FRANK PAUL DOUGHERTY,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00799-CR
 
FRANK PAUL DOUGHERTY,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES HOWELL, ROWE, AND BURNETT
OPINION BY JUSTICE ROWE
JULY 10, 1989
        After a jury trial, Frank Paul Dougherty was convicted of possession of marihuana. The jury sentenced Dougherty to eleven years' confinement and assessed him a $10,000 fine. In his sole point of error, Dougherty complains that the trial court erred in denying his motion to suppress. We overrule this point and affirm the trial court's judgment.
Background
        In Spring of 1984, James Seay, FN:1 an agent of the Drug Enforcement Administration, contacted Dougherty to arrange for the purchase and delivery of some marihuana. Seay made several telephone calls to Dougherty at a telephone number in the Rio Grande Valley with respect to this proposed transaction. These discussions culminated on August 9, 1984. On that date, Seay received a telephone call from Dougherty. Dougherty indicated that he was in New Braunfels, that he would be in Dallas later that night, and that he wanted to know how to reach Seay. Seay gave Dougherty his pager number and told Dougherty to page him when Dougherty arrived in Dallas.
        Later that evening, Seay returned a call to his pager and reached Dougherty. Seay and Dougherty discussed the delivery of forty pounds of Sinsemilla marihuana and arranged to meet at a particular restaurant. Seay and another agent, Rick Dearring, went to the restaurant and were met by Dougherty and a codefendant, Ronald David Wisdom. Dougherty indicated that the marihuana was about fifteen minutes from the restaurant but that he did not want to deliver the marihuana in the parking lot or adjacent motel. Seay and Dearring suggested completing the deal at Seay's residence, and Dougherty agreed.
        All four men then left the restaurant. Seay, Dearring, and Dougherty got into Seay's automobile while Wisdom walked off. As Seay was driving, he noticed Wisdom and another man following him in a pickup truck. Seay eventually stopped at an Exxon station. The pickup truck circled the station, then pulled in to park near Seay's car. At some point, Dougherty apparently noticed Seay's pistol case on the floorboard and became nervous. He stated that he did not want to do the transaction until the next day and got out of Seay's car. He then got into the pickup truck with Wisdom and the other man and drove away.
        Seay immediately radioed Dallas police, who were monitoring the situation by previous arrangement, and asked them to arrest the occupants of the pickup. Officer R. C. Mitchell, who had followed the vehicles from the restaurant to the Exxon station, followed the pickup when it left the station. He testified that the pickup was exceeding the speed limit and making continuous improper lane changes and quick turns. Finally, officers in a marked patrol car stopped the pickup. When Mitchell approached, he saw Wisdom on the driver's side and Dougherty on the passenger's side. He observed that the pickup was still in drive and that Wisdom had one foot on the brake pedal and one on the gas pedal. He also smelled "not burning marijuana but just the presence of marijuana itself." He then searched the pickup and found marihuana packaged in a large trash bag in the engine compartment.
Legality of Search
        Police may legally stop and search an automobile if they have probable cause to believe that the vehicle contains contraband and there are exigent circumstances which make the acquisition of a warrant impracticable. Nastu v. State, 589 S.W.2d 434, 438 (Tex. Crim. App. [Panel Op.] 1979), cert. denied, 447 U.S. 911 (1980); see Carroll v. United States, 267 U.S. 132, 149 (1925). In determining whether probable cause existed, we must determine whether, viewing the totality of the circumstances, FN:2 there was substantial evidence to justify a conclusion that marihuana was probably in the pickup truck at the time of the search. See Bower v. State, Nos. 69,333-69,336, slip op. at 26 (Tex. Crim. App. Jan. 25, 1989); Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987).
        In this case, Dougherty's conversations with Seay clearly show that Dougherty was prepared to deliver a substantial quantity of marihuana on August 9, 1984. At the meeting in the restaurant, Dougherty indicated that the marihuana was only fifteen minutes away. Upon leaving the restaurant to complete the transaction, Dougherty's confederate appeared behind Seay's automobile in the pickup truck. When Dougherty backed out of the deal, he left the Exxon station in the pickup. Officer Mitchell then observed the pickup truck speeding and making continuous lane changes and quick turns. Based on the totality of these circumstances, we hold that there was substantial evidence to justify a conclusion that marihuana was probably in the pickup truck at the time of the search.
        Our next step is to determine whether there were exigent circumstances which made acquiring a warrant impracticable. When a moving automobile is stopped on a road or highway, the mere fact that the car is movable is exigency enough to make acquiring a warrant impracticable. See United States v. Ross, 456 U.S. 798, 805-07 (1982); Chambers v. Maroney, 399 U.S. 42, 50-51 (1970). Dougherty argues, however, that Seay should have obtained a warrant prior to their meeting in the restaurant. We disagree. Prior to the meeting, Seay did not have enough information to determine whether Dougherty had the marihuana on his person, in a motel room, secreted in some hideaway, or in an as yet unidentified vehicle. Only after observing the pickup truck following him could Seay have justifiably concluded that the marihuana was in the truck. Thus, Seay could not have demonstrated probable cause for the issuance of a warrant to search the truck before then. Furthermore, the fact that Seay might have obtained a warrant earlier does not negate the exigency existing at the time of the stop and search. See Cardwell v. Lewis, 417 U.S. 583, 595-96 (1974). We conclude, therefore, that there were exigent circumstances which made acquiring a warrant impracticable. We overrule Dougherty's point of error.
        We affirm the trial court's judgment.
 
                                                          __________________________
                                                          GORDON ROWE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00799.F
 
FN:1 The record refers to this individual as James Cee at the suppression hearing and as James Seay at trial. For the sake of uniformity, we shall refer to him as Seay.
FN:2 The "totality of the circumstances" approach in determining probable cause applies to both warrantless searches and searches with warrants. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex. Crim. App. 1988); Angulo, 727 S.W.2d at 278.
File Date[01-02-89]
File Name[880799F]