Jorge Zepeda v. State

ACCEPTED
12-15-00055-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
6/10/2015 6:58:36 PM
CATHY LUSK
CLERK

No. 12- 1 5—0O055-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE TWELF TH COURT OF APPEALS 6/10/2015 6:58:36 PM
TYLER, TEXAS CATHY S. LUSK
Clerk

JORGE ZEPEDA
APPELLANT

VS.

THE STATE OF TEXAS
APPELLEE

On Appeal ﬁom the County Court at Law #2 cause # O02-82159-14
Smith County, Texas
Judge Rodgers

APPELLANT’S BRJEF

Jeff Sanders
State Bar No: 24033153
120 S. Broadway, Suite 112
ORAL ARGUMENT REQUESTED Tyler, Texas 75702
(903) 593-8040
(903) 595-5532 fax

ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Parties to Trial Cou1t’s Judgment:

Appellant is JORGE ZEPEDA.
Appellee is The State of Texas.

Names and Addresses of Trial and Appellate Counsel

1. JORGE ZEPEDA
Jeff Sanders
120 Broadway, Suite 112
S.
Tyler, Texas 75702

2. The State of Texas

Michael West
Smith County District Attorney’s Ofﬁce
100 North Broadway
Tyler, Texas 75702
TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pi
. . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iV

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 15

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Certiﬁcate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Certiﬁcate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii
INDEX OF AUTHORITIES
PAGE
Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741,
93 L. Ed. 2d 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19, 20

Florida v. Wells, 495 U.S. 1, 4, 110 s. Ct. 1632, 1635,
109 L. Ed. 2d 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 21, 22

South Dakota Oggermarz, 428 U.S. 364, 369, 96
v. S. Ct. 3092, 3097,
49 L. Ed. 2d 1000 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 21

Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980) . . . . 19, 21

Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) . . . .17, 18

Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) . . . . . . . . 22

Hubert v. State 312 S.W.3d 554, 559 (Tex. Crim. App. 2010) . . . . . . . . . 17

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) . . . . . . . . . 18

Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 1991) . . . . . . . . 20

Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008) . . . . . . . . . . . 17

Shepard v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) . . . . . . . . 17

State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) . . . . . . . . . 18

State v. Castlebemv, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) . . . . . 18

State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) . . . . . . . . . 19

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) . . . . . . . . . . . . 18

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) . . . . . . . 18
iv
Ward v State, 659 S.W.2d 643, 646 (Tex. Crim. App. 1983) . . . . . . . . . . . 22

Banda v. State 317 S.W.3d 907, 907-08
(Tex. App. — Houston[14“‘ District] 2010, no pet.) . . . . . . . . . . . . . 19

Ferzton v. State, 785 S.W.2d 443 (Tex. App. Austin 1990) . . . . . . . . . . . . 22

Garza V. 137 S.W.3d 878, 882
State,
(Tex. App. — Houston[15‘ Dist] 2004, pet. Refd) . . . . . . . . . . . . . . .

Greer v. State, 436 S.W.3d 1, 7 (Tex. App. — Waco 2014, no pet.) . . . . . . 20

Kennedy v. State, case# 12-13-00248-CR . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Mosg v. 333 S.W.3d 696, 702
State,
(Tex. App. — Houston[1S‘ Dist.] 2010, no pet.) . . . . . . . . . . . . . . . . . 19

Rodrigyez v. State, 641 S.W.2d 955
(Tex. App. — Amarillo 1982, no writ) . . . . . . . . . . . . . . . . . . . . . 20, 21
STATEMENT OF THE CASE
The Smith County District Attorney charged Appellant by information

for possession of marijuana arising from Appellant’s arrest on May 26,

2014. (CR 2). Appellant ﬁled a pretrial motion to suppress illegally seized

evidence because of an unlawful inventory search. (CR 32-35). After a

hearing, the trial court denied the motion. (CR 43). The trial court ﬁled its
ﬁndings of fact and conclusions of law on January 15, 2015. (CR 36-3 7).
On February 11, 2015, Appellant waived his constitutional right to a

jury trial and entered a guilty plea to the charge with an agreed plea

recommendation. (CR 48-49). On February ll, 2015, the trial court assessed

punishment at 2 years deferred adjudication probation. (CR 44-47).
Appellant timely ﬁled Notice of Appeal on February 1 1, 2015. (CR

43). The Certiﬁcation By Trial CO1]1'tt0 allow this appeal was ﬁled on

February 1 1, 2015 (CR 58) Appellant appeals the judgment based on the

trial court’s denial of his motion to suppress illegally seized evidence.
ISSUE PRESENTED

The trial court committedreversible error when it denied
Appellant’s motion to suppress illegally seized evidence, namely,
marijuana, during an unlawful inventory search of the vehicle.

