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Opinion filed May 1, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00274-CR
__________
BRODERICK SMITH, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 241st District Court
Smith County, Texas
Trial Court Cause No. 241-1378-06
M E M O R A N D U M O P I N I O N
Appellant was indicted for the offense of possession of cocaine. After the trial court denied his pretrial motion to suppress, appellant pleaded guilty to the indictment and true to one enhancement paragraph. The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty-five years. Appellant challenges his conviction in a single issue contending that the trial court erred by denying his motion to suppress. We affirm.
Background Facts
Detective Steve Henry of the Smith County Sheriff=s Department testified at the suppression hearing that area law enforcement agencies had received numerous reports of illegal activities occurring at a club called AThe Spot.@ These activities included the sale of illicit drugs, prostitution, gambling, and illegal alcohol sales. Working undercover, Detective Henry purchased narcotics from The Spot=s owner. He also observed the sale of cocaine, crack cocaine, and marihuana at the club as well as gambling and after-hours alcohol sales.
As a result of these reports and observations, approximately twenty to twenty-five officers raided The Spot at 3:00 a.m. on October 21, 2005. Detective Henry testified that the officers wore attire that identified them as law enforcement officers and announced their status upon entering the club. The law enforcement officers ordered the occupants of the club to remain in place. However, the occupants began fleeing the premises as soon as officers arrived.
Detective Henry observed appellant jump over a fence as he ran away from the club. Officers told appellant to stop running on multiple occasions, but he continued running. After tripping over a wire and falling down, appellant continued running away from the club. Detective Henry and Sergeant Jerry Black eventually tackled appellant. The officers discovered a knife on the ground at the location where they apprehended appellant. The officers placed appellant=s hands on the front of a patrol car, and Detective Henry frisked him for weapons.
Detective Henry did not find any weapons on appellant=s body. However, Detective Henry visually observed a small film cannister in appellant=s pants pocket. Detective Henry testified that the pocket containing the film cannister was Agaped open@ such that he could view the contents of the pocket. He further observed a piece of a plastic bag protruding from the top of the film cannister. Detective Henry testified that film cannisters and plastic bags of this type are commonly used to store and conceal drugs. When Detective Henry asked appellant about the film cannister, appellant stated, AIt=s not mine.@ Detective Henry subsequently removed the film cannister from appellant=s pocket and opened it. He discovered a large piece of crack cocaine and an amount of powdered cocaine. On cross-examination, Detective Henry testified that he did not believe that the film cannister contained a weapon. He testified that he opened the cannister because he felt Ain [his] heart@ that the cannister contained illegal drugs based upon his training and experience.
Standard of Review
A trial court=s denial of a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court=s ruling on a motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court=s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 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, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Id.; Davila v. State, 4 S.W.3d 844, 847‑48 (Tex. App.CEastland 1999, no pet.).
Analysis
Appellant conceded at the suppression hearing that Detective Henry was justified in conducting a Terry frisk. Terry v. Ohio, 392 U.S. 1, 38 (1968). Citing Campbell v. State, 864 S.W.2d 223, 226 (Tex. App.CWaco 1993, pet. ref=d), appellant argues on appeal that Detective Henry exceeded the scope of a Terry frisk when he removed the film cannister from appellant=s pocket and opened it to discover its contents. Minnesota v. Dickerson, 508 U.S. 366 (1993) (If a protective search goes beyond what is necessary to determine whether the detainee is armed, it is no longer valid under Terry.). We do not reach appellant=s argument under Campbell, however, because we conclude that Detective Henry=s search of the film cannister was justified as a search incident to arrest.
As a preliminary matter, we must address the State=s contention regarding standing. The State asserts that appellant does not have standing to protest the search of the film cannister because he denied ownership of it. We disagree.
Standing is an element of a Fourth Amendment claim. See Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). Whether a defendant has standing to contest a search and seizure is a question of law that we review de novo. Parker v. State, 182 S.W.3d 923, 925 (Tex. Crim. App. 2006). The defendant has the burden of proving a legitimate expectation of privacy. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Whether a defendant has a reasonable expectation of privacy is determined by a two‑pronged test. Parker, 182 S.W.3d at 925; see Smith v. Maryland, 442 U.S. 735 (1979). AFirst, we ask whether the defendant had a subjective expectation of privacy in the place searched. If the answer is yes, then we ask whether the defendant=s expectation of privacy is one that society recognizes as reasonable or justifiable under the circumstances.@ Parker, 182 S.W.3d at 926.
When a defendant abandons property intentionally, and not due to police misconduct, no Fourth Amendment seizure occurs if police take possession of the property; and the defendant lacks standing to contest the reasonableness of their search of the property. Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003). Abandonment is primarily a question of intent to be inferred from words spoken, acts done, and other objective facts and relevant circumstances. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). The issue is whether the accused voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. Id.
While appellant denied ownership of the film cannister, it remained inside his pocket. Appellant obviously possessed an expectation of privacy for an item located on his person. A person can establish a reasonable expectation of privacy concerning property belonging to others but in his possession. See United States v. Richards, 638 F.2d 765, 770 (5th Cir. 1981) (defendant who picked up package for another person had standing); Wilson v. State, 692 S.W.2d 661, 670‑71 (Tex. Crim. App. 1984) (defendant who had borrowed a car with the owner=s consent had a reasonable expectation of privacy in the automobile). The fact that appellant continued to possess the item of property on his body distinguishes this case from the cases finding that an abandonment had occurred. See, e.g., Cooper v. State, 889 S.W.2d 8, 9 (Tex. App.CEastland 1994, no pet.) (defendant abandoned baggie when he voluntarily dropped it during police encounter).
The State additionally contends that Detective Henry=s search of the film cannister was permissible as a search incident to arrest. In this regard, the trial court determined that appellant committed the offense of evading arrest in the presence of Detective Henry. If an officer has probable cause to believe that an individual has committed an offense in his presence, he may arrest the offender and conduct a search incident to arrest. McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003); Dew v. State, 214 S.W.3d 459, 462 (Tex. App.CEastland 2005, no pet.)
Appellant contends that Detective Henry=s search of appellant did not constitute a search incident to arrest because Detective Henry had not arrested appellant at the time that he found the film cannister. We addressed a similar situation in Dew. We held that it is irrelevant that the arrest occurs immediately before or after the search as long as sufficient probable cause exists for the officer to arrest before the search. Dew, 214 S.W.3d at 462 (citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), and State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999)). Accordingly, the occurrence of the search immediately prior to appellant=s arrest does not invalidate the search incident to arrest. Furthermore, Detective Henry=s choice to only arrest appellant for the more serious drug offense after the search does not invalidate the fact that he had probable cause to arrest appellant for evading arrest at the time the search occurred. Appellant=s sole issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
May 1, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.