Jenkins v. State

• Decision Date: 10 October 1984
• Docket Number: No. 922-83,922-83
• Citation: 689 S.W.2d 216
• Parties: Robert JENKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 216

689 S.W.2d 216

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

No. 922-83.

Court of Criminal Appeals of Texas En Banc.

Oct. 10, 1984.

Carl E. Mallory, Arlington (court appointed on appeal only), for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall, Brent A. Carr, Michael Jergins and George Kredell, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

PER CURIAM.

Dismissed as improvidently granted.

OPINION DISSENTING TO DISMISSAL OF APPELLANT'S PETITION FOR

DISCRETIONARY REVIEW

TEAGUE, Judge.

When a majority of this Court does something that is totally inconsistent with a prior decision or decisions of this Court, our presiding judge exclaims "Color Me Amazed". See for example Aldrighetti v. State, 507 S.W.2d 770, 775 (Tex.Cr.App.1974); and Antunez v. State, 647 S.W.2d 649, 651 (Tex.Cr.App.1983). In light of what this Court did in Gauldin v. State, 683 S.W.2d 411 (Tex.Cr.App.1983) (No. 518-82, September 26, 1983), and what it does in this cause, I must echo the above statement.

In Gauldin v. State, supra, this Court handed down a unanimous opinion which sustained the contention of the defendant in that cause that a similar vehicular search as occurred in this cause was unlawful. Today, however, this Court does a 180 degree turnaround by implicitly approving the unpublished opinion that the Fort Worth Court of Appeals handed down in this cause, which I find, as to the law, is an almost xerox copy of the opinion that that court handed down in Gauldin v. State, 632 S.W.2d 652 (Tex.App.--Ft.Worth 1982), which opinion, with one judge concurring in the result, was unanimously disapproved by this Court.

In upholding the warrantless search of appellant's leased taxi-cab that occurred in this cause, the Fort Worth Court of Appeals, in an unpublished opinion, see Jenkins v. State, (Cause No. 2-81-308-CR, September 1, 1983), held " '[ (1) ] that there were exigent circumstances which precluded the necessity of a search warrant [to search appellant's leased taxi-cab], See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970),' and '[ (2) ] that [t]he search [of the taxi-cab] was lawful because it was made as an incident to a lawful arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).' " (Pages 1 and 2 of its slip opinion). The principles of law announced in those cases are, however, inapplicable to the facts of this cause.

The facts in this cause reflect that as a result of a reported rape and robbery by a passenger of a taxi-cab, a police investigation ensued that resulted in the police learning that "the [physical] description [of the robber and rapist] fit Leon Jenkins [appellant], and that the license plate number [of the taxi-cab] was registered to a taxi-cab [belonging to Yellow Cab Company of Fort Worth]." Further investigation revealed that appellant had leased the taxi-cab bearing the reported license plate number from the Yellow Cab Company of Fort Worth for 24 hours and had been operating "Unit 38" at the time in question. Appellant was subsequently positively identified by the complainant as her robber and rapist.

Based upon the above information, a Lieutenant Place of the White Settlement Police Department went to a magistrate of Tarrant County and obtained a warrant for appellant's arrest. Place, armed with the arrest warrant, the validity of which was not challenged on appeal by appellant, thereafter went to appellant's central place of business, a Yellow Cab Company location in Fort Worth, where he went inside of a building and arrested appellant, who at that time was merely standing at a counter inside of the building. As previously observed, the record reflects that appellant had a 24-hour lease on the cab. The record also reflects that when appellant was arrested, his taxi cab was located next to a gasoline pump which was on the outside of the building, approximately 20 to 30 feet from the front door of the building, and on the inside of the company's premises where vehicles were parked and kept.

Because the State has succinctly, but correctly, stated what happened after appellant was arrested by Place, I quote from its appellate brief: "While patting the Appellant down, Lt. Place, who was already aware that a pistol had been used to effectuate the offense, inquired [of appellant] as to whether [he, the appellant,] had a weapon. Appellant replied that there was a pistol on the front seat of the taxi-cab which he had been driving that day. After the pat-down, the Appellant was placed in handcuffs and warned of his rights. Lt. Place then proceeded to where the cab was located, at a gas pump 20 to 30 feet from the door of the building in which Appellant was arrested. He, [Place], removed a briefcase from the front seat of the taxi, opened it and found a .22 caliber pistol. Lt. Place subsequently took possession of the weapon and the Appellant's other articles in the cab, all which were taken to the police property room." (The above emphasized portions of the quoted material is my emphasis and not the State's.)

The trial court overruled appellant's motion to suppress the evidence that had been seized without a search warrant from appellant's leased taxi-cab.

I first find that the court of appeals' reliance upon Chambers v. Maroney, supra, as authority that there were exigent circumstances present in this cause to dispense with the warrant requirement, is misplaced.

As applied to searches of automobiles, whose drivers have been lawfully stopped, for fourth amendment purposes, the "exigent circumstances" doctrine was first recognized by the Supreme Court of the United States in its decision of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Carroll, however, essentially held that when the police have lawfully arrested the driver of a motor vehicle and have probable cause to believe that inside of the lawfully stopped vehicle there is contraband, fruits of a crime, or instrumentalities that might have been used in the commission of a crime, then the police may conduct a search of the vehicle without a warrant. This exception to the warrant requirement was recognized because of the mobility of the vehicle, i.e., to...