# Petition — Texas v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0766%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 67 ## Text — 1 ae | “FILED. IN THE JUL 23 1975 / SUPREME COURT OF THE UNITED) Saeetanne. nue | OCTOBER TERM, 1974 : a -~124 * * STATE OF TEXAS, Petitioner V. EARL ELMER WHITE, Respondent & * * PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS * * * JOHN L. HILL Attorney General of Texas DAVID M. KENDALL First Assistant Attorney Generai JOE B. DIBRELL Assistant Attorney General P. O. Box 12548 Capitol Station Austin, Texas 78711 TOM CURTIS District Attorney 47th Judicial District of Texas 509 Courthouse Amarillo, Texas 79101 Counsel for Petitioner IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 NO. STATE OF TEXAS, Petitioner V. EARL ELMER WHITE, Respondent * a ® PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS a * x JOHN L. HILL Attorney General of Texas DAVID M. KENDALL First Assistant Attorney General JOE B. DIBRELL Assistant Attorney General P. O. Box 12548 Capitol Station Austin, Texas 78711 TOM CURTIS Di.strict Attorney 47th Judicial District of Texas 502 Courthouse Amarillo, Texas 79101 Counsel for Petitioner SUBJECT INDEX Page { PAOLO foe 8 Be Pee a a a a a l DOTS IS Sic ecew ew eeescanees 2 | QUESTION PRESENTED ............ 3 | CONSTITUTIONAL PROVISIONS | ES a a 3 STATEMENT OF THE CASE: A. GENERAL BACKGROUND...... 4 B. FACTS MATERIAL TO THE QUESTION PRESENTED....... 4 C. MANNER IN WHICH THE FEDERAL QUESTION WAS a ee 6 REASONS FOR GRANTING THE WRIT ..... 2 ee 11 oo kf 13 APPENDIX A: OPINION OF TEXAS COURT OF CRIMINAL APPENDIX B: DISSENTING OPINION ON STATE’S MOTION FOR REHEARING, JUDGE MORRISON, TEXAS COURT OF CRIMINAL APPEALS. ..... lb APPENDIX C: DISSENTING OPINION ON STATE’S MOTION FOR REHEARING, JUDGE DOUGLAS, -ji- TEX/.S COURT OF CRIMINAL APPEALS..... lc APPENDIX D: JUDGMENT OF TEXAS COURT OF CRIMINAL gg OF Pere ee ld INDEX OF AUTHORITIES CASES Page Chambers v. Maroney, 399 U.S, 42 i ris 3, 6, 7, 8, 9, 10, 11 Hass v. Oregon, U.S. 43 L.Ed.2d 570 (No. 73-1452, oo A eee 9 Stoddard v. State, 475 S.W.2d 744 (Tem, Vem. AM EGFR) oc 6 + 4s ee 7 OTHER AUTHORITIES: UNITED STATES CONSTITUTION Agnenmmnens TY . «6 0 0 6 808 8 ee 3, 10 Amendment XIV, Sec. ......... 4, 10 28 United States Code Sec, 1257(3)....... 2 Vernon’s Annotated Penal Code, . AM, FO cece nse ee ae eee 4 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1974 *_ * * STATE OF TEXAS, Petitioner V. EARL ELMER WHITE, Respcndent PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS * * * The Petitioner, State of Texas, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the Court of Criminal Ap- peals of Texas entered in this proceeding on April 25, 1975. OPINIONS BELOW The opinion of the Court of Criminal Appeals -2- of Texas reversing and remanding White’s convic- tion of attempting to pass a forged instrument, Ap- pendix A hereto, will be reported at 521 S. W: 2d 255 (1975). The dissenting opinions of two Judges of the Court of Criminal Appeals of Texas on that Court’s over-ruling of the State’s first motion for rehearing are Appendices B and C hereto, and will be reported in 521 S. W. 2d 258 (1975). JURISDICTION The first opinion of the Court of Criminal Ap- peals of Texas, the Court of last resort in criminal cases ofthat State, Appendix A hereto, was delivered on July 2, 1974. That Court over-ruled the State’s first motion for rehearing with two Judges dissent- ing, Appendices B and C, on April 2, 1975, and on April 23, 1975, over-ruled the State’s motion for leave to file second motion for rehearing and to stay mandate pending resort to this Court for certiorari. Judgment and mandate of the Courtof Criminal Ap- peals of Texas was entered reversing and remand- ing the case back to the 108th Judicial District Court of Potter County, Texas, on April 25, 1975; and this petition for writ of certiorari was filed within 90 days of that date, pursuant to Rule 22(1). A copy of the Judgment is attached hereto as Appendix D. This Court’s jurisdiction is invoked under 28 U.S.C, Sec. 1257(3), upon the basis that the opinion by the highest court inthe State of Texas concerning Criminal matters imposes upon the State greater restrictions inthe introductionof evidence under the Fourth Amendment to the United States Constitution as a matter of Federal constitutional law than has aii. been impesed by the United States Supreme Court in ics interpretation of the Fourth Amendment to the United States Constitution. The holding of the Texas Court of Criminal Appeals was that “for Federal constitutional reasons, the prosecution could not utilize otherwise relevant evidence.” QUESTION PRESENTED Notwithstanding this Court’s decision inCham- bers v. Maroney, 399 U.S, 42(1970), does the Fourth Amendment, as applicable to the States through the Fourteenth Amendment, prohibit the use in evidence by the prosecution of items seized ina warrantless search of an automobile