May v. State

• Decision Date: 27 June 1979
• Docket Number: No. 60532,No. 3,60532,3
• Citation: 582 S.W.2d 848
• Parties: Johnny Leon MAY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 848

582 S.W.2d 848

Johnny Leon MAY, Appellant, v. The STATE of Texas, Appellee.

No. 60532.

Court of Criminal Appeals of Texas, Panel No. 3.

June 27, 1979.

William A. Dyess, Brownfield, for appellant.

E. W. Boedeker, Dist. Atty. and Warren J. New, Asst. Dist. Atty., Levelland, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal taken from an order revoking probation and assessing punishment by confinement for a term of five years in the Texas Department of Corrections. Regularity of original and revocation proceedings and sufficiency of the evidence are not questioned. Suffice it to say that on November 10, 1977 appellant entered a plea of guilty to the charge of theft of money over $200.00 and less than $10,000.00, was assessed punishment at confinement for a term of five years but imposition of sentence was suspended and appellant placed on probation under the usual conditions, one of which was that he commit no offense against the laws of the State of Texas or of any other state or of the United States. April 27, 1978 a motion to revoke probation was filed alleging a violation of that condition of probation in that on or about April 16, 1978 appellant knowingly possessed a useable quantity of marihuana. Hearing on the motion was seasonably held with the consequential sentence to confinement for a term of five years. Appellant's sole ground of error is that the trial court erred in admitting into evidence over objection of appellant fruits of a warrantless search of his lunch box in that the search was conducted without consent and without probable cause to conduct it.

Shortly before midnight in Brownfield, Terry County, a deputy sheriff stopped a Volkswagen van matching a description of a motor vehicle communicated to him by radio transmission that was suspected of having been involved in a burglary of another motor vehicle. ¹ Appellant was driving the van; it belonged to the parents of a juvenile who was then a passenger in the van. Stopping it, the deputy sheriff had both appellant and the juvenile, ² the only occupants of the van, get out of it and await arrival of officers of the Brownfield Police Department. One of them, a patrol sergeant who was apparently in charge of the investigation, obtained from the deputy sheriff appellant's driver's license, and, in the word of the deputy, took "custody" of appellant and the juvenile. The sergeant then arranged for the juvenile to ride in the police vehicle with him and another officer and for appellant, driving alone in the van, to follow them to the Henson residence. ³ Arriving at the Henson premises, the sergeant asked the juvenile for permission to search the van for stolen tools and the juvenile assented. ⁴ The conversation with the juvenile was in the presence of and was overheard by an officer who later searched the van. He testified that after driving the van to the Henson premises, appellant remained in his position in the driver's seat some distance away from the site of the discussion. Neither the searching officer nor anyone else undertook to claim that appellant actually heard the juvenile grant permission to search the van. Moreover, the sergeant who obtained assent from the juvenile did not ask appellant for permission to search nor, so far as he was aware, did any other officer. The searching officer did not seek consent from appellant.

In making his search of the interior of the van, the officer testified he was looking for tools that "might possibly have been stolen from Mr. Henson Or others." He knew that the "stuff" belonging to Henson was marked with his name, and that about a month earlier another pickup had been burglarized of tools that were also "all marked." But as to the particular kind or type of tools belonging to Henson is obvious from his testimony that the searching officer had not been provided with a description of them. ⁵ The searching officer began his examination of the van at its rear and worked forward. In the back was a bed with a compartment under it in which he observed several things, apparently including some hand tools, but nothing that was identifiable; that is, the tools and things were not marked again, the officer was looking for marked tools. Completing his examination of the entire area behind him without finding any tool that was marked, as he made his way toward the driver's seat with appellant sitting in it, he observed a closed lunch box on the floor right behind that seat. He picked up the lunch box and as he opened it to look into it asked, "Who's lunch box is this?" Appellant said it was his. ⁶ Looking into the lunch box the officer saw a number of prescription type medicine bottles and upon examining them discerned that the labels bore the name of appellant, that some of the bottles contained medicine and two had what he believed to be marihuana in them. The officer further candidly admitted that he had no reason to believe that there was marihuana in the lunch box when he picked it up. Appellant was placed under arrest, removed from the van, his person was searched and he was handcuffed.

Meanwhile, Henson had checked his pickup, determined that nothing was missing and communicated that fact to the patrol sergeant. The sergeant walked to the van and relayed that information to the searching officer who, according to the sergeant, had already found the lunch box.

Contending that the juvenile whose parents owned the van could not give a valid consent to search the van when appellant was present and "in possession" of the van that he had been driving, appellant recognizes the contrary holding of this Court in Swinney v. State, 529 S.W.2d 70 (Tex.Cr.App.1975), ⁷ but makes a forceful presentation that Swinney was wrongly decided. We leave that issue for another day in order to address his second contention.

Appellant also challenges the search of his lunch box on the theory that in light of the circumstances attending the seizure and search of it consent by the juvenile to search the van may not be considered consent to search his lunch box. From authoritative decisions believed to be more than persuasive, we agree.

It must be remembered that the consent given by the juvenile was to a request to "search the vehicle for tools." It is axiomatic that the limit of the right of officers to search is only coextensive with the particular search consented to. 79 C.J.S. Searches and Seizures § 62, p. 818; Honig v. U. S.,208 F.2d 916, 919 (8 Cir. 1953); Davis v. California, 341 F.2d 982, 985, n. 8 (9 Cir. 1965); U. S. v. Dichiarinte, 445 F.2d 126, 129, n. 3 (7 Cir. 1971); Mason v. Pulliam, 557 F.2d 426, 428-429 (5 Cir. 1977):

"When the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects."

That the lunch box was the property of appellant, as he claimed it was, was immediately accepted by the searching officer and clearly is undisputed. ⁸ Since the lunch box did not belong to the juvenile, seizing and searching it was not a violation of his right to or expectation of privacy with respect to it. There is absolutely no showing that the juvenile even knew the lunch box was in the van or, knowing that it was, that he possessed some authority in common with appellant over it. In the absence of a demonstration by the State that the juvenile had standing to resist the seizure and search of the lunch box as an invasion of his own Fourth Amendment rights, the juvenile was powerless to consent to the seizure and search of the property of another. In any event, factually it is clear that he did not do so.

But the State argues that once valid consent to search the van was given, the officer could search the entire vehicle and its contents, including the lunch box. In the circumstances of this case, however, given the limited consent to search the van for tools, we believe the State needed to show, as in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969) that the juvenile was "a joint user" of the lunch box in order to have authority to consent to a search that included it, 394 U.S. at 740, 89 S.Ct. at 1425. The Frazier principle has been recognized and applied by this Court in, e. g., Lowery v. State, 499 S.W.2d 160, 165-166 (Tex.Cr.App.1973). Thus we are constrained to hold that invasion of the privacy of appellant with respect to his lunch box could not be authorized by the juvenile, as a matter of law, and was not intended to be authorized by him, as a matter of fact.

Furthermore, the minute appellant told the searching officer that the lunch box was his, the officer knew or should have known that he had gone beyond permission to search granted by the juvenile. The fact that the...