Osban v. State , 1986 Tex. Crim. App. LEXIS 819 ( 1986 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

A jury found appellant guilty of felony theft and assessed two years and a fine of $3,000. The Dallas Court of Appeals reversed in a published opinion. Osban v. State, 648 S.W.2d 790 (Tex.Cr.App. — Dallas 1983). The Court of Appeals held that the trial court erred in failing to suppress four handguns seized from the trunk of appellant’s car. The Court of Appeals further held that, with these items excluded, there was insufficient evidence to support the conviction, and directed the trial court to enter a verdict of acquittal. We granted the State’s petition for discretionary review to examine these holdings.

A pretrial hearing was held on appellant’s motion to suppress. We summarize the testimony as follows. On September 6, 1980 Dallas police officer M.W. Dean recognized appellant driving a white Cadillac in north Dallas. From conversations with other officers, Dean knew that appellant’s driver’s license had been suspended through April of 1981. After checking the registration on the Cadillac and determining that it belonged to appellant, Dean stopped appellant and asked to see his driver’s license. Appellant, produced a valid Oklahoma license, but a radio check confirmed that appellant’s Texas license was under suspension. At this point appellant was arrested and placed in the squad car.

Officer Dean called a wrecker to impound the Cadillac, and began to search the passenger compartment of the car.

Dean saw what appeared to be three “Black Mollies” in the ashtray.¹ Dean testified that he had experience in arresting people for possession of “Black Mollies,” and for narcotics violations. See Miller v. State, 667 S.W.2d 773 (Tex.Cr.App.1984), and Sullivan v. State, 626 S.W.2d 58 (Tex.Cr.App.1982).

Dean also found, “some money over the visor, some money in the dash, money in the glovebox, [and] money in the front seat,” amounting to over $3,000.00.

Officer Dean then took the keys from the ignition and unlocked the trunk. There he found eight handguns. Four were introduced at trial, and were identified as stolen in a burglary several days before.

The Court of Appeals reasoned: “The fact that a small quantity of suspected contraband and a large amount of cash were found in the front seat area of the vehicle does not amount to probable cause to search the trunk.” [citing Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1981).]

The State argues that discovery of the Black Mollies in the ashtray of the front seat of the Cadillac provided Officer Dean with probable cause to believe he would find more contraband in the locked trunk of the car. The State urges that we reconsider our opinion on original submission in Gill, supra, in light of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

The presence of the large amount of cash found in appellant’s car puts the instant case in a somewhat different posture than Gill, supra, because in Gill the arguably suspicious items found in the passenger compartment were a marihuana cigarette, a towel, a bottle of rubbing alcohol, a spoon, and some cotton. Moreover, the rule established in Gill is that:

“The finding of a small quantity of suspected contraband in the passenger compartment of an automobile does not alone amount to probable cause to search the trunk.” 625 S.W.2d at 311.

Here, not only contraband, but a large amount of cash was discovered, suggesting that the driver of the car might be involved in the sale of controlled substances and might possess larger quantities of such substances in the trunk.

Nevertheless, this case is close enough to Gill with respect to the factual circumstances surrounding the search of the trunk, that we will review the test announced in the original opinion in Gill.

When an officer discovers even a small amount of contraband in the passenger compartment of an automobile, the key question to be asked, in terms of determining probable cause for a further search, is whether a man of reasonable caution would be warranted in the belief that other contraband items may be located in the trunk of the car. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Put another way, is it reasonable to assume that an automobile driver or passenger presumably possessing an illegal controlled substance might be hiding more of the substance in the automobile trunk? As the Supreme Court of Nebraska stated in State v. Watts, 209 Neb. 371, 307 N.W.2d 816, 819 (1981):

“Having found a quantity of illicit drugs in one part of the automobile does not sensibly suggest the probability that no more such substance is present.”

After all, the trunk is not metaphysically removed from the rest of the car; it goes along for the ride. The discovery of a small amount of illicit drugs on somebody’s back patio or in their front foyer would not sensibly suggest the probability that no more such substance was present in the master bedroom or bathroom despite the greater privacy interest the owner would presumably have in the latter rooms.

Both Gill and the case it relied on, Wimberly v. Superior Court, 16 Cal.3d 557, 547 P.2d 417, 128 Cal.Rptr. 641 (1976), were partially bottomed on the distinction between occasional users of controlled substances and those who buy and sell such substances in large quantities.

In Wimberly, for instance, the court invalidated the search of a car trunk undertaken after officers discovered a smoking pipe, 12 marihuana seeds, the odor of burnt marihuana, and a plastic bag containing a small amount of marihuana in the passenger compartment of an automobile. The court reasoned:

“ Just as the statutes differentiate between the casual user and the dealer of narcotics...., logic compels that we also differentiate between the two and recognize that all casual users are not dealers. Here, the erratic driving, theplain view observation of the marijuana seeds adjacent to the pipe, the odor of burnt marijuana, the burnt residue in the pipe, and the small quantity of marijuana secreted in the jacket indicate only that petitioners were casual users of marijuana. It was thus proper to search adjacent areas of the vehicle ... but it was not reasonable to infer that petitioners had additional contraband hidden in the trunk.” 547 P.2d at 427,128 Cal.Rptr. at 651.

But even though there is a distinction between users and dealers and the latter are more likely to have additional contraband hidden in the trunk, this does not mean that users, whether occasional, regular, or habitual, are not likely to hide additional contraband in the trunk. Under the logic of Wimberly, an officer who discovers a driver and passenger each in possession of a prohibited weapon, cannot search the trunk of their vehicle because no evidence exists that the suspects deal in illegal weapons.

