Cummings v. State

727 S.W.2d 348, 1987 Tex. App. LEXIS 6745
CourtCourt of Appeals of Texas
DecidedMarch 26, 1987
DocketNo. 01-86-0384-CR
StatusPublished
Cited by4 cases

This text of 727 S.W.2d 348 (Cummings v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cummings v. State, 727 S.W.2d 348, 1987 Tex. App. LEXIS 6745 (Tex. Ct. App. 1987).

Opinion

OPINION

JACK SMITH, Justice.

Appellant was found guilty of felony possession of marihuana by a jury, and the court sentenced him to seven years confinement.

Appellant’s sole point of error concerns the search of appellant’s truck and the seizure of the marihuana located in the cab of the truck, inside an open shaving kit. Appellant urges that the trial court erred in overruling his motion to suppress the illegally seized evidence.

The evidence shows that Deputy Rine-hart investigated two vehicles parked in front of a sporting goods store at approximately 2:00 a.m. on December 22, 1985. One vehicle belonged to a local attorney, [349]*349who was giving the occupants of the other vehicle, a Ford truck, some gasoline. Appellant was asleep on the passenger side of the truck. Since the occupants of the truck were unknown to the deputy, and the driver of the truck was hostile to the deputy, Deputy Rinehart ran a computer check on the license plate and vehicle identification numbers of the truck, and the driver’s license number of the driver. Upon ascertaining from the police dispatcher that the computer was down, Deputy Rinehart left the scene and continued his patrol. Shortly thereafter, the dispatcher informed him that the license plate belonged to a 1967 Chevrolet. Believing that the Ford truck was possibly stolen, Deputy Rinehart notified other Sheriff deputies to stop the vehicle.

The Ford truck was located at a gas station. Deputy Simpson, Deputy Rine-hart, and Deputy Jackson arrived at the scene. The officers determined upon inquiry that appellant allegedly owned the vehicle in question and requested that he present proof of ownership of the truck. While the appellant was attempting to locate some proof of ownership, Deputy Jackson approached the passenger side of the vehicle. Both doors of the truck were open and the occupants were no longer inside. Deputy Jackson looked inside the vehicle and saw an open shaving kit lying on the seat. A clear plastic bag containing marihuana was sticking out of the kit. Deputy Jackson pulled the bag out of the shaving kit and handed it to Deputy Simpson. Appellant was then placed under arrest for possession of marihuana.

The deputies then began to search the rest of the truck. The deputies located a shotgun under the passenger seat inside the truck, and a large plastic bag of marihuana was found in a green duffle bag in the bed of the truck. When the marihuana was located in the duffle bag, the deputies also arrested the driver of the truck. During a pat-down search of appellant, another package of marihuana was found. A third package was located on appellant’s person during booking procedures at the jail.

The State asserts that the “plain view” doctrine provides grounds for the warrantless seizure of the marihuana in the shaving kit. The “plain view” doctrine permits the warrantless seizure by police of private possessions where three requirements are satisfied. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). First, the police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area. Id. 403 U.S. at 465-468, 91 S.Ct. at 2037-2039, 29 L.Ed.2d 564. Second, the officer must discover incriminating evidence inadvertently. Id. 403 U.S. at 470, 91 S.Ct. at 2040, 29 L.Ed.2d 564. Finally, it must be “immediately apparent” to the police that the items that they observe may be evidence of a crime, contraband, or otherwise subject to seizure. Id.

The appellant concedes that the deputies had a legitimate reason to be near the appellant’s truck and that the discovery of the marihuana was inadvertent. However, appellant asserts that the viewing of the top of the plastic bag sticking out of the shaving kit did not make it “immediately apparent” to the deputies that the plastic bag contained contraband. Citing Duncan v. State, 549 S.W.2d 730 (Tex.Crim.App. 1977), the appellant urges that the viewing of the plastic bag itself is not sufficient for evidence of contraband. In Duncan, the officer testified that he did not know what the plastic bag contained, nor did he have any suspicion of what it contained. The Court of Criminal Appeals held that “[e]ven though we are aware of the popular use of plastic bags as containers for controlled substances, we cannot hold that the bag itself is contraband in the absence of some showing that the officer saw what appeared to be a contraband substance in the bag.” Id. at 732.

Appellant contends that the warrantless search was illegal because probable cause existed only after Deputy Jackson entered the cabin of the truck, because Deputy Jackson did not know the plastic bag contained marihuana until he pulled it out of [350]*350the shaving kit. However, Officer Jackson testified as follows:

(at the hearing on the motion to suppress)
I observed a brown shaving kit. It had a plastic — clear plastic bag sticking up out of the bag. I bent over and looked into the kit and picked up the bag up. It had a green leafy substance in the bag.
* * * * * *
The bag was sticking up. I bent over and looked into the shaving kit and I could see the marihuana in it.
* * * * * *
When I got to the scene I walked up to the passenger side of the vehicle as the rest of the officers was there and I just looked into the truck and I observed the bag.
* ⅜ * ⅜ ⅝ ⅜
(at the trial) I observed a brown shaving kit that had a plastic bag sticking above the shaving kit, over the shaving kit.
******
It [the shaving kit] was opened.
******
I walked up, looked in the bag and picked up the bag up. When I looked I could tell it was marihuana in the bag, and I just picked it straight up.
******
Whenever I check out on a vehicle and I see a plastic bag I think about drugs.
******
I could see in the bag. It was close enough to me from the door for me to look and see. After I saw the plastic bag sticking up when I came towards the rear.
******
The bottom of the bag was inside the shaving kit.
******
It [the shaving kit] had other items in the bottom.
It [the plastic bag] was on top.
******

When I looked over into it I could see it.

We conclude that the testimony set forth above establishes that Deputy Jackson observed the contraband in the plastic bag before he removed it from the shaving kit. However, we must address the question of whether Deputy Jackson had to enter the vehicle in order to view the contraband substance.

There is no evidence in the record that Deputy Jackson physically entered the truck to view the marihuana.

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Cite This Page — Counsel Stack

Bluebook (online)
727 S.W.2d 348, 1987 Tex. App. LEXIS 6745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cummings-v-state-texapp-1987.