Delgado v. State, 961-84

• Decision Date: 24 September 1986
• Docket Number: No. 961-84,961-84
• Citation: 718 S.W.2d 718
• Parties: Robert DELGADO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 718

718 S.W.2d 718

Robert DELGADO, Appellant, v. The STATE of Texas, Appellee.

No. 961-84.

Court of Criminal Appeals of Texas En Banc.

Sept. 24, 1986.

Rehearing Denied Oct. 29, 1986.

Benjamin F. Walker, court appointed, San Antonio, Roy E. Greenwood, on appeal only, Austin, for appellant.

Robert Huttash, State's Atty. and Alfred Walker, First Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant appeals his conviction in a bench trial for possession of heroin. Article 4476-15, § 4.04, V.A.C.S. His punishment enhanced by allegation and proof of a prior felony conviction, was assessed by the court at 35 years' confinement in the Department of Corrections. The Texarkana Court of Appeals affirmed the conviction in an unpublished per curiam opinion. Delgado v. State (Tex.App.--Texarkana--No. 6-83-043-CR-1984). The Court of Appeals held that the trial court did not err in overruling the motion to suppress evidence which appellant claimed was the fruit of an illegal search and seizure. We granted appellant's petition for discretionary review to determine whether the search and seizure were legal.

At approximately 7 p.m. on August 22, 1978, New Braunfels Police Officer John Cade received a telephone call from an informant who advised Cade that he had seen a 1974 silver two-door hard top Pontiac with a certain Texas license plate number near Room 108 of the Bavarian Manor Apartments. The informant told Cade the driver of the Pontiac acted "suspicious" and opened the car's trunk "and had a bag of some white substance there"; that there was "lots of traffic" at Room 108. Officer Cade knew that the occupant of Room 108 was George Thompson, who had been arrested for possession of heroin, and was on a methadone treatment program and a person "known previously to be trafficking in drugs."

Cade knew the informant, knew he had an occupation and lived in Comal County, had no criminal record and had given tips in the past which had resulted in convictions. Officer Cade told the informer to let him know if the Pontiac returned, and the informant did just that about 8:30 p.m. that evening.

Cade went immediately to the Bavarian Manor Apartments and saw the described Pontiac just as the informant described. Appellant was standing on the driver's side, partially inside the car with the door open, talking to Thompson. Cade recognized the appellant. He had arrested the appellant on other occasions ¹ and knew he had a reputation for dealing in drugs. Cade saw in plain view that the appellant was holding a package wrapped in a newspaper, and as he approached he saw a hypodermic syringe protruding out of the paper one or two inches with an orange cap on it. Cade knew what it was, based on his past experience, and it appeared to him to have something in it, "had a controlled substance in it." ² Cade identified himself as a police officer and placed appellant Delgado under arrest for possession of narcotic paraphernalia. The package contained 17 syringes. A patrol unit was called and appellant was taken away. Officer Cade proceeded to secure the vehicle and to inventory the contents of the car as required by New Braunfels Police Department policy and practice. It was "normal procedure." Appellant had told Cade the Pontiac was his. Officer Cade took the car keys from the ignition, opened the trunk, and there found a white shirt with 12 balloons of heroin wrapped inside. A chemist testified that tests revealed the substance to be heroin.

On appeal appellant's theory is that the search of his automobile leading to the seizure of the contraband was illegal because the search was occasioned by his illegal arrest.

Article 14.01(b), V.A.C.C.P., provides:

"A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."

Article 4476-15, § 4.07, V.A.C.S., in effect at the time, provided:

"A person, except a practitioner or a person acting under his direction, commits an offense if he possesses a hypodermic syringe, needle or other instrument that has in it any quantity (including a trace) of a controlled substance ... with intent to use it for the administration of the controlled substance by subcutaneous injection in a human being." ³

Article 14.03, V.A.C.C.P., also provides:

"Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws."

Article 14.03, V.A.C.C.P., also provides:

"Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws."

