Dillard v. State

*53 OPINION ON APPELLANTS’ MOTION FOR REHEARING

DAVIS, Commissioner.

Appellants contend that there was no evidence that a traffic violation had occurred and thus Officer Bragg was not acting within his authority as a peace officer in conducting the search of the automobile. Appellants cite Faulkner v. State, Tex.Cr. App., 549 S.W.2d 1 (1976), in support of their contention that if Officer Bragg stopped appellants solely to check Dillard’s driver’s license, the search of the automobile was illegal. In Faulkner, supra, we held:

“The initial stop of appellant and his passenger was not justified by probable cause to believe that any crime had been or was being committed. The officers saw no evidence of any traffic offenses. The inarticulate hunch, suspicion, or good faith of the officer in suspecting the car to be stolen was insufficient to constitute probable cause for an arrest, or even a temporary detention. . . . The out-of-county tags and slow driving of the appellant were not evidence of any wrongdoing. And the ‘caution’ of the car’s occupants in the presence of the police officers did not rise to the level of probable cause, either. . . . Although the operator’s license check was advanced as one reason for the detention, it was explained that this was merely a matter of routine in all such situations. The real reason for the stopping of appellant’s automobile would appear to have been its out-of-county tags and the slow, ‘cautious’ driving of its driver. . When the detention permitted by the statute becomes a mere subterfuge or excuse for some other purpose which would not be lawful the actions then become unreasonable and fail to meet the constitutional requirement. The scope of an investigation cannot exceed the purposes which justify its initiation. . . .”

In the instant case, Bragg stated that he pursued appellants’ vehicle because it

“seemed to be traveling at an exceptionally high rate of speed, for that particular intersection.” Bragg stated that the speed limit for that particular intersection was 35 miles per hour. He further testified, “I thought that a traffic violation had been committed. I knew it was in excess of 35, but I didn’t know the exact speed.”

Even though Bragg further related that he did not intend to issue a citation for a speeding violation because he did not have a “provable offense,” see Art. 6701d, Sec. 171(a), V.A.C.S., it is clear that Bragg did think a traffic violation had been committed. We disagree with appellants’ contention that unless Bragg knew the exact speed which the automobile was traveling, no violation occurred. Article 6701d, Sec. 166, V.A.C.S., states that a speeding violation occurs whenever a person drives a vehicle on a highway at a speed greater than is reasonable and prudent and it shall be pri-ma facie evidence that the speed is not reasonable if it is in excess of the speed limit specified in that area.

When Bragg noticed the traffic violation, he was acting within the scope of his authority in stopping the automobile and requesting to see Dillard’s driver’s license. See Art. 6701d, supra; and Art. 6687b, Sec. 13, V.A.C.S. Bragg’s investigation was grounded on a traffic violation, contrary to the investigation in Faulkner, supra, and thus his investigation did not exceed the purposes which justified its initiation. Cf. Faulkner, supra; see Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234 . The detention of appellants by Bragg to check identification was not a “mere subterfuge or excuse for some other purpose which would not be lawful.” Cf. Faulkner v. State, supra. Bragg had a right to be where he was when he “plain viewed” the shotgun. See Duff v. State, Tex.Cr.App., 546 S.W.2d 283 . We hold that the discovery of the gun, combined with the other factors set out in our original opinion, justified the detention of appellants and the subsequent arrest and search.

*54 Appellants submit that this Court may only consider that evidence introduced at the motion to suppress evidence to determine if the arrest and search were proper. The record reflects that Officer Bragg testified at the trial on the merits concerning the traffic violation prior to the introduction of the shotgun into evidence before the jury. However, Bragg did not participate in the pre-trial hearing on the motion to suppress. Officer Horton testified at the pre-trial hearing but he did not have personal knowledge of a traffic violation being committed. Without evidence of the commission of the speeding violation, the officers had no right to be where they were and the subsequent arrest and search would have been improper. We held in Stiggers v. State, Tex.Cr.App., 506 S.W.2d 609 , that the erroneous overruling of a motion to suppress evidence was not reversible error if the fruits of the search were not admitted into evidence at trial. Likewise, in the instant case, because Bragg testified at the trial on the merits as to the traffic violation before the fruits of the search were admitted into evidence, we hold that any error which the trial court may have committed in overruling the motion to suppress was cured. See Riojas v. State, Tex.Cr.App., 530 S.W.2d 298 .

We have examined the other contentions raised by appellants in their brief in support of their motion for rehearing and find that they are sufficiently addressed in our original opinion.

The motions for rehearing are overruled.

Opinion approved by the Court.