Voelkel v. State

• Decision Date: 14 May 1986
• Docket Number: No. 339-82,339-82
• Citation: 717 S.W.2d 314
• Parties: Debra K. VOELKEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 314

717 S.W.2d 314

Debra K. VOELKEL, Appellant, v. The STATE of Texas, Appellee.

No. 339-82.

Court of Criminal Appeals of Texas En Banc.

May 14, 1986.

Gilbert D. Smith, Carl E. Mallory, Arlington, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Tom Bellows, J.M. McEntire and Victoria Fay Prescott, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

The trial court revoked appellant's three-year felony probation after it found, at a revocation hearing, that she had unlawfully possessed amphetamine. The order of revocation was affirmed by the Court of Appeals for the Second Supreme Judicial District. See Voelkel v. State, 629 S.W.2d 243 (Tex.App.1982--Ft. Worth). We granted appellant's petition for discretionary review in order to examine the Court of Appeals' holding that the search of appellant's belongings which uncovered the illegal contraband was valid under the Fourth Amendment.

Appellant checked into the La Quinta Motor Inn in Fort Worth on April 16, 1981, occupying Room 122. On each of the following three days she paid rent in advance for the succeeding day.

Manager Oman Yount testified that between the evening of the 19th and 1:00 p.m. (check-out time) on the 20th, appellant was informed on three occasions that she would have to leave the hotel by check-out time on the 20th. The manager was apparently upset because appellant had parked a Harley-Davidson motorcycle inside of her room (which she moved when requested to do so) and possibly allowed a male companion to stay with her.

At 3:00 p.m. on the 20th, appellant had not vacated the room and, as far as Yount could tell, showed no signs of leaving. Fearing for his safety and following what, according to him, was standard practice, he called the White Settlement Police Department and requested officer assistance in evicting appellant. Officers Helm and Reed responded and went with Yount to appellant's room.

Yount, with Helm and Reed standing behind him, knocked on the door and identified himself. Appellant opened the door three-quarters of the way wide.

Yount and Helm told appellant she would have to leave. Appellant, who appeared to be packing, indicated that she was in the process of vacating the room. She stepped to the right of the doorway and Yount took a step into the room. Helm also took a step inside to insure Yount's safety. Appellant had a guest in the room with her.

From his vantage point inside the door, Helm saw on the dresser a large antique-style scale with, "a pan on each side like a scale of justice." The scale had a drawer or drawers on it and Helm saw syringes inside of an open drawer. He also saw a large pharmaceutical bottle with light-colored tablets in it.

As soon as Helm stepped into the room, appellant reached toward the scale drawer which was thirty-six inches from the door.

Helm told appellant to freeze, and he frisked her. Reed simultaneously frisked the appellant's companion. Nothing was found on appellant, but a gun and what appeared to be marihuana were discovered in the search of the companion.

Appellant and her guest were handcuffed and the officers searched the entire room. The officers searched a plastic clothing bag which was situated on the bed. One of the items in the bag was a cigarette case. Helm opened it and discovered the amphetamine which formed the basis of the State's motion to revoke probation.

Appellant challenged the police entry into the room, her arrest, and the subsequent search.

The Court of Appeals held that: (1) the officers had a right to be in the room to protect the manager; (2) the frisks of appellant and her friend were valid since Helm feared for his safety; (3) the search of the room, including the clothing bag, was a valid search incident to the arrest of appellant and her companion.

Though we do not accept all of its reasoning, we agree with the result reached by the Court of Appeals.

It is initially apparent that appellant had a substantially diminished expectation of privacy in Room 122 of the La Quinta Motor Inn by the time Officers Helm and Reed arrived to facilitate her eviction. Beginning on the evening of the 19th, Manager Yount had thrice told appellant she had to be gone by 1:00 p.m. on the 20th. Yet at 3:00 p.m. she was still there, evidencing no particular haste to depart.

Under the circumstances, Yount clearly had a right to enter the room. ¹ Since the officers were present at the invitation of Yount, they also had a right to enter the room. Accordingly, Officer Helm's mere presence in the room did not infringe upon appellant's Fourth Amendment expectation of privacy.

