Maldonado v. State

528 S.W.2d 234, 1975 Tex. Crim. App. LEXIS 1112

• Court: Court of Criminal Appeals of Texas
• Decided: October 15, 1975
• Docket: 49286
• Status: Published

Opinions

OPINION

ODOM, Judge.

The offense was possession of more than four ounces of marihuana; the punishment, confinement for seven years and a fine of five thousand dollars.

Appellant’s sole ground of error is that the trial court erred in overruling his motion to suppress and admitting marihuana into evidence at trial. He asserts that a warrantless search of the vehicle containing the marihuana violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. The State in its brief avers only that appellant has no standing to contest the legality of the search.

The facts relevant to a proper disposition of this case are lengthy and somewhat complicated, involving two arrests and several vehicle searches. On August 31, 1973, Highway Patrolmen Franklin W. Robinson and Stanley Oldham joined a road block on Interstate 35 about three miles south of New Braunfels. Robinson and Oldham arrived at the road block at approximately 2:50 a. m. The road block had been established by other officers to attempt to apprehend some prisoners who had escaped from a jail in Hondo. Every northbound vehicle was stopped.

Appellant arrived on the scene at 3:35 a. m. He was alone and driving a 1968 Ford truck with a blue cab and two green sideboards. The back of the truck was open.

Robinson asked to see appellant’s driver’s license. Appellant responded that he had a valid license but had left it at home. He could produce no identification, but gave his name and address as Raul Maldonado of 1122 North 19½ Street, McAllen, Texas. In answer to further questions, appellant stated that he did not have the registration receipt for the truck, but the owner was a close friend, “Jose,” whose last name he could not remember. Appellant gave the officer the vital statistics that might aid in determining whether he held a valid driver’s license. While the registration and license checks were made by radio, Robinson again asked appellant who owned the truck. This time the response was “Pedro,” but again he could not remember the last name. The return on the registration check showed the owner to be Jose Garcia of Mission. Because of the lateness of the hour and the combination of name and birth date, it could not be determined whether appellant held a valid driver’s license.

When asked about his destination, appellant said that he was traveling to San Antonio to pick up some furniture at a location near the Alamo, but could give no further details. He explained his presence north of San Antonio by stating that he was first going to visit some relatives in Austin, but he could not furnish any name, address, or telephone number.

Appellant was arrested for operating a motor vehicle without a valid driver’s license and failure to display vehicle registration receipts. The officers frisked him and inspected the exterior of the truck. The back of the truck appeared to be empty. The front license plate was wired on and bore a rusted bolt mark, indicating that at one time the plate had been bolted to some vehicle.

Appellant was not taken to the Comal County-jail until 4:15 a. m. The arresting officer at the pre-trial hearing testified that during all this time appellant’s demeanor and conduct were wholly unsuspicious. He did not appear to be under the influence of any intoxicant, stood or sat quietly by the side of the road while waiting to be taken to jail, and generally “was co-operating” in every way. The interior of the truck was not searched, the officer testified, because no police officer present felt that the appellant posed any danger.

At 4:30 a. m. the truck was towed to M.G.’s Garage in New Braunfels, which was customarily employed by the police for general storage of vehicles. At 6:45 a. m. the road block was discontinued.

At 7:00 a. m. Robinson telephoned Bobby G. Prince, a criminal investigator in the Motor Vehicle Theft Division of the Texas Department of Public Safety. Robinson expressed his suspicion that the truck was stolen based upon the details recited above: appellant’s lack of possession of a driver’s license or truck registration receipt, lack of information about the owner, unsatisfactory explanation of his destination and route, and the rusted bolt mark on the front license plate.

At 8:15 a. m. Prince began his investigation by going to M.G.’s Garage. His investigation consisted of checking the vehicle identification number on the door, noticing that there was fresh paint under the identification plate, and determining shortly aft-erwards by radio that the identification number corresponded to the license plate number, both of which had been issued to the truck. At midmorning he learned that there was no stolen report on the truck. If Prince had also checked the vehicle identification number on the frame of the truck and the confidential police number located elsewhere on the truck, he would have discovered, as ascertained much later, that both these numbers also corresponded to the others.

