# Gill v. State

> Court of Criminal Appeals of Texas · December 23, 1981 · 625 S.W.2d 307

URL: https://www.frixlaw.com/law-library/cases/9680233

## Case

- **Full name:** Robert Lee GILL, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 23, 1981
- **Citations:** 625 S.W.2d 307; 1981 Tex. Crim. App. LEXIS 1283
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Teague, Douglas, Roberts, Clinton, Dally, Davis, McCormick
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Osban v. State, 1986 Tex. Crim. App. LEXIS 819 (1986).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680233

## Opinion text

CLINTON, Judge,
concurring.
A close examination and analysis of the facts against applicable law convinces me that the arrest of appellant and the protective sweep of the frontal interior of the automobile, particularly its front seat, are sustainable. Yet I must agree with the majority opinion that the critical issue still is whether what preceded it gave rise to probable cause for forcible entry into the trunk. The scenario is now considered as it was played.
First, the facts: When the presence of uniformed Officer Lawrence was noticed by appellant, the latter was seated in his parked car in front of a convenience store that was open for business. Thus, Officer Lawrence did not stop the movement of his car. Rather, Officer Lawrence pulled up and parked his own personal vehicle in a parking space alongside. Therefore, and the point to be made is that, we are not presented with a forcible stop of a motor vehicle by a peace officer. Nor is there the slightest whisper of a hint from Officer Lawrence in testifying or from the State in arguing its position that before getting out of his own vehicle the officer had any basis whatsoever to differentiate the observed activity of appellant from that of any other citizen who innocently drives to and parks his car in front of an open convenience store, and momentarily sits there in it.
Still without that hint, Officer Lawrence lights from his own vehicle and, as he walks toward or by him, sees appellant still seat *313 ed, holding a syringe in one hand, and noticed on the front seat a bottle of alcohol, a towel and some tissues like Kleenex. Appellant then detects the presence and, presumably the gaze, of a uniformed police officer; he reacts to what he has seen by a somewhat understandable physical manifestation of surprise and by the not so appreciatory thrusting of the syringe in his hand under a towel in the front seat of his car. Officer Lawrence, by then next to the passenger side, motioned for appellant to roll down that window and asked appellant if his car were broken down or if he were lost; appellant replied that he was looking for the Astrodome. Quickly assaying the situation, Officer Lawrence radioes for assist-anee as he is walking around the rear of the car in which appellant remains seated. Appellant, apparently also evaluating his own position, voluntarily exits his own car. 1 Now near him, Officer Lawrence initiates an innocuous conversation. 2
Leaving the door open as he got out of his car, appellant exposed to view on its front seat a white towel, a canvas bag, a box of tissues, some loose tissues, a bottle of alcohol and a briefcase. Officer Lawrence now requests appellant to show some identification. 3 (The officer testified that at this point and until appellant tried to reenter his automobile appellant was free to leave had he chosen to do so.) Appellant complies. 4
*314 Second, the law and authorities cited by the dissent at this point in the factual situation are not applicable: Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1978), while reciting factually that one of the officers — they had stopped Mimms for committing a traffic offense— ordered Mimms out of his car and asked him to produce his owner’s card and driver’s license, did not hold that police officers could require a citizen he has ordered to get out of his car to produce a driver’s license. Indeed, such a holding would conflict directly with Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979) and, if a driver’s license be equated with identification, Brown v. Texas, 443 U.S. 47 , 99 S.Ct. 2637 , 61 L.Ed.2d 357 (1979). What Mimms held is that the order for a motorist who has been stopped for offending the traffic law to get out of the vehicle he is driving is constitutionally permissible. The State interest involved is the safety of the officer, and that interest is obviously not advanced by a request that the motorist produce his driver’s license or that the pedestrian identify himself, just as the Supreme Court determined in Brown v. Texas, supra.
Nor was the request for display of a driver’s license preceded by sufficient artic-ulable circumstances to justify a Terry type maneuver for, as explicated by this Court in Armstrong v. State, 550 S.W.2d 25, 30-31 (Tex.Cr.App.1977, opinion on rehearing):
“... There must be reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. * * * * Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.”
It is not unlawful for a citizen to possess one of what must be thousands of syringes legally sold every day unless it “has on it any quantity (including a trace) of a controlled substance in Penalty Group 1 or 2 with intent to use it for administration of the controlled substance by subcutaneous injection in a human being,” Article 4476— 15, See. 4.07(a), V.A.C.S. 5 In these circumstances we are not prepared to say that simply seeing a citizen with a syringe in his hand and a movement by him to conceal it is enough to indicate his activity is related to crime, especially when the “furtive gesture” is at best “ambiguous conduct which the arresting officers themselves have provoked,” Wong Sun v. United States, 371 U.S. 471, 484 , 83 S.Ct. 407, 415 , 9 L.Ed.2d 441 (1963); see Wilson v. State, 511 S.W.2d 531, 533-535 (Tex.Cr.App.1974) and Brown v. State, 481 S.W.2d 106, 112 (Tex.Cr.App. 1972).
Third, to return to the facts as well as what I conceive to be the law applicable to them: Although he was not required by law to do so, in my view, 6 acceding to the request that he do so, 7 appellant produced a *315 Michigan license that facially appeared to have been altered. Display of an altered license or of a license not issued to the person so displaying the same and driving without a valid license (unless exempt) are offenses under Article 6687b, Secs. 12 and 2(a), V.A.C.S., respectively. Having observed appellant behind the steering wheel alone in the car and viewing an altered driver’s license, offenses were committed in the presence and within the view of Officer Lawrence. Article 14.01(b) 8 authorized him to arrest appellant and, pursuant to that arrest, make a search incident of his person and the area within his immediate control, e.g., Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969). As they were positioned at the time, standing by the open car door near the towel that concealed at least the syringe, that area embraced the front seat. The protective sweep revealed additional paraphernalia but no controlled substance other than one marihuana cigarette.
