Fry v. State

ODOM, Judge

(dissenting).

Two members of this court remain completely convinced of the correct disposition of this case on original submission. We are deeply concerned that the majority opinion now gives the police unbridled authority to search automobiles whenever an investigative arrest can be justified. This case should be reversed for the reasons stated in my opinion on original submission. However, in light of the obvious misconceptions that have arisen concerning that opinion and in order to clearly delineate the points upon which I disagree with the majority, I again state my reasoning.

The majority position seems to be that the arresting officers did not have probable cause to search the trunk of appellant’s car until after Marshal Presley had arrived from Marble Falls and they had had an opportunity to look into the car. This position is based on their findings: (1) that the officers did not have sufficient information concerning the informant’s credibility to obtain a warrant for the search of appellant’s car while that car was at the informant’s home in Marble Falls; (2) that the locating of appellant’s car behind the drug store in Burnet did not sufficiently corroborate the informant’s tip to constitute probable cause at that time; and (3) that probable cause to search the car arose upon the finding of “a ring or rings” and “a mounting bracket for a Lafayette citizens band radio and the power cable and antenna wire hanging loose from the dashboard of the car.” The majority concludes:

“At this point of interception, every fact related by the informer, except the presence of the stolen merchandise described, was verified. Cf., e. g., Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed. 2d 327 (1959); Rangel v. State, 444 S.W.2d 924 (Tex.Cr.App.1969); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970).”

At the hearing on appellant’s motion to suppress, the following testimony, concerning the search of appellant and the interior of the car, appears :

(1) Marshal Shelburn:

“Q. Did you observe anything in the way of a weapon, or contraband, or any stolen property taken from this defendant’s person — from his body ?

A. A knife is the only object I remember — the only weapon I remember.

Q. Was it a pocket knife?

A. A pocket knife.

Q. Did you search the inside of the defendant’s car?

A. Yes, sir.

Q. What did you find — did you find any weapon or anything in the nature of contraband inside of the defendant’s car?

A. Found things — rings—

Q. In the interior — we will get to the trunk — but the interior ?

A. In the interior there were — well, was knives in there, I believe, in *774 the glove compartment and under the seat, different types of tools, screw drivers and such as that.

Q. All right. And when you had talked to Officer Presley earlier, did he tell you what stolen merchandise was allegedly in the car, what merchandise he was looking for?

A. A radio, a Citizens Band Radio.

Q. Anything else ?

A. That’s all I recall at the time.”

(2) Marshal Presley:

“Q. Did you find anything that you believed to be contraband, stolen property, on the defendant’s person ?

A. I didn’t search him, sir.

Q. Did you observe anything like that found on his person ?

A. I think there was a ring in his pocket.

Q. Did you observe any — you think there was — did you see a ring taken from his pocket ?

A. I saw a ring; I don’t remember whether it was taken from his pocket or the interior of the car.

Q. Did you search the interior of the car?

A. I helped.

Q. You helped. In the course of your search of the interior of the car, did you find anything you believed to be stolen property in the interior of the car?

A. There was a mounting bracket and connection cable for a Citizens Band radio on the dashboard.

Q. Was there a radio in the car?

A. Not in the interior, no, sir.”

At the appellant’s trial, Marshal Presley testified:

“ . . . When we first got the subject out of the car, I asked him to identify hii-self, and I asked him after he had been placed under arrest by Deputy Marshal Burns from Burnet, I asked if he had a radio of the description I was looking for and he said 'no’. We looked inside the car and there was a mounting bracket for this kind of radio under the dashboard of the car, still in place, with the power cable and the antenna wire hanging loose. When we opened the trunk, I found the radio that I was looking for, that was identified by the owner of the radio;

On cross-examination:

“Q. Was anything else stolen in this burglary of Dave’s TV Store other than a Citizens Band radio?

A. As far as we were able to determine, no, sir.

Q. Nothing else.

A. As far as we could determine.”

Also at the trial, Lt. Kendall Thomas of the Burglary Detail of the Austin Police Department, who was not present during the search but who later inventoried the items seized, testified:

“Q. All right. Now, I believe you stated you counted how many — Nineteen total rings?

A. Nineteen total rings.

Q. Altogether; of which some were ladies rings and some were men’s rings ?

A. The seventeen still had the identification on them; you know, like the dealer puts on them. Two were obviously worn rings.

