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Click here for the full text of this decision FACTS:Harris County Deputy Sheriff Lee Martin encountered appellant and two companions while patrolling a high-crime area after midnight. The group was standing at the rear of a car that was illegally parked in a cul-de-sac. Martin parked behind the car, but before he got out of his cruiser to approach the group, they walked from the rear of the car to the front of the car. Martin frisked appellant for weapons and retrieved a small bag of marijuana from appellant’s back pocket. Appellant then admitted to having another small amount of marijuana in his sock. Appellant was charged with the Class B misdemeanor of possession of marijuana, less than 2 ounces. Appellant pleaded not guilty and filed a pretrial motion to suppress the marijuana, claiming that the officer did not have probable cause to conduct the warrantless pat-down search under either federal or state law. At the hearing on the motion to suppress, Martin testified, in relevant part, that he decided to approach the group because it appeared that they were trying to conceal something. Martin further testified that, although he was not in fear for his safety, he searched appellant for weapons because, essentially, that was the routine practice when encountering people in high-crime areas late at night. Appellant argued to the trial court that because appellant did not make any furtive gestures or otherwise cause Martin to fear for his safety, the pat-down search was improper. Moreover, appellant argued, Martin admitted that before he patted appellant down, Martin was not in fact in fear for his safety. The trial court denied appellant’s motion to suppress and recited findings of fact and conclusions of law into the record, which in sum, found the warrantless search reasonable due to the time and place of the search, for safety reasons, and because it appeared that the group was attempting to conceal something. A jury found appellant guilty of the crime charged, and punishment was assessed by the trial court at 30 days in jail. On direct appeal, appellant complained of the trial court’s denial of his motion to suppress because Martin lacked reasonable, articulable suspicion to believe that appellant was armed and dangerous. The court of appeals affirmed the judgment of the trial court, correctly explaining that Martin’s subjective belief that he was not in danger is not the proper focus when considering the constitutionality of a pat-down search. The court of appeals went on to hold that precedent supported a pat-down search under the totality of the circumstances. Appellant filed a petition for discretionary review in this court. His sole ground for review was framed as follows: “The trial court committed reversible error in ruling admissible the seizure of the marijuana found on the appellant’s person, where Deputy Martin did not have reasonable suspicion to believe that the appellant was armed or dangerous, in violation of the appellant’s fourth amendment right against unreasonable searches and seizures. (emphasis added).” The court refused the petition. CONCURRENCE:Holcomb, J. “Because it is arguable whether appellant’s ground for review as stated and his supporting argument have even invoked our jurisdiction, see State v. Consaul, 982 S.W.2d at 902, refusal of the petition for procedural reasons are sound. . . . “A better argument, which unfortunately was not made in the trial court by way of the written motion to suppress or articulated at the hearing, would have been that Martin did not have authority under federal or state law to extend his pat-down search into appellant’s back pocket and retrieve the small bag of marijuana. See Minnesota. v. Dickerson, 508 U.S. 366 (1993) (extending “plain-feel” doctrine to contraband). A logical inference can be drawn that the small amount of marijuana here could not have been mistaken for a weapon, and thus, the pat-down exceeded its permissible scope. See id. at 378-79 (where search exceeds that which is necessary to determine if the suspect is armed, the fruits of the search will be suppressed); see also Sibron v. New York, 392 U.S. 40, 65-66 (1968). Therefore, it is my view that appellant’s only possible hope for relief (as far as the state courts are concerned) is to file a writ of habeas corpus complaining of ineffective assistance of trial counsel.”

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