STATENIENT OF THE FACTS
Tyler Police Officer Boyce was on patrol on May 26, 2014, and
conducted a trafﬁc stop on Appellant for failure to signal a turn properly.

(RR 8). Appellant provided Ofﬂcer Boyce with a driver’s license that was

suspended and an insurance card which displayed that Appellant was an

excluded driver on this vehicle. (RR 9) The vehicle was registered to
Appellant’s father, Juan Zepeda. The insurance card named Juan Zepeda as

the insured for this vehicle. (RR 24). Said insurance was valid and in effect

at the time of the traffic stop for Juan Zepeda.

Prior to the unlawful inventory search, Officer Boyce asked Appellant

several questions about marijuana. (RR 16). Ofﬁcer Boyce admitted he

asked Appellant when Appellant last smoked marijuana. (RR 15). Officer

Boyce issued Appellant citations for Driving While License Invalid and No

Liability Insurance. Appellant was not under arrest at that point.

2
Ofﬁcer Boyce stated he had to tow the vehicle pursuant to Tyler

Police Department Towing Policy. (RR 10); (RR 48); (RR Exhibit 1 and 2).
Subsequent to the off1cer’s decision to impound and tow the vehicle, Ofﬁcer

Boyce conducted an inventory search of the vehicle. Ofﬁcer Boyce

admitted he had no intention of arresting Appellant until after the marijuana

was found during the inventory search. (RR 20).

Ofﬁcer Boyce testiﬁed that he did not contact Appellant’s father

because, as Ofﬁcer Boyce stated, “He [Appellant’s father] already allowed

Jorge to drive the vehicle. He isjust going to turn around and allow Jorge to
continue driving the vehicle, so therefore, I towed the vehicle.” (RR 24).

Ofﬁcer Boyce agreed that there was no way he would allow

Appellant’s father to pick up Appellant and vehicle. (RR 28). Ofﬁcer Boyce
stated this was because “his father allowed an unlicensed driver to operate a

motor vehicle with insurance that has him as an excluded driver.” (RR 28).

Ofﬁcer Boyce denied Appellant’s request to call his father, Juan

Zepeda, to pick up the vehicle and Appellant. (RR 27). Ofﬁcer Boyce

admitted he could have allowed that to happen. (RR 27). Appellant’s father

Juan Zepeda testiﬁed that he lived nine blocks away and would have come

to pick up the vehicle and Appellant in less than ten minutes. (RR 43).

3
Ofﬁcer Boyce stated he knew that Appellant’s address would be roughly a

mile away. (RR 30).

Ofﬁcer Boyce found marijuana in the ashtray during the inventory

search and arrested Appellant for the Class B Misdemeanor charge of
Possession of Marijuana. (RR 14). Appellant was arrested for Possession of
Marijuana only. Ofﬁcer Boyce stated his plan was for Appellant to call

somebody to pick up Appellant after the inventory search if the marijuana

had not been found and if Appellant had not been arrested. (RR 26).

Ofﬁcer Boyce agreed that the Tyler Police Department Towing Policy

states that before the impoundment of a vehicle the ofﬁcer shall consider

mitigating circumstances not to impound the vehicle. (RR 31). Ofﬁcer

Boyce stated there were not any mitigating circumstances to justify not

towing the vehicle. Ofﬁcer Boyce did not see any mitigating circumstances.

Ofﬁcer Boyce stated he towed the vehicle because “Everything I had

it met the elements. He was operating the vehicle. No insurance. No
license. He had a prior. That is all I needed.” (RR 37).

Ofﬁcer Boyce agreed that father of Appellant, Juan Zepeda, had valid

insurance on this vehicle and was authorized to drive this vehicle. Ofﬁcer

Boyce agreed there was a request by Appellant to call his father to come and
4
pick up vehicle and Appellant. (RR 37-38). Ofﬁcer Boyce agreed this
incident occurred in the daytime and the vehicle could have been left in the

parking lot. (RR 26). Appellant’s father also testiﬁed he had valid

insurance and had to go pick up his Vehicle at Crow Towing Co. (RR 44).

