(dissenting).
This is an appeal from a conviction for the possession of marihuana. After a trial before the court, punishment was assessed at three years, probated.
Along with the claim of insufficiency of the evidence, appellant contends that the search of his automobile was illegal and the fact that an officer found the marihuana was inadmissible.
P. A. Brooks, an officer of the Houston Police Department, testified that at 10:35 p. m. appellant drove his Mustang automobile through a red light at Montrose and Westheimer Streets. With the lights on the police car flashing, Brooks and his partner, J. D. Williams, pursued appellant for some four blocks and stopped him for running the red light. Appellant was the only one in the Mustang. Before appellant’s car came to a complete stop, he made a move with his right hand in between the two seats. His head and shoulders also moved to the right. After the car stopped, Brooks had appellant step to the rear of the car with Officer Williams. Brooks then looked between the two seats at the “hump” on the car and found a Marlboro cigarette box which had three Marlboro and three hand rolled cigarettes. It was stipulated that the hand rolled cigarettes were marihuana. The evidence is sufficient to support the conviction.
The State contends that the evidence of the search came in without an objection and that appellant has presented nothing for review. Officer Brooks testified without objection, on direct examination, that he found the cigarette box including the hand rolled cigarettes. He also testified that he had an opinion as to what the hand rolled cigarettes were.
On cross-examination, he stated that he had found marihuana in Marlboro cigarette boxes before, but that he was not looking for marihuana. When asked why he picked up the Marlboro box, he stated, “there could have been a pistol under there.” Then appellant’s counsel stipulated “that the stuff turned over to the chemist was marihuana, however, we will object to the introduction of it into evidence.”
The court ascertained that his objection was based upon an unlawful search and *536seizure and then overruled it. The marihuana was never actually introduced.
Assuming, without deciding, that the objection was timely and sufficient, the question of the search will be discussed.
The Supreme Court of the United States upheld the search of a person after an arrest for a traffic violation based upon probable cause that Robinson was violating a traffic regulation of the District of Columbia in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The Court wrote:
“It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment.”
Prior to the Supreme Court decision, the Court of Appeals for the District of Columbia in United States v. Robinson, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1973), had held the same search was unreasonable. The Court of Appeals noted that there was no suggestion that a wadded up cigarette package in Robinson’s pocket was believed to be a weapon or that the officer believed himself to be in danger. The officer in that case, according to the Circuit Court opinion, did not have any specific purpose in mind when he made the search. “I just searched him. I didn’t think about what I was looking for. I just searched him.” The wadded up cigarette package contained heroin. The Circuit Court held that “Officer Jenks exceeded the permissible scope of a limited frisk for weapons,” and stated that a search after an arrest for a mere motor vehicle regulation was illegal. The Supreme Court held otherwise.
In Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), the Supreme Court of the United States upheld a search of one who was arrested for not having a driver’s license. Gustafson was convicted for the possession of marihuana. After observing an automobile being driven or weaving across the center line of a road several times, officers followed and stopped it. Gustafson, the driver, was unable to produce an operator’s license and was arrested. The Supreme Court wrote:
“Though the officer here was not required to take the petitioner into custody by police regulations as he was in Robinson, and there did not exist a departmental policy establishing the conditions under which a full scale body search should be conducted, we do not find these differences determinative of the constitutional issue . . . . ‘The authority to search a person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does no't depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.’ ” (Emphasis Supplied)
The Supreme Court held that there was probable cause for the arrest in the Robinson case. There Officer Jenks learned that Robinson did not have a valid license to operate an automobile. When the officer later saw him driving, the arrest was authorized.
The statutes of Texas authorize the arrest by an officer of one seen committing a traffic offense. That is sufficient cause. The statutes also provide for taking one in custody with one exception for speeding offenses noted later. It takes no stretch of the imagination to see that such an arrest is a custodial arrest.
