Tunnell v. State

554 S.W.2d 697, 1977 Tex. Crim. App. LEXIS 1205

• Court: Court of Criminal Appeals of Texas
• Decided: July 13, 1977
• Docket: 53402
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of less than two ounces of marihuana. Appellant was tried before the court, found guilty, and assessed a punishment of thirty days in jail and a fine of one hundred fifty dollars. Appellant was granted probation but was required to pay his fine as a condition of probation. See Art. 42.13, Sec. 5(b)(8); Batten v. State, 549 S.W.2d 718, 719, n.2 (Tex.Cr.App.1977).

Appellant’s sole contention is that the search which led to the discovery of the marihuana was the result of an illegal investigative detention. We agree and reverse.

Ted Alford, a Garland police officer, testified that on December 5, 1974, he was working a “special assignment for burglary of motor vehicles” as part of a “tactical unit.”¹ While driving south on Merion Drive at 2:16 A.M., he saw three men in an automobile parked in a well-lighted hospital parking lot. The lights of the automobile were turned off.

Alford testified that he knew on the date of appellant’s arrest that the area where appellant was parked was only a short distance — about a mile — from a Kraft Food Company plant. Alford also stated that he was aware that the Kraft plant was operated twenty-four hours a day. According to Alford, he nonetheless thought the “activity” of the three individuals’ sitting in the car was suspicious and warranted an investigation. Alford therefore drove a short distance, turned around, and again approached the hospital parking lot.

As Alford drove up, he saw that the other car’s lights had been turned on. The car then turned north on Merion Drive. Alford followed the car until it turned off Merion, at which time he stopped the car.

Alford identified appellant as the driver of the car. He testified that appellant and his two companions committed no traffic violations, engaged in no criminal activity, made no furtive gestures, and took no evasive actions after Alford began his pursuit. Cf. Borner v. State, 521 S.W.2d 852, 854 (Tex.Cr.App.1975); and see McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977), and Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976).

Alford approached the car and asked the three occupants for identification, which they provided. There is nothing in the record, however, to suggest that Alford’s purpose in stopping the appellant was to determine if he had an operator’s license, as is permitted by Art. 6687b, Sec. 13, V.A.C.S. See Faulkner v. State, supra.

Alford testified that he smelled the strong odor of burning marihuana as he approached the driver’s side of the car. As appellant and his companions were getting out of the car, Garland Police Officer Bill Connaster arrived. While Alford spoke with appellant and his companions, Con-naster searched the car. He “found a small amber vial located between the transmission hump and the right front passenger seat near the front, which contained two, what appeared to be marijuana cigarettes . ” Like Alford, Connaster testified that he smelled the odor of burning marihuana in the car.

The appellant testified that he worked at the Kraft Food Company plant in Garland and that he was on his lunch break when he and his companions were stopped by Alford. He stated that he was approximately one-half mile from the Kraft plant at the time. Appellant denied knowing that the vial containing marihuana was in the car.

Appellant and the State entered into a stipulation that the substance in the cigarettes in the vial was marihuana. The parties also stipulated that Doyle Anderson, one of appellant’s companions, had previously pleaded guilty to a charge of possessing the marihuana in the car.

In Brown v. State, 481 S.W.2d 106, 109-110, we observed that there are three classes of probable cause: probable cause to arrest, to search, and to investigate. In Ablon v. State, 537 S.W.2d 267, 268-269 (Tex.Cr.App.1976), we again held, in accord with well-established precedent, that a temporary detention of an individual for investigation is a less serious intrusion on personal freedom than an arrest.

However, it is clear that when an investigative detention is based on nothing more than an inarticulate hunch the fruits of the detention and subsequent search are inadmissible in evidence. See the opinion on rehearing in Ceniceros v. State, supra, and authorities there cited.

In Ceniceros the defendant and his companions were standing on a street corner. The officer in that case approached them solely for investigative purposes “ ‘to see if they had any business in the area.’ ” Ceniceros, supra at 55. When Ceniceros appeared nervous, the officer asked the men for identification. The men responded by pulling out their wallets. While Ceniceros was going through his wallet, a piece of foil fell to the sidewalk. The foil was found to contain heroin. We reversed because the initial detention was based on a police officer’s inarticulate hunch about wholly innocent activity.

The facts surrounding appellant’s detention in this case are indistinguishable from those in Ceniceros except that Ceniceros was afoot, while this appellant was in an automobile. Here, as in Ceniceros, we hold that the officer’s investigative action was unreasonable and thus in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution.² It was thus error for the trial court to admit in evidence the marihuana seized from appellant’s vehicle.

It follows that the judgment must be reversed and the cause remanded.

1 . Alford also testified that he was wearing plain clothes and was in an unmarked car. He also stated that he was “assigned to work on burglary of motor vehicles out in that part of town.” None of this testimony allows us to infer that “that part of town” was a “high crime” area or an area which could boast of a disproportionately high number of motor vehicle burglaries. See Ceniceros v. State, 551 S.W.2d 50, 55 (Tex.Cr.App.1977), dissenting opinion on original submission (February 16, 1977) held correct and adopted in majority opinion on rehearing (May 18, 1977). See also Scott v. State, 549 S.W.2d 170 (Tex.Cr.App.1976).

2 . See also Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973), and McDougald v. State, supra, where we held similar investigative stops of automobiles unreasonable.