Adair v. State, 40795

• Decision Date: 27 March 1967
• Docket Number: No. 40795,40795
• Citation: 427 S.W.2d 67
• Parties: William Edwin ADAIR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 67

427 S.W.2d 67

William Edwin ADAIR, Appellant, v. The STATE of Texas, Appellee.

No. 40795.

Court of Criminal Appeals of Texas.

March 27, 1967.

Rehearing Denied May 15, 1968.

Charles W. Tessmer, Henry J. Novak, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., Cecil Emerson, Russell Ormesher and Kerry P. Fitzgerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

The conviction is for unlawfully carrying a pistol; the punishment, a fine of $101.

Trial was before the court, a jury being waived, upon appellant's plea of not guilty.

The evidence shows that the pistol was recovered from underneath the arm rest in the middle of the front seat of appellant's automobile by a City of Dallas police officer on the occasion of his arrest for a moving traffic violation.

It was further shown that prior to the search, the appellant 'kept getting in front' of the officer as he walked toward the automobile, which actions aroused the officer's suspicions and indicated to him that appellant was trying to hide something.

In his brief, appellant urges one ground of error, designated as a proposition of law, which is as follows:

'The search of the defendant's automobile was unreasonable in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States for the reason that said search was not based upon probable cause.'

Recently, in Lane v. State, Tex.Cr.App., 424 S.W.2d 925, Cause No. 40,222, opinion delivered April 12, 1967, not yet reported, this court overruled a similar contention in upholding the search of an automobile, incident to the arrest of the driver for a traffic violation, which led to the finding of a pistol in the glove compartment.

We adhere to such holding, and overrule appellant's contention.

The judgment is affirmed.

DISSENTING OPINION

ONION, Judge.

On the record before us I must dissent to the affirmance of this case for the evidence clearly demonstrates that the arrest of the appellant for the traffic offense of changing lanes without properly signaling was a pretext to enable the arresting officer to search the appellant and his car. Therefore, I am convinced the search was unreasonable.

Further, I cannot agree that we can continue to hold that a lawful arrest for a minor traffic violation will ipso facto authorize a search of the driver and the vehicle, without ever questioning its reasonableness. The law is constantly changing, and certain limitations upon the 'incident to arrest' exception to the commands of the Fourth Amendment, United States Constitution, and Article I, Sec. 9, Texas Constitution, Vernon's Ann.St., have developed. ¹ See Grundstrom v. Beto, D.C., 273 F.Supp. 912; Amador-Gonzalez v. United States, 391 F.2d 308 (5th Cir., No. 23,480--January 10, 1968). We are blinking at reality to continue to say that a mere traffic violation in and of itself will always justify a subsequent search of the vehicle involved, and that the search is reasonable per se whether such search is related to the traffic offense or not. The validity of an arrest does not always legitimate a search. General or exploratory searches are condemned even when they are incident to a lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 62, 70 S.Ct. 430, 94 L.Ed. 653; Carlo v. United States, 2d Cir., 286 F.2d 841, 846.

When the prosecution relies upon a recognized exception to the Fourth Amendment requirement that no search be conducted in absence of a search warrant based upon probable cause, the burden is upon it to show the need for making use thereof. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.

The case at bar, as the facts will reflect, does not come within the 'plain sight' exception established in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, which rule permits an officer to investigate and seize property visible to him without a search, if he is lawfully in a position enabling him to see the object seized. See also Nunez v. United States (5th Cir.) 370 F.2d 538.

Neither can it be that the search in question comes within the doctrine or exception permitting a warrantless search of a vehicle not incident to arrest when an officer has probable cause to believe that the vehicle is being used to carry contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.

Recognizing this, the State, in the case at bar, relies solely upon the 'incident to arrest' exception to justify the search and cites only Lane v. State, Tex.Cr.App., 424 S.W.2d 925 (No. 40,222). ²

We now turn to the facts of the case at bar. The only witness called by the State was Officer P. G. Brown, Dallas Police Department. The appellant did not testify or offer other witnesses. It is observed that by agreement the motion to suppress and the trial on the merits were heard together. The affidavit of the appellant was offered in connection with his motion to suppress. See Article 28.01, Vernon's Ann.C.C.P.

