I respectfully dissent.
The issue here is whether Terry1 andWorthey2 permit the police to search inside a purse after the officers conduct a "patdown" of the outside of a purse and have no reason to believe it holds a weapon. I would find they do not and reverse.
In this case, Officer Martinez testified that he was not alarmed or afraid by the appellant's actions before or during the search.
[Defense Counsel]: At the time you saw Mrs. Pena, was she making any type of threatening moves or blandish (sic) any weapons or anything like that?
[Officer Martinez]: No, sir, not at the time.
[Defense Counsel]: In fact, she had a small child in each arm; is that correct?
[Officer Martinez]: Yes, sir.
[Defense Counsel]: It would have been very difficult for her carrying those two children to reach in her bag and produce a weapon and start shooting, correct?
[Officer Martinez]: Well, if she wanted to display a weapon, all she had to do is drop the infants and pull it out.
Officer Davidson testified that before the search he took the purse away from the appellant and kept the purse far enough away from her that she could not reach it.
[Defense Counsel]: [Y]ou didn't see any suspicious bulges in the bag that looked like a weapon, did you?
[Officer Davidson]: No.
[Defense Counsel]: Nothing indicated to you there was a weapon? It didn't feel like there was a hot gun in there or anything like that?
[Officer Davidson]: No, sir.
[Defense Counsel]: You didn't feel it first to see if there was a hard object?
[Officer Davidson]: Yes, sir, we did do that.
[Defense Counsel]: And you felt the gun inside?
[Officer Davidson]: No, we didn't. It was (interrupted)
[Defense Counsel]: Pass the witness.
The record contains no other references as to the reasonableness of the search. There is no evidence of the size of the bag, the thickness of its material, or how full the purse was when the officer felt the bag. We note that the burden of proof on a warrantless search is on the State.Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986); Atkins v. State, 882 S.W.2d 910, 913 (Tex.App. — Houston [1st Dist.] 1994, pet. ref'd).
Terry tells us that an officer, without probable cause, may conduct a limited search of the detainee's outer clothing for weapons when specific and articulable facts lead him to reasonably conclude that the person with whom he is dealing is armed and dangerous. Terry, 392 U.S. at 29, 88 S.Ct. at 1869. Terry further states that those specific facts must amount to more than a mere hunch or suspicion. Id., 392 U.S. at 27, 88 S.Ct. at 1883. The Texas Supreme Court has said that the purpose of a limited weapons search following an investigative stop is not to discover *Page 855 evidence of a crime, but to allow the police officer to pursue the investigation without fear of violence. Davis v.State, 829 S.W.2d 218, 220 (Tex.Crim.App. 1992).
The United States Supreme Court set out what is known as the "plain feel doctrine" in Minnesota v. Dickerson, ___ U.S. ___, ___, ___, 113 S.Ct. 2130, 2137-39, 124 L.Ed.2d 334 (1993). In Minnesota, the court held that an officer's continued exploration of the defendant's pocket after the officer determined it contained no weapon was unrelated to the sole justification of the search under Terry. Id. at ___, ___, 113 S.Ct. at 2138-39. In Minnesota, the officers had responded to complaints of drug sales in an area when they spotted the defendant who made eye contact with one of the officers, and then walked in the opposite direction.Id. at ___, 113 S.Ct. at 2133. The officers stopped the defendant and did a patdown search. Id. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in the defendant's nylon jacket that turned out to be a fifth of a gram of crack cocaine. Id. We note that in Minnesota the officers patted down the outside of the defendant's pocket and did not feel a weapon, but only felt a small lump.Id. at ___, 113 S.Ct. at 2133. At that point, the officer then reached into the pocket and pulled the cocaine out. Id. The court did not categorically bar the seizure of contraband detected through the sense of touch, but limited an officer's ability to seize an item during a patdown search to those items he could identify without any further invasion of privacy. Id. at ___, 113 S.Ct. at 2138.
Recently, the Dallas Court of Appeals considered a case where an officer conducting a patdown search went into the defendant's watch pocket after feeling two small objects and hearing a crackling sound. Graham v. State, 893 S.W.2d 4, 6 (Tex.App. — Dallas 1994, no pet.). The court held that the officer exceeded the bounds of Terry because he retrieved the object even though the incriminating contents of that object he felt were not immediately apparent to the officer. Id. at 8.
