Marcopoulos, Andreas

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0931-16

ANDREAS MARCOPOULOS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

K EASLER, J., delivered the opinion of the Court, in which H ERVEY, A LCALA,

R ICHARDSON, N EWELL, AND W ALKER, JJ., joined. Y EARY, J., dissented. K EEL, J., filed

a dissenting opinion, in which K ELLER, P.J., joined.

OPINION

Andreas Marcopoulos walked into a bar known for narcotics activity, stayed for three

to five minutes, and then left. A Houston police officer subsequently pulled up behind

Marcopoulos’s vehicle and saw Marcopoulos make “furtive gestures” around the center

console. When Marcopoulos committed a traffic violation, the officer stopped him, searched

his vehicle, and found cocaine. The court of appeals concluded that this search was justified

MARCOPOULOS—2

under the automobile exception. We disagree and will reverse.

I. FACTS AND PROCEDURAL POSTURE

On September 10, 2014, undercover Houston Police Officer J. Oliver was surveilling

Diddy’s Sports Bar (“Diddy’s”), an establishment in Houston, Texas with a well-documented

history of narcotics sales. Officer Oliver saw Marcopoulos enter the bar, leave within three

to five minutes, and drive away. As Marcopoulos left, the officer followed him and observed

him change lanes without signaling. Hoping to maintain his undercover status, Officer

Oliver radioed for a uniformed officer to perform a traffic stop.

Officer T. Villa received this request and, upon stopping his marked police car behind

Marcopoulos, noticed him make “furtive gestures” around the center console of his vehicle.

Officer Oliver, driving next to Marcopoulos in an unmarked car, also observed these

gestures. Officer Villa then activated his emergency lights, stopped Marcopoulos, and

immediately arrested him. Villa searched Marcopoulos’s vehicle and found two “baggies”

of cocaine: one inside the center console and another between the center console and the

passenger seat. Villa subsequently searched Marcopoulos’s personal effects and found a

third “baggie” of cocaine in his wallet.

Marcopoulos filed a pre-trial motion to suppress the evidence uncovered by the

search, but his motion was denied. He pleaded guilty, reserving his right to appeal the trial

court’s ruling, and was placed on three years’ deferred adjudication probation.

Before the First Court of Appeals, Marcopoulos claimed that the trial court abused its

MARCOPOULOS—3

discretion by denying his motion to suppress.1 Marcopoulos argued that the search of his

vehicle was unreasonable because it did not qualify as an inventory search and it exceeded

the scope of his arrest.2 The State conversely argued that an inventory search was

appropriate once Marcopoulos had been arrested and that the “search incident to arrest” issue

was irrelevant.3

A one-justice plurality of the court of appeals declined to reach the merits of these

claims, instead upholding the search under the automobile exception to the Fourth

Amendment warrant requirement.4 The court held that, pursuant to this exception, Officer

Villa had probable cause to search the vehicle due to Marcopoulos’s “repeated history of

going to a place . . . known for selling narcotics, his uncommonly short time spent at a bar,

and his furtive gestures when he noticed a patrol car behind him.”5 In dissent, Justice Keyes

reasoned that the facts did not support a probable cause finding because the search was based

on “furtive gestures[] alone,” without any corroborating evidence.6

1

Marcopoulos v. State, 492 S.W.3d 773, 775 (Tex. App.—Houston [1st Dist.] 2016,

pet. granted).

2

Id. at 777.

3

State’s Appellate Brief at 3–4, Marcopoulos v. State, 492 S.W.3d 773 (Tex.

App.—Houston [1st Dist.] 2016, pet. granted) (No. 01-15-00317-CR).

4

Marcopoulos, 492 S.W.3d at 777.

5

Id. at 778.

6

Id. at 786–87 (Keyes, J., dissenting).

MARCOPOULOS—4

We granted Marcopoulos’s petition for discretionary review solely to address the

following question: Did probable cause exist, on these facts, to search Marcopoulos’s vehicle

under the automobile exception to the warrant requirement?

