Gill v. State

625 S.W.2d 307, 1981 Tex. Crim. App. LEXIS 1283

• Court: Court of Criminal Appeals of Texas
• Decided: December 23, 1981
• Docket: 62833
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This appeal presents a question about the propriety of officers’ breaking into the locked trunk of an automobile after finding a small quantity of suspected contraband in the passenger compartment. The appellant moved to suppress the fruit of such a search, and the trial court overruled his motion. We agree that that was error. We shall reverse the judgment, which was based on verdicts of a jury that found the appellant guilty of possessing hydromor-phone and that assessed a punishment of 5 years’ confinement and a $5,000 fine.

The events which preceded the search of the trunk may be stated briefly, for the case does not turn on the propriety of those events.¹ A police officer saw the appellant sitting alone in a parked car, holding a syringe. The officer spoke to the appellant, made a radio call for assistance, and asked the appellant for identification. The appellant produced an evidently altered driver’s license. The appellant tried to get back into the car, but the officers restrained him and searched the interior of the car. They seized (besides the appellant) an altered driver’s license, a syringe which contained a liquid that was not identified, a marihuana cigarette, a towel, a bottle of rubbing alcohol, a spoon, some cotton, and a briefcase which contained various papers. None of these items was the basis of the conviction now before us. We shall assume (without deciding) that the officers acted properly in making those seizures, and we turn to the crucial search of the trunk.

The officers asked the appellant for a key to the trunk, but he did not provide one. The officers called a wrecker. (The police department had no wrecker or automobile pound; it got those services from private businesses.) They asked the wrecker driver to remove the back seat of the car so that they could search the trunk. There they found a bottle of hydromorphone tablets which were the basis of this prosecution.

Automobiles are “effects” (U.S. Constitution, Amendment IV) and “possessions” (Texas Constitution, Article 1, Section 9) in which the people have a right to be secure against unreasonable searches and seizures. E.g., Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743 (1927). The requirement of a search warrant may be excused in the case of a moving automobile. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). “Carroll has been followed in a line of subsequent cases, but the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.” Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-2538, 37 L.Ed.2d 596 (1973) (footnotes omitted).

The issue of probable cause for the search of the trunk comprises two questions: Does the existence of probable cause to search the interior of the car necessarily mean that there was probable cause to search the trunk? If not, was there nonetheless probable cause to search the trunk? The answer to both questions is, No.

“[A] search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358, 51 S.Ct. 153, 157-158, 75 L.Ed. 374 (1931); see United States v. Di Re, 332 U.S. 581, 586-587, 68 S.Ct. 222, 224-225, 92 L.Ed. 210 (1948). The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, [18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368, 84 S.Ct. 881, 884, 11 L.Ed.2d 777 (1964); Agnello v. United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925).”

Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). For example, if officers have probable cause to search a vehicle for evidence (such as identification numbers) that it was stolen, their search becomes improper when they begin to rip up the floorboards. Maldonado v. State, 528 S.W.2d 234, 241 (Tex.Cr.App.1975). Probable cause that was sufficient for the former search did not justify the latter. It is the later search of the trunk which must concern us.

Probable cause to search part of a vehicle is not inevitably probable cause to search the entire vehicle. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); W. LaFave, 2 Search & Seizure section 7.2(d) (1978). The reason is that the search and seizure amendments of our constitutions protect people’s rights to privacy, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and there are different expectations of privacy in different parts of an automobile. In the exterior of an automobile there is no reasonable expectation of privacy. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion). In the interior of an automobile there is an expectation of privacy which is somewhat lower than the expectation of privacy in a home or office, “because [an automobile’s] function is transportation and it seldom serves as one’s residence or as the repository of personal effects. ... It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, supra, at 590, 94 S.Ct. at 2469, quoted in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), and in South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976).