During this investigation, Prince drove to the Comal County Courthouse. Before his arrival, appellant pled guilty to the two offenses with which he was charged, paid his fine, and walked out of the courtroom, apparently a free man once again. He proceeded to walk toward a door in the courthouse that led to the outside parking lot. At this point, appellant was not in custody or under arrest for any charge.

Before appellant reached the door, Prince entered and stopped him. Prince asked appellant if he was Raul Maldonado. Appellant answered that he was, whereupon Prince stated that he wished to talk to him.

During this conversation, appellant’s memory and lapses of memory substantially corresponded to those of the early morning, except that he now identified the owner of the truck as “Pepi.”

For the next three hours, or between 9:00 a. m. and noon, Prince continued to talk to appellant in a room in the Sheriff’s office at the courthouse. Although appellant was apparently left unattended at times for this three hour period, he was nevertheless restrained of his liberty. Prince had already once restrained appellant from leaving the courthouse. If Prince had observed him trying to leave again, it is reasonable to infer that he would have stopped him again.

Appellant was “under arrest” at 9:00 a. m. or very shortly thereafter. “It is not the actual physical taking into custody that will constitute an arrest. An arrest is complete whenever a person’s liberty of movement is restricted or restrained.” Hardinge v. State, Tex.Cr.App., 500 S.W.2d 870; Vernon’s Ann.C.C.P., Article 15.22.

Appellant was returned to jail at noon.

About 2:00 p.m., with appellant still in custody, Prince learned from South Texas police authorities that they had no knowledge of Raul Maldonado, that he had no drug arrests, that the registered owner of the truck was in Michigan, and that “in the past trucks of this nature [had been] used to transport narcotics, in different methods.”¹

At about 3:00 p.m. Prince returned to M.G.’s Garage to examine the truck once more. He was accompanied by Sergeant B. L. Hierholzer of the Narcotics Service, Department of Public Safety, San Antonio, and Captain John Wood of the Texas Rangers. The officers first checked the identification number on the frame of the truck, which matched the door identification and license plate numbers.

Then the confidential or “secondary YIN number” on the truck was finally checked, and it, too, matched the door and engine numbers as well as corresponding to the license plate number.

Finally, Prince noticed that the inside of the truck appeared to have a shorter depth than the outside. Upon climbing into the back of the truck, the officers noticed a piece of plywood nailed onto the floor. The officers extracted the nails and discovered a false compartment in the truck containing 650 wrapped packages of marihuana.

The contention that appellant has no standing to contest the legality of the search is without merit.

In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the Supreme Court of the United States enumerated three bases upon which a defendant might establish that he is a “person aggrieved” by an unlawful search and seizure: (1) his proprietary or possessory interest in the thing searched or seized; (2) his legitimate presence on the premises searched; or (3)his having been charged with an offense an essential element of which is possession of the seized evidence. The last basis is commonly referred to as the “automatic standing” doctrine.

Appellant has standing under the first and last of these bases. The evidence does not establish that the appellant did not have a proprietary or possessory interest in the truck at the time of the search. The State correctly points out that the evidence also does not establish the contrary.²

In Clemons v. State, Tex.Cr.App., 501 S.W.2d 92, 93, we quoted approvingly from Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) and Jones, supra:

“[I]t is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation is disputed that he establish, that he himself was the victim of an invasion of privacy.” (Emphasis added.)

Appellant’s standing was never contested in the proceedings below. The State raises the issue for the first time in its brief upon appeal. The State should not be heard to complain of an incomplete record when its failure to dispute appellant’s standing is responsible for the deficiency.

Moreover, appellant has automatic standing because he was charged with possession of marihuana. The holding of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), was that a defendant’s testimony at a pre-trial hearing in support of standing is inadmissible at the trial on guilt or innocence. This holding has in many cases reduced the need for the automatic standing doctrine established in Jones, supra. Simmons, itself, however, reaffirmed the doctrine, 390 U.S. at 390, 88 S.Ct. at 974. To this day, as the Court of Appeals for the Fifth Circuit has recently said, “[T]he rule is still the law.” United States v. Hunt, 505 F.2d 931, 939 n. 9 (5 Cir. 1974). See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973).

