      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-03-00267-CR



                                David Edwin Wiede, Appellant


                                                v.


                                 The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
           NO. 96-0115, HONORABLE JACK ROBISON, JUDGE PRESIDING



                                         OPINION


               In 1997, a jury found David Edwin Wiede guilty of possession of methamphetamine.

Tex. Health & Safety Code Ann. § 481.115(d) (West 2003). The court sentenced Wiede to ten years’

imprisonment; imposition of the sentence was suspended and he was placed on community

supervision for ten years. In 2002, the State moved to revoke his community supervision, alleging

that he had violated the terms of his community supervision by again possessing methamphetamine.

Wiede pleaded not true to the allegations and moved to suppress the evidence as the product of an

unlawful search of his car. The district court denied Wiede’s motion, admitted the evidence, found

the State’s allegations to be true, and sentenced him to ten years in prison. On appeal, Wiede
challenges the revocation of his community supervision contending that the district court erred by

admitting the methamphetamine into evidence because (1) the State failed to prove the chain of

custody of the drugs admitted and (2) the drugs were the fruit of an unlawful search of his car. The

State responds that there was sufficient proof of chain of custody and that the search was lawful

because (1) there was no reasonable expectation of privacy in Wiede’s wrecked vehicle in light of

the statutory authority of the police to investigate a traffic accident, and (2) there was probable cause

to believe the car contained contraband.

                Wiede raised the same contentions in his appeal of the revocation of his community

supervision in a separate adjudication in Caldwell County. See Wiede v. State, No. 03-03-000325-

CR, 2005 Tex. App. LEXIS 452 (Tex. App.—Austin Jan. 21, 2005, pet. filed) (Wiede I). In Wiede

I, the State based its motion to revoke on the same allegation of possession of methamphetamine

presented in this appeal. See id. at *1. For essentially the same reasons stated in our opinion in

Wiede I, we reverse the judgment of the district court and remand for further proceedings.

                The record in the present case differs slightly from the record in Wiede I, but the basic

account of Wiede’s car accident and the subsequent search of his car is sufficiently set forth in our

prior opinion. We will limit our discussion to those aspects of the record which differ from the

evidence presented in Wiede I and whether those differences have an effect on our determination of

the lawfulness of the search. We will also address the State’s contention that Wiede’s lessened

expectation of privacy in his car, along with the statutory authority for the police to investigate the

accident, combine to permit the search.


                                                   2
Standard of Review

                Although the standard of review in a revocation proceeding is whether the trial court

abused its discretion in finding that the State proved a violation of the conditions by a preponderance

of the evidence, the evidence on which a trial court bases its determination must be properly

admitted in accordance with established search and seizure law. Wiede I, 2005 Tex. App. LEXIS

452, at *10-11; see Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.—El Paso 1999, no pet.)

(overlapping standards of review when considering suppression of evidence in decision to revoke

probation); State v. Barnett, 790 S.W.2d 662 (Tex. App.—Austin 1990, no pet.) (applying standard

of review for suppression in revocation of probation determination). We review the district court’s

decision to admit the methamphetamine discovered in the contested search giving almost total

deference to the district court’s determination of historical facts, and we review the district court’s

application of search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim.

App. 2002). When, as here, the district court does not make explicit findings of historical facts, we

review the evidence in a light most favorable to the district court’s ruling and assume that the district

court made implicit findings of fact supported in the record. Id. We must affirm the district court’s

ruling on a motion to suppress if it can be upheld on any valid theory of law applicable to the

case—even if the district court did not base its decision on the applicable theory. State v. Steelman,

93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543-544 (Tex. Crim.

App. 1990).


Relevant Facts

                Our review of the record points to three significant differences between the evidence

presented in this case and that found insufficient to support a valid search in Wiede I. The first

                                                   3
difference is in the witness Roy Tambunga’s account of Wiede’s traffic accident and Wiede’s actions

inside his car while awaiting medical care. In Wiede I, Tambunga gave only a brief description of

the accident and was not asked about its cause. By contrast, in this case Tambunga clarified that the

truck made a left turn in front of Wiede. When asked directly by the trial judge whether the truck

failed to yield the right of way, Tambunga responded:


       Truthfully, I think that you should know that when you’re driving a big truck like
       that, you can’t move very fast. I think he pulled out and didn’t give enough room for
       the traffic, but I also think that the white car was traveling a little bit faster than the
       speed limit.


When compared to the record in Wiede I, Tambunga’s testimony more clearly reflects that Wiede’s

collision with the truck was at least as attributable to the actions of the truck driver as to either

recklessness or intoxication on the part of Wiede.