Officer Brown related that at 2:15 a.m. on July 7, 1966, he was talking to the owner of a lounge or bar in the 4300 block of Bryan Street with whom he was acquainted and who had in his possession a large sum of money. Officer Brown agreed to take him home. As Brown began to back out of his parking place in his unmarked police vehicle he observed an open 1965 Lincoln Continental convertible automobile drive past and speed up after the driver had looked towards him. After receiving a negative response to his inquiry if the lounge owner knew the driver, Brown began to follow the automobile.

Brown testified that he followed the Continental convertible for six blocks on Bryan Street and after a turn for eight or nine blocks on Washington Street; that during this time the driver (later identified as the appellant) kept looking at him either in the rear view mirror or by turning around; that he (Brown) did follow appellant's automobile on Bryan Street without turning on the car lights of his unmarked police vehicle; that after turning on to Lemmon Avenue appellant changed lanes in the 2700 block thereof without giving a signal indicating such change; that at such time he turned on his red lights (recessed in the grill of the unmarked vehicle), blew his horn, and appellant stopped his automobile.

Officer Brown further related that at this time the appellant, who was alone, got out of the convertible and walked back to the police vehicle, inquired of Brown if he knew what he was doing and threatened to get Brown's job; that the appellant lifted up his badge and wrote the badge number down on a pad with a pencil; that appellant repeatedly inquired about the identity of the other person in the police car and his authority to be there; that after several requests the appellant produced his driver's license; that he (Brown) called the dispatcher and determined that the appellant was not a wanted person and that the convertible was not stolen; that these events occurred prior to the search of appellant's automobile which revealed the pistol.

When pressed for a definite answer, Brown stated that he did not form the opinion that the appellant was drunk or under the influence of drugs at the time, though he did observe the appellant had used a strong shaving lotion.

Brown related that the appellant had kept getting in front of him as he walked towards the convertible but that such actions did not indicate to him and he did not believe appellant was trying to prevent a search of the convertible; that he had no difficulty with the appellant and that he (Brown) 'just kept laughing and trying to be jolly'; that appellant's automobile was a convertible and that the top and the windows were down at the time of the search.

Brown further testified that during the search of the automobile he found .22 cal. shells in the glove compartment after he opened it and a loaded .22 cal. Germanmade revolver after he lifted up the arm rest in the front seat; that at the time of such discovery appellant was standing right behind him to his right; that appellant did not consent to the search of his automobile.

Brown's testimony further shows that he did not tell the appellant that he was under arrest until the pistol was found and that he did not search appellant's person until after he had searched the automobile; that the appellant was placed in jail for 'investigation of CPW' and 'for improper change in lanes with no signal'; that no arrest for speeding or other offenses were filed and that he would have filed any other violations observed. Brown further testified that at the time of the arrest that he did not know the appellant and had never received any information concerning the appellant; that he had not received any information that any crime had been committed.

The record reflects no discussion between appellant and Brown as to the traffic offense itself. With regard to the purpose for which the search was actually made, it is interesting to note that Brown testified that shortly after he had stopped the appellant he informed him to the effect, 'I'd like to look inside your car, sir.'

Particularly revealing is the following excerpt taken from the transcription of the court reporter's notes:

'Q. * * * Were you watching to see if he would make some kind of traffic violation so you could stop him?

'A. I was watching any unusual moves he might have made.

'Q. And for the blocks you went you didn't notice any violation until you saw him change lanes?

'A. That is correct, except--

'Q. And, I suppose you had no prior knowledge as to who the driver of the car was or where he came from?

'A. No, sir, I did not.'

The record reflects that Officer Brown was a member of the Radio Patrol, but there is no showing that his principal duty was traffic control in his unmarked police vehicle. There can be, of course, no question about his...