II. LAW

Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless

it falls within a warrant exception.7 The automobile exception allows for the warrantless

search of an automobile “if it is readily mobile and there is probable cause to believe that it

contains contraband.”8 As the court of appeals noted, there is no question in this case that

Marcopoulos’s vehicle was readily mobile. “Accordingly, the only . . . inquiry” relevant to

this petition “is whether the officers had probable cause to believe the truck contained

contraband.” 9

Probable cause exists where the facts and circumstances known to law enforcement

officers are “sufficient in themselves to warrant a man of reasonable caution in the belief that

an offense has been or is being committed.”10 For probable cause to exist, there must be “a

7

Arizona v. Gant, 556 U.S. 332, 338 (2009); McGee v. State, 105 S.W.3d 609, 615

(Tex. Crim. App. 2003).

8

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009).

9

Marcopoulos, 492 S.W.3d at 778.

10

Brinegar v. United States, 338 U.S. 160, 175–76 (1949) (some internal quotation

marks omitted) (quoting Carroll v. United States, 267 U.S. 132, 161–62 (1925)).

MARCOPOULOS—5

‘fair probability’ of finding inculpatory evidence at the location being searched.” 11 A

reviewing court should measure this “probabilit[y]” by “the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal technicians,

act.”12 And it must take into account “the totality of the circumstances” known to the officer,

eschewing a “divide-and-conquer” or “piecemeal” approach.13

When reviewing a trial judge’s ruling on a motion to suppress, we “must view the

evidence in the light most favorable to the trial court’s ruling.”14 We will afford “almost total

deference” to a trial court’s express or implied “determination of historical facts” and review

de novo “the court’s application of the law of search and seizure” to those facts.15

III. ANALYSIS

We have repeatedly held that furtive gestures alone are not a sufficient basis for

probable cause.16 While “[f]urtive movements are valid indicia of mens rea,” they must be

11

Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008).

12

Brinegar, 338 U.S. at 175.

13

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).

14

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

15

See, e.g., Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (internal

quotation marks omitted) (quoting Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App.

1997)).

16

See, e.g., Smith v. State, 542 S.W.2d 420, 421–22 (Tex. Crim. App. 1976); Beck

v. State, 547 S.W.2d 266, 268–69 (Tex. Crim. App. 1976); Wilson v. State, 511 S.W.2d 531,

534–35 (Tex. Crim. App. 1974).

MARCOPOULOS—6

“coupled with reliable information or other suspicious circumstances relating the suspect to

the evidence of crime” to constitute probable cause.17 Consequently, the focus of our analysis

is whether Marcopoulos’s furtive gestures, when considered alongside his brief appearance

at a known narcotics establishment, give rise to probable cause. For the following reasons,

we conclude that they do not.

A good starting point for this discussion is Sibron v. New York, a United States

Supreme Court case which explored reasonable searches in the drug context.18 In Sibron, a

police officer surveilled the defendant for eight hours, observing conversations between him

and several other people—all of whom the officer knew to be narcotics addicts.19 The officer

did not overhear the contents of these conversations; observe any transactions; or see, smell,

or otherwise detect the presence of drugs.20 The uniformed officer eventually approached

Sibron, said, “You know what I’m after,” and reached into Sibron’s pocket, confiscating

several envelopes of heroin.21

The court ruled the search unreasonable because, inter alia, Sibron’s observed behavior

17

Smith, 542 S.W.2d at 421–22.

18

See generally 392 U.S. 40 (1968).

19

Id. at 45.

20

Id.

21

Id.

