Adams v. State

• Decision Date: 02 June 1982
• Docket Number: No. 3-82-004-CR,3-82-004-CR
• Citation: 634 S.W.2d 785
• Parties: Ricky Brenc ADAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 785

634 S.W.2d 785

Ricky Brenc ADAMS, Appellant, v. The STATE of Texas, Appellee.

No. 3-82-004-CR.

Court of Appeals of Texas, Austin.

June 2, 1982.

David A. Donohue, Irving, for appellant.

Arthur C. Eads, Dist. Atty., James Russell, Administrative Asst., Belton, for appellee.

POWERS, Justice.

Appellant was indicted for the possession of more than four ounces of marijuana, a controlled substance. The trial court found him guilty, in a trial before the court, based upon his plea of guilty and upon the written statements of witnesses, appellant having agreed to the introduction of these statements into evidence. Punishment was assessed at ten years' imprisonment and a $2,500 fine, the former being suspended and appellant placed on probation for the period of his sentence.

The sole question on appeal is whether the trial court erred in overruling appellant's written motion to suppress evidence of the marijuana seized in a search of his automobile by an officer, incident to appellant's being stopped for a traffic offense. Appellant's ground of error is reviewable notwithstanding his negotiated plea of guilty, his trial being before the judge without a jury and accompanied by the circumstances necessary to obtain review in such cases, as set out in Tex.Code Crim.P.Ann. art. 44.02 (Vernon 1979) and Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982).

The record reveals that two officers stopped appellant for speeding. On being asked to step outside his automobile, appellant did so. One officer asked to see his driver's license (which appellant presented) while the other examined the exterior of appellant's automobile for such other possible violations as an expired inspection sticker, invalid registration, or a lack of headlights. In so doing, this officer looked inside the automobile and saw on the driver's seat several seeds, some of which were partially burned, which he identified as marijuana seeds. The officer observed no usable quantity of marijuana. On seeing the seeds, however, the officer entered the automobile. There he found in the back seat a styrofoam ice cooler which he opened by raising the lid. The cooler contained nine clear plastic bags of suspected marijuana, for the possession of which appellant was immediately arrested. The substance was shown by stipulated evidence to have been marijuana. The first officer confirmed by his testimony that seeds were on the driver's seat and said he had intended to issue a warning ticket for the speeding violation before the marijuana was discovered.

Appellant's motion to suppress the nine bags of marijuana averred that the search of his automobile was not a lawful search because it was not conducted pursuant to a lawfully-issued search warrant, was not based upon probable cause, did not occur in circumstances which authorized a warrantless search, and no contraband was in plain view. We believe these contentions sufficiently raise the proposition that the evidence was inadmissible under Tex.Code Crim.Pro.Ann. art. 38.23 because the search was in violation of the Constitution of the United States, Amendment IV, and the Constitution of the State of Texas, Art. I, § 9. ¹ We reject the State's contention to the contrary.

The State invites our attention to the opinion of the Supreme Court of the United States in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In that case, the Court attempted to set out workable rules under which officers may apply the principle of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) in making warrantless automobile searches incident to a lawful custodial arrest. (Chimel had held that "exigent circumstances" permit an arresting officer, as an incident to the arrest, to search the immediate area without a warrant on the theory that the arrested person might obtain a weapon from, or conceal or destroy incriminating evidence found in, that area.) The Court in Belton held: (a) a lawful custodial arrest creates a situation where the arresting officer may conduct a warrantless search of the suspect and the immediately surrounding area; (b) the immediately surrounding area includes the passenger compartment of the automobile and the contents of any container found therein; and (c) the container may be searched whether it is opened or closed, since the justification for the search is not found in the arrested person's privacy interest in the container, but in the proposition that the lawful custodial arrest justifies the officer's infringement of that interest.

The principle of the Belton decision is not applicable because appellant was not in "custodial arrest" at the time of the search in question, though he was lawfully stopped and detained by the officers for the investigation of a traffic offense which they had observed. Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977). ²

Another kind of "exigent circumstance" may arguably authorize a warrantless search, however; that is, the warrantless search of appellant's automobile based upon (a) probable cause that it contained contraband and (b) circumstances where the mobility of the vehicle made it impracticable to secure a warrant. Carroll v. United States, supra, n. 1.

The present case is, in our view, controlled by the decision of the Court of Criminal Appeals in Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1981), interpreting Carroll. In Gill the Court pointed out the general principle that "the scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it." The decision involved the warrantless search of a parked automobile following one officer's observation that the driver acted suspiciously and had a syringe and, perhaps, a single marijuana cigarette, which the officer saw from the exterior of the automobile. See Id, at 312 (Clinton, J., concurring.) After searching the interior of the automobile, the officers expanded the search to the locked trunk of the automobile where they found the evidence relied upon for conviction. We will attempt to apply the Court's holding to the present case, for it relies not upon the rationale of a search incident to a custodial arrest, with the attendant right under Belton to search the interior of the automobile, but rather upon a diminished expectation of privacy in the interior of an automobile following a detention which does not amount to a custodial arrest. The Court said:

Probable cause to search part of a vehicle is not inevitably probable cause to search the entire vehicle ... The reason is that the search and seizure amendments of our constitutions protect peoples (sic) rights to privacy, ... and there are different expectations of privacy in different parts of an automobile. In the exterior of an automobile there is no reasonable expectation of privacy .... In the interior of an automobile there is an expectation of privacy which is somewhat lower than the expectation of privacy in a home or office, 'because (an automobile's) function is transportation and it seldom serves as one's residence or as the repository of personal effects ....' It travels public thoroughfares where both its occupants are in plain view." (citations omitted)

In the trunk of an automobile there is a still greater expectation of privacy. Unlike the exterior or the interior of an automobile, the trunk is not in plain view. It does serve as the repository of personal effects ....

Therefore we hold that the scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it. The existence of probable cause to search the interior of an automobile is not necessarily sufficient to justify the search of the trunk. A search based on probable cause which reasonably tends to support only the inference that contraband or evidence will be found in the passenger compartment is of intolerable intensity and scope if it is expanded to include a closed trunk. Such an expansion must be justified by specific, articulable facts that give probable cause to believe that contraband or evidence is concealed in the trunk ....

This holding comports with the traditional "automobile exception" cases such as Carroll v. United States ....

The court's reference to a search of "intolerable intensity and scope" alludes to its citation of Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), to the effect that a search reasonable in its inception may become unreasonable, and therefore violative of the Fourth Amendment, by its being expanded in its intensity and scope to a degree violative of that Amendment's guarantee of reasonableness.

We find the search in the present case reasonable in the circumstances which gave rise to it and in the limits to which it was carried. The one officer saw the marijuana seeds in open view from a place where he had a right to be after the lawful stop and detention of the driver. There was a valid reason for the officer's presence beside the door, from where he could see inside the automobile. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Miller v. State, 608 S.W.2d 684 (Tex.Cr.App.1980). The officer's seeing the seeds in an automobile stopped on the highway justified his entering the automobile without first obtaining a warrant, once he had probable cause (absolute certainty was not required) to believe that it contained evidence of a crime, that is, a usable quantity of marijuana. Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Carroll v. United States, supra. The seeds furnished a reasonable basis for the officer's belief in this instance. (For the purposes of the Controlled Substance Act, the seeds of the plant "cannabis satira L." are specifically included in the definition of the word "marijuana," the possession of which is...