where probable cause to search the automobile existed at the place of arrest but the search was not made until after the automo- bile was removed to the police station and searched 30 to 50 minutes later? Simply stated, the question presented is whether or not exigent circumstances, as interpreted by this Court in Chambers v. Maroney, supra, were not shown to exist merely because the seizure of the automobile took place at two o'clock in the afternoon in a city and there was no showing that a magistrate was not readily avail- able, that there was no prospect of the car being taken from the station by anyone and that the search at the scene of the arrest would not have been dangerous to the officers. CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amendment IV: “The right of the people to be secure -4- in their persons, houses, papers, and effects, against unreasonable searches and seizures. .. United States Constitution, Amendment XIV, Section lL: - . » Nor shall any State deprive any person of life, liberty or property, without due process of law. . .” STATEMENT OF THE CASE A, General Background White as convicted upontrial by a jury of know- ingly attempting to pass as true a forged instrument in writing (Vernon’s Ann. P.C, Art. 996). He appeal- ed his conviction to the Texas Court of Criminal Ap- peals, which ina 3-2 decision reversed the judgment of conviction on the grounds that certain evidence admitted at the trial was unlawfully obtained in vio- lation of the United States Constitution and should not have been admitted. See Appendix A hereto, The State’s motion for rehearing was denied, B. Facts Material to the Question Presented: White was arrested at approximately 1:30 P.M., June 28, 1972, at Teller Drive-up Window No. 7 of the First National Bank of Amarillo. The arrest was made on the basis of informationfrom the American National Bank of Amarillo received by Officer Jimmy Stevens at about 1:20 P.M. that White had attempted to pass four checks there, andon informa- tion received by Officer Crowell from the First National Bank that White was inthe act of attempting -* to pass certain checks at one of the drive-in win- dows at that bank, The car which White drove was described to Officer Stevens as a blue 1966 Lincoln Continental (S/F 23, 24). Crowell and Stevens pro- ceeded to the First National Bank, where they found White in his car at the No. 7 drive-up window. He had already handed the teller four checks and a deposit slip with a request for a portion of the amount in cash, and the teller was waiting for the police before acting upon the tender of deposit, The _ Officers obtained from the teller the checks and deposit slip White had attempted to pass and ordered him to drive across the street and park at the curb. While he was doing so, an official of the bank and Officer Crowell observed him making a hand move- ment toward the glove compartment, and then toward the seat as though attempting to “stuff” something between the seats (S/F 9, 13). White was ordered out of the car and was taken by Officer Stevens in the police car to the poiice station, about seven blocks distance, Officer Crowell removed White’s car from the public street in downtown Amarillo and drove it to the police station and parked it in the driveway. He gave Officer Stevens the car keys (S/F 17). While in the car, Crowell did not see or look for any checks (S/F 18), At the station, Stevens talked to White for 30 to 40 minutes and attempted to get his consent for a search of the car, White refused to give such con- sent. Thereupon, Stevens and Crowell, without ob- taining a search warrant, made a searchof White’s car, In addition to the other information, Officer Stevens also had information that White had attempt- ed to pass checks at the American National Bank prior to his arrest at the First National Bank drive- -6- up window and that he had reason to believe that he had the American National Bank slip and checks in the automobile when he was arrested. Theofficers found four wrinkled checks of the same nature as those attempted to be passed, between the fold-down console and the front seat ofthe car (S/F 27). These checks were admitted in evidence over White’s objection (S/F 41). C, Manner in Which Federal Question was Raised The Federal question presented herein was originally raised by White, in his pre-trial Motion to Suppress the Evidence obtained by the officers in the search of White’s car (S/F 1), White’s counsel in making his objection asked the trial judge if she was aware of the case of Chambers v. Maroney, 399 U.S. 42 (1970). He then stated that the search in that case was reasonable because the officers hada re- port that a robbery had been committed and that the car had been stopped at night. He pointed out that in the present case the facts were different because the arrest was made in the daytime andthecar was not reported to be occupied by