Curren v. State

• Decision Date: 15 June 1983
• Docket Number: No. 04-82-00009-CR,04-82-00009-CR
• Citation: 656 S.W.2d 124
• Parties: Cecil Ruben CURREN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 124

656 S.W.2d 124

Cecil Ruben CURREN, Appellant, v. The STATE of Texas, Appellee.

No. 04-82-00009-CR.

Court of Appeals of Texas San Antonio.

June 15, 1983.

Mark Steven, San Antonio, for appellant.

Bill White, Dist. Atty., Robert C. Arellano, Edward Shaughnessy, Asst. Dist. Atty., San Antonio, for appellee.

Before BUTTS, CANTU and TIJERINA, JJ.

OPINION

CANTU, Justice.

Cecil Ruben Curren appeals his conviction of possession of methamphetamine as a repeat offender. See Tex.Penal Code Ann. § 12.42 (Vernon 1974).

Guilt was established in a jury trial but the punishment following appellant's election, was set by the trial court at seven years' confinement in the Texas Department of Corrections.

Appellant seeks review of seven grounds of error. The first five grounds assert trial court error in the overruling of his motion to suppress. The sixth ground complains of the giving of a jury instruction on the law of parties. The final contention challenges the sufficiency of the evidence to support a conviction for "possession" of methamphetamine.

The facts developed at trial viewed in the light most favorable to the verdict reflect the following.

In the early morning hours of July 31, 1981, officer Walter Stillwagon of the Hill Country Village Police Department, and off duty officer Franklin Rodriguez of the Hollywood Park Police Department, were patrolling a residential street in Hill Country Village. ¹ The officers were preparing to have breakfast together as Stillwagon made his rounds with Rodriguez following behind in a separate car. ²

As Stillwagon patrolled on Paseo Del Norte Drive, he came upon a 1968 Chevrolet Impala automobile parked suspiciously alongside a median in the street. The vehicle was apparently out of gas, had a funnel sticking out of the gas tank, and had not been at that spot earlier. As the officers stopped their respective cars to investigate, Stillwagon noticed that there was no driver and that someone sitting in the front passenger part of the vehicle was ducking down in the front seat as if trying to hide. The passenger was a female who identified herself, upon Stillwagon's request, as Patricia Riggs. As Stillwagon examined Riggs' driver's license he noticed out of the corner of his eye a person moving in the distance in an area where heavy equipment was being stored. Stillwagon then requested Rodriguez to watch Riggs while he investigated the person seen moving in the distance. As Stillwagon approached the suspect he identified himself as a police officer and ordered the suspect to stop and turn around. The suspect, later identified as appellant, did as ordered and as he turned around Stillwagon noticed a baggie containing suspected marihuana sticking out of his front pocket.

A search of appellant's person conducted by Stillwagon yielded a pocket knife. Appellant was then escorted back to Stillwagon's police car where Riggs, by now out of the Impala, was being guarded by Rodriguez. Stillwagon then determined to place Riggs back inside the Impala while he talked to appellant. In making preparations to place Riggs inside the vehicle by first checking for possible weapons on the seat, Stillwagon noticed a zippered blue purse type object about one foot long and seven or eight inches high resting on the vehicle's dashboard in front of the steering wheel. In picking up the object, Stillwagon felt "several long, hard objects" which he believed to be some sort of weapon. Stillwagon opened the purse and saw a bottle containing a baggie which in turn contained a white powdery substance. Numerous other items were found inside the purse including two spoons, two syringes, a brown plastic bag with cotton balls and a metal spatula type object. Relying on his training at the law enforcement academy, Stillwagon suspected the powder to be heroin, and accordingly, placed both Riggs and appellant under arrest.

Pursuant to established departmental policy, Stillwagon called for a wrecker to impound the vehicle and commenced an on the scene inventory of the vehicle with the assistance of a recently arrived officer Keith Jones of the Hollywood Park Police Department.

