Britton v. State

CLINTON, Judge,

dissenting.

Because the majority opinion creates a situation that permits Fourth Amendment rights of one citizen to be cancelled by offending conduct of another, I must dissent and protest against stripping a citizen of one of the few remaining vestiges of reasonable expectation of personal privacy while riding with another in a motor vehicle.

I take it from what is stated, as well as what is implied, by the majority opinion that a passenger who may very well be intoxicated is nevertheless not intoxicated “to the degree that he may endanger himself or another” so long as the driver operates the motor vehicle in a manner that does not arouse the sensibilities of a peace officer. If that premise is valid, then I simply cannot accept the notion that the degree of intoxication reaches a “zone of endanger” merely on account of misconduct on the part of the driver that, according to the majority, the passenger must undertake to correct or, failing that, alight from the motor vehicle.

*691 The suggested alternatives not only defy common experience shared by nearly every passenger at one time or another but also presume that somehow, the arresting officer in this case divined that appellant had come to appreciate the dangerous condition created by his driver — while he was otherwise occupied in conversing with a young woman standing on a corner — and had not taken what the majority sees as exculpatory precautions.

The justification attributed to the searching officer by the majority thus does not pass the settled test of probable cause it insists must be “borne in mind.” That is, that facts and circumstances “within the officer’s knowledge” must be sufficient to warrant a reasonable belief that appellant had committed or was committing the offense of public intoxication — that he was intoxicated to the degree that he may endanger himself or another. In that brief moment while the motor vehicle did not move through a change of lights the officer could hardly have it in his knowledge that appellant understood any danger now perceived by the majority and failed to initiate corrective action. Indeed, the searching officer had no knowledge whatsoever that appellant was even intoxicated until he accosted appellant sitting in the passenger seat of the motor vehicle. Having observed that appellant appeared to have been conversing with the young woman on the corner before he evaluated appellant, the officer had to know that appellant was focusing his attention on the young woman and not on how the driver was maneuvering his vehicle. To provide the searching officer with “knowledge” that “had appellant not been intoxicated he would have urged the driver to correct the situation or remove himself from the vehicle” is but an exercise in hindsight that should not be given retroactive effect.

The consequences of the majority opinion are obvious and far reaching in the jeopardy they presage for Fourth Amendment protections to the mobile citizen.

First, the privacy of the passenger is denied by what is done today on account of misconduct of his driver. Next, because the Court has held that a motor vehicle may be searched for evidence of the cause of intoxication, 1 or for presence of weapons, 2 the privacy of the driver who has done nothing to earn himself so much as a traffic ticket is eroded by what is done today and will be denied by what must surely follow tomorrow.

ONION and ROBERTS, JJ., join in this dissent.

. Parker v. State, 576 S.W.2d 613 (Tex.Cr.App.1979); see generally Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.1967).

. Compare Wood v. State, 515 S.W.2d 300, 306-307 (Tex.Cr.App.1974).