Howard v. State

599 S.W.2d 597, 1979 Tex. Crim. App. LEXIS 1598

Opinions

OPINION

CLINTON, Judge.

This is an appeal taken from an order revoking probation and assessing punishment by confinement for a term of four years in the Texas Department of Corrections. Regularity of the original and revocation proceedings are not questioned.

The record reflects that on February 7, 1977, appellant pleaded guilty to the charge of delivery of a controlled substance for which punishment was assessed at imprisonment in the Texas Department of Corrections for four years. Imposition of the sentence, however, was suspended and appellant placed on probation under the usual conditions, one of which was that he commit no offense against the laws of the State of Texas or of any other state or of the United States. On June 22, 1978, the State filed an amended motion to revoke probation alleging a violation of that condition of probation in that on or about May 31, 1978, appellant knowingly possessed a controlled substance. Hearing on the motion was seasonably held with the consequential sentence of confinement for a term of four years.

In his first ground of error, the appellant contends that the trial court erred in admitting into evidence, over his timely objection, fruits of an illegal search and seizure. Because we believe that the instant seizure cannot be validated on the strength of the facts before us, we reverse the judgment of the trial court revoking appellant’s probation.

While on routine patrol in Houston’s Fifth Ward on the evening of May 31,1978, Officers R. W. Holland and M. R. Harrison observed the appellant make a left turn without giving the proper turn signal. After noticing the minor traffic offense, the officers turned on their unit’s red lights and pulled the appellant over to the side of the road. As the vehicles were slowing to a stop, Officer Holland noticed the appellant “dip down in his seat towards the steering wheel.”¹ The officers exited their unit and approached the driver’s side of appellant’s vehicle just as the appellant was leaving it. As Officer Harrison escorted the appellant to the back of the latter’s vehicle, Officer Holland shined his flashlight into the appellant’s vehicle and noticed a brown plastic medicine jar containing a large amount of tablets on the floorboard, right in front of the driver’s seat.² Officer Holland retrieved the jar, noted that there were no markings of any sort on the outside of the container, and proceeded to open it. The contents of the container were pinkish tablets bearing the inscription “BI 62.” Officer Holland testified that he formed the opinion that the tablets were a controlled substance, namely Preludin, and, after informing his partner of this, formally placed appellant under arrest for possession of a controlled substance. Detaining the appellant in the back of his patrol unit, Officer Holland conducted a field inventory of appellant’s vehicle and discovered a second container of what he also believed to be Preludin directly underneath the driver’s seat of appellant’s vehicle. The officers then transported the appellant to the central police station where he was subsequently processed and detained.

Houston Police Department chemist Charlotte Huffman testified that she ran a chemical analysis on the tablets taken from appellant’s vehicle by Officers Holland and Harrison. The results of that analysis revealed that the 200 tablets at issue were phenmetrazine hydrochloride, a controlled substance commonly known as Preludin. Ms. Huffman also testified, on cross-examination, that it would be impossible to determine the content of the seized tablets with any degree of certainty merely by looking at them.

Testifying in his own behalf, the appellant stated that on the night in question, he had borrowed a friend’s automobile in order to run an errand for his friend.³ The appellant testified that the officers, upon stopping his vehicle, stated that “this was a routine check,” and that he was not issued a citation for his allegedly improper left turn until he reached the police station. The appellant stated that upon questioning from the officers, he produced a valid Texas driver’s license and told the officers that the vehicle he was driving was borrowed from a friend. The appellant estimated that he had been driving the borrowed vehicle for no more than three or four minutes and had neither seen the tablets seized nor knew of their contents.⁴

In rebuttal and for the limited purpose of impeachment, Officer Holland testified, over the appellant’s objection, that the appellant made an oral incriminatory statement while in custody. According to Officer Holland, the appellant answered, “No, I’m not selling them [the pills]. They’re all for me,⁵ ” when asked if he were.

