Fry v. State, No. 44537

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: ODOM; DOUGLAS; ONION; MORRISON; DOUGLAS; ODOM; ROBERTS
• Citation: 493 S.W.2d 758
• Parties: Larry William FRY, Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 44537
• Decision Date: 08 March 1972

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493 S.W.2d 758 Larry William FRY, Appellant,
v.
The STATE of Texas, Appellee. No. 44537. Court of Criminal Appeals of Texas. March 8, 1972.
Rehearing Denied May 24, 1972.
On State's Motion for Rehearing April 18, 1973.
Second Rehearing Denied May 9, 1973.

Laird Palmer, Austin, for appellant.

Robert O. Smith, Dist. Atty., Phoebe Lester, and Michael J. McCormick, Asst. Dist. Attys., Austin, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of burglary. Punishment was assessed by the court at 12 years.

The question presented for our review is whether there was a lawful arrest and search of appellant and a lawful search of his automobile.

The record reflects that during the late evening or early morning hours of January 17--18, 1970, the Green Leaf Nursery in Austin was burglarized. The owner of the nursery stated that a number of rings had been taken from a jewelry case, that approximately $80.00 had been removed from a filing cabinet, and that an undetermined amount of change had been removed from a Dr. Pepper machine on the premises. On the 24th of January, J. A. Presley, the City Marshal of Marble Falls, received information from Johnny Yonnie linking appellant to that burglary. According to Yonnie, appellant had shown him some rings which had been taken from the nursery. This incident had occurred the day after the burglary, while appellant was temporarily residing at Yonnie's home. Yonnie related that appellant, after showing the rings to him, had placed them in his car, a brown Corvair bearing California license plates. Yonnie told Marshal Presley that he had reason to believe that appellant was planning to burglarize a drug store in Burnet. Marshal Presley relayed this information to Elgin Shelburn, the City Marshal of Burnet, including the fact that he 'thought there would be stolen property in the car.'

At approximately 1:30 A.M. on January 25, 1970, Marshal Shelburn observed appellant's automobile in Burnet, parked behind a drug store in an alley. He immediately contacted his deputy, the Highway Patrol, and Marshal Presley to obtain assistance. The deputy was the first to arrive, and the two officers kept the appellant's automobile under constant surveillance ¹ until the other officers arrived. At no time did they observe any sign of movement from within the vehicle.

At approximately 1:50 A.M. Marshal Presley and a Highway Patrolman arrived on the scene. The four officers approached appellant's car and found appellant lying in the back seat, covered with a

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blanket. Appellant was ordered out of the car, placed under arrest, and searched. A pocket knife was found and seized. A search of the interior of the car was made and various tools and a pair of gloves were found. The officers then proceeded to the rear of the car, unlocked the trunk and recovered certain rings which were later identified as having been taken from the Green Leaf Nursery. Also recovered from the truck were a radio and two telephones. No consent was given by appellant for the search of his automobile. ² No warrant was obtained for either the arrest or search, and the officers testified that they had not attempted to obtain such warrants.

A search conducted without a warrant is unreasonable unless the circumstances surrounding the search are such as to bring it within one of the specifically defined exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 364 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 (No. 44,389 1972). The burden is on the state to show that the exigencies of the situation make a search without a warrant imperative. Coolidge v. New Hampshire, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); McDonald v. United States, 335 U.S. 451, 68 S.Ct. 191, 93 L.Ed. 153 (1948). The standards applicable to determining whether the factual basis supports an officer's probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to reviewing the decision of a magistrate. Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

In order for a warrantless search to be justified, the state must show that probable cause existed for the search and that, under the particular facts of the case, the procuring of a warrant was impracticable. e.g. Chimel v. California, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 (No. 44,389 1972). Probable cause exists where the facts and circumstances within the knowledge of the officer on the scene and of which he has reasonably trustworthy information would lead a man of reasonable caution and prudence to believe that he will find the instrumentality of a crime or evidence pertaining to a crime. Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, supra. Both of the above elements must be present before a warrantless search can be justified. ³ Where probable cause for the search is lacking, that search will not be upheld merely on the basis of exigent circumstances. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Dyke v. Taylor Implement Manufacturing Co., supra. Likewise, no amount of probable cause can justify a warrantless search where the state has not met its burden of showing exigent circumstances. Coolidge v. New Hampshire, supra; Katz v. United States, supra; Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Stoddard v. State, supra.

While the constitutional validity of a warrantless search can only be decided in terms of the concrete factual context presented by each individual case, ⁴ the categories of exceptions to the warrant requirement are easily recognizable. Among

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these are the search incident to arrest, ⁵ the plain view doctrine, ⁶ the hot pursuit rule, ⁷ the moving vehicle exception, ⁸ the stop and frisk rule, ⁹ and the vehicle subject to forfeiture rule. ¹⁰ In some cases, more than one of these may be present to justify the search. See generally, Chambers v. Maroney, supra; Johnson v. State, Tex.Cr.App., 466 S.W.2d 735. However, where one or more of these exceptions is applicable, the scope of the search is limited to the purpose which made its initiation permissible. Coolidge v. New Hampshire, supra; Chimel v. California, supra; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739 (1971).

The problem presented by the instant case is that, even assuming a valid arrest, ¹¹ the state failed to meet its burden of showing that exigent circumstances justified the warrantless search of the trunk of appellant's car. We do not question the right of the officers, under the facts presented, to search appellant and the interior of the car to prevent the accused from obtaining a weapon or destroying evidence. e.g., Coolidge v. New Hampshire, supra; Gasery v. State, 465 S.W.2d 377. However, the trunk of the car is beyond the scope of such a search, since it was not readily accessible to the appellant. Chimel v. California, supra. The trunk of the car was closed and locked when the officers approached, and therefore, the objects in the trunk cannot be held to have been within plain view. Compare Coolidge v. New Hampshire, supra, with Gutierrez v. State, Tex.Cr.App., 423 S.W.2d 593. There is nothing presented to suggest that the automobile was subject to forfeiture. Compare Coolidge v. New Hampshire, supra, with Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

Nor does the mere fact that the place to be searched was an automobile automatically obviate the need for procuring a warrant. e.g. Dyke v. Taylor Implement Manufacturing Co., supra; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1969); United States v. Payne, 429 F.2d 169 (9th Cir. 1970); Stoddard v. State, supra. 'The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears.' Coolidge v. New Hampshire, supra, 91 S.Ct. at 2035.

In the case of Carroll v. United States, supra, the court held that the search of an automobile without a warrant may be justified under circumstances which would not permit a warrantless search of a building. In Carroll the court found the exigent circumstances to be sufficient where an automobile had been stopped on a highway by officers who had probable cause to believe that the car contained contraband. The reasoning of the court was that the car was moveable, the occupants were alerted, and the car could be quickly moved out of the jurisdiction before a warrant could issue.

In the instant case, the state has failed to show that the circumstances were such that the procuring of a search warrant

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would have been impracticable. Marshal Presley received his information concerning appellant's automobile sometime during the afternoon of January 24. He was also informed at that time that appellant and the automobile were present at Yonnie's home in Marble Falls. He made no attempt to obtain a search warrant for the car or an arrest warrant for appellant. Approximately twelve hours later, Marshal Shelburn discovered appellant's car in Burnet. He radioed Marshal Presley in Marble Falls, told him that appellant's automoble was 'under observation', and made no other move until Marshal Presley arrived. Marshal Shelburn had time to await the arrival of Marshal Presley from another city, yet the record is devoid of any evidence that a magistrate was unavailable. The car was parked in the center of town, under the...