               Tambunga’s testimony also differs in his description of Wiede’s furtive gesture. In

Wiede I, Tambunga testified that he never saw what Wiede placed between the seat and the console

of the car because Wiede’s hand was closed all the way around the item. In this case, Tambunga

testified that he did see what Wiede was hiding:


       It appeared to be—it was covered by his hand for the most part and it was—it
       appeared to be made out of plastic, clear plastic similar to a sandwich bag.


At trial, Tambunga was uncertain if he told the officers at the scene that what he saw was plastic.

However, in reaching his decision to admit the evidence the trial judge observed that Tambunga must




                                                   4
have told the officer who conducted the search because he informed the officer that the first plastic

bag removed from the car was too small to be the item he saw Wiede conceal.

               The third relevant distinction between this record and Wiede I is in Officer

McGuairt’s account of his actions after the methamphetamine was discovered in Wiede’s vehicle.

When asked if he notified EMS that he had found the methamphetamine, McGuairt replied:


       Okay. I do recall. I do recall. After the substance was located—I do recall this. I
       did walk up to the back door of the EMS. It was still there. I remember even
       knocking on the door and having a paramedic come to the back door and I advised
       him. I didn’t show them where it had been located.


McGuairt did not testify in Wiede I that he informed EMS of the discovery of the methamphetamine.

When asked on cross examination in that case whether he had requested that EMS test Wiede for

controlled substances, McGuairt stated that this would have been the duty of another officer.

               Although the majority of our discussion of the search of Wiede’s car in Wiede I

remains unaffected, the differences in the record between the two hearings require additional

discussion of whether the search of Wiede’s car was supported by probable cause or was justified

as part of the officers’ community caretaking function. We will also discuss the statutory authority

of the police to investigate a traffic accident and its relevance to the lawfulness of the search.


Diminished Expectation of Privacy and Transportation Code

               The State contends that Wiede had no reasonable expectation of privacy in his car

after colliding with the truck and, therefore, the search did not violate his Fourth Amendment rights.

Citing a provision of the transportation code that gives police the authority to investigate traffic



                                                  5
accidents, the State argues that the owner of a vehicle involved in a collision has reason to believe

the car will be removed from the roadway and a search of its contents conducted. Thus, there is no

reasonable expectation of privacy in the vehicle and the search was proper.

               We find that the cases cited in the State’s brief discussing the diminished expectation

of privacy in a vehicle do not support the proposition that there is no reasonable expectation of

privacy once a vehicle is disabled in a traffic accident.1 Clearly, much of the contents of a vehicle

are in plain view and open to inspection in the course of the investigation of a traffic accident.

However, the Supreme Court has consistently held that the Fourth Amendment applies to motor

vehicles and that the police must have probable cause to search. See Carroll, 267 U.S. at 149

(warrantless search of automobile not unreasonable under Fourth Amendment if supported by

probable cause); Houghton, 526 U.S. at 300; see also New York v. Class, 475 U.S. 106, 112 (1986)

(“A citizen does not surrender all the protections of the Fourth Amendment by entering an

automobile.”). The Supreme Court recognized the diminished privacy interest and inherent mobility

of motor vehicles only by eliminating the requirement that police obtain a warrant prior to searching

a vehicle. See Wyoming v. Houghton, 526 U.S. 295, 300 (1999); Carroll v. United States, 267 U.S.

132, 147 (1925).




       1
         None of the cases cited as authority for the diminished expectation of privacy in a vehicle
deal with a search similar to the one in this case. See Cardwell v. Lewis, 417 U.S. 583, 592-93
(1974) (observation of paint scrapings on outside of car); South Dakota v. Opperman, 428 U.S. 364,
375-76 (1976) (inventory search); California v. Carney, 471 U.S. 386, 394 (1985) (no warrant
required for search of motor home); Robertson v. State, 541 S.W.2d 608, 611 (Tex. Crim. App.
1976) (inventory search).

                                                 6
               The transportation code also does not grant the police additional authority to search

a vehicle. The State cites section 550.041(a) of the transportation code:


       A peace officer who is notified of a motor vehicle accident resulting in injury to or
       death of a person or property damage to an apparent extent of at least $1000 may
       investigate the accident and file justifiable charges relating to the accident without
       regard to whether the accident occurred on property to which this chapter applies.


Id. § 550.41(a). We find no authority construing this statue—certainly none that would permit a

peace officer to search a vehicle outside of the well delineated constraints of the Fourth Amendment.