The trial court then revoked appellant’s probation on the grounds that the appellant committed the felony offense of possession of a controlled substance.

That the officers herein had sufficient probable cause to authorize the initial stop of appellant’s vehicle is without question, given the appellant’s failure to give a proper left turn signal as required by Vernon’s Ann.Civ.St.Art. 6701d, § 68(a).⁶ Beck v. State, 547 S.W.2d 266 (Tex.Cr.App.1976)⁷; Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975), running a stop sign authorized arrest; Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974), running a red light. While this Court continues to revisit the Taylor doctrine⁸ from time to time, see, e. g., Duncantell v. State, 563 S.W.2d 252, 256 (Tex.Cr.App.1978), it has examined each precise fact situation to determine that after the traffic stop each movement made by an officer is factually and legally justified,⁹ for the Supreme Court of the United States has not yet applied the “stop and frisk” principle to a moving motor vehicle. See its most recent treatment of the verity that citizens are not shorn of Fourth Amendment interests “when they step from sidewalks into their automobiles,” Delaware v. Prouse, 440 U.S. 648, at 663, 99 S.Ct. 1391 at 1401, 59 L.Ed.2d 660 (1979). The search in the instant case not being tied to the traffic offense, we must determine step by step its ultimate justification. See Wilson, supra.

Officer Holland directed the beam of his flashlight into the interior of the automobile as appellant was getting out of it and, m response to the request of Officer Harrison, was walking away from it to the back of the car. Officer Harrison, in the best position to know, was asked and answered as follows:

“Q: So, he got out, and you took him to the back of the car?

A: Yes, sir.

* * * * * *

Again, he wasn’t in motion to get back in his car? <©

He could have been. >

But you wouldn’t let him? «©

No, sir.” t>

While Officer Harrison, making a custodial arrest, had the absolute, unqualified right, to then and there search the person of appellant, Gustafson v. Florida, 414 U.S. 260, 266, 94 S.Ct. 488, 492, 38 L.Ed.2d 456 (1973), he did not even frisk him — thereby plainly indicating he had no fear whatsoever for his safety or that of his partner.¹⁰

What, then, is Officer Holland doing at the car shining his flashlight inside it?¹¹

It has been suggested that, even with the traffic offender out and away from his car, a “frisk” of the interior of the vehicle is a permissible protective measure in anticipation that the citizen will be permitted to return to it, free to go on his way. See Wilson v. State, 511 S.W.2d 581, 588 (Tex.Cr.App.1974) (Douglas, J., dissenting) and Beck v. State, 547 S.W.2d 266, 269 (Tex.Cr.App.1976) (Douglas, J., dissenting). Putting aside the absence of articulable facts and circumstances that objectively warrant a belief that precautionary measures are reasonably necessary, the speculative possibility is not even presented by the facts before us for the simple reason that Officer Holland was at the door while Officer Harrison was detaining appellant and before Officer Harrison had decided whether to permit appellant to return to the automobile. Thus the theory is not susceptible to application here.

From Wilson v. State, supra,¹² and Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972), for reasons exhaustively given in the seminal opinion by Justice Mosk for the Supreme Court of California in People v. Superior Court of Yolo County, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (1970), response by an officer to what he conceives to be “body language” of the citizen being stopped is of little moment, especially when movement is “ambiguous conduct which the arresting officers themselves have provoked,” Wong Sun v. U. S., 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). Officer Holland stopped short of asserting that his approach to the vehicle was occasioned by his observation of the “dipping” movement. The State does not contend that his presence near the door was justified by what he had seen. Indeed, the State advances no particular justification whatsoever for his presence.

