dissenting.
I respectfully dissent. The threshold question as to the validity of the search of appellant’s vehicle is whether the State met its burden to prove beyond a reasonable doubt that the impoundment of the vehicle was lawful. Ward v. State, 659 S.W.2d 643 (Tex.Crim.App.1983)(en banc); Benavides v. State, 600 S.W.2d 809 (Tex.Crim.*306App.1980); Daniels v. State, 600 S.W.2d 813 (Tex.Crim.App.1980). Both the Fourth Amendment to the U.S. Constitution and Art. 1, § 9 of the Texas Constitution provide that people shall be secure in their persons and possessions against unreasonable searches and seizures.
Benavides, supra, citing South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and a host of other cases, points out numerous illustrations of situations where it is reasonable for the State to impound vehicles, but points out that the “mere arrest of a defendant cannot be construed to authorize the seizure of his automobile when the arrest took place two or more blocks away from the automobile.” The majority seems to take the position that the distance of the vehicle from the point of the arrest is a conclusive determining factor in considering impoundment. I cannot agree. I believe it is only one factor to consider.
The evidence in our case shows that Officer Oliveira first observed Mr. Villarreal outside the vehicle talking to another individual. Appellant and the other individual were standing next to a black vehicle. There was a cream-colored vehicle immediately behind the black car. Four people were in the cream-colored car. Later, Oli-veira found there was a warrant outstanding for appellant’s arrest on a charge of aggravated assault.
Oliveira and several other officers returned to find the vehicles in the same position, the four people still seated in the cream-colored car and appellant and the other individual still standing by the car talking. Appellant was arrested on the aggravated assault warrant by Officer Oli-veira. The officer asked if the black car was his and appellant either said, “I’m trying it out” or “I’m buying it.” Officer Oliveira testified he advised Officer Spencer to take care of the black vehicle. Officer Spencer testified that Oliveira instructed him to impound the black vehicle and made the search which resulted in the contraband being discovered. Under these facts, I cannot believe that the State met its burden to show that it was reasonably necessary to undertake any type of care-taking operation in connection with the black vehicle. There was no evidence that the vehicle was illegally parked, that it constituted a hazard or that either it or its contents were in any danger, either to the general public, or to the owner of the vehicle. In fact, at the time of the search the State had no information as to the ownership of the vehicle. Its two witnesses conceded, on cross-examination, that any of the four people in the cream-colored car, or the person to whom appellant was talking at the time of his arrest, could have been the owner of the car. There is no evidence of when the officers discovered that the keys were in the car. Neither was there any showing by the State that the vehicle was or would be abandoned. No evidence was presented as to whether any of the other private persons at the scene of the arrest could or would care for the vehicle.
The only evidence presented by the State as to the reason for impounding the vehicle came from Officer Spencer who answered affirmatively to the question by appellant’s attorney to the effect that the purpose of impounding the vehicle was so it could be searched and that this is standard procedure with the Brownsville Police Department.
I would conclude that this fact situation falls within the reasoning and holding expressed in Benavides at 812, where the Court stated:
While it may have been standard police 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. For such a procedure there must be some reasonable connection between the arrest and the vehicle. See Nolan v. Tenn., 588 S.W.2d 777 (Tenn.Cr.App.1979); Dunkum v. Georgia, 138 Ga.App. 321, 226 S.E.2d 133 (Tex.1976). In the case at bar none existed. Nor was there any other reasonable ground given for the impoundment. We, therefore, hold that the impoundment of *307appellant’s automobile and the subsequent search were unlawful. See also Minnesota v. Goodrich, 256 N.W.2d 506 (Minn.1977); Wagner v. Commonwealth, 581 S.W.2d 352 (Ky.1979); Washington v. Singleton [303 So.2d 420 (Fla.App.1974)], supra.
See also Gauldin v. State, 683 S.W.2d 411 (Tex.Crim.App.1984)(en banc).
According, I would hold that the State failed to prove the reasonableness of the impoundment of the vehicle, would rule that the evidence obtained as a result of the search was inadmissible, and would reverse the judgment of the trial court.