Crosby v. State

696 S.W.2d 388, 1985 Tex. App. LEXIS 7301

• Court: Court of Appeals of Texas
• Decided: June 11, 1985
• Docket: Nos. 05-83-01201-CR, 05-83-01202-CR
• Status: Published

Opinions

ON MOTION FOR REHEARING EN BANC

GUILLOT, Justice.

Appellant, David Vancortlandt Crosby appeals a conviction for unlawful possession of a controlled substance, cocaine, and for unlawfully carrying a handgun in a tavern. Appellant was sentenced to a term of five years imprisonment on the cocaine charge, and three years imprisonment, to run concurrently, on the weapon charge. In two grounds of error, appellant urges the trial court erred in overruling his motion to suppress the fruits of an alleged illegal search and seizure. We overrule both grounds and affirm.

Appellant had contracted with Cardi’s, a club licensed to sell alcoholic beverages by the Texas Alcohol Beverage Commission, to perform a musical concert on April 12, 1982. At approximately 11:45 p.m. on that evening, Dallas Police Officers Rinebarger and Holly arrived in the parking lot of Cardi’s to provide backup assistance to other officers who had responded to a call regarding a man who would not leave the club. After assuring themselves that everything was under control, Rinebarger and Holly decided to go inside the bar to make a routine inspection for liquor law violations pursuant to the Texas Alcoholic Beverage Code. TEX.ALCO.BEV.CODE ANN. (“TiA.B.C.”) § 101.04 (Vernon 1978).

While inspecting the premises, Rinebar-ger and Holly walked through the customer area of the club toward the stage. Appellant had taken a break and was not performing at this time. Wanting to look out over the entire club, Rinebarger stepped up onto the stage. Once Rinebar-ger got on the stage, a man standing by a curtain drawn across a doorway put his fist in Rinebarger’s chest, shoved him back, and said, “You can’t go in there.” Rine-barger pushed the man aside and entered the dressing room where he saw appellant with a propane torch in one hand, a glass pipe in the other, and an unzipped athletic bag on his lap. When Rinebarger looked inside the unzipped bag, he found a baggie containing a white powdery substance which was later determined to be cocaine. Rinebarger arrested appellant, zipped the bag closed, and took the bag, torch, pipe, and Crosby to Dallas City Hall. While waiting to ride the elevator up to the jail, Rinebarger noticed that the athletic bag he had confiscated from appellant felt unusually heavy. Consequently, he searched the bag and found a .45 Colt automatic revolver, the weapon forming the basis of the second charge.

In his first ground of error, appellant contends that the trial court erred in overruling his motion to suppress evidence of items found in his possession as a result of an inspection authorized by the Texas Alcoholic Beverage Code (“T.A.B.C.”). Specifically, appellant urges that the room in which he was arrested was “his enclosed, private dressing room,” and that the owner of the club had given him “exclusive use of the dressing room.” On this basis, appellant contends that Officer Rine-barger’s action in entering his dressing room was beyond the scope of the inspection authorized by T.A.B.C. § 101.04 and that, in the absence of a search warrant, consent, or probable cause, the search was unreasonable under the Fourth Amendment to the United States Constitution and Article 1, § 9 of the Texas Constitution.

T.A.B.C. § 101.04 authorizes administrative inspections on premises that sell alcoholic beverages. Section 101.04, T.A.B.C. provides:

By accepting a license or permit, the holder consents that the commission, an authorized representative, or a peace officer may enter the premises at any time to conduct an investigation or inspect the premises for the purpose of performing any duty imposed by this Code.

The Code further provides that no licensee may possess a narcotic or any equipment used or designated for the administering of a narcotic nor may he permit a person on the premises to do so. TEX.ALCO.BEV. CODE ANN. § 104.01(9) (Vernon Supp. 1984).

