Gary v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

CAMPBELL, Judge.

The appellant was charged with possession of methamphetamine. Before trial he filed a written motion asking the court to suppress the fruits of a certain search and seizure. The trial court denied his motion after receiving a stipulation of the evidence. Appellant then waived a jury and went to trial on a plea of nolo contendere. His plea was supported by the same stipulation of evidence. The court found him guilty and, upon the State’s recommendation, the court assessed punishment at six years confinement and a five hundred dollar fine, the former being probated for five years. Pursuant to Art. 44.02, V.A.C.C.P., appellant now seeks a reversal of his conviction, based solely on the ground of the allegedly illegal search.

On original submission a panel opinion affirmed the conviction, relying on the Supreme Court’s opinion in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 49 L.Ed.2d 768 (1981). On rehearing, we find the facts in the instant case distinguishable from those in New York v. Belton, supra. However, we find that the search was proper according to the principles announced in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and affirm.

The written stipulation introduced into evidence to which the appellant agreed reads:

“The Defendant was driving his automobile on a public street in Harris County, Texas, on September 22, 1979 at approximately 9:30 p.m. when he was stopped by two officers of the Houston Police Department. One of the officers was Officer Kilty.
“If Officer Kilty were called to testify, he would testify that the Defendant was stopped initially because the Officers observed him run a red light at a controlled traffic intersection. He would further testify that the officer’s partner approached the Defendant’s automobile to speak with the Defendant and to issue him a traffic citation. At this point in time, the Defendant had exited his automobile was standing near the rear of his vehicle. As the officers looked into the Defendant’s automobile, they saw a pistol lying, in plain view, on the back seat of the automobile.
“The officers then placed the Defendant under arrest for carrying a weapon and subsequently placed him in the police vehicle. While one of the officers was placing the Defendant in the police vehicle, the other officer began a search of the interior of the Defendant’s automobile. On the front seat of the automobile, the officers found a closed or zipped bank bag, which bag will be introduced into evidence as Defense Exhibit No. 2. The officer opened this bag, searched it and found a substance which a Houston Police Department chemist, if called to testify, would state was identified by testing as methamphetamine. The Defendant was then told that he was under arrest for possession of a controlled substance.
“Since the Defendant was the sole occupant of his automobile, the officers took the car to the police compound after the Defendant’s arrest while one of the officers drove the police vehicle to the police station.”

The appellant’s motion to suppress raised the contention that the search of the zipped and closed bank bag found on the front seat of the appellant’s car was not a lawful search since it was conducted without probable cause, without a warrant, and without any justification that would excuse the ob-*649taming of a warrant. We disagree. The State during the hearing on the appellant’s motion to suppress argued that the search was a valid inventory, pursuant to im-poundment of the automobile. Such inventory searches have been held as not being in violation of the Fourth Amendment to the United States Constitution. South Dakota v. Opperman, supra. The appellant does not allege or argue that the inspection of the bank bag was “a pretext concealing an investigatory police motive.” South Dakota v. Opperman, supra, 96 S.Ct. at 3100. We are left with the issue of whether or not the car was legally impounded. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980).

The appellant was placed under custodial arrest. There was no one to whom the police could have given possession of the automobile. Daniels v. State, supra. The inventory was prompted by the presence of valuables in the car. The police would have been derelict in their duty had they left the automobile on the street with a bank bag lying on the front seat. The inventory of the contents of the bag was clearly not excessive; the bag’s purpose is to hold money or other valuable papers, and the policy considerations of protecting the owner’s property and protecting the police against claims of lost and stolen property are clearly invoked in this situation. See South Dakota v. Opperman, supra. The bank bag and its contents were lawfully seized.

The appellant’s motion for rehearing is overruled.