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Opinion filed July 13, 2006
In The
Eleventh Court of Appeals
__________
No. 11-05-00275-CR
__________
ROBERT HERNANDEZ, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F03-27004-RQ
O P I N I O N
Robert Hernandez was charged with possession of less than four grams of methamphetamine. He filed a pretrial motion to suppress challenging the use of drugs seized during his arrest. The trial court conducted an evidentiary hearing and denied the motion. Hernandez waived a jury trial. The trial court found Hernandez guilty and sentenced him to five years community supervision. Hernandez appeals the trial court=s suppression ruling. We find no error and affirm.
I. Background Facts
Officer Daniel P. Colasanto, a narcotics officer with the City of Garland Police Department, and Patrol Officer William Nies went to Jennifer Epler=s apartment to arrest her on an outstanding warrant. Epler answered the door. The officers advised her that she had an outstanding warrant and that she was under arrest. Epler asked to get a drink and a pair of shoes. The officers consented and followed Epler into her apartment. Hernandez was standing in Epler=s living room. Officer Colasanto accompanied Epler to get her shoes. Officer Colasanto had some prior experience with Hernandez, and he told Officer Nies to watch him.
Hernandez was standing in front of a couch. He walked to the back of the couch, picked up a newspaper, and dropped it on the couch. Hernandez then moved the newspaper as if he was trying to conceal something. Officer Nies asked Hernandez what he was trying to cover up. Hernandez responded, ANothing.@ When Officer Nies told Hernandez to move the paper, he did by moving it one inch. Officer Nies told Hernandez to step back. Officer Nies picked up the paper and found a glass pipe used to smoke narcotics and a glasses holder or container. Officer Nies opened up the container and found baggies with small white pills and another pipe.
Officer Colasanto immediately took Hernandez into custody. Hernandez was cuffed, patted down for weapons, and forced to his knees. Officer Colasanto asked Epler if there were any more drugs or drug paraphernalia in the apartment. She said no and consented to a search of her apartment.
The officers found a backpack on the living room floor next to the couch. When the officers first entered the apartment, the backpack was within Hernandez=s reach. But, when Hernandez was arrested, it was the length of the couch away from him. Officer Nies testified at the suppression hearing that Hernandez identified the backpack as his.
Hernandez also testified at the suppression hearing. He denied telling the officers that the backpack was his. He testified that it did not belong to him and that the only thing he brought with him to Epler=s apartment was a day planner. He also denied any knowledge of drugs or drug paraphernalia in the apartment.
The officers did not ask Hernandez for permission to search the backpack. Neither officer testified that Hernandez ever made a move for the backpack. The backpack was zipped closed. Officer Nies opened and searched the backpack and found baggies containing methamphetamine. Hernandez was taken to the police station for booking. There, additional methamphetamine was found in Hernandez=s pocket. Hernandez was charged with possession of the methamphetamine found in the backpack and in his pocket but not with possession of the drugs or drug paraphernalia found on the couch.
II. Issues
Hernandez presents one issue on appeal contending that the trial court erred by overruling his motion to suppress the backpack search.
III. Standard of Review
A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We afford almost total deference to the trial court=s determinations of historical facts and credibility and review de novo determinations that do not turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). The evidence is viewed in the light most favorable to the trial court=s ruling, and it is assumed that the trial court made implicit findings of fact supported in the record. The trial court=s decision will be sustained if it is correct on any theory of law applicable to the case. Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005).
IV. Discussion
The State argues initially that Hernandez has no standing to complain of the backpack search because of his suppression hearing testimony. The State argues further that the search was justified either because of Epler=s consent or as a search incident to an arrest.
A. Standing
An accused has standing to challenge a search under the Fourth Amendment only if he had a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978). The accused bears the burden of proof and must establish a subjective expectation of privacy that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979).
Among the factors courts are to consider when determining whether a given claim of privacy is objectively reasonable is whether the accused had a property or possessory interest in the place or item searched. Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002).[1] The State argues that Hernandez cannot satisfy his burden of proof because he testified at the suppression hearing that the backpack was not his. Logically, there should be some consequence to Hernandez=s testimony. But, the trial court did not believe Hernandez because it found Hernandez guilty of possession. The State made no attempt to separate the methamphetamine found in Hernandez=s pocket from that found in the backpack. Consequently, the trial court=s judgment necessarily reflects the determination that it concluded the backpack and the methamphetamine contained within it belonged to Hernandez. The trial court is the sole trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The record adequately supports this factual determination.
Hernandez does not complain of the officers= entry into Epler=s apartment, Officer Nies=s discovery of the drugs and drug paraphernalia on the couch, or their decision to arrest him. His challenge is focused specifically on Officer Nies=s backpack search. Hernandez had a legitimate expectation of privacy while in Epler=s apartment. Minnesota v. Olson, 495 U.S. 91, 97 (1990). It is not unreasonable to extend that expectation of privacy to personal items such as the backpack. Consequently, a search of the backpack infringes upon Hernandez=s Fourth Amendment rights, and he has standing to challenge it. See Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984) (passenger can contest search of automobile upon showing that the search resulted from an infringement of his constitutional rights).
