      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00325-CR



                                  David Edwin Wiede, Appellant

                                                   v.

                                   The State of Texas, Appellee




   FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
          NO. 97-007, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                                            OPINION


                In 1997, David Wiede pleaded guilty to a charge of possession of methamphetamine

and was sentenced to ten years in prison; imposition of the sentence suspended and he was placed

on probation for ten years.1 In 2002, the State moved to revoke his probation, alleging that he had

violated the terms of his probation by again possessing methamphetamine and by failing to pay fines

and fees. Wiede pleaded not true to all the allegations in the State’s motion and moved to suppress

evidence obtained as the result of an unlawful search of his car. In its written order, the court denied

Wiede’s motion, found all the State’s allegations to be true, revoked Wiede’s probation, and

sentenced him to eight years in prison.




       1
          At the same time he pleaded guilty to possession of marihuana. He was sentenced to two
years in prison, imposition of sentence was suspended and he was placed on probation for five years.
Wiede successfully completed that probationary term, and that offense is not before us.
                On appeal, Wiede contends that the trial court erred in revoking his probation by two

points of error (1) that the district court erred by admitting into evidence the methamphetamine

related to the new offense, and (2) that the district court erred by considering his failures to pay fines

and fees because the State waived those grounds at trial. The State contends that the evidence was

properly admitted, but concedes that it waived at trial the administrative grounds for revocation and

that the court consequently erred by revoking Wiede’s probation on those grounds. Because we hold

that the search of Wiede’s car was an unreasonable search under the Fourth Amendment of the

United States Constitution, we will reverse the judgment and remand the cause to the trial court for

further proceedings.


                                           BACKGROUND

                The following is a summary of testimony from the combined hearing on the motion

to suppress and the motion to revoke probation. The hearing occurred on two days a week apart.

                At approximately 7:00 a.m. on April 17, 2002, motorist Roy Tambunga stopped at

the T-intersection of Siebert Drive and F.M. 150 behind an 18-wheel truck loaded with sod. He

waited while the truck turned left onto F.M. 150. As Tambunga turned right onto F.M. 150, he saw

Wiede’s car pass by. Although he was unsure of Wiede’s speed, he testified that the car was

traveling “at least the speed limit, at least 60 miles an hour.” Looking through his side view mirror,

Tambunga watched as Wiede collided with the truck that had turned onto the road in front of him.

A photograph of the accident scene introduced into evidence shows long skid marks caused by

Wiede’s car prior to the collision. The truckdriver continued driving as if unaware the accident had

occurred. Tambunga stopped to check Wiede’s condition. Wiede’s head was bleeding and his arm

                                                    2
appeared to have a compound fracture. (Wiede later was found also to have a fractured pelvis that

required a plate and multiple screws to mend.) Tambunga testified that Wiede was conscious but

dazed, in pain, and moaning occasionally. A department of public safety trooper stopped and called

in the accident.

               Tambunga remained near Wiede’s car and saw him moving around and looking back

at Tambunga. At one point, Wiede’s movements led Tambunga to believe he was going to light a

cigarette. Leaning forward to dissuade Wiede from smoking, Tambunga saw Wiede instead cupping

an item in his hand and pushing it between the console and the front seat; Tambunga never saw the

item. Another peace officer arrived. After Wiede was removed from the car and taken to an

ambulance, Tambunga told the unidentified officer, “You may want to check the seat, because he

was messing around with something there.”2 The officer reached into the car and pulled out an

empty plastic bag less than two inches square that Tambunga said was too small to be what Wiede

had held. The officer reached in again and pulled out a larger plastic bag that appeared to contain

about a half inch of an off-white powder.

               Tambunga testified that after stopping he was never more than eight feet from Wiede

until the emergency medical technicians moved Wiede to the ambulance. Tambunga did not hear

the officers ask Wiede where he wanted his car taken. Tambunga testified that he did not see any




       2
          Tambunga testified that the unidentified officer was possibly a sheriff’s deputy or a Kyle
city policeman. Tambunga testified that he was new to the area and did not know the area
departments’ uniforms. He was certain, however, that the person was neither an emergency medical
technician nor a state trooper.

                                                 3
officer search the car after finding the baggies or write down anything on a form. Tambunga was

at the scene until the tow truck hooked up to Wiede’s car.

               DPS trooper Christopher McGuairt testified that he and other peace officers were

driving to a training session in San Marcos when they came upon the accident scene and stopped.

