Garcia, Ruben v. State

Opinion issued December 4, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01193-CR

____________

RUBEN GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 819008

MEMORANDUM OPINION

After the trial court denied his motions to suppress evidence, appellant, Ruben

Garcia, pleaded guilty, without an agreed punishment recommendation from the State,

to possession with intent to deliver cocaine weighing at least 400 grams.

The trial

court found appellant guilty and assessed his punishment at confinement for 15 years

with a fine of $1,000.

In 12 issues, appellant contends that the trial court erred in denying his motions

to suppress evidence because: a warrantless stop and entry of his car violated his

constitutional rights against unreasonable searches and seizures;

a warrantless entry

and search of his residence violated his constitutional rights against unreasonable

searches and seizures; a subsequent search of his residence, conducted pursuant to a

search warrant, was tainted by the warrantless search of his car and residence; and

the search warrant in question was not based on probable cause. We affirm.

Background

On July 21, 1999, Houston Police Officer D. Green negotiated an undercover

purchase of one kilogram of cocaine from a narcotics suspect, Julio Garcia, to take

place at a restaurant. When Officer Green and Garcia arrived at the restaurant, a man

named Jorge Garza took Garcia’s black Lexus sedan and left to retrieve the cocaine.

Houston Police Officers T. Walker and D. Davis, members of a surveillance team,

followed Garza and saw him park the Lexus in front of a house at 1523 Hendrix, but

they did not see anyone enter or exit the house. Five minutes later, Garza left the

house and drove directly back to the restaurant, while Officers Walker and Davis

remained nearby to watch the house.

Officer Green testified that when Garza came inside the restaurant, he tossed

Garcia the keys to the Lexus and said something in Spanish to Garcia. Green and

Garcia then went outside, got into the Lexus, and Garcia drove the car around the

block. Garcia told Green that the cocaine was under the passenger-side floor mat, and

Green pulled back the floor mat and found a brick of cocaine. After Green and

Garcia returned to the restaurant, Houston Police officers arrested Garcia and Garza

and recovered a kilogram of cocaine from the Lexus.

After Officers Walker and Davis were informed that cocaine had been found

inside the Lexus, they saw a black Corvette, driven by appellant, back out of the

driveway of the residence at 1523 Hendrix. The officers quickly stopped the Corvette

and blocked it with their patrol car. The officers then approached appellant,

identified themselves as police officers, and showed him their badges. Officer

Walker told appellant that “he could contact a lawyer, but at that point he was going

to be detained until the other officers could arrive to try and get a search warrant for

the house.” Walker then asked appellant to get out of the car, and appellant complied.

When Walker asked appellant for consent to search the car, appellant refused. Officer Walker testified that the cars had created a “bottleneck” and prevented

traffic from turning onto Hendrix street. Walker further testified that he “moved [his

patrol] car and I told [appellant] I was going to move his car.” Appellant did not

respond, and Walker went over to move the car to the side of the street. Officer Davis

testified, “I was still on the passenger side, and we both just happened to kind of look

in the car at the same time as [Walker] was getting ready to go in” and “that’s when”

they saw, on the passenger seat, a clear plastic bag, containing a white substance,

sticking out of a brown paper bag. Walker concluded that the white substance, based

on its smell and his experience, was cocaine. Walker then arrested appellant and

drove him back to the house at 1523 Hendrix. It was later determined that the plastic

bag contained approximately one-half of a kilogram (500 grams) of cocaine.

When they returned to the house, police officers asked appellant if anyone was

in the house, and he told them that his younger sister was babysitting his two

daughters. When the officers asked appellant for his permission to search the house,

appellant refused. Houston Police Sergeant W. Rios then asked appellant’s sister for

permission to go inside the house, and she agreed.

The officers then entered the

house to conduct a “security sweep,” and, when they opened a door to appellant’s

office, they saw cocaine on a desk. Sergeant Rios testified that the officers did not

touch or take any evidence inside the house during this initial “security sweep.” Rios

further testified that he did not possess any information that there was anyone else in

the residence or that someone was destroying evidence or contraband. The officers

subsequently obtained a search warrant for the residence, performed a more extensive

search, and found 815.3 grams of powder cocaine and 93 grams of crack cocaine.

