Johnson v. State
| Decision Date | 12 March 1969 |
| Docket Number | No. 41750,41750 |
| Citation | 440 S.W.2d 308 |
| Parties | Monty JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
Tom Blackwell, former Dist. Atty., Robert O. Smith, Dist. Atty., Phillip A. Nelson, Jr., Dain Whitworth, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is the unlawful possession of marihuana, a narcotic drug; the punishment, two years, probated.
Trial was before the court on a plea of not guilty.
This is a companion case to that of Gaston v. State, Tex.Cr.App., 440 S.W.2d 297, this day decided.
The evidence reflects that appellant was one of the six persons who appeared at the apartment after the officers had executed the search warrant. He was searched after an officer was unsuccessful in attempting to prevent his swallowing something which he took from his coat pocket and placed in his mouth. A plastic type medicine bottle containing a small amount of marihuana was found in one of his pockets.
Appellant's first ground of error is the same as that overruled in Gaston v. State, supra.
Appellant's second ground of error presents the alternative contention that the search warrant did not authorize the search of his person and his arrest was made without a warrant and without probable cause.
The grounds of error are overruled, our holding being that there was probable cause for the search warrant to issue and the warrant authorizing the search of the apartment and the arrest of Sharland Reeves Gaston included the right to search appellant. Gaston v. State, supra.
The judgment is affirmed.
DOUGLAS, J., not participating.
For the same reasons set forth in Gaston v. State, Tex.Cr.App., 440 S.W.2d 297, this day decided, I concur in the results here reached.
OPINION ON APPELLANT'S MOTION FOR REHEARING
On rehearing, appellant urges that regardless of the sufficiency of the search warrant, a search of appellant was not authorized by such search warrant and that the evidence seized as a result of a search of his person was inadmissible.
The facts show that as officers executed a search warrant at the premises of another person, appellant in company with five others walked into the house being searched. As soon as this group of people entered the house, one of the officers standing guard at the door through which they entered began a search of appellant. His superior told him to 'move them into the kitchen, at which time I (the officer) moved him (appellant) on through and the others on through, and as they were going into the kitchen I observed him (appellant) run his hand into his pocket where I had already felt an object in the pocket, and I observed him run his hand into this coat pocket and take an object from his coat pocket and put it into his mouth.' An effort to prevent appellant from swallowing whatever he placed in his mouth failed. But based on this act, the officer then conducted a search of appellant which turned up a container of marijuana (another object felt by the officer as a result of his previous abbreviated frisk).
The issue is simply whether officers executing a search warrant have the right, pursuant to the warrant's authority, to search persons entering the premises contemporaneous with the search being conducted.
In our recent opinion in Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831, we addressed ourselves to the right of the officers to search a person not named in the warrant but found on the premises at the time of execution of the warrant.
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