(Because McGuairt is based in Fort Stockton, he stopped to secure the scene but did not investigate

the accident.) After Tambunga described the vehicle Wiede collided with, McGuairt drove on and

stopped the truck driver, who was apparently unaware the collision had occurred; McGuairt and the

truck returned to the scene. McGuairt said that Tambunga then told him and the unidentified officer

something3 that prompted the other officer to reach into the car near the center console and retrieve

a plastic bag containing an off-white powdery substance. McGuairt testified that, based on

Tambunga’s statement, the officer looked only by the console and did not search the car generally.

               McGuairt, who was unfamiliar with the uniforms of local law enforcement agencies,

was uncertain whether the person who retrieved the contraband was a deputy sheriff or an officer of

another department. Based on the person’s uniform, badge, sidearm, and conversation with other

peace officers, McGuairt testified that the person was either an officer or impersonating one;

McGuairt was reasonably certain that the person was an officer.

               On the second day of the hearing, McGuairt testified that the severity of the wreck

gave him concern for Wiede’s health and well-being. Moreover, Tambunga’s statement made him

suspect that the item stashed near the console might be a controlled substance, that Wiede might be




       3
        The Court sustained Wiede’s hearsay objection to McGuairt’s testimony about what
Tambunga said.

                                                 4
under the influence of that controlled substance, that medical personnel treating Wiede would need

to know what that substance was, and that the nature of the substance could affect civil liability

regarding the accident. However, he did not inform the medical personnel about the recovered

substance, did not remind the investigating officer to notify the medical personnel to test Wiede for

controlled substances, and did not hear the investigating officer do so.

               DPS Trooper Brian Freeman investigated the accident. He testified that the collision

rendered Wiede’s car inoperable. Freeman said that McGuairt gave him a clear plastic bag suspected

of containing a powdery controlled substance. Freeman testified that his supervisor conducted an

inventory of the car, but the inventory report listed only the baggie seized from the car and did not

list items in plain view in the car, such as the many compact discs that a friend of Wiede’s later

retrieved. Freeman testified that Wiede’s vehicle was towed to an impound lot, but not to a DPS

facility.

               Wiede was hospitalized following surgery and was concerned that the items left in

his car might be stolen. Wiede’s friend, David Duggan, testified that he went to the lot where

Wiede’s car was towed and removed valuable items at Wiede’s request. Duggan testified that he

removed a compact disc player, several CDs, a CD changer, a stereo system, an amplifier, Snap-on

tools, Oakley sunglasses, clothes, a silver ring, a gold chain, a nice winter coat, boots, two credit

cards, and change. Duggan testified that the items appeared valuable and that Wiede tended to have

top-of-the-line possessions.

               The district court orally denied the motion to suppress. The court held that the drugs

were not found pursuant to an inventory, but as part of an investigation into what Wiede had



                                                 5
concealed at the scene of this accident. Alternatively, the court cited the officer’s role as a

community caretaker as a basis for the search.

                 The hearing continued on the motion to revoke. Wiede testified, denying ownership

or knowledge of the drugs found in his car. His former sister-in-law, Kathleen Vann, testified that

she had borrowed the car and, after invoking her right not to testify, rescinded that invocation and

testified that the methamphetamine found in the car was hers. The district court then found the

allegation of methamphetamine possession true and revoked Wiede’s probation.


                                            DISCUSSION

                 Wiede raises two points of error regarding the admission of evidence. He contends

that the district court erred by denying his motion objecting to the admission into evidence of the

baggie containing the methamphetamine, contending that the officers lacked any legal basis for their

warrantless search of his vehicle. He also asserts that the State failed to establish a chain of custody

of the baggie.

                 In reviewing a ruling on a challenge to the admission of evidence, we give almost

total deference to the trial court’s determination of historical facts and review the court’s application

of search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

When the trial court does not make explicit findings of historical facts, we review the evidence in

a light most favorable to the trial court’s ruling and assume that the trial court made implicit findings

of fact supported in the record. Id. We must affirm the trial court’s ruling if it can be upheld on any

valid theory of law applicable to the case—even if the trial court did not base its decision on the




                                                   6
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).

               Once the defendant establishes that a police search was not supported by a warrant,

the burden shifts to the State to prove the reasonableness of the search and seizure. Russell v. State,

717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986); Mendoza v. State, 30 S.W.3d 528, 531 (Tex.

App.—San Antonio 2000, no pet.) (burden on State to prove reasonableness of warrantless search

of vehicle). It is undisputed in this case that Wiede was not arrested and that the search was

warrantless.

