Christian v. State

• Decision Date: 23 January 1980
• Docket Number: No. 57339,57339
• Citation: Christian v. State, 592 S.W.2d 625 (Tex. Crim. App. 1980)
• Parties: Harvey Don CHRISTIAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 625

592 S.W.2d 625

Harvey Don CHRISTIAN, Appellant, v. The STATE of Texas, Appellee.

No. 57339.

Court of Criminal Appeals of Texas, En Banc.

Jan. 23, 1980.

Billy H. Vannatta, court appointed, Waco, for appellant.

Felipe Reyna, Dist. Atty. and Karen R. Cable, Asst. Crim. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CLINTON, Judge.

On original submission a panel opinion affirmed judgment of conviction after overruling, Inter alia, a ground of error in which appellant complained that the trial court denied his motion to suppress evidence obtained, he asserted, through an illegal search and seizure. The panel viewed his complaint as focusing on what is called a "flashlight search" of the front interior of his automobile, and held that, having stopped appellant for a traffic violation, the two officers were entitled to observe anything within plain view, so that when one of the officers spotted a "rifle" in the vehicle they gained "probable cause" to frisk appellant, and the switchblade knife produced by the frisk gave rise to more "probable cause" for a full search of the person, turning up a twopenny matchbox, and of the vehicle of appellant, revealing the other materials described by the panel opinion. Because appellant insists that the officer with the flashlight did not see a "rifle" and that examination of the contents of a small matchbox cannot reasonably be considered a search for weapons, we granted leave to file a motion for rehearing to ascertain just what Officer Flores did and initially saw in order to determine whether the facts and law justified the searches that followed.

First, let us reset the scene. At approximately 8:30 p. m. on the evening of April 23, 1976, the officers were vehicularly patrolling East Waco Drive in the City of Waco. Another motor vehicle, later determined to be driven by appellant, passed them as both were heading east on that major thoroughfare, at a speed that exceeded the posted forty mile an hour limit. Signalling first with horn honks and then with dimming lights, the officers stopped appellant shortly after he crossed over a bridge. ¹ Appellant got out of his car; the officers got out of their unit; as they approached each other, at the instance of Officer Flores, Reserve Officer Sullins asked appellant to step over behind his vehicle to an area away from traffic and produce his driver's license, which he did. Meanwhile, in the words of Officer Flores in response to questions by the State:

". . . At this time, I went it was dark, so I had my flashlight, and I shined my light inside Mr. Christian's car. ² This is also General procedure. Sometimes we do it for our safety, to see if anybody else is there Or what." ³

Q: Okay. When you shined the light into the car, did you notice anything?

A: Yes, sir. I noticed what appeared to me to be a rifle or shotgun butt, or a stock.

Q: Okay. The stock end of a rifle or shotgun? ⁴

A: That is correct.

Q: Okay. At that time, what did you do?

A: Okay. I then, of course, immediately told Reserve Officer Sullins to pat-down Mr. Christian pat him down. And we both patted him down for weapons." ⁵

Explaining that he was working on the right side of appellant while Sullins searched his left, Flores saw Sullins remove from appellant's left hand pocket a small matchbox that, upon examination, contained plastic wrapping of "some type of powdery white substance." ⁶

In its brief the proposition advanced by the State is that "if officers see the commission of an offense while making a traffic stop the officers may make the necessary arrests and searches. (Citing three cases which present somewhat different theories, as we point out in the margin.) ⁷ This is the factual situation present in this case." The "offense" to which the State alludes is the presence of the sighted butt of a shotgun in the front floorboard area, but the State fails to direct us to any statute proscribing possession of the butt of, or all of, an otherwise ordinary shotgun in a motor vehicle.

Weapons which generally may not be carried lawfully under V.T.C.A. Penal Code, § 46.02(a) are handguns, illegal knives and clubs. Here what turned out to be a shotgun is not, the State conceded in open court, an illegal weapon. Hence its presence in appellant's car did not constitute a penal offense. ⁸ That Flores knew of appellant's prior burglary convictions is not suggested. The Taylor doctrine did not become operative in these circumstances.

The simplistic analysis made in the panel opinion is also wide the mark, and not supported by citation of authority other than Dillard v. State, 550 S.W.2d 45 (Tex.Cr.App.1977), and Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1976), for the notion that officers, having made a stop for a traffic violation, are "entitled to observe anything within plain view." ⁹ From that generalized position, however, the panel opinion then takes a mighty long leap to derive from the mere observation of the shotgun butt "probable cause to frisk," and, the opinion says, "Because the observation of the rifle (sic) was legal, all subsequent searches were proper." The leap, we believe, covers too much unexplored territory in between. More like hopscotch, let us take it one small jump at a time.

In the first place, until the frisk or search of his person the sole offense attributed to appellant was speeding. Pursuant to settled constructions of Article 6701d, §§ 147 and 148(a), ¹⁰ V.A.C.S., "(e)xcept for the offense of speeding, an officer may arrest and take into custody one seen committing a traffic offense," Tores v. State, 518 S.W.2d 378, 380 (Tex.Cr.App.1975); Wilson v. State, 511 S.W.2d 531, 536 (Tex.Cr.App.1974) (Douglas, J., dissenting); Montgomery v. State, 145 Tex.Cr.R. 606, 170 S.W.2d 750, 752 (1943); Spencer v. Southland Life Ins. Co., 340 S.W.2d 335, 337 (Tex.Civ.App. Ft. Worth 1960) error refused; see also Ciulla v. State, 434 S.W.2d 948, 950-951 ¹¹ (Tex.Civ.App. Houston (1st) 1968) no writ history. As he was standing by and displaying his license to Sullins appellant was not under custodial arrest, Thomas v. State, 572 S.W.2d 507, 509 (Tex.Cr.App.1978) and cf. Wussow v. State, 507 S.W.2d 792 (Tex.Cr.App.1974), and thus not then vulnerable to a legally authorized incident search of his person.

Next, from the time he exited his car and closed its door behind him until Officer Flores saw the butt of a shotgun, ¹² except for speeding, neither officer gave the slightest flicker of indication of even suspicion that appellant had, was or contemplated engaging in criminal conduct. Officer Flores went up to the driver's side of, and shined his flashlight inside, appellant's car according to what he said is "general procedure." ¹³ The only tangible, material thing that Officer Flores reported seeing was what he is permitted to believe is a shotgun or rifle. He then "immediately turned around and told . . . Sullins to cease questioning, we had to frisk him," explaining in court that he intended "just a search for weapons, that is all."

By its argument and the citation of Borner, supra, at note 7, which, in turn, relied heavily on Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), which drew from and applied principles of Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the State requires that the formulation be addressed.

At the outset it is observed that the "stop and frisk doctrine" is constrained by "the stricter Terry standards," that is, standards more strict than those "traditionally governing a search incident to lawful arrest," United States v. Robinson, supra, 414 U.S. at 234, 94 S.Ct. at 476; Gustafson v. Florida, supra, 414 U.S. at 264, 94 S.Ct. 488. While much has been lifted by other judicial opinions from earlier sections of the decision of Terry v. Ohio, the precise holding comes at the end of a thirty page discussion, 392 U.S. at 30, 88 S.Ct. at 1884-85:

"We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. . . . Each case of this sort will, of course, have to be decided on its own facts. We merely Hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or other's safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

Decided the same day, Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968), restates and applies the Terry holding:

". . . The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous."

Personal observations that the officer articulated in Terry were enough to justify his...