Duncantell v. State

ROBERTS, Judge,

dissenting.

This case is before us pursuant to an out-of-time appeal granted to appellant by per curiam opinion in No. 49,828 on April 2, 1975.

At 3:30 a. m. on November 12, 1971, Houston Police Officers Miller and Trumble noticed appellant, then a candidate for the Houston City Council, entering Dowling Street in his car with his headlights out. Appellant turned his lights on but then increased his speed to forty-seven miles-per-hour in a thirty mile-per:hour zone. After pursuing appellant for more than ten blocks, the officers finally stopped him and pulled up beside his car. Appellant resisted removal from his automobile and, after a struggle, the officers subdued and handcuffed him on the ground outside his car. Miller testified that appellant appeared to be “under a form of intoxication.”

In response to a call for assistance, other officers began arriving at the scene almost immediately. Officer Bell, in response to Miller’s request, conducted a search of the interior of appellant’s car, finding a penny matchbox containing marihuana on the driver’s side of the dashboard. Bell testified that this search commenced while appellant was still lying handcuffed face down on the ground with Miller and Trum-ble kneeling beside him. Miller testified that the search was conducted while appellant sat handcuffed in the back of his patrol car, with both officers standing next to him.

Appellant contends, among other things, that the search of his car was unlawful and that the State improperly impeached his testimony.

I cannot agree that the warrantless search which led to the discovery of the marihuana was constitutional, and I would reverse on this ground. I observe at the outset that this search cannot be justified as an automobile search based on probable cause and exigent circumstances. Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970); Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972); Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). Neither the traffic offenses nor the assault carried with them fruits or instrumentalities for which there was probable cause to search. Thomas v. State, - S.W.2d - (No. 50,941, delivered March 10, 1976 and now pending on rehearing). The liquor which Officer Miller smelled on appellant’s breath and his apparent intoxicated condition might have afforded cause to search *259 for liquor. Thompson v. State, 398 S.W.2d 942 (Tex.Cr.App.1966); Adair v. State, 427 S.W.2d 67, 74 (Tex.Cr.App.1967) (dissenting opinion). But a search is reasonable only if its scope is limited to the purpose which justified its initiation. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971). A search for the purpose of discovering liquor should not extend into a matchbox. Compare Pace v. Beto, 469 F.2d 1389 (5th Cir. 1972). Nor did probable cause to search develop after appellant had been arrested and subdued. Cf. Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967); Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Borner v. State, 521 S.W.2d 852, 856 (Tex.Cr.App.1975).

Therefore, the search can only be upheld as a protective search for weapons or as a search incident to an arrest. It is well established that officers are justified in conducting a limited search for weapons after an investigatory detention, Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); or even after an arrest for a routine traffic offense if the officer has reason to believe that he is in danger of bodily harm or that the suspect is armed or dangerous. Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Borner v. State, supra at 855; Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971). In this case, the appellant had already been either subdued and handcuffed on the ground or placed in the back of the patrol car, with two officers guarding him, before the car search by a third officer began. Appellant was scarcely in a position to harm anyone, even if he could have lunged back into the car for a weapon. Cf. Imhoff v. State, 494 S.W.2d 919 (Tex.Cr.App.1973). The officers testified at trial that they were not in fear of their lives at the time the search was conducted. Beck v. State, 547 S.W.2d 266 (Tex.Cr.App.1976); Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974); cf. Wood v. State, supra. Furthermore, it is hard to imagine a dangerous weapon being concealed in a penny matchbox, although this was the justification advanced for the search by the officers. Pace v. Beto, supra. I conclude, therefore, that the car search cannot be justified as necessary for the protection of the arresting officers.

The exception to the warrant requirement for searches incident to arrest, however, is broader than the protective Terry-type search. For one thing, its objects can include destructible evidence as well as weapons. Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969); Preston v. United States, 376 U.S. 364 , 84 S.Ct. 881 , 11 L.Ed.2d 777 (1964). The search of the person permitted by United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), after a routine traffic arrest, was much broader than that permitted by Terry v. Ohio, supra, even extending into a crumpled cigarette package. And the scope of the search incident to arrest extends to areas under the arres-tee’s immediate control. Chimel, supra; Preston, supra. Clearly, the search could not extend to the locked glove compartment or the trunk of the car, since an arrestee could hardly reach these areas quickly and obtain a weapon or destroy evidence. Fry v. State, 493 S.W.2d 758, 761 (Tex.Cr.App.1972); Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974) (dissenting opinion, fn. 2).

There can be no question that appellant was under arrest at the time of the search. In contrast to the situations in Beck, supra, Thomas, supra, and Wilson, supra, he was not merely being detained during the writing of a traffic citation. The question becomes, then, was the scope of the search reasonably related to its purpose? The cases make it clear that the area searched must be under the arrestee’s immediate control, and be for the purpose of preventing him from obtaining weapons or destroying evidence. Appellant was either face down on the ground with his hands handcuffed behind him or he was sitting in the back of the patrol car in handcuffs when the search began. At this time, Officers Miller and Trumble were either both kneeling beside the appellant on the ground or *260 standing between his seat in the patrol car and the car being searched. There is no way the appellant could have reached a weapon or evidence in his car, since the car was no longer under his immediate control. Beck, supra; and see Ghimel, supra. I would therefore hold that the search was not incident to appellant’s arrest. 1

From all of the foregoing, I conclude that the search was unlawful and hence in violation of the Fourth Amendment of the United States Constitution as well as Art. I, Sec. 9 of the Texas Constitution. It follows that the trial court erred in failing to suppress the seized evidence and that the judgment should be reversed for this reason.

PHILLIPS, J., joins in this dissent.

. Neither can I agree that the search was legitimate as an “inventory search” or that the search was harmless because a later inventory might have been allowable. See South Dakota v. Opperman, 428 U.S. 364 , 96 S.Ct. 3092 , 49 L.Ed.2d 1000 (1976); Robertson v. State, 541 S.W.2d 608 (Tex.Cr.App.1976). There is simply nothing in this record to show that an inventory search was undertaken or that such searches were a part of routine police practice. See Opperman, supra, 428 U.S. at 366, 369, 375-376 , 96 S.Ct. 3092 .