robbers, and that Chambers v. Maroney was not applicable (S/F 39). When the trial judge ordered the checks admit- ted into evidence she stated: “| will find there was probable cause for the arrest and probable cause for the search as well. And since it was a moving vehicle, there were exigent Cir- cumstances that would have permitted a search at the scene, UnderChambers yv, Maroney, | will find that the fruits of the we search, even though it was made at a later point at the police station, are ad- missable in evidence.” (S/F 41). On White’s appeal tothe Texas Courtof Crim- inal Appeals, this ruling was assigned as error in White’s brief as follows: “The trial court erred in overrul- ing a motion to suppress evidence unlaw- fully seized as the result of a warrantless search of defendant’s automobile.” (Ap- pellant’s Brief, at 3) In its decision reversing White’s conviction, the Court of Criminal Appeals relied on Chambers v. Maroney, in holding that at the time of the search White was in custody atthe police Station, therefore the search was not incident to the arrest. See Ap- pendix A hereto. That Court further stated that the officers made no attempt to give any reason for fail- ing to get a warrant, that althoughacar is movable there was no evidence of any prospect of it being taken from the station, and that the arrest was not made out on a lonely road around midnight, where the search might have been dangerous to the of- ficers, The Court of Criminal Appeals then found that in the absence of any exigent circumstances which are necessary to justify a warrantless search, there was no justification for a search without,a warrant, relying on Stoddard v. State, 475 S.W. 2d 744, 799 (Tx, Crim, App. 1972), citing Chambers v, Maroney, 399 U.S. 47. See Appendix A hereto. a REASONS FOR GRANTING THE WRIT The Texas Court of Criminal Appeals has decided an important question of Federal constitu- tional law in amanner inconflict withthe applicable decisions of this Court. In Chambers v. Maroney, 399 U.S. 42, this Court stated, “It does not constitute a violation of an accused’s Fourth Amendment rights for the police officers to make a warrant- less search of an automobile taken to the police station after the accused and others have been arrested while riding in the automobile, where (1) there was prob- able cause to arrest the occupants of the automobile for armed robbery and to search the automobile for guns and stolen money, (2) an immediate search of the automobile at the time and place of the arrest would have been constitutionally permissible, and (3) it was not unreason- able to take the automobile to the police Station before making the search, and probable cause for the search still existed after the automobile ‘was taken to the police station.” In Chambers the Court pointed out that, as the basis for the conclusion that exigent circumstances existed, “(t)he blue stationwagon could have hs been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target to search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless sei- zure of the car and the denial of its use to anyone until a warrant is secured.” 399 U.S, at 52. It is very clear that the facts in Chambers were very similar to the facts in this cause. The owner of the automobile was in custody both in Chambers and in this case. Probable cause to search the automobile existed in Chambers and in this case at the scene of the arrest. There was no showing and no reliance by the Court upon the fact that it would have been dangerous or inconvenient to the officers to search the automobile at the scene, either in Chambers or inthiscase. The availability of a magistrate in order to issue a search warrant was not an issue either in Chambers or before the trial court in this case, This Court stated in Hass v. Oregon, U.S. 43 L.Ed.2d 570, (No. 73-1452, March 19, 1975): “A state is free as a matter of its own to impose greater restrictions on police activity than those this court holds to be necessary upon Federal constitu- tional standards. But of course, a State may not impose greater restrictions as -10- a matter of Federal constitutional law when this court specifically refrains from imposing them,” It is clear from the opinion in this cause that the Texas Court of Criminal Appeals has unduly restricted the application of “exigent circum- stances” as interpreted by this Court inChambers, Supra, and therefore improperly applied this Court’s interpretation of Fourth Amendment rights to the facts in this cause. In applying Chambers, the sole question to be answered inthis cause is not whether or not probable cause existed for the search, since the opinion of the Texas Court of Criminal Appeals makes it perfectly clear that the decision is not based upon this factor. Instead, the question is whether or not under the circumstances of this case it was reasonable to remove the car to the police station and search it at that