Thomas v. State

DOUGLAS, Judge

(dissenting).

The majority reverses the conviction on the grounds that the search was illegal even though appellant took the stand and admitted that he possessed the biphetamine.

When a defendant testifies that he possessed the contraband, he waives any contention concerning the legality of the search. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Sims v. State, 502 S.W.2d 730 (Tex.Cr.App.1973); Hunnicutt v. State, 500 S.W.2d 806 (Tex.Cr.App.1973); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972), and Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). It is difficult, if not impossible, from this and previous cases to determine when the rule applies. Rules should be applied consistently and with clarity.

Sherry Láveme Rose, a. witness called by appellant, testified that the pills which had been introduced were prescribed for her the night in question. She had been in the car with appellant and they had apparently fallen out of her purse because it had a loose clip. There is other proof by the appellant that the pills were in the car.

In addition to not applying the rule that when a defendant testifies to possessing the contraband he waives the contention that a search is illegal, the majority holds that an arrest is not an arrest contrary to the statutes. The arresting officer, Robert J. *510Worth, testified that appellant was driving a car and made an improper turn to the left where only a right turn was authorized. Officer Worth asked appellant for his driver’s license but he did not have one. The officers then took him to the patrol car. The Legislature provides that this is an arrest.

Article 15.22, Y.A.C.C.P., provides:

“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.”

Was appellant under arrest? Even though the officer stated that appellant was not under arrest when he was in the patrol car, he stated that appellant was not free to leave at any time after he was stopped. Courts are not bound by legal conclusions of others when facts do not support such conclusions.

The drugs were found in appellant’s coat pocket which was on the seat of the passenger side of the car. Officer Worth testified as follows when asked why the coat was searched:

“Q. (Mr. Ethington): Why did you search the coat that you gave to Thomas here before you let him put it on?
“A. We always search prisoner’s clothing to the extent that we determine if there are weapons or contraband inside that article of clothing. I wouldn’t give a man his coat without going through the pockets to make sure there wasn’t anything in there that shouldn’t have been.
“Q. It’s for your own personal safety then I take it that you’re saying you searched the coat, is that correct?
“A. Yes, sir.
“Q. Before you gave it to the Defendant?
“A. Yes, sir.”

The holding that appellant was stopped and was in the patrol car and not free to leave was not a restraint or arrest has about as much reasoning or logic as a majority of this Court’s opinion that five years’ probation was more punishment than three years in the penitentiary. See Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581 (1975).

If the appellant had made an incriminating statement after he was stopped and not free to leave, would the majority hold the statement admissible on the grounds that he was not under arrest? Under past decisions the answer would be no.

The Supreme Court of the United States held in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that Robinson, who was stopped for driving while his license was suspended, was under arrest and that a subsequent search was proper. In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the officers stopped an automobile. The Supreme Court of the United States wrote:

“ . . . When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. . . ”

The Uniform Act Regulating Traffic on Highways, Article 6701d, Section 153, Y.A. C.S., provides:

“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.”

Section 148(a) of the same Article provides:

“Whenever a person is arrested for any violation of this Act punishable as a misdemeanor, and such person is not immediately taken before a magistrate as here-inbefore required, the arresting officer shall prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court. Provided, however, that the offense of speeding shall be the only offense making mandatory the issuance of a written notice to appear in court; and only then if the arrested person gives his *511written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer; and provided further, that it shall not be mandatory for an officer to give a written notice to appear in court to any person arrested for the offense of speeding when such person is operating a vehicle licensed in a state or country other than the State of Texas or who is a resident of a state or country other than the State of Texas.” (Emphasis supplied)

In Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), this Court held that one stopped for speeding was arrested.

Since the proof shows that the appellant was violating Article 6701d, supra, the officers had a right to arrest and taken appellant into custody as authorized by Section 153 of the Act. In Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971), this Court wrote:

“ . . . it is well settled that when an officer sees a person violating a traffic law, he is authorized to stop him and incident to that arrest to search his person. Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.) . .

