Manuel Antonio Valdez v. State ( 2005 )

Opinion filed December 1, 2005

Opinion filed December 1, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00106-CR

                                                    __________

                             MANUEL ANTONIO VALDEZ, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 238th District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR28553

                                                                   O P I N I O N

Manuel Antonio Valdez appeals his conviction for possession of a controlled substance, cocaine. TEX. HEALTH & SAFETY CODE ANN. ' 481.115(c) (Vernon 2003).  The trial court denied in part and granted in part appellant=s motion to suppress evidence found during a warrantless search.  The trial court sentenced him to 20 years confinement after considering his prior felony convictions.  In his sole issue on appeal, appellant challenges the trial court=s denial of his motion to suppress.  We affirm.

                                                               Background Facts

Appellant had been under investigation by the Midland Police Department for several months for possible drug involvement.  The investigation focused on a gang known as Barrio Aztecas.  On October 19, 2000, Sergeant Mitch Russell with the Midland Police Department Narcotics Unit received a tip from a confidential informant that the informant had seen appellant selling cocaine from his home that day.  The informant also advised that appellant possessed a semiautomatic handgun.  Based on the informant=s information, Sergeant Russell began drafting a search warrant for appellant=s residence with the intention of presenting it to a magistrate on October 20. Sergeant Russell had received information from this informant on 15 to 20 previous occasions.  Sergeant Russell testified that the informant=s information had resulted in Aprobably half a dozen@ drug prosecutions; one successful conviction was of an alleged Barrio Aztecas member.  Sergeant Russell considered the informant to be reliable.

On October 20, at approximately 9:00 a.m., the same informant advised Sergeant Russell that appellant worked for Turf Specialties, a yard care company, and that appellant had cocaine on his person for sale while he was at work.  In response to a question by Sergeant Russell, the informant said that he had not seen appellant with a weapon that day. Sergeant Russell contacted Turf Specialties and determined that appellant was going to be at the FDIC Building just before or right after lunch.  Sergeant Russell notified Dean Cook, special agent for the Drug Enforcement Administration, of this information some time between 9:00 a.m. and 10:00 a.m. the morning of October 20.  Sergeant Russell and Agent Cook met with several other officers, and the group of officers went to the FDIC Building.

 The officers located appellant at the FDIC Building before the lunch hour.  Officer Seth Herman of the Midland Police Department testified that the officers Aperformed pat searches for weapons@ of all the workers and then made the workers sit down Aso that the officers could maintain security over them.@  Sergeant Russell testified that the informant had said that appellant commonly carried a handgun on his person or in his vehicle Apretty much at all times.@  After Sergeant Russell stated that appellant consented to a search of his person, the prosecutor asked him what he did next.  Sergeant Russell responded as follows:

Initially started a pat down of the outer clothing, and I got down to the sock, I believe it was on his left leg, and on the outside of the sock there was a pretty large bulge....I reached in his sock and pulled out a plastic baggie that contained several other plastic bags of cocaine.

Sergeant Russell also maintained that appellant consented to a search of his house.  Sergeant Russell estimated that they were at the FDIC Building for 10 minutes before the officers took appellant to his home.  The officers found four bags of marihuana and evidence of cocaine at appellant=s house, but they left appellant at his house after their search. 

Special Agent Cook confirmed that Sergeant Russell first asked appellant if he had any weapons or anything illegal on him.  Special Agent Cook testified that Sergeant Russell did search appellant and that he did find the cocaine inside appellant=s sock. Special Agent Cook also stated that appellant was not placed under arrest; he was taken to his house for a search there.  During cross-examination, Special Agent Cook was asked whether he was worried about Athe exigency of [appellant] being in some car and driving off.@ His response was as follows:

I don=t know if I would characterize it as exigent, but we decided pretty quickly to go ahead and contact him just because of the fact it was getting close to lunchtime and we knew we would be less likely to find the narcotics the longer we waited.

Two of appellant=s fellow workers testified that the officers arrived with their guns pointed at members of the work crew and that the officers searched everyone.  One witness had two previous convictions for possession of a controlled substance, and the other had been arrested at the FDIC Building on the basis of an outstanding warrant.  Appellant also maintained that the officers had their guns drawn and made everyone get on the ground.  Appellant testified that Sergeant Russell Apat searched@ him first and then searched him more thoroughly.  Appellant confirmed that the cocaine was in his sock underneath the tongue of his work boots which had tops that came to above his ankle.  Appellant denied that he had given consent to search his person or his house.

