McCallum v. State

• Decision Date: 08 October 1980
• Docket Number: No. 63339,No. 3,63339,3
• Citation: McCallum v. State, 608 S.W.2d 222 (Tex. Crim. App. 1980)
• Parties: Randall P. McCALLUM, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 222

608 S.W.2d 222

Randall P. McCALLUM, Appellant, v. The STATE of Texas, Appellee.

No. 63339.

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

Oct. 8, 1980.

On Rehearing Dec. 23, 1980.

Kirk Hawkins, San Angelo, for appellant.

Gerald A. Fohn, Dist. Atty. and Thomas J. Gossett, Asst. Dist. Atty., San Angelo, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before PHILLIPS, TOM G. DAVIS and DALLY, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation.

Appellant originally was convicted of possession of more than four ounces of marihuana. Punishment was assessed at imprisonment for seven years and a fine of $150. Imposition of sentence was suspended, and appellant was placed on probation. Subsequently the state filed a motion to revoke probation alleging that appellant violated the terms of his probation by committing the offense of possession of marihuana in an amount greater than four ounces. A hearing was held and probation was revoked. Sentence was imposed.

Appellant contends that the marihuana admitted at the revocation hearing was the product of an unlawful search and seizure. We agree and reverse the judgment.

David Cook, a game warden with the Texas Parks and Wildlife Department, stopped appellant for a traffic violation on Highway 118 south of Alpine. For reasons that are not reflected in the record, Cook requested permission to look in appellant's trunk. According to Cook appellant agreed. Cook's testimony at the hearing reflects the following:

(The prosecutor:)

Q Officer Cook, after talking with Mr. McCallum, did you make any request of him?

A Yes. I did.

Q What was that?

A I asked him if he would mind opening his trunk.

Q What was his response?

A He said, "No, I don't." Then he opened it.

Q Other than that, did you make any request of him?

A That's all I said. No, sir.

When Cook opened the trunk he saw a sugar sack. According to Cook's testimony, he knew that such sacks commonly were used to transport marihuana from Mexico. Cook looked inside the sack and discovered a quantity of marihuana. He then arrested appellant.

It is clear from the quoted testimony that appellant consented only to Cook's opening the trunk. Appellant did not consent to a search of the contents of the trunk. The scope of appellant's consent was limited to Cook's opening the trunk and observing its interior. See May v. State, 582 S.W.2d 848 (Tex.Cr.App.1979); Mason v. Pulliam, 557 F.2d 426, 428-429 (5th Cir. 1977). Compare Faulkner v. State, 549 S.W.2d 1, 4 (Tex.Cr.App.1976); Maldonado v. State, 528 S.W.2d 234, 241 (Tex.Cr.App.1975). As a result, Cook's action in opening the sack and inspecting its contents can be justified only under the plain view doctrine or by a finding that Cook had probable cause to believe that the sack contained marihuana.

Under the plain view doctrine, an officer may not seize contraband that falls within his view unless he is legitimately in a position to view the substance, and it is immediately apparent to him that the substance is contraband. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Howard v. State, 599 S.W.2d 597 (1980, Tex.Cr.App., Opinion on State's Motion for Rehearing); Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977). We have recognized the latter requirement in numerous cases: Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976) (officers unlawfully seize marihuana from plastic garbage bags); Duncan, supra (officer unlawfully seizes marihuana and heroin from plastic sandwich bag in defendant's pocket); DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977) (officer unlawfully seizes heroin from balloon); Howard, supra (officer unlawfully seizes controlled substance from unlabeled prescription bottle).

In each of these cases the officer suspected that the defendant was in possession of contraband because of the type of container and the circumstances of the defendant's possession of the container. Despite the officer's suspicions, however, in none of the cases was it immediately apparent that the containers contained contraband rather than some lawful substance. Therefore the plain view doctrine did not apply to justify the seizure of the contraband.

In this case Cook did not testify that he could see the contents of the sack or that the contents were readily apparent by the shape of the sack. Thus Cook was not immediately cognizant that the sack contained marihuana rather than things lawfully possessed. The plain view doctrine does not apply. Compare Howard, supra.

Moreover, Cook did not have probable cause to search the sack and seize its contents. Probable cause to search exists when the facts and circumstances before the officer would warrant a person of prudence and caution in believing that an offense had been or is being committed. U. S. v. Petty, 601 F.2d 883 (5th Cir. 1979); U. S. v. Tuley, 546 F.2d 1264 (5th Cir. 1977). See Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Mere suspicion that a search will reveal contraband does not constitute probable cause. U. S. v. Johnstone, 574 F.2d 1269 (5th Cir. 1978). See Smith v. State, 542 S.W.2d 420 (Tex.Cr.App.1976). In the present case Cook relied solely on a hunch that the sack contained marihuana, based on previously having seen marihuana carried in such sacks. It was entirely possible that the sack was being used for its intended purpose, and contained sugar. Moreover, appellant could have used the sack to carry any number of personal possessions. Cook's suspicion that the sack contained marihuana did not amount to probable cause. Absent a more reliable indication that the sack contained marihuana, e. g. the shape or smell of the bag, the discovery of marihuana elsewhere in the car, or suspicious actions on the part of appellant, Cook acted unlawfully in opening the sack and seizing the marihuana inside.

The marihuana was the product of an unlawful search and seizure, and should have been suppressed. Its admission at the revocation hearing constituted reversible error.

The judgment is reversed and the cause remanded.

DALLY, Judge, dissenting.

I dissent. There is agreement that the appellant was lawfully stopped and arrested. I believe, as did the trial judge, that appellant's consent to the search included the contents of the sack in the trunk. Moreover, the officer had probable cause to open the sack. The judgment should be affirmed.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission the order revoking probation was set aside on the basis that the marihuana admitted at the revocation hearing was the product of an unlawful search and seizure-being found by a search beyond the scope of consent given by the appellant.

On October 3, 1978, the appellant entered a guilty plea before the court to an indictment charging him with possession of marihuana of more than four ounces. His punishment was assessed at seven (7) years' imprisonment and a fine of $150.00, but the imposition of the sentence was suspended and the appellant was placed on probation subject to certain conditions including "(C) Commit no offense against the laws of this State or of any other State or of the United States ...."

On June 14, 1979, the State filed a first amended motion to revoke probation alleging that on or about March 31, 1979 the appellant knowingly possessed a usable quantity of marihuana of more than four ounces in Brewster County.

On June 18, 1979, the court conducted a hearing on said motion at the conclusion of which the court revoked probation based on the allegation. Sentence was imposed and notice of appeal was given.

On appeal appellant raises two grounds of error. First, he contends the "trial court committed reversible error by receiving into evidence the fruits of the search of the appellant's vehicle for the reason that the evidence was insufficient to show that the arresting officer had probable cause or authority to stop appellant's vehicle for purposes of arrest, search or investigation." Second, he contends the "trial court committed reversible error by receiving into evidence the fruits of the search of the appellant's vehicle for the reason that the evidence was insufficient to show that appellant's consent to the search of his vehicle was not freely and voluntarily given."

Basically then appellant contends that there was no probable cause justifying the officer to stop his car, and that the consent to search, which he admittedly gave, was not freely and voluntarily given. Appellant did not in the trial court and does not now claim that the consent he gave was limited in scope. The majority panel opinion on original submission generalized the grounds of error as a claim that the marihuana admitted was the product of an illegal search and seizure. Thereafter, the said majority seizes upon the officer's testimony as to consent being a request to opening the trunk and holds that the consent was limited to opening said trunk and was not a consent to search the contents of the trunk and that the search was illegal. The said majority overlooks appellant's own...