Opinion filed September 25, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00242-CR
__________
ERIC RAYNALL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 24769A
MEMORANDUM OPINION
The jury convicted Eric Raynall Brown of the offense of possession of
cocaine, in an amount of more than four grams but less than 200 grams, with the
intent to deliver.1 The trial court found an enhancement paragraph to be true,
assessed Appellant’s punishment at confinement for twenty-five years, and
sentenced him accordingly. In one point of error, Appellant challenges the trial
court’s denial of his pretrial motion to suppress. We affirm.
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(a) (West 2010).
I. The Evidence at Trial
Because Appellant has not challenged the sufficiency of the evidence, we
outline the evidence relevant to the suppression issue.
At the hearing on Appellant’s motion to suppress, Sue Belver, an officer in
the Abilene Police Department, testified that she was assigned to the Special
Operations Division, which dealt primarily with narcotics operations. A
“qualified” confidential informant informed Officer Belver that Appellant
possessed a quantity of crack cocaine and was riding in a certain vehicle with
several other people. Officer Belver believed the confidential informant was
reliable because the informant had given information in the past that had been true
and correct in reference to drug activity in the Abilene area; that information had
been corroborated by Officer Belver and led to several arrests. In addition, Officer
Belver had known the informant for over six months, and the informant was
“voluntarily working, not by force or holding a case over [the informant’s] head.”
The informant told Officer Belver that the informant had actually seen
Appellant with crack cocaine in a particular vehicle. The informant’s description
of the vehicle was detailed: Officer Belver received the color, make, model, and
license plate number of the vehicle. The informant told Officer Belver the general
location of where the vehicle could be found and said that four people could be
found in the vehicle. These four people included one female, a black male known
by the street name of “EB,” a black male with an unknown name, and a black male
named David Lee. Officer Belver received this information approximately two
hours before she actually made contact with Appellant.
Officer Belver elicited the assistance of other officers to help locate the
vehicle, and they all went to the area described by the informant to look for the
vehicle. Officer Belver located the vehicle at a FINA station in the area described
by the informant. According to Officer Belver, the color and description of the
2
vehicle, the license plate number, and the number of occupants in the vehicle were
consistent in every aspect with the information she received from the confidential
informant.
Officer Belver testified that, based on the information she received from the
informant, she believed there was probable cause to stop the vehicle and conduct a
search, and she intended to do so. Officer Belver was unprepared to make a stop
and conduct a search at that time because she was riding in an unmarked vehicle
that was not equipped with lights and sirens to effectuate a traffic stop. Initially,
Officer Belver was unable to solicit over the radio a marked unit to stop the suspect
vehicle, so Officer Belver followed the vehicle until it stopped so that she could
initiate contact.
The vehicle eventually stopped in the drive-through of a Long John Silver’s
restaurant. Officer Belver waited until other units arrived, and then they all
surrounded the vehicle in the drive-through. Officer Belver elected to approach the
vehicle in the drive-through because she deemed that to be a sufficient location to
approach it safely and to avoid any attempt by the driver to drive away. The
officers identified themselves as law enforcement and asked the occupants to step
out of the car.
The occupants exited the car, and the officers had the car moved so it would
not impede traffic in the drive-through lane. Four occupants exited the vehicle: a
female, who was driving; a black male named Rashad Bennett, who was riding in
the front passenger seat; a black male named David Lee; and a black male whom
Officer Belver recognized on sight as Appellant, who was known as “EB” or Eric
Brown. These four individuals matched the description given to Officer Belver by
the informant.
Officer Belver made contact with the female driver, told her that the officers
were conducting a drug investigation, and asked if the driver had anything illegal
3
in the vehicle or on her person. The driver surrendered a piece of crack cocaine
from her bra and a small amount of marihuana from her purse. The officers asked
the remaining occupants if they had anything illegal, and none of them surrendered
anything at that time.
Next, the officers conducted a search of the vehicle and each of its occupants
in an attempt to locate illegal drugs. As a part of this search, the officers recovered
from Appellant’s person a piece of plastic that was knotted at the top and contained
approximately twenty-four rocks of crack cocaine, as well as another piece of
plastic that contained what Officer Belver described as a “slab of crack cocaine.”