Tyler Police Department General Order for Impoundment for Failure

to Maintain Financial Responsibility 07.500 (RR 48) (RR Exhibit 1) states:

“07.50l PURPOSE
As authorized by Tyler City Code Section 4-73, the purpose of this

policy is to establish guidelines and procedures for Tyler Police Department

ofﬁcers who encounter individuals operating a motor vehicle without the

ﬁnancial responsibility required by State law, Texas Transportation Code,

Chapter 601 .

07.502 POLICY
It is the policy of the Tyler Police Department to conduct traffic

enforcement that will provide maximum protection to all individuals who
use the roadways within the city. As part of this strategy, the Tyler Police

Department’s goal is to ensure that all motor vehicles are operated with the

ﬁnancial responsibility required by law. Enforcement action shall be taken

5
when ofﬁcers encounter individuals who fail to maintain the required

ﬁnancial responsibility unless mitigating circumstances discussed in the

policy exist. Any action taken will be applied equitably and without
discrimination to any person.

07.503 FINANCIAL RESPONSIBILITY DEFINITION
For the purposes of this policy, the term “ﬁnancial responsibility”

refers to the ﬁnancial responsibility on a speciﬁc motor vehicle at the level

of coverage meeting or surpassing, State requirements (Texas Transportation

Code, Sections 601.051 — 601.124). Financial responsibility is required

whether the vehicle is operated on a public roadway or private property.

Evidence of this ﬁnancial responsibility is set forth in Texas Transportation

Code, Section 601.053. Enforcement action taken on private property will be

with supervisor approval.

07.504 TRAFFIC STOPS
A. As part of a normal trafﬁc stop, oﬁicers shall ask the driver for the

required proof of ﬁnancial responsibility of the vehicle.

B. If the driver is unable to produce the required documentation, the

officer shall generally issue a citation for the appropriate offense.

C. If the officer, either through a driver’s license check or through

6
personal contacts, determines that the driver has previously been

convicted for operating a motor vehicle with no ﬁnancial

responsibility, the ofﬁcer shall impound the vehicle. Before the ofﬁcer

impounds a vehicle under this policy, the ofﬁcer shall comply with the

requirements in subsections B. — F. under “Accidents” in this policy.

D. If the driver’s license check indicates that the driver does not possess

a driver’s license or that the license is suspended for not having

insurance and the driver is unable to show proof of ﬁnancial

responsibility on the vehicle being operated, the ofﬁcer shall impound

the vehicle. No prior conviction for failing to maintain ﬁnancial
responsibility is necessary when the driver does not possess a driver’s

license. Prior to impounding a vehicle under this policy, the ofﬁcer

shall comply with the same requirements as listed in subsections B
through F as listed under “Accidents” in this policy.

07.505 ACCIDENTS
A. If, during the investigation of a motor vehicle accident, an ofﬁcer

determines that one or more of the involved vehicles was operated

without the required ﬁnancial responsibility the ofﬁcer shall impound

7
the vehicle(s). No prior conviction for failure to maintain ﬁnancial
responsibility is necessary in order to tow a vehicle involved in an

accident.

Impoundment should generally be restricted to those cases where the

driver admits to not having ﬁnancial responsibility or the ofﬁcer is

able to verify that no coverage exists.

Before impounding a vehicle, when the operator claims to have

ﬁnancial responsibility but fails to show the required proof of

coverage, an ofﬁcer shall make reasonable efforts to determine if the

vehicle is covered. Steps to Verify coverage may include but are not
limited to:

a. Contacting the driver’s insurance company.

b. Contacting the driver’s insurance agent.

c. Contacting a parent or guardian if dealing with a minor.

(1. Contacting the lien holder.

e. Checking through TexSure database.

If the ofﬁcer, after making reasonable efforts to verify coverage, is

unable to get a deﬁnitive answer, and the driver continues to claim

8
that coverage exists, the ofﬁcer may elect not to impound the vehicle.
Ofﬁcers should note on the accident report under “ofﬁcer summary”

the steps taken to verify coverage.

