Lester J. Guy, Jr. v. State ( 2004 )

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Opinion Issued March 18, 2004



In The

Court of Appeals

For The

First District of Texas

NO. 01-02-01099-CR

LESTER GUY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 906044

MEMORANDUM OPINION

          After the trial court denied his motion to suppress evidence, appellant, Lester Guy, pleaded guilty to possession of a controlled substance, cocaine, weighing more than four grams and less than 200 grams. Pursuant to a plea agreement, the trial court sentenced appellant, as a habitual offender, to 30 years’ confinement. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress evidence because it was the product of an illegal search and seizure. We affirm.

Background

          On the evening of March 20, 2002, Harris County Sergeant B.J. Taylor and Deputy Ron Rooth responded to a suspicious person call at the Park Trails apartment complex at 15125 Blue Ash, an area known to Taylor and Rooth as a high crime area. Taylor and Rooth split up in their patrol cars to look for the suspicious male. After their initial search of the complex, Taylor and Rooth met up and began discussing the situation from their individual police car when Taylor saw appellant “pop up” between two cars as if he had been hiding. The appellant resembled the description of the suspicious person as a black male wearing a white T-shirt. There were no other people in the parking lot.

          Appellant jumped into a car and left the apartment complex. Taylor turned on his patrol car’s emergency equipment and followed him. As appellant slowed down to stop, he opened the driver’s side door. Taylor, fearing appellant might try to run away, drove up next to appellant’s car. He saw appellant making “all kinds of furtive movements,” as if he were picking up something underneath the seat. Taylor was afraid appellant might have a weapon.

          Taylor got out of his car and walked to the front of it, while Rooth approached appellant. Appellant was still “messing with” a white pill bottle underneath the seat. Rooth told appellant to quit fidgeting with the white pill bottle and show his hands, but appellant continued to reach down, picking up and handling the bottle from beneath the seat. Once appellant put his hands up, Taylor and Rooth began talking with him to find out whether he was the suspicious person seen at the apartment complex. Appellant said he was visiting a friend at the complex, but he did not answer when Taylor and Rooth asked for his friend’s name and apartment number. Taylor and Rooth then asked appellant to step out of his car, and appellant did.

          Rooth walked appellant to the back of his patrol car to pat him down and asked him if he had any identification. Appellant answered that it was in his wallet and pointed to his car. Taylor reached into appellant’s car and picked up appellant’s wallet and the bottle that he had been handling. When Taylor picked up the bottle, appellant lunged towards him. Rooth struggled to hold onto appellant, who spun around and ran, wriggling out of his T-shirt. Rooth pursued appellant. Meanwhile, Taylor, after throwing appellant’s wallet and the bottle back into appellant’s car, jumped into his car and circled around to catch appellant as he was jumping over a fence. After appellant was apprehended and taken into custody for fleeing and evading arrest, appellant’s car was inventoried. A white pill bottle found in the car contained 41 grams of crack cocaine.

          At the motion to suppress hearing, appellant argued that (1) he did not fit the description of the suspicious person call; (2) he did not make any furtive gestures that would lead Taylor and Rooth to ask him to leave his car, other than holding the door because it swings freely; and (3) that the search of the white bottle, prior to his fleeing, was illegal because it was based on nothing more than a hunch. The court denied appellant’s motion to suppress and made the following findings on the record: it was reasonable for the officers to pull appellant over based on appellant’s popping up and getting in his car and meeting the radio description; the officers’ testimony was credible; Taylor picked up both the wallet and the bottle, but he did not open the bottle prior to appellant’s fleeing; and, based on appellant’s fleeing, there was a valid reason for the arrest and a subsequent inventory search.

Discussion

          In his sole point of error, appellant argues that the trial court erred in denying his motion to suppress because the State failed to show that the officers had probable cause to search appellant’s car and seize the white bottle. Appellant does not argue that the initial stop of appellant was unlawful, nor does he argue that the officers improperly opened the bottle after appellant had been arrested for fleeing. Rather, appellant focuses his argument on the illegality of the search and seizure when Taylor picked up the bottle, along with appellant’s wallet, from appellant’s car. The State contends that the search was legal, and that, even if the officers acted beyond the scope of their authority in seizing the bottle, the taint of any illegality was attenuated by appellant’s subsequent flight and arrest; thus, the bottle and its contents were admissible into evidence.

