ACCEPTED
03-13-00724-CR
3685444
THIRD COURT OF APPEALS
NO. 03-13-00724-CR
AUSTIN, TEXAS
1/7/2015 3:27:48 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
OF THE THIRD DISTRICT OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
1/7/2015 3:27:48 PM
JEFFREY D. KYLE
Clerk
STEPHEN TRACY MEREDITH,
Appellant
V.
THE STATE OF TEXAS
Appellee
Appeal in Cause No. 41286 in the
424* Judicial District Court of Burnet County, Texas
Brief For Appellee
OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424* JUDICIAL DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
By: Gary W. Bunyard
Assistant District Attorney
State Bar No. 03353500
ATTORNEY FOR APPELLEE
January 7,2015
Oral Argument Waived
Identity Of The Parties
Trial Court
Honorable Daniel H. Mills
424* Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, TX 78611
State/Appellee
Richard Crowther (Pretrial Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 05174200
Peter Keim (Trial Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 15532500
Blake Ewing (Trial Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 24076376
ii
Gary W. Bunyard (Appellate Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar No. 03353500
g.bunyard@co.llano.tx.us
Appellant
Michelle Moore (Trial Counsel)
Public Defender
1008 N. Water St.
Burnet, TX 78611
(512) 234-3061
State Bar No. 00798294
Michael Watson (Pretrial and Trial Counsel)
Assistant Public Defender
1008 N. Water St.
Burnet, TX 78611
(512) 234-3061
State Bar No. 24060804
Gary E. Prust (Appellate Counsel)
Attorney at Law
1607 Nueces St.
Austin, TX 78701
(512) 469-0092
State Bar No. 24056166
gary@prustlaw. com
iii
Stephen Tracy Meredith (Appellant)
TDCJ #01893438
SID #05359672
Nathaniel J. Neal Unit
9055 Spur 591
Amarillo, TX 79107-9696
iv
Table Of Contents
Page
Index of Authorities vi
Statement of the Case 2
Statement on Oral Argument 2
Response to Issues Presented 3
Statement of the Facts 4
Summary of the Argument - Response to Issue No. 1 10
The trial court properly denied Appellant's
motion to suppress because the totality of the
circumstances provided officers probable
cause to believe that Appellant had narcotics
hidden in the impounded vehicle.
Argument on Response to Issue No. 1 11
Prayer for Relief 16
Certificate of Word Count 16
Certificate of Service 17
V
Index Of Authorities
Case Law Page
Carroll v. United States. 267 U.S. 132; 45 S. Ct. 280;
69L. Ed. 543 (1925) 11
Florida V. Mevers. 466 U.S. 380; 104 S. Ct. 1852;
80 L. Ed. 2d 381 (1984) 11,12, 14
Guzman V. State. 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) 12
Michigan V. Thomas. 458 U.S. 259; 102 S. Ct. 3079;
73 L. Ed. 2d 750 (1982) 12
State V. Clack, 13-13-00345-CR (unpublished memorandum) 12, 13
State V. Elias. 339 S.W.3d 667 (Tex. Crim. App. 2011) 12
State V. Ross. 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) 12
vi
Constitutions
UNITED STATES CONST. Amend IV 11
TEXAS CONST, art. 1 §9 11
Statutes/Rules
TEX. R. APP. PROC. 34.2 4
TEX. R. APP. PROC. 34.5(e) 4
vii
NO. 03-13-00724-CR
IN THE
COURT OF APPEALS
OF THE THIRD DISTRICT OF TEXAS
STEPHEN TRACY MEREDITH,
Appellant
V.
THE STATE OF TEXAS
Appellee
Appeal in Cause No. 41286
in the 424* Judicial District Court of
Burnet County, Texas
BriBf For Appellee
To The Honorable Justices Of Said Court:
Now comes the State of Texas, hereinafter called Appellee, and submits this
brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support
of the State's request affirm the judgment of the trial court.
1
statement Of The Case
Appellant has adequately described the Statement of the Case.
Statement on Oral Argument
The xmdersigned waives Oral Argument. The undersigned does not believe that
Oral Argument will be beneficial for this case for the reason that the issues are straight
forward and lack any novel or complex nuances. Should the Court believe that Oral
Argument will assist the Court in any way, the undersigned will accommodate the
Court.
2
Response To issues Presented
Response To Issue One: The trial court properly denied Appellant's motion to
suppress because the totality of the circumstances provided
officers probable cause to believe that Appellant had
narcotics hidden in the impounded vehicle.
3
statement Of Tfte Facts
Appellant has not accurately described the facts of this case. The State of Texas
does join with Appellant to stipulate to the recreation of the charge and jury forms, the
originals of which can not be located by the district clerk and are therefore not included
in the original Clerk's Record. Supp RR Vol. Ill Exh. 1 and 2; TEX. R. APP. PROC.