B. Search Incident To An Arrest
Law enforcement officials have long had the authority to conduct a warrantless search of the person of the accused contemporaneous to a lawful arrest. See Weeks v. United States, 232 U.S. 383, 392 (1914). In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court considered law enforcement officials= authority to search a home incident to an arrest. There, the court held that it was reasonable for the arresting officer to search the person of the arrestee to remove any weapons and seize any evidence that might otherwise be concealed or destroyed. The court also held that it was reasonable to search any area into which the arrestee might reach for the same purposes. The court held that this justification would not, however, allow for the routine search of any room in the home other than the one in which the arrest occurs. Id. at 762-63.
Hernandez characterizes this as a Awingspan search@ and argues that, because he was handcuffed, on the floor, and the length of the couch away from the backpack when it was searched, the justifications for a search incident to an arrest do not apply. Subsequent Supreme Court decisions, however, indicate that the authority to search is not defined by the arrestee=s actual physical reach at the time of the search but, rather, by consideration of the arrestee=s proximity, temporal or spatial, to the area searched.
In New York v. Belton, 453 U.S. 454 (1981), the court held that police officers arresting the occupant of a car were authorized to search the entire passenger compartment of that car, including any closed containers contained within. Id. at 461. In Thornton v. United States, 541 U.S. 615 (2004), the court held that police were authorized to search a vehicle as a search incident to an arrest, even though the accused was arrested after he had exited his vehicle and the search occurred while he was handcuffed and in the back seat of the patrol car. Chief Justice Rehnquist wrote the majority opinion. He recognized that it was unlikely that the accused could have accessed a weapon from his car[2] but determined that the Aneed for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment@ justified allowing the arresting officer to search the entire passenger compartment of the vehicle. Id. at 622-23.
Consequently, the fact that Hernandez was unlikely to reach the backpack is a relevant inquiry, but it is not outcome determinative. Chimel drew a distinction between the room in which the arrest occurred and the remainder of the house. Belton and Thornton focused on the arrestee=s temporal and spatial connection to the search area. In this case, the relevant events all took place within Epler=s living room and within a short period of time. Hernandez was in the living room when the police officers arrived and remained there until his arrest. The backpack was in the living room at all times, and the officers did not seize any item from any room other than the living room. We find, therefore, that the police officers did not exceed their authority to conduct a search incident to an arrest merely because the backpack was a couch length away from Hernandez at the time of his arrest. See Voelkel v. State, 629 S.W.2d 243, 246 (Tex. App.CFort Worth 1982), aff=d, 717 S.W.2d 314 (Tex. Crim. App. 1986) (officers could search the motel room in which the defendant was arrested as a search incident to an arrest).
The officers= authority to search is also not defeated by the fact that the backpack was a sealed, personal item. In Chimel, 395 U.S. at 763, the court noted that a gun concealed in a drawer can be as dangerous as one concealed in the arrestee=s clothing. Subsequent decisions have allowed searches of a variety of personal items. See, e.g., United States v. Ivy, 973 F.2d 1184, 1187 (5th Cir. 1992) (briefcase); Oles v. State, 993 S.W.2d 103, 109 (Tex. Crim. App. 1999) (clothing); Satterwhite v. State, 726 S.W.2d 81, 87 (Tex. Crim. App. 1986), rev=d on other grounds, 486 U.S. 249 (1988) (glove compartment); Ashton v. State, 931 S.W.2d 5, 8 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (purse). Furthermore, it makes no difference whether the backpack was open or closed. A search incident to an arrest is not justified by the arrestee=s lack of a privacy interest. The lawful arrest itself justifies the infringement of any privacy interest. Belton, 453 U.S. at 461.
We find that the trial court did not abuse its discretion by denying Hernandez=s motion to suppress. The officers were entitled to search the backpack incident to Hernandez=s arrest. This holding makes it unnecessary for us to consider the State=s argument that Epler=s consent to a search of her apartment authorized the police to open Hernandez=s backpack, and we express no opinion on that question. This holding also makes it unnecessary for us to address Hernandez=s argument that it was inappropriate for the police to seize the backpack for safekeeping rather than simply leaving it at Epler=s apartment; thus, it is unnecessary for us to determine whether the backpack was properly searched to develop an inventory.
V. Holding
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
July 13, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]Other relevant factors include: whether the accused was legitimately in the place searched; whether the accused had complete dominion or control and the right to exclude others; whether prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; whether he put the place to some private use; and whether his claim of privacy is consistent with historical notions of privacy. Granados, 85 S.W.3d at 223.
[2]Justices Scalia and Ginsburg concurred in the judgment. They described the risk that the accused might grab a weapon or evidentiary item from his car as Aremote in the extreme.@ 541 U.S. at 625.