COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00052-CR
RONNIE RANDY WARREN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In one issue, Appellant Ronnie Randy Warren appeals from his conviction
for possession of a controlled substance with the intent to deliver. We affirm.
II. Factual and Procedural Background
The State indicted Warren for possession of one gram or more but less
than four grams of methamphetamine with the intent to deliver, and Warren
1
See Tex. R. App. P. 47.4.
pleaded not guilty. At trial, River Oaks Police Department Officer Steve Nance
testified that he had initiated a traffic stop of Warren‘s truck because it displayed
expired license plates. After obtaining Warren‘s proof of insurance, Officer
Nance went back to the patrol car to verify whether this insurance was current.
Officer Nance testified that when he returned to Warren‘s truck, Warren was
looking down at an aluminum tin can in his lap.2 When Officer Nance asked
Warren about the tin can, Warren looked up, ―swapped it off his lap,‖ and told
Officer Nance that it contained pills for a back injury. Officer Nance testified that
Warren opened the tin can without being asked and that Officer Nance saw pills
and ―two small blue plastic baggies‖ inside. He also testified that while he could
not see what was inside the baggies, his training and experience led him to
believe that the baggies were narcotics packaging.
When Officer Nance ordered Warren to exit the vehicle, Warren did not
initially comply but remained in his seat with his right hand ―next to his side in
between the seats.‖ When Warren finally complied, Officer Nance placed him in
handcuffs due to his noncompliance with verbal commands and because Officer
Nance ―did not know what he was reaching for in the seats or where the blue
baggies that he had removed had been placed.‖ Officer Nance asked Warren
where he had put the baggies, but Warren claimed that he did not know what
Officer Nance was talking about. Officer Nance searched Warren‘s person and
2
The aluminum tin can was admitted, over Warren‘s objection, as State‘s
exhibit seven.
2
the interior of the truck for these baggies to no avail.3 However, in the bed of the
truck, Officer Nance noticed the baggies in between the tool box and the side rail
of the truck.4 These baggies contained a combined 2.04 grams of
methamphetamine and were admitted, over Warren‘s objection, as State‘s exhibit
2A.
The jury found Warren guilty of possession of methamphetamine with the
intent to deliver, and the trial court sentenced him to thirty years‘ confinement.
This appeal followed.
III. Suppression
In his sole issue, Warren claims that the trial court abused its discretion by
admitting evidence that was illegally seized in violation of his federal and state
constitutional rights.5
3
However, on the back floorboard, Officer Nance did find a black plastic
box that was not admitted into evidence but that contained two additional baggies
with ―some sort of residue inside of them.‖ These baggies were admitted, over
Warren‘s objection, as State‘s exhibit five. In addition, State‘s exhibits three,
four, and six, which were also admitted over Warren‘s objection, consisted of
more baggies and a small digital scale that were found during a subsequent
inventory search of the vehicle. Officer Nance stated that he did not have a
warrant to conduct a search of the vehicle.
4
Warren agrees that Officer Nance found these two baggies in the bed of
the truck but argues that they were concealed inside of a closed black plastic
box.
5
Both parties cite the standard to be applied to a trial court‘s ruling on a
motion to suppress. While we find nothing in the record indicating that Warren
filed a motion to suppress, he preserved this claim by timely objecting during trial
to the admission of State‘s exhibits 2A through seven. See Ratliff v. State, 320
S.W.3d 857, 860 (Tex. App.—Fort Worth 2010, pet. ref‘d) (―To preserve error
3
A. Standard of Review
As with any suppression issue, we review the trial court‘s ruling under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); see Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008), cert. denied, 555 U.S. 1154 (2009). We give almost total deference to a
trial court‘s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor, but we review
de novo application-of-law-to-fact questions that do not turn on credibility and
demeanor. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Stated another way, we must view the evidence in the light most favorable
to the trial court‘s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App.
2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the
record is silent on the reasons for the trial court‘s ruling, or when there are no
explicit fact findings and neither party timely requested findings and conclusions
from the trial court, we infer the necessary fact findings that would support the
about the illegal seizure of evidence, a defendant must either file a motion to
suppress and obtain a ruling on the motion or timely object when the State offers
the evidence at trial.‖). Therefore, we will treat Warren‘s objection as an oral
motion to suppress and analyze the trial court‘s admission of the complained-of
evidence under that standard. See Galitz v. State, 617 S.W.2d 949, 952
n.10 (Tex. Crim. App. 1981) (―A ‗motion to suppress‘ evidence is nothing more
than a specialized objection to the admissibility of that evidence.‖).