The officers found these items in the right cargo pocket of Appellant’s blue-jean
shorts. The crack cocaine found on Appellant’s person was the evidence that
Appellant sought to exclude via his pretrial motion to suppress.
II. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence for an
abuse of discretion, giving almost total deference to the trial court’s determination
of historical facts. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App.
2011). At a suppression hearing, the trial court is the sole judge of the credibility
of witnesses and the weight their testimony is to be afforded. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000). When the trial court fails to make
explicit findings of fact, we imply findings that support the trial court’s ruling so
long as the evidence supports these implied findings. Gutierrez v. State, 221
S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court may make reasonable
inferences from the evidence presented. Id. We will uphold the trial court’s ruling
if it is supported by the record and correct under any theory of law applicable to
the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007). We
review de novo the question of whether a specific search or seizure is “reasonable”
4
or supported by probable cause under the Fourth Amendment. Dixon v. State, 206
S.W.3d 613, 616 (Tex. Crim. App. 2006).
In our review of the trial court’s ruling on the motion to suppress, we will
consider only the record of the suppression hearing because that is the only
evidence before the trial court at the time of its ruling on Appellant’s motion to
suppress. See Gutierrez, 221 S.W.3d at 687. Although Appellant objected to the
admission of the crack cocaine as an exhibit at trial, the suppression issue of
probable cause for Appellant’s arrest was not relitigated during trial. Appellant
objected to the admission of the crack cocaine on multiple grounds, including the
Fourth Amendment, after all of the witnesses had already testified except for
Appellant’s cross-examination of the laboratory technician expert. The trial court
summarily overruled Appellant’s objection.
The suppression issue was not discussed further by the parties or the trial
court. Therefore, the trial court’s pretrial denial of Appellant’s motion to suppress
is the operative ruling in this case, and we will limit our review to the evidence
presented during the pretrial suppression hearing. See Gutierrez, 221 S.W.3d at
687 (in reviewing trial court’s pretrial ruling on suppression motion, appellate
court is limited to record produced at suppression hearing unless parties relitigate
issue at trial); Herrera v. State, 80 S.W.3d 283, 291 (Tex. App.—Texarkana 2002,
pet. ref’d) (limiting review of motion to suppress to suppression hearing record
because parties did not consensually agree to relitigate issue at trial and no
evidence was developed at trial for purposes of addressing suppression issue).
III. Analysis
The sole point of error before this court is the reasonableness of the search
that resulted in the recovery of the crack cocaine from Appellant’s person. Both
the federal and state constitutions guarantee the right to be secure from
unreasonable searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I,
5
§ 9; see also TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Searches
conducted without a warrant are per se unreasonable, subject only to a few
specifically established and well-delineated exceptions. Minnesota v. Dickerson,
508 U.S. 366, 372 (1993); Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim.
App. 2012).
The State contends that the search of Appellant’s person was reasonable
under the totality of the circumstances because Officer Belver had probable cause
to search the vehicle and because the “automobile exception” to the warrant
requirement applied for the investigative detention. The State also argues that it
could search Appellant individually because the police had probable cause to
believe he possessed drugs, based on the information provided by the confidential
informant. The confidential informant specifically identified Appellant as the
person in the vehicle with crack cocaine in his possession, and Appellant was the
targeted suspect throughout the investigative detention with police. Accordingly,
Officer Belver’s search of Appellant’s person was lawful if it was made with
probable cause. See Buitron v. State, 519 S.W.2d 467, 470 (Tex. Crim. App.
1975).
Probable cause to search exists when the totality of the circumstances allows
a conclusion that there is a fair probability of finding contraband or evidence at a
particular location. Illinois v. Gates, 462 U.S. 213 (1983); Dixon, 206 S.W.3d at
616. Probable cause is a fluid concept that turns on the assessment of probabilities
in particular factual contexts. Gates, 462 U.S. at 232; Dixon, 206 S.W.3d at 616.