If the vehicle is impounded, the ofﬁcer shall issue a citation for the

failure to maintain or show proof of financial responsibility, unless the

offence is classiﬁed as a class B Misdemeanor.
If it is determined or veriﬁed that the driver does not have the required

ﬁnancial responsibility but the ofﬁcer believes that there are

mitigating circumstances not to impound the vehicle, a supervisor will

be contacted.

Delayed Enforcement

If an ofﬁcer investigates an accident where the driver(s) show the

required proof of financial responsibility, and it is later determined

that the coverage was not valid; the original investigating ofﬁcer shall

issue a citation.

1. The ofﬁcer must retrieve the original accident report from Data

Management, make the appropriate correction indicating no

ﬁnancial responsibility and the issuance of the citation, and submit

9
a supplemental CRB-3 if the original has already been sent to DPS
Austin. The officer will make a notation that the report was

amended at the top of the report.

2. Additional charges may be ﬁled by the investigating ofﬁcer if
appropriate (e.g. Texas Transportation Code Section 548.603,

Texas Penal Code Section 37.10, etc.).

07.506 IMPOUNDMENT PROCEDURES
A. Before impounding a vehicle under this policy, ofﬁcers should

consider the mitigating circumstances surrounding the situation

including:

1. Time of day.

2. Location.

3. Ability of operator to safely leave the location.

4. Availability of other units to assist with the safe removal of

occupants.

5. Call demand

6. Weather conditions

7. Lighting

8. Trafﬁc volume, conditions, and speed.

10
An ofﬁcer impounding a vehicle for failure to maintain or show proof
of ﬁnancial responsibility will make reasonable effort to provide for

the safety of the driver(s) and any occupant(s). Examples of

reasonable effort include, but are not limited to, transportation of the

driver(s) and occupant(s) to a safe place or calling a friend or relative

for a ride. If there is no reasonable way to avoid placing the driver(s)

and occupant(s) in an unsafe situation, the ofﬁcer shall contact a

supervisor for review to not impound the car.

A vehicle impounded under this policy will be taken to the wrecker
company lot.

1. Tows will be made by the on-call wrecker from the normal

Rotation List.

2. Officers will write the word “no ﬁnancial responsibility” on the

TPD Form 3 (Vehicle Release Page) under the “Reason”

category.

3. A vehicle inventory will be completed on any vehicle that is
towed.

4. The towing ofﬁcer is to complete the ‘Towed Vehicle

Instruction’ form and provide a copy of the form to the operator

11
of the vehicle. The original fonn is to be attached to the report

for routing to Data Management. The form will also be made

available in Spanish.

D. The Shift Commander has the authority to suspend these measures

based on workload or weather conditions.

07.507 RELEASING VEHICLES FROM Il\/IPOUND
A. Proof of ﬁnancial responsibility, in the form of a ‘Financial

Responsibility Veriﬁcation’ form obtained from the Police

Department, will be required by the wrecker company prior to the

release of any vehicle being removed from the wrecker lot. In order to

obtain a ‘Financial Responsibility Veriﬁcation’ form, proof of current

ﬁnancial responsibility must be presented to the Police Department,

which shall issue the form upon veriﬁcation of the policy, and the

payment of a $5.00 administrative fee, see Tyler City Code Section 4-

73.

A vehicle impounded for a violation of this policy will not be released
from the Wrecker company until the ‘Financial Responsibility

Veriﬁcation’ form obtained from the Police Department is provided.

To allow for the verification of coverage, releases related to this

l2
policy should generally occur during normal business hours (Monday
— Friday, 8:00 a.m. — 5:00 p.m.) at the downtown police department. If

the carrier has an aﬁer-hour contract and the coverage can be verified,

then a Patrol Supervisor may authorize that the vehicle may be
released. The Supervisor will have to complete the veriﬁcation form

from Data Management. Copies of the completed veriﬁcation form

and the proof of ﬁnancial responsibility, and a supplemental report

will be submitted to Data Management for attachment to the original

case.

. A Customer Service Representative in the Data Management Unit will
take the proof of financial responsibility presented by the person that

appears at the Police Department seeking veriﬁcation to get the

vehicle released from impound. The Customer Service Representative

will attempt to make contact with the insurance agency/agent listed on

the received information and attempt to verify that the proof is

legitimate. If the Customer Service Representative is able to verify

proof of ﬁnancial responsibility and upon receipt of the $5.00

administrative fee, the Representative shall complete and then issue

the ‘Financial Responsibility Veriﬁcation’ form. The Representative

13
shall stamp the lower right of the form to authenticate the form. A copy
of the form will be attached to the original report along with a copy of the

proof of financial responsibility.

