Lane v. State
| Citation | 424 S.W.2d 925 |
| Decision Date | 12 April 1967 |
| Docket Number | No. 40222,40222 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Parties | Sanders Lee LANE, Appellant, v. The STATE of Texas, Appellee. |
Ronald R. Waldie, Ralph Lynn McDowell, Emmett Colvin, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., James Law, Gil Shaw and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is unlawfully carrying a pistol; the punishment, a fine of $100.00.
The sole ground of error presented by defendant's brief filed in the trial court is:
'The court erred in the denial of defendant's motion to suppress, in admitting the testimony relating to the search and the fruits thereof, in violation of defendant's rights under the Fourteenth Amendment to the Constitution of the United States.'
The motion to suppress, which the court overruled, moved: 'to suppress the following evidence seized as a result of the search of his automobile * * * to wit:
(1) The pistol removed from the glove compartment of the above described automobile.
(2) Any other items seized as a result of said search; and
(3) Any statements or admissions, oral, written, taped or otherwise, made by the defendant after arrest was made or during subsequent search.'
None of the evidence or items mentioned in the motion to suppress as having been seized were offered in evidence at the trial.
It is clear from the brief that appellant's claim of error is the admission of the evidence relating to the finding of the pistol in the glove compartment of the automobile appellant was driving at an excessive speed when he was stopped by the arresting officer.
The stipulated facts reveal the following.
While on regular patrol at approximately 3:20 A.M., a police officer of the City of Dallas observed appellant driving his station wagon at a speed of 50 miles per hour in a 35 mile speed zone on Twelfth Street in Dallas.
The officer stopped appellant, who was alone in his station wagon, and ordered appellant to step from the automobile which he did.
The officer did not request appellant's permission to search the station wagon. Appellant did not give consent to a search of the car, nor did he object to the search. He remained standing by his automobile and said nothing.
The officer did not have a warrant for the arrest of appellant or a search warrant. He did not search the person of appellant until he searched the station wagon and found a pistol in the glove compartment. He then immediately searched appellant and found nothing of any significance. He radioed for assistance and upon the arrival of another police officer appellant was taken to the city jail where he was booked for the offense of carrying a pistol and was issued a citation for speeding.
As in Hardin v. State, Tex.Cr.App., 387 S.W.2d 60, we are not here dealing with a case of a search upon probable cause but a search incident to a lawful arrest. In Hardin v. State the arrest was for being drunk in a public place, and the search was of his person. Here the arrest was for speeding and the pistol was found in the glove compartment of appellant's automobile prior to the search of his person.
The right to search as an incident to a lawful arrest is not limited to a search of the person of the accused. Agnello v. United States, 269 U.S. 20, 29, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095; Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894, 895; Staton v. State, 172 Tex.Cr.R. 128, 354 S.W.2d 582; Harris v. State, 172 Tex.Cr.R. 150, 354 S.W.2d 155.
The Supreme Court stated, in Agnello v. United States, supra:
In Preston v. United States, supra, cited by appellant in support of his contention that there was no probable cause for the police officer to search appellant's station wagon, the search of the automobile held to be without probable cause and unlawful was unrelated to the arrest for vagrancy, both as to time and place. However, the Supreme Court said:
In Chapin v. State, 296 S.W. 1095, 1097, Judge Morrow said:
'the search without warrant of a person and place made contemporaneously with a lawful arrest is permissible.' (Citing Agnello v. United States, supra)
In Sutton v. State, 247 S.W.2d 894, 895, we said:
In Staton v. State, 354 S.W.2d 582, we said:
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...who pauses to examine the reasoning.' (Grundstrom v. Beto (N.D.Tex.1967) supra, 273 F.Supp. 912, 918, quoting from Lane v. State (1967) Tex.Cr.App., 424 S.W.2d 925.) This inference is supported by the fact that Officer Cameron did not even claim he suspected the presence of narcotics in def......
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