Russell v. State

644 S.W.2d 554

Opinions

WHITHAM, Justice.

•Appellant appeals from a conviction for possessing cocaine. The court assessed punishment at three years in the Texas Department of Corrections. We affirm.

The sole issue relates to the validity of the seizure of the cocaine. Appellant contends that the trial court erred in denying his motion to suppress evidence and in admitting the cocaine into evidence. Dallas police officer Bulin stopped appellant’s vehicle for traffic offenses. Bulin approached the vehicle and detected a strong odor of marijuana coming from the vehicle’s interi- or. Bulin arrested appellant for driving under the influence of drugs. He then began a search of the vehicle and found in the ashtray a partially burned marijuana cigarette. Bulin then seized a canvas bag from the front seat of the vehicle and transported it to his squad car. His search of the canvas bag yielded a “small, brown opaque, closed bottle.” He seized the bottle, removed it from the canvas bag, opened it, and observed therein a white powder. Offi cer Bulin did not have any warrant authorizing the foregoing activity. A subsequent analysis of the bottle’s contents revealed the presence of cocaine, which forms the basis of appellant’s conviction.

Appellant concedes that his arrest for driving while under the influence of drugs was lawful and that the arresting officer had the right to conduct a search incidental to that arrest without first obtaining a warrant and without needing probable cause independent of the probable cause required for the arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Appellant contends, however, that a search incidental to an arrest must be limited in time, place, and scope: it must occur at the scene of the arrest and must be contemporaneous with the arrest, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), James v. Louisiana, 882 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965), Agnello v. United States 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); it must be limited to the arrestee’s person or the area within his immediate reach, Chimel v. California, supra; and it must be limited to a search for weapons or evidence of the offense for which the arrest was made. Appellant argues that Bulin’s removal of the canvas bag from appellant’s vehicle to his squad car before searching it destroyed any right to search it, or its contents (such as the bottle), incidental to appellant’s arrest since the search of the bag and the bottle occurred well after appellant had been arrested, after appellant had been removed from the scene, and after the bag was removed from the place of arrest, citing United States v. Chadwick, supra; Vale v. Louisiana, supra. Appellant further argues that since he was handcuffed and seated in the rear of the squad car, the bag and its contents were not within his immediate reach or under his control, citing Coolidge v. New Hampshire, 403 U.S. 443, 456-458, 91 S.Ct. 2022, 2032-2034, 29 L.Ed.2d 564 (1971). Appellant asserts that the search of the bottle violated his rights under the Fourth Amendment to the Constitution of the United States and Article 1, § 9 of the Constitution of Texas.

On the other hand the state contends that the recent United States Supreme Court decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) is controlling. At oral argument, appellant conceded that if Belton is applied retroactively, then it is indeed controlling and that his sole ground of error should be overruled. We conclude that Belton controls disposition of this case and that it applies retroactively. In Belton, the Supreme Court stated:

[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.4

Note 4. “Container” here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.

To avoid the obvious application of Belton to the present case, appellant argues that Belton expounded new constitutional rules affecting criminal trials requiring prospective, rather than retroactive, application. Appellant argues that since the search and seizure in question occurred pri- or to the date of the decision in Belton, its holding should not be applied in this case. We disagree. We conclude that Belton does not require a choice between prospective or retroactive application of new constitutional doctrine. Thus, we do not reach a consideration of the three criteria guiding resolution of the question of prospective or retroactive application in cases where the choice must be made. See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The reasons why we conclude that Belton does not require a choice between prospective or retroactive application are as follows: Belton did not depart from previous holdings of the Supreme Court, no prior Supreme Court case was overruled; Belton was not a “clear break from the past.” Desist v. United States, supra. Belton presents no new constitutional rule. Rather, Belton provides, in automobile eases, a “workable definition of ‘the area within the immediate control of the arrestee’.” The definition is: the passenger compartment of the automobile and the contents of any containers found within the passenger compartment. Citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Supreme Court in Belton points out that searches following a lawful custodial arrest “have long been considered valid because of the need to remove any weapons that the arrestee might seek to use in order to resist arrest or effect his escape and the need to prevent the concealment or destruction of evidence.” Belton further points out that no straightforward rule has emerged as to “the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants,” citing both state and federal decisions to illustrate the disarray. The decision in Belton then proceeded to describe the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants to be as follows: the passenger compartment of the automobile and the contents of any containers found within the passenger compartment. We conclude that a decision of the Supreme Court that defines the scope of searches that “have long been considered valid because of the need to remove any weapons that the arres-tee might seek to use ... and the need to prevent the concealment or destruction of evidence” involves old constitutional doctrine — not the application of new constitutional doctrine. We hold, therefore, that Belton is to be applied to searches and seizures that occurred prior to the date of the decision in Belton. The search and seizure in the present case occurred before that date. Accordingly, we conclude that the search of the bottle did not deprive appellant of rights secured under the Fourth Amendment to the United States Constitution.

We turn next to appellant’s contention that the search of the bottle deprived him of rights secured by Article 1, § 9 of the Constitution of Texas. We conclude that the search did not violate appellant’s right under the Constitution of Texas. In disposing of this contention we first determine if Article 1, § 9 of the Constitution of Texas affords appellant a greater protection against searches and seizure than that provided by the Fourth Amendment of the Constitution of the United States. In Bel-ton the Supreme Court established “the workable rule this category of cases requires.” The Supreme Court expressed the need for that “workable rule” as follows:

When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.

We agree.

What is there said with respect to knowledge of the scope of an individual’s constitutional protection and of a policeman’s authority also applies to searches and seizures under the Constitution of Texas. In this instance we perceive no need for one rule under the Constitution of the United States and another under the Constitution of Texas. Accordingly, we conclude that under Article 1, § 9 of the Constitution of Texas, the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants is as defined by the Supreme Court in Belton. Therefore, as to the search and seizure at issue in the present case, Article 1, § 9 of the Constitution of Texas does not afford an individual greater protection against searches and seizure than that provided by the Fourth Amendment of the Constitution of the United States. We hold, therefore, that the search of the bottle did not deprive appel lant of rights secured under Article 1, § 9 of the Constitution of Texas. This holding should not be read to mean that Article 1, § 9 of the Constitution of Texas can never afford an individual greater protection against searches and seizures than that provided by the Fourth Amendment of the Constitution of the United States.

Affirmed.