Wilson v. State, 46816

• Decision Date: 12 June 1974
• Docket Number: No. 46816,46816
• Citation: 511 S.W.2d 531
• Parties: Winton Lee WILSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 531

511 S.W.2d 531

Winton Lee WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 46816.

Court of Criminal Appeals of Texas.

June 12, 1974.

Rehearing Denied July 17, 1974.

Buddy Stevens, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brought, Stu Stewart, Asst. Dist. Attys., Houston, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of marihuana. Trial was before the court upon a plea of not guilty. Punishment was assessed at three years, probated.

At the outset, appellant contends the court erred in admitting evidence which was the fruit of an unreasonable search.

Officer Brooks testified he stopped appellant for running a red light at Montrose and Westheimer in Houston on the night of November 19, 1971. Before appellant's vehicle came to a complete stop, Brooks observed 'he made a move with his right hand to between the two (2) seats.' After appellant came to a stop Brooks asked appellant 'to step out to the rear of the car where my partner was.' Brooks searched appellant's car and found a cigarette box containing three hand rolled cigarettes between the bucket seats of the two-door Mustang automobile. The cigarettes were later turned over to the police lab department.

According to Brooks, the search was conducted while appellant 'was standing with my partner behind his car there, between his car and the patrol car.'

Brooks was the only witness to testify at the guilt stage of the trial and the record reflects that the following occurred at the conclusion of his testimony:

'Mr. Stewart (prosecutor): We have a stipulation between counsel for the Defendant and myself that the material found there was marijuana.

'Mr. Stevens (counsel for appellant): We will stipulate that the stuff turned over to the chemist was marijuana, however, we will certainly object to the introduction of it in evidence.

'The Court: Based upon an unlawful search and seizure?

'Mr. Stevens: Yes, Your Honor, based on an unlawful search and seizure and based under this Defendant's rights guaranteed him under the 14th Ammendment of the United States Constitution.

'The Court: It is overruled.'

In light of the foregoing stipulation, we find no merit in the State's argument that appellant's contention of illegal search is without merit in that the contraband was never introduced into evidence. Further, we do not find that Satillan v. State, Tex.Cr.App., 470 S.W.2d 677 supports the State's position that appellant failed to timely object to any claimed inadmissible evidence. The first evidence of marihuana being found in appellant's car came in the stipulation in which appellant clearly voiced his objection to its admissibility. The appellant complied with the rules which require that objections to the introduction of evidence be made at the time the evidence is offered. Brazzell v. State, Tex.Cr.App., 481 S.W.2d 130; Satillan v. State, supra.

It is not contended that the initial stopping of the vehicle for the traffic violation is illegal, but appellant urges that the search of his automobile which followed was unreasonable. Clearly, the search of the vehicle in the instant case cannot be tied to the traffic charge, ¹ but must be bottomed on additional facts which give rise to probable cause for the warrantless search of appellant's car. Taylor v. State, Tex.Cr.App., 421 S.W.2d 403.

Brooks testified that after appellant stopped he 'approached the car and asked him to step out.' Brooks was asked if he could see the cigarette box in appellant's car and responded, 'No, I did not.' Unlike Taylor v. State, Tex.Cr.App., 421 S.W.2d 403; Abbott v. State, Tex.Cr.App., 472 S.W.2d 142; Aldridge v. State, Tex.Cr.App., 482 S.W.2d 171, the officer did not see evidence of a criminal violation in plain view which would justify a search of the vehicle.

Brooks testified that he was not in fear of his life at the time he conducted the search; that appellant was standing between his car and the patrol car with Brooks' partner. Unlike Imhoff v. State, Tex.Cr.App., 494 S.W.2d 919, appellant was not sufficiently close to his vehicle that he could have conceivably lunged for a weapon, thereby justifying a search of the vehicle. See Lewis v. State, Tex.Cr.App., 490 S.W.2d 846; Madeley v. State, Tex.Cr.App., 488 S.W.2d 416.

