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Opinion filed January 10, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00089-CR
__________
JOHN PAUL PROCTER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 13026
O P I N I O N
The jury convicted John Paul Procter of possession of ephedrine, anhydrous ammonia, ether, methanol, and salt with the intent to manufacture methamphetamine. The trial court sentenced Procter to fourteen years confinement and a fine of $2,500. Procter challenges his conviction with one issue contending that the trial court erroneously denied his motion to suppress. Because the evidence supports the trial court=s finding that the officers were involved in a legitimate administrative search, we affirm.
We review the trial court=s denial of a motion to suppress for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). We must give almost total deference to the trial court=s determination of the historical facts as long as the record supports the findings. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). We must afford the same amount of deference to the trial court=s rulings on the application of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We conduct a de novo review where the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. Id.
It is undisputed that Department of Public Safety troopers found the substances, the possession of which resulted in Procter=s prosecution, while conducting a warrantless search of a trailer in a salvage yard. It is a cardinal principle that warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. Mincey v. Arizona, 437 U.S. 385, 390 (1978). The State argues that no warrant was required because this was a legitimate administrative search. The United States Supreme Court has held that a warrantless administrative search is reasonable if three criteria are met:
1. There must be a substantial government interest that gives rise to the regulatory scheme under which the search is made;
2. The warrantless search must be necessary to further the regulatory scheme; and
3. The certainty and regularity of the application of the regulatory scheme must provide an adequate substitute for a warrant.
New York v. Burger, 482 U.S. 691, 702-03 (1987).
Salvage vehicle operations are a regulated activity. See Tex. Transp. Code Ann. '' 501.091-.107 (Vernon 2007). These regulations extend to salvage vehicle dealers, which are defined as Aa person engaged in this state in the business of acquiring, selling, dismantling, repairing, rebuilding, reconstructing, or otherwise dealing in nonrepairable motor vehicles, salvage motor vehicles, or used parts.@ Section 501.091(17). Dealers must obtain a license pursuant to Tex. Occ. Code Ann. ' 2302.101 (Vernon 2004), and they must comply with reporting requirements when acquiring a vehicle for the purpose of dismantling, scrapping, or destroying it. See Section 501.096. Licensed salvage vehicle dealers, as well as those who engage in the salvage vehicle business, consent to entry and inspection of their business by the police at any reasonable time to inspect or copy any document, record, vehicle, part, or other item. Tex. Occ. Code Ann. ' 2302.0015 (Vernon 2004).
We need not decide whether this regulatory scheme satisfies the Burger criteria because Procter does not challenge the validity of Section 2302.0015 but, rather, its application to him. Procter argues first that there was no evidence that he owned the property or that he was running a regulated business. This argument misstates the State=s burden. The State was not required to show that Procter owned the property or was operating a salvage yard but was only required to show that a salvage yard was being operated on the property. There was ample evidence in support of this proposition.
Approximately one month before the challenged search, Palo Pinto County Deputy Sheriff Marty Holifield went onto the property to look for a possible stolen vehicle. While there, he noticed the large number of vehicles and asked Procter about them. Procter responded that he salvaged parts for resale. During this same time frame, the DPS received information from the Stephenville Police Department that stolen vehicles were being transported to the property, and a DPS investigator arranged for a helicopter fly-over. An estimated eighty cars, two mobile homes, and a wrecker towing a car were observed. DPS officers entered the property two days later around 9:00 or 9:30 a.m. They noticed that 80%-90% of the cars had missing parts, that some were on jacks, and that it appeared that the cars were being worked on. The trial court did not err by finding that a regulated business was in operation on the property.
Procter next argues that the administrative search was a pretext for a fishing expedition and contends that the officers had no legitimate reason to go into the trailer because they had already been in his office and knew there were no weapons. We cannot agree with Procter=s summary of the officer=s knowledge. When the officers first entered the property, they did not see anyone present. Sergeant Bill Cooper testified that they began to look for someone and that the trailer door was opened in the process. Sergeant John Buesing testified that, when the door was opened, auto parts were observed but that no one went inside the trailer.
Moreover, the State is not contending that Sergeant Buesing was authorized to enter the office to conduct a weapons sweep. The State argues that he was authorized to enter the office pursuant to Section 2302.0015. The weapons sweep was Sergeant Buesing=s reason for entering before Procter. The Supreme Court has excepted administrative searches from the Fourth Amendment=s warrant requirement because the owner or operator of commercial premises in a closely regulated industry has a reduced expectation of privacy in his premises. Burger, 482 U.S. at 702. We recognize that this does not give officers unbridled discretion to search without regard to the statute=s intended purpose. See Crosby v. State, 750 S.W.2d 768, 777-78 (Tex. Crim. App. 1988). However, unlike Crosby, the officers were not searching a self-selected location to assuage their curiosity. They went to the office because Procter led them there.
When Procter was asked about his paperwork, he said that it was in his office and took Sergeant Buesing there. Procter suggests that he was attempting to get the records for Sergeant Buesing. However, the testimony was that Procter was taking Sergeant Buesing to view the records. Whether Procter intended that Sergeant Buesing view the records inside or outside the trailer, we need not resolve. Section 2302.0015 allows officers to inspect books and records. This is broader than the right to simply see them. When Procter indicated that his records were inside the trailer, Sergeant Buesing was authorized to enter it.
Procter unlocked the office and Sergeant Buesing entered first and swept it for weapons. Sergeant Buesing immediately saw a syringe, mirror, and razor blade in plain view. During his sweep, Sergeant Buesing also saw several glass containers with liquids. Sergeant Buesing called for assistance from a DPS narcotics officer. Trooper Darla Dowel arrived, looked at the office, and determined that it was being used as a meth lab. Because Sergeant Buesing was authorized to enter the trailer and because the evidence he saw inside was in plain view, its observation and subsequent seizure did not involve an invasion of privacy. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). Procter=s issue is overruled.
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
January 10, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.