What has been demonstrated here is that there is scripted by the law a basic scenario of interaction between a peace officer and the citizen that allows words and movements less intense than the “stop and frisk” street scene directed by Terry v. Ohio, supra, and its progeny. The fact situation commendably presented by the candid and forthright testimony of a careful and cautious policeman in this case is a showcase example. Thus, understandably curious from his observations, but not yet justifiably suspicious of criminal activity, the officer managed to deal with appellant on a conversational basis, without touching or restraining him, until an ostensibly complaint appellant presented the officer with documentary evidence of a penal offense. The latter fortuity is, of course, not inevitable, but if criminal activity is indeed afoot the alert, resourceful officer may well detect enough indicia of it, through more conversation, casual inquiry and close observation, to convert mere curiosity into justifiable suspicion, if not eventually probable cause. Alas, here the indicia did not appear before the officer, perhaps because now joined by one of his peers, began to conduct a fruitless search of the remaining interior of the car and, after the wrecker arrived, forcibly entered and searched its otherwise secure trunk and contents. Like the majority opinion, I am unable to find probable cause for the search that produced the evidence on which appellant was convicted. 9
Accordingly I concur in the judgment of the Court.
. At this juncture, appellant has neither been detained nor directed to do something by Officer Lawrence. Proscriptions that create the protections of the Fourth Amendment of the United States Constitution and of Article 1, Section 9 of the Bill of Rights in the Texas Constitution, therefore, have not yet been offended.
. “I was attempting to talk to him about directions to the Astrodome,” recalled Officer Lawrence, conceding that he was stalling for time to permit the unit called for to arrive.
. According to Brown v. Texas, 443 U.S. 47 , 99 S.ct. 2637, 61 L.Ed.2d 357 (1979), “When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” Of course that statement is made in factual context of that case: Brown and another man were seen by the officers walking in opposite directions away from each other in an alley; the patrol car was driven into the alley and one officer got out, stopped Brown and asked him to identify himself and explain what he was doing there; Brown refused and angrily asserted that the officers had no right to stop him; one remarked that Brown was in a “high drug problem area” and the other “frisked” Brown but found nothing. But, given the facts of the case before us, that the Supreme Court would consider this chanceful encounter between appellant and Officer Lawrence a “stop,” merely because Officer Lawrence asked for identification and appellant complied, is most doubtful. The Brown opinion also uses a quotation from United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.ct. 2574, 2578, 45 L.Ed.2d 607 (1975) to explain that “whenever a police officer accosts an individual and restrains his freedom to walk a way, he has ‘seized’ that person....” It is not at all clear from our record that appellant was restrained of his freedom to walk away from Officer Lawrence. Rather, the officer said appellant retained that freedom. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Often overlooked by judges and other writers is the unassailable proposition that Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) specially declined to address “the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation,” id. at 19 n. 16, 88 S.Ct. at 1879 ; see Dunaway v. New York, 442 U.S. 200, n. 12 , 99 S.Ct. 2248, n. 12 , 60 L.Ed.2d 824 (1979) for confirmation. Indeed, as Mr. Justice White observed in his concurring opinion in Terry :
“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” 392 U.S. at 34 , 88 S.Ct. at 1886 (White, J., concurring.)
Obviously, in Brown v. Texas, supra, the unanimous conclusion is that “special” and “proper” circumstances did not there obtain, and the Supreme Court decided in Brown what was specifically declined for determination in Terry : “But even assuming that [the] purpose [of prevention of crime] is served to some degree by stopping and demanding identification from an individual without any specific basis for *314 believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it,” Brown, supra, 99 S.Ct. at 2641 .
. Testifying on motion to suppress, Officer Lawrence candidly acknowledged that although he saw that the plunger of the syringe was “pulled back” he had no knowledge that there was contraband in it or on the needle. Indeed, at that point the officer just as frankly remarked, “I didn’t have any reason to suspect anything was going on except — it even crossed my mind that he was possibly a diabetic.”
. The obiter dictum of Mr. Justice White in his concurring opinion in Terry , set out in note 4, ante, until authoritatively disapproved, is support enough for the proposition that a person on the streets — either pedestrian or occupant of a parked motor vehicle — may be approached and queried generally by a policeman so long as he is not detained or frisked, with the understanding that he may refuse to cooperate and go on his way, but the officer is not precluded from making continuing observations.
. Officer Lawrence did not and the State may no longer claim that a stop and detention pursuant to Article 6687b, Sec. 13, V.A.C.S., for the purpose of determining whether a motor vehicle operator has a driver’s license, is valid in light of Delaware v. Prouse, supra. Nor, under Brown v. Texas, supra, may the proscriptions of V.T.C.A. Penal Code, § 38.02 be affirmatively utilized to stop and detain a citizen in order to ascertain his identity. And, of course, Article 2.24, formerly in the Code of Criminal Procedure, authorizing the stop of a possible witness to an offense to demand production of *315 identification from him, was repealed in favor of § 38.02, supra.
. Article 14.01(b), V.A.C.C.P., provides: “A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”
. The State would have it that probable cause to enter the trunk came from the officer’s knowledge, in light of his nine years of experience, that the principal use of the discovered and seized paraphernalia was to prepare drugs for injection. Yet, the officer had not seen much more since his initial observation that had provoked only the thought “that he was possibly a diabetic,” and he does not claim to have detected from the paraphernalia, presumably examined by him, “any quantity (including a trace) of a controlled substance” that transforms innocent material into contraband, as pointed out ante in the text accompanying note 5.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680233. Public record. Not legal advice.