Hattersley v. State

• Decision Date: 25 September 1972
• Docket Number: No. 45192,45192
• Citation: 487 S.W.2d 354
• Parties: Cleve M. HATTERSLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 354

487 S.W.2d 354

Cleve M. HATTERSLEY, Appellant, v. The STATE of Texas, Appellee.

No. 45192.

Court of Criminal Appeals of Texas.

Sept. 25, 1972.

Rehearing Denied Nov. 15, 1972.

Sam Houston Clinton, Jr., Austin, for appellant.

Robert O. Smith, Dist. Atty., Philip Nelson, Jr., Lawrence Wells and Michael J. McCormick, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, seven (7) years.

Trial was before the court without the intervention of a jury.

Braniff ticket agent James Barry testified that just prior to 9:00 a.m. on August 31, 1970, the appellant bought a ticket under the name 'J. English' for a flight to Newark, New Jersey, departing at 9:00 a.m. Barry checked in the appellant's suitcase, which was tied at one end with a string and attached a claim check for it to the appellant's ticket. When Barry next observed the suitcase, in the baggage room, 'the string had popped open' and the contents were clearly visible without manual intervention by the attendants. Barry and Braniff agent Joseph Wilkinson, who was also present in the baggage room, stated that they saw the suitcase contained plastic bags with brown bags inside them. They detected an odor of cosmetic powder and then an odor of marihuana emanating from the luggage. They testified they recognized the odor of marihuana from previous occasions when they discovered similar substances which narcotics officers later identified as marihuana. The suitcase containing the suspected contraband was sent to the airplane, with the string still untied, while Barry and Wilkinson reported their findings to their superior who in turn notified Captain Harvey Gann of the Austin Police. When Gann arrived at the airport he verified the agents' conclusion, seized the contraband, and arrested the appellant.

The facts and circumstances of this case are very similar to those in Chaires v. State, Tex.Cr.App., 480 S.W.2d 196. That offense, which occurred the day after the instant events, also concerned the discovery of marihuana at Austin Municipal Airport and involved practically the same airline agents and police officers.

Appellant's first two grounds of error relate to probable cause to search the appellant's suitcase. Some years ago in Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534, this court discussed the rule earlier announced in Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, that 'if one is foolish enough to leave his windows uncurtained he may not complain if another . . . observe(d) an illegal act being committed therein.' Cf Thompson v. State, Tex.Cr.App., 447 S.W.2d 175, cert. denied 398 U.S. 912, 90 S.Ct. 1709, 26 L.Ed.2d 73. We say here that if one is careless enough to carry contraband in a faulty suitcase he may not complain if another observes the contraband when the bag opens itself by its own weight. Further,

'After the Braniff employees, by sight and smell, determined that the bags contained marihuana, and reported their findings to the police, the police, upon seeing the bags and smelling the contraband, clearly had probable cause to seize the luggage and to arrest the offenders.' Chaires v. State, Tex.Cr.App., 480 S.W.2d 196.

Appellant's third contention challenges the warrantless search of his luggage by the police. He claims that the officers should have obtained a search warrant. The same contention was raised in Chaires v. State,...