Brown v. State

¶1STATE’S MOTION FOR REHEARING

¶2dissenting.

¶3On original submission, a panel of this Court reversed this conviction because an officer did not have probable cause to seize a balloon filled with heroin. The panel contends that “opaque party balloons are to be accorded treatment similar to plastic bags and photographic negatives and trans*201lucent vials.” Thus, the presence of a balloon in plain view alone did not give an officer sufficient facts to make it “immediately apparent” that the balloon contains contraband.

¶4The basic premise in any warrantless search and seizure case is that they are per se illegal, except for a few specifically established and well-delineated exceptions. Katz v. United States, 359 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It is also well established that under certain circumstances the police may seize evidence in plain view without a warrant, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). However, the doctrine of “plain view” does have three criteria: (1) a prior justification for an intrusion; (2) an inadvertent discovery of incriminating evidence; (3) which is immediately apparent to the officer. Coolidge v. United States, supra.

¶5More recently, the United States Supreme Court held in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that:

“... The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.... (Emphasis added) 445 U.S. at 586, 100 S.Ct. at 1380.

¶6Therefore, our judicial inquiry focuses upon the State’s ability to prove the officer has probable cause to associate the party balloon with criminal activity.1

¶7Probable cause in our context requires that “the facts and circumstances within the (officer’s) knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe” that the balloon contained contraband. Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040, 1050 (1967); Barber v. State, 611 S.W.2d 67 (Tex.Cr.App.1981). The issue turns to whether an officer, relying on years of practical experience and knowledge commonly accepted, has probable cause to seize the balloon in plain view.2

¶8As more aptly stated by the United States Supreme Court, these principles are:

“... imperative of recognizing that, when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person — and for action on that suspicion.” (Emphasis added)

¶9United States v. Cortez, - U.S. ——, -, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981). Accord, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 693 (1975).

¶10Under Cortez, the objective and seemingly innocuous fact of a tied-off balloon combined with the permissible deduction that it is commonly linked to heroin forms a legitimate basis to the trained law enforcement officer for suspicion. This legitimate suspicion supports the probable cause element to “associate the (balloon) with criminal activity.” Payton v. New York, supra. Thus, under the facts of our case, the seizure of the balloon in “plain view” is presumptively reasonable and should be upheld.

¶11Indeed, this Court’s prior decisions accepted such logic. In DeLao v. State, 550 S.W.2d 289 (Tex.Cr.App.1977), we held:

“The State urges that it is a well known fact that heroin is kept in bal*202loons. The officer’s testimony, however, does not demonstrate that he was cognizant of this ‘well known’ fact or immediately aware that heroin was in the balloon at the time of the seizure. Coolidge v. New Hampshire, supra; Nichols v. State, supra, 502 S.W.2d 169 (Tex.Cr.App.). The seizure must be based on what was known by the officer at the time he acted, yet this record contains not a scintilla of evidence that the officer knew what the State now alleges in its brief on appeal is a ‘well known’ fact. The burden was on the State to show facts authorizing the seizure here challenged. Had the State produced any evidence on this issue, there might have been shown a basis for its claim on appeal, but this was not done.” (Emphasis added) 550 S.W.2d at 291.

¶12More importantly is the explicit holding of Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972). In Simpson, this Court unanimously upheld a warrantless seizure of “capsules” of heroin because the arresting officer recognized them as contraband. De-Lao and Simpsonboth recognize the validity and importance in the experience and training of law enforcement officers.

¶13These cases are clearly distinguishable from the photographic negative and translucent vial cases. Photographic negatives can and do represent such diverse subject matters that they can not warrant a “man of reasonable caution” to believe they contain contraband. Similarly, translucent vials which commonly contain legally obtained prescriptions render the presence of contraband vague and uncertain. The officer knows the vials contain drugs or even narcotics for that is their purported use. However, without other supporting facts, it is this inherent use that prevents the “man of reasonable caution” from having probable cause to believe the presence of contraband. Photographic negatives and translucent vials do not permit permissible deductions that contraband is present. United States v. Cortez, supra.

¶14Such is not the case of tied-off balloons in plain view. The use of balloons or similar containers has been shown to be commonly associated with the distribution, packaging, and transportation of controlled substances — usually heroin. See, e. g., State v. Washington, 117 Ariz.App. 207, 496 P.2d 633 (Ariz.App.1972) (balloons); State v. Grady, 548 S.W.2d 601 (Mo.App.1977) (condoms); State v. James, 169 So.2d 89 (La.1964) (finger stalls). Many jurisdictions have recognized the realities of the drug culture and hold that balloons are a common package for heroin. The view I advocate is neither novel or unique. Other jurisdictions have held that a rolled, tied-off balloon supports probable cause and, if seen in plain view, can be validly seized under the Fourth Amendment. Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969); People v. Montoya, 185 Colo. 299, 524 P.2d 76 (Colo. 1974); State v. Broadnax, 25 Wash.App. 704, 612 P.2d 391 (Wash.App.1980); People v. Simmons, 19 Cal.App.2d 960, 97 Cal.Rptr. 283 (Cal.App.1971); People v. Garcia, 541 P.2d 1268 (Colo.App.1975); also see, Commonwealth v. Lawson, 309 A.2d 391 (Pa.1973); Reeves v. State, 599 P.2d 727 (Alaska 1979). Furthermore, balloons have become so well known for their relation to narcotics that they have been included in the Model Drug Paraphernalia Act (MDPA) and legislatively adopted.3 See, Mid-Atlantic v. Maryland, 500 F.Supp. 834 (Md.D.1980).

¶15Accordingly, I would hold the seizure in plain view valid because: (1) the officer had a legitimate and prior justification for an intrusion into appellant’s car (routine and non-random license check); (2) the discovery of the balloon was inadvertent; and (3) the incriminating nature of the balloon was immediately apparent to the officer. DeLao v. State, supra. At trial, the officer *203testified that the rolled, tied-off, opaque balloon was mashed down to approximately one-eighth of an inch thick and one-half inch in length. Based on his specific knowledge and prior experience with the drug culture, the officer associated the balloon with contraband. The balloon, in plain view, formed “a legitimate basis for suspicion ... and for action on that suspicion. United States v. Cortez, supra, - U.S. at -, 101 S.Ct. at 695; DeLao v. State, supra.4

¶16I respectfully dissent.