               The dissent contends that we have failed to adhere to the standard of review. Indeed,

the dissent correctly recites the standard of review for a probation revocation determination. See

Ortega v. State, 860 S.W.2d 561, 564 (Tex. App.—Austin 1993, no pet.) (burden of proof on state

to show violation of conditions of probation as alleged in motion by preponderance of the evidence

and trial court’s determination reviewed for abuse of discretion). However, the evidence on which

a trial court bases its determination must be properly admitted in accordance with established search

and seizure law. 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). Because the State only relies

upon Wiede’s possession of methamphetamine as grounds for the revocation of probation, our

determination of whether the methamphetamine was properly admitted controls whether the trial

court abused its discretion in this case. See Gordon, 4 S.W.3d at 38.



                                                  7
               A number of possible justifications for the search of Wiede’s car have been advanced

in the State’s brief, as well as by the dissent. The State asserts that the nature of the accident gave

police probable cause to arrest Wiede and search his car for evidence either relating to traffic

violations or other offenses. The State and dissent also contend that the search was valid under the

officer’s community caretaking function. The State concedes that police did not conduct an

inventory search.


Probable Cause

               The State contends that the circumstances at the scene provided probable cause to

search Wiede’s car for evidence related either to a traffic offense or possession of a controlled

substance. An officer may conduct a warrantless search of a motor vehicle if the officer has probable

cause to believe the vehicle contains evidence of a crime. Powell v. State, 898 S.W.2d 821, 827

(Tex. Crim. App. 1994). Police officers have the right to search an entire vehicle when they have

probable cause to believe there is contraband in the vehicle but do not know where it is located.

United States v. Ross, 456 U.S. 798, 825 (1982). Probable cause determinations in warrantless

search situations are made using the same standard as searches involving warrants. Whiteley v.

Warden, 401 U.S. 560, 566 (1971). To determine whether probable cause existed to believe

evidence of a crime would be found in a certain place, we look at the totality of the circumstances

to determine if there is a substantial basis for concluding that probable cause existed at the time of

the questioned action. See Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App. 1988),

overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991).




                                                  8
An officer’s inarticulate hunch, suspicion, or good faith is insufficient to constitute probable cause.

Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972).


Traffic offense

               The State contends that Wiede’s apparent violation of traffic laws provided probable

cause to support his arrest, and therefore a search of his vehicle. The State asserts that the evidence

at the scene—the long skid marks, the damage to Wiede’s car, the observation that he was traveling

around the speed limit of 60 miles per hour—provided probable cause to believe that Wiede violated

the requirement that he control his speed sufficiently not to collide with another vehicle entering the

highway. See Tex. Transp. Code Ann. § 545.351(b)(2) (West 1999); see also id. § 543.001 (“Any

peace officer may arrest without warrant a person found committing a violation of this subtitle.”).

               Courts permit a warrantless search of an automobile incident to the arrest of its

occupants. See New York v. Belton, 453 U.S. 454, 460-62 (1981). Probable cause for an arrest exists

where, at that moment, facts and circumstances within the knowledge of the arresting officer, and

of which he has reasonably trustworthy information, would warrant a reasonably prudent person in

believing that a particular person has committed or is committing a crime. See Smith v. State, 739

S.W.2d 848, 851 (Tex. Crim. App. 1987). It is irrelevant that the arrest occurs immediately before

or after the search, as long as sufficient probable cause exists for the officer to arrest before the

search. Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986) (citing Rawlings v. Kentucky,

448 U.S. 98, 111 (1980)). Courts permit warrantless searches incident to arrest even if no arrest has




                                                  9
occurred at the time of the search, as long as the probable cause to support the arrest existed at the

time of the search. See Ballard v. State, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999) (admitting

evidence from search of truck driven erratically by man with slurred speech and impaired balance,

despite officer’s statement that he did not form impression as to cause of impairment and absence

of arrest); see also Dyar v. State, 59 S.W.3d 713, 716-17 (Tex. App.—Austin 2001), aff’d, 125

S.W.3d 460 (Tex. Crim. App. 2003) (admitting blood sample from intoxicated person pulled from

wreckage in one-car accident and arrested in hospital).

                The search in this case, however, was not incident to an arrest. Although the search

incident to arrest can precede the arrest, the arrest must occur within the same encounter. In Ballard,

the court of criminal appeals wrote:


        Moreover, the fact that the search incident to the arrest preceded the formal custodial
        arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S.
        98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (“Once [Rawlings] admitted ownership
        of the sizable quantity of drugs found in [the] purse, the police clearly had probable
        cause to place [him] under arrest. Where the formal arrest followed quickly on the
        heels of the challenged search of [Rawlings’] person, we do not believe it particularly
        important that the search preceded the arrest rather than vice versa.”)