The arrest of the appellant being legal, the question now turns to the search of the coat in the car. Does an officer, after making an arrest for a traffic violation, have the right to search that part of a car where the arrested person might readily reach a gun if he is permitted to re-enter?

If an officer stops and arrests the driver of a car for a traffic violation, he has a right to search the driver and take any weapon that the driver might reach. If the driver is seated in the car, a search for any weapon that might be readily obtained would be permissible under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

An officer making a traffic arrest is using good judgment to have a driver who has been stopped or arrested for a traffic offense get out of the car as a safety precaution. See Grego v. State, 456 S.W.2d 123 (Tex.Cr.App.1970). If an officer decides not to take a traffic violator before a magistrate or to jail, the offender will get back üito the car and it is quite possible that a weapon could be reached and the officer could be shot.

Our Legislature has provided for such arrests and the Supreme Court of the United States has upheld arrests and searches for traffic violations with good reason. A fugitive from a murder, robbery or any other crime who might not want an officer to check to see if he is wanted for some offense could obtain a gun after returning to his car and attempt to shoot the officer who had stopped him.

In the ease of People v. Cannon, First Dist. 1974, 18 Ill.App.3d 781, 310 N.E.2d 673, a car was stopped because the brake lights were out. When the driver could not produce a license, the officer asked him to get out of the car. Passengers were also asked to get out of the car. After searching Cannon, the officer found a .38 caliber pistol under the seat. Another pistol was found in the search. The Illinois Court cited Chimel v. California, supra, in upholding the search of the automobile by the officer after the traffic arrest and wrote:

“ . . . it then became the right and duty of the officer to make at least a cursory search of the immediate vicinity of the driver’s seat. In our opinion, this type of search was not only authorized by law but it was essential to insure the safety of the arresting officer.”

In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, Mr. Justice Black, speaking for the Supreme Court, wrote:

“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer

See Corbitt v. State, 445 S.W.2d 184 (Tex.Cr.App.1969), and Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967). Agnello v. United States, 269 U.S. 20, 29, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148.

In Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967), cert. denied, 392 U.S. 929, 88 *512S.Ct. 2270, 20 L.Ed.2d 1387, the arrest was for a speeding violation. The conviction was for the possession of a pistol found in the glove compartment at the time of the arrest. This Court held the search to be reasonable noting that the search was not based on probable cause but a search incident to a lawful arrest, citing Hardin v. State, 387 S.W.2d 60 (Tex.Cr.App.1965).

In Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894, this Court wrote:

“There can be no claim that appellant was illegally arrested. The evidence is without dispute that the search was made after the arrest. It is a settled rule that a search warrant is not necessary in order to search the person of one under lawful arrest. 38 Tex.Jur., p. 73; Tones v. State, 48 Tex.Cr.R. 363, 88 S.W. 217, 1 L.R.A., N.S., 1024, 122 Am.St.Rep. 759,13 Ann.Cas. 455. Having a right to arrest and search appellant, he also had a right to search the car. Stokes v. State, 117 Tex.Cr.R. 307, 35 S.W.2d 727; Hayes v. State, 115 Tex.Cr.R. 644, 28 S.W.2d 556.”

In Smoot v. State, 475 S.W.2d 281 (Tex.Cr.App.1971), the arrest was for speeding. This Court held it to be an arrest and that the officers were authorized to search a cigarette box after Smoot got out of the car.

It is good police practice for officers to make a cursory search for weapons in the immediate vicinity of the driver as the Illinois court held in the Cannon case, supra.

The statutes of Texas authorize the arrest of an offender of the traffic laws and taking him into custody. This Court has upheld the search of the person after an arrest as well as a limited search of his car. The Supreme Court has upheld the arrest for traffic regulation violators and the search of their persons even though the arresting officer was not in fear of his life. It also recognizes the right of the officer to search in the vicinity of where the arrest has been made.

The search in the present ease is not unreasonable.

The order revoking probation was proper. The judgment should be affirmed.