Williams v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

The trial court found appellant guilty of unlawfully carrying a handgun and assessed 90 days in the county jail, probated, and a fine of $350.00. The First Court of Appeals (Houston) affirmed in an unpublished opinion, holding that the trial court did not err in denying appellant’s motion to suppress. Williams v. State, No. 01-84-0239-CR, delivered December 20, 1984. We granted appellant’s petition for discretionary review to examine this holding.

The evidence at the hearing on the motion to suppress showed that Houston Police Officer Gildehaus was on patrol at about 3:30 p.m. on October 19th, 1983. Officer Gildehaus testified that he was driving west in the 2400 block of Anita, between Live Oak and Dowling. Gildehaus stated that Anita is a two-way street, running east and west. The officer observed appellant’s pickup truck “parked on the wrong side of the street.” The truck was parked on the south side of Anita, with its left (driver’s side) wheels next to the curb. The truck was facing west, and Gildehaus was approaching the truck from behind. Gildehaus observed appellant sitting in the driver's seat of the truck. The driver’s door was open. Gildehaus further testified as follows:

“And there was another male by the door, which the truck was opened. And I seen the other guy look like he handed [appellant] something. And when I seen him hand him something, I pulled up, got out of my vehicle, and walked towards the truck. And the guy that I thought he handed him something walked away from the truck and sat down. And the other guy had gotten out of the truck and was standing by the truck and the door was still opened. I looked inside the truck, and I seen a brown paper bag.”

Under cross-examination and upon further questioning by the court, Gildehaus stated that he did not actually see the other person hand appellant anything, that he did not see their hands at all, that he was uncertain whether the other person, or appellant, did the passing, or whether “they were passing something back and forth”. When asked “Did you actually see the hands or see the shoulder movement”, Gil-dehaus responded, “Just the shoulder from the hand glide.” Gildehaus conceded that he could not tell whether the two men were handing something to each other or shaking hands.

Gildehaus testified that the man standing by the truck “had been brought to my attention by an informant of mine.” Gilde-haus testified that “From the information they told me they had stated he was selling nickel bags of marijuana in that area.” Gildehaus stated that within the two years he had been patrolling the area, he had participated in 10 or 15 arrests for narcotics, mainly marihuana, offenses at the corner of Anita and Dowling streets. Gilde-haus testified that he had had occasion to observe narcotics transactions twenty-five to thirty times. Gildehaus stated that on the instant occasion, he “thought there was a narcotics deal going down.”

Gildehaus stopped his patrol car behind the truck, got out, and walked toward the two men to investigate. Gildehaus testified further as follows:

“And when I — the guy standing outside of the vehicle, he at first observed me when he seen me, he walked away from the pickup truck and the other guy looked like he made some kind of downward movement in the pickup truck.”

By the time Officer Gildehaus reached the driver’s door of the truck, the “other guy” had moved off and was sitting on some steps nearby. Appellant was out of the truck, standing by the open door. Gil-dehaus noticed a brown paper bag on the floorboard on the driver’s side. Gildehaus pulled the open sack toward him and looked inside it. He then reached into the sack and moved a shirt that was lying on another sack. At that point Gildehaus saw a gunbarrel protruding from the second, “inner” sack. Gildehaus testified as follows:

“Q. Once you saw that, what did you do next?

“A. At the time I arrested the defendant, first I asked him if this was his truck and he said, yes, it was.”

“Q. What did you do? You placed the defendant under arrest?

“A. Yes, ma’am.”

The record reflects that Gildehaus later “put the defendant into jail.”

Gildehaus testified that the sack was within appellant’s reach as he stood outside the truck. When asked why he “went into that truck,” Gildehaus replied, “Two reasons. Narcotics and for my safety.” Gil-dehaus was not asked and did not state why he arrested appellant.

Gildehaus seized two handguns from the sack. These were admitted into evidence over appellant’s objection that the arrest was unlawful under the Fourth Amendment and Article I, Section 9 of the Texas Constitution, and that the handguns were the fruit of the unlawful arrest.

The State argues that Gildehaus had reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to make an investigative stop of appellant. In addition, the State argues, Gildehaus was justified under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) in making a protective search for weapons in the passenger compartment of the truck.

We need not decide these issues. We find merit in the State’s alternative argument that the search of the sack was a search incident to a lawful custodial arrest.

Article 6701d, V.A.C.S., provides, in pertinent part:

“Sec. 96. (a) Except as otherwise provided in this section, every vehicle stopped or parked upon a two-way roadway shall be so stopped or parked with the right-hand wheels parallel to and within eighteen (18) inches of the right-hand curb or edge of the roadway.” Violation of Art. 6701d, Sec. 96(a) is pun-

ishable as a misdemeanor. Art. 6701d, Sec. 143, supra.

Art. 6701d, Sec. 153 authorizes any peace officer to arrest without warrant any person found committing a violation of any provision of Article 6701d, supra.

Officer Gildehaus thus had probable cause to arrest appellant. That Gildehaus was investigating what he took to be a narcotics transaction is of no moment in this case. In Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) the Court wrote:

“We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action, [citation omitted.] The Courts of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.”

See also 1 LaFave, Search and Seizure, Sec. 1.2(g) (Supp.1986) (arguing that the language quoted above from Scott “is precisely what the rule ought to be and that certain other developments in Fourth Amendment doctrine are necessary to ensure that the Scott rule persists in such unqualified form.”)

Moreover, the fact that the search incident to the arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (“Once [Rawlings] admitted ownership of the sizable quantity of drugs found in [the] purse, the police clearly had probable cause to place [him] under arrest. Where the formal arrest followed quickly on the heels of the challenged search of [Rawlings’] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”)

Accordingly, Officer Gildehaus’s search of the sack was justified as a search incident to arrest under both Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

There was no error in denying appellant’s motion to suppress. The judgment of the Court of Appeals is affirmed.

ONION, P.J., dissents.

. The instant case must be distinguished from Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App.1983), Christian v. State, 592 S.W.2d 625 (Tex.Cr.App.1980) cert. denied, 446 U.S. 984, 100 S.Ct. 2966, 64 L.Ed.2d 841 (1980), and Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976). At the time of the search in those cases, the officer had detained the defendant only to issue him a written notice to appear in court for a traffic offense (the statutory alternative to a custodial arrest; see Art. 6701d, Sec. 148(a)). This Court held that the arrest in each case was not custodial, and therefore could not support a search incident to arrest under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Here the record fails to reflect that Officer Gildehaus had detained appellant for the purpose of issuing him a traffic ticket. Instead, the record reflects, in rapid succession, the emergence of probable cause to arrest, a search of the passenger compartment, and a formal custodial arrest.