MARCOPOULOS—7

did not give rise to probable cause to conduct an arrest for a drug offense.22 The court

emphasized that, although Sibron had affiliated with known addicts, “[t]he inference that

persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply

not the sort of reasonable inference required to support an intrusion by the police upon an

individual’s personal security.”23 The court opined that probable cause required something

more—perhaps knowledge of the contents of Sibron’s conversations or the observation of a

transaction.24 When the officer approached Sibron, however, “[n]othing resembling probable

cause existed.” 25

We recognize that Sibron involved probable cause to arrest, rather than probable cause

to conduct a search.26 Sibron also did not implicate the automobile exception; at the time he

was searched, Sibron was standing just outside of a restaurant.27 Nevertheless, the fact that

Marcopoulos was searched in connection with, rather than outright arrested for, a drug offense

does not lessen the requirements of probable cause.28 The same goes for the fact that his

22

See id. at 62–63.

23

Sibron, 392 U.S. at 62.

24

Id.

25

Id.

26

Id. at 62–63.

27

Id.

28

See, e.g., Brown v. State, 481 S.W.2d 106, 109–110 (Tex. Crim. App. 1972)

(“[P]robable cause to arrest, probable cause to search, and probable cause to investigate . .

. are not mutually exclusive. For example, the facts supplying probable cause to arrest might

MARCOPOULOS—8

vehicle, rather than his person, was searched, as the automobile exception neither reduces nor

eliminates the probable cause standard.29

We interpret Sibron to severely limit the probative value of Marcopoulos’s presence

at Diddy’s. As in Sibron, the officer in this case was not privy to Marcopoulos’s business

within the bar. Though Officer Oliver knew Diddy’s to be a hotbed of narcotics activity, this

activity was never even remotely linked to Marcopoulos. Oliver did not witness Marcopoulos

initiate a transaction; engage anyone in the pursuit of drugs; or possess any containers, cash,

or other paraphernalia which would suggest that he intended to buy or had recently bought

contraband. Oliver testified that officers had “seen [Marcopoulos] at the location before,” and

the parties spend much of their briefing arguing whether the trial court could reasonably infer

from this testimony that Marcopoulos had “been there multiple times,”30 or only “one prior

occasion.”31 But even assuming Marcopoulos had been seen at Diddy’s “multiple times,” this

hardly leads to the conclusion that, as suggested by the State, Oliver knew Marcopoulos to be

also furnish probable cause to search.”).

29

See, e.g., Nastu v. State, 589 S.W.2d 434, 438 (Tex. Crim. App. 1979) (“[T]he

expectation of privacy, and hence the protection afforded . . . is lower in automobiles than

it is in houses or offices. But automobiles are still protected by the Fourth Amendment and

there must be probable cause to search[.]”); see also Coolidge v. New Hampshire, 403 U.S.

443, 461 (1971) (“The word ‘automobile’ is not a talisman in whose presence the Fourth

Amendment fades away and disappears.”).

30

State’s Reply to Appellant’s Brief on the Merits at 11 n.1.

31

Appellant’s Merits Brief at 16–17.

MARCOPOULOS—9

a repeat narcotics customer.32

While we do not discount the suspiciousness of Marcopoulos’s unusually brief

appearance within the bar, this behavior does not “warrant a man of reasonable caution in the

belief that an offense has been or is being committed.”33 There remains, then, a discernible

gap between the reasonable suspicion aroused by Marcopoulos’s brief presence at Diddy’s

and the proof necessary to establish probable cause.34 We also hold, for the following reasons

and by the slightest of margins, that this gap was not bridged by Marcopoulos’s furtive

gestures.

We have repeatedly held that furtive gestures must be coupled with “reliable

information or other suspicious circumstances relating the suspect to the evidence of crime”

to establish probable cause.35 Determining the nature of “reliable information” or “other

suspicious circumstances” is a fact-driven inquiry that does not lend itself to bright-line

rules.36 We look to prior, analogous cases for guidance.

32

See State’s Reply to Appellant’s Brief on the Merits at 11 & n.1.

33

Brinegar, 338 U.S. at 175–76.