location. In applying the holding of this Court in Chambers v. Maroney, supra, it becomes clear that the Texas Court of Criminal Appeals unduly restricted the application of the officers’ right to search and the use of resulting evidence inthe prosecution of White. The opinion of the Texas Court of Criminal Ap- peals also makes it perfectly clear that this decision is based solely upon the application of the Fourth Amendment to the United States Constitution through the Fourteenth Amendment to the United States Con- Stitution to a State prosecution as the applicationof these two amendments has been interpreted by this Court. Theopinionofthe CourtofCriminal Appeals cites State cases, but eachState case that is cited is based upon United States Supreme Court cases asis hte the conclusion which the Court reaches in this Cause in its application of the lack of exigent cir- cumstances under Chambers v, Maroney, supra. CONCLUSION The Texas Court of Criminal Appeals’ decision herein unduly restricts this Court’s interpretation of Fourth Amendment rights as to what constitutes a reasonable search of an automobile under exigent circumstances as determined by this Court in Chambers v. Maroney, supra. Therefore, the opinion of the Texas Court of Criminal Appeals in this case improperly prevents Texas prosecutors from using evidence which has been seized in a constitutionally permissible manner. Accordingly, and for the reasons given above, a writof certiorari should issue to review the judgment and opinion of the Texas Court of Criminal Appeals herein. Respectfully submitted, JOHN L, HILL Attorney General of Texas DAVID M, KENDALL First Assistant Attorney General JOE B, DIBRELL Assistant Attorney General P.O, Box 12548 Capitol Station Austin, Texas 78711 «12. TOM CURTIS District Attorney Amarillo, Texas 79101 Attorney for Petitioner -\™ PROOF OF SERVICE Joc. Drernce 1, Forr€rurtis, a member of the Barof the Su- preme Court of the United States, do hereby certify that a copy of the foregoing Petition for Writ of Certiorari has been served on Respondent by placing Same in the United States Mail, certified, postage prepaid, addressed as follows: Mr. Jim Brown, Attorney at Law, P.O. Box 15, Canyon, Texas 79015, on this the .2 2 day of July, 1975. JOE B. DIBRELL Assistant Attorney General lhe 4, oF ——— -la- EARL ELMER WHITE, Appellant Appeal from NO. 47,907 " Potter County THE STATE OF TEXAS, Appellee OPINION Appeal is from a conviction in a trial before a jury of knowingly attempting to pass as true a forged instrument in writing. Punishment was assessed at five years, Appellant was arrested at approximately 1:30 P.M,, June 28, 1972, at Teller Drive-up Window No. 7 ofthe First National Bankof Amarillo. The arrest was made on the basis of information from the American National Bank of Amarillo received by Officer Jimmy Stevens at about 1:20 P.M, that appel- lant had attempted to pass four checks there and on information received by Officer Crowell from the First National Bank that appellant was in the act of attempting to pass certain checks at one of the drive-in windows at that bank, Thecar which appel- lant drove was described to Officer Stevens as a blue 1966 Lincoln Continental, Crowell and Stevens pro- ceeded to the First National Bank, where they found appellant in his car at the No. 7 drive-up teller’s window. He had already handed the teller four checks and a deposit slip with a request for a por- tion of the amount incash, andtheteller was waiting for the police before acting upon the tender of deposit. The officers obtained from the teller the -2a- checks and deposit slip appellant had attempted to pass andordered appellant to drive across the street and park atthe curb, While he was doing so, an offi- cial of the bank and Officer Crowell observed him making a hand movement toward the glove compart- ment, and then toward the seat as though attempting to “stuff” something between the seats. Appellant was ordered out of the car and was taken by Officer Stevens in the police car tothe police station, about seven blocks distance. Crowell drove appellant’s car to the station and parked it inthe driveway, and gave Stevens the car keys. While inthe car, Crowell did not see or look for any checks. At the station, Stevens talked to appellant fur 30 or 45 minutes, and attempted to get his consent for a search of the car, Appellant refused to give such consent. Thereupon, Stevens and Crowell, without obtaining a search warrant, made a search of appel- lant’s car. They found four wrinkled checks of the same nature as those received by them from the First National Bankteller stuffed betweenthe fold- down console and the front seat of the car. These checks were admitted in evidence over appellant’s objection, Appellant initially makes the contention that the officers violated his rights under the Fourth Amend- ment in searching his car without first obtaining a search