Howard v. State, 61438

• Decision Date: 26 September 1979
• Docket Number: No. 2,No. 61438,61438,2
• Parties: Lawson HOWARD, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 597

599 S.W.2d 597

Lawson HOWARD, Appellant, v. The STATE of Texas, Appellee.

No. 61438.

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

Sept. 26, 1979.

Rehearing Denied June 11, 1980.

Donna C. Pendergast and Philip S. Greene, Houston, for appellant.

Carol S. Vance, Dist. Atty., Raymond E. Fuchs and George H. Godwin, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal taken from an order revoking probation and assessing punishment by confinement for a term of four years in the Texas Department of Corrections. Regularity of the original and revocation proceedings are not questioned.

The record reflects that on February 7, 1977, appellant pleaded guilty to the charge of delivery of a controlled substance for which punishment was assessed at imprisonment in the Texas Department of Corrections for four years. Imposition of the sentence, however, was suspended and appellant placed on probation under the usual conditions, one of which was that he commit no offense against the laws of the State of Texas or of any other state or of the United States. On June 22, 1978, the State filed an amended motion to revoke probation alleging a violation of that condition of probation in that on or about May 31, 1978, appellant knowingly possessed a controlled substance. Hearing on the motion was seasonably held with the consequential sentence of confinement for a term of four years.

In his first ground of error, the appellant contends that the trial court erred in admitting into evidence, over his timely objection, fruits of an illegal search and seizure. Because we believe that the instant seizure cannot be validated on the strength of the facts before us, we reverse the judgment of the trial court revoking appellant's probation.

While on routine patrol in Houston's Fifth Ward on the evening of May 31, 1978, Officers R. W. Holland and M. R. Harrison observed the appellant make a left turn without giving the proper turn signal. After noticing the minor traffic offense, the officers turned on their unit's red lights and pulled the appellant over to the side of the road. As the vehicles were slowing to a stop, Officer Holland noticed the appellant "dip down in his seat towards the steering wheel." ¹ The officers exited their unit and approached the driver's side of appellant's vehicle just as the appellant was leaving it. As Officer Harrison escorted the appellant to the back of the latter's vehicle, Officer Holland shined his flashlight into the appellant's vehicle and noticed a brown plastic medicine jar containing a large amount of tablets on the floorboard, right in front of the driver's seat. ² Officer Holland retrieved the jar, noted that there were no markings of any sort on the outside of the container, and proceeded to open it. The contents of the container were pinkish tablets bearing the inscription "BI 62." Officer Holland testified that he formed the opinion that the tablets were a controlled substance, namely Preludin, and, after informing his partner of this, formally placed appellant under arrest for possession of a controlled substance. Detaining the appellant in the back of his patrol unit, Officer Holland conducted a field inventory of appellant's vehicle and discovered a second container of what he also believed to be Preludin directly underneath the driver's seat of appellant's vehicle. The officers then transported the appellant to the central police station where he was subsequently processed and detained.

Houston Police Department chemist Charlotte Huffman testified that she ran a chemical analysis on the tablets taken from appellant's vehicle by Officers Holland and Harrison. The results of that analysis revealed that the 200 tablets at issue were phenmetrazine hydrochloride, a controlled substance commonly known as Preludin. Ms. Huffman also testified, on cross-examination, that it would be impossible to determine the content of the seized tablets with any degree of certainty merely by looking at them.

Testifying in his own behalf, the appellant stated that on the night in question, he had borrowed a friend's automobile in order to run an errand for his friend. ³ The appellant testified that the officers, upon stopping his vehicle, stated that "this was a routine check," and that he was not issued a citation for his allegedly improper left turn until he reached the police station. The appellant stated that upon questioning from the officers, he produced a valid Texas driver's license and told the officers that the vehicle he was driving was borrowed from a friend. The appellant estimated that he had been driving the borrowed vehicle for no more than three or four minutes and had neither seen the tablets seized nor knew of their contents. ⁴

In rebuttal and for the limited purpose of impeachment, Officer Holland testified, over the appellant's objection, that the appellant made an oral incriminatory statement while in custody. According to Officer Holland, the appellant answered, "No, I'm not selling them (the pills). They're all for me, ⁵ " when asked if he were.

