Taylor v. State

• Decision Date: 14 June 1967
• Docket Number: No. 40336,40336
• Parties: Richard Arland TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 403

421 S.W.2d 403

Richard Arland TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 40336.

Court of Criminal Appeals of Texas.

June 14, 1967.

Rehearing Denied Oct. 25, 1967.

Second Rehearing Denied Dec. 20, 1967.

Ray & Kirkpatrick, by C. L. Ray, Jr., Marshall, for appellant.

Charles A. Allen, Dist. Atty., Marshall, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 10 years.

Trial was before a jury under the 1965 Code of Criminal Procedure.

Appellant declined to enter a plea and the court entered the plea of not guilty for him.

The question which controls the disposition of this appeal is the legality of the search of the automobile appellant was driving and the seizure of marihuana cigarettes, bulk marihuana and cigarette butts found in a coffee can in the trunk.

This search was made at the courthouse immediately after appellant and the other occupant of the car were taken upstairs.

The State Highway Patrolman who drove the car from Waskom, where there was a magistrate, examined and searched the front part of the car before he obtained the keys from appellant and opened the trunk. He closed the trunk and retained the keys until he re-opened the trunk at the county seat and discovered the marihuana.

The search of the automobile at Waskom, as well as the search and seizure at the courthouse, is attacked as unreasonable and illegal.

The facts relating to the examination and search of the car at Waskom, which appellant contends are insufficient to justify the search as incident to the arrest or as reasonable under Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, are these:

Appellant was driving an automobile having California license plates. He was stopped by Texas Highway Patrolmen about eight miles from Marshall, the County Seat, for the traffic offense of passing in a 'no passing' zone. He was asked for his driver's license and said he had none. He was asked if he had other identification or anything with his name on it and he said he did not, and gave as reason that he had been robbed in El Paso (more than 750 miles away).

The automobile was not searched or examined at the scene. There were some clothes hanging in the car and the officers were not aware of the fact that there was a passenger in the back seat.

The Patrolman told appellant that he would be filed on and he was directed to follow the patrol car to the magistrate's office.

When one of the patrolmen went into the office to wait for the magistrate the other went to appellant's car, the reason given being: 'Well, he didn't have any identification who he was, didn't have any identification to show the car belonged to him, and we suspected that it was stolen.'

He looked in the car 'to see if there was anything there that might have a name or identification in it' and saw a canvas bag on the front floorboard. He opened the car door and, as he was opening the bag, a man who 'seemed to be groggy, somewhere near the state of intoxication * * * raised up out of the back seat.' Upon seeing that the bag contained 'Rolls of money, stacks of money,' the officer drew his pistol, ordered the man out of the car and handcuffed him. He then 'flipped the lid off of a box' on the rear floorboard and uncovered two pistols, a .38 caliber revolver and a .32 caliber automatic.

The car keys were obtained by the officer from appellant. He opened the trunk before driving the car to the courthouse where appellant and his companion were taken in other cars.

Relying upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, appellant contends that the examination and search of the car after appellant had been permitted to drive it to the magistrate's office was not a search as an incident to appellant's arrest for passing in a no passing zone, because a search at another time and place is simply not incident to the arrest.

We are not disposed to extend the rule announced in Preston v. United States, supra, to prohibit an inspection of an automobile after the driver has been permitted to drive it a few miles to a magistrate's office in cases where the driver has no license or identification and gives an unreasonable explanation therefor.

Aided by the more recent opinion of the Supreme Court in Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, we are convinced that the search of the car at the magistrate's office, to where it was driven by appellant, and the continuing search at the courthouse were justified as incident to the arrest of the driver who had no license, registration or identification and who accounted for this by claiming that he had been robbed in El Paso, more than 750 miles away, and also by the Texas Statutes, Art. 18.22 Vernon's Ann.C.C.P. which makes it the duty of officers to prevent the consequences of theft by seizing personal property which they have reasonable ground to suspect was stolen.

As pointed out by the Supreme Court in Cooper v. State of California, supra, and in Preston v. United States, supra, the question there decided was not whether the search was authorized by state law, but whether the search was reasonable under the Fourth Amendment. Both opinions make it clear that whether a search is reasonable depends upon the facts and circumstances of each case.

Though the legality of the search on probable cause may not be determined from its fruits or after-acquired facts, it is interesting to note that the investigation of which the inspection of the car was an integral part disclosed: (1) that the car being driven by appellant did not belong to him; (2) that appellant gave his name as James Dewayne Waade, while his true name is Richard Arland Taylor; (3) the man who raised up out of the back seat gave his name as Rod Carlton Lawrence, which was fictitious; (4) the car was not a stolen car but the money in the canvas bag had been obtained in the robbery of a bank.

Unlike Preston, supra, the car was not taken into custody to keep it for the driver or whomever he sent for it, but to prevent the consequences of theft.

Also, as pointed out by the Supreme Court in the cases cited, the relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.

This test is in effect the same as that required under Art. 18.22 C.C.P. of the Texas Statutes to justify the seizure of stolen property-there must be reasonable grounds to suppose the property to be stolen.

Under the facts and circumstances of this case, we conclude that the evidence obtained as the result of the search of the car was lawfully obtained and the trial court did not err in overruling appellant's motion to suppress and exclude it.

The judgment is affirmed.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Judge.

In a scholarly presented motion and brief, appellant's able court-appointed counsel vigorously challenges the conclusion reached in our original opinion as to the reasonableness of the 'second' warrantless search at Marshall of the automobile involved without appellant's consent.

The Fourth Amendment is enforceable against the States through the Fourteenth Amendment and renders inadmissible in a State court evidence seized in violation of its provisions. Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; See Article 38.23, Vernon's Ann.C.C.P.

The relevant test, in cases like that at bar, is whether the search was reasonable under all of the circumstances, for it is only unreasonable searches that are prohibited by the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; and that which is reasonable cannot be determined by a fixed formula; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, nor can it be stated in rigid and absolute terms. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. In short, whether a search and seizure is reasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.

Applied literally, the decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, would seem, at first blush, to render inadmissible the fruits of the search in question. In dealing with the search of an automobile in Preston, the United States Supreme Court said, '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.' In Preston, the Supreme Court did not hold a search without a warrant can be reasonable only if it is made as incident to an arrest. It pointed out that there the search was sought to be sustained solely upon that basis and that the effort failed because (1) the offense for which the defendant was arrested in...