Miller v. State , 1985 Tex. App. LEXIS 6461 ( 1985 )

TIJERINA, Justice,

dissenting.

I respectfully dissent.

This appeal concerns the search and seizure of evidence from a parked automobile. Appellant filed a pre-trial motion to suppress the evidence and after an evidentiary hearing, the motion was overruled.

The record shows that appellant and his friend Wilson were in a pick-up truck which was parked in the parking lot of an H.E.B. store at 4:45 a.m. The store was open, the parking lot was well lighted and the door on the driver’s side was open. The police officer was on routine patrol, stopped his vehicle and approached appellant’s pick-up from the rear. He stated that he had a “hunch” something was going on; that he thought some one needed help or someone was burglarizing the truck. The officer asked appellant what he was doing and at the same time appellant told Wilson to close the glove compartment. The officer, shining his flashlight into the truck, saw a clear plastic sandwich bag containing a green substance. Appellant and Wilson were ordered to back away from the pickup truck, whereupon the officer searched inside the vehicle and seized the bag and its contents. The police officer on cross-examination admitted the green substance could have been something other than marihuana, such as alfalfa.

A review of the case law in this regard indicates that a suspicious individual may be briefly stopped to determine his identity or to maintain the status quo and considered reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Hence, a police officer without probable cause to arrest may justify a temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394, 397 (Tex.Crim.App.1976). An occupant of an automobile is just as subject to a brief detention or stop as a pedestrian. Shaffer v. State, 562 S.W.2d 853, 854 (Tex.Crim.App.1978). However, the temporary investigative detention must be based on circumstances that distinguish the activity of the detained person from that of any other citizen and made on an objective perception of events rather than the subjective feelings of the officer. Armstrong v. State, 550 S.W.2d 25, 30 (Tex.Crim.App.1977) (on rehearing).

In the instant case the State’s burden was to justify the officer’s investigation of the parked vehicle in accordance with the mandate of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968):

In order to justify an intrusion, by means of physical force or show of authority, however slight it might be, the officer involved must be able to point to specific and articulable facts which in light of his experience and general knowledge taken together with rational inferences from those facts, reasonably warrant that intrusion.

Mere suspicions or the officer’s “hunch” will not meet the test. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Hull v. State, 613 S.W.2d 735, 738-39 (Tex.Crim.App.1981); Armstrong v. State, supra. The United States Supreme Court has now promulgated the standard for the determination of this question. In United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), the Court stated: that on consideration of the totality of the circumstances, “the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Emphasis ours.)

The State does not challenge the inherent issue of whether appellant had a legitimate expectation of privacy to the vehicle and its contents; therefore, we assume that he had such constitutional protection. U.S. CONST, amend. IV; TEX.CONST. art. I, § 9. We now address the question of whether the officer had an objective, particularized basis for suspecting appellant of criminal activity. The parking lot at the H.E.B. store was well lighted. Even considering the lateness of the hour, the fact remains that the store was open for business. Appellant’s wife was inside the store shopping. The truck was properly parked; hence, there were no traffic violations at issue. The officer had no adverse information about appellant or the vehicle. He did not, prior to the intrusion, see the commission of a criminal offense nor was there any evidence of suspicious criminal activity. The justification alleged was that the officer had a hunch and thought someone could be burglarizing the truck. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Gearing v. State, No. 906-83 (Tex.Crim.App., July 18, 1984) (not yet reported); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983); Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978).

The State argues that the evidence was in plain view and that the seizure of the evidence was therefore lawful. The “Plain View” doctrine permits an officer to seize contraband which he sees in plain sight or open view provided his presence at the scene is lawful. DeLao v. State, 550 S.W.2d 289, 291 (Tex.Crim.App.1977). The requirements of the “Plain View” doctrine were articulated in Coolidge v. New Hampshire, 403 U.S. 443, 468-71, 91 S.Ct. 2022, 2039-41, 29 L.Ed.2d 564 (1971), where the Court prescribed the following test: (1) the officer must make a lawful “initial intrusion”; (2) the evidence must be discovered inadvertently, and (3) it must be immediately apparent that the items seized are evidence of a crime. In Texas v. Brown, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), a divided Supreme Court rendered a plurality decision disagreeing in some respects with Coolidge v. New Hampshire, supra. However, the automobile in Brown was lawfully detained at a license check point when the officer saw in plain view a balloon knotted near the tip. The court stated that a probable cause to associate the evidence with criminal activity was sufficient. Similarly in Razo v. State, 577 S.W.2d 709 (Tex.Crim.App.1979), the officer lawfully stopped defendant’s vehicle for a license check and while in the process of checking the driver’s license detected a strong smell of marijuana. In Isam v. State, 582 S.W.2d 441, 444 (Tex.Crim.App. 1979), appellant stopped his automobile at a traffic light and as the officers approached they smelled marijuana. In the case at bar the officer stopped his patrol car and approached appellant’s vehicle for the purpose of making an investigation. He asked appellant, “What are you doing?” and then looked inside the parked vehicle. At such time the officer did not have a particularized and objective suspicion that appellant was engaged in criminal activity. Therefore, the initial intrusion concededly made on an inarticulable “hunch” was unlawful. Accordingly, I would reverse the judgment and discharge appellant. See Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978).