# Snyder v. State > Court of Criminal Appeals of Texas · January 20, 1982 · 629 S.W.2d 930 URL: https://www.frixlaw.com/law-library/cases/9777354 ## Case - **Full name:** Donald Delana SNYDER, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** January 20, 1982 - **Citations:** 629 S.W.2d 930; 29 A.L.R. 4th 755; 1982 Tex. Crim. App. LEXIS 1009 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Tom G. Davis - **Cited by:** 60 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/9777354 ## How later opinions describe it (automated extraction) - holding that absence of brake lights and a valid inspection sticker authorized police officer to arrest the defendant without a warrant; likewise, officer had probable cause to arrest defendant due to his failure to produce a valid driver's license - concluding warrantless search of an accused’s wallet, which contained methamphetamine, was permissible as a search incident to arrest for accused’s failure to produce valid driver’s license, displaying an invalid inspection sticker, and driving with nonfunctioning brake lights - holding that officer was justified in looking inside wallet during search incident to arrest ## Opinion text TEAGUE, Judge, dissenting. Finding that the majority’s opinion does not adequately set out the facts of the ease, I will first state the facts in more detail. Also, the remarks I make are limited to an in the field search by a patrolman of the wallet of a person arrested for committing minor or petty traffic offenses. My remarks do not concern the booking aspect that a person arrested for committing minor traffic offenses goes through. See, however, Murray v. State, Tex.Cr.App., 615 S.W.2d 721, 723 (1981). After observing that appellant was driving a motor vehicle without any brake lights, Houston Police Officer L. D. Garrison stopped appellant’s automobile. Thereafter, he found that appellant had an expired Louisiana driver’s license. Garrison also saw that the motor vehicle had an expired Louisiana inspection sticker. Contrary to what the majority implies, appellant was not placed under formal arrest at that time. 1 This was because, as Garrison tells us in his testimony, Houston Police Department’s policy did not authorize him to formally arrest and book 2 a person for the above offenses, as he had to first communicate with a superior officer, who actually makes the decision whether the person is to be booked. Here, Garrison communicated with his superior. After he received authority from his superior to book the appellant for committing the above minor traffic offenses, it was only then that Garrison sought to conduct any type search of appellant’s person. Garrison first conducted a “pat down” search of the appellant. When Garrison conducted the “pat down” search he felt a bulge in appellant’s right rear pocket, which caused him to remove appellant’s billfold. There is nothing to evidence anything unusual about the appearance of appellant’s wallet, i.e., it’s appearance revealed nothing more than an ordinary man’s wallet. Although Garrison was not asked to amplify on the reasons he gave for searching appellant’s wallet, many of them appear incredible. Garrison tells us that he closely examined the wallet because he wanted to: “find out whether he [appellant] had a large amount of money or any other type of contraband in his billfold.” If Garrison had seen a large amount of money in the wallet, he tells us that: “if it is not a pay day, [then] he [appellant] could have acquired that large amount of money by some other means.” Weapons also concerned Garrison, for he tells us he was looking for: “any type of weapons; razor blades, needles, or even a key for handcuffs.” (Emphasis added.) In his examination of the contents of the wallet, Garrison was also looking for evi *937 dence that might disprove who appellant said he was, and as reflected on the driver’s license. For fear that he would be wrongfully accused of keeping money he found in the wallet, Garrison tells us that he was “inventorying it [the wallet] for [his] own protection.” “It is for my own protection. Some suspects, once you stop them, if you don’t count their money once they get down town they claim that they had a larger amount of money; and it is just for my own protection that I want to know, for myself.” Asked why he did not just simply take possession of the wallet and retain it until he arrived at the station house, Garrison tells us: “I could have forgotten that it was in my pocket also, or once I got down town I could have forgotten that it was in my pocket.” In conducting his meticulous and thorough examination of the contents of the appellant’s wallet, Garrison found “stuck between the folded money” the contraband that was the basis for appellant’s conviction. Once the decision was made to formally arrest appellant, Garrison should have, in my view, followed, not the policy of the Houston Police Department, but the wording of Art. 15.17(a), V.A.C.C.P., which provides: In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law. (Emphasis added.) In one, two and three fashion, the majority’s opinion holds that (1) under the above facts Garrison “was authorized to arrest appellant without a warrant,” to which holding I do not disagree, (2) “likewise, the officer had probable cause to arrest appellant due to his failure to produce a valid driver’s license,” to which holding I also do not disagree, and (3) “A search incident to a lawful arrest requires no warrant if it is restricted to a search of the person or of objects immediately associated with the person of the arrestee.” “We find that Garrison’s warrantless search of appellant’s wallet following the arrest was permissible as a search incident to arrest.” To number 3’s holdings, I strongly disagree in light of the above stated facts, and cannot subscribe to a principle of law that when any motorist is arrested for committing a breach of our traffic laws, that person becomes subject to a full body search, as well as