Obviously, Officer Holland was getting himself in position to “plain view” the interior of the automobile appellant was driving. Consonantly, the State emphasizes through reiteration that closed translucent container was observed and discovered “in plain view.”¹³ Significantly, though, the State does not cite or discuss a single authority on the point in reply to appellant’s reliance on the proposition that is basic to the plain view doctrine — that it must be immediately apparent to the police that they have evidence before them. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Officer Holland testified that given the translucent quality of the container, it was impossible to determine the nature of the tablets therein. It is therefore clear that at the moment that the container came into “plain view” Officer Holland had no basis for believing that its contents were inherently suspicious or that they were in fact contraband. It was only after he seized, opened and examined the container and noticed the inscription on the tablets that he formed the opinion that they were in fact a controlled substance. We believe that this “two-step” approach to the instant seizure cannot be squared with the Supreme Court’s interpretation of the plain view doctrine as enunciated in Coolidge v. New Hampshire, supra, where Justice Stewart noted:

Of course, the extension of the original justification [for the plain view exception] is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. 403 U.S. at 466, 91 S.Ct. at 2038.

Following the teachings of Coolidge v. New Hampshire, supra, the holding of this Court in Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976) seems to be dispositive: “drugs are not inherently contraband, stolen goods or objects dangerous in themselves.” Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973) sheds more than a minimal amount of light on this subject. In Nicholas the appellant was arrested in his living room and after he had been read his constitutional rights, one of the arresting officers noticed some photographic negatives on the bar and on the kitchen stove. The negatives were seized and later led to appellant’s subsequent arrest and conviction for rape. In reversing the appellant’s conviction, this Court held that the seizure of the negatives could not be upheld under the ambit of the plain view exception because one officer testified that he could not determine the contents of the negatives until after he had held them up to the light. As Judge (then Commissioner) Tom Davis observed:

In the instant case, the officers had, prior to examining the negatives, neither knowledge nor mere suspicion of an offense related to the film. What was in “plain view” in the apartment was not evidence of any crime or criminal behavior. It was not contraband or fruits or instrumentalities of any offense about which they knew or suspected upon entering the apartment. The officers did not inadvertently come across a piece of evidence incriminating the accused. The negatives were not incriminating until after the officers had examined them. Thus, it was not “immediately apparent” to the officers that they had evidence before them. (Citation and footnotes omitted.)

We think it clear that the instant case turns on these holdings and, accordingly, we hold that the instant seizure did not fall within the parameters of the plain view exception. Accord: DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977) and Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976).

Having determined that the initial seizure of the container was unreasonable and that the fruits thereof should have been suppressed, we pause only to note that the second container of tablets must similarly be suppressed as being derivative of the initial search and therefore “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

For the reason pointed out, we find that the trial court abused its discretion in revoking appellant’s probation.

The judgment is reversed and the cause remanded.

1 . Officer Harrison, the driver of the patrol unit, testified that as the vehicles were slowing to a halt, he noticed the appellant “make some sort of bending action.” We note that in addition to this seemingly contradictory testimony regarding the appellant’s purported “furtive gesture,” that the officers’ offense report contained no mention of this or any other movement on appellant’s part. (All emphasis is supplied throughout by the writer unless indicated otherwise.)

2 . On cross-examination, Officer Holland admitted that the bottle in question was translucent and that it was impossible to determine anything other than that the bottle contained some sort of tablets.

3 . Defendant’s Exhibit One, the certificate of title of the vehicle appellant was driving the night of his arrest, showed the vehicle to be owned by one Willie Earl Gray, a friend of the appellant.

4 . The appellant further testified that he remembered making a proper left turn and distinctly recalled seeing the patrol unit following him for two or three blocks before they turned on their emergency lights.

5 . In his final ground of error, the appellant contends that the admission of this statement was reversible error. Given our disposition of appellant’s first ground of error, we need not decide whether an oral statement in the nature of a confession made while in custody that is not taken under V.A.C.C.P., Art. 38.22, § 3(a), cf. Jimmerson v. State, 561 S.W.2d 5 (Tex.Cr.App.1978) and see Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975), is nevertheless admissible for impeachment under § 5.

