ON MOTION FOR REHEARING
DOUGLAS, Judge,dissenting.
The Court denies leave to file a motion for rehearing without written opinion.
*388The Honorable Robert Huttash, State Prosecuting Attorney before this Court, has filed for leave to file his motion for rehearing. The well written motion is adopted as the dissenting opinion. It is as follows: “TO THE HONORABLE COURT OF CRIMINAL APPEALS:
“Issues
“What is involved in this case is a temporary, investigative stop and the detention of the driver (appellant) because of suspicious activity based on ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.’ Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1888, 20 L.Ed.2d 889 (1968). The acts of the officers in this case must be judged by this Court against an objective standard: ‘Would the facts available to the officer[s] at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?’ Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1880.
“It is the State’s contention that the stopping of appellant’s car for investigative purposes was appropriate under Terry standards. Thereafter, the odor of marihuana emanating from the truck of the car gave the officers independent probable cause to search it; and, upon finding the marihuana, the officers had probable cause to made a custodial arrest of appellant.
“In holding that the seizure of the marihuana was unlawful, the panel opinion appears to state the facts most favorable to appellant, not the facts most favorable to the trial court’s ruling on the motion to suppress. Moreover, although the panel opinion states Terry standards, it fails to apply them to the facts. At one place the opinion states: ‘ . . . we do not regard these utterances (“Look out, there is smoke” and “Cut off at the red light”), standing alone, as sufficient probable cause justifying an investigative stop of appellant.’ (emphasis added) First, ‘these utterances’ do not stand alone, as there are additional facts that need to be stated. Second, as Terry makes clear, probable cause is not essential to an investigative stop. Therefore, the opinion’s conclusion that the initial detention ‘was not based on sufficient probable cause’ is incorrect.
“Evidence
“State Highway 16 runs north and south through Jourdanton (R.48). It runs from near the Mexican border north to San Antonio and is ‘one of the main routes from the north to the border of Mexico’ (R.49). At Jourdanton it intersects with State Highway 97, an east-west road (R.48-49). Both are main highways for transporting illicit drugs (R.50-51) and, perhaps, ‘wetbacks’ (R.162-163).1 Thus, a rational inference may be drawn from these specific and artic-ulable facts that the officers, in addition to other police duties, were not unaware of trafficking in drugs and smuggling of ‘wetbacks’ in the area.
“At around 12:45 a. m. on January 16, 1976 (R.52), Officers Bradshaw and So-ward2 were parked in their marked police car (R.110) ‘just south of the Wagon Wheel3 on Highway 16 facing north’ (R.52) and approximately 0.5 miles south of the intersection with Highway 97 (R.103). They listened not only to their police radio, but also had a Citizens’ Band radio with which they monitored transmissions on Channel 19 (R.53). This channel is usually used by the motoring public to check on police activity or what in C. B. lingo is referred to as ‘Smokey reports’ (R.53-55, 90-91), in order to avoid being caught for speeding (R.53-55, 90-91). However, as may be seen by the facts of this case, the C. B. can also be used for illicit drug traffickers in order to attempt to avoid detection.
*389“On the night in question the range of the officers’ C. B. was ‘around a mile or a mile and a half’ (R.135).4 As they sat in their car they heard someone transmit, ‘Look out, look out, there is smoke’ (R.55— 56),5 which Officer Bradshaw described as a ‘little off’ because ‘it was a different terminology’ (R.55), apparently because not ordinarily used in typical speeding situations (R.53-55, 99-100). The officers ‘turned around and looked behind’ and observed ‘a set of headlights coming up on us’ with a defective right front headlight (R.52). This automobile, a 1974 green Grand Prix Pontiac, passed them and the officers pursued (R.57). Both cars stopped at the intersection with Highway 97, which had a 4-way stop sign and a flashing red light four ways’ (R.57, 102). Officer Bradshaw flagged the Grand Prix down several blocks north of the intersection. At this time Officer So-ward heard the following C. B. transmission: ‘Grand Prix to red Ford, cut off at the red light, cut off at the red light. There is too much smoke, I am getting stopped’ (R.145-146).
“As Bradshaw approached the Grand Prix he observed ‘a citizens band radio mounted on the left hand side of the steering column which was turned on and on Channel 19, and he [co-defendant Garza] had a microphone laying on his left thigh and as I was talking to Mr. Garza there was a voice that came over the radio and he reached down and turned it off before it said anything that [Bradshaw] could understand’ (R.58).
“As Soward related to Bradshaw the transmission concerning the red Ford turning off at the red light, a set of headlights was observed coming up Highway 16 to the intersection of Highway 97 northbound (R.58). The headlights then turned right on Highway 97 going east (R.58). After checking Garza’s driver’s license and warning him of the defective headlight, Bradshaw released Garza (R.58-59),6 and he headed north (R.65).