a complete and thorough search of items of personal property found on his person. In United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260 , 94 S.Ct. 488 , 38 L.Ed.2d 456 (1973), the Supreme Court of the United States held that the Fourth Amendment to the United States Constitution permitted an extensive war-rantless search of the person of an arrestee. In United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977), the Supreme Court held that under the Fourth Amendment police may not search the luggage and other personal property of the arrestee without a warrant, after it has been reduced to the exclusive control of the police officers; but exempted from this holding the search of personal property “immediately associated with the person of the arrestee.” *938 The facts in this cause, see supra, simply do not nicely fit under the Robinson, Gus-tafson, and Chadwick, supra, line of cases. At first blush, the named cases appear to uphold Garrison’s rifling the contents of appellant’s wallet, and did not infringe upon the protections afforded by the Fourth Amendment, as construed by a majority of the Supreme Court. Nevertheless, I do not find the above cases are applicable to the factual situation that this Court is called upon to address. Here, there is no question that Garrison lawfully arrested the appellant, and lawfully detained appellant until he could obtain approval from his superior to take appellant to the station house, when, if approval was forthcoming, he would presumably, by Garrison’s testimony, be booked. Once the superior’s approval was obtained, and the decision was made to take the appellant to the station house, I find the principles of law announced in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968); Morales v. New York, 396 U.S. 102 , 90 S.Ct. 291 , 24 L.Ed.2d 299 (1969); Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972); United States v. Brignoni-Ponce, 422 U.S. 873 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975); Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979) then became applicable to this cause, with Garrison having the lawful right to frisk the person of the appellant, i.e., such frisk being limited to a pat down search of the outer garments appellant was then wearing. Once Garrison felt the bulge in appellant’s back pocket, he was lawfully entitled to seize the item, (the wallet), and take possession of it until the booking process commenced, when he would then presumably turn the item seized over to the property officer. Cf. Art. 15.17, supra. Without more shown, he was not lawfully entitled to examine the contents of the wallet. As the facts do not concern the property officer, and what he may or may not legally be allowed to do with items of personal property turned over to him by a field officer, I do not discuss that issue. I therefore believe that once Garrison seized the appellant’s wallet, as nothing more is shown by the record, he became nothing more than the lawful caretaker or custodian of the wallet, and as nothing is shown to justify entry into or examination of the contents of the wallet, he had no legal authority under the Fourth Amendment to make entry into or examination of the contents of the wallet without a lawful warrant. Furthermore, as the wallet was immediately associated with the person of the appellant, the search of the wallet was not covered by the rules announced in Chadwick, supra, or of Robinson and Gustafson, supra. However, as Clinton, J. said in his dissenting opinion, “the Supreme Court of the United States has not yet construed the phrase ‘immediately associated with the person of the arrestee’ to include a purse. Nor has it applied the phrase to a wallet.” Furthermore, I believe that Art. 1, Sec. 9, of the Texas Constitution affords individuals arrested in Texas for committing minor or petty traffic offenses far more protection than guaranteed by the Fourth Amendment to the United States Constitution. Art. 1, Sec. 9, provides: The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath of affirmation. If the Supreme Court has seen fit to limit the degree of protection afforded by the Fourth Amendment, this does not prevent this Court from construing Art. 1, Sec. 9, of the Texas Constitution to provide persons of this State, who are arrested for minor or petty traffic offenses, a greater degree of protection from unreasonable searches and seizures by law enforcement officers, where “logic and a sound regard for the purposes of those protections have so warranted.” State v. Kaluna, 55 Haw. 361 , 520 P.2d 51 (1974). Such a construction would be in keeping with the traditions of individuality, *939 privacy and personal liberty which have marked the history of our State. In Kaluna , id., the Supreme Court of Hawaii considered the holdings in Robinson and Gustafson and flatly rejected the invitation to increase the permissible extent of warrantless searches of that State’s citizens. The Court stated that “the right to be free of ‘unreasonable’ searches and seizures under article I, section 5 of the Hawaii Constitution is enforceable by a rule of reason which requires that governmental intrusion into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances.” Such statement is in keeping with the law of this State, as enunciated in Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234 (1975), that “the scope of a search is limited to the purpose which made its initiation permissible.” See also Beck v. State, Tex.Cr.App., 547 S.W.2d 266 (1977). In Kaluna , the purposes of a search incident to arrest were also noted. The “circumstances surrounding the arrest generate the authority to search without a warrant. If these circumstances show a legitimate basis for a search — such as protection of the arresting officer or preservation of the evidence of the crime for which the arrest is made — then a search is lawful only if no broader than necessary in light of the justification.” Believing that the State has an interest