Q. Now, two of them were the rings you stated you could not identify as stolen, and returned to this defendant ?

A. That is correct.

*775 Q. And the other seventeen, you kept three as evidence and returned fourteen to Mr. Anderson of the Green Leaf Nursery.

A. Right.”

From the above quoted testimony, reflecting what was found during the search of appellant’s person and of the interior of his car, the majority infers that “a ring or rings” were removed during the search incident to arrest, that they were contraband, and that the mounting bracket was stolen property. I can find only that one officer “thought” he saw “a ring” recovered as the result of such search, that two rings, recovered at some point during the search of either appellant, the interior of his car, or the trunk, were returned to him because they were “obviously worn,” and that the record affirmatively refutes the inference that the mounting bracket was contraband or that the arresting officers believed it to be contraband.

Assuming arguendo the validity of the majority position that the officers did not have probable cause to search until they had conducted a search incident to an investigative arrest, I can find nothing in the record which would give them probable cause thereafter. The state bears the burden of proving that the circumstances surrounding the search are such as to bring it within one of the specifically defined exceptions to the warrant requirement. E. g. United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 , 92 S.Ct. 2125 , 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971); United States v. Menke, 339 F.Supp. 1023 (W.D.Pa.1972); Brown v. State, Tex.Cr.App., 481 S.W.2d 106 ; Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 . Under these decisions, I find that the state has failed to meet its burden of proof in the instant case.

The majority, on the other hand, reads this record so as to supply the deficiencies in the state’s proof by innuendo and assumption. As a legal basis, they rely on the decisions of the United States Supreme Court in Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 , and Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970).

Chambers v. Maroney, supra, stands for the proposition that, "... given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station.” Coolidge v. New Hampshire, supra, at fn. 20 .

In Chambers , the initial intrusion is easily justifiable. The car was stopped on the highway less than an hour after a robbery on the basis of a specific description of the vehicle and its occupants which had been obtained from the victim of the crime and two eye-witnesses. Since these robbers were in the process of escaping, no time was available in which a warrant could be obtained. Relying on the moving vehicle cases, Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949), and Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), the court in Chambers upheld the validity of the initial intrusion.

Carroll and Brinegar dealt with situations in which officers, stationed on a lonely highway, had probable cause to believe that a particular automobile, being driven on that highway, contained “bootlegged” whiskey. The Supreme Court upheld these searches since, under the circumstances presented, to require a warrant would be to make the search impossible. The officers in these cases did not have probable cause to arrest, only probable cause to search. Therefore, the opportunity to search was “fleeting”.

In Chambers , the fact that the defendant’s automobile was stopped by the police in a dark parking lot less than an hour after the commission of the crime made the procuring of a search warrant impracticable and justified the initial intrusion. *776 The rationale of Chambers is quite clear that:

“Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.”

Thus, Chambers did not authorize all war-rantless searches of autos. It, instead, followed the well-defined exception to the warrant requirement annunciated in Carroll and Brinegar. If the officers have time to procure a warrant prior to the initial intrusion, Chambers, Carroll, and Brinegar are no longer applicable. Coolidge v. New Hampshire, supra; Chaires v. State, Tex.Cr.App., 480 S.W.2d 196 ; Stoddard v. State, supra. The question in the instant case being whether the initial intrusion was justified, the holding in Chambers is inapplicable.

In order to find “exigent circumstances” under Chambers in the instant case, the majority thus is forced to find that probable cause arose only after the officers had detained appellant for investigative purposes under Article 14.03, V.A.C.C.P. For the proposition that probable cause arose at that time, the majority relies on the holding of the Supreme Court in Draper v. United States, supra. Under the record now before us, Draper is inapplicable.

In Draper , the informant was a named “special employee” of the Bureau of Narcotics who had furnished the arresting federal narcotics agent with correct information over a six months period. The information furnished by this “special employee” was that Draper would be returning to Denver from Chicago on either the morning of September 8 or September 9, and that he would have in his possession three ounces of heroin. The arresting agent was also given a physical description of Draper, his clothing, and his mannerisms. Given the specificity of the information and the reasons for relying on such information, the Court found probable cause to arrest Draper. The Court upheld the subsequent search and seizure of evidence in Draper’s hand and in the zipper bag which he was carrying as being within the scope of a search incident to that arrest. 1

In the instant case, the majority concedes that the officers knew little concerning the informant’s reliability and that the record is devoid of evidence that they attempted to remedy this deficiency. From the above quoted portions of the record, the majority infers that rings were found during the search of appellant and his car, that they were contraband, and that either the mounting bracket was contraband or that persons who have such mounting brackets in their cars have stolen Citizens Band radios in their trunks.