We agree with the State that the automobile exception applies to this case;
therefore, the officers could lawfully search the vehicle and its contents if they had
probable cause to believe they would find evidence of contraband therein. Under
the automobile exception, law enforcement officers may conduct a warrantless
search of a vehicle if it is “readily mobile and there is probable cause to believe
6
that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim.
App. 2009). This exception is justified because the ready mobility of a vehicle
creates an exigency, and an individual has a reduced expectation of privacy in a
vehicle because it is subject to “pervasive [government] regulation.”
Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (citing California v. Carney,
471 U.S. 386, 391–92 (1985)). If the automobile exception applies, law
enforcement officers may search “every part of the vehicle and its contents that
may conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825
(1982); Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008).
We note that probable cause to search a car under the automobile exception
does not automatically justify a body search of all of its occupants. See United
States v. Di Re, 332 U.S. 581, 587 (1948). That is because “a person’s mere
propinquity to others independently suspected of criminal activity does not,
without more, give rise to probable cause to search that person.” Ybarra v. Illinois,
444 U.S. 85, 91 (1979). Appellant contends that the warrantless search was
unreasonable because Officer Belver had ample time to obtain a warrant before
conducting the search given that she received the information relied upon to justify
the search roughly two hours before she detained Appellant. But the automobile
exception has no separate exigency requirement in addition to probable cause. See
United States v. Johns, 469 U.S. 478, 484–85 (1985); State v. Guzman, 959 S.W.2d
631, 634 (Tex. Crim. App. 1998). An automobile’s ready mobility creates the risk
that evidence or contraband will be permanently lost while a warrant is obtained.
Carney, 471 U.S. at 390–91. Thus, the possibility of having the time to obtain a
warrant, in retrospect, does not render the warrantless search in this case
unreasonable. Moreover, Officer Belver, along with the other officers in pursuit,
was consistently monitoring and trailing the vehicle after Officer Belver initially
spotted it. To require law enforcement to relay the information necessary for a
7
warrant and to wait for a magistrate to issue it, all while the officers were waiting
for the opportunity to stop the vehicle, would have been impractical under the
circumstances in this case.
The facts of this case are similar to those in Dixon v. State. In Dixon, the
Court of Criminal Appeals upheld a finding of probable cause after law
enforcement officers, based on information given by a confidential informant,
recovered cocaine from a suspect’s vehicle. Dixon, 206 S.W.3d at 619. The
evidence showed that the confidential informant had been reliable in the past; had
given detailed information about the suspect, his whereabouts, and his recent
possession of cocaine “rocks”; and had provided verifiable detail. Id. at 616–17.
The arresting officer was able to verify almost every piece of information from the
informant, except the actual presence of cocaine, before detaining the suspect and
searching his car. Id. These verified facts included the suspect’s physical
description, the make and model of the vehicle, and the general location in which
the officers could find the defendant. Id. at 617–18.
In this case, the evidence shows that Officer Belver received information
from a “qualified” confidential informant. Officer Belver was familiar with the
informant and had worked with the informant in past situations that resulted in
arrests. The informant gave Officer Belver detailed information about Appellant
and Appellant’s recent whereabouts, including Appellant’s recent possession of
crack cocaine. In addition, the informant provided numerous verifiable details,
such as Appellant’s location, a physical description of Appellant and the other
occupants of the vehicle, and the make and model of the vehicle. Other than
Appellant’s actual possession of crack cocaine, these details were, in fact,
corroborated by Officer Belver before detaining the occupants of the vehicle and
conducting the search.
8
Based on these facts, we conclude that Officer Belver had probable cause to
believe that Appellant possessed crack cocaine, and the subsequent search of
Appellant’s person was lawful. See Whaley v. State, 686 S.W.2d 950, 950–51
(Tex. Crim. App. 1985); Collier v. State, No. 11-07-00372-CR, 2009 WL 2213470,
at *3 (Tex. App.—Eastland July 23, 2009, no pet.) (mem. op., not designated for
publication); Johnson v. State, 32 S.W.3d 294, 298–99 (Tex. App.—San Antonio
2000, pet. ref’d). Thus, the trial court did not abuse its discretion when it denied
Appellant’s motion to suppress. We overrule Appellant’s sole point of error.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
September 25, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
9