COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOHN DAVID WOODS, JR., )
) No. 08-01-00128-CR
Appellant, )
) Appeal from the
v. )
) 363rd District Court
THE STATE OF TEXAS, )
) of Dallas County, Texas
Appellee. )
) (TC# F-0054533-W)
)
O P I N I O N
Appellant, John David Woods, Jr., was charged with possession of a controlled substance to wit: cocaine, in an amount by aggregate weight of 1 gram or more but less than 4 grams, including any adulterants or dilutants. Appellant filed a pretrial written motion to suppress evidence. After holding a two-day hearing, the trial court denied the motion. On February 23, 2001, Appellant signed a plea bargaining agreement, pleading guilty to the possession offense and pleading true to an enhancement paragraph in the indictment. Pursuant to the plea agreement, the trial court assessed punishment at 2 years confinement in the Institutional Division of the Texas Department of Criminal Justice and imposed a fine of $2,000. Appellant brings eleven issues for review, all of which contest the trial court=s denial of his motion to suppress. We affirm.
FACTUAL BACKGROUND
At the suppression hearing, the State introduced into evidence testimony from Officers Suzanne Richard and Brian Tabor. On October 7, 2000 at approximately 9:35 in the evening, Officer Suzanne Richard and her partner, Officer Brian Tabor, were out on special assignment to respond to numerous citizen complaints about drugs being sold in the 10300 block of Cymbal, a high crime and drug sales area. Officer Richard testified that they were in full uniform and driving a marked squad car. When they arrived to the location on Cymbal they observed a group of people standing on the sidewalk and saw Appellant standing in the middle of the street, flagging down cars that drove by down the street. Officer Richard also stated that one car had stopped and that Appellant had walked up to the driver=s side of the vehicle. As they pulled up, Appellant started to walk away from the police car. The officers exited the squad car and stopped Appellant for Apedestrian in the roadway.@ Upon exiting the squad car, Officer Richard was the closest to Appellant and approached him first. When the officers made contact with Appellant they were able to identify him and ran his identity information through the computer in the squad car. As soon as they ran the information, the officers learned that Appellant had an outstanding warrant for failure to appear.
Appellant was placed under arrest and was searched by Officer Richard incident to that arrest. Appellant was wearing oversized, low-hanging pants. To conduct the search, Officer Richard had to pull up Appellant=s pants a bit so that she could feel his backside. In the course of patting down Appellant, Officer Richard felt a bulletproof vest. Officer Richard also felt a big lump in Appellant=s pants towards the back of his buttocks. With gloved hands, Officer Richard pulled back his pants and underwear and saw a package of drugs about an inch from the waistband of Appellant=s pants, up against Appellant=s butt cheeks and his underwear. Officer Richard removed the package of drugs. She testified that the package was a baggie containing seventeen rocks of cocaine and was about three to four inches long. Officer Richard denied the allegation that she conducted a body cavity search of the Appellant. Officer Tabor also testified that Officer Richard did not find the drugs in a body cavity and that the drugs she found were only a couple of inches below Appellant=s pants line.
On cross-examination, Officer Richard testified that she was not aware of anyone looking out of their windows at Appellant during the search that night. Officer Richard denied finding the drugs in the crack between Appellant=s butt cheeks and denied pulling down Appellant=s pants. Officer Richard also denied searching Appellant near his genital area under his garments.
MOTION TO SUPPRESS
Standard of Review
A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Brewer v. State, 932 S.W.2d 161, 166 (Tex.App.‑‑El Paso 1996, no pet.). On a motion to suppress evidence, the trial judge is the sole trier of fact and judge of the credibility of the witnesses, including what weight, if any, is to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Consequently, the reviewing court must defer to the trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). We review de novo the trial court=s determinations of reasonable suspicion and probable cause and will presume that the trial judge found the police officers= testimony credible since she overruled Appellant=s motion to suppress. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89; Cook v. State, 1 S.W.3d 718, 721 (Tex.App.--El Paso 1999, pet. ref=d).
Equal Protection and Due Process
In Issues One through Six, Appellant argues that the trial court erred in overruling his motion to suppress because the search of Appellant violated his right to equal protection under the Fourteenth Amendment of the U.S. Constitution and Article I, '' 3 and 3a of the Texas Constitution and his right against unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution, Article I, ' 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure.[1] At the suppression hearing and on appeal, Appellant argues that the Dallas Police Department policy which permits a female officer to conduct a body search of a male suspect, but does not allow a male officer to conduct a body search of a female suspect, violated Appellant=s right to equal protection and due process of law. Appellant contends that the Department=s policy of allowing female officers to conduct a search of a male suspect affected Appellant=s fundamental rights to equal protection and due process of law in that the policy is facially discriminatory because it permits male suspects to be searched by male or female officers, but only permits female officers to search female suspects. Appellant asserts that allowing female officers to touch a male suspect=s genital area is inappropriate and a violation of both equal protection and unreasonable search and seizure. Appellant also asserts that the Department=s policy elevates females over males by giving females a safeguard against inappropriate and outrageous police conduct to which Appellant, as a male, was subjected.