In the trunk of an automobile there is a still greater expectation of privacy. Unlike the exterior or the interior of an automobile, the trunk is not in plain view. It does serve as the repository of personal effects. It is not normally involved in the “pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements” which apply to automobiles; South Dakota v. Opperman, supra, at 368, 96 S.Ct. at 3096. One indication of the different expectation of privacy in the trunk of an automobile is the fact, which is common knowledge, that the trunks of most automobiles have a lock and key different from the lock and key of the interior; access to one may be given separately from access to the other. The Supreme Court has recognized that the operator of an automobile has a different expectation of privacy in the trunk of the automobile than mere passengers have in the interior. Rakas v. Illinois, 439 U.S. 128, 148-149, 99 S.Ct. 421, 433-434, 58 L.Ed.2d 387 (1978).²

Therefore we hold that the scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it. The existence of probable cause to search the interior of an automobile is not necessarily sufficient to justify the search of the trunk. A search based on probable cause which reasonably tends to support only the inference that contraband or evidence will be found in the passenger compartment is of intolerable intensity and scope if it is expanded to include a closed trunk. Such an expansion must be justified by specific, ar-ticulable facts that give probable cause to believe that contraband or evidence is concealed in the trunk. Wimberly v. Superior Court, 16 Cal.3d 557, 547 P.2d 417, 128 Cal. Rptr. 641 (1976). Accord, State v. Patino, 163 N.J.Super. 116, 394 A.2d 365 (App.Div.1978); Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980). See Commonwealth v. White, 371 N.E.2d 777 (Mass. 1977), aff’d, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978).

This holding comports with the traditional “automobile exception” cases such as Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In those eases the searching officers had probable cause to believe that contraband or evidence would be concealed throughout the car. (This is often, but not always, the case. W. La-Fave, 2 Search & Seizure section 7.2(d) (1978).) Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), is not contrary to our holding; the officers there had probable cause to believe that the gun which they were seeking was in the trunk. The same may be said of such cases as Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), where the strong odor of marihuana coming from the back part of the car gave the officers probable cause to believe that there was marihuana in the trunk.

Recognizing that probable cause to search the interior is not necessarily sufficient to justify a search of the trunk, we turn to the question of whether there was probable cause to search the trunk. Putting the worst construction on the facts known to the officers in this case, a reasonable person could have concluded that the appellant was in possession of an altered driver’s license and a marihuana cigarette, and that he was about to “shoot up” with illegally possessed drugs. These facts do not establish probable cause to believe that contraband or evidence was in the trunk. The finding of a small quantity of suspected contraband in the passenger compartment of an automobile does not alone amount to probable cause to search the trunk. Wimberly v. Superior Court, 16 Cal.2d 557, 547 P.2d 417, 128 Cal.Rptr. 641 (1976); People v. Gregg, 43 Cal.App.3d 137, 117 Cal.Rptr. 496 (1974); State v. Patino, 163 N.J.Super. 116, 394 A.2d 365 (App.Div. 1978); State v. Murray, 151 N.J.Super. 300, 376 A.2d 1255 (App.Div.1977); State v. Astalos, 160 N.J.Super. 407, 309 A.2d 144 (Law Div.1978); Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980). The search of the trunk was unreasonable; it violated the Fourth Amendment of the United States Constitution and Article 1, Section 9, of the Texas Constitution.

It was error to admit evidence obtained by the search of the trunk.

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. * * * ”

V.A.C.C.P., Art. 38.23.

The record in this case leaves one with the impression that the officer assumed a right to search the entire automobile as an incident to the arrest of the appellant. The Supreme Court has explained at length that an arrest does not alone justify the search of the arrestee’s automobile. See part II-D of Coolidge v. New Hampshire, 403 U.S. 443, 473-484, 91 S.Ct. 2022, 2042-2047, 29 L.Ed.2d 564 (1971). While it is disappointing that the officer did not follow the correct rule, it is truly remarkable that the State does not recognize it either. In its brief the State argues that the search of the entire automobile was proper as an incident to the arrest. To support this proposition it audaciously cites “Carroll v. United States, 267 U.S. [132] at 158, 45 S.Ct. [280] at 287, 69 L.Ed. 543 [(1925)].” Turning to the cited page we find, of course, exactly the opposite proposition: “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U.S. at 158-159, 45 S.Ct. at 287.

The State also suggests offhandedly, “In any event, an inventory of the vehicle was justified under the circumstances.” But there was no proof that an inventory of the car was in fact conducted. The burden is on the State to prove a proper inventory. Also, it is far from clear that an inventory of a locked trunk would be proper. See South Dakota v. Opperman, 428 U.S. 364, 376 nn. 6 & 7, 96 S.Ct. 3092, 3101, 3102 nn. 6 & 7, 49 L.Ed.2d 1000 (1976) (Powell, J., concurring) (trunk was not searched).

The search of the trunk was illegal, and the evidence seized should have been suppressed.

The judgment is reversed and the cause is remanded.

1 . They are described in detail in the concurring opinion.

2 . “[The petitioners] made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” (Emphasis supplied.)