Britton v. State

OPINION

PHILLIPS, Judge.

Appellant was convicted of heroin possession. Article 4476-15, Sec. 4.04(a), V.A.C.S. Punishment was assessed at life imprisonment. Article 4476-15, See. 4.04(b)(1), V.A. C.S.; V.T.C.A., Penal Code, Sec. 12.42(d).

Appellant was a passenger in a vehicle observed by two Dallas police officers to be blocking the two west-bound lanes of a Dallas street at 1:50 a. m. The car did not move until after the police pulled up and turned their lights on. Appellant was observed as bobbing, weaving, or swaying his head. Upon one officer’s inquiry, appellant mumbled incoherent responses. Appellant was further observed to have “glassy” and bloodshot eyes. The officer asked appellant to exit the vehicle at which time the officer arrested appellant for public intoxication. The officer then frisked the appellant, finding a syringe containing fresh, milky white residue in his front coat pocket. Appellant denied being a diabetic to the officer. Upon resuming the pat-down, appellant reached for his pocket. The officer removed appellant’s hand and withdrew a matchbox from appellant’s pants pocket in which 12 pink capsules, later found to contain heroin, were found.

Appellant and his counsel on appeal contend that the héroin was the fruit of an illegal search and seizure.

The officers were justified in stopping the vehicle in which appellant was a passenger. The officers testified that its position in the road impeded their patrol car and any other west-bound traffic and that such impedance violated a Dallas municipal city ordinance. See also Article 6701d, Secs. 93-94, 153, Y.A.C.S.; Slaughter v. State, Tex.Cr.App., 439 S.W.2d 836; Thompson v. State, Tex.Cr.App., 398 S.W.2d 942. The officer who arrested appellant was legitimately in a position to observe the facts upon which he based his conclusion that probable cause existed to arrest the appellant for public intoxication. Public intoxication is a Class C misdemeanor. Article 14.01(b), V.A.C.C.P., provides that “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” This Court has held that:

“Probable cause for an arrest exists where, at that moment, the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime.” Brown v. State, Tex.Cr.App., 481 S.W.2d 106.

It was footnoted in this case that the facts available to the officer which might constitute probable cause to arrest need not be “sufficient evidence to establish guilt” (481 S.W.2d 106 at 110). One of the essential elements to the offense of public intoxication is intoxication “to the extent that he may endanger himself or another.” See Dickey v. State, Tex.Cr.App., 552 S.W.2d 467. Citing Balli v. State, Tex.Cr.App., 530 S.W.2d 123, and Bentley v. State, Tex.Cr. App., 535 S.W.2d 651, the Court in Dickey indicated that considerable weight was to be accorded the circumstances in which the individual was found by the police officers in determining whether his state of intoxication was “to the extent that he may endanger himself or another.” In Balli the defendant was found walking in the middle of a public street while intoxicated. In Bentley it appeared the defendant was attempting to purchase tire chains for his automobile, thereby indicating his intended purpose to drive an automobile while intoxicated. In Dickey the discovery of the appellant asleep in a car in front of a lounge demonstrated that the appellant was “vulnerable to an assortment of difficulties,” including the possibility of driving the vehicle himself.

In the instant case, the arresting officer testified to the following observations made by him.

“Q Did you notice anything unusual about the passenger of the vehicle?

“A Yes, well, while going back to the rear of the vehicle I had a pretty clear view of the passenger as I was sitting there, his head was bobbing and weaving back and forth.

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“Q Did you have the opportunity to look inside the vehicle?

“A Yes I did.

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“Q Were you able to observe the defendant’s eyes?

“A Yes, sir, I was.

“Q Was anything unusual about that?

“A They appeared to be glassy and bloodshot.

“Q Did you ask the defendant any questions?

“A Yes, I did.

“Q What?

“A First, I asked him how he was doing.

“Q How did he respond to that?

“A He mumbled something that was incoherent — I couldn’t understand it.

