Thomas v. State

572 S.W.2d 507, 1976 Tex. Crim. App. LEXIS 1210

Opinions

OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of possession of marihuana on May 30,1973, and his punishment was assessed at two years probated.

A motion to revoke probation was filed on January 17, 1975, alleging, among other things, that appellant had on January 11, 1975, possessed a controlled substance, to-wit: biphetamine.¹

Appellant’s first contention is that the search of his automobile which resulted in the finding of the biphetamine capsules was without probable cause and we agree.²

The record reflects that Dallas Police Officer Worth saw a 1974 Datsun automobile make a left turn at the intersection of Canada Drive and North Hampton Road where only a right turn is permitted. Worth and his partner, Officer Harrell, proceeded to stop the Datsun. The appellant was the driver and had no driver’s license. The appellant was placed in the back seat of the patrol car while Officer Harrell sat in the front seat. At this point Officer Worth returned to appellant’s car and looked through the window at some objects lying on the right front bucket seat. He was able to see large medical bottles with prescriptions on them. He opened the door and examined one bottle and found it to be cough medicine. He noted that an empty bottle had a prescription from Ft. Leonard Wood, Missouri. He then picked up a coat lying in the seat and in one of the pockets he found a bottle containing biphetamine pills. The possession of these pills is the basis for this revocation.

The appellant did not consent to the search. Appellant was clearly not in a position to leave or lunge for any weapon or to seize and destroy any evidence.

We have concluded that the trial court was in error in finding that the officers had probable cause to enter the automobile. They had no prior information about the appellant or his automobile. See Rushing v. State, Tex.Cr.App., 500 S.W.2d 667. The stop was for a traffic offense, and the appellant made no furtive gestures. See Wilson v. State, Tex.Cr.App., 511 S.W.2d 531. Cf. Borner v. State, Tex.Cr.App., 521 S.W.2d 852. The facts and circumstances within the officer’s knowledge at the time of the initial stop and prior to the search of the automobile would not warrant the belief that the appellant had committed or was committing a crime other than the traffic offense. See Frazer v. State, Tex.Cr.App., 508 S.W.2d 362 (Opinion on Appellant’s Motion for Rehearing).

The search of appellant’s automobile was not a search incident to arrest. Worth testified that appellant was being detained while a traffic ticket was being written and was not placed under arrest until after the pills were found. Cf. Wussow v. State, Tex.Cr.App., 507 S.W.2d 792. Appellant was not in custody at the time of the search, and thus the search was not incident to arrest for the traffic violation. Cf. U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The seizure of the pills cannot be upheld under the plain view doctrine. Prescription drugs are not inherently contraband, stolen goods or objects dangerous in themselves. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410. The mere viewing of bottles with drugstore labels on them did not authorize the officers to enter the automobile and search the jacket or seize the pills.

Having so concluded, we find that the trial court abused its discretion in revoking probation.

The judgment is reversed and the cause remanded.

Footnotes

1

. The evidence showed that biphetamine was a pharmaceutical trade name for amphetamine, a controlled substance.

2

. Appellant’s testimony did not waive any objections to the legality of the search. Appellant testified that the coat containing the pills was not his, that it belonged to Sherry Rose, and that he was returning it to her. Sherry Rose testified the pills were hers and had been prescribed for her the day before the alleged offense and she had left them in appellant’s car. It is clear this testimony was offered to meet, destroy, and explain after the fruits of the claimed illegal search were admitted. See Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169 (Opinion on State’s Motion for Rehearing); Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493 (Opinion on State’s Second Motion for Rehearing).