Jones, supra, has long been the law in Texas. Henley v. State, Tex.Cr.App., 387 S.W.2d 877 (1964); Vines v. State, Tex.Cr.App., 397 S.W.2d 868 (1966); Holcomb v. State, Tex.Cr.App., 484 S.W.2d 929 (1972), cert. denied, 410 U.S. 940, 93 S.Ct. 1404, 35 L.Ed.2d 606 (1973). In the recent case of Hutchinson v. State, Tex.Cr.App., 509 S.W.2d 598, we considered a defendant’s claim that he had automatic standing. The claim was rejected because the appellant there was not charged with a possessory offense. Here, where appellant has been charged with such an offense, he has automatic standing.

We therefore now turn to the issue of the lawfulness of the 3:00 p.m. search. To hold it valid we must make three findings:

(1) That the search was supported by probable cause, the threshold requirement of any valid search.

(2) That the failure to obtain a search warrant was excusable because the search was incident to a lawful arrest or was justified by some other exigent circumstance furnishing an exception to the warrant requirement.

(3) That the scope of the search was consistent with its purpose.

The inability to make any one of these findings must invalidate the entire search, and mandate the further conclusion that the trial judge erred in overruling appellant’s pre-trial motion to suppress the marihuana. In spite of our doubts as to the existence of probable cause,³ we decline to invalidate the search on that basis. Rather, we hold that the trial judge should have suppressed the marihuana because the police failed to obtain a warrant and because, even if the failure to obtain a warrant was excusable, the scope of the search exceeded any permissible purpose for which it may have been initiated.

The State’s failure to obtain a search warrant cannot be excused. We begin with the proposition that “[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Hence, the State must show incidence of the search to the arrest or the existence of “exigent circumstances” within an established exception to the warrant requirement to justify the failure to obtain a warrant. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970).

The search was not incident to either of appellant’s arrests. First, at the time of the search appellant had discharged his obligation for the traffic offenses, which in any case could not have conferred the right to conduct a warrantless general search.

Second, appellant’s second arrest occurred about 9:00 a.m. at the Comal County Courthouse. The third vehicle search was conducted at 3:00 p.m. at M.G.’s Garage. “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964).⁴

The truck while in police custody could not be subject to the moving vehicle exception of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

On its face, Chambers v. Maroney, supra, might be seen as justifying the search. In that case some men had committed a robbery at a gas station. On the basis of a detailed description of the number of men, the clothing of two of them, and the automobile used in the robbery, police stopped the petitioner and three other men. All were arrested and the car was taken to the police station where a warrantless search revealed guns used and money taken in the robbery. The Court rejected the petitioner’s contention that the failure to obtain a warrant invalidated the search:

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances ... In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.”

Chambers v. Maroney, supra, 399 U.S. at 51, 52, 90 S.Ct. at 1981, 1982.

Here, however, the vehicle was already immobilized and appellant had been in custody for hours. The vehicle was under guard in a fenced yard used by the police for storage of vehicles in their custody and no one could tamper with it in any way. Its continued immobilization until a search warrant could be obtained would .have been no greater intrusion upon the appellant than that already imposed by virtue of his incarceration. Chambers, supra, was not decided in this context, but, rather, in a context where the immobilization of a vehicle while a search warrant was obtained would have itself constituted an intrusion.

Because the accused was in custody at the time of the search, we find the facts and rationale of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Stoddard v. State, Tex.Cr.App., 475 S.W.2d 744 applicable to the instant case. In Coolidge, supra, at the time petitioner was arrested at his home an automobile in his driveway was seized, taken to the police station, and searched without a valid warrant. The court stated:

“Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station. ... On its face, Chambers purports to deal only with situations in which the police may legitimately make a warrantless search under Carroll v. United States . . .”

Coolidge v. New Hampshire, supra, 403 U.S. at 463 &n. 20, 91 S.Ct. at 2036 &n. 20 (emphasis in original). Similarly, the State here cannot rely on Carroll, supra, because the truck was beyond appellant’s control at the time of his second arrest. If Carroll is inapplicable, so is Chambers. On the contrary, here, as in Coolidge, the warrantless search was planned. Coolidge, supra, 403 U.S. at 471 n. 27, 91 S.Ct. at 2041 n. 27. Where the search is planned, the thing searched is beyond the effective reach of the accused, and the obtaining of a warrant involves no greater intrusion upon the accused than that already imposed upon him, there is no exigent circumstance justifying a warrantless search. As Investigator Prince himself testified at the pre-trial hearing:

“Q. All right. Was the Justice of the Peace office at the Comal County courthouse still open at that time [3:00 p.m.]?