T.A.B.C. § 11.49(b)(1) provides the sole means for exempting any portion of a premises from the “licensed premises” and, subsequently, from the waiver of rights required by T.A.B.C. § 101.04. T.A.B.C. § 11.49(b)(1) provides:

Subject to the approval of the commission or the administrator, and except as provided in Subsection (c) of this section, an applicant for a permit or license may designate a portion of the grounds, buildings, vehicles, and appurtenances to be excluded from the licensed premises. If such a designation has been made and approved as to the holder of a license or permit authorizing the sale of alcoholic beverages at retail or as to a private club registration permit, the sharing of space, employees, business facilities, and services with another business entity (including the permittee’s lessor, which, if a corporation, may be a domestic or foreign corporation, but excluding a business entity holding any type of winery permit, a manufacturer’s license, or a general, local, or branch distributor’s license), does not constitute a subterfuge or surrender of exclusive control in violation of Section 109.53 of this code or the use or display of the license for the benefit of another in violation of Subdivision (15) of Subsection (a) of Section 61.71 of this code. This subsection shall not apply to original or renewal package store permits, wine only package store permits, local distributor’s permits, or any type of wholesaler’s permits.

TEX.ALCO.BEV.CODE ANN., § 11.-49(b)(1) (Vernon Supp.1984). The facts clearly show that the dressing room used by appellant was not designated to be excluded from the licensed premises. The dressing room was, therefore, under Car-di’s exclusive occupancy and control and, by law, Cardi’s could not surrender that control or occupancy to appellant. This is clear from section 109.53 of the T.A.B.C. which provides, inter alia,

Every permittee shall have and maintain exclusive occupancy and control of the entire licensed premises in every phase of the storage, distribution, possession, and transportation and sale of all alcoholic beverages purchased, stored, or sold on the licensed premises. Any device, scheme, or plan which surrenders control of the employees, premises or business of the permittee to persons other than the permittee shall be unlawful.

TEX.ALCO.BEV.CODE ANN., § 109.53 (Vernon Supp.1984). By accepting its permit, Cardi’s consented to allowing peace officers to enter the dressing room at any time to investigate or inspect the premises for the purpose of performing any duty required by the Code. T.A.B.C. § 101.04 (Vernon 1978).

The statutory law outlined above, when applied to the facts of the instant ease, shows that the management of Cardi’s could not have intended to provide any part of their premises to appellant free from the constraints of their permit. Moreover, the facts show Cardi’s did not intend to provide the dressing room free from such constraints. Although Douglas Harris, the General Manager and Director of Marketing and Public Relations of Cardi’s, testified that as part of the contractual relationship with appellant, Cardi’s was obligated to provide “a private dressing room away from the public,” he further stated, “I would not presume to keep a peace officer out of any office in any Cardi’s in any city ...” The entire cross-examination of John Denton, the manager of Cardi’s, supports the contention that the management of Cardi’s had not surrendered control of the premises or any part thereof at the time of this offense. The cross-examination of Denton follows:

Q. Mr. Denton, now, surely, it wasn’t your understanding that Mr. Crosby was to be free from having peace officers going back and performing their appointed rounds there in the dressing room, was it?

A. No, sir.

Q. You are not telling the court that it was any part of your understanding that a police officer couldn’t go back there, are you?

A. No, sir.

Q. O.K. I mean, after all, that’s part of your agreement in being licensed to sell alcoholic beverages is to follow the alcoholic beverage code which says that police officers can in fact check for liquor law violations and narcotic violations anywhere on the premises. Is that not correct?

A. Yes, sir.

It is clear that Cardi’s intended to exclude the public from appellant’s dressing room and that his right of privacy extended only to keeping the public out.

