Carrasco v. State

• Decision Date: 30 April 1986
• Docket Number: No. 892-83,892-83
• Citation: 712 S.W.2d 120
• Parties: Irma CARRASCO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 120

712 S.W.2d 120

Irma CARRASCO, Appellant, v. The STATE of Texas, Appellee.

No. 892-83.

Court of Criminal Appeals of Texas En Banc.

April 30, 1986.

Michael A. Lamson, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Eleanor Montague and Robert Loper, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was charged with felony possession of a controlled substance, to wit, cocaine. After a pretrial motion to suppress the search was denied, appellant plead nolo contendere and stipulated to the evidence in such a manner as to preserve error. The trial court found appellant guilty and assessed her punishment at three years probated and a five hundred dollar fine.

The Fourteenth Court of Appeals reversed the trial court and remanded for a new trial. See Carrasco v. State, No. B14-82-861-CR (Tex.App.--Houston [14th] decided May 28, 1983). We granted the State's Petition for Discretionary Review to determine the correctness of the Court of Appeals' holding that the search of appellant's receptacle was not a valid search incident to arrest. We reverse the Court of Appeals and affirm the trial court.

The evidence reflects that in the early morning hours of March 18, 1982 the appellant was involved in a one car accident on the North Loop West freeway in Houston. When officers arrived at the scene they found appellant standing next to her Porsche. Appellant and the arresting officer differ in their rendition of the facts. According to appellant, she was sober. She claimed that a vehicle cut her off and to avoid a collision, she ran off the road and into a guardrail. According to appellant she gathered her belongings and deposited them in a shoulder bag. Testimony established that the appellant carried this shoulder bag ¹ with her at all times. Appellant then exited her vehicle and when police arrived, the bag in question was sitting on the ground next to the vehicle. She claimed she was conversing with one officer when she noticed Officer Boy "rummaging" through her bag which was located several feet from where appellant was standing. Appellant asked Officer Boy what he was looking for; he told her to be quiet and then placed her in the police vehicle to transport her to the police station. Appellant denied that Officer Boy ever arrested her for public intoxication; she further denied that the bag in question was physically on her body when Officer Boy initiated the search in question.

Officer Boy testified that upon arrival, he proceeded to investigate the scene of what to him appeared to be a one vehicle accident. Once he secured the scene he engaged the appellant in conversation. From speaking with appellant, he came to the conclusion that she was intoxicated. Officer Boy testified that appellant appeared glassy eyed, her speech was slurred, slow and deliberate, and she was slow moving; however he did not detect the odor of alcohol. Furthermore, Officer Boy found no evidence that appellant had sustained a head injury. Officer Boy testified that while he was speaking with appellant, she had the bag in question slung over her shoulder. He further testified that he placed appellant under arrest for public intoxication and he then attempted to take the bag from her in order to search for intoxicants and weapons. Appellant resisted the officer's efforts to retrieve the bag, making the officer suspicious. Officer Boy then forcibly seized the bag. Upon searching it he found three translucent vials containing a white powdery substance subsequently determined to be cocaine.

Appellant claims there was no probable cause to believe that she created a danger to herself or others and therefore there was no valid arrest for public intoxication. ² We disagree. Appellant had just been involved in a one car accident; she manifested symptoms of intoxication. The fact that appellant had already been involved in a car accident is sufficient probable cause to believe that she posed a danger to herself or others. Davis v. State, 576 S.W.2d 378 (Tex.Cr.App.1979). The officers had probable cause to arrest appellant for public intoxication.

The Court of Appeals found that the officer was merely looking for evidence of intoxication and not weapons and that since the officer had possession of the bag, there was no valid search incident to arrest. In so holding, we find that the Court of Appeals has perhaps misunderstood the United States Supreme Court's holding in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In Robinson, the Supreme Court made it clear that, once a police officer validly arrests a person, the officer may search the person and the area immediately associated with the person. See also Pennsylvania v. Mims, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). If, in so searching, the officers find something of a suspicious nature, they may constitutionally further investigate. Thus the cigarette package in Robinson which contained a lump not common to the shape of a cigarette, was subject to a search for contraband.

Appellant argues that the officer did not have probable cause to arrest her and therefore this search cannot be justified as a search incident to arrest. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) the Supreme Court delineated the exception to the search warrant requirement of a "search incident to arrest" and held that, pursuant to a valid arrest, an arresting officer may search the person of the arrestee and any area into which the arrestee might reach in order to obtain a weapon or destroy evidence.

Appellant also alleges that the search was invalid because she did not have immediate physical possession of the bag in question, nor was the bag within her reach. The foregoing is premised upon the belief that only appellant's testimony is to be believed. We note that the trial court heard the witnesses testify and was the exclusive trier of the facts. The trial court was free to believe or disbelieve any or all the testimony adduced, and obviously he chose to disbelieve appellant's version of the facts. Alexander v. State, 630 S.W.2d 355 (Tex.Cr.App.1982); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977).

Appellant next contends that the search was invalid since Officer Boy had exclusive possession of the bag at the time the search occurred. Both appellant and the Court of Appeals relied heavily upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

The facts of the instant case are easily distinguishable from those in Chadwick. In Chadwick there was no search incident to an arrest; the search occurred over an hour after the arrest and after the defendant had already been placed in jail and the repository in question had been removed to another building. In Chadwick there was an attempt by federal officers to squeeze a warrantless search into some exception which wholly failed. The facts in Chadwick did not fit either the "search incident to arrest" or the "automobile" exception to the warrant requirement. This is consistent with the holding in Chimel, which teaches us that a search proximate in time and place to the arrest, that is limited to the person of the arrestee and the area within his reach is a permissible search incident to arrest.

Perforce there are two factors that take the search in Chadwick out of the "search incident to arrest" exception. One, the officers had reduced the property in question to their exclusive control by removing the property from the site of the arrest to a federal building and by placing the arrestee at another location, namely in a jail cell. The second factor, that there be no danger that the defendant be able to gain access to the property, was met in that the defendant was not even in the same building as the property and was in fact securely in jail.

Neither of these factors are present in the case sub judice. Appellant was within a few feet of the bag when it was searched and clearly could have obtained access to it. Had the bag contained a weapon, the risk of appellant gaining access to it was no less dangerous once in the hands of the officer standing immediately adjacent to appellant than while it was in the actual grasp of the appellant. The officer did not have exclusive control over the property, inasmuch as the search occurred at the scene of the arrest, in a public place, and within the appellant's reach. We do not find Chadwick to be dispositive of the instant case.

Neither do the precedents of this Court support the reasoning of the Court of Appeals. In Holt v. State, 538 S.W.2d 125 (Tex.Cr.App.1976) this Court found that the search of a purse and suitcase located within a few feet from where the defendant was arrested was a valid search incident to arrest. See also Jones v. State, 640 S.W.2d 918 (Tex.Cr.App.1982). In Stewart v. State, 611 S.W.2d 434 (Tex.Cr.App.1981) a panel of this Court approved the search of the defendant's purse as a valid search incident to arrest and reiterated that a search incident to arrest extends to the person of the arrestee and objects immediately associated with the person of the arrestee or objects in an area within the control of the arrestee. The object need not be physically attached to the arrestee.

In Chadwick, supra the Supreme Court, inter alia, favored us with some troublesome language:

"Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (emphasis added.) Id., 433 U.S. at 16, 97 S.Ct. at 2485.

It is the underscored...