6 .Vernon’s Ann.Civ.St. Art. 6701d, § 68(a) provides in pertinent part:

“(a) No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Section 65, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with safety. Except under conditions set out in Section 24(a) no person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided.”

7 . Noting a legislative change in § 68(a), note 6, supra, since the decisions in Willett v. State, 454 S.W.2d 398 (Tex.Cr.App.1970) and Hall v. State, 488 S.W.2d 788 (Tex.Cr.App.1973), the Court found that "turn signals are now mandatory, regardless of the traffic conditions at the time of the turn” and accordingly concluded that since Beck had violated that law in making his turn “the officers were legally justified in effecting his arrest,” 547 S.W.2d at 267.

8 . From Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.1967): “If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge, he may arrest for that offense and incident thereto conduct an additional search for physical evidence.” Often overlooked is that the Taylor doctrine embraces probable cause and exigent circumstances; it does not invoke the exceptionable search for weapons incident to arrest. The distinction was clearly made in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

9 . As in Beck, Tores and Wilson, supra.

10 . In his testimony Officer Holland also conceded that he had no fear for his safety for appellant “was nowhere near me.”

11 . In Pruitt v. State, 389 S.W.2d 475, 476 (Tex.Cr.App.1965) the Court thought that “the search actually started when the officer shined or flashed the flashlight in the back of the car” and held further acts of the officer in making a search of a closed box — it turned out to be a case of wine — he had thus been able to see in the back of the motor vehicle, that he had stopped to make an operator’s license check, was invalid. Onofre v. State, 474 S.W.2d 699, 701 (Tex.Cr.App.1972) overruled Pruitt “to the extent” it conflicted with “the holding in this case.” In Onofre, during early morning hours, the officer observed appellant and another man in a parked automobile behind a lounge that was closed and unlighted, and as he approached them Onofre “dumped something under the seat” or appeared to do so, and he and the other occupant got out of the automobile, leaving a door open. Another officer appeared on the scene and was told by the first one that “they stuck something under the seat” and to be “cautious.” Shining his light into the automobile he saw on the front seat some cigarette papers and a marihuana cigarette, some of the contents of which had spilled out onto the seat. The entire interior was thereafter searched. The Onofre court found that “the officers here were discharging a ‘legitimate investigative function’ when they approached the appellant’s automobile” and held that the cigarette and seeds “were in ‘plain view’ and as such were not the products of an illegal search,” 474 S.W.2d at 701. The court then noted “further” the expression of the Fifth Circuit to the effect that in a plain view situation the use of visual aid such as a flashlight does not change “the character of a visual encounter by a police officer,” and cited other authorities in accord, including Legall v. State, 463 S.W.2d 731 (Tex.Cr.App.1971) and Abbott v. State, 472 S.W.2d 142 (Tex.Cr.App.1971). We observe that in every case the viewing officer was acting out of an articulated concern for personal safety, for humanitarian purposes or with probable cause. The true rule is, as recently stated by the Fifth Circuit in U. S. v. Arredondo-Hernandez, 574 F.2d 1312 (5 Cir. 1978), that the use of a flashlight by an officer to aid his vision does not transform “an otherwise justifiably plain view observation into an illegal search.” Which brings us back to the question posed in the text above.

12 . Close to our fact situation, Wilson finds and concludes:

“In the instant case, the officer observed appellant making a movement before his vehicle was brought to a stop for a traffic violation. This observation was neither coupled with reliable information nor suspicious circumstances which would give rise to probable cause to search of (sic) the vehicle. We conclude that the arresting officer’s observations, standing alone, did not constitute probable cause to conduct a warrantless search of appellant’s car.”

13 . What Officer Holland and the State overlook is the first limitation on the doctrine: “(T)hat plain view alone is never enough to justify the warrantless seizure of evidence”, Coolidge v. New Hampshire, 403 U.S. at 468, 91 S.Ct. at 2039 (emphasis in original).