in preventing introduction of contraband and weapons into places of detention, and finding that such purposes are served by the safekeeping of personal effects, without searches of the contents of those effects, it was held that the intrusion into the privacy of the individual is limited to the degree necessary to further valid governmental interests. The Colorado Supreme Court followed the example set by the Kaluna opinion in People v. Clyne, 189 Colo. 412 , 541 P.2d 71 (1975), and held that the Colorado constitution and statutes provide more protection to the individual than that allowed by Robinson and Gustafson, supra. In Clyne , the Colorado Court held that law enforcement officers may not indulge in a full search of a person if custodial arrest is optional if the individual is arrested for a petty offense, and there is neither a showing that the individual refused to sign a citation directing court appearance, or would disregard the notice to appear in court. 3 California also repudiated the effects of Robinson and Gustafson in a line of cases, including People v. Brisendine, 13 Cal.2d 528 , 119 Cal.Rptr. 315 , 531 P.2d 1099 (1975) and People v. Longwill, 14 Cal.3d 943 , 123 Cal.Rptr. 297 , 538 P.2d 753 (1975). Those cases hold that under the California constitution “the permissible scope of a search of the person incident to a valid arrest is dependent not on the single fact of the existence of a ‘custodial arrest,’ but rather on the relative danger to the officer associated with each particular arrest.” In California, therefore, “full body searches [are] impermissible when the arrest will be disposed of by a mere citation, or when the arrestee is to be transported to the station house in the police vehicle and there given the opportunity to post bond.” This distinction between arrestees who will be booked into jail and those allowed to post bail and go on their way is also observed in the states of Michigan and Alaska. Both of those states have refused to adopt Robinson and Gustafson , and instead prohibit extensive searches of the person of arrestees, beyond a weapons frisk, if the arrestee is not to be incarcerated. In People v. Garcia, 81 Mich.App. 260 , 265 N.W.2d 115 (1978), that Court’s holding was premised on the state’s interim bail statute, requiring that arrestees accused of certain petty offenses be provided an opportunity to post bail before being booked into jail. No clear statutory right to release on bail in petty offense cases exists in Alaska, but *940 such release, if practicable, was required in Zehrung v. State, 569 P.2d 189 (Alaska 1977), which also held that “absent specific articulable facts justifying the intrusion ... a warrantless search incident to arrest, other than for weapons, is unreasonable and therefore violative of the Alaska constitution if the charge on which the arrest is made is not one, evidence of which could be concealed on the person.” The decisions of the Supreme Court establish minimum constitutional standards. The States, however, are free to establish stricter standards than those required by the Supreme Court. The above out of state cases merely reflect the trend that is occurring throughout the United States. This Court should join that trend. See also, F. Gilligan, “The Aftermath of Robinson-Gus-tafson,” Vol. 2, No. 3, Search and Seizure Law Report (March, 1975); S. Davis, “State Court Expansion of Fourth Amendment Rights,” Vol. 3, No. 10, Search and Seizure Law Report (October, 1976). Regardless of what interpretations one might put on the decisions of the Supreme Court, the trail has thus been marked towards a constitutional rule in this State which would adequately balance the need for extensive intrusion into the privacy of an individual’s possessions, with the legitimate need, in some cases, for such an intrusion. Today, a majority of this Court sanctions a full custodial search of a person arrested for the most petty of traffic offenses, and authorizes an extensive search of the person of the arrestee, including the reading of the private papers in the arres-tee’s wallet, prior to the booking and incarceration of the hapless motorist. This situation cries out for a remedy; and the remedy should begin with the holding that where a person is formally arrested for committing minor or petty traffic offenses, and nothing more is shown, police officers in the field are limited to a “pat down” search of the arrestee’s outer clothing in order to determine if that person has on his person concealed weapons. If items of personal property are seized from the garments of the arrestee, neither entry into nor examination of the contents of the item of personal property seized may occur without a lawful search warrant. To the failure of the majority to subscribe to this remedy, I respectfully dissent. . There is nothing in the record to reflect that simply because a person from out of the State of Texas is arrested in Texas for violating our traffic laws, he will be summarily jailed. There is also nothing in the record to show that appellant had not permanently moved to Houston and simply had failed to obtain a valid Texas driver’s license and had his automobile inspected by an authorized Texas inspection station. The record reflects that at all times appellant cooperated with Garrison. . Garrison’s testimony reflects that when he used the term “booking,” to him “booking” encompassed “jailing” an individual. However, legally this is not necessarily so. . Although Garrison testified to the booking process, after a person is taken to the station house, there is no evidence to show that in all cases do the police jail a person for violating our traffic laws. Thus, Garrison did not negate the possibility that he would not have complied with Art. 15.17, supra, or that a magistrate would not have released the appellant on some sort of bail, without the necessity of him being jailed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777354. Public record. Not legal advice.