Talbert v. State, s. 45132

• Decision Date: 17 January 1973
• Docket Number: 45133,Nos. 45132,s. 45132
• Citation: 489 S.W.2d 309
• Parties: John P. TALBERT, Appellant, v. STATE of Texas, appellee. David NOVY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 309

489 S.W.2d 309

John P. TALBERT, Appellant, v. STATE of Texas, appellee.

David NOVY, Appellant, v. The STATE of Texas, Appellee.

Nos. 45132, 45133.

Court of Criminal Appeals of Texas.

Jan. 17, 1973.

Bob Kuhn, Austin, for appellant.

Robert O. Smith, Dist. Atty., Michael J. McCormick, Asst. Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The original opinion, delivered October 18, 1972, is hereby withdrawn.

Appellants seek relief from a conviction for unlawful possession of marihuana. Trial was before the court, and after a finding of guilty, punishment was assessed to each appellant at five years, and probation was granted.

Two grounds of error are urged by appellants, but they both concern the legality of the search and seizure in the case.

At approximately 2:00 a.m., on February 22, 1971, Officer Kenneth Mathers of the Austin Police Department was on routine patrol, and noticed the red reflection of possible taillights on a building on the north side of West 30th Street. Mathers then turned onto West 30th and spotted the back end of an automobile that was directly southbound on Salado, south of 30th Street. At that point, a man was seen just getting into the car. The car door closed, and then the automobile slowly drove away. Mathers followed the vehicle, and from a distance of five or six car lengths away was not able to read the license plate number, as the plate appeared dirty or dusty, ¹ so he moved up quite close to the car. The record reveals that he then stopped the vehicle, to make sure everything was in order. ² Mathers approached the car and asked for and received identification from both appellants. He then returned to his police car and asked the radio dispatcher to check warrants on both persons. At this point, another police officer, Pennington, drove up. While still awaiting information from the dispatcher, Mathers walked back toward appellants' car and inquired of them as to why they were in the area. One responded that they were visiting a friend, the other saying that they had stopped so that one of the appellants could relieve himself. Mathers then inquired as to the contents of a large brown paper sack which, partially with the aid of a flashlight, he had seen on the front seat on the passenger's side. One appellant answered, 'Dirty clothes,' and the other said he didn't know what was in the sack. Mathers stated at this point he could see a plastic, or plastic-like substance sticking out of the top of the sack and could discern a dark, grass-like material inside the plastic bag.

Mathers then asked one of the appellants to remove the sack from the car, which he did. At this point, the two police officers examined closely the contents of the sack, discovering a considerable amount of marihuana. Appellants were arrested and taken into custody.

Appellants' sole contention of error concerns the legality of the search. Appellants allege that since the search was in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 9 of the Texas Constitution, Vernon's Ann.St., the fruits of such search were erroneously admitted into evidence.

In appellants' brief, they correctly state the chief issue in this case: 'Perhaps the single most important question before the Court is whether Officer Mathers had the legal authority to stop and question the appellants . . ..' Appellants contend that there was no justification for stopping their car in the first place. Consider the facts. Appellants' automobile was seen between 1:30 and 2:00 a.m., on a weekend night (early morning hours of Monday), stopped in the street in the University of Texas area of Austin. Mathers testified that this was a 'high crime area' of Austin. When cross-examined, Mathers stated that he was making such a classification based upon personal experience, and that he was of the opinion that the entire University area 'as far as a section of Austin, Texas, . . . could be classified as a high-crime area.' He testified that, in his definition of 'high crime area,' he was including collisions and violations of the uniform traffic act.

We are unwilling to blanket-label such a substantial portion of Austin as a 'high crime area' in order to justify the stopping of appellants' automobile. The record reflects that appellants did not appear to be intoxicated or driving unsafely. Nor did they attempt to flee from the police officer. Mathers admitted that he had no intention of issuing a traffic citation. ³

The fact that a considerable amount of marihuana was discovered as a result of the ensuing investigation is of absolutely no consequence. The fruits of an illegal search will not be allowed to be used as the basis for probable cause for the illegal arrest. The legality of an arrest without warrant is determined only by the facts known to the arresting officer at the time of the arrest. Timberlake v. State, 150 Tex.Cr.R. 375, 201 S.W.2d 647 (Tex.Cr.App.1947); Giacona v. State, 164 Tex.Cr.R. 325, 298 S.W.2d 587 (Tex.Cr.App.1957); Tarwater v. State, 160 Tex.Cr.R. 59, 267 S.W.2d 410 (Tex.Cr.App.1954); Palacio v. State, 162 Tex.Cr.R. 194, 283 S.W.2d 765 (Tex.Cr.App.1955); Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431,...