As a result of the inventory search, various and sundry items were taken into custody for safekeeping. From the back seat of the Impala, Stillwagon retrieved a blue type duffel bag which contained a vial with some liquid and residue, a grinder, a sifter type object with a white powdery substance on it and a syringe. Also recovered from the front and rear seats were several white bags with a plant material in them, a scale, and a blue satchel containing a needle inside a plastic container. Stillwagon surmised that much of the property recovered constituted narcotic paraphernalia.

Initially appellant argues that officer Stillwagon did not possess specific and articulable facts to justify a belief that a weapon was present in the purse or in the automobile generally. We note that appellant did not testify at his motion to suppress hearing and that he did not offer any evidence establishing a proprietary interest in the purse containing the contraband.

Under Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), a defendant who seeks to suppress evidence of crime must show that some personal Fourth Amendment right of his was implicated in the police actions leading to seizure of the evidence. He must show that he himself had some "legitimate expectation of privacy" that was improperly intruded upon by agents of the government. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). This now applies with equal force to possessory offenses. The "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) was expressly abandoned in Salvucci and was not available to appellant at his hearing held on November 9, 1981, after the effective date of the Salvucci ruling. ³

In the absence of some showing that appellant entertained a legitimate expectation of privacy in the purse and its contents, appellant is without standing to challenge the legality of the search. Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App.1982); Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981).

We nonetheless believe that officer Stillwagon possessed sufficient articulable facts to support an inference that a weapon was present in the seized purse. A search of appellant had already yielded a pocket knife and a cursory squeezing of the seized purse indicated the presence of "several long, hard objects." ⁴ Additionally, Riggs had been seen making furtive gestures when first approached by Stillwagon. The search of the purse was justifiable under the present facts. Cf. Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). Appellant's first ground of error is overruled.

In his second ground of error appellant contends that a general exploratory search was impermissible even assuming that officer Stillwagon was justified in conducting a Terry v. Ohio ⁵ type search. The argument is advanced that officer Stillwagon acted unreasonably when he decided to place Riggs back in the vehicle she had previously occupied, thus artificially creating a need to search the immediate vicinity within Riggs' reach for weapons. Appellant characterizes the officer's actions as "a thinly disguised and unreasonable pretext ..." to expand the area of search.

We find no support for appellant's contentions in the record and for the reasons already expressed in our disposition of his ground of error number one, overrule this additional challenge.

Appellant next asserts that the trial court erred in not suppressing the white powdery substance (methamphetamine) found in the baggie inside the bottle located inside the purse because the search of the bottle was illegal since it was not immediately apparent to the officer that it contained incriminating evidence. Appellant relies upon McGlynn v. State, No. 67,435 (Tex.Cr.App., December 23, 1981) (not yet reported); Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981); Howard v. State, 599 S.W.2d 597 (Tex.Cr.App.1979); De Lao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977); Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977); Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976); Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973). McGlynn and the other cases have held that the "plain view" exception does not apply because it was not immediately apparent to the seizing officer that the container contained incriminating evidence. ⁶ The validity of the holdings in these cases was, we believe, seriously eroded by the recent opinion of the United States Supreme Court in Texas v. Brown, --- U.S. ----, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), wherein a plurality of the Court reconsidered the plain view doctrine first addressed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and expounded upon the requirements for its invocation by law enforcement officers.

In disapproving of our Court of Criminal Appeals' application of the doctrine (also referred to as an exception or an extension of prior justification) in Brown v. State, 617 S.W.2d 196 (Tex.Cr.App.1981) and indirectly of the holdings in Howard v. State, supra; De Lao v. State, supra; Duncan v. State, supra; Thomas v. State, supra; and Nicholas v. State, supra, the Court reinterpreted the phrase "immediately apparent" to mean not an unduly high degree of certainty as to the incriminating character of the evidence, but rather that there is probable cause to associate the property with criminal activity.

The test is the same as announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980),

Probable cause ... merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief, Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543] (1925), that certain items may be contraband...