NO. 07-10-0289-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 21, 2011
ANDREW JOSEPH WILSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
___________________________
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;
NO. 1146243D; HONORABLE RUBEN GONZALEZ, PRESIDING
Memorandum Opinion
Before QUINN, C.J., PIRTLE, J., and BOYD, S.J.1
Andrew Joseph Wilson was convicted of unlawfully posessing a firearm after
pleading guilty to the charge. On appeal, he challenges the trial court’s denial of his
motion to suppress the firearm, which weapon was discovered in his vehicle. We affirm
the judgment.
On January 21, 2009, Officers Nickolas Brown and Ryan Sparks were driving
down a residential street in a moderate to high crime area in Fort Worth. It was around
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John T. Boyd, Senior Justice, sitting by assignment.
2:00 a.m. They noticed a vehicle parked on the street facing the wrong direction. They
decided to cite it, and as they began to place the citation on the vehicle, appellant was
discovered sitting in it.
When questioned why he was so parked, appellant replied that he was waiting
for his uncle. However, he was unable to supply a last name for the man and then
admitted that he was waiting for a friend. The officers obtained appellant’s
identification, checked it with dispatch, and discovered that he had outstanding arrest
warrants. This resulted in their placing him under arrest. At that point, the officers also
decided to impound the car and contacted a wrecker for that purpose. Before the
wrecker removed the vehicle, it was searched, and the officers found a handgun in the
console during that search. It was that evidence that appellant sought to suppress.
And, he attempted to do so on the grounds that the search was neither a permissible
search incident to arrest nor an inventory search.
We review the trial court’s ruling on a motion to suppress under the standard
discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). In doing so, we
defer to the trial court’s resolution of historical fact but review de novo its interpretation
of the law. Id. at 493. So too do we look at the totality of the circumstances to
determine the legitimacy of the search. Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.
Crim. App. 2004).
Appellant argues that because the gun was not accessible to him at the time the
search was conducted, it could not be a search incident to arrest. Thus, it violated the
tenets of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Per
the latter, police may search a vehicle incident to arrest only it if is reasonable to believe
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that the arrestee might access the vehicle at the time of the search or that the vehicle
contains evidence of the offense underlying the arrest. Id. 556 U.S. at __; 129 S.Ct.
1719. Officer Brown conceded at trial that appellant was not capable of returning to his
vehicle and that there was no reason to believe there was any evidence in the car
pertaining to his arrest.
Yet, Brown also testified that the officers were unable to leave the vehicle where
it was located because it was parked illegally, they knew of no one with whom to leave it
and, consequently, they decided to impound it.2 Furthermore, the wrecker was
contacted before the search occurred and the gun found. Additionally, Officer Sparks
testified that appellant’s vehicle had property in it that the officers did not want to be
liable for in the event of theft.
Finally, exhibits at the suppression hearing included a copy of the Fort Worth
vehicle impoundment procedures and a copy of the inventory from the vehicle. The
former authorized impoundment if the vehicle was lawfully parked and the arrestee
asked that another take control of it. Neither condition applied, however, because the
car was illegally parked and appellant never sought to make a request.
Police officers may lawfully inventory the contents of a vehicle after an arrest if
the inventory is conducted pursuant to lawful impoundment of the vehicle. Benavides v.
State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980); accord St. Clair v. State, 338
S.W.3d 722, 724 (Tex. App.–Amarillo 2011, no pet.) (stating that police may conduct an
inventory search of a vehicle if impoundment is the only reasonable alternative to
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A man claiming to be a friend of appellant approached the officers after appellant had been
arrested, but the friend also had outstanding warrants and was arrested.
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protect it). And, even if a search does not qualify as a search incident to arrest, it may
still qualify as an inventory search. Moskey v. State, 333 S.W.3d 696, 702 (Tex. App.–
Houston [1st Dist.] 2010, no pet.).
Appellant argues that any alleged inventory search was a pretext because the
police department impoundment procedures did not authorize an impoundment in this
situation, there was no danger to the vehicle or its contents because the officers had the
key, the officers were originally only going to leave a citation and there were other
alternatives to impoundment. However, officers are not required to independently
investigate possible alternatives to impoundment absent some objectively demonstrable
evidence that alternatives existed. St. Clair v. State, supra; Garza v. State, 137 S.W.3d
878, 882 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d). So, the contention that they
could have solicited approval from others to leave the car there is of no moment.
So, given the totality of circumstances appearing of record, we conclude that the
trial court could have legitimately ruled that the search conducted was a permissible
inventory search.
Accordingly, the judgment is affirmed.
Per Curiam
Do not publish.
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