Backer v. State, 68179

• Decision Date: 06 July 1983
• Docket Number: No. 68179,68179
• Citation: 656 S.W.2d 463
• Parties: Keith Arnold BACKER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 463

656 S.W.2d 463

Keith Arnold BACKER, Appellant, v. The STATE of Texas, Appellee.

No. 68179.

Court of Criminal Appeals of Texas,

En Banc.

July 6, 1983.

Rehearing Denied Sept. 28, 1983.

Leonard C. Kahn, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Brad Beers and David Knight, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of marihuana. Appellant was sentenced by the court to 3 days in jail and a $100.00 fine.

Appellant asserts in grounds of error two through four that the trial court erred in overruling his motion to suppress evidence since the search of his vehicle and subsequent seizure of marihuana were in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Appellant argues that the inventory search was a sham and a pretext for an unconstitutional exploratory search. Appellant urges that the inventory search was not made with his consent nor was he offered an alternative to the impoundment and inventory of his vehicle.

The record reflects that the appellant was stopped while looking for a parking space in the 3100 block of Terminal Road, a public street near the airport in Houston, by Houston police officers for an expired safety inspection sticker and plates. One of the officers ran a check and found an outstanding traffic warrant on appellant. The officers placed appellant under custodial arrest, impounded his vehicle and brought it to the airport police station. The officers then conducted an inventory search of the automobile. Marihuana was found inside the unlocked glove compartment of the automobile.

An inventory search need not be predicated upon the same requirements for probable cause or in obtaining a search warrant. Its existence rests upon the caretaking responsibility a police officer has towards a lawfully impounded automobile. Gill v. State, 625 S.W.2d 307, 319 (Tex.Cr.App.1980). In Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980), which the appellant and state cite, the court listed several instances where an automobile may be impounded and inventoried. One such instance is where "the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available other than impoundment to insure the protection of the vehicle. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); Christian v. State, 592 S.W.2d (Tex.Cr.App.1980); Daniels v. State, supra." Benavides, supra. (Our emphasis).

Appellant argues that other alternatives were available rather than impoundment to insure the protection of appellant's vehicle. The record indicates that appellant stated he wanted to leave his car for use by a friend who was to arrive at the airport. The record reflects the officers attempted to contact the person appellant wanted his car left for, but were unable to do so. There being no apparent alternative and no one to remove the vehicle from its location on a public street, it was impounded within legitimate department policy as a caretaking function for the protection of the department as well as the vehicle and its contents. Although appellant's trial testimony at times conflicted with the officer's testimony on the motion to suppress, appellant did not testify at that hearing and therefore was not before the court when it overruled the motion. The trial court properly overruled appellant's motion to suppress the evidence seized in the inventory. See Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). Appellant's grounds of error two through four are overruled.

Appellant asserts in his first ground of error that the trial court erred in failing to render a not guilty verdict for appellant since the marihuana was not admissible in evidence. Appellant asserts the search of his motor vehicle and subsequent seizure of the marihuana in the glove compartment was a violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. Therefore the evidence in the case was insufficient as a matter of law to support the conviction. For the reasons previously stated the marihuana was properly seized after discovery during an inventory of appellant's vehicle following his custodial arrest. The marihuana was properly admitted. The trial court did not err by not rendering a not guilty verdict. Appellant's first ground of error is overruled.

The judgment is affirmed.

TEAGUE, Judge, concurring.

I concur in the majority's implicit holding that pursuant to the Federal Constitution a valid inventory search occurred in this cause. I wish, however, that the majority had cited and discussed the more recent decisions of the Supreme Court of the United States, which interpret the Fourth Amendment to the Federal Constitution, as applied to "inventory searches of automobiles."

I am convinced that under its more recent decisions construing and interpreting the Fourth Amendment to the Federal Constitution, the Supreme Court of the United States would sustain the inventory search in this instance. For starters, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

The appellant does not invoke the Texas Constitution in this cause, but, instead, has only invoked the Federal Constitution. In my view, in light of how the Supreme Court has been recently interpreting the Fourth Amendment, appellant has made a poor choice of which Constitution to rely upon.

It is only when the Supreme Court sets minimum constitutional freedoms and guarantees, below those set by the highest State Court, that Art. VI of the Federal Constitution mandates that the members of this Court must adhere to and abide by its decisions. However, should this Court opt to give the citizens of the State of Texas greater Constitutional rights and freedoms, then it is permitted to do so if it invokes and applies the Texas Constitution. In this instance, this Court may not invoke and apply the Texas Constitution because appellant does not rest his claim on the Texas Constitution, but, instead, rests his claim solely upon the Federal Constitution. He loses.

CLINTON, Judge, dissenting.

Once again a citizen loses his right to privacy in content of materials placed in a motor vehicle simply because he is alone while driving along a public way. See Gary v. State, 647 S.W.2d 646, 649 (Tex.Cr.App.1983) (Clinton, J., dissenting).

The majority opines that there was "no one to remove the vehicle from its location on a public street," but we are not told that "the car was impeding the flow of traffic or that it was a danger to public safety," Benavides v. State, 600 S.W.2d 809, 812 (Tex.Cr.App.1980)--a rationale for authorizing police to seize vehicles off the street and impound them, South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). So far as we are thus informed the motor vehicle still could have been parked legally and locked by appellant, content that it and his belongings were as safe and secure as might be reasonably expected in Houston.

However, my concern is not so much with how the majority has analyzed the situation as it is with the extent to which opinions of this Court have taken the "inventory search" doctrine beyond the facts found and law pronounced in its progenitor, South Dakota v. Opperman, supra.

As to the facts, to be recalled is the following account:

"Local ordinances prohibit parking in certain areas of downtown Vermillion, S.D., between the hours of 2 a.m. and 6 a.m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondents unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a.m., the officer issued an overtime parking ticket and placed it on the car's windshield. The citation warned:

'Vehicles in violation of any parking ordinance may be towed from the area.'

At approximately 10 o'clock on the same morning, another officer issued a second ticket for an overtime parking violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot.

From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer's direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedure, the officer inventoried the contents of the car, including the contents of the glove compartment which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping. During the later afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police." ¹

Getting to the law, the opinion of the Court first reiterates the distinction it has traditionally drawn between automobiles and homes or offices in relation to the Fourth Amendment, in that there is considered to be a diminution of an expectation of privacy in the motor vehicle, and then points out further that "automobiles are frequently taken into police custody" as part of "community caretaking functions," and subjected to "a routine practice of securing and inventorying the automobiles' contents," Id., 428 U.S. at 368-370, 96 S.Ct. at 3096-3097. The Supreme Court then surveyed decisions of state courts--Texas is not included--and federal courts that had "sustained inventory procedures as reasonable police intrusion," id., 428 U.S. at 370-373, 96 S.Ct. at 3097-3099. It alluded to some of its own prior decisions which "point unmistakably" to the same conclusion, id. U.S. at 373-376, 96 S.Ct. at 3099-3100, including Cady v....