Giacona v. State

298 S.W.2d 587, 164 Tex. Crim. 325, 1957 Tex. Crim. App. LEXIS 2103

Opinions

DAVIDSON, Judge.

The offense is the possession of marijuana; the punishment, ten years in the penitentiary.

A member of the narcotics division of the police department of the city of Houston had information that Pete Giacona was in a certain automobile at a “drive-inn” lot in the city of Houston and that he had two cans of marijuana in his possession. Accompanied by other peace officers, the narcotics agent went to the drive-in lot in search of the car which had been described to him. No such car was there, at that time. The officers waited, and later saw Pete Giacona drive into the lot. His wife, the appellant, was with him in the car. The officer who was in charge signalled over radio to other officers and all converged upon the car. Both Pete Giacona and appellant were arrested and taken from the car.

Two cans of marijuana were found upon the person of Pete Giacona.

The arresting officer saw a small brown paper bag in appellant’s hand. Upon her refusal to surrender the bag to the officer, it was forcibly taken from her. In the bag was found a “flowering top and bud of a marijuana plant.”

It is for the possession of this content of the bag that appellant stands here convicted.

The legality of appellant’s arrest and the taking of the bag from her person is challenged.

The right to arrest appellant and to take the brown sack from her depends upon her acts and conduct.

The facts do not show that she was engaged in any act which would authorize her arrest by the officers without a warrant. Art. 212, C.C.P. The arrest was therefore illegal, and the evidence obtained as a result of that illegal arrest was not admissible. Thomas v. State, 163 Texas Cr. Rep. 68, 288 S.W. 2d 791; Palacio v. State, 162 Texas Cr. Rep. 194, 283 S.W. 2d 765.

We are not here concerned with the question as to whether probable cause existed to warrant the search of the automobile of Pete Giacona, because no marijuana was found as a result of any search of the car. So, the right to search the automobile is not before us.

The right to arrest appellant without a warrant could not be justified, because of any right to search the automobile under that provision of Art. 725b, Vernon’s P.C., which authorizes searches of vehicles for narcotic drugs.

The other provisions of said Art. 725b, Vernon’s P.C., cannot be utilized to authorize the arrest of the appellant, for to do so would render the statute void in that the arrest of a person upon pure supposition or belief is in violation of both state and federal constitutional guarantees of freedom from unreasonable arrest.

An arrest without warrant cannot be predicated upon mere suspicion or belief. Gill v. State, 134 Texas Cr. Rep. 363, 115 S.W. 2d 923; Burton v. State, 152 Texas Cr. Rep. 444, 215 S.W. 2d 180; Moore v. State, 107 Texas Cr. Rep. 24, 294 S.W. 550.

The right to arrest without warrant is conferred and controlled in this state only by statute, which must be construed in subordination to the constitutional guarantees against unreasonable seizure. Lacy v. State, 7 Texas App. 403; Harless v. State, 53 Texas Cr. Rep. 319, 109 S.W. 934; Mitchell v. State, 140 Texas Cr. Rep. 260, 144 S.W. 2d 551; and Art. 212, C.C.P.

If Art. 725b, Vernon’s P.C., be construed as authorizing an arrest without warrant upon mere suspicion or belief, such would require that the cases cited be overruled and the rule announced thereby be abolished.

Moreover, it must be remembered that the right to arrest without warrant must be determined by the facts existing at the time of the arrest, and facts found as a result of the arrest cannot be utilized to authorize the arrest in the first instance. Tarwater v. State, 160 Texas Cr. Rep. 59, 267 S.W. 2d 410, 160 Texas Cr. Rep. 59; Stewart, et al, v. State, 244 S.W. 2d 688; Timberlake v. State, 150 Texas Cr. Rep. 375, 201 S.W. 2d 647.

Art. 725b, Vernon’s P.C., does not authorize appellant’s arrest without warrant and proof of the contents of the sack forcibly taken from her in the unlawful arrest.

Because of the receipt of the inadmissible evidence, the judgment is reversed and the cause is remanded.