726 S.W.2d at 101 (emphases added). But here there was no arrest for the traffic violation a few

moments after the search or later at the hospital. This search was not conducted incident to an arrest.

                Nor did the probable cause for an arrest, without the arrest, provide reason for a

warrantless search of the car. See Knowles v. Iowa, 525 U.S. 113, 114-18 (1998). In Knowles, an

Iowa police officer stopped a driver for speeding and issued a citation rather than arresting the driver;




                                                   10
the officer then searched the car, found marihuana, and arrested the driver. The United States

Supreme Court held that the officer did not have reason to search the car. Id. Iowa courts had

denied Knowles’s motion to suppress, citing an Iowa statute permitting a search incident to the

issuance of a citation for a traffic violation. Id. at 115. The Supreme Court concluded that a search

incident to arrest is permissible on two bases: (1) the need to disarm the suspect in order to take him

into custody, and (2) the need to preserve evidence for later use at trial. Id. at 117. The Supreme

Court found that neither basis was present in the search of Knowles’s car. Id. at 117-18. Regarding

the need to preserve evidence, the Court wrote:


       Once Knowles was stopped for speeding and issued a citation, all the evidence
       necessary to prosecute that offense had been obtained. No further evidence of
       excessive speed was going to be found either on the person of the offender or in the
       passenger compartment of the car.

       Iowa nevertheless argues that a “search incident to citation” is justified because a
       suspect who is subject to a routine traffic stop may attempt to hide or destroy
       evidence related to his identity (e.g., a driver’s license or vehicle registration), or
       destroy evidence of another, as yet undetected crime. As for the destruction of
       evidence relating to identity, if a police officer is not satisfied with the identification
       furnished by the driver, this may be a basis for arresting him rather than merely
       issuing a citation. As for destroying evidence of other crimes, the possibility that an
       officer would stumble onto evidence wholly unrelated to the speeding offense seems
       remote.


Id. at 118. The Court reversed the conviction and remanded the cause.

               The State’s attempt to base the search on the alleged traffic violation makes this case

strikingly similar to Knowles. Although there was no citation issued here, the reasoning is

applicable. The officers had Tambunga’s eyewitness testimony about Wiede’s failure to control the



                                                   11
speed of his car, and they could see the long skid marks on the road and the damage to the car.

Speeding offenses under the transportation code are strict liability offenses. Nam Hoai Le v. State,

963 S.W.2d 838, 841 (Tex. App.—Corpus Christi 1998, pet. ref’d). The State did not produce

evidence or articulate any reason to believe that a search of the car—particularly, the space between

the driver’s seat and the center console—would produce additional evidence relevant to the offense

of failing to control speed. The officer must have probable cause to believe that the car contains

evidence of the crime under investigation, not evidence of some unrelated crime. Powell, 98 S.W.3d

at 827.


Other offenses

               The State alternatively argues that probable cause existed to search the vehicle for a

controlled substance based on Tambunga’s observation of Wiede furtively hiding a small object.

This furtive gesture, coupled with the nature of the accident, urges the State, gave the officers

probable cause to believe that Wiede was driving while intoxicated (or under the influence of some

substance) and that the hidden object was the intoxicant. The State need not obtain a warrant prior

to searching an automobile if probable cause exists to believe it contains contraband. Pennsylvania

v. Labron, 518 U.S. 938, 940 (1996). Therefore, we look to see if the State presented evidence

supporting probable cause to believe that Wiede was either driving while intoxicated or otherwise

in possession of contraband.

               Construing the evidence most favorably to the district court’s decision, the police

knew that a bystander had seen the injured driver of a wrecked vehicle reach across his body with



                                                 12
his uninjured arm while police were not watching and hide something smaller than his fist between

the driver’s seat and the center console.4 Wiede was seriously injured, dazed, and moaning after the

collision. But there is no evidence that he showed any signs of intoxication. Although Wiede was

driving at or above the speed limit, there is no evidence that his driving before the collision was

erratic. There is no evidence of any odors associated with intoxication or drug possession emanating

from Wiede or his car. There is no indication that any alcohol, drugs, or drug paraphernalia were

in plain view; the photo of the interior of the car shows only clutter. Because the officer who

actually conducted the search of Wiede’s car was never identified and did not testify, there is no

evidence in the record as to his actual motivation for the search.

               The court of criminal appeals has repeatedly held that a “furtive gesture,” such as the

one described by Tambunga, made while a person is stopped for a traffic offense does not establish

probable cause for a search. See Howard v. State, 599 S.W.2d 597, 604-05 (Tex. Crim. App. 1979)

(dipped down in seat toward steering wheel when stopped for failing to use turn signal); Beck v.