34.2, 34.5(e).
Appellant was indicted on April 2, 2013, for the offense of Possession of a
Controlled Substance, Cocaine, in an amount of less than one gram and the Indictment
further alleged that prior to the commission of this offense Appellant has been
previously convicted of four state jail offenses. CR Vol. 1 Pages 4 - 5 . Appellant
filed a motion to suppress evidence on September 4,2013. CR Vol. 1 Page 10. The
trial court conducted a hearing on the motion to suppress on September 11,2013. RR
Vol. 2.
At the hearing the parties stipulated that (1) there was a warrantless search of
the vehicle (RR Vol. 2 Page 5), (2) the vehicle was impounded because the driver did
not have a valid driver's Hcense (RR Vol. 2 Pages 5, 8 - 9), and (3) shortly after the
vehicle was impounded officers used a K-9 to conduct afi-eeair sniff during which the
K-9 alerted but the subsequent search of the vehicle yielded no narcotics. RR Vol. 2
4
Pages 5 - 9. The officers also conducted an inventory search which yielded drug
paraphernalia but did not yield any narcotics. RR Vol. 2 Pages 5-9. The impound
facility was owned and operated by Deputy Constable Garry Adams. RR Vol. 2 Pages
10-11.
Just imder two weeks later, after Appellant had been released on bond.
Appellant was allowed access to his vehicle to retrieve personal items as Appellant was
unable to claim possession of the vehicle itself at that time. RR Vol. 2 Page 11.
While Appellant and his companion were inside the vehicle locating and retrieving
items of personal property. Deputy Constable Adams was standing at the front door of
the vehicle supervising the actions of Appellant and his companion. RR Vol. 2 Page
11. Appellant was retrieving items from the driver's seat area of the front passenger
compartment while the companion was retrieving items from the back area of
Appellant's Suburban. RR Vol. 2 Pages 5, 15. Deputy Constable Adams observed
Appellant heavily tugging at the front of the storage console attached to the headliner
of the vehicle. RR Vol. 2 Pages 11, 18 - 19. Deputy Constable Adams directed
Appellant to stop pulling on the storage console to avoid damage to the vehicle while
it is in impound and Appellant complied. RR Vol. 2 Page 11.
5
Presumably after Appellant and his companion left the facility. Deputy
Constable Adams contacted Burnet County Sheriffs Deputy Bindseil and reported that
based on his previous training Deputy Constable Adams believed, from what he had
observed of Appellant's actions, that there were narcotics still in Appellant's vehicle.
RR Vol. 2 Page 12. The next day Deputy Constable Adams gave access to the interior
of Appellant's vehicle to Officer Wills and Officer Fritsch. RR Vol. 2 Page 13.
Officer Fritsch, seated in the driver's seat, tugged at the front of the storage console in
the headliner in the same fashion that Deputy Constable Adams observed Appellant
doing, and an item/material fell out. RR Vol. 2 Page 13. On cross-examination
Deputy Constable Adams testified that the impound facility is fenced, locked, and not
open to the general public. RR Vol. 2 Page 14. Appellant's vehicle was locked at all
times with the key in a locked box in Deputy Constable Adams' office. RR Vol. 2
Page 13.
Deputy Constable Adams fiirther testified that the manner in which Appellant
was pulling at the storage console was different from an attempt to open the
compartments built into the console. RR Vol. 2 Page 18-21. Based on his training
and experience Deputy Constable Adams was familiar with the practice of hiding
narcotics in secret storage areas within vehicles. RR Vol. 2 Page 21. Deputy
Constable Adams testified he has been in law enforcement 18 years, has attended
multiple schools in narcotics investigation, and has assisted DPS and other law
enforcement officers with numerous stops over the past ten years. RR Vol. 2 Pages
22-23.
Deputy Bindseil testified that he has been a trained K-9 handler for ten years.
RR Vol. 2 Page 25. Deputy Bindseil testified that his current K-9 partner, Ringo, was
initially trained as a patrol dog in Europe and then further trained for narcotics
detection at the Hill Country Dog Center and has been working in the field with
Deputy Bindseil since 2007. RR Vol. 2 Page 26. Ringo does annual certification in
both narcotics and patrol work which is supplemented by monthly training. RR
Vol. 2 Page 28. Deputy Bindseil testified that he received a call on June 7, 2012, to
go to the impound lot and have Ringo conduct a free air sniff around Appellant's
vehicle. RR Vol. 2 Page 27. Ringo alerted at the driver's side door. RR Vol. 2
Page 27.