“A. Yes, sir.

“Q. Did you come down and attempt to get a search warrant?

“A. No, sir, I did not.

“Q. To your knowledge did anyone attempt to come down and get a search warrant to search the truck?

“A. No, sir, not to my knowledge.

“Q. Was there any legitimate reason why one could not have been procured?

“A. No, sir.”

We find that no warrantless search was authorized under any exception to the warrant requirement.

There is yet another reason why the search must fail. The scope of a search is limited to the purpose which made its initiation permissible. Coolidge v. New Hampshire, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. The purpose of this search was to look for evidence that the truck was stolen. The scope of such a search might reasonably have been expected to include examination of all identification numbers and of any area of the truck where evidence that someone else had owned or driven the truck might reasonably be expected to be found. Hence, a search of the glove compartment, floorboards, and rear areas might, for example, turn up some document or item bearing the true owner’s name. A search of the rear area of the truck might uncover some object belonging to the owner, perhaps with his name or address thereon. But once the police began ripping up the floorboards of the rear area of the truck, the permissible scope of a search for this purpose was exceeded. It could not reasonably be expected that evidence of theft might be uncovered by these means. Rather, a variety of suspicious circumstances, some justified and some ill-founded precipitated an “exploratory search,” unsupported by independent probable cause to believe contraband might be discovered, and beyond the scope of any search that was supported by probable cause. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739.

We find the search and seizure were in violation of appellant’s constitutional rights, and the fruits should have been excluded from evidence.

The judgment is reversed and the cause remanded.

1 . We note that none of this information could have contributed in the slightest to probable cause to believe either that appellant had committed any offense whatsoever or that the truck was stolen.

2 . The record contains only hearsay testimony by several officers that appellant continually claimed that he had borrowed the truck from a friend. If true, this fact would suffice to give appellant a possessory interest in the truck and, thus, standing.

3 . It should be noted that the search was not supported by probable cause to believe that the truck contained marihuana or any other contraband. Prince testified that he did not “see or observe or smell anything that gave . reason to believe that the truck was transporting marihuana or any form of narcotics.” Prince knew that appellant had no record of any drug arrest. And he testified that the appellant did nothing at any time to furnish a reasonable belief that he was in possession or had been in recent possession of any amount of drugs. Prince had only the circumstance of an irregularity in the back bed of the truck. The facts would hardly warrant a man of reasonable prudence in concluding that contraband was contained therein.

The only probable cause that may have existed, and which we assume, was probable cause to believe that the truck was a stolen vehicle.

4 . Hence, appellant’s second arrest, even if unlawful, could not mandate a reversal of his conviction. The reason is that neither testimony of this arrest nor any evidence obtained as a result of it was necessary to the judge’s determination that appellant was guilty of possession of marihuana. Because the inculpatory evidence was not seized in a search incident to the arrest, illegality of the arrest would not have tainted that evidence. Stiggers v. State, Tex.Cr.App., 506 S.W.2d 609; Gross v. State, Tex.Cr.App., 493 S.W.2d 791; Frazier v. State, Tex.Cr.App., 481 S.W.2d 857; Garcia v. State, Tex.Cr.App., 472 S.W.2d 784.

Moreover, such cases as Borner v. State, Tex.Cr.App., 521 S.W.2d 852; Gomez v. State, Tex.Cr.App., 470 S.W.2d 871, and Taylor v. State, Tex.Cr.App., 421 S.W.2d 403, cert. denied, 393 U.S. 916, 89 S.Ct. 241, 21 L.Ed.2d 201 (1968), are not involved. The relevant inquiry in such cases was whether the removal of an automobile and its subsequent search were part of a series of events constituting one continuous happening. That test in effect inquires only whether reasonable suspicions have gradually accumulated so as to constitute probable cause to arrest and render permissible as incident thereto a search of the arrestee’s vehicle. The test has no application where, as in the instant case, the search is not incident either to the initial arrest or to the subsequent arrest for a more serious offense. The test in any case can furnish no broader exception to the warrant requirement than that afforded by any search incident to a lawful arrest under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).