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trial court‘s ruling if the evidence, viewed in the light most favorable to the trial
court‘s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008); Wiede, 214 S.W.3d at 25; see Best v. State, 118
S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.) (recognizing that when
the suppression issue is raised at trial, relevant trial testimony should be
considered in deciding whether the evidence supports the implied findings). We
then review the trial court‘s legal ruling de novo unless the implied fact findings
supported by the record are also dispositive of the legal ruling. Kelly, 204
S.W.3d at 818–19.
B. Search and Seizure Challenge
The Fourth Amendment protects against unreasonable searches and
seizures by government officials.6 U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. To suppress evidence because of an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young
v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015
(2009). A defendant satisfies this burden by establishing that a search or seizure
6
The search and seizure provisions of the Texas constitution warrant an
analysis distinct from the federal constitutional analysis. See Heitman v. State,
815 S.W.2d 681, 690 (Tex. Crim. App. 1991). However, because Warren makes
no distinction between the constitutions with regard to this matter, and absent
authority to the contrary, our discussion applies to both. See Metoyer v. State,
860 S.W.2d 673, 676 n.4 (Tex. App.—Fort Worth 1993, pet. ref‘d) (noting that a
violation of the Texas constitution is also determined by a reasonableness
standard under the circumstances).
5
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant
has made this showing, the burden of proof shifts to the State, which is then
required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005). Because it is undisputed that Officer Nance searched Warren‘s vehicle
and seized the evidence without a warrant, Warren satisfied his burden of
rebutting the presumption of proper police conduct, and we turn to whether the
State has shown that the search and seizure was reasonable. See Amador, 221
S.W.3d at 672–73.
Whether a search and seizure is reasonable is a question of law that we
review de novo by examining the totality of the circumstances. Kothe v. State,
152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). A search conducted without a
warrant is per se unreasonable unless it falls within one of the ―specifically
defined and well established‖ exceptions to the warrant requirement. McGee v.
State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004
(2003).
One such exception is that a police officer may lawfully search an
automobile if he has probable cause to believe that the vehicle contains evidence
of a crime. Neal, 256 S.W.3d at 282. Probable cause to search ―exists where
the known facts and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband or evidence of a crime will be found.‖
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Wiede, 214 S.W.3d at 24. If the automobile exception applies, then the officer
may search ―every part of the vehicle and its contents that may conceal the
object of the search.‖ Neal, 256 S.W.3d at 282.
C. Analysis
Citing Arizona v. Gant, Warren argues that the search was unreasonable
because there was no concern that Warren would destroy or lose evidence of the
crime for which he was detained because he was detained for displaying expired
license plates and was already in police custody. See 556 U.S. 332, 343, 129 S.
Ct. 1710, 1719 (2009). However, Gant was decided solely on the basis of a
search incident to an arrest and did not alter the automobile exception to the
warrant requirement. See id. at 350–51, 129 S. Ct. at 1723–24. The Court held
that, absent certain justifications, a search of an arrestee‘s vehicle is
unreasonable ―unless police . . . show that another exception to the warrant
requirement applies.‖ See id. at 351, 129 S. Ct. at 1723–24. The automobile
exception did not apply in Gant, but it applies in this case. See id. at 341, 129 S.
Ct. at 1718. Therefore, we turn to whether Officer Nance had probable cause to
search Warren‘s truck pursuant to the automobile exception. See Neal, 256
S.W.3d at 282.
While the record is silent on the reasons for the trial court‘s ruling, the
record supports the trial court‘s implied factual finding that Officer Nance
observed in Warren‘s possession two small plastic baggies, which Officer Nance
concluded, based on his experience and training, were narcotics packaging. See
7
Garcia-Cantu, 253 S.W.3d at 241. Warren asserts that Officer Nance did not
know what was in the baggies and that possession of the baggies themselves
was not illegal. However, Officer Nance did not need to know that the baggies
contained an illegal substance; instead, he needed knowledge of certain facts
that would warrant a reasonable person in the belief that they contained an illegal
substance. See Wiede, 214 S.W.3d at 24, 26–28 (noting that probable cause
requires an evaluation of probabilities and determining that the defendant‘s
possession of a clear plastic bag and the police officer‘s knowledge that drugs
were commonly packaged in plastic bags contributed to probable cause).