It is also apparent that at this juncture Helm and Reed did not have the sufficient articulable suspicion required under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 10 L.Ed. 889 (1968), to frisk appellant and her companion.

From his vantage point inside the room, Helm saw a large antique set of scales, syringes inside an open scale drawer, and a large pharmaceutical bottle containing light colored pills. Appellant reached toward the drawer as Helm entered the room. Helm maintained that he feared for his safety, but aside from this bald statement and his description of the scene he failed to articulate the basis of his fear. Under cross-examination Helm revealed that the scale drawer was ten to twelve inches wide, four to ten inches deep, and one and one-half to two inches high, that is, large enough to hold a gun or some other weapon. But Helm, who was able to see syringes inside the drawer, did not testify to seeing a weapon or that he thought appellant was reaching for a weapon.

Even if Helm had cause to frisk appellant, and assuming his treatment of her did not amount to a full arrest, there was no constitutional warrant for Reed's simultaneous frisk of appellant's companion, who was simply sitting in the room.

Nothing was found on appellant's person, but a gun and a substance that appeared to be marihuana were obtained in the pat-down of the friend.

After the frisk of appellant's companion, probable cause existed to search the entire room including the items on the hotel bed. At this point, the police had the following information in their hands:

1. Observation of paraphernalia arranged in such a manner as to suggest possible use of narcotic substances.

2. The paraphernalia was in the open view of appellant.

3. A movement by the appellant that could easily be interpreted as an effort to shut or conceal the contents of the scale drawer. (Helm testified that appellant's hands were touching or almost touching the drawer.)

4. The discovery of marihuana and a gun on appellant's guest.

The finding of the marihuana and gun on appellant's guest, added to the open display of drug-related paraphernalia and appellant's effort to hide, or at least her undisputed effort to reach, some of the paraphernalia, gave the police probable cause to search appellant's belongings.

There is nothing in the record directly indicating that the officers thought they had probable cause to search for the exact reasons laid out in this opinion. The mere subjective conclusion of a police officer concerning the existence of probable cause is not binding on this Court which must independently scrutinize the objective facts to determine the existence of probable cause. Townsley v. State, 652 S.W.2d 791 (Tex.Cr.App.1983). See also, United States v. Gray, 659 F.2d 1296 (5th Cir.1981).

Assuming arguendo that the frisk of appellant's companion (the results of which helped establish probable cause to search appellant's belongings), was improper under the Fourth Amendment, appellant has no standing to complain of this intrusion. Her rights were not infringed by it. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). ² Further, the search of the companion was not caused by any infringement of appellant's rights. Probable cause existed for the search of appellant's belongings.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., dissents.

CLINTON, Judge, dissenting.

Assuming, without conceding, that the majority is correct that the motel manager, and ergo the police officers, had a right to enter appellant's motel room ¹ and then to frisk appellant and her companion, that then "[p]robable cause existed for the search of appellant's belongings," as the majority concludes, even if it were correct, ² would not be the end of the inquiry. Absent some exigency, a warrant is still required. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); see also Arkansas v. Sanders, 442 U.S. 753 at 758, 99 S.Ct. 2586 at 2590, 61 L.Ed.2d 235 at 241 (1979) ("The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment."). For this reason, if no other, I dissent to the majority's disposition.

I also write to address that which we granted discretionary review to examine, and which, without explaining why, the majority apparently did not accept, viz: the court of appeals' holding that "the search of the room, including the clothing bag, was a valid search incident to the arrest of the appellant and her companion." See Maj. op. at p. 315.

The court of appeals observed, after concluding that the frisk of appellant and her companion was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that "when the gun and the marihuana were found on the person of the appellant's companion the appellant and her companion were under arrest." 629 S.W.2d at 246. Presumably because appellant did not expressly attack the validity of these arrests, the court of appeals did not address that question. It is difficult to see the validity of appellant's arrest, however, since the frisk of her person...