Thomas v. State, 27968

• Decision Date: 29 February 1956
• Docket Number: No. 27968,27968
• Citation: 163 Tex.Crim. 68,288 S.W.2d 791
• Parties: George Everett THOMAS, Jr. v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 791

288 S.W.2d 791

163 Tex.Crim. 68

George Everett THOMAS, Jr. v. The STATE of Texas, Appellee.

No. 27968.

Court of Criminal Appeals of Texas.

Feb. 29, 1956.

Allen & Street, by Robert B. Allen, Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., Thomas B. Thorpe, Charles S. Potts, Asst. Criminal Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the possession of marijuana; the punishment, five years.

Officer Boyd testified that 'a stool pigeon' whom he had known for some time and whom he knew to have been to the Federal penitentiary for a violation of the Mann Act, 18 U.S.C.A. § 2421 et seq., came to the City Hall and told him, in company with Officers Cantrell and Hart, that the appellant had almost a pound of marijuana and 'was also messing with our safes.' The record does not disclose that their informant told the officers how he had learned these things about the appellant, nor did he tell them that he had ever seen the appellant in possession of any narcotics or stolen property. Some 'three days to a week' later, with this information in hand but without securing a warrant for the appellant's arrest, these three officers repaired to the vicinity of the appellant's home and began to watch the same through field glasses. After some time the appellant came out in the yard, where he was later joined by his wife and 4-year old daughter; the three got in the appellant's automobile and drove away. They were not shown to be carrying any luggage, nor did they do any other act which indicated that they were fleeing. The officers followed the appellant's automobile for approximately two miles, during which time the appellant violated no traffic law nor did anything to outwardly indicate that he was violating any law. The officers caused the appellant's automobile to come to a halt, arrested him and his wife, and in the search of his person which followed they found one marijuana cigarette in his coat pocket. This conviction stands or falls upon the legality of that arrest. If the officers were authorized to arrest the appellant, the search of his person was authorized as an incident to that arrest. If they were not authorized to make the arrest, without a warrant, then the search of his person was unlawful, and proof of the finding of the marijuana cigarette was not authorized.

Article 212, Vernon's Ann.C.C.P., reads as follows:

'A peace officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony, or as an 'offense against the public peace."

Article 215, V.A.C.C.P., reads:

'Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.'

We have concluded that the facts stated do not bring the instant arrest within the purview of either of the above statutes.

The State contends that the arrest and search of the appellant were legal because of Sections 14 and 15 of Article 725b, Vernon's Ann.P.C., Narcotic Drug Regulations.

Section 15 does not specifically state that the officers may arrest a suspect and search his person. The State would have us read such authority into the Act. If we did, we would still be confronted with the problem: To adopt the phraseology of the State's brief, '* * * the statute does not fix the kind or character, or the extent of the information upon which the officer's belief is to be founded.' We cannot bring ourselves to conclude that the Legislature, in the light of the constitutional prohibition against unreasonable searches and seizures, intended by this Act to legalize an arrest merely because an officer testifies at the trial that at the time he arrested the accused he had reason to believe and did believe that the accused was violating the law. The dangers arising from such a holding would be readily apparent. It must be remembered that our holdings apply to the innocent as well as the guilty. We endanger every citizen with the threat of unwarranted arrests and searches of his person if we held that such arrest and search are legal merely because the arresting officer later says that he believed the citizen to be guilty of some violation of the law. For the Act to be constitutional, the belief mentioned therein must be such as would constitute probable cause authorizing the arrest and search. Unless it be given this construction, the statute would authorize an arrest and search upon mere suspicion and would destroy the constitutional guarantee against unreasonable searches and siezures. Cases cited Vol. 42, Texas Digest, p. 472. ¹

Probable cause has been defined as 'a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.' Landa v. Obert, 45 Tex. 539. Far more consistent with the mandates of the Constitution, we believe, would be an interpretation of the statute which would require that the officer have some information that the accused was violating the law plus some act on the part of an accused which would bolster and support such belief. Any other interpretation would, we feel, render the statute unconstitutional and negatory.

It was because of the absence of that act that we reversed the convictions in Palacio v. State, Tex.Cr.App., 283 S.W.2d 765, and Harper v. State, Tex.Cr.App., 284 S.W.2d 362. It was because of the presence of such an act that we affirmed the conviction in French v. State, Tex.Cr.App., 284 S.W.2d 359, 361. In the French case, we did not discuss Section 15 of Article 725b, supra, but we did hold as follows:

'We do not hold that the information which the officer had received about the appellant's connection with narcotics alone would have authorized the search, but we do hold that his flight under the circumstances here presented, together with the information which the officer had about him, authorized the arrest of the appellant as a person of suspicious demeanor under the ordinance, and the subsequent search.'

If Gonzales v. State, Tex.Cr.App., 272 S.W.2d 524, is to be considered as holding contrary to the above conclusions, it is hereby expressly overruled.

The State further contends that, even if the arrest was illegal, the case should not be reversed because the appellant's wife testified concerning the search. They rely, among other cases, upon Ross v. State, 111 Tex.Cr.R. 193, 11 S.W.2d 516. In the light of that opinion, we will summarize the testimony of the appellant's wife. She stated that the coat worn by her husband on the night of his arrest had been loaned to a Mr. Dutton and was returned just a day or two before the arrest. She stated that her husband had not worn the coat since its return until the night in question. She stated that the officers signaled to them to halt and that the appellant 'stopped and got out of the car and walked around back.' At no time did she state that she saw the marijuana cigarette or knew of its presence in her husband's pocket. This contention cannot be sustained.

For the error in the admission of the cigarette into evidence, the judgment is reversed and the cause remanded.

WOODLEY, Judge (dissenting).

The majority opinion asserts that this conviction stands or falls upon the legality of appellant's arrest when the officers caused his automobile to come to a stop, searched appellant and found in his coat pocket a marihuana cigarette.

My brethren further assert that if the officers were authorized to arrest appellant, then the search was lawful as an incident to the arrest, but if the officers were not authorized to make the arrest, the search was unlawful and the fruits thereof were inadmissible.

My view, on the other hand, is that the question for our determination is whether or not the search of appellant's automobile and of the pocket in which the marihuana cigarette was found was a lawful search, authorized by Sec. 15 of Art. 725b, V.A.P.C., the Uniform Narcotic Drug Act. If so, the detention or arrest was but an incident to the lawful search and was not unlawful.

Upon distribution after submission this case was assigned to Commissioner Belcher, who prepared and submitted an opinion affirming the conviction. Judge Belcher's opinion was not adopted by the majority, but in my opinion correctly disposed of the appeal, and especially of Bill of Exception No. 2 which my brethren have found to show reversible error.

Omitting his discussion of other matters not relevant to Bill No. 2, Judge Belcher's opinion reads as follows:

'The offense is possession of marihuana; the punishment, five years in the penitentiary.

'The testimony for the state by Detectives Hart and Boyd shows that after they located the home of the appellant, they parked their automobile a short distance away and watched; that appellant with his wife and child soon came out of the house, and they drove away in his automobile; that the officers followed them for about two miles, stopped them, searched the automobile and the appellant, who was driving, and found one cigarette in his left coat pocket.

'It was shown that the cigarette taken from appellant's coat pocket contained...