1. If the Representative is unable to verify proof of ﬁnancial

responsibility from the presented information, the person will

be asked to obtain the required information and return to the

Police Department at that time for veriﬁcation.

2. If for some reason, the Representative believes that the proof

that has been presented is not legitimate or is ﬁctitious; the Data

Management Supervisor will be notiﬁed. If the Data

Management Supervisor determines it is necessary, an ofﬁcer

may be called to investigate whether criminal charges may need
to be ﬁled.

D. After-hour exceptions may be made by an on-duty patrol supervisor
E. If it is determined that a vehicle impounded under this policy was

towed in error, the shift commander has the discretion to authorize a

no-fee release. The wrecker company shall be notiﬁed to send the bill

to the Police Department with the authorizing supervisor’s signature.

Approved: 02/28/12”

14
SUMMARY OF THE ARGUMENT
Appellant’s two-fold position is that, first, the State did not properly

follow Tyler Police Department’s policy on impounding Vehicles. Second,

the impoundment policy of the Tyler Police Department is not reasonable.

Ofﬁcer Boyce did not follow the policy because he did not consider

mitigating circumstances as the policy indicates.

The policy is not reasonable because it is inconsistent as to what

actions are required in the decision-making process by law enforcement.

Speciﬁcally, some portions of the policy indicate that vehicles “shall” be

towed while other portions say that there are mitigating circumstances when

towing should not occur.

In fact, the trial judge said as much in his ruling on the record. At the

conclusion of the hearing on the Motion To Suppress, the trial judge stated,

“Number one, poor quality of testimony. Poor quality. Number two, it

appears that the Tyler ordinance conﬂicts with each other. One part is

mandatory. It doesn’t say shall. It doesn’t say after considering mitigating

circumstances. It says shall. The other side says mitigating circumstances.

It’s clear the ofﬁcer didn’t consider any mitigating circumstance, but it also

15
says shall. So based on that basis, the shall part, I am going to deny your
motion to suppress. I don’t have a bit of problem with you taking it up on

that issue all daylong. (RR 52).

l6
ARGUMENT
The trial court committed
reversible error when it denied
Appellant’s motion to suppress illegally seized evidence, namely,
marijuana, during an unlawful inventory search of the vehicle.

A. Standard of Review

On March 18, 2015, the 12TH Court of Appeals, in Kennedy v. State,

case # 12-13-00248-CR, stated the standard of review as follows: “We
review a trial cou1t’s ruling on a motion to suppress under bifurcated

standard of review. Hubert v. State, 312 S.W.3d 554, 55 9 (Tex. Crim. App.

2010); Carmouche v. State, 10 S.W.3d 323, 327(Tex. Crim. App. 2000). A
trial court’s decision to grant or deny a motion to suppress is generally

reviewed under an abuse of discretion standard. Sheperd v. State, 273

S.W.3d 681, 684 (Tex. Crim. App. 2008). Almost total deference is given to

atrial court’s determination of historical facts, especially if those

determinations turn on witness credibility or demeanor, and review de novo

the trial cou1t’s application of the law to facts not based on an evaluation of

credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim.

App. 2008).

When deciding a motion to suppress evidence, a trial court is the
exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v.
17
State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) Accordingly, a

trial court may choose to believe or disbelieve all or any part of a witness’s

testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Moreover, if, as here, the trial judge makes express ﬁndings of fact, the

evidence is viewed in the light most favorable to the trial judge’s ruling and

determine whether the evidence supports those factual findings. Valtierra v.

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When there is not an
express ﬁnding on an issue, the appellate court infers implicit fndings of

fact that support the trial cou1t’s ruling as long as those ﬁndings are

supported by the record. See id.

The prevailing party is entitled to “the strongest legitimate View of the

evidence and all reasonable inferences that may be drawn from that

evidence.” State v. Castlebeny, 332 S.W.3d 460, 465 (Tex. Crim. App.

2011). When all evidence is viewed in the light most favorable to the trial
court’s ruling, an appellate court is obligated to uphold the ruling on a

motion to suppress if that ruling was supported by the record and was correct

under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;

Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999).