Thus, the question becomes one of whether the officer's observation of appellant before he brought his vehicle to a stop, 'he made a move with his right hand to between the two (2) seats,' standing alone, is sufficient ot establish probable cause for a warrantless search of appellant's automobile.

In People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, the Supreme Court of California (December 30, 1970), held that officer who observed bending movement of passenger in automobile being chased for traffic violation lacked probable cause for warrantless search of vehicle.

In a well reasoned opinion in which it was first noted that the officer had no prior reliable information that defendant's car contained contraband nor was the officer able to see any contraband in plain view while standing outside the vehicle, Justice Mosk, speaking for the Supreme Court of California, said:

'The next group of relevant cases are those in which probable cause to search has been predicated on 'furtive gestures' or 'furtive movements' of an occupant of the vehicle. The theory, of course, is that although the officer does not actually see any contraband from outside the vehicle, he may reasonably infer from the timing and direction of the occupant's movements that the latter is in fact in possession of contraband which he is endeavoring to hide. From the viewpoint of the actor, the theory rests on a sound psychological basis: 'It is a natural impulse on confrontation to hide immediately any contraband' . . . We can posit that sudden efforts at concealment, like flight from the scene of a crime, may well be expressions of consciousness of guilt. On the other hand, the same motion may in fact have an entirely innocuous purpose: 'It is recognized that a person's reasons for concealment may run the whole spectrum from the most legitimate motives to the most heinous' . .

'The difficulty is that from the viewpoint of the observer, and innocent gesture can often be mistaken for a guilty movement. . . . The potential for misunderstanding in such a situation is obvious.

'It is because of this danger that the law requires more than a mere 'furtive gesture' to constitute probable cause to search or to arrest. The United States Supreme Court recently reaffirmed this rule in the case of Sibron v. New York (1968) 392 U.S. 40, 66--67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917: 'deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest. '. . . That knowledge, of course, may be derived from the usual twin sources of information and observation; stating the rule for California, the court in People v. Tyler (1961) 193 Cal.App.2d 728, 732, 14 Cal.Rptr. 610, 612, declared: 'As it is the information known to the police officers or the suspicious circumstances which turn an ordinary gesture into a furtive one, it is equally clear in this state that in the absence of information or other suspicious circumstances, a furtive gesture alone is not sufficient * * *.' . . .

'. . . Reflection will suggest many more innocent than guilty explanations for a motorist's act of 'leaning forward' or 'bending down' in the circumstances at hand.

'To begin with, every motorist knows that the approaching police officer will in all likelihood ask to see his driver's license, and probably also the registration card of the car. The observed movement, therefore, might well be nothing more than the driver's act of reaching for his wallet so as to have his license ready for inspection, or reaching for the steering post or glove compartment to obtain the registration card. And as many women drivers keep their handbag--containing their license and other identification--next to them on the floor or between the seats, a reaching motion in that direction would be no less natural for them.

'Furthermore, every motorist knows that the officer will wish to speak with him, however briefly; simple preparations for that conversation are therefore to be expected. It may be necessary, for example, for the driver to roll down his window. If the radio is playing at the time, the driver or a passenger might lean forward to reduce the volume or turn off the set. If the driver was smoking, he might well reach down to extinguish or store his cigarette in the car's ashtray. And if an occupant of the vehicle was consuming food or beverages, similar movements would probably follow.

'Additionally, many motorists expect to alight from their car, whether voluntarily or upon request, when they are stopped by the police. Again, certain preparations are usually in order: seat belts may have to be unbuckled; passengers may have to remove road maps, packages, folded coats, or infants from their laps; and clothing may have to be adjusted, shoes or hats put on, belts tightened, and outer garments buttoned.

'Finally, when a driver stops his car in a situation in which he knows he may alight from the vehicle, it is both customary and prudent for him to apply his parking brake. . . . Yet in many automobiles the parking brake handle or lever is on or below the dashboard, and the driver is therefore compelled to lean forward or downward in order to apply it.

'Each of the foregoing gestures in some degree resembles--and could reasonably be mistaken for--the movements of a person engaged in secreting contraband inside a car. Yet each is wholly innocent, and has...