“Q Did you ask him another question?

“A Yes, I did, and at that time I asked them what they were doing there, or what they were doing, and he still continued to mumble something I couldn’t understand.

“Q Did you have — having asked these questions, and gotten these responses, and having observed his eyes and head move in the manner in which you described it, did you have any suspicions about whether or not the man was normal or abnormal, or intoxicated or not?

“A I believe that he was intoxicated.

“Q Of course, this was in a public place?

“A Yes, sir, it was.

“Q Well, did you ask the defendant to step out of the vehicle?

“A Yes, sir, I did.”

The police officer then asked the defendant for identification which he was unable to produce for the officer.

“Q Did you next conduct a pat-down frisk of the defendant?

“A Yes, sir, I did.

“Q What was your reason for doing this?

“A It was for my sake, and my partner’s safety.”

It was at this point that the officer discovered the syringe and heroin within the matchbox within his pocket. The officer testified that after he had felt the bulge of the syringe in the appellant’s pocket he thought it might possibly be a knife and that his and his partner’s safety might be in danger. The officer further testified that he would not have let the appellant go had he wanted to when he removed him from the vehicle.

On cross-examination, the police officer testified that he did not smell any alcoholic beverage on the appellant’s breath. He further testified that he did not file a charge for public intoxication against the appellant. It is clear from the officer’s testimony that given the facts observed by him, he lacked the probable cause to arrest appellant for the offense of public intoxication. No facts or information was provided by the police officer to indicate any basis for a reasonable inference that the appellant’s suspected intoxication was to a degree that would endanger himself or others. It must be remembered that appellant was a passenger in a vehicle driven by another individual which this testimony shows was not arrested for any offense at that time. There being no probable cause to lawfully arrest appellant without a warrant, the search of appellant’s person cannot be justified as a search incident to lawful arrest.¹ Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

However, this finding does not terminate the inquiry required of this Court. As stated above, the initial stop of the vehicle in which appellant was a passenger was justified. However, in determining whether the pat-down frisk of appellant was reasonable and justified, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken [pat-down frisk for weapons] was appropriate?” Terry v. Ohio, 392 U.S. 1 at 21-22, 88 S.Ct. 1868 at 1880, 20 L.Ed.2d 889.

“Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U.S. at 24-25, 88 S.Ct. at 1881-82.

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“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

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“And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

It is abundantly clear from the record before us that the officer’s suspicion that appellant was intoxicated was based on the fact of observing the bobbing, weaving, or swaying of his head while within the vehicle and the appellant’s mumbled responses to questions from the police officer. The officer also observed that the appellant had glassy and bloodshot eyes. We cannot conclude that these facts provide a reasonable basis for the inference by the police officer that the appellant was armed or posed a present danger to the officer or his partner. The police officer’s conclusory statement that the frisk was for the sake of his and his partner’s safety fails to satisfy the mandate of Terry v. Ohio, supra. The officer provided no facts upon which a reasonably prudent man could conclude that the appellant was armed or posed a danger to the police officers. See Keah v. State, Tex.Cr.App., 508 S.W.2d 836; Wimberly v. State, Tex.Cr.App., 434 S.W.2d 857; Tardiff v. State, Tex.Cr.App., 548 S.W.2d 380; Crawford v. State, Tex.Cr.App., 544 S.W.2d 163; Ablon v. State, Tex.Cr.App., 537 S.W.2d 267.

In light of the foregoing, we find that the search of appellant which resulted in the discovery of a matchbox containing heroin capsules was not justified under the facts and circumstances established in this record. The search being in violation of the Fourth Amendment to the United States Constitution and Article I, Sec. 9, of the Texas Constitution, the evidence was inadmissible in the trial of the appellant. Appellant’s ground of error alleging an illegal search and seizure is hereby sustained.

The judgment is reversed and the cause remanded.

1 . The foregoing answers the question left unanswered in Wood v. State, Tex.Cr.App., 515 S.W.2d 300.