18
The appellate court is to review the trial cou1t’s legal conclusions de

novo and uphold the ruling so long as it is supported by the record and

correct under any legal theory applicable to the case. State v. Iduarte, 268

S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda v. State, 317 S.W.3d 907,

907-08 (Tex. App. — Houston[14"’ District.] 2010, no pet.) “

B. The Law on Vehicle Inventoﬂ

On March 18, 2015, the 12m Court of Appeals, Kennedy v. State,

case # 12-13~00248-CR, stated “If conducted pursuant to a lawful

impoundment, a police ofﬂcer’s inventory search of the contents of an

automobile is permissible under both the Fourth Amendment of the United
States Constitution and Article 1, Section 9 of the Texas Constitution.” See

Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d

739 (1987); S. Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092,

3097, 49 L. Ed. 2d 1000 (1976); Benavides v. State, 600 S.W.2d 809, 810

(Tex. Crim. App. 1980); Moskey v. State, 333 S.W.3d 696, 702 (Tex. App. —

Houston[15‘ Dist.] 2010, no pet.). Inventories serve to protect (1) the owner’s

property while it is in custody, (2) the police against claims or disputes over

lost or stolen property, and (3) the police from potential danger. Opperman,

19
428 U.S. at 369, 96 S. Ct. at 3097.

Inventory searches should be designed to produce an inventory, not

turned into a purposeful and general means of discovering evidence of a

crime. Florida v. Wells, 495 US. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d

1 (1990). Unless there has been a showing that the officer acted in bad faith

or for the sole purpose of investigation, the ofﬁcer may conduct an inventory
search subsequent to a decision to impound a vehicle. Bertine, 479 U.S. at

372-73, 107 S. Ct. at 741-42.

The state bears the burden of proving that an impoundment is lawful

and may satisfy its burden by showing that (1) the driver was arrested, (2) no

alternatives other than impoundment were available to ensure the vehicle’s

protection, (3) the impounding agency had an inventory policy, and (4) the

policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App. —

Houston [15‘ Dist.] 2004, pet. refd).

There are two general categories of events justifying impoundment.

See Rodriquez v. State, 641 S.W.2d 955, 958 (Tex. App. — Amarillo 1982,

no writ). First, an officer may impound a vehicle when the Vel1icle is a

danger to trafﬁe. See id. Second, an officer may impound a vehicle after an

arrest of the vehicle’s driver when the vehicle can not be protected by any

20
means other than impoundment. See id, Greer v.; State, 436 S.W.3d 1, 7

(Tex. App. — Waco 2014, no pet.). An officer “need not
independently

investigate possible alternatives to impoundment absent some objectively

demonstrable evidence that alternatives did, in fact exist.” Greer, 436

S.W.3d at 7.”

The courts have listed circumstances under which law enforcement

may reasonably impound a vehicle, including (1) driver’s arrest when the

arrest is reasonably connected to the vehicle (2) statutory authorization (3)

vehicle abandonment or a vehicle that is hazardous and presents a danger to

the public (4) a reasonable belief that the vehicle is stolen (5) vehicle

removal from an accident scene and (6) parking violations. Benavides at

811-812, Opperman at 369.

For an irnpoundrnent of a vehicle to be lawful, it must be reasonable

under the Fourth Amendment. Benavides at 811. The Court in Wells states

that an inventory search must be conducted pursuant to a “standardized

criteria” or “established routine”. An inventory search must not deviate
from police department policy. Moberg v. State, 810 S.W.2d 190, 195 (Tex.

Crim. App. 1991).

Impoundment and inventory searches must be careﬁllly examined and

21
narrowly conﬁned in each case because of a dilution of Fourth Amendment

rights against unreasonable searches and seizures. Rodriguez v. State, 641

S.W. 2d 955 ( Tex. App. Amarillo 1982). “While it may be standard
procedure to impound the vehicle of a person who is arrested, we conclude
that the Fourth Amendment protection against seizures cannot be whittled

away by a police regulation.” Benavides at 812.

For example, impoundment was unlawful in an arrest for speeding

and driving without a license when vehicle was legally parked in parking lot

and defendant’s incarceration would likely be temporary. Fenton v. State

785 S.W.2d 443 (Tex. App. Austin 1990).

An inventory search is reasonable only if conducted for an inventory
and not as an investigatory tool to produce or discover incriminating

evidence. Wells at 4. An inventory is proper when conducted in
accordance with standard police procedures. The burden is on the State to

show compliance with standard procedure. Ward v State, 659 S.W.2d 643,

646 (Tex. Crim. App. 1983).

