Keah v. State

• Decision Date: 01 May 1974
• Docket Number: No. 47510,47510
• Citation: 508 S.W.2d 836
• Parties: Millard Joseph KEAH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 836

508 S.W.2d 836

Millard Joseph KEAH, Appellant, v. The STATE of Texas, Appellee.

No. 47510.

Court of Criminal Appeals of Texas.

May 1, 1974.

William F. Kortemier, II, W. John Allison, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of possession of a dangerous drug; punishment was assessed at a fine of $125.00 and eighteen months confinement, probated.

Appellant complains of the admission into evidence of property seized by an alleged unreasonable search and seizure.

On November 5, 1971, the appellant and two companions were riding in a car driven by James D. Thiehoff. There was testimony that shortly after midnight Thiehoff braked the vehicle suddenly and made a sharp right-hand turn without signaling. Officers Holmes and Proctor were following in a police car and nearly collided with the turning vehicle. When the red lights were turned on, the car appellant was in started to pull over to the curb, and appellant was observed 'lowering his left shoulder as if to pick something up or stick something up under the seat.' After the vehicle stopped, appellant got out of the vehicle with his hand in his left pocket. When appellant withdrew his hand, Proctor saw a 'large bulge' in the pocket. Three times he asked appellant what was in his pocket, to which no reply was made. Proctor then reached into the pocket and pulled out a plastic bottle and a cellophane wrapper, each containing tablets, later determined to be amphetamines. Appellant had been in the officer's presence approximately 30 to 45 seconds before the seizure took place. The seizure was made without appellant's consent, and prior to his arrest.

Appellant properly objected to the introduction of the fruits of the search, and preserved his objection for review on appeal.

We must review the reasonableness of the search and seizure in the instant case. The issue is not the existence of 'probable cause,' but rather the reasonableness of the search and seizure, as was noted in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, where the facts showed a stop and frisk. There it was stated:

'If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether 'probable cause' existed to justify the search and seizure which took place. However, that is not the case. . . . (W)e deal here with an entire rubric of police conduct--necessarily swift action predicated upon the on-the-spot observations of the officer on the beat--which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

'Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context.' 392 U.S., at 20, 88 S.Ct. at 1879.

The test as stated in Terry, supra, is a two-staged inquiry:

'. . . (I)n determining whether the seizure and search were 'unreasonable' our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' 392 U.S., at 19--20, 88 S.Ct. at 1879.

In Terry the court held:

'. . . where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' 392 U.S., at 30, 88 S.Ct. at 1884.

This holding that in such circumstances a frisk would be constitutionally permissible is not a holding that a frisk of the outer clothing is the only permissible alternative to a full-blown search. A ruling on other specific situations and responses was specifically reserved:

'We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.' 392 U.S., at 29, 88 S.Ct. at 1884.

In the instant case there was no patdown or frisk, but rather an immediate reaching into appellant's pocket to retrieve the seized evidence. Terry v. Ohio, supra, does not hold that such action is prohibited, or that every such seizure must be preceded by a patdown or frisk. Indeed, the language of Terry suggests that in some situations an immediate seizure may be permissible where a patdown would not be:

'A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be Strictly circumscribed by the exigencies which justify its initiation.' 392 U.S., at 25--26, 88 S.Ct. at 1882.

(Emphasis supplied)

In Martinez v. State, Tex.Cr.App., 500 S.W.2d 151, we held the seizure proper, citing Terry v. Ohio, supra, and this even though no patdown preceded the seizure. Thus we decline to hold that the immediate seizure of what reasonably appears to be a dangerous...