“The officers then decided to try to find the car that had turned east at the intersection (R.59-60). Shortly, they heard more C. B. transmissions. ‘One voice was saying, “Hey, Grand Prix, hey, Grand Prix,” and this was coming in at a very close range, the needle indicating all the way into the red again. And then, in a distance, you could hear, “Hey, red Ford, hey, red Ford,” and which it was coming in very weak’ (R.60). As the officers got back to Highway 16 they observed tail lights, but this turned out to be the car of Rusty Ashby a dispatcher with the sheriff’s office (R.60— 61). The officers then observed a 1970 white over red Ford come from the east on a side street and turn to the right on Highway 16 northbound (R.61-62). This vehicle was not local, but ‘the registration on it was from down in the Valley’ (R.61). It also had a citizens’ band radio antennae mounted on the trunk (R.62). The officers stopped the Ford several blocks north of the 16-97 intersection at approximately ‘12:55’ (R.64).7 As Bradshaw approached the car he observed ‘a citizens’ band radio mounted *390on the right hand side of the steering column, which was on, and on Channel 19; and he also had the microphone laying on his right thigh’ (R.65). After conversation began between Bradshaw and appellant, appellant turned the C. B. off (R.65).8
“The officers then checked appellant’s driver’s license and asked him to step to the rear of the car and asked him ‘why he was diverted around us, and the only answer we got was, he didn’t understand English’ (R.66-67). It was at this point the officers detected the smell of marihuana (R.67), opened the trunk (R.67-68), found what, in their experience, they believed to be marihuana (R.68), and made a custodial arrest of appellant (R.68).
“Argument
“The opinion emphasizes that the transmissions over the C. B. that night were ‘unknown voices’; that Bradshaw was unable to determine ‘the identity and exact location of either sender or receiver’; and he couldn’t ‘prove who was holding each radio.’ But, this is immaterial. Bradshaw was not required to have proof beyond a reasonable doubt as to who made the transmissions. All Bradshaw needed were ‘specific, articulable facts, which in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant intrusions on the freedom of the citizen stopped for further investigation.’ Brem v. State, 471 [571] S.W.2d 314 (Tex.Cr.App.1978).
“Here, Bradshaw is parked on the side of a main highway from the Mexican border. He knows that illicit drugs have been trafficked on that route. He hears ‘strong’ C. B. transmissions over Channel 19, which to his mind is not the ordinary ‘Smokey report.’ That report — ‘Look out, look out, there is smoke’ — is immediately followed by approaching northbound headlights. This car, a Grand Prix with a defective headlight, is equipped with a C. B. radio. As the car is stopped for the equipment violation, another transmission is heard — ‘Grand Prix, to red Ford, cut off at the red light. There is too much smoke, I am getting stopped.’ Bradshaw approaches the Grand Prix and observes that the C. B. radio is on and tuned in on Channel 19. Bradshaw then immediately sees headlights northbound on 16 make an eastbound turn on 97.
“Given the above facts, any reasonable person would conclude that the transmissions came from the Grand Prix which Bradshaw stopped. The traffic was light in this small town at that late hour. It is clear that the Grand Prix had warned a red Ford of police and told the driver to avoid them.
“Generally speaking, honest people do not try to avoid the police. Based on what Bradshaw knew, he could, and did, reasonably conclude that illegal activity was afoot. Surely, he was under a duty to see what was going on — find the red Ford. The only car he found which fit the description was appellant’s. He had a duty to temporarily stop that car to investigate. Upon doing so, he smelled marihuana and obtained probable cause to search the trunk; the trunk contained marihuana. This was a legal search after a temporary investigative stop as contemplated by Terry.
“The State’s motion for rehearing should be granted and the conviction affirmed. “Respectfully submitted,
/s/ Robert Huttash
“ROBERT A HUTTASH
State Prosecuting Attorney”
DALLY and W. C. DAVIS, JJ., join in this dissent.“1. Officer Soward testified that, prior to co-defendant Garza’s arrest, he had ‘picked up some Wets that night’ (R.163).
“2. Officer Soward was a carpenter’s helper who served as a reserve officer (R.144, 155). The Jourdanton police force only consisted of the Chief of Police, Officer Bradshaw, and four reserve officers (R.48, 87).
“3. Their purpose was to watch the parking lot of the Wagon Wheel as there had been ‘a high ratio of thefts and vandalism there. . ’ (R.107).
“4. The opinion, page 2, mentions that Bradshaw’s radio could receive signals within a radius of several miles and that under certain atmospheric conditions a radio signal could ‘skip’ and thus be transmitted greater distances. This statement, however, merely describes the radio’s potential. Bradshaw testified that on the night in question he had the radio ‘squelched down’ and that the range was one to one and a half miles.
“5. Bradshaw described the transmission as ‘coming from close range because the reading needle on the radio indicated it was a strong signal, it jumped all the way in the red area whereas on a weak signal if it’s squelched down it won’t hardly move . ..’ (R.52).
“6. Bradshaw testified that Garza ‘was very nervous, extremely nervous. Some people are nervous when they’re talked to about a traffic violation, but he was very, very nervous for just a mere headlight violation . . ..’ (R.59).
“7. The time lapse was described as ‘5 to 7 minutes at most’ (R.64). Moreover, the traffic in Jourdanton at that time of night was extremely light (R.64). Bradshaw testified that, from the time Garza’s car was stopped until appellant’s car was stopped, the only other vehicle they saw was the green Ford belonging to Ashby (R.64). No other red Ford was seen (R.64). Only appellant’s vehicle fit the description of the red Ford mentioned in the C. B. transmissions (R.64). Moreover, Jourdanton is a small town, described as having a population of 1800 to 1900 people (R.86).
“8. Soward testified that appellant ‘seemed like he was very nervous’ (R.147).