secure a warrant. While it is true that the Supreme Court has enunciated slightly different rules concerning a search of an automobile without a warrant, the rationale is based upon the fact that “a vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 . In the instant case the search of the automobile cannot be justified upon this reasoning. There is no indication in the record that the car was about to be moved or could be moved. And there is no indication in the record that there was not ample time to secure the necessary warrant for the search of the car, had the officers believed there was probable cause to seek one.
Although I disagree with the majority that the search of the automobile was justified, I concur in the results and will set forth my reasons.
*820 Appellant was charged with robbing Pat-trick Henry, the night manager of a U Totem store on January 16, 1970, prior to his arrest and search near another U Totem store on February 27, 1970. The evidence shows that when the offense was committed the robber was wearing faded blue jeans, a green military jacket, low quarter shoes, and a white motorcycle helmet with a black visor, taped in a manner so as to prevent a view of the robber’s face. When appellant was arrested he was wearing faded blue jeans, a green military jacket, low quarter shoes and was placing on his head a white motorcycle helmet with a dark, taped visor. A small chrome plated derringer with four barrels was recovered from appellant when he was arrested.
Witness Henry made positive identification of the pistol and the motorcycle helmet and visor. He testified that appellant’s height and weight matched that of the robber.
Earl Brewer, who was present during the robbery, also identified the motorcycle helmet and the pistol as being the same as the ones used by the robber.
All of the above items were obtained as the result of the search of appellant’s person on the night of the arrest and all were admitted into evidence.
And, even though witness Henry could not see the robber’s face, by virtue of the taped visor on the motorcycle helmet, he paid particular attention to the robber’s body and legs and testified that appellant’s body and legs were exactly like those of the robber. 4
The fact that both witnesses positively identified the helmet the appellant was wearing and the pistol that was recovered from him on the night of the arrest, as well as Henry’s detailed description of appellant’s torso, was sufficient to support the verdict. 5
The fruits of the automobile search that were introduced in evidence consisted of a wig, a money pouch, a money bag, and a pair of gloves. 6 These items, having been introduced in evidence, must have been considered by the jury. But, unless there is a reasonable probability that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 .
There was no testimony linking the wig to the offense charged or to any other offense. And, although there was testimony that a money pouch, like the one recovered in the automobile search, had been taken in the robbery, neither witness could positively identify it. Not only is the properly admitted evidence of guilt here overwhelming, but it also was in no way dependent upon the evidence received from the automobile search.
From my own reading of the record, I conclude that the minds of an average jury *821 would not have found the state’s case less persuasive had the fruits of the automobile search been excluded. The admission into evidence of these items, therefor, was at most harmless error. Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969).
For the reasons stated, I concur in the affirmance of the conviction.
ROBERTS, J., joins in this opinion.
. “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 .
. There was nothing at that time to indicate that the automobile belonged to appellant other than the fact that it had recently been parked where it was found and no one was seen in the area.
. It should be noted that the California cases cited above and People v. Teale, 70 Cal.2d 497 , 75 Cal.Rptr. 172 , 450 P.2d 564 (Arguably the origin of the “instrumentality of the crime — plain view” prin-eiple in California) were all decided prior to The Supreme Court decision of Coolidge v. New Hampshire, supra, wherein the principle was rejected.
.When asked whether he recognized appellant’s body, Henry answered:
“A. When he robbed me, well, UTotem had taught me just from robberies, that if they’re going to have their face covered up look at their bodies and see if they’re heavy build or their legs are wider than normal, and that’s the way I identify him. He had a larger stomach than the normal man, and his legs were a lot wider, fatter, I got an awful good look at his legs. ⅜ * * his legs, he had very fat thighs and legs and he had sort of a big stomach, sort of fat, over built, over weight. * * * The face is the only part I am vague on, the rest of the body—
Q. The physical body description is the same?
A. Yes, sir, exactly.”
. The jury was charged on circumstantial evidence.
. There was conflicting testimony as to whether the gloves were found on appellant’s person, or recovered from the automobile. Although there was testimony about 'a ski mask and a checkbook with appellant’s name printed on it, neither was admitted into evidence, and there was no testimony linking either to the offense charged.