Appellant filed three separate motions to suppress the evidence seized during

(1) the warrantless stop and search of appellant’s car, (2) the initial warrantless entry

and search of his residence, and (3) the subsequent search, conducted pursuant to a

search warrant, of his residence. After a suppression hearing, the trial court overruled

all three motions. Subsequently, appellant filed a motion to reconsider the denial of

the motions, which, after hearing additional evidence, the trial court denied. With the

trial court’s permission to appeal its ruling, appellant then pleaded guilty to the

offense. Standard of Review

A trial court’s ruling on a motion to suppress evidence will not be set aside

unless there is an abuse of discretion. Villareal v. State , 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996); Spight v State , 76 S.W.3d 761, 765 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). We will afford almost total deference to a trial court’s

determination of facts supported by the record, especially when the findings are based

on the evaluation of credibility and demeanor. Guzman v. State , 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). Here, the trial court did not make explicit findings of

historical fact; we, therefore, review the evidence in the light most favorable to the

trial court’s ruling. Carmouche v. State , 10 S.W.3d 323, 327-28 (Tex. Crim. App.

2000). We assume the trial court made implied findings of fact supported in the

record that buttress its conclusion. Id . Because we do not determine credibility, our

de novo review of reasonable suspicion, probable cause, consent, and mixed

questions of law and facts becomes a de novo review of legal questions. Spight , 76

S.W.3d at 765 .

The United States and Texas Constitutions provide that people have the right

to be secure in their persons, houses, papers, and effects, from all unreasonable

seizures or searches. U.S. Const. amend IV.; Tex. Const. art. I, § 9. We note at the

outset that the United States Supreme Court has long held that the “touchstone of the

Fourth Amendment is reasonableness .” Ohio v. Robinette , 519 U.S. 33, 39 , 117 S.

Ct. 417, 421 (1996) (emphasis added). Reasonableness is measured in objective

terms by examining the totality of the circumstances. Id . We steer clear of “bright-line rules” in applying this test because of the “endless variations in the facts and

circumstances” implicating the Fourth Amendment. Id .

Investigative Detention

In issues one, two, and three, appellant contends that the trial court erred in

denying his motion to suppress evidence seized from his car because the warrantless

stop of appellant and Officer Walker’s subsequent entry into the car violated the

Fourth Amendment and article I, section 9 of the Texas Constitution.

The Stop

Appellant initially argues that “the removal of appellant from his [car] was an

arrest not supported by probable cause.” He asserts that he was illegally “arrested”

and that the cocaine seized from his car was the fruit of an illegal arrest.

In support of his argument that he was “arrested” without probable cause,

appellant notes that an arrest is complete at the moment a person’s freedom of

movement is restricted or restrained. See Chambers v. State , 866 S.W.2d 9, 19 (Tex.

Crim. App. 1993). He also notes that an arrest may be achieved by a suspect’s

submission to an officer’s authority. See Medford v. State , 13 S.W.3d 769, 773 (Tex.

Crim. App. 2000). While conceding that there was “conflicting evidence,” appellant

argues that if he was “handcuffed” prior to the seizure of cocaine from his car, “there

would be no question that appellant had been arrested.” He also argues that the

absence of handcuffs “does not preclude a finding that he was arrested when ordered

out of his car,” that he, in effect, was detained indefinitely, and the officers conducted

no investigation.

In Rhodes v. State , the Texas Court of Criminal Appeals held that peace

officers may use such force as is reasonably necessary to effect the goal of a stop,

including investigation, maintenance of the status quo, or officer safety. 945 S.W.2d

115, 117 (Tex. Crim. App. 1997). In Rhodes , the Court rejected a “bright-line test”

that mere handcuffing is always the equivalent of an arrest. Id . at 118. Rather, it

noted that “common sense and ordinary human experience must govern over rigid

criteria” in evaluating the reasonableness of an investigative detention. Id . The Court

explained:

“Reasonableness” must be judged from the perspective of a reasonable

officer at the scene, rather than with the advantage of hindsight.

Furthermore, allowances must be made for the fact that officers must

often make quick decisions under tense, uncertain and rapidly changing

circumstances.

Id . The Court concluded that the officer made a “temporary investigative detention”

of the defendant that was “reasonable and justified under the circumstances

surrounding the detention.” Id .