34

See Derichsweiler v. State, 348 S.W.3d 906, 917 (Tex. Crim. App. 2011) (“A brief

investigative detention constitutes a significantly lesser intrusion upon the privacy and

integrity of the person than a full-blown custodial arrest. For this reason, a warrantless

investigative detention may be deemed ‘reasonable’ for Fourth Amendment purposes on the

basis of a lesser quantum or quality of information[.]”).

35

See, e.g., Smith, 542 S.W.2d at 421–22.

36

Id.; see also McGee, 105 S.W.3d at 616 (“Each [probable cause] analysis will turn

on the particular facts and circumstances of the underlying case. No one factor is

MARCOPOULOS—10

We have held twice before that furtive gestures, coupled with some concrete indicator

of drug activity, may establish probable cause.37 In Wiede v. State, we held that a police

officer had probable cause to search a vehicle for drugs when the driver was observed

reaching over, removing a plastic bag from his pocket, and placing it in the console area.38

Our holding was based squarely on the sighting of a plastic bag, as we reasoned that the

officer’s training and experience indicated to him that “drugs are commonly packaged,

carried, or transported in plastic bags.”39 Similarly, we held in Turner v. State that a police

officer had probable cause to search a vehicle for drugs when the driver conspicuously

dropped a matchbox to the floor as he exited the vehicle.40 We concluded that the presence

of the matchbox, and the driver’s attempt to hide it, established probable cause as those facts

“could warrant a man of reasonable caution in believing that the box contained contraband

that appellant wanted to conceal from the officers.” 41

We have conversely held that furtive gestures, absent some concrete evidence of drug

activity and informed only by an officer’s “vague suspicion,” do not give rise to probable

determinative.”).

37

See Wiede v. State, 214 S.W.3d 17, 27–28 (Tex. Crim. App. 2007); Turner v. State,

550 S.W.2d 686, 688 (Tex. Crim. App. 1977).

38

Wiede, 214 S.W.3d at 20–21, 28.

39

Id. at 27.

40

Turner, 550 S.W.2d at 688.

41

Id.

MARCOPOULOS—11

cause.42 In Brown v. State, a uniformed police officer in an unmarked car followed a vehicle

thought to be occupied by armed-robbery suspects.43 The officer “observed the two men in

the back seat . . . turn and look toward him,” then saw “their shoulders move and concluded

that they were concealing firearms in the back seat.”44 The officer searched the vehicle and

discovered marijuana, but this Court found the search unreasonable:

To find the appellants’ conduct in the instant case sufficient to constitute

probable cause . . . would be to assume: (1) that they recognized [the officer]’s

unmarked car as a police car; (2) that these gestures were in response to that

awareness; and (3) that they were purposely made to avoid apprehension.45

Finding this “chain of inferences” to be “too tenuous,” we concluded that the “fact that the

officer observed [the appellants’] shoulders moving is an insufficient basis for inferring that

they were concealing firearms,” despite the suspicious circumstances under which their

conduct occurred.46

We gather several important conclusions from these cases. First, the legal significance

of furtive gestures, like any other component of probable cause, is fact-dependent. Second,

and perhaps more importantly, furtive gestures must be supported by evidence that directly,

42

See Brown, 481 S.W.2d at 111.

43

Id. at 108–09.

44

Id. at 108.

45

Id. at 112.

46

Id.

MARCOPOULOS—12

not just “vague[ly],” connects the suspect to criminal activity.47

As discussed above, Marcopoulos’s short visit to Diddy’s, unsupported by any details

concerning the nature of his visit there, did not sufficiently “relat[e]” him to any “evidence

of crime.”48 Furthermore, as in Brown, Marcopoulos did not exhibit furtive gestures in

response to police action (e.g., wailing sirens or flashing lights), but rather mere police

presence. He was situated in front of a marked police car that had not yet indicated an

intention to stop him, and beside an unmarked police car driven by an undercover officer.