In fact, our review of the history of section 550.041(a) suggests that the provision was intended

merely to clarify a peace officer’s authority to investigate some traffic accidents which occur on

private property rather than on the public roadways. See Act of August 28, 1967, 60th Leg., R.S.,

ch. 526, 1967 Tex. Gen. Laws 1175, § 43(A) (recodified and amended 1995) (current version at Tex.

Transp. Code Ann. § 550.041). Prior to its recodification in the transportation code, the statute

specified that a peace officer was permitted to investigate some accidents which occurred on private

property but not others:


       without regard to whether the accident occurred on a public street or highway . . . or
       on private property commonly used by the public such as a supermarket or shopping
       center parking lots . . . [i]t is specifically provided, however, that this Section shall
       not apply to accidents occurring on privately owned residential parking areas or on
       privately owned parking lots where a fee is charged for the privilege of parking or
       storing a motor vehicle.


Id. § 43(A). The caption of this provision also explains that the purpose of the act is to extend the

traffic laws to certain private property. Id. Nothing in the statute indicates that it was intended to



                                                  7
establish an independent power to investigate accidents beyond the ordinary community caretaking

functions of the police.

               In light of the language and history of section 550.41(a), we cannot conclude that the

statute was intended to expand the authority of the police so as to permit the search of a vehicle

absent probable cause. In any event, a statutory provision can not erase Fourth Amendment

protections. Although we acknowledge that an individual possesses a reduced expectation of privacy

in a motor vehicle, this diminished privacy interest has been recognized in well established search

and seizure law. We will not further construe this reduced expectation of privacy to dispense with

the Fourth Amendment’s probable cause requirement altogether when a vehicle is involved in a

traffic accident. See Class, 475 U.S. at 112; Wiede I, 2005 Tex. App. LEXIS 452, at *23-24.


Probable Cause

               The State also asserts that the police had probable cause to believe Wiede’s car

contained contraband. In Wiede I, we concluded that the evidence presented did not demonstrate that

the police had probable cause to believe that Wiede’s vehicle contained evidence of a crime. See

2005 Tex. App. LEXIS 452, at *24. We explained that Wiede’s furtive gesture in the context of a

vehicle collision amounted at most to reasonable suspicion and that the officer’s duty to investigate

a traffic accident would not elevate that suspicion to probable cause. Id. The additional facts in the

present record do not change that conclusion.

               The most significant difference in the record in this case with regard to probable cause

is the fact that Tambunga testified that he saw clear plastic in Wiede’s hand when Wiede made his

furtive gesture. The trial court also found that this observation must have been communicated to the

                                                  8
officer conducting the search. The State points to the comments of the trial court that, “with officers

seeing dope in plastic bags all the time,” Tambunga’s observations represented probable cause for

police to believe Wiede possessed drugs. However, the court of criminal appeals has repeatedly held

that there is nothing inherently suspicious about a plastic bag. See Gonzales v. State, 648 S.W.2d

684, 686 (Tex. Crim. App. 1983); Sullivan v. State, 626 S.W.2d 58, 60 (Tex. Crim. App. 1981) (“a

clear plastic bag is not an object that is inherently dangerous, contraband, or stolen goods”); Duncan

v. State, 549 S.W.2d 730, 732 (Tex. Crim. App. 1977). For a plastic bag to gain the significance

attributed to it by the trial judge, there must be evidence that the seizing officer knew at the time of

the search that drugs were commonly packaged in plastic bags and suspicious circumstances that

would lead an officer to believe the bag contained drugs. Sullivan, 626 S.W.2d at 60; see Guzman

v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997). Here, the State was unable to even identify the

officer who conducted the search and there is nothing in the record establishing any officer’s

knowledge that plastic bags are ordinarily used to contain drugs. Furthermore, there are no

suspicious circumstances in the record that would lead an officer to believe that Wiede was in

possession of drugs.

               Tambunga’s comments regarding the cause of the accident also weaken the State’s

argument on probable cause when compared to Wiede I. Tambunga essentially dispelled any notion

that Wiede’s collision with the truck was evidence of intoxication. Tambunga testified that the truck

pulled out in front of Wiede’s vehicle without leaving enough room for traffic and that Wiede was

only traveling a “little bit” faster than the 55 or 60 mile per hour speed limit.




                                                   9
               We conclude that, even when viewed most favorably to the district court’s decision,

the totality of the circumstances presented at the hearing did not demonstrate that the unidentified

police officer had probable cause to believe that Wiede’s vehicle contained evidence of a crime. The

additional evidence that Tambunga may have seen a plastic bag, without any evidence in the record

of suspicious circumstances or of the searching officer’s experience and knowledge of the use of

such materials as packaging for drugs, does not lead us to a different conclusion than in Wiede I. See

Guzman, 955 S.W.2d at 90; Sullivan, 626 S.W.2d at 60.