Moreover, it is well-settled that it is not unreasonable for a peace officer to

“order” an individual out of a car during a justified traffic stop. Pennsylvania v.

Mimms , 434 U.S. 106, 111 , 98 S. Ct. 330, 333 (1977). The Supreme Court has

described such an intrusion as “ de minimis ,” and a “mere inconvenience.” Id .

Here, Officer Green had purchased a kilogram of cocaine from Gonzales in the

black Lexus immediately after Garza went to retrieve it from 1523 Hendrix.

Immediately after the purchase, Officers Walker and Davis saw appellant leaving

1523 Hendrix in his car. After stopping and approaching appellant, Walker identified

himself as a police officer and told appellant that “he could contact a lawyer, but at

that point he was going to be detained until the other officers could arrive to try and

get a search warrant for the house.” (emphasis added). A peace officer’s testimony

is one factor to consider, along with other facts and circumstances, in determining

whether an arrest has taken place. Id . at 117. After the officers asked for consent to

search the car, appellant told the officers that he wanted to talk with his attorney and

he terminated the conversation. Moreover, as conceded by appellant, the record

supports a finding that the officers did not handcuff appellant.

We hold that the officers’ actions under these circumstances did not amount to

an “arrest,” were reasonable to effect a temporary investigative detention, and did not

violate the Fourth Amendment or article I, section 9 of the Texas Constitution. We

further hold that the trial court did not err in denying appellant’s motion to suppress

evidence seized from his car on the grounds that he was “arrested” without probable

cause.

Reasonable Suspicion

Appellant next argues that any “detention of [him] was not based on reasonable

suspicion” because the police officers “possessed no information from any source

with personal knowledge that cocaine had been picked up from 1523 Hendrix, or that

additional cocaine was being stored in the house.” Appellant asserts that neither

Officer Walker nor Officer Davis articulated specific facts to connect either appellant

or his car to any criminal activity.

Circumstances short of probable cause may justify a temporary investigative

detention. Terry v. Ohio , 392 U.S. 1, 15 , 88 S. Ct. 1868, 1877 (1968);

Stone v. State ,

703 S.W.2d 652, 654 (Tex. Crim. App. 1986). A peace officer may make a temporary

investigative detention of an individual if the officer has a reasonable suspicion that

some activity out of the ordinary is or has occurred, some suggestion to connect the

detainee with the unusual activity, and some indication that the activity is related to

a crime. Stone , 703 S.W.2d at 654 . The test for reasonable suspicion is a factual one

and is made and reviewed by considering the totality of the circumstances at the time

of the stop. Loesch v. State , 958 S.W.2d 830, 832 (Tex. Crim. App. 1997).

Furthermore, when several officers are cooperating, their cumulative information is

to be considered in determining whether reasonable suspicion exists at the time of the

stop. Hoag v. State , 728 S.W.2d 375, 380 (Tex. Crim. App. 1987).

This Court has previously held that an officer had “sufficient reasonable

suspicion to justify an investigatory stop” of an individual as she drove away from a

house believed to contain marihuana. Sandoval v. State , 860 S.W.2d 255, 258 (Tex.

App.—Houston [1st Dist.] 1993, pet. ref’d).

In Sandoval , police officers obtained information from an informant, who had

been arrested for possession of 100 pounds of marihuana, that he purchased the

marihuana at a residence one day prior to his arrest. Id . at 256. The informant told

the officers that, when he purchased his marihuana, he saw another 200 pounds of

marihuana in the garage of the residence. Id . Based on this information, officers

sought to obtain a warrant to search the residence. Id . While one officer was

procuring the search warrant, another officer kept the residence under surveillance

and saw the defendant drive a pickup truck away from the residence. Id . After

another officer stopped the defendant, she admitted that she had marihuana in the

truck, and she was placed under arrest. Id . at 256-57. We noted that “the question”

before us was “whether the officers conducting surveillance of the house had

reasonable suspicion to stop” the defendant. Id . at 257. We held that the stop and

temporary detention of the defendant was a “reasonable investigative detention.” Id .

at 258.

Appellant emphasizes that, “[u]nlike in Sandoval , where [narcotics] had been

personally observed inside the residence, no such observation had been made in the

instant case. Any belief that [appellant’s] black Corvette was transporting drugs was

the result of an inarticulable hunch.”

