Backer v. State

656 S.W.2d 463, 1983 Tex. Crim. App. LEXIS 1112

• Court: Court of Criminal Appeals of Texas
• Decided: July 6, 1983
• Docket: 68179
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of marihuana. Appellant was sentenced by the court to 3 days in jail and a $100.00 fine.

Appellant asserts in grounds of error two through four that the trial court erred in overruling his motion to suppress evidence since the search of his vehicle and subsequent seizure of marihuana were in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Appellant argues that the inventory search was a sham and a pretext for an unconstitutional exploratory search. Appellant urges that the inventory search was not made with his consent nor was he offered an alternative to the impoundment and inventory of his vehicle.

The record reflects that the appellant was stopped while looking for a parking space in the 3100 block of Terminal Road, a public street near the airport in Houston, by Houston police officers for an expired safety inspection sticker and plates. One of the officers ran a check and found an outstanding traffic warrant on appellant. The officers placed appellant under custodial arrest, impounded his vehicle and brought it to the airport police station. The officers then conducted an inventory search of the automobile. Marihuana was found inside the unlocked glove compartment of the automobile.

An inventory search need not be predicated upon the same requirements for probable cause or in obtaining a search warrant. Its existence rests upon the caretak-ing responsibility a police officer has towards a lawfully impounded automobile. Gill v. State, 625 S.W.2d 307, 319 (Tex.Cr.App.1980). In Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App.1980), which the appellant and state cite, the court listed several instances where an automobile may be impounded and inventoried. One such instance is where “the driver is removed from his automobile and placed under custodial arrest and no other alternatives are available other than impoundment to insure the protection of the vehicle. Evers v. State, 576 S.W.2d 46 (Tex.Cr.App.1978); Christian v. State, 592 S.W.2d [625] (Tex.Cr.App.1980); Daniels v. State, supra.” Benavides, supra. (Our emphasis).

Appellant argues that other alternatives were available rather than impoundment to insure the protection of appellant’s vehicle. The record indicates that appellant stated he wanted to leave his car for use by a friend who was to arrive at the airport. The record reflects the officers attempted to contact the person appellant wanted his car left for, but were unable to do so. There being no apparent alternative and no one to remove the vehicle from its location on a public street, it was impounded within legitimate department policy as a caretak-ing function for the protection of the department as well as the vehicle and its contents. Although appellant’s trial testimony at times conflicted with the officer’s testimony on the motion to suppress, appellant did not testify at that hearing and therefore was not before the court when it overruled the motion. The trial court properly overruled appellant’s motion to suppress the evidence seized in the inventory. See Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). Appellant’s grounds of error two through four are overruled.

Appellant asserts in his first ground of error that the trial court erred in failing to render a not guilty verdict for appellant since the marihuana was not admissible in evidence. Appellant asserts the search of his motor vehicle and subsequent seizure of the marihuana in the glove compartment was a violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. Therefore the evidence in the case was insufficient as a matter of law to support the conviction. For the reasons previously stated the marihuana was properly seized after discovery during an inventory of appellant’s vehicle following his custodial arrest. The marihuana was properly admitted. The trial court did not err by not rendering a not guilty verdict. Appellant’s first ground of error is overruled.

The judgment is affirmed.