State, 547 S.W. 266, 268-69 (Tex. Crim. App. 1976) (reached toward glove compartment when

stopped for failing to use turn signal); Wilson v. State, 511 S.W.2d 531, 535 (Tex. Crim. App. 1974)

(moved hand between seats when stopped for running red light); see also Jenkins v. State, 76 S.W.3d

709 (Tex. App.—Corpus Christi 2002, pet. ref’d); Ramsey v. State, 806 S.W.2d 954, 957 (Tex.

App.—Austin 1991, pet. ref’d).


       4
          We do not question the reliability of the information provided by the bystander Tambunga.
See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997) (we give almost total deference to trial court’s determination of
credibility and historical fact). However, we emphasize that Tambunga’s testimony is of limited
value because he witnessed only a furtive gesture and not criminal activity.

                                                 13
               The facts surrounding the search of Wiede’s car are similar to those found insufficient

to justify a search in Wilson. Wilson was pulled over by police for running a red light. Wilson, 511

S.W.2d at 532. As Wilson pulled over to the side of the road, the police officer witnessed Wilson

make a move with his hand between the two seats. Id. The police searched where Wilson had

moved his hand and discovered contraband. Id. Similarly, Wiede committed the traffic offense of

failing to control speed when he collided with the truck. While awaiting medical assistance, he

reached between the seat and console with a small unidentified object in his hand. Movements like

Wiede’s and Wilson’s, even when coupled with a traffic offense, are not supportive of probable

cause to search a vehicle “because of the ambiguous and potentially innocent nature of such

movements.” Howard, 599 S.W.2d at 604.

               Moreover, we cannot conclude that Wiede’s gesture, coupled with a traffic accident,

constitutes “suspicious circumstances” that provided probable cause for the search. See Tex. Code

Crim. Proc. Ann. art. § 14.03(a)(1) (West Supp. 2004-05); Dyar, 59 S.W.3d at 716-17. Section

14.03(a)(1) of the code of criminal procedure only provides that an officer may make an arrest

without first obtaining a warrant when there are “suspicious circumstances.” There must still be

probable cause to make the arrest. See Dyar v. State, 125 S.W.3d 460, 464 (Tex. Crim. App. 2003).

Furthermore, the record does not support a characterization of this collision as “suspicious.” Wiede

attempted but was unable to stop his vehicle when a heavily loaded 18-wheel truck turned onto the

road in front of him; there is no evidence in the record that he was driving erratically or that he was

intoxicated. By contrast, “suspicious circumstances” were found in Dyar where a seventeen-year-old

driver was taken to the hospital after his car left the road and turned upside down, police had been



                                                  14
informed that Dyar was en route to Houston after “partying” for New Year’s Eve, Dyar admitted to

drinking alcohol and driving, and he appeared intoxicated. Id. at 461-62.

               We also find no significant difference between Wiede’s failure to stop for the truck

and the failure to stop for a red light in Wilson. Although the United States Supreme Court has

stated in dicta that vehicles are “exposed to traffic accidents that may render all their contents open

to public view,” Houghton, 526 U.S. at 393, we do not read this comment, or any other precedent,

to establish a general exception to the Fourth Amendment’s probable cause requirement for the

investigation of traffic accidents. See 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.”).

               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.

Without any additional evidence of intoxication or another crime, Wiede’s furtive gesture after

colliding with the truck amounts to only reasonable suspicion not probable cause. Nor can we

cumulate this reasonable suspicion and a police officer’s duty to investigate a traffic accident to

satisfy the Fourth Amendment. The search of a vehicle by the police is permitted only when there

is probable cause to believe the search will uncover evidence of a crime or when the search is

justified under one of the few specifically established and well delineated exceptions to the Fourth

Amendment’s requirement of probable cause. The traffic accident that transformed Wiede’s furtive

gesture into reasonable suspicion of criminal activity cannot also elevate reasonable suspicion to

probable cause.



                                                  15
Community caretaking

                Absent probable cause, an officer’s warrantless search may be justified as conducted

in the course of his community caretaking function. See Laney v. State, 117 S.W.3d 854, 858-59

(Tex. Crim. App. 2003). The court of criminal appeals has stated that a court may consider evidence

discovered by police who search property without warrants while acting in their roles as community

caretakers under three doctrines: the automobile impoundment/inventory doctrine, the emergency

doctrine, and the Cady doctrine. Laney, 117 S.W.3d at 861. Having established these exceptions

to the Fourth Amendment requirement of probable cause, however, the court cautioned: “While we

today recognize the existence of the community caretaking function in Texas, we emphasize its

narrow applicability.” Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App. 1999); see also United

States v. Robinson, 414 U.S. 218, 243 (1973) (“Exceptions to the warrant requirement are not

talismans precluding further judicial inquiry whenever they are invoked . . . but rather are jealously

and carefully drawn.”); Corbin v. State, 85 S.W.3d 272, 281 n.7 (Tex. Crim. App. 2002) (Cochran,

J., concurring) (emergency search must not be primarily motivated by intent to arrest and seize

evidence and it is essential that courts be alert to possibility of subterfuge).