The Uniform Act Regulating Traffic on Highways, Article 6701d, Section 153, Vernon’s Ann.Civ.St, 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 im*537mediately taken before a magistrate as hereinbefore 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 written 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)
Article 14.05, Vernon’s Ann.C.C.P., provides :
“In each case enumerated where arrests may be lawfully made without warrant, the officer or person making the arrest is justified in adopting all the measures which he might adopt in cases of arrest under warrant.”
Article 14.06, Vernon’s Ann.C.C.P., provides :
“In each case enumerated in this Code, the person making the arrest shall take the person arrested or have him taken without unnecessary delay before the magistrate who may have ordered the arrest or before some magistrate of the county where the arrest was made without an order. . . .”
Since the proof shows that the appellant was violating Article 6701d, supra, the officers had a right to arrest and take appellant into custody as authorized by Section 153 of the Act. In Wallace v. State, 467 S.W.2d 608, 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.). . . .”
See Rodgers v. State, Tex.Cr.App., 468 S.W.2d 438, and Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, where the trunk of an automobile was searched upon probable cause after the defendant was in jail, following a traffic arrest.
The arrest of the appellant being legal, the question now turns to the search of 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, Tex.Cr.App., 456 S.W.2d 123.
At first blush, it might appear that an officer should not be permitted to search one’s person or car after a traffic arrest because traffic violations are ordinarily innocuous offenses. Article 6701d, Section 153, supra, gives an officer the right to arrest for such offenses. The Supreme Court of the United States has held the right to search the person of the traffic violator is not unreasonable in the Robinson and Gustafson cases.
*538Merely because a driver gets out of a car upon being stopped should not prevent an officer from protecting himself. If an officer decides not to take a traffic violator before a magistrate or to jail, the offender will get back into the car and it is quite possible that a weapon could be reached, and the officer could be shot.1
No citizen wants to be searched after being stopped or arrested for a traffic violation. We cannot overlook the necessity for such a search. Police officers must be able to protect themselves while in the performance of their duties.
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, burglary, 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 recent case of People v. Cannon, Ill.App.Ct., First Dist. 1974, 310 N.E.2d 673, a car was stopped because the brake lights were out. When the1 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, the arrest was for vagrancy for the defendant and others who were in a parked car. A search of the trunk of the car at the police station after the occupants of the car were in jail was held to be unreasonable.
Mr. Justice Black, speaking for the Supreme Court, wrote:
“Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons. . . .”
and
“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, Tex.Cr.App., 445 S.W.2d 184, and Taylor v. State, supra. Agnello v. United States, 269 U.S. 20, 29, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148.
In Lane v. State, Tex.Cr.App., 424 S.W.2d 925, cert. denied 392 U.S. 929, 88 S.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 rea*539sonable noting that the search was not based on probable cause but a search incident to a lawful arrest, citing Hardin v. State, Tex.Cr.App., 387 S.W.2d 60.
In Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894, 895, 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 the present case the officer testified that he was not in fear for his life but stated that there could have been a pistol under the cigarette box. Perhaps he was not in fear of his life because he was making sure that the appellant could not reach a weapon when he returned to 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.
To summarize, 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 case is not unreasonable.2
The judgment should be affirmed.
. In 1972, according to the information received by the Federal Bureau of Investigation through the uniform crime reporting program in the United States and Puerto Rico, 114 officers were killed. In 1973, 131 officers were killed under the following circumstances :
“. . . Thirty officers were slain handling disturbance matters, twenty-five were hilled mahing traffic stops, twenty while attempting arrests for crimes other than robbery and burglary, ten investigating suspicious persons, eight in connection with burglary matters, seven met death at the hands of prisoners, three were killed by mentally deranged persons, and one was slain in connection with a civil disorder. One hundred and twenty-four of the one hundred and thirty-one officers were killed through use of firearms. Handguns were used in ninety of the slayings. . . .”
(Emphasis supplied)
According to the report of the Texas Department of Public Safety, four officers were killed in Texas in arrests or attempted arrests for traffic violations in 1973.
. This opinion is not to be understood as permitting a full scale search of an automobile trunk or other places not readily accessible to a motorist who has been arrested solely for violating a traffic law.