After summarizing the evidence (RR Vol. 2 Pages 33 - 34) the trial court denied
Appellant's motion to suppress and made the following findings:
1. There was probable cause articulated by the dog;
2. The furtive gestures then seen subsequent create the totality of
circumstance where that justified the subsequent search;
7
3. The officer is well trained and knows these furtive gestures, has seen
them in the past; and
4. There was probable cause to execute the search.
RR Vol. 2 Page 37.
At trial Burnet Police Officer Noland Hicks testified he stopped Appellant for
driving with an invalid driver's license. RR Vol. 4 Page 22. In preparation for
towing Appellant's Suburban officers conducted an inventory search during which
officers located a pair of blue jeans containing two plastic baggies with suspicious
residue which the officers considered to be drug paraphernalia and a white towel
wrapped around a clear glass pipe with a bowl on the end that is commonly used in
smoking methamphetamine and cocaine. RR Vol. 4 Pages 24-26. Deputy Bindseil
testified about being called to the impound lot, running Ringo around Appellant's
vehicle, and Ringo alerting on the vehicle. RR Vol. 4 Pages 41 - 45. Investigator
Wills then testified about conducting the unsuccessful search following the K-9 alert.
RR Vol. 4 Pages 55 -57. Investigator Wills then testified about returning to the
impound lot after receiving notice from Deputy Constable Adams of Appellant's
suspicious conduct when retrieving personal property from the vehicle and finding a
baggy containing an off-white rock-like substance suspected to be cocaine. RR Vol.
4 Pages 58-60. Investigator Wills took the substance to the DPS lab for testing. RR
8
Vol. 4 Page 61. The DPS forensic scientist testified that the substance submitted was
0.14 grams containing cocaine. RR Vol. 4 Page 80. At the time that the actual
substance, State's Exhibit Eight, was offered in evidence Appellant reurged his motion
to suppress which the trial court denied and the exhibit was admitted into evidence.
RR Vol. 4 Page 82.
9
Summary Of The Argument on
Response to issue No. i
(1) The trial court properly denied Appellant's motion to
suppress because the totality of the circumstances provided
officers probable cause to believe that Appellant had narcotics
hidden in the impounded vehicle.
Appellant complains that the trial court should have granted Appellant's motion
to suppress because any probable cause that officers had developed at the time that the
vehicle was impounded became stale due to passage of time and the officers were
required to obtain a search warrant to conduct a subsequent search of Appellant's
impounded vehicle. However, officer's observation of Appellant attempting to access
what appeared to the officer as a hidden compartment while Appellant was later
removing personal items from the impounded vehicle, coupled with prior information
gathered, including the free air sniff alert, provided officers adequate probable cause
to believe that contraband was stored in a hidden compartment above the storage unit
attached to the headliner of Appellant's vehicle.
10
Argument On Response to Issue No. 1
It is well known that the general rule of law is that a citizen shall be free from
government intrusion without a warrant. UNITED STATES CONST. Amend IV;
TEXAS CONST, art. 1 § 9. Both federal and state courts have recognized that the
citizen's right to an expectation of privacy in an automobile is much lower. Carroll
V. United States. 267 U.S. 132; 45 S. Ct. 280; 69 L. Ed. 543 (1925). Where the facts
and circumstances within police officers' knowledge and of which they had reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable
caution in the belief that contraband is being transported in the automobile which the
officers stop and search, the officers are justified in conducting the search. Carroll
V. United States. 267 U.S. at 162.
In a case occurring in Florida, the defendant was stopped in his car and arrested
for sexual battery. Florida v. Mevers. 466 U.S. 380; 104 S. Ct. 1852; 80 L. Ed. 2d
381 (1984). At the time of his arrest, police officers searched his automobile and
seized several items. Florida v. Meyers. 466 U.S. at 380. The vehicle was then towed
where it was impounded in a locked, secure area. Supra. Approximately eight hours
later, a police officer went to the compound and, without obtaining a warrant, searched
the car for a second time. Additional evidence was seized. Supra. In its judgment
reversing the trial court's suppression of the evidence, the Supreme Court pointed out
11
its holding in the Thomas case (Michigan v. Thomas. 458 U.S. 259 1982 ) in which
the Court upheld a warrantless search of an automobile even though the automobile
was in police custody and even though a prior inventory search had akeady been made.
Florida v. Meyers. 466 U.S. at 382. The Court emphasized that the justification to
conduct such a warrantless search does not vanish once the car has been immobilized.
Supra.
A review of a trial court's ruling on a pretrial motion to suppress is well
established.
