Viveros v. State
| Citation | 828 S.W.2d 2 |
| Decision Date | 26 February 1992 |
| Docket Number | No. 1238-90,1238-90 |
| Parties | Jeffrey M. VIVEROS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Joel B. Johnson, Sinton, for appellant.
Thomas L. Bridges, Dist. Atty., and Patrick L. Flanigan, Asst. Dist. Atty., Sinton, Robert Huttash, State's Atty. and Matthew W. Paul, Asst., State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW
Appellant was convicted of possession of cocaine and sentenced to ten years confinement, probated for seven years. The Court of Appeals reversed the conviction, finding that the trial court erred in failing to suppress the evidence. Viveros v. State, 799 S.W.2d 458 (Tex.App.--Corpus Christi 1990). The District Attorney (DA) and the State Prosecuting Attorney (SPA) have each filed petitions for discretionary review. Ground one of the DA's petition and ground four of the SPA's petition allege that the Court of Appeals erred in holding that the stop of appellant's automobile was unjustified because police had no reasonable suspicion to believe he was engaged in criminal activity. We granted both petitions to address this issue.
On November 13, 1988, Department of Public Safety Troopers Danny Lorberau and Kelly Manning were on routine patrol on Interstate Highway 37. They were traveling in the inside southbound lane, working a moving radar check. Appellant's vehicle approached them from behind at what the officers testified was a "high rate of speed." Appellant testified that he was traveling 65 miles per hour. The officers each stated that they were traveling at 45 to 50 miles per hour. As appellant passed the patrol car, appellant immediately reduced his speed to 45 miles per hour, then maintained that speed for approximately three-quarters of a mile, at which time he was stopped by the officers.
Officer Lorberau shined his light into the car as he approached the driver, and noticed what appeared to be a half-burned marihuana cigarette in the ashtray. After getting appellant's consent to search the vehicle, the officer discovered both cocaine and more marihuana.
Both the DA and the SPA argue that the officers had a reasonable suspicion that appellant was engaged in criminal activity. They also argue that the search and seizure were valid under the plain view doctrine and because appellant consented to the search. The Court of Appeals held that the plain view doctrine did not apply, and that the consent was invalid because it was not sufficiently attenuated from the illegal stop. Viveros, supra, at 460-461. Having considered the briefs and the record, we find no error in the opinion of the Court of Appeals.
If there was reason to search the vehicle, it came from viewing the half-burned marihuana cigarette in the ashtray. At the point when he viewed the marihuana, Officer Lorberau was in a position to view the marihuana solely because of the traffic stop. Similarly, appellant's consent to the search arose directly from the stop. If the stop was illegal, it does not matter that the marihuana was in plain view or that appellant consented to the search, as both flow directly from the stop, and their validity is dependent on the validity of the stop. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
For a stop to be legal under the reasonable suspicion standard, there must exist articulable facts used by the officer to create some reasonable inference of criminal conduct. Garza v. State, 771 S.W.2d 549, 558 (Tex.Cr.App.1989). Garza explains that this means there must be a reasonable suspicion that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime. Id. There are no such...
To continue reading
Request your trial
-
Garcia v State
...the activity is related to a crime. See Royer, 460 U.S. at 497; Garza, 771 S.W.2d at 558, Davis, 947 S.W.2d at 244; Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); Harris v. State, 913 S.W.2d 706, 708 (Tex. App.--Texarkana 1995, no pet.). As the Terry Court noted: "Simple good fai......
-
Tanner v. State, 03-06-00217-CR.
...evidence seized is inadmissible because the validity of the consent is dependent on the validity of the detention. Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim.App. 1992). ...
-
Klare v. State
...point to something that would lead a reasonable person to believe that the detainee was engaged in a criminal act. Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App. 1992). Innocuous conduct alone does not justify an investigatory stop for which reasonable suspicion is required unless there i......
-
Davis v. State
...there is something out of the ordinary occurring and some indication that the unusual activity is related to crime." Viveros v. State, 828 S.W.2d 2, 4 (Tex.Cr.App.1992) (citing Garza, 771 S.W.2d at Additionally, Texas Courts recognize that investigative detentions become unreasonable when t......
-
Table of Cases
...1997, no pet .), §20:91.7 Vitiello v. State, 848 S.W.2d 885 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d ), §16:44.1 Viveros v. State, 828 S.W.2d 2 (Tex. Crim. App. 1992), §3:32.1 Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005), §12:92.2 Voelkel v. State, 717 S.W.2d 314 (Tex.......
-
Table of Cases
...1997, no pet .), §20:91.7 Vitiello v. State, 848 S.W.2d 885 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d ), §16:44.1 Viveros v. State, 828 S.W.2d 2 (Tex. Crim. App. 1992), §3:32.1 Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005), §12:92.2 Voelkel v. State, 717 S.W.2d 314 (Tex.......