warrant. Since appellant was engaged in the act of com- mitting a felony in the presence oftheofficers when they apprehended him, their right to arrest him is not being questioned. The right of the officers to -3a- search his car after appellant had, at their instruc- tions, driven it across the street and before it was moved to the police station is not before us, since the officers did not make a search at that time. Officer Crowell testified that he saw no incriminat- ing papers in the car while he was moving it to the police station. At the time the search was made appellant was in Custody at the police station. Therefore, the search was not incident to the arrest. Stoddard v. State, 475 S.W.2d 744, 749, citing Prestonv. United States, 376 U.S. 364, 84S.Ct. 881, 11 L.Ed.2d 777; Chambers v. Maroney, 399 U.S. 47, 90 S.Ct. 1975, 26 L.Ed.2d 419, “/T/he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtained when the accused is safely in custody at the station house.” Chambers v. Maroney, supra. In Cady v. Dombrowski, U.S. , 93 S.Ct. 2523 (1973), the Supreme Court construed Preston v. United States, supra, as holding that “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest,” and limited its holding “for the proposition that the search chal- lenged there could not be justified as one incident to an arrest.” In Harris v. State, 486 S.W.2d 88, we cited Chambers v. Maroney, supra, as holding that “for -4a- constitutional purposes, we see no difference be- tween on the one hand seizing and holding a car be- fore presenting the probablecause issue to a magis- trate and on the other hand carrying out an immedi- ate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” However, the officers on arresting the appel- lant did not search the car immediately on arrest- ing appellant. They took him to the police station, and tried for between 30 and 40 minutes to secure his consent to search his car. He refused to give such consent. Evidently, at that time they were in doubt as to their legal right tomakea search with- Out a warrant. Having the appellant incustody, and having the keys to hiscar, which at that time was in the station breezeway, the exigencies required fora warrantless searchofthecar were not present. The officers made no attempt to give any reason for fail- ing to get a warrant. The time was around two o’clock in the afternoon, inthecityof Amarillo, and there is no showing that a magistrate was not readily available, There is no evidence that, althougha car is movable, there was any prospect of it being taken from the station by anyone. The arrest was not made out on a lonely country road around midnight, where the search might have been dangerous tothe officers, as the Supreme Court noted was inthe case in Chambers v, Maroney, supra. The Supreme Court recognizes that one of the established exceptions to the warrant requirements is the search of anautomobile onthe highway where there is probable cause to support the search, and where it is not practical to secure a warrant because -5a- the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Carroll v. United States, 267 U.S. 132, 45S.Ct. 280, 69 L.Ed 2d 543; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney, supra, These authorities support the proposition that the burden is on the State to show that the exigencies of the situation make a search without a warrant imperative. But the search of appellant’s car cannot be sustained under the auto- mobile exception, for there is no showing inthe evi- dence of any reasonable likelihood that the auto- mobile would be moved, We quote as follows from Stoddard v. State, 475 S.W.2d 744: “The general rule is that ‘searches conducted outside the judicial process, without prior approval by judge or mag- istrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well- delineated exceptions.’ Katz v. United States, 389 U.S, 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, accord Coolidge v. New Hampshire, 403 U.S. 443, 91S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). ‘Only in exigent circumstances will the judg- ment of the police as to probable cause serve as a Sufficient authorization for a search,’ Chambers v. Maroney, 399 U.S. 42, 51, 90S.Ct. 1975, 1981 (1970). The mere fact that probable cause exists will not obviate the necessity for procur- -6a- _ing a warrant, unless the search falls within one of the exceptions to the general rule, ‘Any assumption that evidence suf- ficient to support a magistrate’s disin- terested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity ....’ Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed.2d 436 (1948). ‘Belief, however well founded, that an article sought is concesled in a dwelling house, furnishes no justifica- tion for a search of that place without a warrant, And such searches are held unlawful notwithstanding facts unques- tionably showing probable cause.’ Agnel- lo v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 91S.Ct. 2022, 2030, 29 L.Ed.2d 564 (1971). “Therefore, even if the officers had prob- able cause to believe that marihuana was concealed in appellant’s automobile, that fact, standing alone, would not jus- tify a warrantless search... .” In Stoddard, the Court held that “The test is whether ‘exigent circumstances’ makes the obtain- ing of a warrant impracticable. In the instant case no showing is made as to why the obtaining of a war- rant was not practicable. .” The judgment was reversed, we -Ja- In the absence of the “exigent circumstances” which are necessary to justify a warrantless search, we find no justification for a search withouta war- rant. The four checks seized in the search were unlawfully obtained, and should not have been admit- ted. Stoddard v. State, supra. These checks, which were proved to be forged, were before the jury for their consideration at both the guilt and the punishment stage. After finding appellant guilty of attempting to pass a similar forged check, the jury assessed the maximum penalty. Art. 996, V.A.P.C. We donot find beyond a reasonable doubt that the error is harmless, The judgment is reversed, and the cause is remanded. Green, Commissioner (Delivered July 2, 1974) Opinion approved by the Court APPENDIX B -lb- EARL ELMER WHITE, Appellant Appeal from No. 47,507 V. Potter County THE STATE OF TEXAS, Appellee DISSENTING OPINION ON STATE’S MOTION FOR REHEARING At the time this case was first submitted on rehearing, Judge Jackson, then a Commissioner with this Court, prepared an opinion which | now adopt as my dissent. “We have concluded that the search of appel- lant’s automobile at the police station was legal, and the evidence thus obtained was admissible. It is conceded that appellant’s arrest was legal and that probable cause existed for the search inci- dent to that arrest at that time, but it is contended that the removal of the automobile to the police station and the warrantless search some 30 to 50 minutes later was not proper. The record shows that the felony committed in the officer’s presence was at a drive-in window of a bank on a busy street, and that it was not practical to search there. It was more consistent with the safety and convenience ofthe appellant, his automo- bile, and the officers to remove the car to the police station to complete the search incident to the arrest. - 2b- The fact that in the meantime the officers sought to obtain consent from appellant for the search, which was refused, in no way militated against the right to search, and was reasonable under the circumstances, The entire series of events culminating in the recovery of additional forged checks from appel- lant’s automobile was one continuous transaction. As was said in Taylor v. State, 421 S. W. 2d 403, cert. denied, 393 U.S. 916, 89 S. Ct. 241, 21 L. Ed., 2d 201, opinion on appellant’s motion for rehearing ‘the removal of this automobile to Marshall, and the subsequent search were a series of events consti- tuting one continuous happening.’ We have also approved later warrantless searches under similar facts in Lara v. State, 469 S. W. 2d 177, on appellant’s motion for, rehearing; and in Gomez v. State, 470 S. W. 2d 871. These holdings are in accord with Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, ... We have considered the additional grounds of error presented by appellant and find them to be without merit. The State’s Motion for Rehearing is granted and the judgment is affirmed. JACKSON,Commissioner” I dissent. MORRISON, Judge (Delivered April 2, 1975) APPENDIX C -lc- EARL ELMER WHITE, Appellant Appeal from NO, 47,507, v. Potter-County THE STATE OF TEXAS, Appellee DISSENTING OPINION ON STATE’S MOTION FOR REHEARING The majority overrules the State’s motion for rehearing without written opinion, | The majority still does not apply Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, which is the constitutional law of the United States, The State is being denied due process of law. A state has constitutional rights. See State of California v. Green, 399 U.S. 149, 90 S.Ct.1930, 26 L.Ed.2d 489 (1970). The majority is not following previously decid- ed cases by this Court. Gomezv. State, 470 S.W.2d 871, written by one of the majority in this case, upheld a search of acar atthe police station after a search was made at the time ofarrest. The arrest was made upon information given by an informant who stated that Gomez and Torres were preparing heroin for distribution and that the two would be leaving in a “‘60 Pontiac, blue and white.” l , ' _ = The dissenting opinion on the original sub- mission is withdrawn, -2ce- In the Gomez case, it is written: “The appellant also complains that the search of the automobile was illegal because the search was conducted with- out a warrant at the police station later, and not immediately at the site of the arrest. Gann’s testimony relevant to this matter “Q, a “