Stewart v. State

• Decision Date: 11 February 1981
• Docket Number: No. 2,No. 65729,65729,2
• Citation: 611 S.W.2d 434
• Parties: Sherry Lea STEWART, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 434

611 S.W.2d 434

Sherry Lea STEWART, Appellant, v. The STATE of Texas, Appellee.

No. 65729.

Court of Criminal Appeals of Texas, Panel No. 2.

Feb. 11, 1981.

Ted Cackowski and Charles F. Roberts, Jr., Austin, for appellant.

Ronald Earle, Dist. Atty., and Ralph Graham, Asst. Dist. Atty., Austin, Robert Huttash, State's Atty., Austin, for the State.

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

OPINION

DALLY, Judge.

This is an appeal from the conviction of the offense of possession of cocaine. The punishment is imprisonment for two years. The imposition of sentence was suspended and probation was granted.

The appellant asserts that the cocaine was obtained as a result of an unlawful search made in violation of appellant's constitutional rights.

The appellant was observed in a supermarket placing a steak and a bottle of bath oil in her purse. She left the store without paying for these items. She was apprehended and placed in custody of a City of Austin police officer who had been summoned to the scene by the manager of the store.

The officer took the appellant to the police station to be "booked" for theft. There another officer in the theft division took custody of appellant. This officer noticed that appellant's nose was running. This condition, he knew, commonly results from the use of cocaine. The officer also remembered being told that the appellant, while pleading with the store manager to let her pay for the items which she had placed in her purse, had stated that "she needed to thieve because a dope deal was going down." When the officer asked appellant if she was holding some dope she clutched her purse. The officer took the purse and found a prescription bottle bearing the name of another person. The appellant became emotional and "real loud," but when the officer put the bottle aside she became calm. When the officer who had brought her to the theft division and who was still there completing some forms picked up the bottle appellant went "berserk." The bottle was opened and found to contain a substance which proved to be cocaine.

Art. 18.16, V.A.C.C.P., provides, in pertinent part:

"All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose ..."

The appellant's arrest was lawful. See Tawater v. State, 408 S.W.2d 122 (Tex.Cr.App.1966). A search incident to that lawful arrest requires no warrant if it is restricted to a search of the person or of objects immediately associated with the person of the arrestee; United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); or a search of objects in an area within the control of the arrestee; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Further, where the formal arrest follows "quickly on the heels of the challenged search of petitioner's person," it is not particularly important that the search precedes rather than follows the formal arrest. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). See also Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).

Contrary to appellant's assertion, the State argues that under Robinson the warrantless search of appellant's purse is constitutionally permissible. The State relies upon United States v. Moreno, 569 F.2d 1049 (9th Cir. 1978), United States v. Jeffers, 524 F.2d 253 (7th Cir. 1975), and United States v. Basurto, 497 F.2d 781 (9th Cir. 1974). See also Brown v. State, 594 S.W.2d 86 (Tex.Cr.App.1980). These cases, however, all involved the warrantless search of a purse occurring prior to the applicability of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) to warrantless searches of certain other types of personal property.

In Chadwick, the defendants were arrested and a locked, two hundred pound footlocker was searched without a warrant after the police, acting with probable cause, had taken it from the trunk of a parked automobile. And in Sanders, an unlocked, portable suitcase was searched without a warrant after the police, acting with probable cause, had taken it from the trunk of a taxicab. The Supreme Court held in both cases that the police officers had engaged in an unconstitutional search of the luggage.

The Supreme Court in Chadwick explained that an individual has a legitimate expectation of privacy in the contents of certain containers such as a footlocker which differs from the reduced expectation of privacy associated solely with the search of an arrested person. The distinction was noted as follows:

"Unlike searches of the person, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, 66 Ohio Ops.2d 202 (1973); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), searches of possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents' privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest."

Regarding the search of the interior of the footlocker as a far greater intrusion into Fourth Amendment values than the mere impoundment of the footlocker, the Court further stated:

"When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless 'search of the arrestee's person and the area "within his immediate control" construing that phrase to mean the area from within which he might gain possession of a weapon or destructable evidence.' Chimel v. California, 395 U.S. at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, 44 Ohio Ops.2d 383 (1968).

"Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence... However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest,' Preston v. United States, 376 U.S., at 367, 84 S.Ct. 881, 11 L.Ed.2d 777, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (Emphasis added.)

Under a literal reading of Chadwick, the scope of its warrant requirements are made applicable only to luggage or other personal property "not immediately associated with the person of the arrestee." Therefore, the issue is whether a purse is "immediately associated with the person of the arrestee." If it is, the warrantless search of the appellant's purse is excepted from the warrant requirement under Chadwick and therefore proper under Robinson.

Reiterating what the Supreme Court said in Robinson:

"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that amendment." (Emphasis added.)

A "full search of the person," however, has recently been held, under the Chadwick progeny to exclude briefcases, United States v. Presler, 610 F.2d 1206 (4th Cir. 1979), attache cases, Araj v. State, 592 S.W.2d 603 (Tex.Cr.App.1979), guitar cases, United States v. Bella, 605 F.2d 160 (5th Cir. 1979), cardboard boxes closed and sealed with tape, United States v. Dien, 615 F.2d 10 (2nd Cir. 1980), unlocked backpacks, United States v. Meier, 602 F.2d 253 (10th Cir. 1979), and duffel bags, United States v. Johnson, 588 F.2d 147 (5th Cir. 1979), but has been held to include wallets. See United States v. Passaro, 624 F.2d 938 (9th Cir. 1980); United States v. Ziller, 623 F.2d 562 (9th Cir. 1980); United States v. Matthews, 615 F.2d 1279 (10th Cir. 1980); United States v. Phillips, 607 F.2d 808 (8th Cir. 1979); United States v. Castro, 596 F.2d 674 (5th Cir. 1979). In United States v. Passaro, supra, the Court of Appeals, in concluding that Chadwick did not apply to the warrantless search of a wallet, said:

"Just as the police in Robinson could, incident to a lawful arrest, search the defendant's person, including the contents of a cigarette package found in the defendant's pocket, so too could the search incident to Passaro's arrest include an inspection of the contents of his wallet to discover evidence of crime ... The search here was valid and reasonable and the evidence seized therefrom was admissible even though it was unrelated to the crime for which Passaro was arrested." (Cases omitted.)

And in United States v. Ziller, supra, the Court of Appeals said:

"In our view, a search of the person which produced the wallet being permissible under Chadwick, a search of the contents of the wallet is likewise permissible as being an incident to and a part of the personal search."

We are unable to find any federal cases extending Chadwick to restrict the warrantless search of a purse incident...