Exclusionary Rule Article 38.23
Article 38.23 of the Texas Code of Criminal Procedure prohibits the use of unlawfully seized evidence. Article 38.23(a) provides in relevant part:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
Tex.Code Crim.Proc.Ann. art. 38.23(a)(Vernon Supp. 2003). The primary purpose of the exclusionary rule is to deter police activity that could not have been reasonably believed to be lawful by officers engaging in the activity. See Drago v. State, 553 S.W.2d 375, 378 (Tex.Crim.App. 1977); Watson v. State, 10 S.W.3d 782, 784 (Tex.App.--Austin 2000, no pet.). Before Article 38.23 may be invoked, it must be shown that the evidence in question was obtained in violation of the constitution or laws of either the United States or Texas. Woods v. State, 970 S.W.2d 770, 775 (Tex.App.--Austin 1998, pet. ref=d). If evidence is not obtained in violation of any law or constitutional provision, its admission is not in contravention of Article 38.23(a). See State v. Mayorga, 901 S.W.2d 943, 945 (Tex.Crim.App. 1995).
Equal Protection Claim
Appellant asserts that the trial court erred in denying his motion to suppress because the Dallas Police Department search policy is facially discriminatory and based solely upon gender. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires that all persons similarly situated shall be treated alike under the law. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L. Ed. 2d 786 (1982). Article I, section 3 of the Texas Constitution provides that A[a]ll free men, when they form a social compact, have equal rights . . . .@ This provision of the state bill of rights provides the same guarantees as the Equal Protection Clause of the Fourteenth Amendment. See Sonnier v. State, 913 S.W.2d 511, 521 (Tex.Crim.App. 1995); Rose v. Doctors Hosp., 801 S.W.2d 841, 846 (Tex. 1990). Proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L. Ed. 2d 450 (1977). If a classification employed by state action is drawn around a suspect class or affects a fundamental right, a reason to suspect discriminatory intent arises. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L. Ed. 2d 870 (1979). In the case of gender classification, the state is required to prove that its classification serves important governmental objectives and the discriminatory means employed bear a close and substantial relationship to those objectives. Nguyen v. I.N.S., 533 U.S. 53, 60-1, 121 S.Ct. 2053, 2059, 150 L. Ed. 2d 115 (2001); Feeney, 442 U.S. at 273, 99 S.Ct. at 2293. Article 38.23 interpreted broadly requires the exclusion of any evidence obtained in violation of any provision of the Texas or federal constitutions. See Tex.Code Crim.Proc. Ann. art. 38.23(a). Without deciding whether a motion to suppress hearing is an appropriate venue for asserting an equal protection claim under Article 38.23, we will consider whether Appellant established that the evidence in this case was Aobtained in violation@ of the Equal Protection Clause.
At the suppression hearing, defense counsel cross-examined Officers Richard and Tabor regarding the Dallas Police Department=s search policy. Officer Tabor admitted that under normal circumstances, the Department policy is that male suspects may be subjected to a full body search in the field by either a male or female officer. Officer Tabor also admitted that under the same policy, female suspects may be subjected to a full body search by only female officers. Officer Tabor conceded that nothing prevented him, a male officer, from searching Appellant. However, Officer Tabor also stated that if Appellant had tried to run away while being searched by Officer Richard, he would have had a better advantage in catching Appellant. Officer Richard testified that under normal procedures, she would have conducted the search of a female suspect even if Officer Tabor had his hands on the female suspect first. Under exigent circumstances, however, a male officer can search a female suspect.
There is no evidence in the record which supports Appellant=s contention that the Department search policy violates the Equal Protection Clause. Appellant offered no evidence at the suppression hearing that showed that the manner in which body searches were conducted on male suspects differed from body searches on female suspects. His equal protection complaint is limited to challenging the sex of the officer conducting the search, rather than the search itself. In his brief, Appellant contends that the policy affords female suspects a safeguard against inappropriate police conduct. Yet, there is no evidence in the record that under the policy, male suspects are Asubjected to the outrageous police conduct,@ while female suspects are not. Appellant has not argued that the search conducted on his person would have been different in kind had he been a female or if he had been searched by a male officer. To this extent, Appellant failed to present evidence that the Department search policy was discriminatory on the basis of gender. We have not found nor does Appellant point to any authorities that support his contention that a police policy which permits male or female officers to conduct body searches on male suspects violates the Equal Protection Clause. Therefore, we cannot conclude that the trial court erred in denying Appellant=s motion to suppress based on his equal protection claim.
Due Process Claim
Appellant also asserts that the search of his person by a female, rather than a male officer, violated his right against unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution, Article I, ' 9 of the Texas Constitution. Appellant does not argue that his right differs under the Texas Constitution, therefore we only reach his federal claim. See Norris v. State, 902 S.W.2d 428, 446 n.22 (Tex.Crim.App. 1995); Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex.Crim.App. 1991).
