I concur with the result reached by the majority. I differ, however, from the majority insofar as the legality of the search of appellant's automobile. Initially, appellant *Page 244
complained that his car was impounded illegally. There was a connection between the car and the crime. Based on the information known to the police and outlined in the majority's opinion, there was even reason to believe evidence of the crime might still be contained therein. Wynne v. State, 676 S.W.2d 650, 654 (Tex.App. — Corpus Christi 1984, pet. ref'd). The impoundment was, therefore proper. The actual warrantless search is a completely different issue. Police who are engaged in a caretaking search may inventory the contents of a lawfully impounded vehicle. South Dakota v.Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). The burden of proof is upon the State to show a lawful inventory search. Benavides v. State, 600 S.W.2d 809, 812 (Tex.Crim.App. [Panel Op.] 1980). The police in this case did not contend that the search was an inventory search. The police in this case admit they searched the car looking for evidence.
I do not agree with the majority that impoundment justifies search. In fact, the Wynne case relied upon by the majority clearly demonstrates what should be done. InWynne, the car was impounded and secured in the garage until a search warrant was issued.
The Carroll, Chambers, and White cases cited as support for warrantless searches of vehicles all relied on the exigent circumstances exception to the necessity for a warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney,399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v.United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The vehicles in question in those cases were all being driven on the roadway prior to police stop and subject to being driven away after the stop. There was probable cause for search and exigent circumstances at the scene that justified a search at the scene. The Chambers and White decisions simply hold that if there could be a legal, warrantless search at the scene, there could be one later at the station house. There were no exigent circumstances at the scene of appellant's car to justify a warrantless search, and therefore, a warrant was necessary to search at the station house.
The search of the car, however, yielded very little. An independent witness had identified the car at the scene, and the accomplice had testified that the weapons actually supplied for the crime were disposed of that night. The bullets in the car trunk were no more or less incriminating than the bullets in the apartment. Based on the evidence in the entirety, recited more fully in the majority, even though the admission of the bullets found in the car was in error, they did not contribute to either appellant's conviction or punishment. TEX.R.APP.P. 81(b)(2).
The result for appellant is the same, but the reasoning is important. The warrantless search was not justified, but the error in this case, was harmless.