NO. 12-06-00129-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL WAYNE MCKINNEY, § APPEAL FROM THE 173RD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Michael Wayne McKinney pleaded guilty to possession of a controlled substance. Pursuant to a plea bargain agreement, the trial court sentenced him to seven years of imprisonment. In his sole issue, Appellant contends that the trial court erred in denying his motion to suppress evidence. We affirm.
Background
On April 13, 2005, Investigators Eugene Hillhouse and Kevin Hanes, and several other officers from the Henderson County Sheriff’s Department, went to Appellant’s residence to execute an arrest warrant. They announced their presence but, initially, no one answered the door. They heard movement inside the house, and eventually a female, later identified as Tracy Bensdale, came to the door. She told the officers that Appellant was not at home. The officers then entered the residence and began to search for Appellant.
They found Appellant hiding in a water heater cabinet. They pulled him out, arrested him, and took him outside. Inside the water heater cabinet where Appellant had been hiding, Investigator Hanes found an open pocket knife and a small tin that was sealed with tape and contained methamphetamine. Investigator Hillhouse testified that, when he saw this container, especially because of the way it was taped, his first impression was the container was being used to conceal drugs.
Appellant moved to suppress the methamphetamine, arguing that the search was not sufficiently contemporaneous with his arrest. The trial court found that 1) the search was made incident to a valid warrant of arrest, 2) the contraband was found in the immediate vicinity where Appellant was first found, and 3) the contraband was found where a potential weapon was in plain view. Thus, the trial court denied the motion to suppress.
Suppression of Evidence
In his sole issue, Appellant contends that the trial court erred in denying his motion to suppress the methamphetamine found in the water heater cabinet. Appellant argues that the container and its contents were discovered because of an illegal search conducted by Investigator Hanes. Specifically, Appellant contends that the search was not sufficiently contemporaneous with his arrest and the container of methamphetamine should not have been opened.
Standard of Review
A trial court’s ruling on a motion to suppress evidence is reviewed under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). An appellate court should give almost total deference to a trial court’s determination of historical facts supported by the record, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Generally, we consider de novo issues that are purely questions of law. Id.
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. Id.
Applicable Law
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The Texas Constitution contains a similar prohibition. See Tex. Const. art. I, § 9. A warrantless search is unreasonable unless it falls within certain specific exceptions. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). One such exception is “search incident to arrest.” Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969); Carrasco v. State, 712 S.W.2d 120, 122 (Tex. Crim. App. 1986). During a search incident to an arrest, officers may search any area within the arrestee’s immediate control where he may obtain a weapon or destroy evidence. Chimel, 395 U.S. at 763, 89 S. Ct. at 2040. Additionally, the search incident to an arrest can include unopened containers as long as the containers are “within the arrestee’s immediate control.” See New York v. Belton, 453 U.S. 454, 460-62, 101 S. Ct. 2860, 2864-65, 69 L. Ed. 2d 768 (1981).
Discussion
Although the time frame is not specified in the record, Investigator Hanes searched the water heater cabinet a very short time after Appellant was found. While the other officers were arresting Appellant and Bendale, Investigator Hanes was searching the water heater cabinet. Before the suspects or any of the officers left the residence, Investigator Hanes concluded his search and reported the findings to Investigator Hillhouse. Based on this record, the trial court could conclude that the search was incident to the arrest in terms of time, and we defer to this implied finding of the trial court. See Guzman, 955 S.W.2d at 89.
On direct, Investigator Hillhouse explained that while they were getting Appellant out of the bedroom and outside, Investigator Hanes advised him that he had found suspected methamphetamine. On cross examination, he agreed with defense counsel that Appellant was already outside the residence when the search was conducted. While this presents a potential conflict in the evidence, any such conflict is for the trial court to resolve. See Ross, 32 S.W.3d at 855. Nonetheless, the record establishes that Appellant had been removed from the cabinet when it was searched. This does not, however, preclude a finding that the search satisfied the search incident to arrest exception. To require the searched items to literally be in the “grasp” of the arrested suspect would be talismanic in nature and absurd. Carrasco, 712 S.W.2d at 123. A search can be incident to arrest even when the suspect has been arrested and moved from the area searched. See Belton, 453 U.S. at 462-63, 101 S. Ct. at 2862 (search of passenger compartment of automobile, and pocket of jacket found there, after suspect had been removed from vehicle upheld as search incident to arrest). The area searched was Appellant’s hiding place immediately before the arrest, the water heater cabinet. The entire water heater cabinet was a very small space where Appellant could potentially retrieve a weapon or conceal or destroy evidence. The area was searched immediately after Appellant was removed. The trial court could find under these circumstances that the exigencies of the situation demonstrate the search was sufficiently immediate and contemporaneous to the arrest in terms of location of the suspect at the time of the search to be incident to the arrest, and we defer to this implied finding of the trial court. See id., 453 U.S. at 457, 101 S. Ct. at 2862.
Appellant, citing Chimel, argues that, even if the search was incident to an arrest, there was no justification for opening the container. However, Belton makes it clear that, when the search incident to arrest exception applies, the officers are authorized to open and search containers that are potentially within the control of the suspect at the time of the arrest. Belton, 453 U.S. at 460, 101 S. Ct. at 2864. The lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have in the container whether it is open or closed. Id., 453 U.S. at 461, 101 S. Ct. at 2864. Here, the contents of the container, even though closed and taped, were sufficiently within the potential control of Appellant at the time of the arrest to justify the search. Under the facts of this case, the search was reasonable, and the trial court correctly denied the motion to suppress. We overrule Appellant’s sole issue.
Disposition
Having overruled Appellant’s sole issue, the judgment of the trial court is affirmed.
BRIAN HOYLE
Justice
Opinion delivered January 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)