White v. State

• Citation: 521 S.W.2d 255
• Decision Date: 02 July 1974
• Docket Number: No. 47507,47507
• Parties: Earl Elmer WHITE, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 255

521 S.W.2d 255

Earl Elmer WHITE, Appellant, v. The STATE of Texas, Appellee.

No. 47507.

Court of Criminal Appeals of Texas.

July 2, 1974.

Rehearing Denied April 2, 1975.

Second Rehearing Denied April 23, 1975.

Jim B. Brown, Canyon, for appellant.

Tom Curtis, Dist. Atty., Gene Storrs, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

Appeal is from a conviction in a trial before a jury of knowingly attempting to pass as true a forged instrument in writing. Punishment was assessed at five years.

Appellant was arrested at approximately 1:30 P.M., June 28, 1972, at Teller Drive-up Window No. 7 of the First National Bank of Amarillo. The arrest was made on the basis of information from the American National Bank of Amarillo received by Officer Jimmy Stevens at about 1:20 P.M. that appellant had attempted to pass four checks there and on information received by Officer Crowell from the First National Bank that appellant was in the act of attempting to pass certain checks at one of the drive-in windows at that bank. The car which appellant drove was described to Officer Stevens as a blue 1966 Lincoln Continental. Crowell and Stevens proceeded to the First National Bank, where they found appellant in his car at the No. 7 drive-up teller's window. He had already handed the teller four checks and a deposit slip with a request for a portion of the amount in cash, and the teller was waiting for the police before acting upon the tender of deposit. The officers obtained from the teller the checks and deposit slip appellant had attempted to pass and ordered appellant to drive across the street and park at the curb. While he was doing so, an official of the bank and Officer Crowell observed him making a hand movement toward the glove compartment, and then toward the seat as though attempting to 'stuff' something between the seats. Appellant was ordered out of the car and was taken by Officer Stevens in the police car to the police station, about seven blocks distance. Crowell drove appellant's car to the station and parked it in the driveway, and gave Stevens the car keys. While in the car, Crowell did not see or look for any checks.

At the station, Stevens talked to appellant for 30 or 45 minutes, and attempted to get his consent for a search of the car. Appellant refused to give such consent. Thereupon, Stevens and Crowell, without obtaining a search warrant, made a search of appellant's car. They found four wrinkled checks of the same nature as those received by them from the First National Bank teller stuffed between the fold-down console and the front seat of the car. These checks were admitted in evidence over appellant's objection.

Appellant initially makes the contention that the officers violated his rights under the Fourth Amendment in searching his car without first obtaining a search warrant.

Since appellant was engaged in the act of committing a felony in the presence of the officers when they apprehended him, their right to arrest him is not being questioned. The right of the officers to search his car after appellant had, at their instructions, driven it across the street and before it was moved to the police station is not before us, since the officers did not make a search at that time. Officer Crowell testified that he saw no incriminating papers in the car while he was moving it to the police station.

At the time the search was made appellant was in custody at the police station. Therefore, the search was not incident to the arrest. Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744, 749, citing Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

'(T)he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtained when the accused is safely in custody at the station house.' Chambers v. Maroney, supra.

In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the Supreme Court construed Preston v. United States, supra, as holding that 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest,' and limited its holding 'for the proposition that the search challenged there could not be justified as one incident to an arrest.'

In Harris v. State, Tex.Cr.App., 486 S.W.2d 88, we cited Chambers v. Maroney, supra, as holding that 'for constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.'

However, the officers on arresting the appellant did not search the car immediately on arresting appellant. They took him to the police station, and tried for between 30 and 40 minutes to secure his consent to search his car. He refused to give such consent. Evidently, at that time they were in doubt as to their legal right to make a search without a warrant. Having the appellant in custody, and having the keys to his car, which at that time was in the station breezeway, the exigencies required for a warrantless search of the car were not present. The officers made no attempt to give any reason for failing to get a warrant. The time was around two o'clock in the afternoon, in the city of Amarillo, and there is no showing that a magistrate was not readily available. There is no evidence that, although a car is movable, there was any prospect of it being taken from the station by anyone. The arrest was not made out on a lonely country road around midnight, where the search might have been dangerous to the officers, as the Supreme Court noted was in the case in Chambers v. Maroney, supra.

The Supreme Court recognizes that one of the established exceptions to the warrant requirements is the search of an automobile on the highway where there is probable cause to support the search, and where it is not practical to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Chambers v. Maroney, supra. These authorities support the proposition that the burden is on the State to show that the exigencies of the situation make a search without a warrant imperative. But the search of appellant's car cannot be sustained under the automobile exception, for there is no showing in the evidence of any reasonable likelihood that the automobile would be moved.

We quote as follows from Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744:

'The general rule is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, Accord Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). 'Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.' Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981 (1970). The mere fact that probable cause exists will not obviate the necessity for procuring a warrant, unless the search falls within one of the exceptions to the general rule. 'Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity . . ..' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed.2d 436 (1948). 'Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.' Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2030, 29 L.Ed.2d 564 (1971).

'Therefore, even if the officers had probable cause to believe that marihuana was concealed in appellant's automobile, that fact, standing alone, would not justify a warrantless search. . . .'

In Stoddard, the Court held that 'The test is whether 'exigent circumstances' makes the obtaining of a warrant impracticable. In the instant case no showing is made as to why the obtaining of a warrant was not practicable. . . .' The judgment was reserved.

In the absence of the 'exigent circumstances' which are necessary to justify a warrantless search, we find no justification for a search without a warrant. The four checks seized in the search were unlawfully obtained, and should not have been admitted. Stoddard v. State, supra.

These checks, which were proved to be forged, were before the jury for their consideration at both the guilt and the punishment stage. After finding appellant guilty of attempting to pass a similar forged check, the jury assessed the maximum penalty. Art. 996, Vernon's Ann.P.C. We do not find beyond a reasonable doubt that the error is harmless.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.

ON STATE'S MOTION FOR REHEARING

MORRISON, Judge (dissenting).

At the time this case was first submitted on rehearing, Judge Jackson, then a Commissioner with this Court, prepared an opinion which I now adopt as my dissent.

'We have concluded that the search of appellant's automobile at the police station was legal, and...