Community Caretaking

               We thoroughly discussed the application of the community caretaking doctrine to the

search in Wiede I and concluded that it did not justify the search. Although the record in this case

is somewhat different, this difference only affects our analysis of the application of the emergency

doctrine component of the police’s community caretaking function.2 However, we remain convinced

that the record does not demonstrate that the search of Wiede’s car was conducted in furtherance of

the officers’ community caretaking function.

               The most significant variation in the record between this case and Weide I is Officer

McGuairt’s testimony regarding his interaction with EMS. In Wiede I, we examined the State’s

contention that the search of Wiede’s car was justified out of concern that Wiede might be under the

influence of drugs and that producing the drugs was necessary to assist in his medical treatment. See

2005 Tex. App. LEXIS 452, at *26. McGuairt testified that Tambunga’s description of Wiede’s


       2
         As in Wiede I, the record does not support a finding that an inventory search was
conducted.

                                                 10
furtive gesture provoked the thought that he should inform medical personnel if what had been

removed from his pocket was found to be a controlled substance. In rejecting the claim we noted:


       McGuairt did not inform the medical personnel of the possibility Wiede was
       intoxicated, did not tell anyone else to tell them, and did not know whether anyone
       told them.


Id. at *31. In the present case, McGuairt did not testify that he was concerned for Wiede’s medical

care. He characterized the search as an investigation of the accident as well as a criminal

investigation. However, McGuairt did testify that, upon locating the drugs, he showed them to EMS

personnel.

               Although we cannot explain the disparity in the record between these two hearings

conducted within a month of each other, we find that McGuairt’s actions after the discovery of the

methamphetamine has little relevance in determining the motivation of the officers prior to

conducting the search. A search is justified under the emergency doctrine if, at its onset, (1) the

officer’s actions were totally divorced from the detection, investigation, or acquisition of evidence,

(2) there was an immediate, objectively reasonable belief that the search is necessary in order to

protect or preserve life or avoid serious injury, and (3) the scope of the search was strictly

circumscribed by the facts of the emergency. Laney v. State, 117 S.W.3d 854, 861-62 (Tex. Crim.

App. 2003); Gonzales v. State, 148 S.W.3d 702, 708 (Tex. App.—Austin 2004, no pet. h.). We

apply an objective standard of reasonableness and independently scrutinize the facts without regard

to the subjective conclusions of the police. Gonzales, 148 S.W.3d at 707.




                                                 11
                Applying this standard, we focus only on those facts known to the officers at the time

of the search. Even if McGuairt’s actions in showing the drugs to EMS is evidence of his concern

for Wiede’s safety, at its inception the search must have been based on an “objectively reasonable

belief” that it was necessary to protect or preserve life or avoid serious injury. See Laney, 117

S.W.3d at 861-62; Gonzales, 148 S.W.3d at 708. As we explained earlier in this opinion and in

Wiede I, the facts known to the police demonstrated only a reasonable suspicion that there was

contraband in the car. Such speculation is insufficient to demonstrate an objectively reasonable

belief under the emergency doctrine. See Gonzales, 148 S.W.3d at 709. Furthermore, McGuairt

admitted, and the record clearly reflects that the search was conducted, at least in part, as a criminal

investigation. Thus, the search was not totally divorced from the detection, investigation, or

acquisition of evidence. See Laney, 117 S.W.3d at 861-62; Gonzales, 148 S.W.3d at 708. We hold

that the search was not justified under the emergency doctrine.

                Because the State did not establish that there was either probable cause to support the

search of Wiede’s vehicle, or that the search was justified under an exception to the Fourth

Amendment’s probable cause requirement, we hold that the district court abused its discretion by

admitting the methamphetamine. The sole ground advanced in the State’s motion to revoke

community supervision was based on Wiede’s possession of methamphetamine. Therefore, the

admission of the methamphetamine into evidence was the only basis for the district court’s decision

to revoke Wiede’s probation. The error in its admission was thus harmful.

                Because the remaining issue concerning inadequate proof of the chain of custody of

the methamphetamine would not require any greater relief, we need not address it.



                                                  12
Conclusion

               The district court erred by admitting the methamphetamine into evidence.

Accordingly, we reverse the district court’s judgment revoking Wiede’s probation and remand the

cause for further proceedings not inconsistent with this opinion.




                                             David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear: Opinion by Justice Puryear;
  Dissenting Opinion by Justice Patterson

Reversed and Remanded

Filed: April 14, 2005

Publish




                                                13
