Thomas v. State

• Decision Date: 10 March 1976
• Docket Number: No. 50941,50941
• Citation: 572 S.W.2d 507
• Parties: Paul Ray THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 507

572 S.W.2d 507

Paul Ray THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 50941.

Court of Criminal Appeals of Texas.

March 10, 1976.

State's Motion for Rehearing Denied Oct. 18, 1978.

Roy B. Johnson, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Gary Love and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of possession of marihuana on May 30, 1973, and his punishment was assessed at two years probated.

A motion to revoke probation was filed on January 17, 1975, alleging, among other things, that appellant had on January 11, 1975, possessed a controlled substance, to-wit: biphetamine. ¹

Appellant's first contention is that the search of his automobile which resulted in the finding of the biphetamine capsules was without probable cause and we agree. ²

The record reflects that Dallas Police Officer Worth saw a 1974 Datsun automobile make a left turn at the intersection of Canada Drive and North Hampton Road where only a right turn is permitted. Worth and his partner, Officer Harrell, proceeded to stop the Datsun. The appellant was the driver and had no driver's license. The appellant was placed in the back seat of the patrol car while Officer Harrell sat in the front seat. At this point Officer Worth returned to appellant's car and looked through the window at some objects lying on the right front bucket seat. He was able to see large medical bottles with prescriptions on them. He opened the door and examined one bottle and found it to be cough medicine. He noted that an empty bottle had a prescription from Ft. Leonard Wood, Missouri. He then picked up a coat lying in the seat and in one of the pockets he found a bottle containing biphetamine pills. The possession of these pills is the basis for this revocation.

The appellant did not consent to the search. Appellant was clearly not in a position to leave or lunge for any weapon or to seize and destroy any evidence.

We have concluded that the trial court was in error in finding that the officers had probable cause to enter the automobile. They had no prior information about the appellant or his automobile. See Rushing v. State, Tex.Cr.App., 500 S.W.2d 667. The stop was for a traffic offense, and the appellant made no furtive gestures. See Wilson v. State, Tex.Cr.App., 511 S.W.2d 531. Cf. Borner v. State, Tex.Cr.App., 521 S.W.2d 852. The facts and circumstances within the officer's knowledge at the time of the initial stop and prior to the search of the automobile would not warrant the belief that the appellant had committed or was committing a crime other than the traffic offense. See Frazer v. State, Tex.Cr.App., 508 S.W.2d 362 (Opinion on Appellant's Motion for Rehearing).

The search of appellant's automobile was not a search incident to arrest. Worth testified that appellant was being detained while a traffic ticket was being written and was not placed under arrest until after the pills were found. Cf. Wussow v. State, Tex.Cr.App., 507 S.W.2d 792. Appellant was not in custody at the time of the search, and thus the search was not incident to arrest for the traffic violation. Cf. U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The seizure of the pills cannot be upheld under the plain view doctrine. Prescription drugs are not inherently contraband, stolen goods or objects dangerous in themselves. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410. The mere viewing of bottles with drugstore labels on them did not authorize the officers to enter the automobile and search the jacket or seize the pills.

Having so concluded, we find that the trial court abused its discretion in revoking probation.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge (dissenting).

The majority reverses the conviction on the grounds that the search was illegal even though appellant took the stand and admitted that he possessed the biphetamine.

When a defendant testifies that he possessed the contraband, he waives any contention concerning the legality of the search. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Sims v. State, 502 S.W.2d 730 (Tex.Cr.App.1973); Hunnicutt v. State, 500 S.W.2d 806 (Tex.Cr.App.1973); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972), and Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). It is difficult, if not impossible, from this and previous cases to determine when the rule applies. Rules should be applied consistently and with clarity.

Sherry Laverne Rose, a witness called by appellant, testified that the pills which had been introduced were prescribed for her the night in question. She had been in the car with appellant and they had apparently fallen out of her purse because it had a loose clip. There is other proof by the appellant that the pills were in the car.

In addition to not applying the rule that when a defendant testifies to possessing the contraband he waives the contention that a search is illegal, the majority holds that an arrest is not an arrest contrary to the statutes. The arresting officer, Robert J Worth, testified that appellant was driving a car and made an improper turn to the left where only a right turn was authorized. Officer Worth asked appellant for his driver's license but he did not have one. The officers then took him to the patrol car. The Legislature provides that this is an arrest.

Article 15.22, V.A.C.C.P., provides:

"A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant."

Was appellant under arrest? Even though the officer stated that appellant was not under arrest when he was in the patrol car, he stated that appellant was not free to leave at any time after he was stopped. Courts are not bound by legal conclusions of others when facts do not support such conclusions.

The drugs were found in appellant's coat pocket which was on the seat of the passenger side of the car. Officer Worth testified as follows when asked why the coat was searched:

"Q. (Mr. Ethington): Why did you search the coat that you gave to Thomas here before you let him put it on?

"A. We always search prisoner's clothing to the extent that we determine if there are weapons or contraband inside that article of clothing. I wouldn't give a man his coat without going through the pockets to make sure there wasn't anything in there that shouldn't have been.

"Q. It's for your own personal safety then I take it that you're saying you searched the coat, is that correct?

"A. Yes, sir.

"Q. Before you gave it to the Defendant?

"A. Yes, sir."

The holding that appellant was stopped and was in the patrol car and not free to leave was not a restraint or arrest has about as much reasoning or logic as a majority of this Court's opinion that five years' probation was more punishment than three years in the penitentiary. See Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581 (1975).

If the appellant had made an incriminating statement after he was stopped and not free to leave, would the majority hold the statement admissible on the grounds that he was not under arrest? Under past decisions the answer would be no.

The Supreme Court of the United States held in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that Robinson, who was stopped for driving while his license was suspended, was under arrest and that a subsequent search was proper. In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the officers stopped an automobile. The Supreme Court of the United States wrote:

" . . . When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. . . . "

The Uniform Act Regulating Traffic on Highways, Article 6701d, Section 153, V.A.C.S., provides:

"Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act."

Section 148(a) of the same Article provides:

"Whenever a person is arrested for any violation of this Act punishable as a misdemeanor, and such person is not immediately taken before a magistrate as hereinbefore required, the arresting officer shall prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court. Provided, however, that the offense of speeding shall be the only offense making mandatory the issuance of a written notice to appear in court, and only then if the Arrested person gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer; and provided further, that it shall not be mandatory for an officer to give a written notice to appear in court to any person arrested for the offense of speeding when such person is operating a vehicle licensed in a state or country other than the State of Texas or who is a resident of a state or country other than the State of Texas." (Emphasis supplied)

In Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), this Court held that one stopped for speeding was arrested.

Since the proof shows that the appellant was violating Article 6701d, supra, the officers had a right to arrest and taken appellant into custody as authorized by Section 153 of the Act. In Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971), this Court wrote:

" . . . it is well settled that when an officer sees a person violating a traffic law, he is authorized to stop him and incident...