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) . . . . . . . . . . . . . . . 20 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 30

Jorge Zepeda v. State

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