Here, Officer Green testified that, as Garza drove away from the restaurant in

the black Lexus, Green asked Garcia, “[w]hat’s up with your car?” Garcia told Green

that “[Garza] was going to get [the cocaine].” Officers Walker and Davis followed

the black Lexus to 1523 Hendrix. Garza stayed at the residence for approximately

five minutes and then drove the black Lexus directly back to the restaurant. When

Garza returned to the restaurant, he spoke in Spanish to Garcia and gave him the car

keys. After Garcia and Green entered the black Lexus, Garcia indicated that there

was a kilogram of cocaine under the floor mat beneath Green’s feet. Within five to

15 minutes of learning that cocaine had been found in the Lexus, Officers Walker and

Davis saw appellant backing his car out of the driveway at 1523 Hendrix.

Although no one actually saw cocaine in the house, and no one actually saw

Garza enter or exit the house, the officers had reason to suspect that Garza had

retrieved the cocaine from 1523 Hendrix. Moreover, given the short lapse of time

between Garza’s retrieval and ultimate delivery of cocaine to Garcia and the time that

appellant was seen leaving the house, the officers had reason to suspect that appellant

was connected with the narcotics activity of Garcia and Garza. At the very least, the

officers had reason to suspect that appellant was an occupant of the house and that

the house harbored narcotics.

Accordingly, we hold that the stop and temporary detention of appellant was

a reasonable investigative detention and did not violate the Fourth Amendment or

article I, section 9 of the Texas Constitution. We further hold that the trial court did

not err in denying appellant’s motion to suppress evidence seized from his car on the

grounds that his detention was not based upon reasonable suspicion.

Scope of the Detention

Appellant further argues that if the stop was a temporary detention, Officer

Walker’s entry into appellant’s car and the seizure of cocaine from his car “exceeded

the scope” of the initial detention. Appellant asserts that the officers had no intention

of conducting an investigation and that after he refused to consent to the search of his

car, he “should have been released to go about his business.”

An investigative detention must be temporary and last no longer than is

necessary to effectuate the purpose of the stop. See Florida v. Royer , 460 U.S. 491,

500 , 103 S. Ct. 1319, 1325 (1983); Davis v. State , 947 S.W.2d 240, 245 (Tex. Crim.

App. 1997). Once the reason for the detention has been satisfied, the detention may

not be used as a “fishing expedition for unrelated criminal activity.” Davis , 947

S.W.2d at 243 . An investigative detention “must be strictly circumscribed by the

exigencies which justify its initiation.” Terry , 392 U.S. at 25-26 , 88 S. Ct. at 1882 .

Appellant relies on Davis in support of his argument that when the officers

“found nothing to confirm their suspicion” that he was engaged in criminal activity,

“he should have been released to go about his business.” In Davis , police officers

effected a traffic stop of Davis for suspicion of driving while intoxicated. 947

S.W.2d at 241 . During the initial detention, the officers did not detect an order of

alcohol on Davis and determined that he was not intoxicated. Id. They further did

not detect an odor of alcohol or any type of drug coming from the car. Id. The

officers questioned Davis and his passenger and ran a computer check. Id. Although

they determined that Davis’s driver’s license was valid, the officers did not believe

his statement that he was “on a business trip.” Id. The officers asked Davis for

permission to search his car, but Davis refused to give consent. Id. After performing

a pat-down search of Davis, the officers told him that he was free to leave, but his car

was “being detained for an on-scene investigation.” Id. A canine unit was called to

the scene and a dog made a positive alert at the trunk of Davis’s car. Id. The officers

recovered a suitcase containing marihuana. Id.

The Texas Court of Criminal Appeals stated that the purpose of the

investigative detention was effectuated when the officers determined that Davis was

not intoxicated and, as determined by the officers when they told Davis he was free

to leave, no known fact, or rational inferences from those facts, supported a

conclusion that Davis was engaged in or soon would engage in criminal activity. Id .

at 245. It noted that “even though the officers stated [Davis] was free to leave, he was

effectively restrained.” Id . at 246. In detaining Davis’s car, “the officers were

effectively depriving [Davis] of his liberty interest of proceeding with his itinerary.”

Id . Thus, in Davis , the Court determined that the court of appeals erred in holding the

continued detention of the vehicle was reasonable, reversed the decision, and

remanded the case to the trial court. Id .

