      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00306-CR



                                 Michael David George, Appellant

                                                   v.

                                    The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
            NO. 0991958, HONORABLE JON WISSER, JUDGE PRESIDING




                Michael David George appeals from his conviction for possession of a controlled

substance, cocaine, in an amount of one gram or more but less than four grams. Tex. Health & Safety

Code Ann. § 481.115(c) (West Supp. 2001). After the trial court found him guilty, the court assessed

punishment at ten years’ confinement in the Texas Department of Criminal Justice-Institutional

Division, probated for five years’ community supervision. In one point of error, appellant complains

of the trial court’s failure to suppress that part of the cocaine that was seized from a locked briefcase.

We will overrule the point of error and affirm the conviction.


                               Factual and Procedural Background

                Officer Jenkins, a police officer with the City of Lakeway, stopped appellant’s vehicle

based on an earlier briefing that the driver of the vehicle had an outstanding warrant. Officers Davis

and Parker assisted Jenkins. After Jenkins took appellant into custody and began transporting

appellant to the Central Booking Station, Davis and Parker began to inventory appellant’s vehicle
before it was towed to impound, as was the standard policy of the Lakeway Police Department.

Davis began with the glove box. He found a drinking straw that had been cut and contained a white

residue, which Davis believed was a controlled substance. Davis then found two contact lens cases

in the glove box and opened them. One contained a white powder and the other contained a residue,

both of which later tested positive for cocaine. The officers also found a briefcase in the vehicle. The

officers at the scene radioed Jenkins and told him to tell appellant to give the officers the combination

to the briefcase or they would open it anyway. Appellant complied. The officers opened the

briefcase and found a baggie of cocaine.

                In one point of error, appellant complains that the search of the briefcase was

improper.1 Appellant does not otherwise challenge the search; his complaint of harm is that the

amount of cocaine found only in the contact lens cases would have resulted in his conviction for a

state jail felony with a maximum two-year sentence.


                                              Discussion

                Inventory searches are an exception to the warrant requirement of the Fourth

Amendment. Colorado v. Bertine, 479 U.S. 367, 371 (1987). The inventory search of a closed

container, when conducted in accordance with standardized police procedures that require a detailed

inspection and inventory of impounded vehicles, and when administered in good faith, satisfies the

Fourth Amendment to the United States Constitution. Id. Inventory searches approved under the




   1
      The State contends that appellant waived and failed to preserve any error because he did not
make the same argument to the trial court as he makes on appeal. Tex. R. App. P. 33.1; Bell v. State,
939 S.W.2d 35, 54 (Tex. Crim. App. 1996). Because appellant’s complaint fails in any event, we will
address it on the merits.

                                                   2
Fourth Amendment serve three purposes: (1) to protect the owner’s property while it is in police

custody; (2) to protect the police against claims or disputes over lost or stolen property; and (3) to

protect the police or public from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369

(1976). Police may open closed containers so long as it is done in accordance with standardized

procedures, when there is no showing that the police acted in bad faith or for the sole purpose of

investigation. Bertine, 479 U.S. at 375-76; see also United States v. Bowhay, 992 F.2d 229, 231 (9th

Cir. 1993) (dual motive of investigation and inventory does not make inventory pretext); United

States v. Frank, 864 F.2d 992, 1001 (3rd Cir. 1988) (same); Trujillo v. State, 952 S.W.2d 879, 882

(Tex. App.—Dallas 1997, no pet.) (Fourth Amendment requires only that the inventory not be a

pretext for a general rummaging).

               Appellant argues that Article I, Section 9 of the Texas Constitution provides greater

protection than the Fourth Amendment from inventory searches, relying on Autran v. State, 887

S.W.2d 31, 42 (Tex. Crim. App. 1994) (holding that police cannot rely upon inventory exception to

conduct search of closed container) (plurality op.).2 Since Autran, however, the Court of Criminal

Appeals has consistently concluded that Article I, Section 9 does not offer greater protection to

individuals than the Fourth Amendment. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App.

1998); Johnson v. State, 912 S.W.2d 227, 232 (Tex. Crim. App. 1995); Crittenden v. State, 899

S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995). Appellant offers no argument or authority as to how

the Texas constitutional protection, under these specific circumstances, differs from the protection




  2
      As a plurality opinion, Autran is not binding precedent. See Vernon v. State, 841 S.W.2d 407,
410 (Tex. Crim. App. 1992); Jurdi v. State, 980 S.W.2d 904, 907 (Tex. App.—Fort Worth 1998,
pet. ref’d); Trujillo v. State, 952 S.W.2d 879, 881 (Tex. App.—Dallas 1997, no pet.).

                                                  3
offered by the Fourth Amendment, nor does appellant point to any relevant textual differences. See

Johnson v. State, 853 S.W.2d 527, 533 (Tex. Crim. App. 1992).

                Several sister courts of appeals have held that Article I, Section 9 does not guarantee

any greater privacy interest in closed containers searched under a police department’s inventory

search policy than that found under the Fourth Amendment. State v. Mercado, 993 S.W.2d 815, 817

(Tex. App.—El Paso 1999, pet. ref’d); Jurdi v. State, 980 S.W.2d 904, 904 (Tex. App.—Fort Worth

1998, pet. ref’d); Trujillo, 952 S.W.2d at 8793; Madison v. State, 922 S.W.2d 610, 613 (Tex.

App.—Texarkana 1996, pet. ref’d). The record in the trial court below includes testimony that the

Lakeway police department had an established inventory policy and that the officers followed it. That

evidence was sufficient to satisfy the State’s burden of proof to show a proper inventory. Stephens

v. State, 677 S.W.2d 42, 44 (Tex. Crim. App. 1984).

                Appellant presents us with no compelling argument to revive Autran. Accordingly,

we overrule appellant’s only point of error and affirm the trial court’s judgment.




                                                Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: August 30, 2001


   3
       In Trujillo, as in this case, the container, a bank bag, was locked as well as closed.

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Do Not Publish




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