The record also supports the trial court‘s implied finding that Warren
abruptly removed the tin can from his lap when he saw Officer Nance at the
window. See Garcia-Cantu, 253 S.W.3d at 241. While Warren told Officer
Nance that the tin can‘s contents were to treat a back injury, a reasonably
prudent police officer would be warranted in his belief that Warren‘s furtive
gestures suggested that he possessed evidence of a crime. See Wiede, 214
S.W.3d at 24, 26–28 (considering, in its probable cause analysis, the defendant‘s
suspicious act of removing the plastic bag and placing it between his seat and
the console). In addition, the record supports the trial court‘s implied finding that
Warren initially refused to exit the truck and concealed his right hand by his side
between the seats. See Garcia-Cantu, 253 S.W.3d at 241. Such suspicious
behavior would have warranted a reasonably prudent officer in believing that a
controlled substance would be found in the truck, especially because the record
8
reflects that Officer Nance could not locate the baggies on Warren‘s person and
that Warren denied knowing what plastic baggies Officer Nance was asking him
about. See Wiede, 214 S.W.3d at 24, 26–28.
Therefore, reviewing de novo the application of the law to the trial court‘s
implied findings—that Officer Nance observed plastic baggies in Warren‘s
possession, that Officer Nance knew the significance of the baggies, and that
Warren behaved suspiciously when Officer Nance confronted him—the totality of
these circumstances gave Officer Nance probable cause to search Warren‘s
truck for evidence of a controlled substance. See id. (holding that the officer had
probable cause to search the car when the defendant had a clear plastic bag in
his possession, the officer knew that drugs were commonly packaged in plastic
bags, and the defendant hid the plastic bag between the driver‘s seat and the
console); Kelly, 204 S.W.3d at 818–19.
As such, Officer Nance was permitted to search ―every part of the vehicle
and its contents that may [have] conceal[ed] the object of the search,‖ even
though, as Warren asserts, Officer Nance did not see Warren place anything in
the bed of the truck. See Neal, 256 S.W.3d at 282. This searchable area
encompassed both the bed of the truck, which is where Officer Nance testified
that he had found the two original baggies, as well as the black plastic box, which
Officer Nance testified had concealed the two additional baggies.7 See id.;
7
Warren asserts that the plain view doctrine did not justify the search of the
black plastic box because its illegal character was not immediately apparent.
9
Cummings v. State, 727 S.W.2d 348, 351 (Tex. App.—Houston [1st Dist.] 1987,
pet. ref‘d) (holding that under the automobile exception, probable cause to
search the truck extended to the bed of the truck). Because the record, when
viewed in the proper light and with the appropriate deference to the trial court‘s
ruling, supports a finding that Officer Nance found the two original baggies—
State‘s exhibit 2A—loose in the bed of the truck and found the two additional
baggies—State‘s exhibit five—in the black plastic box on the back floorboard, we
infer that the trial court made these findings. See Garcia-Cantu, 253 S.W.3d at
241. Reviewing de novo the application of the law to the trial court‘s implied
factual findings regarding the location of State‘s exhibits 2A and five, Officer
Nance properly searched for and seized this evidence under the automobile
exception to the warrant requirement. 8 See Neal, 256 S.W.3d at 282; Kelly, 204
However, the plain view doctrine is not applicable here because the automobile
exception alone gave Officer Nance authority to search every part of the vehicle
and its contents that might have concealed the object for which he had probable
cause to search. See Horton v. California, 496 U.S. 128, 135–36, 110 S. Ct.
2301, 2307 (1990) (recognizing that the plain view doctrine serves to supplement
a prior justification); Neal, 256 S.W.3d at 282.
8
Warren does not directly challenge the trial court‘s admission of State‘s
exhibits three, four, six, and seven into evidence. However, to the extent that he
raises these issues by generally claiming that the trial court erroneously admitted
evidence at trial, we overrule these issues. Indeed, State‘s exhibit seven—the tin
can—could have concealed, and at one point did conceal, the object of Officer
Nance‘s search. See Neal, 256 S.W.3d at 282. Therefore, Officer Nance‘s
search of the tin can was permissible. See id. Also, State‘s exhibits three, four,
and six were obtained during an inventory search, which Warren does not
address. See Tex. R. App. P. 38.1(i); South Dakota v. Opperman, 428 U.S. 364,
369–72, 96 S. Ct. 3092, 3097–99 (1976) (discussing the reasonableness of
inventory searches).
10
S.W.3d at 818–19. Therefore, the search and seizure was reasonable under the
Fourth Amendment, and the trial court did not err by admitting this evidence.
U.S. Const. amend. IV; Amador, 221 S.W.3d at 672–73; Wiede, 214 S.W.3d at
24. Accordingly, we overrule Warren‘s sole issue.
IV. Conclusion
Having overruled Warren‘s sole issue, we affirm the trial court‘s judgment.
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 15, 2012
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