In Worthey, the Court of Criminal Appeals dealt with a patdown search as applied to a purse. 805 S.W.2d at 438-39. The court held that a warrantless search of a purse is valid when there are articulable facts in the record that justify an officer's self-protective search for weapons. Id. InWorthey, police described the defendant's purse as normal in size, which the defendant had over her shoulder.Id. at 437. The police officer justified his opening the purse and searching inside because the defendant turned the purse away from the officer, obstructing the officer's view of her hand and purse. Id. The officer testified that he pressed the sides of the purse, but he could not feel the center. He said something was definitely keeping his fingers and thumb from touching, that "there could have been a weapon inside." Id. at 438. The court held the officer's search of the bag was warranted because of the possibility of a weapon and injury to himself and others. Id.
A comparison of the Worthey facts and those in this case might be helpful.
Worthey Pena
Defendant approached scene of Defendant seen leaving the scene crime, along with others of the crime, along with others
Defendant acted suspiciously by No suspicious behavior or threats reaching for the purse turning by the defendant as officers aside when the officers approached her approached her
Defendant disobeyed the officer Defendant obeyed the officer and when he told her to keep her handed her children and her purse hands still to the officers
Defendant could have reached Defendant could not reach inside purse inside purse because she was carrying two infants *Page 856
Worthey Pena
Before feeling the purse the Before feeling the purse the officer officer thought defendant thought the defendant might have a might have a weapon gun
Officer felt purse to see Officer felt the purse to see if if there was a gun inside there was a hard object inside
No testimony that officer was Officer testified they were also looking for evidence looking for evidence
Officer felt sides of purse Officer felt sides of purse and did and could not feel the center, not feel a gun or supicious bulges said it did not feel soft, that there could have been a weapon inside
Officer said the purse did Officer did not say he could feel not feel soft, that there anything, or that the purse could have could have been a weapon contained a gun or other weapon. inside __________
The appellant relies on $2,067.00 in U.S. Currency, 3Handguns and 51 Capsules v. State, 745 S.W.2d 109 (Tex.App. — Fort Worth 1988, no pet.). In $2,067.00in U.S. Currency, police saw a handgun in plain view in the trunk of the defendant's car and then conducted a self-protective search of the defendant and her purse, which was also in the trunk. Id. at 112. The court held that when searching the defendant's purse, the officer exceeded the scope of a reasonable "stop and frisk" by looking inside three cloth bags in the purse rather than first feeling them for the presence of weapons. Id.
The State contends we should apply the reasoning of the Texarkana Court of Appeals in Earls v. State, 668 S.W.2d 453 (Tex.App. — Texarkana 1984, no pet.). InEarls, the court upheld the search of a purse of a woman in a bar, who matched the description of a person with a firearm. Id. at 454. The police asked the defendant if she had a gun. Id. The defendant said "no," but the police asked her to open her purse, and she did.Id. The officer then found the gun in the purse and arrested the defendant. Id. The court considered in its analysis that the defendant turned and walked hurriedly toward the rear of the bar when she saw the officers outside.Id.
This Court has considered the issue of a Terry frisk for weapons in Harris v. State, 827 S.W.2d 49 (Tex.App. — Houston [1st Dist.] 1992, pet. ref'd). InHarris, police discovered, while doing a protective search for weapons, a small metal box in the defendant's pocket. Id. at 50. After discovering the box, the police shook it to see if it contained razor blades or anything that could be used to harm the officers. Id. The police testified something inside sounded like razors so they looked inside and found seven rocks of crack cocaine.Id. This Court held the search exceeded the scope of what was permissible because the record contained no specific and articulated facts justifying the search. Id. at 51. This Court held that extending the search to the inside of the small metal box found on the defendant was only based on a suspicion or hunch. Id. Additionally, this Court determined it was unreasonable for a group of armed police officers to fear a razor blade inside a small box.Id. at 52.
I find the crucial elements in Terry search and seizure cases are the specific facts articulated by the officers stating why they felt threatened by the person being searched. In this case, the record shows the officers were investigating a shooting. They had reason to believe the appellant shot her husband and was armed and dangerous. They did not find any weapons on her, and did not feel any weapons in her purse. The officers did not believe the appellant had a weapon in the purse. I find the officer's right to search the appellant's purse for safety reasons ended when he determined there was no weapon in the purse after feeling the outside. The *Page 857 record does not present us with articulable facts as to why the officers went beyond a patdown search of the appellant's purse.
I would reverse.
HUTSON-DUNN and ANDELL, JJ., join in this opinion.