I respectfully dissent. I offer a more simplistic, chronologic version of the facts beginning when the sheriff and a deputy spotted appellant driving a brown automobile. They activated their lights and siren and pursued appellant until he pulled behind a mobile home belonging to his grandmother. Both officers drew their weapons and appellant exited his vehicle. A verbal confrontation occurred which escalated into a wrestling match. Appellant was handcuffed and then placed into the back seat of the sheriff's vehicle. Other officers began looking into appellant's vehicle and found jewelry, later associated with the robbery.
Unlike the majority, the sheriff and his deputy justified the intrusion as an inventory. The sheriff testified it was his department's standard procedure to impound a vehicle whenever they arrested someone and to inventory those vehicles which have been impounded. The question for this court is quite straightforward: whether the impoundment was lawful. Before an inventory search is permitted, there must be a lawful impoundment. Benavides v. State, 600 S.W.2d 809 (Tex.Crim.App 80). The state argues the impoundment was lawful since a necessity existed to protect appellant's vehicle from "others" at appellant's residence, citing Fenton v.State, 785 S.W.2d 443 (Tex.App. — Austin, 1990, no pet.) and Backer v. State, 656 S.W.2d 463 (Tex.Crim.App. 1983). This argument is neither plausible nor supported by the *Page 822 cases. In Fenton, the court held an impoundment unlawful when the defendant's car was legally parked in the parking lot of Fayette County Justice Center and he was only going to be temporarily detained while posting bond on traffic offenses. In Backer, an impoundment was held lawful because the defendant's car was going to have to be left parked on a public street. Neither of those instances apply here. Appellant's vehicle was legally parked on private property where he was domiciled.
The State goes on to argue (an argument accepted by the majority) that appellant was known to carry weapons and that the search of the car was appropriate under New York v.Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which allows the police to search the passenger compartment of a car as a contemporaneous incident to an arrest. The State (and majority) glosses over the fact that when the vehicle was searched, appellant was handcuffed in the rear of the sheriff's vehicle, the sheriff's vehicle was parked on the street in front of the mobile home while appellant's vehicle was behind his grandmother's home and there were four or five peace officers in the vicinity of appellant's vehicle. Under these circumstances, Belton is not controlling.
Further, the State argues that because appellant was a suspect in the robbery and a brown vehicle had been identified near the scene of the crime, that impoundment of appellant's brown vehicle was lawful because probable cause existed to believe the vehicle had been involved in the commission of a crime. In Gauldin v. State, 683 S.W.2d 411 (Tex.Crim.App. 1984), the court held the police had authority to impound a vehicle because the defendant was in custody, the vehicle was parked on a bar parking lot and it matched the description of the vehicle used in the robbery. The facts of this case do not fall within Gauldin.
The majority somehow views this as a search based upon probable cause. However, the sheriff and his deputies admitted they had no probable cause to search the vehicle and did not conduct a search for evidence of the robbery, but conducted an inventory subsequent to an impoundment. In fact, the deputy testified it never occurred to him that there might have been items from the robbery in the vehicle.
The sheriff was candid when he admitted he had a blanket policy; to impound the vehicles of all persons arrested.1 In Benavides, 600 S.W.2d at 812, the court stated: "While it may have been standard procedure to impound the vehicle of a person who is arrested we conclude that the Fourth Amendment protection against seizures cannot be whittled away by a police regulation." I could not have said it better. The evidence should have been suppressed. Since I cannot conclude that the error was harmless beyond a reasonable doubt, TEX.R.APP.P. 81(b)(2), I would sustain the point of error. I would reverse the judgment below and remand the cause for a new trial.