          In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Id. We review de novo the trial court’s application of the law of search and seizure and probable cause. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Wilson v. State, 98 S.W.3d 265, 271 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We examine the evidence in the light most favorable to the trial court’s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

          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 searches or seizures. U.S. Const. amend IV; Tex. Const. art I, § 9. We note at the outset that the “touchstone of the Fourth Amendment is reasonableness.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996). 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.

          It is well established that an officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1923 (1972), Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968), Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). To justify a brief investigative detention, the officer must be aware of specific, articulable facts which, in light of his experience and personal knowledge, together with reasonable inferences therefrom, would warrant detaining the suspect. Adams, 407 U.S. at 147, 92 S. Ct. at 1923, Maritnez v. State, 29 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1880). As part of this temporary detention, an officer may ask that an individual step out of his automobile. Gearing v. State, 685 S.W.2d 326, 328 (Tex. Crim. App. 1985); Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1985). Although at the motion to suppress hearing, appellant argued that there was no reasonable suspicion to stop or detain appellant, on appeal, appellant does not contest his initial detention. Furthermore, based on the fact that appellant popped up, as if he were hiding, and the fact that he matched the description of the suspicious person, it was reasonable for the officers to stop and temporarily detain appellant to investigate the situation.

          Appellant argues that he did not give the officers consent to search his car; therefore, they illegally searched and seized his wallet containing his identification and the bottle containing narcotics. However, during the course of a temporary detention, an officer may conduct a limited search for weapons where it is reasonably warranted for his own safety or the safety of others. Terry, 392 U.S. at 27, 88 S. Ct. at 1883; Ramirez v. State, 672 S.W.2d 480, 482 (Tex. Crim. App. 1984). This protective search of a detainee’s car must be based on the officer’s reasonable belief, based on specific and articulable facts, that the detainee may pose a danger to the officer or to others. See Goodwin v. State, 799 S.W.2d 719, 728 (Tex. Crim. App. 1990). Here, the officers had a reasonable belief that appellant might have concealed a weapon in a bottle in his car.

          The facts of this case are similar to those in Ramsey v. State, 806 S.W.2d 954, 958 (Tex. App.—Austin 1991, writ ref’d). Upon approaching the defendant’s car, the officer saw the driver throw a shaving kit onto the passenger-side floor board. Id. Once the defendant was removed from the car and the officer had observed him to be intoxicated, the officer retrieved the shaving kit, opened it, and saw contraband. Id. The officer testified that he searched the shaving kit because he was concerned for his safety. The court held that “the officer acted reasonably in taking preventative measures to ensure that there were no weapons within appellant’s grasp before allowing appellant to return to his car.” Id.

          Similarly, in Alexander v. State, 879 S.W.2d 338, 343 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d), an officer testified that he was concerned for his safety because he saw the defendant scrambling as if he were hiding something under his seat. After the defendant had exited his car, the officer searched the car for weapons. While doing so, he found a crack pipe under the floor mat. The court held that “if, while conducting a legitimate Terry search of the interior of the car, the officer should, as here, discover contraband other than weapons, he clearly cannot ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Id. at 343 (citing Michigan v. Long, 463 U.S. 1032, 1051, 103 S. Ct. 3469, 3481 (1983)).

          Here, Taylor testified that he was concerned for his safety because appellant had been making furtive gestures and fidgeting with something in his car. Taylor also testified that a pistol, a North American Arms .22 caliber revolver, could easily fit in the bottle. Taylor noted that he had seen this gun about three or four times before and that people like to wear them around their necks. We do not determine credibility; and here the record establishes that the trial court believed the officers’ testimony. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Taylor acted reasonably in taking preventative measures to ensure his safety; the fact that he discovered narcotics, rather than a weapon, does not make seizure of the bottle illegal where, based on Taylor’s experience, the bottle could have contained a weapon. We hold that Taylor’s seizure of the bottle when retrieving appellant’s identification pursuant to a Terry stop did not violate the Fourth Amendment or article I, section 9 of the Texas Constitution. Because we hold that the search and seizure were lawful, we do not reach the attenuation issue.

          We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.4.