The testimony concerning the finding of a ring on appellant or within the interior of his car is ambiguous, and nothing in the record indicates that the mounting bracket was contraband. The testimony of Marshal Presley at appellant’s trial, in fact, affirmatively suggests the contrary. Nothing in the record suggests that these items were contraband, were proceeds of a crime, or resembled items taken during a crime. Since the majority opinion concedes that probable cause did not arise until these items were found and since the items found were in themselves innocuous, I find nothing which would corroborate the information of an admittedly unproven informant sufficiently to constitute probable cause to search the trunk of appellant’s car. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 , 88 S.Ct. 1472 , 20 L.Ed.2d 538 (1968); Brown v. State, supra. See also Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972).

*777 As I understand the majority opinion, 2 and the state’s argument upon which it is predicated, probable cause to search the trunk of appellant’s car did not arise in the instant case until after the search incident to an investigative arrest under Draper , which provided the state with exigent circumstances under Chambers , and the reasoning of such decision somehow provides probable cause to search under Draper-, 1. e., “bootstrapping” both probable cause and exigent circumstances. Having determined that neither Chambers nor Draper can be legitimately applied in this manner, I strongly disagree with such reasoning.

Likewise, I cannot agree that this court should take upon itself the burden of correcting the deficiencies in the state’s proof by making tenuous inferences from the record, nor can I understand why the majority feels compelled to do so in the instant case. To the contrary, the state, bearing the burden of justifying a warrantless search, must clearly establish the existence of the facts upon which it relies for such justification. E. g. United States v. United States District Court, supra; Coolidge v. New Hampshire, supra; Vale v. Louisiana, 399 U.S. 30 , 90 S.Ct. 1969 , 26 L.Ed.2d 409 (1970); Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) ; Brown v. State, supra; Stoddard v. State, supra. Since the existence of the facts upon which the majority rests its decision can only be determined by inference, I find that the state has failed to meet its burden of justifying the warrantless search of the trunk.

I am concerned that the effect of the majority opinion will be to extend the scope of a protective search incident to an investigative arrest under Articlé 14.03, V.A.C. C.P., far beyond the needs for the protection of police officers. See Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969) and Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1967).

I am also concerned that the majority opinion completely and automatically obviates the need for obtaining a search warrant when the place to be searched is a moveable vehicle. See and compare, Coolidge v. New Hampshire, supra; Stoddard v. State, supra.

I vigorously dissent.

ROBERTS, J., joins in this dissent.

. Note that the search in Draper was within the limits established by Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969).

. My confusion on this point is based upon the majority’s statement, after presumably finding that probable cause to search did not arise until after the protective search, that:

“At this juncture, if not before, the officers obviously had probable cause to search the vehicle for all of the stolen property, independent of the search incidental to arrest, provided they were not required by law to first secure a search warrant under the circumstances.” [Emphasis added]

If, by this statement, the majority intends to infer that probable cause arose when Marshal Shelburn discovered appellant’s car in Burnet, as I assumed arguendo in my original opinion, they do not explain and the record does not indicate any justification for the officers’ waiting twenty minutes, with appellant’s ear surrounded and both ends of the alley blocked, without making any attempt to obtain a search warrant or show why such a warrant could not have been obtained. See my opinion in this cause on original submission.

Mention is made by the majority that “(I)t should be remembered that the incident in question occurred at approximately 1:50 a. m. Clearly, exigent circumstances were presented which would have justified the warrantless search, there being probable cause to search.” If the view taken by the majority is that the police were excused from seeking a warrant because the hour was late, I reject it. The vital protections of the Fourth Amendment should not hinge upon the convenience of the police, prosecutors and judges. If the procedures of our government are such that police officers are unable to secure warrants outside of ordinary business hours, then the cure for that problem is not to sacrifice the Fourth Amendment rights of our citizens, but to improve the warrant procuring procedure.