The State argued to the trial court that the motion to suppress should be denied on three grounds: (1) appellant consented to the search of his person and his house; (2) the cocaine was found during a Terry^[1] frisk; and (3) a warrantless search of his person was justified because there was probable cause and exigent circumstances. Appellant contended that he did not consent to any search and that the officers should have procured a search warrant first.

The trial court found that appellant had not consented to any search; that the police had trustworthy information sufficient to justify a prudent belief that appellant was committing a felony offense; that Athe contact and search of [appellant] was supported and justified by reasonable suspicion that he was engaged in criminal activity@; that, upon finding the suspected contraband on appellant, the police had a duty to arrest him; and that appellant was placed in custody just after Sergeant Russell found the cocaine.  Despite the officers= testimony that they had not arrested appellant, the court found that his freedom of movement had been restrained to the degree associated with a formal arrest, even though he was released later at his house.  The trial court denied the motion to suppress the evidence of the cocaine found in appellant=s boot but granted the motion to suppress the evidence found in appellant=s house.

Standard of Review

In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  Because the trial court is the exclusive fact- finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor.  Guzman v. State, supra.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Guzman v. State, supra;  Davila v. State, 4 S.W.3d 844, 847‑48 (Tex.App. ‑ Eastland 1999, no pet=n).  Absent a showing of an abuse of discretion, the trial court=s finding should not be disturbed.  Maddox v. State, 682 S.W.2d 563, 564 (Tex.Cr.App.1985).

Analysis

The federal and state constitutions both guarantee the right to be secure from unreasonable searches and seizures.  U.S. CONST. amend. IV; TEX. CONST. art. I, ' 9; see also TEX. CODE CRIM. PRO. ANN. art. 38.23(a) (Vernon 2005).  Searches conducted without a warrant are unreasonable per se, subject to a few specifically established and well-delineated exceptions.  Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); McGee v. State, 105 S.W.3d 609, 615 (Tex.Cr.App.2003).  The State bears the burden to show that appellant consented to the search or that the warrantless search falls within one of these exceptions.  McGee v. State, supra at 615. 

A police officer may conduct a limited stop of an individual for the purpose of investigation, together with a limited search for weapons, if he has reasonable suspicion to believe that the individual has been involved in a completed felony or if he has reasonable suspicion that the individual is about to or is committing a crime.  Terry v. Ohio, supra.  An anonymous tip, provided it contains sufficient details which are subsequently corroborated, may be the basis for a temporary investigative stop.  Alabama v. White, 496 U.S. 325 (1990).  Here the trial court found that the confidential informant had provided trustworthy information and, therefore, that the officers had probable cause to detain appellant.

Based on the information from the confidential informant, the trial court concluded that the officers were justified in detaining appellant for investigation and searching appellant for weapons.  Under Terry, a search is reasonable if (1) the police officer=s action was justified at its inception and (2) it was reasonably related to the circumstances that justified the interference in the first place.  Glazner v. State, No. PD-0998-04, 2005 WL 2660160 (Tex.Cr.App. October 19, 2005). Even the testimony of the defense witnesses portrayed the officers as being concerned for their safety.  There was evidence that the detention of appellant at the FDIC Building was for only about ten minutes.  Sergeant Russell=s seizure of the cocaine in appellant=s boot while he was checking appellant for weapons came within the Aplain feel@ doctrine. See Minnesota v. Dickerson, supra; In the Matter of L.R., 975 S.W.2d 656 (Tex.App. - San Antonio 1998, no pet=n); Strickland v. State, 923 S.W.2d 617 (Tex.App.-  Houston [1st Dist.] 1995, no pet=n).  The search of appellant=s person came within the parameters of Terry v. Ohio, supra.

Another warrantless search exception is where there is probable cause and exigent circumstances.  See Spears v. State, 801 S.W.2d 571, 574 (Tex.App. - Fort Worth 1990, pet=n ref=d). For this exception, the State must show the existence of probable cause at the time the search was made and the existence of exigent circumstances which made the procuring of a warrant impracticable.  Effler v. State, 115 S.W.3d 696, 698 (Tex.App. - Eastland 2003, pet=n ref=d). The search of appellant=s person was justified under Terry; therefore, we need not decide whether there were exigent circumstances justifying that search. The trial court found that there were no exigent circumstances to excuse the warrantless search of appellant=s house because the application for a search warrant had already been prepared, because appellant was in police custody after the cocaine was found, and because there was ample time to secure a warrant to search his house.

The trial court did not abuse its discretion in denying appellant=s motion to suppress the evidence of the cocaine found in his boot.  Appellant=s sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed. 

TERRY MCCALL

JUSTICE

December 1, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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^[1]Terry v. Ohio, 392 U.S. 1 (1968).