holding that officer had probable cause to seize from suspect’s pocket a bag visibly containing white powder that officer suspected was some type of narcotic even though he did not know exactly what it was and officer testified that it could have been powdered sugar
How later courts described this case
- holding that officer had probable cause to seize from suspect’s pocket a bag visibly containing white powder that officer suspected was some type of narcotic even though he did not know exactly what it was and officer testified that it could have been powdered sugar
- noting that although Mayo establishes the proper burden on the State to provide appellant committed the offense charged, it is the totality of the circumstances by which we measure the sufficiency of such proof
- officer had “probable cause to believe that the plastic baggie in appellant’s pocket contained illicit substance”; sticking out of appellant’s pocket was a bag containing white powder that officer suspected was some type of narcotic
- finding uncontroverted identification evidence sufficient under totality of circumstances
Written by the judges who cited it.
The opinion
CLINTON, Judge,
dissenting.
The essence of the majority opinion is that common sense and common knowledge should guide us in assessing whether the State met its burden of proof. Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983) requires that a nexus must exist between the officer’s past experience and his assessment he has probable cause to seize a substance. In this case, the State did not meet its burden of eliciting facts to show the officer acted on probable cause. Rather, the State merely showed the officer believed the substance was contraband; he did not articulate a basis of probable cause to believe it. The State did not seek to have the officer testify he had seen cocaine before, or that he had made similar arrests, or that his law enforcement training enabled him to recognize the substance. 1
The majority apparently accepts the State’s contention that anyone with the officer's training and experience would be familiar with “how illicit drugs are packaged and carried on the streets.” I cannot adopt that surmise for the officer never asserted any such familiarity with reference to the streets of Gonzales. Support for probable cause rests on what data a peace officer may knowledgeably draw on at the moment he acts. The record is our only access to those facts, and the record before us offers no particularized facts to support the officer’s suspicion. I reiterate *779 that no connection was made between the officer’s experience and his professed belief.
The burden of drawing this connection rests with the State. The State must elicit facts showing probable cause. Sullivan v. State, 626 S.W.2d 58, 60 (Tex.Cr.App.1982). True, we should not take leave of common sense when assessing those facts once the State establishes them, but when the necessary facts are not in the record we cannot throw up our hands and declare that anyone in the officer’s position would have believed the substance was cocaine.
I respectfully dissent.
TEAGUE and MILLER, JJ., join.
. The officer’s suspicion the substance was contraband is rendered even shakier by his testimony that he "had no idea what the [white powder] was” when he first saw it. At the time the witness had been a peace officer for “about a year and a half,” having been trained in a law enforcement academy in San Antonio and having taken additional courses on crime prevention and the like. Yet, he never alluded to any training or experience with respect to identifying controlled substances.