Gill v. State

• Decision Date: 28 May 1980
• Docket Number: No. 62833,No. 2,62833,2
• Parties: Robert Lee GILL, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 307

625 S.W.2d 307

Robert Lee GILL, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 62833.

Court of Criminal Appeals of Texas, Panel No. 2.

May 28, 1980.

On Rehearing Dec. 23, 1981.

David B. Ziegler, Houston (Court-appointed), for appellant.

John B. Holmes, Jr., Dist. Atty., Clyde F. DeWitt, III, Rusty Hardin and James England, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and CLINTON, JJ.

OPINION

ROBERTS, Judge.

This appeal presents a question about the propriety of officers' breaking into the locked trunk of an automobile after finding a small quantity of suspected contraband in the passenger compartment. The appellant moved to suppress the fruit of such a search, and the trial court overruled his motion. We agree that that was error. We shall reverse the judgment, which was based on verdicts of a jury that found the appellant guilty of possessing hydromorphone and that assessed a punishment of 5 years' confinement and a $5,000 fine.

The events which preceded the search of the trunk may be stated briefly, for the case does not turn on the propriety of those events. ¹ A police officer saw the appellant sitting alone in a parked car, holding a syringe. The officer spoke to the appellant, made a radio call for assistance, and asked the appellant for identification. The appellant produced an evidently altered driver's license. The appellant tried to get back into the car, but the officers restrained him and searched the interior of the car. They seized (besides the appellant) an altered driver's license, a syringe which contained a liquid that was not identified, a marihuana cigarette, a towel, a bottle of rubbing alcohol, a spoon, some cotton, and a briefcase which contained various papers. None of these items was the basis of the conviction now before us. We shall assume (without deciding) that the officers acted properly in making those seizures, and we turn to the crucial search of the trunk.

The officers asked the appellant for a key to the trunk, but he did not provide one. The officers called a wrecker. (The police department had no wrecker or automobile pound; it got those services from private businesses.) They asked the wrecker driver to remove the back seat of the car so that they could search the trunk. There they found a bottle of hydromorphone tablets which were the basis of this prosecution.

Automobiles are "effects" (U.S. Constitution, Amendment IV) and "possessions" (Texas Constitution, Article 1, Section 9) in which the people have a right to be secure against unreasonable searches and seizures. E.g., Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743 (1927). The requirement of a search warrant may be excused in the case of a moving automobile. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). "Carroll has been followed in a line of subsequent cases, but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search." Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-2538, 37 L.Ed.2d 596 (1973) (footnotes omitted).

The issue of probable cause for the search of the trunk comprises two questions: Does the existence of probable cause to search the interior of the car necessarily mean that there was probable cause to search the trunk? If not, was there nonetheless probable cause to search the trunk? The answer to both questions is, No.

"(A) search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358, 51 S.Ct. 153, 157-158, 75 L.Ed. 374 (1931); see United States v. Di Re, 332 U.S. 581, 586-587, 68 S.Ct. 222, 224-225, 92 L.Ed. 210 (1948). The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, (18 L.Ed.2d 782) (1967) (Mr. Justice Fortas, concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777 (1964); Agnello v. United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925)."

Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). For example, if officers have probable cause to search a vehicle for evidence (such as identification numbers) that it was stolen, their search becomes improper when they begin to rip up the floorboards. Maldonado v. State, 528 S.W.2d 234, 241 (Tex.Cr.App.1975). Probable cause that was sufficient for the former search did not justify the latter. It is the later search of the trunk which must concern us.

Probable cause to search part of a vehicle is not inevitably probable cause to search the entire vehicle. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); W. LaFave, 2 Search & Seizure section 7.2(d) (1978). The reason is that the search and seizure amendments of our constitutions protect people's rights to privacy, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and there are different expectations of privacy in different parts of an automobile. In the exterior of an automobile there is no reasonable expectation of privacy. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). In the interior of an automobile there is an expectation of privacy which is somewhat lower than the expectation of privacy in a home or office, "because (an automobile's) function is transportation and it seldom serves as one's residence or as the repository of personal effects. ... It travels public thoroughfares where both its occupants and its contents are in plain view." Cardwell v. Lewis, supra, at 590, 94 S.Ct. at 2469, quoted in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), and in South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976).

In the trunk of an automobile there is a still greater expectation of privacy. Unlike the exterior or the interior of an automobile, the trunk is not in plain view. It does serve as the repository of personal effects. It is not normally involved in the "pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements" which apply to automobiles; South Dakota v. Opperman, supra, at 368, 96 S.Ct. at 3096. One indication of the different expectation of privacy in the trunk of an automobile is the fact, which is common knowledge, that the trunks of most automobiles have a lock and key different from the lock and key of the interior; access to one may be given separately from access to the other. The Supreme Court has recognized that the operator of an automobile has a different expectation of privacy in the trunk of the automobile than mere passengers have in the interior. Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 433-434, 58 L.Ed.2d 387 (1978). ²

Therefore we hold that the scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it. The existence of probable cause to search the interior of an automobile is not necessarily sufficient to justify the search of the trunk. A search based on probable cause which reasonably tends to support only the inference that contraband or evidence will be found in the passenger compartment is of intolerable intensity and scope if it is expanded to include a closed trunk. Such an expansion must be justified by specific, articulable facts that give probable cause to believe that contraband or evidence is concealed in the trunk. Wimberly v. Superior Court, 16 Cal.3d 557, 547 P.2d 417, 128 Cal.Rptr. 641 (1976). Accord, State v. Patino, 163 N.J.Super. 116, 394 A.2d 365 (App.Div.1978); Commonwealth v. Long, --- Pa. ---, 414 A.2d 113 (1980). See Commonwealth v. White, 371 N.E.2d 777 (Mass.1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978).

This holding comports with the traditional "automobile exception" cases such as Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In those cases the searching officers had probable cause to believe that contraband or evidence would be concealed throughout the car. (This is often, but not always, the case. W. LaFave, 2 Search & Seizure section 7.2(d) (1978).) Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), is not contrary to our holding; the officers there had probable cause to believe that the gun which they were seeking was in the trunk. The same may be said of such cases as Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), where the strong odor of marihuana coming from the back part of the car gave the officers probable cause to believe that there was marihuana in the trunk.

Recognizing that probable cause to search the interior is not necessarily sufficient to justify a search of the trunk, we turn to the question of whether there was probable cause to search the trunk. Putting the worst construction on the facts known to the officers in this case, a reasonable person could have concluded that the appellant was in possession of an altered driver's license and a marihuana cigarette, and that he was about to "shoot up" with illegally possessed drugs. These facts do not establish probable cause to believe that contraband or evidence was in the trunk. The finding of a small quantity of suspected contraband in the passenger compartment of an automobile does not alone amount to probable cause to search the trunk. Wimberly v. Superior Court, 16 Cal.2d 557, 547 P.2d 417, 128...