We conclude that under the facts appellant's warrantless arrest was justified under Article 14.01(b), supra. The arrest was for violation of Article 4476-15, § 4.07, supra, then in effect. ⁴ The standard for the legality of a warrantless arrest is not equal to the sufficiency of evidence for a conviction. The standard is "probable cause," not "proof beyond a reasonable doubt." See Lewis v. State, 598 S.W.2d 280 (Tex.Cr.App.1980); Maloy v. State, 582 S.W.2d 125 (Tex.Cr.App.1979); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975). Thus the fact that the hypodermic syringe in the instant case later was shown by a laboratory report not to contain a controlled substance, contrary to Officer Cade's impression at the scene, is of no consequence. We need not consider whether the warrantless arrest was also proper under Article 14.03, supra, as the State urges. Officer Cade effected a valid custodial arrest. The question remains whether the subsequent search of the car's trunk was legal?

The State argues that the search was a proper inventory search. Of course, the burden of proving a proper inventory search is on the State. Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980).

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), it was held that inventories conducted pursuant to standard police procedures are reasonable. The purpose of an inventory is to protect the owner's property while it remains in police custody, to protect the police against claims or disputes over lost or stolen property, and to protect the police from potential dangers. Further, in Opperman the Court found no need to consider the existence of less intrusive means of protecting the police and the property in their custody--such as locking the car or impounding it in safe storage under guard.

One of the instances in which an automobile may be validly impounded and inventoried 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 625 (Tex.Cr.App.1980); Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980); Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980); Backer v. State, 656 S.W.2d 463 (Tex.Cr.App.1983); Stephen v. State, 677 S.W.2d 42 (Tex.Cr.App.1984). In the instant case the appellant's automobile was parked in front of the Bavarian Manor Apartments near Room 108 where a known drug user lived, and where there had been "lots of traffic." No other person was available to take custody of the car; therefore, impoundment was necessary to secure protection of the vehicle. It was shown that the New Braunfels Police Department required such inventories as a matter of policy and practice.

The Court of Appeals recognized the proper basis for an inventory, but concluded that because of the holding in Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1981), the search of the trunk could not be upheld as an inventory because Officer Cade took the keys from the ignition in order to open the trunk. In Gill, we held that the forcible entry of a locked trunk of a car during an inventory was an unlawful intrusion under both the federal and state Constitutions. The police in Gill employed the aid of a wrecker driver to remove the back seat of the vehicle in order to gain access to the trunk and to tow the vehicle to a private storage facility. Had the police not forced their way into Gill's trunk, the police would have had no means of access and would have been free from any claims of tampering with appellant's property located in the trunk of the car.

In Stephen v. State, 677 S.W.2d 42 (Tex.Cr.App.1984), Gill was distinguished on its facts. There this Court wrote:

"In the instant case there was no forced entry. Officer Caraway removed the car keys from the ignition and proceeded to inventory the contents of the trunk. As a means of protection against possible future claims of the theft of property by the police from the trunk, the officers properly conducted an inventory of the trunk of the car. Williams v. State, 621 S.W.2d 613, 615 (Tex.Cr.App.1981)."

See also Kelley v. State, 677 S.W.2d 34 (Tex.Cr.App.1984), and Guillet v. State, 677 S.W.2d 46 (Tex.Cr.App.1984), which also distinguish Gill. ⁵

The facts here are like those in Stephen and are likewise distinguishable from Gill. We conclude as in Stephen that Officer Cade conducted a proper inventory of the trunk of appellant's car.

We need not, however, rest our decision upon a proper inventory alone. Like the Court of Appeals, we rest our decision upon probable cause to search the trunk of the Pontiac automobile.

In Nastu v. State, 589 S.W.2d 434, 438 (Tex.Cr.App.1979), cert. den. 447 U.S. 911, 100 S.Ct. 300, this Court wrote:

" ... It is well established that a search conducted without a warrant issued on probable cause is per se unreasonable and that the...