Here, in contrast, as we have noted above, Officers Walker and Davis had

reason to suspect that appellant was connected with the narcotics activity of Garcia

and Garza. In the present case, the purpose of the stop was to identify appellant and

to temporarily detain him until a search warrant could be obtained for the house at

1523 Hendrix. Even after appellant refused to consent to a search of his car and

requested to speak with his lawyer, the officers still had reason to suspect that he was

an occupant of a house suspected of harboring narcotics. The Supreme Court has

held that peace officers may temporarily detain an occupant of a house while they

wait for a search warrant. See Illinois v. McArthur , 531 U.S. 326, 333 , 121 S. Ct.

946, 951 (2001) (holding that preventing a man from entering his home without

officers accompanying him while waiting for a search warrant did not violate the

Fourth Amendment as it was a reasonable seizure under the totality of circumstances);

Michigan v. Summers , 452 U.S. 692, 702-05 , 101 S. Ct. 2587, 2594-95 (1981) (a

temporary detention of a suspect without an arrest warrant is allowed to prevent flight

and protect officers while executing a search warrant).

The purpose of the investigative detention of appellant was not effectuated at

the time that he refused to consent to a search of his car. We hold that the officers’

actions under these circumstances were reasonable, did not exceed the scope of their

lawful detention of appellant, and did not violate the Fourth Amendment or article I,

section 9 of the Texas Constitution. We further hold that the trial court did not err in

denying appellant’s motion to suppress evidence seized from his car on the grounds

that the actions of the officers “exceed the scope” of any lawful detention.

Entry of Appellant’s Car

Appellant next contends that Officer Walker’s entry of his car, “based on the

pretext of having to move the [car], amounted to its seizure by law enforcement.” He

asserts that this “seizure” was neither authorized by warrant nor based upon probable

cause or his consent. Appellant argues that “no lawful reason existed to enter the car”

and “any suggestion that blocking of traffic created an exigent circumstance [fails].”

Appellant’s argument is wholly based upon the testimony of Officer Walker,

during the hearing on appellant’s motions to suppress evidence, that he saw the

plastic bag containing cocaine when he “entered the car.” However, during the

hearing on appellant’s motion to reconsider the denial of his motions to suppress

evidence, Officer Davis testified that “[w]hen Officer Walker got ready to get in the

car, I was still on the passenger side, and we both just happened to kind of look in the

car at the same time as he was getting ready to go in, and just happened to look on the

passenger seat. And that’s when we noticed it, right then.” What the officers noticed

was “a bag and a substance which later proved to be cocaine, kind of hanging out of

the bag.”

Here, the record supports an implied finding by the trial court that the officers

saw, in plain view, the clear plastic bag containing cocaine before Office Walker

entered appellant’s car. Moreover, Officer Walker testified that, based on its smell

and his experience, he recognized that the substance in the plastic bag was cocaine.

An officer may seize items in plain view if (1) he has a right to be where he is when

he sees the item and (2) he immediately recognizes the item as evidence. Ramos v.

State , 934 S.W.2d 358, 365 (Tex. Crim. App. 1996). Accordingly, we hold that

Officer Walker’s seizure of cocaine from appellant’s car did not violate the Fourth

Amendment or article I, section 9 of the Texas Constitution. We further hold that the

trial court did not err in denying appellant’s motion to suppress evidence seized from

his car on the grounds that Officer Walker unlawfully entered appellant’s car. We overrule issues one, two, and three.

Remaining Issues

Appellant pleaded guilty to the felony offense of possession with intent to

deliver cocaine weighing at least 400 grams. Tex. Health & Safety Code Ann . §

481.112(a), (f) (Vernon 2003). Such an offense is punishable by imprisonment for

life or for a term of not more than 99 years or less than 15 years and a fine not to

exceed $250,000. Id .

As noted above, the cocaine seized from appellant’s car weighed approximately

500 grams. This evidence, standing alone and independent from the evidence seized

from appellant’s residence, was sufficient to establish his guilt. Having held that the

trial court did not err in overruling appellant’s motion to suppress evidence seized

from his car, we need not address appellant’s remaining issues, four through 12, that

the trial court erred in denying his motions to suppress evidence seized from his

residence.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2( b ) .