                The State and the dissent assert that the search was conducted in the course of the

officer’s community caretaking function: assisting in Wiede’s medical care and investigating an

accident. We will explore all three types of community caretaking to see if there is support for the

trial court’s decision.

                Under the inventory doctrine, police are permitted to search impounded vehicles to

make an inventory of items in the car in order to protect the owner’s property, to protect the police



                                                  16
from claims for lost property, and to protect the police from dangerous contents. Opperman, 428

U.S. at 369-70, 375. Under the emergency doctrine, police may conduct a search without a warrant

if: (1) the officer’s actions are totally divorced from the detection, investigation, or acquisition of

evidence, (2) there is 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 is strictly

circumscribed by the facts of the emergency. See Laney, 117 S.W.3d at 861-62; Gonzalez v. State,

148 S.W.3d 702, 708 (Tex. App.—Austin 2004, no pet. h.). Items police discover in plain view

during such a search in response to an emergency are admissible. See Laney, 117 S.W.3d at 863.

By contrast, the Cady doctrine addresses almost exclusively warrantless searches and seizures of

vehicles and does not require an imminent threat to a specific person’s well-being. Id. at 861; see

also Cady v. Dombrowski, 413 U.S. 433, 448 (1973) (search disabled car suspected of containing

gun permissible because car was “vulnerable to intrusion by vandals”).

               First, the State concedes that no inventory was made. We therefore decline to uphold

the search of Wiede’s vehicle on the basis of the inventory doctrine. See also Aitch v. State, 879

S.W.2d 167, 172 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (When police remove one item

from car and fail to compile list of other valuable items in plain sight, item not removed pursuant

to an inventory.).

               The record also does not support application of the community caretaking emergency

doctrine or the Cady doctrine. The Laney standard for a search under the community caretaking

emergency doctrine was set forth in the context of a search of a home. See Laney, 117 S.W.3d at 855

(search of private residence); Gonzalez, 148 S.W.3d at 704 (search of apartment). The court of



                                                  17
criminal appeals has also held that the emergency doctrine can justify the stop of a moving vehicle

based on concern for an occupant. See Wright, 7 S.W.3d at 151. Factors in making a caretaking stop

of such a vehicle include: (1) the nature and level of the distress exhibited by the individual; (2) the

location of the individual; (3) whether or not the individual was alone or had access to assistance

independent of that offered by the officer; and (4) to what extent the individual—if not

assisted—presented a danger to himself or others. Id. at 152. We find these factors are also relevant

to our consideration of whether the search was permissible in light of the emergency doctrine.

               We apply an objective standard of reasonableness, taking into account all of the facts

and circumstances known to the police at the time of the search. See Laney, 117 S.W.3d at 862. We

independently scrutinize the facts without regard to the subjective conclusions of the police.

Johnson v. State, 722 S.W.2d 417, 419 (Tex. Crim. App. 1986).

               In Wright, a deputy sheriff stopped a car from which he had observed Wright leaning

out of a rear window and vomiting. Id. at 150. The deputy had seen no violations of law before the

stop, but testified that he stopped the car because he was concerned for Wright’s safety and wanted

to ensure that Wright was not being assaulted or denied medical attention. Id. After the stop, the

deputy noted odors indicating consumption of alcohol and marihuana, and saw a partially smoked

marihuana cigarette in plain view on the console between the front seats. Id. The court of criminal

appeals vacated this Court’s reversal of the trial court’s judgment and remanded for analysis of the

applicability of the four factors listed above. Id. at 152. On remand, this Court determined that the

stop did not meet the test set out by the court of criminal appeals. Wright v. State, 18 S.W.3d 245,

247 (Tex. App.—Austin 2000, pet. ref’d). This Court wrote:



                                                  18
       Appellant was a passenger in the rear seat of a car that was being driven in a lawful
       manner on a public highway. Appellant appeared to be having some gastric distress,
       but in addition to the driver, the other passenger in the car could have aided and
       assisted appellant. Nothing indicated that appellant’s condition was any more serious
       than an upset stomach. None of the car’s occupants indicated that they were in need
       of additional help. Nothing indicated that the deputy sheriff’s assistance was
       necessary or that his help would add to the comfort or welfare of appellant. Nothing
       supported a reasonable belief that appellant was a danger to himself or to others.