Aside from its inherent illogic, Gill had no support in our case law and in fact went against the weight of what authority existed. See Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Henson v. State, 502 S.W.2d 719 (Tex.Cr.App.1973); Fry v. State, 493 S.W.2d 758 (Tex.Cr.App.1972); Pace v. State, 461 S.W.2d 409 (Tex.Cr.App.1970); Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967).

The analysis employed in Wimberly (and relied on in Gill) has been explicitly rejected in recent years by two state supreme courts and implicitly rejected by another. See State v. Schinzing, 342 N.W.2d 105 (Minn.1983); State v. Watts, supra; People v. Langen, 60 N.Y.2d 170, 469 N.Y.S.2d 44, 456 N.E.2d 1167 (1983). See also Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982).

Though Gill purported to rely on Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975), the latter case is easily distinguishable. In Maldonado, an officer who at most had probable cause to determine if the defendant’s truck was stolen, exceeded the scope of a permissible search by ripping up the floorboards and discovering a false compartment containing 650 wrapped packages of marihuana. The officer had no probable cause whatsoever to believe that illicit drugs were located anywhere in the truck.

Accordingly, we overturn the rule established in the original Gill opinion, irrespective of any effect United States v. Ross, supra, has on the decision. It should be noted, however, that although Ross does not overrule Gill, the reasoning in Ross substantially undercuts the reasoning in Gill.

In Gill we stated at 310 that:

“Probable cause to search part of a vehicle is not inevitably probable cause to search the entire vehicle ... The reason is that the search and seizure amendments of our constitutions protect people’s rights to privacy, ... and there are different expectations of privacy in different parts of an automobile.” (Emphasis added.)

The above analysis is incorrect, to the extent that it confuses the question of “what is a search?” with the question of “what is probable cause?” If probable cause to search part of a vehicle is not inevitably probable cause to search the entire vehicle this is because there is not enough evidence to warrant a man of reasonable caution in suspecting that contraband or evidence of a crime can be found throughout the entire vehicle. For instance, probable cause to believe that a sword is located somewhere in an automobile does not give the police probable cause to search a coffee can found in the vehicle. This is so, not because an accused’s privacy interest in the coffee can is different than his privacy interest in the rest of the vehicle, though this may very well be the case, but because one is not likely to find a sword in a coffee can. This much was made clear in Ross when the Court stated:

“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon may be found. A warrant to open a footlocker to search for marijuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

“As Justice Stewart stated in Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view ... But the protection afforded by the amendment varies in different settings. The luggage carried by a traveler entering the country may be searched at random by a customs officer; the luggage may be searched no matter how great the traveler’s desire to conceal the contents may be. A container carried at the time of arrest often may be searched without a warrant and even without any specific suspicion concerning its contents. A con-tamer that may conceal the object of a search authorized by a warrant may be opened immediately; the individual’s interest in privacy must give way to the magistrate’s official determination of probable cause.

“In the same manner, an individual’s expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband. Certainly the privacy interest in a car’s trunk or glove compartment may be no less than those in a movable container. An individual undoubtedly has a significant interest that the upholstery of his automobile will not be ripped or a hidden compartment within it opened. These interests must yield to the authority of a search, however, which — in light of Carrol — does not itself require the pri- or approval of a magistrate. The scope of a warrantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize. “The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.

“ ... We hold that the scope of the warrantless search authorized by [the automobile] exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 456 U.S. at 820-825, 102 S.Ct. at 2170-2173. (Emphasis added.) (Footnotes omitted.)

Yet even if discovery of the “Black Mollies” and the large amount of cash gave Officer Dean probable cause to search the trunk, the question remains whether he was justified in searching the passenger compartment in the first place.

Under the rule of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), a search incident to a valid custodial arrest of persons who are in or recently have been in an automobile extends to the entire passenger compartment and all containers, open or closed, found there.

In Brown v. State, 657 S.W.2d 797 (Tex.Cr.App.1983), we stated:

“ ... [T]his Court has opted to interpret our Constitution in harmony with the Supreme Court’s opinions interpreting the Fourth Amendment. We shall continue on this path until such time as we are statutorily or constitutionally mandated to do otherwise.” 657 S.W.2d at 799.

Though the State has not contended that the search of the passenger compartment was valid under Belton, this is excusable since the Court of Appeals’ opinion assumed the search of the passenger compartment was valid. Nevertheless, it is unmistakably clear from the record that the facts of appellant’s custodial arrest placed him squarely within the confines of Belton. Accordingly, Officer Dean was justified in searching the passenger compartment of appellant’s car after he had placed appellant under arrest.

The Court of Appeals erred in holding that the evidence should have been suppressed.

The Court of Appeals also erred in excluding from its review of the sufficiency of the evidence those items that the Court held had been improperly admitted. The Court of Appeals should have considered all the evidence in determining its sufficiency to support the conviction. Porter v. State, 662 S.W.2d 602 (Tex.Cr.App.1984); Adams v. State, 639 S.W.2d 942 (Tex.Cr.App.1982); Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980). Accordingly, we remand the case to the Court of Appeals for consideration of the remaining grounds of error advanced by appellant.

The judgment of the Court of Appeals is reversed and the cause is remanded to that Court.

1 . "Black Molly” is a slang term for biphetamine 20, which consists of resin complexes of dex-troamphetamine and amphetamine. See Physician’s Desk Reference, p. 426 (38th Edition, 1984); and American Drug Index, p. 88 (26th Edition 1982). Amphetamine is a Schedule II controlled substance.