Finally, Marcopoulos’s movements, unlike those in Wiede or Turner, were not connected to

a known or suspected instrumentality of crime—e.g., a baggie or matchbox. Under these

circumstances, Officer Oliver’s notions about Marcopoulos, though certainly providing

reasonable suspicion justifying a temporary investigative detention,49 did not rise to the level

of probable cause justifying a full-blown search. Although Oliver’s suspicion was ultimately

47

E.g., Brown, 481 S.W.2d at 111; see also Wiede, 214 S.W.3d at 27; Parker v. State,

206 S.W.3d 593, 597 (Tex. Crim. App. 2006) (stating that probable cause must “point like

a beacon” to a particular person or location); Faulk v. State, 574 S.W.2d 764, 766–67 (Tex.

Crim. App. 1979); Turner, 550 S.W.2d at 688.

48

Smith, 542 S.W.2d at 421–22.

49

See Derichsweiler, 348 S.W.3d at 917 (Tex. Crim. App. 2011) (emphasis in

original) (“It is enough to satisfy the lesser standard of reasonable suspicion that the

information is sufficiently detailed and reliable—i.e., it supports more than an inarticulate

hunch or intuition—to suggest that something of an apparently criminal nature is brewing.”);

see also Terry v. Ohio, 392 U.S. 1, 21 (1968) (“Thus, it is argued, the police should be

allowed to ‘stop’ a person and detain him briefly for questioning upon suspicion that he may

be connected with criminal activity. . . . If the ‘stop’ and the ‘frisk’ give rise to probable

cause to believe that the suspect has committed a crime, then the police should be empowered

to make a formal ‘arrest,’ and a full incident ‘search’ of the person.”).

MARCOPOULOS—13

vindicated, “a search cannot be justified by what it uncovers.” 50

We reiterate that, although we have discussed the facts of this case sequentially, we

have analyzed them holistically.51 While considering the totality of the circumstances makes

this a closer call than it might otherwise have been, we conclude that the automobile exception

cannot be stretched so far as to justify an all-out warrantless search on these facts.52

IV. CONCLUSION

We wish to stress three aspects of our decision today. First, as with any probable cause

determination, it is fact-driven. We do not hold that observations akin to Officer Oliver’s will

never meet the standard of probable cause; we simply conclude that Marcopoulos’s observed

behavior was insufficient in this case. Second, it was only barely insufficient. We do not

hesitate to say that, had Oliver observed any additional indicators of drug activity, either at

Diddy’s or within Marcopoulos’s car, the scale would tip in favor of a finding of probable

cause. Finally, although probable cause to search the vehicle was lacking on these particular

50

Brown, 481 S.W.2d at 112.

51

See supra Part II; Wiede, 214 S.W.3d at 25 (“When determining probable cause,

an appellate court considers the totality of the circumstances. This means that a ‘divide-and-

conquer’ or piecemeal approach is prohibited.”).

52

See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266, 269 (1973) (discussing

Carroll v. United States, 267 U.S. 132 (1925)) (“Automobile or no automobile, there must

be probable cause for the search.”); Chambers v. Maroney, 399 U.S. 42, 51 (1970) (“In

enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures,

the Court has insisted upon probable cause as a minimum requirement for a reasonable

search permitted by the Constitution.”); see also United States v. Ervin, 907 F.2d 1534 (5th

Cir. 1990) (citing California v. Carney, 471 U.S. 386, 393 (1985)) (“[T]he automobile

exception is applicable only if ‘the overriding standard of probable cause is met.’”).

MARCOPOULOS—14

facts, we do not conclude that the Fourth Amendment was necessarily violated—we decide

only that the automobile exception is unavailing. Nevertheless, the trial court’s ruling must

be upheld on any valid theory applicable to the case.53 Accordingly, we reverse the judgment

of the court appeals and remand the cause for that court to render an opinion addressing the

remaining contentions of the parties.54

Delivered: December 20, 2017

Publish

53

E.g., State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

54

Marcopoulos, 492 S.W.3d at 777 (“Appellant’s four issues challenge . . . whether

the search of his truck fit within the inventory-search exception to obtaining a search

warrant.”).