       The reasons for the stop given by the officer were unreasonably speculative and
       appear to be no more than an attempt through hindsight to justify the stopping and
       detaining of appellant. The totality of the circumstances did not justify official
       intrusion upon appellant’s constitutional right to be secure in his person. The stop
       and detention of appellant was simply an unreasonable exercise of authority by the
       officer in violation of appellant’s constitutional rights.


Id.

               Applying the Wright factors to this case, we acknowledge that Wiede was seriously

injured and in need of medical attention. However, at the time of the search, Wiede was outside of

his vehicle and in the care of emergency medical personnel who were preparing to take him to the

hospital. Thus, the Wright factors weigh toward a finding that the search was unreasonable because

Wiede was not alone, had access assistance other than that offered by the officer, and did not present

a danger to himself or others. See Wright, 7 S.W.3d at 152. Although Trooper McGuairt explained

that he believed that Wiede might be under the influence of drugs, and that medical personnel

treating Wiede should know of the possibility that Wiede was under the influence of drugs, we limit

our consideration to the facts known to the officer, not his subjective conclusions. See Johnson, 722

S.W.2d at 419. 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. There

is also no evidence that the unidentified officer who conducted the search shared these concerns, that

                                                 19
the emergency medical personnel believed Wiede was intoxicated and asked officers to look for

drugs in the vehicle, or that Wiede’s demeanor or the appearance of his car suggested he was under

the influence of any controlled substance. The fact that there was no attempt to relay the information

gained through the search to medical personnel belies the State’s assertion that the search was

conducted out of concern for Wiede’s welfare.5 See Provost v. State, 631 S.W.2d 173, 175 (Tex.

App.—Houston [1st Dist.] 1981, pet. ref’d) (search of home was not justified out of concern for fire

inside when police first called the district attorney and delayed entry until after fire department had

extinguished fire).

               The dissent contends that the search of Wiede’s car was conducted incident to the

performance of a bonafide community caretaking activity. It claims “[t]here is no ready test for

determining reasonableness [of a search] other than by balancing the need to search against the

invasion that the search entails.” See Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967)

(warrant required for administrative search of private dwelling). Citing the dissenting opinion of one

judge of the court of criminal appeals, the dissent seeks to determine whether the search of Wiede’s

car was permissible as community caretaking by balancing the public interest furthered by the search

against Wiede’s right to privacy in his vehicle. See Wright, 7 S.W.3d at 155 (Meyers, J., dissenting).

Although these interests are balanced in examining whether a search is justified under a community

caretaking exception, we do not do so on an ad hoc basis. This delicate balance is reflected in the




       5
         The dissent contends that we fail to defer to the trial court’s assessment of credibility.
However, the trial court could not have made a credibility determination regarding the officer’s
motivation for the search because the officer who actually conducted the search was not identified
and did not testify.

                                                  20
standards set forth in the “few specifically established and well-delineated exceptions” to the Fourth

Amendment’s general requirements of a warrant and probable cause. Mincey v. Arizona, 437 U.S.

385, 390 (1978); Katz v. United States, 389 U.S. 347, 357 (1967). Furthermore, Judge Meyers

presented his balancing approach as an alternative to the majority opinion’s “totality of the

circumstances” test which established the Wright factors discussed above. See Wright v. State, 7

S.W.3d at 153. We therefore presume that the court of criminal appeals considered and specifically

rejected establishing such a standard in community caretaking cases.

               In the context of reviewing a search under the emergency doctrine we must determine

whether: (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. See Laney, 117 S.W.3d at 861-62;

Gonzalez, 148 S.W.3d at 708. Although the dissent states that the search was incident to the

community caretaking function, we find no specific and articulable facts which support that

assertion. The methamphetamine was not discovered in plain view while police were in the course

of assisting Wiede; he had already been removed from the car. Nor does the record support that the

search was part of an investigation of the accident. The officers did not canvas the entire vehicle for

information, but only conducted a narrow search for an item that a witness informed them he saw

Wiede hide. Nothing in the record indicates that the officers had any reason to believe that the

unidentified item had any relationship to the cause of the accident prior to discovering that it was

methamphetamine. See Wong Sun v. United States, 371 U.S. 471, 484 (1963) (search unlawful at



                                                  21
its inception may not be validated by what it turns up); Carver v. State, 746 S.W.2d 869, 872 (Tex.