Appellant may have been mistaken in his belief that the dressing room was not involved in the liquor operation of the establishment and that the owner gave him exclusive use of the dressing room. But this mistaken belief does not establish a reasonable expectation of privacy. Almanza v. State, 365 S.W.2d 360, 362 (Tex.Crim.App.1963). Even if the Cardi’s management had intended to exclude appellant’s dressing room from the provisions of T.A.B.C., such a contractual provision could not have been effective because the law will not enforce an agreement to do that which the same law says will not be done. Shell Oil Company v. Stansbury, 401 S.W.2d 623, 630 (Tex.Civ.App.—Beaumont 1966, writ ref’d n.r.e.). Any rights of privacy asserted by appellant must have derived from Cardi’s. Consequently, these rights are subject to the same strictures as Cardi’s, pursuant to the terms of the T.A.B.C. We hold that appellant’s expectation of privacy was neither reasonable nor legitimate.

The same argument raised by appellant was rejected by the Texas Court of Criminal Appeals in Clark v. State, 445 S.W.2d 516 (Tex.Crim.App.1969). In Clark, a police officer went to Clark’s liquor store for the sole purpose of conducting a search for stolen goods. After entering the retail section of the building, which was open for business, he went along a hall to a room with a locked door and forced the door open. Therein he found the stolen goods. The officer testified that he did not attempt to secure a search warrant although he had ample opportunity to do so; that no violations of the liquor law had been reported to him and; that he did not go to the store to search for liquor law violations, nor did he find any.

In Clark, although the locked room was not open to the public and the search was not conducted for violations of the state liquor laws, the Court of Criminal Appeals held that the warrantless search was authorized by the statute governing the licensing of establishments that sell alcoholic beverages. Clark, 445 S.W.2d at 520. The right to claim that the product of a search conducted in a locked room on the premises was waived because it was not shown that the searched room had been designated to be excluded from the licensed premises. Clark, 445 S.W.2d at 520.

When the facts of the instant case, that the appellant was not in a room which had been excluded from the licensed premises and that the search was for violations of the state liquor law, are considered in light of the waiver contained in T.A.B.C. § 101.-04, it becomes clear that the entry and inspection of Crosby’s dressing room by Officer Rinebarger was authorized by the Texas Alcoholic Beverage Code. Consequently, we hold that the trial court properly overruled appellant’s motion to suppress evidence of items found in his possession as a result of Officer Rinebarger’s inspection.

In his second ground of error, appellant contends that the athletic bag seized from his dressing room at Cardi’s was unlawfully opened and searched in the basement of Dallas City Hall in violation of the Fourth Amendment to the United States Constitution and article 1 § 9 of the Texas Constitution. He relies upon United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1977), to support his position.

In the case of Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), the appellant had been in possession of a shoulder bag when lawfully arrested. Without obtaining a warrant and in the process of booking him and inventorying his possessions, the police removed the contents of the shoulder bag and found amphetamine pills. On the basis of the pills found in the bag, the appellant was subsequently charged with possession of a controlled substance. Appellant relied upon Chadwick, 433 U.S. at 1, 97 S.Ct. at 2476, Sanders, 442 U.S. at 753, 99 S.Ct. at 2586, to support his assertion that a warrant was required to lawfully search the bag. Rejecting that reliance, the Supreme Court recognized that at the police station, it is entirely proper for the police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. Lafayette, 103 S.Ct. at 2609. The rationale of Lafayette, that every consideration of orderly police administration benefiting both police and the public pointed toward the appropriateness of examining the appellant’s shoulder bag prior to incarceration, applies to the instant case. See Nash v. State, 682 S.W.2d 338 (Tex.App. — Dallas 1984, no writ).

The fact that Rinebarger opened appellant’s bag in the elevator while on the way to the book-in area, rather than moments later at the book-in area, is of no consequence. The constitutional prohibition of unreasonable searches and seizures does not apply to authorized police inventory procedures. Lafayette, 462 U.S. at 640, 103 S.Ct. at 2606. When a person is initially placed in jail, neither a warrant nor probable cause is required for a valid inventory search. Lafayette, 462 U.S. at 640, 103 S.Ct. at 2606, Nash, 682 S.W.2d at 339. Examining all the items removed from the arrestee’s person and listing them is justified as a reasonable administrative procedure to protect the police against false claims and to protect the arrestee against theft of property in police custody. Nash, 682 S.W.2d at 339. These interest, according to Lafayette, 462 U.S. at 640, 103 S.Ct. at 2606, outweigh the arrestee’s privacy interest in the contents of the property removed. Nash, 682 S.W.2d at 339. Consequently, the court will not second guess the police as to whether less intrusive methods might have been adequate. Nash, 682 S.W.2d at 339.

