Lewis v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: TOM G. DAVIS; CLINTON; TEAGUE; MILLER; TEAGUE
• Citation: Lewis v. State, 664 S.W.2d 345 (Tex. Crim. App. 1984)
• Decision Date: 22 February 1984
• Docket Number: No. 63237,63237
• Parties: Mary K. LEWIS, Appellant, v. The STATE of Texas, Appellee.

Page 345

664 S.W.2d 345

Mary K. LEWIS, Appellant, v. The STATE of Texas, Appellee.

No. 63237.

Court of Criminal Appeals of Texas En Banc.

Feb. 22, 1984.

J.K. Rusty Wall, Midland, for appellant.

Vern F. Martin, Dist. Atty. and David L. Joers, Asst. Dist. Atty., Midland, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of less than two ounces of marihuana. After the jury found appellant guilty, the trial court assessed punishment at six months and $300.00 probated.

In her first ground of error, appellant contends that the trial court erred in not suppressing the physical evidence. Appellant relies on the Fourth Amendment to the United States Constitution, Art. 1, Sec. 9 of the Texas Constitution, and Art. 38.23, V.A.C.C.P.

Officer Terry Lowe of the Midland Police Force was on patrol on the evening of February 8, 1979. He spotted an automobile that had no license plate light. The license plate was attached to the car at one end by wire. As Lowe turned on his police lights and motioned for the automobile to pull over, he noticed a passenger in the front right seat make a movement toward the floorboard.

Before unsnapping his holster strap and approaching the vehicle, Lowe asked, over his patrol car radio, for a check on the license plate number in order to determine if the car was stolen.

The car was driven by Oscar Zubiate. Appellant was sitting in the right rear passenger seat. There was also a passenger in the left rear seat. The person in the front passenger seat had a black hat on his lap.

To Lowe, the occupants seemed excessively nervous, but they cooperated fully. The officer wrote out a ticket, citing Zubiate for failure to have a license plate light. Lowe asked for identification from the car's occupants and all of them complied.

About this time, Officer Shupp fortuitously arrived on the scene. Shupp watched the car while Lowe went to run a warrant check on the identifications he had collected.

The identifications turned up no warrants. Lowe also received word that the car was registered to Zubiate's mother.

Lowe returned to the car and ordered all of the occupants out. He frisked all of them except the appellant, but found nothing.

While Shupp watched the occupants, who were not free to leave, Lowe searched the car. As soon as he opened the door, Lowe smelled unburned marihuana. He looked under the front passenger seat where he had seen the passenger lean down and found a bag containing marihuana. He shined his flashlight on the backseat and saw a baggy containing a green leafy substance protruding from a zipper suitcase. Lowe also saw what appeared to be marihuana seeds scattered over the backseat. Appellant and the others were arrested.

Appellant does not challenge the initial stop of Zubiate's vehicle. She challenges the continued detention of the car after Lowe cited Zubiate for failure to have a license plate light. She also challenges her removal from the vehicle. According to appellant, the search of the car resulted from her illegal detention and removal from the vehicle.

At the outset we must decide an issue not raised in the trial court and not mentioned by either party on appeal: whether appellant's claim is based on a violation of her own Fourth Amendment rights, or, instead, whether appellant seeks to vicariously assert the rights of the automobile driver.

The State does not have the burden of listing or verbalizing in the trial court every possible basis for holding a search legal or else waive that basis for urging on appeal the validity of the search. Sullivan v. State, 564 S.W.2d 698 (Tex.Cr.App.1977).

At first blush, the United States Supreme Court's decision in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), seems to dispose of appellant's claim. Like the petitioners in Rakas, appellant had no possessory interest in Zubiate's vehicle, nor does the record indicate that her status was anything more than that of a passenger. In Rakas the Supreme Court held that mere presence does not entitle one to challenge the search of a vehicle. That passengers are in a car with the permission of the owner is not determinative of whether they have a legitimate expectation of privacy.

