# Gary v. State

> Court of Criminal Appeals of Texas · March 30, 1983 · 647 S.W.2d 646

URL: https://www.frixlaw.com/law-library/cases/9682537

## Case

- **Full name:** James Lee GARY, II, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 30, 1983
- **Citations:** 647 S.W.2d 646; 1983 Tex. Crim. App. LEXIS 1123
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Campbell, Clinton, Roberts, Odom, Teague
- **Cited by:** 15 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/9682537

## Opinion text

CLINTON, Judge,
dissenting.
I do not join in tolling the deathknell for the Fourth Amendment and Article I, § 9, Texas Bill of Rights vis a vis papers, possessions and effects placed in a motor vehicle with a reasonable expectation of privacy in their content by a citizen who then is stopped for a traffic violation (other than speeding) while driving alone in a public way. 1 When appellant’s security against deprivation of privacy rights is so easily shattered because “[tjhere was no one to whom the police could have given possession of the automobile” being operated solo by him as he ran a red light, motor vehicles belonging to each of us have been effectively removed from the protections otherwise afforded by the constitutional guarantees against unreasonable search and seizure. 2
I dissent.
TEAGUE, J., joins.
. The stipulation between the parties is that officers placed appellant under arrest “for carrying a weapon” — without any demonstrated consideration of circumstances rendering that act unlawful or “innocent” by way of one or another provision of V.T.C.A. Penal Code, § 46.03. But be that as it may, the officers were still authorized to effect a custodial arrest for the traffic violation, so that even without the weapons offense the citizen still loses his rights to privacy.
. Often overlooked is that after the Supreme Court of the United States upheld an inventory search of an automobile impounded under police caretaking procedures, in South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976), the Supreme Court of South Dakota held it to be an unreasonable search under its state constitution. State v. Opperman, 247 N.W.2d 673 (S.D.1976). To protect the rights to privacy of our own citizens this Court would do well to emulate South Dakota.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682537. Public record. Not legal advice.