The failure to provide evidence that the inventory was conducted

pursuant to standard procedure invalidates it, whether or not the authority to

inventory actually existed. Gauldin v. State, 683 S.W.2d 411.415 (Tex.

22
Crim. App. 1984). The United States Supreme Court relates that an

inventory search cannot be used by law officers as a “ruse for a general

rurnrnaging.” Wells at 3-5.

C. Analysis

The actions of Tyler Police Officer resulting in the impounding and

searching of the vehicle Appellant’s drove were unlawful and, as such, the

discovery of marijuana in the vehicle was the result of an illegal search in

violation of the Fourth Amendment of the United States Constitution.

First, Officer Boyce’s actions did not satisfy the standards outlined in

the Garza ruling. Ofﬂcer Boyce did not arrest Appellant prior to the search.

Ofﬁcer Boyce admitted he would let Appellant call someone to give him a

ride once the car was impounded. In addition to the driver not being arrested

prior to the impoundment, there were alternatives, other than impoundment,

to insure the vehic1e’s safety. Ofﬁcer Boyce could have contacted

Appellant’s father, as Appellant requested, who was the owner of the car and

had insurance for the car. Additionally, Officer Boyce could have allowed

23
the car to be parked in a nearby parking lot. Either alternative would have

protected the Vehicle, required minimal effort by the ofﬁcer, and would have

avoided any need to impound the vehicle.

The third standard under Garza is that there was a reasonable towing

and impounding policy in place. As the trial judge clearly noted, the Tyler

Police Department towing and impounding policy is not clear. While one

portion says that the towing shall occur, another portion of the policy says

that mitigating circumstances should be considered. Section 07.504 under

Traffic Stops says that the vehicle shall be impounded but then goes on to

say that the ofﬁcer shall comply with other subsections before impounding.

Those subsections limit and restrict the general language of Section 07.504

that says the Vehicle shall be impounded. The problem is that it makes no

sense that the ofﬁcer is told that he shall tow if a certain criteria is met and is

also told at the same time that the ofﬁcer shall follow other rules that would

mean that impounding is not automatic. As such, the policy is not

reasonable. The trial judge acknowledged that in his previously-quoted

ruling.

Finally, the fourth Garza standard says that the policy must be

followed. In this instance, Ofﬁcer Boyce did not follow the policy. First,

24
Section 07.504(C) and (D) says that the vehicle shall be impounded if there

is no insurance. However, the evidence is clear that there was insurance on

the vehicle—just for Appellant’s father, not Appellant. Furthermore, both

sections instruct the ofﬁcer to follow Section 07.505 (B) — (F). In this

instance, Ofﬁcer Boyce did not follow 07.505(B) because he was able to

verify that insurance existed for the vehicle. If Ofﬁcer Boyce had concerns

about the insurance, he could have followed Section 07.505(C) and

contacted other individuals to verify that the Vehicle was covered by

insurance. Section 07.505(D) lets the ofﬁcer still make a decision not to

impound if there is no deﬁnitive answer that insurance exists. While that

doesn’t apply to this situation because insurance was conﬁrmed, Sub-section

(D) notes that the ofﬁcer still has discretion not to impound, which is

contrary to Ofﬁcer Boyce’s interpretation of the policy. In his eyes, he has

to impound no matter what. That’s not what the policy says in Section

07.5 05 .

Section O7,505(F) allows for the ofﬁcer to consider mitigating

circumstances before impounding. On top of the fact that insurance was
veriﬁed, the ofﬁcer shall consider sub-section (F) concerning mitigating

circumstances such as an alternate placement of the vehicle, time of day,

25
safety of driver, transporting the driver, allowing driver to call a relative or

friend. In this situation, had the ofﬁcer considered all of the circumstances

as the policy says the ofﬁcer is to do, then there would have been no need to

impound the vehicle. Appellant’s father owned the vehicle and had

insurance for the vehicle in his name. A simple, reasonable phone call to
Appellant’s father would have avoided any need to impound the Vehicle.

The ofﬁcer was not going to allow that until after the impounding and

searching of the vehicle because the ofﬁcer wanted to investigate the

contents of the car for contraband. In no way is that a permissible purpose
for the inventory search exception.

