Ozuna v. State (587 S.W.2d 385, 1979)

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana. Upon his plea of not guilty, appellant was convicted by the court who assessed punishment at six years’ confinement.

Appellant contends that the court erred in overruling his motion to suppress certain evidence which he alleges was obtained as a result of an unlawful search and seizure. We agree and reverse the judgment of conviction.

On January 6, 1976, at approximately 12:45 a. m., Jourdanton police officers Bradshaw and Soward were monitoring citizen’s band radio channel 19 as they were parked in their patrol car on State Highway 16 which runs through the city. The officers heard a voice on the radio exclaim “Look out, look out, there is smoke.” They, then observed a 1974 green Pontiac approaching from the rear. Almost immediately thereafter the officers heard a voice on the radio for the second time instructing a red Ford to “Cut off at the red light.” Bradshaw signaled the green Pontiac over to the side of the road and observed that it was equipped with a citizen’s band radio. The driver of the vehicle, Garza, was permitted to proceed after the officers warned him about a vehicle equipment violation. The officers then began to patrol the immediate area in an effort to find the red Ford that was previously instructed by the unknown voice on the radio to “Cut off at the red light.”

After patrolling the area for several minutes, the officers observed near State Highway 16 a red and white 1970 Ford automobile driven by the appellant. The officers stopped the vehicle and observed that it too was equipped with a citizen’s band radio. As the officers were questioning the appellant outside his vehicle, Bradshaw detected the odor of marihuana. A search of the vehicle’s trunk yielded approximately 285 pounds of marihuana.

Bradshaw testified that the particular citizen’s band radio he was monitoring could receive radio signals within a radius of several miles and that under certain atmospheric conditions a radio signal could “skip” and thus be transmitted greater distances. Bradshaw also testified that he was unable to determine the identity and exact location of either the sender or receiver of the radio messages in question. Bradshaw further testified on cross-examination as follows:

“Q Why were you looking for the red Ford?

Because as to the fact of why he was diverted around us.

Okay. And, this curiosity was the only reason you were looking for him? o*

Yes, sir. <

And at the time that you heard that there was, you heard or your partner told you, about a transmission to turn off at the red light.