The trial court then revoked appellant's probation on the grounds that the appellant committed the felony offense of possession of a controlled substance.

That the officers herein had sufficient probable cause to authorize the initial stop of appellant's vehicle is without question, given the appellant's failure to give a proper left turn signal as required by Vernon's Ann.Civ.St.Art. 6701d, § 68(a). ⁶ Beck v. State, 547 S.W.2d 266 (Tex.Cr.App.1976) ⁷; Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975), running a stop sign authorized arrest; Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974), running a red light. While this Court continues to revisit the Taylor doctrine ⁸ from time to time, see, e. g., Duncantell v. State, 563 S.W.2d 252, 256 (Tex.Cr.App.1978), it has examined each precise fact situation to determine that after the traffic stop each movement made by an officer is factually and legally justified, ⁹ for the Supreme Court of the United States has not yet applied the "stop and frisk" principle to a moving motor vehicle. See its most recent treatment of the verity that citizens are not shorn of Fourth Amendment interests "when they step from sidewalks into their automobiles," Delaware v. Prouse, 440 U.S. 648, at 663, 99 S.Ct. 1391 at 1401, 59 L.Ed.2d 660 (1979). The search in the instant case not being tied to the traffic offense, we must determine step by step its ultimate justification. See Wilson, supra.

Officer Holland directed the beam of his flashlight into the interior of the automobile as appellant was getting out of it and, in response to the request of Officer Harrison, was walking away from it to the back of the car. Officer Harrison, in the best position to know, was asked and answered as follows:

"Q: So, he got out, and you took him to the back of the car?

A: Yes, sir.

Q: Again, he wasn't in motion to get back in his car?

A: He could have been.

Q: But you wouldn't let him?

A: No, sir."

While Officer Harrison, making a custodial arrest, had the absolute, unqualified right, to then and there search the person of appellant, Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (1973), he did not even frisk him thereby plainly indicating he had no fear whatsoever for his safety or that of his partner. ¹⁰

What, then, is Officer Holland doing at the car shining his flashlight inside it? ¹¹

It has been suggested that, even with the traffic offender out and away from his car, a "frisk" of the interior of the vehicle is a permissible protective measure in anticipation that the citizen will be permitted to return to it, free to go on his way. See Wilson v. State, 511 S.W.2d 531, 538 (Tex.Cr.App.1974) (Douglas, J., dissenting) and Beck v. State, 547 S.W.2d 266, 269 (Tex.Cr.App.1976) (Douglas, J., dissenting). Putting aside the absence of articulable facts and circumstances that objectively warrant a belief that precautionary measures are reasonably necessary, the speculative possibility is not even presented by the facts before us for the simple reason that Officer Holland was at the door while Officer Harrison was detaining appellant and before Officer Harrison had decided whether to permit appellant to return to the automobile. Thus the theory is not susceptible to application here.

From Wilson v. State, supra, ¹² and Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), for reasons exhaustively given in the seminal opinion by Justice Mosk for the Supreme Court of California in People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970), response by an officer to what he conceives to be "body language" of the citizen being stopped is of little moment, especially when movement is "ambiguous conduct which the arresting officers themselves have provoked," Wong Sun v. U. S., 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). Officer Holland stopped short of asserting that his approach to the vehicle was occasioned by his observation of the "dipping" movement. The State does not contend that his presence near the door was justified by what he had seen. Indeed, the State advances no particular justification whatsoever for his presence.

Obviously, Officer Holland was getting himself in position to "plain view" the interior of the automobile appellant was driving. Consonantly, the State emphasizes through reiteration that closed translucent container was observed and discovered "in plain view." ¹³ Significantly, though, the State does not cite or discuss a single authority on the point in reply to appellant's reliance on the proposition that is basic to the plain view doctrine that it must be immediately apparent to the police that they have evidence before them. Coolidge v. New Hampshire, 403...