App.—Houston [14th Dist.] 1988, pet. ref’d) (search “must be justified by what is known to police

officers at the inception of the search and cannot be justified by evidence seized as a result of the

search or arrest”). At best, the officers could only speculate that the hidden item was relevant to their

legitimate community caretaking function. See Janicek v. State, 634 S.W.2d 687, 691 n.11 (Tex.

Crim. App. 1982) (intrusions upon fourth amendment right to privacy to be determined “by the facts,

not by rumor, suspicion, or guesswork”). Considering the totality of the circumstances, the record

does not support a conclusion that the officer’s search of Wiede’s car was (1) totally divorced from

the detection, investigation, or acquisition of evidence or that (2) there was an immediate, objectively

reasonable belief that the search was necessary in order to protect or preserve life or avoid serious

injury. See Laney, 117 S.W.3d at 861-62; Gonzalez, 148 S.W.3d at 708. The mere fact that Wiede

was in a traffic accident and made a furtive gesture, absent any evidence indicating that he was under

the influence of a drug, does not support a finding that the search was justified under the emergency

doctrine. See Laney, 117 S.W.3d at 860; Wright, 18 S.W.3d at 247 (reasons given for stop were

unreasonably speculative and appear to be an attempt to justify stop in hindsight).

                The record also does not support the view that this search was permissible under the

distinct Cady community caretaking exception. In Cady, the United States Supreme Court

acknowledged that local police “frequently investigate vehicle accidents in which there is no claim

of criminal liability and engage in what, for want of a better term, may be described as community

caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute.” Cady, 413 U.S. at 441. The court of criminal appeals



                                                   22
distinguished the Cady doctrine from the closely related emergency community caretaking doctrine

because the Cady doctrine (1) does not require an officer to be acting only to preserve or protect life

or avoid serious injury and (2) applies primarily to searches and seizures of vehicles. Laney, 117

S.W.3d at 861.

                 In Cady, an intoxicated police officer was involved in a car accident in another

jurisdiction and lapsed into a coma. 413 U.S. at 435-36. Police towed his car to an unguarded

private garage and later searched the car looking for the service revolver they believed the injured

officer was required to carry; the searchers instead discovered evidence of a murder committed by

the injured officer. Id. at 436-37. The Supreme Court held that, where the trunk of an automobile

reasonably believed to contain a gun was vulnerable to intrusion by vandals, the search was not

unreasonable within the meaning of the Fourth and Fourteenth Amendments. Id. at 448.

                 The search of Wiede’s vehicle is easily distinguishable from Cady. As we noted

earlier in this opinion, the record does not support the conclusion that the narrow search of only one

area in the vehicle was “totally divorced from the detection, investigation, or acquisition of

evidence.” See id. at 441. Even if a search for drugs was permissible, the officer’s belief that the

Wiede’s vehicle contained drugs was, at best, speculative. Furthermore, the fear that a small quantity

of drugs may remain hidden in an unguarded car does not raise the same concerns for public safety

that motivated the officers in Cady to search for a gun.6 We therefore reject the contention of the


       6
         The dissent attempts to expand the Cady exception by engaging in a balancing test between
Wiede’s privacy interest and the interest in the search. No court has characterized the Cady
exception as a simple, case-by-case balancing test and we decline to do so. Nor does the Cady
exception provide a general authority to search a vehicle involved in a traffic accident. Although
police have a duty to respond to a traffic accident, render aid, and investigate its cause, the Cady

                                                  23
State and the dissent that the search of Wiede’s vehicle was justified under the officers’ community

caretaking function.

                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 trial court abused its discretion by

admitting the methamphetamine into evidence.            The admission of the methamphetamine

undoubtedly contributed to the decision to revoke Wiede’s probation. The error in its admission was

thus harmful.

                Wiede asserts, the State concedes, and we agree that the district court erred by

revoking Wiede’s probation for failure to pay fines and fees because the State waived those grounds.

                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.


                                          CONCLUSION

                The court erred by admitting the methamphetamine into evidence. The court also

erred by revoking Wiede’s probation for failure to pay fines and fees because the State waived those




doctrine only applies to those police actions that are in furtherance of the legitimate community
caretaking function and “totally divorced from the detection, investigation, or acquisition of evidence
relating to the violation of a criminal statute.” Cady, 413 U.S. at 441.

                                                  24
grounds. Accordingly, we reverse the district court’s order revoking Wiede’s probation and remand

the cause for further proceedings not inconsistent with this opinion.




                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson: Opinion by Justice B. A. Smith;
  Dissenting Opinion by Justice Patterson

Reversed and Remanded

Filed: January 21, 2005

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