COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-140-CR
THE STATE OF TEXAS STATE
V.
ISSIAH BOW MAN APPELLEE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
The State appeals from the trial court’s written order granting Appellee Issiah
Bowman’s motion to suppress evidence. The State concedes that the search of
Appellee’s car incident to his arrest on a traffic warrant is not valid under Arizona v.
Gant, 129 S. Ct. 1710 (2009), but the State contends that the trial court should have
nevertheless denied the motion to suppress because the officers on the scene had
1
See Tex. R. App. P. 47.4.
independent probable cause to search Appellee’s car under the automobile
exception to the warrant requirement. W e affirm the trial court’s order.
II. Procedural and Factual Background
Appellee was indicted on September 12, 2008, for possessing more than four
but less than two hundred grams of a controlled substance. On April 27, 2009, the
trial court conducted a hearing on Appellee’s motion to suppress the evidence
seized during the warrantless search of his vehicle, and the trial court granted the
motion. The State thereafter filed this interlocutory appeal. 2
Detective Tracey Crow, a Fort W orth Police Department narcotics officer,
testified at the suppression hearing that she received information from a confidential
informant in January 2008 that Appellee was a methamphetamine dealer. On March
24, 2008, Detective Crow learned from the same confidential informant that Appellee
would be at the Albertson’s parking lot near Ridgmar Mall in Fort W orth at a
specified time, that he would be driving a maroon Cadillac, that he would be meeting
with his supplier, and that he would be in possession of a substantial amount of
methamphetamine.
Officer Harold Cussnick, a dog handler with the narcotics division, and Officer
James Fields, a patrol officer, assisted Detective Crow on the day of Appellee’s
anticipated meeting with his supplier. Officer Cussnick sat in a separate, unmarked
2
See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2009).
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patrol unit in another part of the Albertson’s parking lot to conduct surveillance and
communicated by radio with Detective Crow. Officer Fields waited in his patrol car
behind an adjacent business until he received instructions to initiate a traffic stop of
Appellee’s vehicle.
Detective Crow testified that she had already parked in the Albertson’s parking
lot before Appellee arrived. She watched Appellee exit his vehicle, go inside the
Albertson’s, and return to his vehicle approximately fifteen minutes later. After
Appellee returned to his vehicle, he waited for his alleged supplier to arrive, and
once the alleged supplier arrived, Appellee exited his vehicle and walked toward the
alleged supplier’s vehicle. Appellee then walked back to his vehicle carrying a black
plastic bag. Detective Crow testified that, based on her observation and the
information she had received from the confidential informant, she believed Appellee
had obtained a bag of methamphetamine from his supplier.
Officer Fields testified that he initiated a traffic stop of Appellee’s vehicle after
Appellee drove away from the Albertson’s parking lot. Officer Fields said that Officer
Cussnick had witnessed Appellee drive without a seatbelt and that he had personally
seen Appellee turn left without using his signal. Officer Fields testified that the
seatbelt and turn-signal violations were the sole reasons he stopped Appellee’s
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vehicle. After confirming that Appellee had an outstanding warrant, 3 Officer Fields
arrested Appellee, handcuffed him, placed him in the patrol car, and conducted a
search of Appellee’s car incident to his arrest. W hile searching Appellee’s vehicle,
Officer Fields found a black plastic bag in the front passenger seat containing what
he believed to be methamphetamine.
III. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.
App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 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. Amador, 221 S.W.3d at 673; 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).
When the trial court grants a motion to suppress without filing findings of fact
or any other explanation, and the only evidence presented in the suppression
hearing is the testimony of the arresting officer—which, if believed, clearly
3
Detective Crow testified that she knew before the anticipated meeting that
Appellee had an outstanding warrant.
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constitutes probable cause—there is not a “concrete” set of facts that can be
implied from such a ruling. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.