Because it is entirely proper for police to inventory property found on an arrestee’s person, Lafayette, 462 U.S. at 640, 103 S.Ct. at 2606, the gun in appellant’s athletic bag would have been inevitably discovered. Consequently, appellant has not been harmed by having his bag searched on the way to the book-in area. While the Court of Criminal Appeals has not adopted the terminology “doctrine of inevitable discovery,” it has adopted the rationale of this doctrine. See Santiago v. State, 444 S.W.2d 758 (Tex.Crim.App.1969); Johnson v. State, 496 S.W.2d 72 (Tex.Crim.App. 1973); Wyatt v. State, 566 S.W.2d 597 (Tex.Crim.App.1978) and Miller v. State of Texas, 667 S.W.2d 773 (Tex.Crim.App.1984).

The fact that it was necessary to unzip the athletic bag in order to discover the gun is likewise of no consequence. When Officer Rinebarger seized the bag, it was open and the contraband was in plain view. Rinebarger, himself, closed and zipped the bag preparatory to transporting appellant to jail. Furthermore, the bag was continuously in Rinebarger’s possession from the time of arrest to the time of search. In Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), the Supreme Court held that the subsequent opening of a container, which had been found to contain illicit drugs, was not a “search” within the intendment of the Fourth Amendment. That case involved a customs search of a container and its subsequent resealing and “controlled delivery” to the designated recipient. The container, of necessity, left the eyesight of the undercover officers for a period of time. The reasoning of Andreas should apply even more strongly to a case such as ours wherein the bag was closed by a police officer, kept in his possession, and subsequently reopened by him. In Andreas, the Supreme Court said:

It is obvious that the privacy interest in the contents of a container diminishes with respect to a container that law enforcement authorities have already lawfully opened and found to contain illicit drugs. No protected privacy interest remains in contraband in a container once government officers lawfully have opened that container and identified its contents as illegal. The simple act of resealing the container to enable the police to make a controlled delivery does not operate to revise or restore the lawfully invaded privacy rights.

* * ⅜ * * *

The plain view doctrine is grounded in the proposition that once police are lawfully in a position to observe an item firsthand, its owner’s privacy interest in that item is lost; the owner may retain the incidents of title and possession but not privacy. That rationale applies here; once a container has been found to a certainty to contain illicit drugs, the contraband becomes like objects physically within the plain view of the police, and the claim to privacy is lost. Consequently, the subsequent reopening of the container is not a “search” within the intendment of the Fourth Amendment.

* * * * * *

A workable, objective standard that limits the risk of intrusion on legitimate privacy interests is whether there is a substantial likelihood that the contents of the container have been changed during the gap in surveillance. We hold that absent a substantial likelihood that the contents have been changed, there is no legitimate expectation of privacy in the contents of a container previously opened under lawful authority.

Andreas, at 103 S.Ct. 3323-3325. In the instant case, there was absolutely no likelihood that the contents of appellant’s athletic bag had been changed during the gap in surveillance; consequently, no “legitimate expectation of privacy” had attached to the appellant’s athletic bag when it was searched in the .elevator.

No error being shown, both grounds of error are overruled. The judgment of the trial court is affirmed.

CARVER, SPARLING and MALONEY, JJ., join in this opinion. WHITHAM, J., concurs with an opinion in which ALLEN, VANCE and McCLUNG, JJ., join. STEPHENS, J., concurs with an opinion. HOWELL, J., dissents with an opinion in which GUITTARD, C.J., and AKIN and DEVANY, JJ., join.