Flores v. State

824 S.W.2d 704, 1992 WL 13784

Opinions

OPINION

SEERDEN, Justice.

Appellant was convicted on his nolo con-tendere plea of possession of less than twenty-eight ounces of cocaine. The trial court assessed punishment at eight years confinement in the Texas Department of Criminal Justice, Institutional Division. By one point of error, he complains that the trial court erred in overruling his motion to suppress the seizure of the cocaine. We agree with appellant and reverse and remand.

The evidence shows that on July 3, 1990, at about 7:45 a.m., Officer Scheurich, who had been certified as a peace officer for approximately two and one-half years, had been employed by the Ingleside Police Department for approximately three months and had worked for at least two other law enforcement agencies in San Patricio County during the time he was a peace officer, stopped a car for traveling 64 m.p.h. in a 50 m.p.h. zone. Appellant was a passenger in the car and there was no evidence that he displayed any unusual, suspicious or furtive conduct at any time. The officer admitted there was no difficulty in stopping the car and that the driver was cooperative. The officer became suspicious because the driver appeared to be extremely excited and nervous. After checking and determining that there were no outstanding warrants against the driver, the officer obtained the driver’s consent to search the car. He then waited for a “back-up” unit to arrive, which was a standard safety procedure when a search of a car was to be made or when there was more than one individual involved. When the back-up unit arrived, the officer had the passenger get out of the car and go to the side of the road. He noticed a bulge in the passenger’s left front pants pocket that he described as being “two by three” or “three by four” inches in size. He had no idea what the bulge was. He volunteered that in his experience it could have been a wallet, money, or anything. He stated that he had found knives behind a wallet or wad of money. He then conducted a “pat down” of appellant, which included patting the outside of the left front pants pocket. He felt no weapon but felt “a semi-firm square object ... and then I could feel something firmer.” The officer testified this “convinced him there might be a weapon there.” He then put his hand in the pocket and felt what appeared to be rolled up and folded cash, he felt down further and felt “a whole large amount of loose change. I believe that was the firm object I felt. And I also felt what felt like a plastic bag.” He then removed the plastic bag and saw a whitish powdery substance in the bag which he believed to be cocaine. He then arrested and handcuffed appellant.

Searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable, subject to only a few exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The bill of rights of both the United States and Texas Constitutions declares that people shall be secure in their persons and possessions from unreasonable searches or seizures. The Fourth Amendment to the United States Constitution, Article 1, § 9 of the Texas Constitution and Tex.Code Crim. Proc.Ann. art. 38.23(a) provide that no evidence obtained by an officer in violation of the Constitution or laws of the United States or the State of Texas shall be admitted into evidence against the accused on the trial of any criminal case.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), represents one of the exceptions to the requirements of prior judicial approval of searches and seizures. This landmark case discusses in depth the competing interests, rights, and duties of citizens to be secure in their persons and property and of law enforcement personnel to perform their valuable and essential functions in a practical, effective, and safe manner. In reflecting on the importance of the competing interests involved, the Terry Court observed, “no judicial opinion can comprehend the protean variety of the street encounter and we can only judge the facts of the case before us.” Terry, 392 U.S. at 15, 88 S.Ct. at 1876. After its discussion of the problems and interests to be considered, the Court announced the following measuring test:

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger, (citations omitted). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) followed Terry and is considered to be controlling by the State. In our view, the facts of Mimms are substantially different and distinguishable. Mimms was the operator of the vehicle which was stopped for a traffic violation. When he got out of the car, the officer noted a large bulge under Mimms’ sport jacket. Because the officer feared the bulge might be a weapon, he frisked Mimms and discovered a .38 caliber revolver. The Court held that the search was reasonable, observing that “the bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer. In these circumstances, any man of ‘reasonable caution’ would likely have conducted a ‘pat down.’ ”

In this case, the officer patted down appellant, reached into his pocket, and removed its contents. In focusing on the officer’s seizure of the plastic bag from appellant’s pants pocket rather than on the pat down or the officer’s initial intrusion into appellant’s pocket, we conclude that the removal of the bag was impermissible under our constitutional protections.

The only possible justification for the officer’s intrusion into appellant’s pocket was the officer’s safety while he carried out the consensual search of the vehicle. From the initial intrusion, the officer was able to determine that appellant did not possess any item which would have been a threat to his safety. Thus, even if it was reasonable for the officer to invade appellant’s person by exploring the inside of his pants pocket, the officer did not have any right to remove its contents once he discovered that appellant possessed no threatening items.

Furthermore, there was no showing even after the officer felt what was contained in the pocket that appellant was guilty of any offense. The burden was on the State to show that the warrantless seizure of the plastic bag was not unreasonable. Keah v. State, 508 S.W.2d 836 (Tex.Crim.App.1974). We hold that the State failed to meet his burden and sustain appellant’s point of error.

The judgment of the trial court is reversed and the cause remanded to the trial court.

NYE, C.J., dissents with opinion. HINOJOSA, J., not participating.