Leighton v. State , 544 S.W.2d 394 ( 1976 )


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  • OPINION

    GUPTON, Judge.

    The offense is unlawful possession of a narcotic drug, marihuana; the punishment, assessed under the Controlled Substances Act, $100.00 fine.

    The case was tried without the intervention of a jury. In his sole ground of error appellant contends his arrest and the search of his vehicle were illegal and the fruits of the search were inadmissible under Art. 38.23, V.A.C.C.P.

    The State’s only witness, Deputy Sheriff Bruce, testified he received a call on July 12, 1973, from Mr. Kinkaid concerning a possible burglary of a home in Sunrise Beach. Bruce investigated the report, but could find no signs of forced entry into the residence in question. Bruce and Kinkaid were unable to establish that anything was missing from the house, but Bruce stated he had never before been in the house.

    Bruce and Kinkaid returned to the patrol car approximately 50 yards from the house and they saw a white Fiat drive by. Kin-kaid told Bruce he believed the car was one of the vehicles that had been at the house in question. Bruce pursued the car, which pulled over to the side of the road. As Bruce approached the car, he smelled what he believed to be the odor of marihuana coming from the vehicle. He asked the driver, appellant, to get out and produce his driver’s license. As appellant stepped from the vehicle, Bruce saw what he believed to be marihuana on the seat of the car on the driver’s side. Bruce asked appellant to sign a permission to search form and appellant asked what Bruce would do if appellant did not sign. Bruce replied he did not need it and proceeded to search the vehicle.

    Bruce’s expertise in recognizing marihuana was established, and he stated what he found in the driver’s seat was about .05 of a gram of ground up marihuana. See Jordan v. State, Tex.Cr.App., 486 S.W.2d 784. This substance was not introduced into evidence. The search of the vehicle also revealed one brown case, two baggies and two vials containing plant substance which were discovered in a carrying case found on the back floorboard. Bruce searched this part of the car because he noticed the passenger reach into the back seat when he stopped the vehicle. The sufficiency of the evidence is not challenged.

    The report from Kinkaid concerning a possible burglary did not constitute probable cause for appellant’s arrest. However, circumstances which do not constitute probable cause for arrest may justify a lesser intrusion upon the personal security of an individual, such as temporary detention for purposes of investigation. Mann v. State, Tex.Cr.App., 525 S.W.2d 174. An officer may have specific and articulable facts which, in the light of his experience and general knowledge, reasonably warrant such a stop. Thompson v. State, Tex.Cr.App., 533 S.W.2d 825.

    Bruce testified at the time he stopped appellant he had been a deputy sheriff in Llano County for approximately two months. He had been a law enforcement officer since September 1970, serving with the Brownwood Police Department for 19 months and then as deputy sheriff in the Brown County Sheriff’s Department for 15 months.

    Bruce stated he stopped appellant as part of the investigation of the suspected burglary reported by Kinkaid. Kinkaid told Bruce he thought he had seen people go into the house he was watching while the owners were away. As appellant drove by, Kinkaid told Bruce he believed he had seen appellant’s car at the house. Bruce testified this occurred at 7:00 or 7:30 p. m., during daylight hours. Although there is *396nothing in the record to indicate when Kin-kaid observed activity at the house, it would appear Kinkaid’s observations and report to the police occurred immediately prior to Bruce’s arrival at the scene. Appellant’s car was identified by Kinkaid a short time thereafter. Bruce’s brief detention of appellant in order to determine his identity or to maintain status quo momentarily while obtaining more information was reasonable under the circumstances here presented. What Bruce saw in open view during this detention was not the fruit of a search and Bruce’s testimony concerning the marihuana was admissible. Long v. State, Tex.Cr.App., 532 S.W.2d 591; Hunnicutt v. State, Tex.Cr.App., 531 S.W.2d 618.

    Finding no reversible error, we affirm the judgment.

Document Info

Docket Number: 51782

Citation Numbers: 544 S.W.2d 394

Judges: Gupton, Odom, Phillips, Douglas, Roberts

Filed Date: 12/8/1976

Precedential Status: Precedential

Modified Date: 11/14/2024