Linnett v. State

• Decision Date: 30 March 1983
• Docket Number: No. 63864,63864
• Citation: 647 S.W.2d 672
• Parties: James Owen LINNETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 672

647 S.W.2d 672

James Owen LINNETT, Appellant, v. The STATE of Texas, Appellee.

No. 63864.

Court of Criminal Appeals of Texas,

En Banc.

March 30, 1983.

Bob W. Robertson, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Calvin A. Hartmann, Paul Coselli, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

CLINTON, Judge.

Withdrawn is the opinion on original submission by which the Court reversed the judgment of the conviction after finding that a search of an automobile being driven by appellant was not within the scope permitted by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). At the instance of the State Prosecuting Attorney, we granted leave to file State's Motion for Rehearing in order to consider the application in Texas of the "workable rule" announced by the Supreme Court July 1, 1981 in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)--well after the instant stop and search and trial before the court in 1979, and also after briefs had been filed in this cause in early 1980. ¹ After summarizing the facts of the matter, we will adhere to the result reached on original submission, though for somewhat different reasons.

Houston Police Officer C.G. Malone was on patrol on February 12, 1979. At the intersection of Old Katy Road and Sherwood Forest Drive Officer Malone observed the appellant driving a green Pontiac sedan. As appellant turned left in front of the police vehicle, Malone noticed the rear license plate on the Pontiac had expired. Officer Malone stopped appellant to give him a traffic ticket. Appellant, who was alone, got out of his car and came back towards the officer who parked behind appellant's vehicle. Appellant produced a driver's license. He appeared nervous to Malone and kept walking back towards his car. Malone instructed appellant to stand beside him while he wrote the ticket. There was no evidence that appellant was intoxicated or under the influence of drugs. There was no testimony that Officer Malone frisked or searched appellant's person. Malone saw a car window was down and approached appellant's car. He observed "a brown canvas zipper bag laying open in the front seat--in the middle of the front seat." Malone reached in and pulled the bag over and looked at it. The bag contained "... I think like a knife, and some jewelry-looking stuff," and "a little black film canister." Malone removed the canister from the bag and opened it. The canister contained pills. A chain of custody was established and a chemist testified 20 of the pills were hydromorphone.

The Supreme Court granted certiorari in Belton v. New York, supra, "to consider the constitutionally permissible scope of a search in circumstances such as these," id., 453 U.S. at 457, 101 S.Ct. at 2862. And the circumstances were that a New York State Trooper stopped a speeding automobile and discovered that none of the four male occupants owned the vehicle or was related to the owner. But while making those inquiries the trooper smelled burnt marihuana and saw on the floorboard an envelope marked "Supergold" that he associated with marihuana; therefore, he "directed the men to get out of the car, and placed them under arrest for the unlawful possession of marihuana," id., at 455-456, 101 S.Ct. at 2862. The trooper then patted down each man and directed each to stand apart from the others; he picked up and inspected the "Supergold" envelope and, finding that it contained marihuana, he gave each arrestee Miranda warnings and searched the person of each one of them. He then searched the passenger compartment of the car and when he got to the back seat the trooper found a leather jacket belonging to Belton unzipping one of its pockets, he discovered some cocaine. Placing the jacket in his own unit, the trooper drove the four arrestees to a nearby police station. Ibid.

Revisiting principles applied in Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. at 2040, "that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and the immediately surrounding area" ²--the Belton Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile," Belton, supra, 453 U.S. at 460, 101 S.Ct. at 2864. The Supreme Court added the following caveat:

"Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic content. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests." Id., 453 U.S. at 460, n. 3, 101 S.Ct. at 2864, n. 3.

Applying its holding to Belton himself the Supreme Court took pains to point out, "It is not questioned that the respondent was the subject of a lawful custodial arrest on a charge of possessing marihuana," id., 453 U.S. at 462, 101 S.Ct. at 2865, the validity of which had not been questioned, id., 453 U.S. at 460, n. 2, 101 S.Ct. at 2864, n. 2. The jacket in the passenger compartment searched by the trooper immediately following that arrest "was thus within the area we have concluded was 'within the arrestee's immediate control' within the meaning of the Chimel case," and the search of the jacket "therefore, was a search incident to a lawful custodial arrest ..." id., 453 U.S. at 462-463, 101 S.Ct. at 2865.

The Belton opinion does not define "custodial arrest" for us, but in a similar context the Supreme Court has upheld a "full search of the person" of one subjected to a "lawful custodial arrest." United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). The opinion in Robinson proceeds on the assumption by the Court of Appeals and the concession by Robinson that the arresting officer "had probable cause to arrest the respondent, and he effected a full-custody arrest," ³ id., 414 U.S. at 220-221, 94 S.Ct. at 470. Similarly, in Gustafson the parties conceded that the officer "had probable cause to arrest ..., and that he took petitioner into custody in order to transport him to the stationhouse ...," id., 414 U.S. at 262, 94 S.Ct. at 490.

The Supreme Court further demonstrated its own delineation of the meaning of "lawful custodial arrest" effected in both cases by distinguishing a scenario alluded to by the Court of...