dissenting.
The burden here is on the State for it seeks to justify a warrantless seizure and search of the person of appellant. Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 2027, 29 L.Ed.2d 564 (1971). Disclaiming the “plain view” doctrine,1 the local prosecuting attorney has strived mightily to discharge that burden under a legal theory devised and advanced by him and contested by appellant in briefs below,2 but so far the courts have declined to address it. We should take it up or remand the cause to the court below for further consideration.
I agree with the State that the plain view doctrine never came into play. As enunciated by the Supreme Court in Coolidge v. New Hampshire, supra, U.S. at 465, 91 S.Ct. at 2037:
“The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.”
The opinion of the Court of Appeals implies and now this Court holds that if the officers were knowledgeable enough about an aspect of police lore (that heroin is commonly tied off in small balloons and then concealed under one’s tongue), when each observed that phenomenon they saw heroin in *688“plain view,” and acted accordingly. But the first limitation of the doctrine is that “plain view alone is never enough to justify the warrantless seizure of evidence,” id., at 468, 91 S.Ct. at 2039. I agree with the State that this is simply not a case for application of the doctrine.
Therefore, I respectfully disassociate myself from the opinion of the Court, and urge that we address the substantial issue which the State has raised in its petition for discretionary review: That the seizure of appellant was authorized by Article 14.01(b), V.A.C.C.P., and that the “search” of his mouth that followed was permissibly incident to the arrest. Hernandez v. State, 548 S.W.2d 904, 905 (Tex.Cr.App.1977); see generally United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). It must be remembered that one in a public place who is otherwise subject to a warrant-less arrest has no reasonable expectation of privacy. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).
I dissent.
TEAGUE, J., joins.. One reason for review given by the State is that the Court of Appeals erred in applying the “plain view” doctrine to the facts of this case since the warrantless search and seizure may be justified as a search incident to a valid arrest.
. In its petition for discretionary review the State insists: “Both the State and Appellant treated the issue as one of probable cause for a warrantless arrest. (See, Brief for the State at 2, and Brief for Appellant at 4.).” My understanding is that this Court granted the petition to decide the issue thus joined by the parties and, coincidentally, to disapprove of the manner in which the Court of Appeals treated the question.