(1) The appellate courts, including this Court, should afford ahnost total
deference to a trial court's determination of the historical facts that the
record supports especially when the trial court's fact findings are based
on an evaluation of credibility and demeanor. (2) The appellate court
should afford the same amount of deference to trial courts' rulings on
"application of law to fact questions," also known as "mixed questions of
law and fact," if the resolution of those ultimate questions turns on an
evaluation of credibility and demeanor. (3) The appellate courts may
review de novo "mixed questions of law and fact" not falling within this
category.
State V. Ross. 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (quoting Guzman v. State.
955 S.W.2d 85, 89 [Tex. Crim. App. 1997]); State v. Elias. 339 S.W.3d 667 (Tex.
Crim. App. 2011).
Appellant seeks to rely on the unpublished memorandum decision of the
Thirteenth Court of Appeals numbered 13-13-00345-CR styled State v. Clack. The
Clack case can not properly be compared to the instant case because of the diversity
12
of the case facts, hi Clack the Court pointed out that the defendant was not in or
around the vehicle at the time of arrest and the vehicle was properly parked, was not
impeding traffic, and there was no need to insure the protection of the vehicle so as to
justify being towed and impounded. Further the facts of the case never rose to a level
of probable cause to believe that evidence of a crime was located within the vehicle.
In the case under present consideration Appellant was driving his vehicle and,
upon his arrest for driving without a valid driver's license, it was necessary to tow and
impound the vehicle to safeguard the vehicle and to allow for proper flow of traffic.
During the inventory search officers located drug paraphernalia within the vehicle.
Once the vehicle was secured in the impound lot the K-9 alerted at the driver's door
of the vehicle giving officer's probable cause to believe that narcotics were located
within the vehicle. A search of the obvious areas within the vehicle did not result in
discovery of any narcotics. Later, while the vehicle was still in a secured area with no
suggestion of the vehicle having been disturbed or tampered with. Appellant, while
retrieving personal property, was observed attempting to pull down a storage
compartment built into the headliner of the vehicle. The furtive acts of Appellant
suggested to Deputy Constable Adams that Appellant had something hidden between
the storage compartment and the roof of the vehicle, an area that is not typically
accessible to the operator of the vehicle without causing damage to the vehicle. Such
13
furtive acts by Appellant gave officers reason to believe that the initial alert of the K-9
was indeed a positive alert and allowed officers to go directly to Appellant's hiding
spot and retrieve the narcotics hidden there.
As pointed out by Appellant, the trial court, in denying Appellant's Motion to
Suppress, made the following findings at the conclusion of the suppression hearing:
1. There was probable cause articulated by the dog,
2. The furtive gestures then seen subsequent created the totality of the
circumstance where that justified the subsequent search,
3. The officer is well trained and knows these furtive gestures, has seen
them in the past,
4. So all together, the Court finds that there was probable cause to execute
the search.
RR Vol. 2 Pages 34, 37.
In the Florida v. Meyers case cited herein above, the United States Supreme
Court approved the officers' second search of the impounded vehicle 8 hours later
based merely on the original probable cause facts. In our case, while there is a longer
time gap there is also an intervening factor which relates back to the probable cause
developed through the K-9 alert giving officers a better indicator of where the narcotics
could be found.
14
There being no controverting facts admitted as evidence or any other factor or
suggestion that the historical facts heard by the trial court were false or misleading, this
Court should give the trial court total deference of the trial court's fact findings as they
are based on the credibility and demeanor of the testifying witnesses. The Court
should further give the trial court total deference of the trial court's rulings on
application of law to the instant fact questions as the resolution of those ultimate
questions turned on an evaluation of credibility and demeanor of the testifying
witnesses. There was no indication in the evidence adduced at trial that any of the
evidence admitted during the suppression hearing was false or misleading.
For these reasons the relief sought by Appellant in his Issue Presented must be
denied and the judgment of conviction and sentence be affirmed.
15
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court deny
Appellant's appeal and affirm the judgment of the trial court.
Respectfully submitted,
OFFICE OF DISTRICT ATTORNEY
3 3 ^ and 424* JUDICIAL DISTRICTS
Wiley B. McAfee, District Attorney
P. O. Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
mm
Assistant District Attorney
State Bar No. 03353500
g.bunyard@co.llano.tx.us
ATTORNEY FOR APPELLEE
CERTIFICATE OF WORD COUNT
This is to certify that the pertinent portion of this brief contains 2,597 words
printed in Times New Roman 14 font according to the WordPerfect™ X7 word count
tool.
16
CERTIFICATE OF SERVICE
This is to certify that a true copy of the above and foregoing instrument, together
with this proof of service hereof, has been forwarded by standard mail on the 7th day
of January 2014, to Mr. Gary E. Prust, Attorney for Appellant, by email and by
EServe.
Assistant District Attorney
17