¶1(dissenting).
¶2I cannot agree to the reversal of this conviction, but I cannot subscribe to my brother Douglas’ reasoning. On the other hand, I do not accept the majority’s alignment with People v. Superior Court, supra.
¶3In this case the officer observed a traffic violation other than speeding, plus an overt act of making “a move with his right hand to between the two seats”, which I deem sufficient to establish probable cause to search both appellant and the area where the furtive gesture had occurred.
¶4I dissent.
¶5DISSENTING OPINION IN DENYING LEAVE TO FILE ON STATE’S MOTION FOR REHEARING
¶6The majority denies leave to file a motion for rehearing and still holds the search illegal. What does the majority intend to do with the previous decisions cited in the dissenting opinion that are contrary to the holding in this case?
¶7In addition to those cases, let us look at the decision in Smoot v. State, Tex.Cr.App., 475 S.W.2d 281, in a unanimous opinion by this Court as presently constituted. In that case the arrest was for speeding. In that opinion we find the following:
“. . . Upon being directed to pull over, appellant stopped his car and ‘made a motion to the floor.’ He hurriedly approached the police car and ‘seemed excited, nervous.’ After getting the appellant’s driver’s license, the officer went to the driver’s side of the car and *540saw on the floor board ‘an old rusty hunting knife and a Marlboro box of cigarettes.’ He retrieved these articles and found 9 handrolled marihuana cigarettes in the Marlboro box.”
¶8and,
“We conclude the arrest and search and seizure were legal.”
¶9In the Smoot case the officers had the defendant outside the car and then searched the Marlboro cigarette package and found marihuana cigarettes. In the present case, the officers had Wilson outside the car; they looked into a Marlboro cigarette box and found marihuana cigarettes.
¶10What is the difference? Does the majority rely upon no probable cause to search the cigarette box in the present case? If so, was there probable cause in the Smoot case? Does the majority rely upon protection of the officers in the Smoot case ? Smoot was outside the car— so was Wilson in the present case. Does the majority hold no arrest was made in the present case?
¶11Leave to file the State’s motion for rehearing should be granted. The judgment should be affirmed.