Fry v. State

DOUGLAS, Judge

(concurring).

A majority now agree that this cause should be affirmed. In addition to my original dissenting opinion, a discussion of other authorities and reasons which allow the search of a motor vehicle or its trunk follows.

*772 After the original opinion was written, this Court construed Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 , with Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970), in Harris v. State, Tex.Cr.App., 486 S.W.2d 88 .

In that case an informer who had previously given the Dallas police reliable information told a special agent that Harris would arrive at the China Doll Lounge in a white Cadillac, license number LTC 92, and that he would have in his possession a quantity of drugs. The officers went to the lounge and saw the appellant arrive in the described vehicle and enter the club. The officers entered the lounge, arrested and searched him and found nothing. They then took him outside to the automobile. In an apparent effort to unlock the door, Harris broke the key. After this, the officers entered and searched the car and found the drugs in question. This Court noted that the facts surrounding the arrest were very similar to the facts in Draper v. United States, supra. The opinion went on to say that, while the informer had not actually seen the contraband on the suspect, the officers were able to verify numerous details supplied by the informer. In essence, this Court held that all of the information was corroborated when Harris arrived at the specific time and place, thus, under Draper, the police had probable cause to believe that the appellant had the drugs in his possession.

This Court distinguished the Harris case from Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), and Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 . It noted that even though there was probable cause to search the vehicle in those two cases, there was an absence of exigent circumstances. Yet, in distinguishing Harris, this Court relied on Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 , and Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 , and pointed out that it was not incumbent upon the officer to obtain a warrant before proceeding further upon an informer’s tip which had ripened into probable cause. The Court also concluded that after having searched appellant and finding no contraband, the officers would have violated appellant’s constitutional rights if they had detained him to await the procuring of a search warrant for the car and execution of the same. This Court noted: “Herein lies an important distinction between the instant case and Coolidge v. New Hampshire, supra, and Stoddard v. State, supra, where the defendants were already in jail before the search was initiated.” Harris v. State, supra, 486 S.W.2d at page 90 . This very same reasoning and logic is applicable to the case at bar. Should Officers Presley and Shelburn have detained appellant until a search warrant could be obtained? Clearly not, in light of the Harris decision. Here, as in Harris, the informer’s information was not corroborated until the time the arrest was made. With as many facts as were corroborated, the officers had probable cause to suspect that the stolen radio was somewhere in the vehicle. The exigent circumstances are present in the instant case just as they were in Harris v. State, supra.

In Brown v. State, 475 S.W.2d 938, 950 , a search of the trunk of an automobile that Brown had been driving was made in his absence without a warrant some twelve hours after the officers received information of the crime of murder. Presiding Judge Onion, in discussing an emergency within the meaning of the “exigency rule,” wrote: “And the criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact” and cited several cases to the same effect.

For cases from other jurisdictions authorizing the search of motor vehicles and in some instances their trunks, see United States v. Menke, 468 F.2d 20 (3 Cir. 1972) (a well reasoned opinion by Judge Aldisert); State v. Jones, 1972, 263 La. 164 , 267 So.2d 559 ; United States v. Gomori, 437 F.2d 312 (4th Cir. 1971); United States *773 v. Free, 141 U.S.App.D.C. 198 , 437 F.2d 631 (1970); Dodd v. Beto, 435 F.2d 868 (5th Cir. 1970), upholding Dodd v. State, 436 S.W.2d 149 (Tex.Cr.App.1969); United States v. Drew, 436 F.2d 529 (5th Cir.); and United States v. Sutton, 341 F.Supp. 320 (D.C.W;D.Tenn.1972), for a discussion of the factors to be considered in permitting a search without a warrant.

For other Texas cases, see Gomez v. State, 470 S.W.2d 871 (Tex.Cr.App.1971); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.) and Coyne v. State, 485 S.W.2d 917 (Tex.Cr.App.1972).

For the reasons stated in the original dissenting opinion and in this opinion, I agree, as I did on the State’s motion for rehearing, that the State’s second motion for rehearing should be granted and the judgment affirmed.