Harris v. State

713 S.W.2d 773, 1986 Tex. App. LEXIS 7996

• Court: Court of Appeals of Texas
• Decided: July 10, 1986
• Docket: 01-85-00350-CR
• Status: Published

Opinions

OPINION

DUGGAN, Justice.

This is an appeal from a conviction of possession of a controlled substance. Appellant entered a plea of no contest to the offense of possession of less than 28 grams of cocaine after his motion to suppress evidence was overruled. The court found him guilty and, in accordance with a plea bargain agreement, assessed his punishment at five years probation and a $750 fine. He asserts two grounds of error on appeal.

Harris County Sheriff’s Deputy John Denholm testified that at approximately 2 a.m. on February 24, 1985, he saw an automobile with four occupants “spinning its tires at a red light when it came off the light.”

After stopping the vehicle, the deputy observed as he approached the car that all of the occupants were squirming and “moving around in there like they were attempting to hide something.” He asked the driver, David Vurture, to step out, gave him a “pat down” for weapons, and then placed him in the back seat of the patrol car.

The deputy next approached the right front of the vehicle, where he detected an odor of burning marijuana. After talking to the front passenger, Keith Ivey, he placed him under arrest for public intoxication, and seated him in the back seat of the patrol car. At that point the deputy then had Vurture, the driver, step out of the patrol car and take a field sobriety test, which Vurture failed. The deputy testified that Vurture also had a faint odor of alcohol, smelled of marijuana, and kept glancing back toward the automobile.

While he was dealing with Vurture and Ivey, Deputy Denholm could see appellant moving around in the back seat of Vur-ture’s car. He approached the car again and asked appellant to get out of the car, as he had requested Vurture and. Ivey to do. Appellant smelled of marijuana and was obviously intoxicated. Denholm arrested him for public intoxication. His search of appellant disclosed marijuana in appellant’s right pants pocket. The fourth passenger did not appear intoxicated, and was allowed to leave.

Deputy Denholm summoned a wrecker to tow Vurture’s car, conducted an inventory search, and found nothing noteworthy. As he drove his three prisoners to the station, he heard one “whisper that he had stuck the coke up under the back seat.” He did not know who said it, or in which vehicle the speaker presumably had hidden “the coke.” At the station, he looked under the back seat cushion of the patrol car, found nothing, and decided to search Vurture’s vehicle a second time. En route to the storage lot, located some 15 to 20 miles from the Humble jail, he became involved in a high-speed chase of a robbery suspect for around 30 minutes. In all, his search of Vurture’s car was delayed until four hours after the arrest. Upon searching Vurture’s car, he found 3.35 grams of cocaine under the right rear seat cushion, where appellant was sitting at the time of the traffic stop.

In his first ground of error, appellant asserts that the trial court committed reversible error in overruling his motion to suppress because the contraband was found as a result of an illegal stop of the vehicle in which appellant was riding as a passenger.

Deputy Denholm testified without contradiction that he stopped the car only after he observed it “spinning its tires at a red light when it came off the light.” Tex. Rev.Civ.Stat.Ann. art. 6701d, sec. 185(a) (Vernon 1977) provides, in pertinent part:

No person shall drive any vehicle in any ... exhibition of speed or acceleration ..., and no person shall in any manner participate in any such ... exhibition.

The officer’s unchallenged statement showed probable cause to stop the vehicle’s driver for the offense of exhibition of acceleration, proscribed in the quoted portion of art. 6701d, sec. 185(a). Appellant’s first ground of error is overruled.

Appellant urges in his second ground of error that the trial court erred in overruling his motion to suppress because the State failed to establish circumstances justifying a warrantless search of the vehicle in which the contraband was found.

However, under the facts of this case, appellant lacks standing as a mere passenger to challenge the legality of the search.

Appellant, a passenger, has standing to challenge the search of the automobile in which he is riding if the search resulted from an infringement (such as an illegal detention) of the passenger’s Fourth Amendment rights.

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Assuming arguendo that the continued detention of the vehicle and the removal of the occupants from it were illegal under the Fourth Amendment, the relevant question becomes whether the search of [the driver’s] vehicle was come at by exploitation of appellant’s continued detention and removal from the vehicle.

Lewis v. State, 664 S.W.2d 345, 348 (Tex.Crim.App.1984). (Emphasis in original).

Once the automobile was lawfully stopped, Deputy Denholm could have let appellant leave without diminishing his authority to search the car. Accordingly, appellant’s detention was unnecessary for Denholm to perform the search. Even if the search were illegal, which we do not determine, it was not achieved by exploitation of appellant’s detention or removal from the car. Lewis, 349. Appellant thus has no standing to challenge Deputy Den-holm’s search of the automobile at the storage lot. Appellant’s second ground of error is overruled.

The judgment is affirmed.

Justice LEVY, J., dissents.