Additionally, the two Greer factors were not present. First, there was

no danger to traffic nor, second, was Appellant arrested before the issue of

impoundment arose. The search had to be reasonable and be the result of

properly following a reasonable policy. In this instance, policy was not

followed and the inconsistencies in policy indicate it is unreasonable

anyway.

If we analyze the 0ff1cer’s actions and the policy based on the sample

of permissible circumstances outlined in Benavides and Opperman, the

impounding of Appellant’s vehicle did not stem from Appellant’s initial

26
arrest, statutory authorization, vehicle abandonment, vehicle presenting

hazard to public, belief that vehicle is stolen, vehicle removed from accident

scene, or parking violations.

The trial court’s Findings of Fact #7 and #8 states “Tyler Police

Department’s standard policy regarding the impoundment and inventorying

of vehicles demands the impoundment of vehicles following: (1)

conﬁrmation that the Defendant has a previous conviction for failing to

maintain ﬁnancial responsibility; or (2) upon determination that the

Defendant’s license is currently suspended for not having insurance and the

Defendant fails to prove ﬁnancial responsibility on the vehicle being

operated. A lawful inventory of the Defendant’s vehicle was performed
pursuant to Tyler Police Department’s standardized policy. Ofﬁcer Boyce

was acting in good faith and was not motivated by a desire to uncover

evidence. A green leafy substance suspected to be marijuana was found
during the inventory.”

The trial cou1t’s Conclusion’s of Law # 3-5 states that “a green leafy

substance believed to be marijuana was uncovered during a lawful inventory

pursuant to standardized Tyler Police Department guidelines. The

Defendant’s vehicle was lawfully towed pursuant to Tyler Police

27
Department General Order 07.504(C) and 07.504(D). Officer Boyce

conducted an inventory of the Defendant’s vehicle in compliance with

written Tyler Police Department policy. The substance believed to be

marijuana was obtained pursuant to a lawful impoundment and inventory of

the Defendant’s vehicle and therefore the Defendant’s Motion to Suppress is

DENIED.”

The trial court did not take into account 7.502 Policy. “Enforcement

action shall be taken when officers encounter individuals who fail to
maintain the required ﬁnancial responsibility unless mitigating

circumstances discussed in this policy exist.”

This 7.502 Policy is the summary of this General Order. It is clear

that ofﬁcers cannot tow the vehicle if there are mitigating circumstances.

The towing policy is designed for vehicles that cannot be legally driven.

However, the owner of the vehicle, Juan Zepeda, had the required insurance

and could have driven the vehicle away without an impoundment. This is

clearly a mitigating circumstance.

Even reviewing the evidence in the light most favorable to the trial

court’s ruling, the evidence does not support those factual ﬁndings.

Furthermore, the evidence does not satisfy the Garza standards. The trial

28
court’s conclusions are not supported by the record and are not correct under

any legal theory because the policy was not followed. There was insurance

on the Vehicle, the owner had proper insurance, and no mitigating

circumstances were considered.

Simply put, the ofﬁcer’s actions were not reasonable nor is the

language of the policy reasonable. Reasonableness dictates that the ofﬁcer

allow Appellant call the authorized driver and owner of the Vehicle to come

to the scene and pick up the car. Reasonableness dictates that no

impoundment occur.

PRAYER
WHEREFORE, Appellant prays the Order of the trial court denying
Appellant’s Motion to Suppress Evidence be reversed and remanded to the

trial court for a new trial with orders the Motion to Suppress Evidence be

GRANTED and for such other and further relief to which Appellant may be
justly entitled.

Res ectfully/ybmitted,

IE
~
SANDERS ~
Bar No.2 24033153
State
120 S. Broadway, Suite 1l2
Tyler, Texas 75702
(903) 593—so40
(903) 595-5532 fax
29
CERTIFICATE OF SERVICE
I, do hereby certify a true and correct copy
the undersigned attorney,
of the foregoing instrument was served upon the Smith County District
Attorney’s Office by hand delivery on this the 10th day of June, 2015.

ﬁzlf /wméw
JEFF SANDERS
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3), the undersigned attorney certiﬁes that this
brief complies with the length requirements of the Texas Rules of Appellate
Procedure in that the brief has 6,573 words.

I E

JEF SANDERS