2000). In those cases, there is a mixed question of law and fact that turns on an
evaluation of the credibility and demeanor of the sole witness whom the trial court
obviously chose not to believe. Id.; Guzman, 955 S.W.2d at 89. In such cases, we
view the evidence in the light most favorable to the trial court’s ruling, giving it
almost total deference. Estrada, 154 S.W.3d at 607; Ross, 32 S.W.3d at 856;
Guzman, 955 S.W.2d at 89.
IV. Analysis
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). 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); see Best v. State,
118 S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.). One such exception
is the automobile exception, which provides that “a warrantless search of a vehicle
is reasonable if law enforcement officials have probable cause to believe that the
vehicle contains contraband.” Wiede, 214 S.W.3d at 24. Another exception is a
search incident to arrest. See Gant, 129 S. Ct. at 1723–24. But “[p]olice may
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search a vehicle incident to a recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at
1723.
The State correctly concedes that the search of Appellee’s car incident to his
arrest was unreasonable under Arizona v. Gant because Appellee had been arrested
for a traffic warrant and was handcuffed and sitting in a patrol car at the time Officer
Fields searched his car. See id. at 1719, 1723–24. However, despite the invalidity
of the search as one incident to Appellee’s arrest, the State points to language in
Gant that affirmed the viability of the automobile exception and contends that the
officers on the scene had independent probable cause to search Appellee’s car
based on their collective knowledge and observations of the drug transaction in the
Albertson’s parking lot. See id. at 1721 (stating that exceptions other than search
incident to arrest, including automobile exception, “authorize a vehicle search under
additional circumstances when safety or evidentiary concerns demand”); see also
Woodward v. State, 668 S.W .2d 337, 344 (Tex. Crim. App. 1982) (holding sum of
information known to cooperating officers to be considered in determining whether
there is probable cause when there has been some cooperation between the
officers).
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The State’s reading of Gant is correct, but the mere existence of the
automobile exception does not compel reversal of the trial court’s suppression ruling.
The only witnesses at the suppression hearing were the investigating and arresting
officers, and although their testimony clearly constitutes probable cause if believed,
there are suggestions in the record that the trial court questioned whether Appellee
actually committed traffic violations and whether there was independent probable
cause to search Appellee’s car. For example, the trial court stated at the
suppression hearing that when the officers saw the bag being exchanged, they
“should have swooped in on [Appellee] at that time and arrested him for that. Not
to stop him on a traffic violation, you know, which could or could not have been
trumped up.” Further, we note that Detective Crow testified that her initial report
never specifically mentions a confidential informant and is written as if the search of
Appellee’s car was solely a search incident to arrest. If the trial court doubted the
veracity of Detective Crow’s testimony concerning the existence or corroboration of
the confidential informant, the State’s remaining evidence in support of probable
cause is the officers’ collective observation of Appellee exchanging a black plastic
bag with a person in another vehicle in a parking lot, and that evidence does not
establish probable cause. Moreover, the trial court stated on the record: “The
problem is, of course, they stopped him just on a traffic arrest. And that falls in line
with Gant.” See 129 S. Ct. at 1723–24.
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In light of the trial court’s statements, we cannot imply a concrete set of
historical facts or presume the trial court found the officers’ testimony to be entirely
credible. See Ross, 32 S.W .3d at 856. Thus, because we are prevented by the
applicable standard of review from conducting our own factual review, are required
to defer to the trial court’s determinations of credibility and demeanor, and must view
the evidence in the light most favorable to the trial court’s ruling by giving it almost
total deference, we hold that the trial court did not err by granting Appellee’s motion
to suppress. See Estrada, 154 S.W .3d at 607; Ross, 32 S.W .3d at 856; Guzman,
955 S.W .2d at 89; Romero v. State, 800 S.W .2d 539, 543 (Tex. Crim. App. 1990).
W e therefore overrule the State’s sole issue.
V. Conclusion
Having overruled the State’s sole issue, we affirm the trial court’s order.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 15, 2010
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