Searches made incident to a lawful arrest and which are otherwise proper in scope are excepted from both state and federal constitutional search warrant requirements. Rogers v. State, 774 S.W.2d 247, 264 (Tex.Crim.App. 1989), cert. denied, 493 U.S. 984, 110 S.Ct. 519, 107 L. Ed. 2d 520 (1989); United States v. Robinson, 414 U.S. 218, 225, 94 S.Ct. 467, 472, 38 L. Ed. 2d 427 (1973). It is reasonable within the meaning of the federal constitution for an officer to search a suspect for weapons or contraband upon lawful arrest. See Robinson, 414 U.S. at 234-36, 94 S.Ct. at 476-77.
In the present case, Appellant does not dispute on appeal that he was lawfully arrested pursuant to an outstanding warrant. Officer Richard testified that upon his arrest, Appellant was searched for weapons or contraband prior to placing him in the back of the squad car. In his brief, Appellant indicates that this search incident to arrest was unreasonable because it was conducted by a female officer and because it involved inappropriate contact with his genital area. As to unreasonableness, we understand Appellant to be arguing that Officer Richard exceeded the scope of a reasonable search incident to arrest. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). There is no evidence in the record to support Appellant=s contention that he was subjected to an intrusive search. Officer Richard denied conducting a strip search or a body cavity search in obtaining the evidence seized. Officer Tabor testified to the same. Therefore, the trial court did not err in denying Appellant=s motion to suppress based on his due process of law claim. We overrule Issues One through Six in their entirety.
Investigative Detention
In Issues Seven through Eleven, Appellant argues that the trial court erred in denying his motion to suppress because there was no probable cause to detain Appellant, therefore the evidence was seized in violation of Appellant=s right against unreasonable search and seizure under the Fourth and Fourteenth Amendments of the U.S. Constitution, article I, ' 9 and ' 19 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure.
Initially, we note that Appellant claims relief under both the federal and state constitutions, yet he does not brief his federal and state claims separately. An appellant claiming relief under both the federal and state constitutions must Aanalyze argue, or provide authority to establish that his protection under the Texas Constitution exceeds or differs from that provided to him by the Federal Constitution.@ Arnold v. State, 873 S.W.2d 27, 33 n.4 (Tex.Crim.App. 1993). Since Appellant has failed to provide any substantive analysis and argument as to how the protection provided by the Texas Constitution differs, we only reach his federal claims. Norris, 902 S.W.2d at 446 n.22; Heitman, 815 S.W.2d at 690-91 n.23.
An investigative detention occurs when a police officer, under a display of law enforcement authority, temporarily detains a person for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). A law enforcement officer may stop and briefly detain a person if the officer has reasonable suspicion, supported by articulable facts that criminal activity is afoot, even though the officer lacks evidence rising to the level of Aprobable cause@ to arrest. Terry, 392 U.S. at 22, 88 S.Ct. at 1880; Davis v. State, 947 S.W.2d 240, 242-43 (Tex.Crim.App. 1997).
AReasonable suspicion@ requires that the officer have specific, articulable facts that, in light of his experience and personal knowledge, would lead him to reasonably suspect that a particular person has engaged in or is, or soon will be, engaging in illegal conduct. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). Whether reasonable suspicion is present is determined under an objective standard. Terry, 392 U.S. at 21-2, 88 S.Ct. at 1879-80; Davis, 947 S.W.2d at 243. In determining the reasonableness of the investigative detention, we examine the totality of the circumstances. Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79; Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997).
At the suppression hearing, Officer Richard testified that she had four years of experience as a police officer. On the evening of October 7, 2000, she and Tabor were on special assignment that night to respond to numerous complaints that drugs were being sold in the 10300 block of Cymbal. Officer Tabor testified that this location was a known drug area and that he was assigned to this area to combat the high crime and high drug sales there. When they arrived, Officer Richard observed Appellant walking in the middle of the street and flagging down cars. Officer Tabor observed Appellant leave a group of people and walk on the side of the street and then across to the other side of Cymbal. Officer Tabor stated that he had quite a bit of experience in dealing with drug trafficking and drug exchanges on the street. According to Officer Tabor, he did not believe that they saw Appellant involved in an actual hand-to-hand drug transaction, but Appellant was on a corner where persons are always selling drugs. Officer Tabor noted that Appellant was acting nervous in that he quickly tried to walk away as they approached and that Appellant was a pedestrian in the roadway. After exiting the squad car, the officers walked up to Appellant to identify him and then checked for outstanding warrants. Based on the totality of the circumstances, including the numerous citizen complaints that evening about drug sales on the block, the officers= police experience, the area in which Appellant was detained, and the officers= observations, we conclude that reasonable suspicion existed to justify the initial detention. We overrule Issues Seven through Eleven.
We affirm the trial court=s judgment.
February 27, 2003
DAVID WELLINGTON CHEW, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
[1] Appellant also relies on Article I, ' 3a, the Equal Rights Amendment of the Texas Constitution. However, Appellant failed to raise Article I, ' 3a as a ground for granting his motion to suppress in the trial court. Accordingly, we find that Appellant has waived this complaint for appellate review. See Tex.R.App.P. 33.1.