The petitioners in Rakas, however, did not challenge the initial stop of the vehicle in which they rode or their removal from it. Two concurring justices and four dissenters found this to be significant. Thus, the decision in Rakas presumably does not mean that a mere passenger automatically lacks standing to challenge the search of a vehicle, even if the search has been come at by exploitation of an infringement on his personal Fourth Amendment rights. This, at any rate, appears to be the position of at least six Supreme Court Justices, as well as a leading commentator on the Fourth Amendment. See 3 W. LaFave, Search and Seizure, Sec. 11.3(e) (Supp.1983).

The Illinois Court of Appeals, when faced with this same issue, stated in People v. Kunath, 99 Ill.App.3d 201, 54 Ill.Dec. 621, 425 N.E.2d 486 (1981):

"The court in Rakas made clear ... that it was concerned only with the search of the vehicle itself and not with the legality of the stop ...

"Here, in contrast, although the motion to suppress is very general, both theories were considered by the trial court; i.e., that the stop of the automobile was improper for lack of probable cause, and whether the subsequent search was violative of defendant's Fourth Amendment rights ...

"Regardless of whether defendant had a legitimate expectation of privacy in the contents of the automobile so as to challenge successfully the search thereof, as a passenger he can challenge the stopping of the vehicle since his personal liberty and freedom were intruded upon by that act ... The Fourth and Fourteenth Amendments of the U.S. Constitution forbid unreasonable searches and seizures, and it is clear that stopping an automobile and detaining its occupants constitutes a 'seizure' of those persons ... And, for the evidence seized as a result of that stop to be admissible, the stop must have not been unreasonable ...

"In short, it is clear that defendant, as an occupant of the vehicle stopped by police, can challenge the stop of the automobile since it entailed an infringement of his personal freedom ..." 54 Ill.Dec. at 624, 625, 425 N.E.2d at 489, 490.

Thus, it would seem that after Rakas, a mere passenger can challenge the search of the automobile in which he is riding if the search resulted from an infringement (such as an illegal detention) of the passenger's Fourth Amendment rights.

Turning again to the facts of the instant case, it must be remembered that appellant does not challenge the initial stop of herself and others in the Zubiate vehicle but, rather, challenges her continued detention after a certain point in time and her removal from the vehicle.

Assuming arguendo that the continued detention of the vehicle and the removal of the occupants from it were illegal under the Fourth Amendment, the relevant question becomes whether the search of Zubiate's vehicle was come at by exploitation of appellant's continued detention and removal from the vehicle.

As Wong Sun teaches, showing that a search was come at by exploitation of the primary illegality requires more than showing a mere "but-for" relationship:

"... We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal action of the police. Rather, the more apt question in such a case is, 'whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959)." 371 U.S. 471 at 487-488, 83 S.Ct. 407 at 417, 9 L.Ed.2d 441 (1963).

It is clear from the record that appellant's removal from the Zubiate vehicle was not even a "but-for" cause of the subsequent search. Officer Lowe never physically intruded himself into the backseat. He looked under the right front seat and shined his flashlight into the back. He had seen the zipper suitcase prior to ordering the occupants out of the car, though he did not see the bagged marihuana in it until he shined his flashlight. A fair reading of the record indicates that Lowe could have performed his search without removing the car's occupants, but that he did remove them for the sake of his convenience and safety.

The continued detention of appellant was likewise not a "but-for" cause of the search. Once the initial legal detention became an illegal one, the appellant's presence was irrelevant to the officer's decision to search. Put another way, Lowe could have let appellant leave without hampering his ability to search the car. Thus, in no way was her detention necessary to perform the search.

In summary, the purportedly illegal search was not come at by exploitation of the appellant's continued detention or removal from the vehicle. Appellant's first ground of error is overruled.

In her second ground of error appellant challenges the admission of an extraneous offense into evidence at trial and a subsequent mention of the offense during closing argument.

When the purportedly extraneous offense was mentioned by Zubiate under cross-examination by the State, appellant's counsel objected as follows:

"MR. WALL: Now, Your Honor, I object to that. That is clearly improper. Counsel knows that. And I object to that question most strenuously."

The objection was overruled. A general objection is insufficient to preserve error. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980).

The allegedly improper reference to the extraneous offense during closing argument was objected to on the grounds that, "Counsel has gone outside of the record, bringing in other...