ACCEPTED
13-14-00680-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
4/27/2015 1:14:50 PM
DORIAN RAMIREZ
CLERK
#13-14-00680-CR
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
Thirteenth Court of Appeals, Corpus 4/27/2015
Christi 1:14:50 PM
& Edinburg
DORIAN E. RAMIREZ
Clerk
THE STATE OF TEXAS,
Appellant
v.
ISRAEL RAMIREZ,
Appellee
ON STATE’S APPEAL FROM THE 94TH DISTRICT COURT
OF NUECES COUNTY, CAUSE #13-CR-2209-D
STATE’S BRIEF
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas, District Attorney for the 105th Judicial
District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney
Elizabeth Schmidt, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Appellee: Israel Ramirez, represented by
Trial and Appellate Counsel:
Todd Robinson
Batek & Robinson, LLP
102 N. Staples St.
Corpus Christi, TX 78401
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES .................................................................................. iv
STATEMENT OF THE CASE .............................................................................. vi
ISSUE PRESENTED ............................................................................................. vii
Whether probable cause existed for Officer Garcia to search the
capsule attached to Defendant Ramirez’s keychain ........................... vii
STATEMENT OF FACTS .......................................................................................1
SUMMARY OF THE ARGUMENT ......................................................................3
ARGUMENT ............................................................................................................5
Officer Garcia had probable cause to search the heroin-containing
capsule ..........................................................................................................5
A. Legal standards .....................................................................................5
B. The totality of the circumstances facing Officer Garcia and
found by the trial court would have led a person of
reasonable prudence to believe that heroin would be found
in the capsule attached to Defendant Ramirez’s keychain ............8
PRAYER ..................................................................................................................13
CERTIFICATE OF COMPLIANCE ....................................................................14
CERTIFICATE OF SERVICE ...............................................................................14
iii
INDEX OF AUTHORITIES
Cases
Allen v. State, 13-13-00188-CR, 2014 WL 4402135 (Tex. App.—Corpus
Christi Sept. 4, 2014, no pet.) .......................................................................9
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) .................................7
Angulo v. State, 727 S.W.2d 276 (Tex. Crim. App. 1987) ..................................7
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) .................................7
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) .......................9
Dixon v. State, 206 S.W.3d 613 (Tex. Crim. App. 2006) ...............................5, 10
Elardo v. State, 163 S.W.3d 760 (Tex. App.—Texarkana 2005, pet.
ref’d) ................................................................................................................9
Florida v. Harris, 133 S. Ct. 1050 (2013) ...........................................................6, 7
Furr v. State, 13-14-00287-CR, 2015 WL 307757 (Tex. App.—Corpus
Christi Jan. 22, 2015, pet. filed) ...................................................................9
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ................................11
Illinois v. Gates, 462 U.S. 213 (1983) ...............................................................7, 10
Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014) ..............................9
Miller v. State, 458 S.W.2d 680 (Tex. Crim. App. 1970) ...................................11
Navarette v. California, 134 S.Ct. 1683 (2014) .....................................................9
Rodriguez v. State, 13-12-00233-CR, 2014 WL 1514061 (Tex. App.—
Corpus Christi Apr. 17, 2014, no pet.) .....................................................10
Rojas v. State, 797 S.W.2d 41 (Tex. Crim. App. 1990) ......................................10
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................5
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................5
Sullivan v. State, 626 S.W.2d 58 (Tex. Crim. App. 1981) .................................13
iv
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) ................................7, 12
v
STATEMENT OF THE CASE
Nature of the Case On January 17, 2014, a Grand Jury indicted
Ramirez for possession of less than one gram of
heroin, a state jail felony. CR 4.
Course of Proceedings On June 11, 2014, Ramirez filed a boilerplate
Motion to Suppress (CR 15), which the court
heard on September 24 (RR 1).
Trial Court’s Disposition On November 3, 2014, the court granted the
motion to suppress. CR 29.
vi
ISSUE PRESENTED
Whether probable cause existed for Officer Garcia to search the capsule
attached to Defendant Ramirez’s keychain.
vii
STATEMENT OF FACTS
On June 30, 2014, Robstown Police Department officers Ernest
Mendoza and John Garcia were dispatched to a disturbance between males
and females yelling and screaming. Finding of Fact #51. Upon arrival,
Officer Mendoza saw 3-4 persons in the road arguing, and he exited his
vehicle and separated them. #6. Lori Ramirez, sister of Defendant-Appellee
Israel Ramirez, was one of the persons present. #8.
Lori told Officer Mendoza that her brother “[Israel]’s got heroin on
him.” #10. At that point, Officer Garcia saw Defendant Ramirez begin
walking away from the scene towards his home. #8. Officer Garcia, who
arrived immediately after Officer Mendoza, also observed Ramirez
walking away from the scene. ##7, 9. As Officer Mendoza attempted to
make contact with Ramirez, he relayed Lori’s statement to Officer Garcia
about Ramirez possessing heroin. #14.
1
For brevity in citing to the Findings of Fact, numbers followed by the number
sign (#) refer to the Finding of Fact number. All of the trial court’s findings of fact,
which were made and entered on remand from this Court, are located at Supp. CR 17-
20.
1
Ramirez was nervous and trying to avoid the officers. #20. As
Officer Garcia continued try to make contact with Ramirez, Ramirez
walked away from him and behind an SUV. #18. Officer Mendoza walked
around the other side of the SUV, and the officers made contact with
Ramirez there. #19.
Ramirez kept reaching into his right pocket, which forced Officer
Garcia to order him to keep his hands on the SUV. #21. Officer Garcia
asked Ramirez if he had any weapons, and he responded that he had a
pocket knife. #22. Garcia then placed Ramirez in handcuffs and asked if he
could remove the knife and the contents of Ramirez’s pocket. ##22, 23.
Ramirez answered “okay” or “yes.” #24.
Officer Garcia retrieved a knife and keychain from Ramirez’s right
pocket, attached to the keychain was a silver, capsule-shaped container.
#25. The knife was legal, and Ramirez was not yet under arrest. ##27, 28.
Ramirez had not consented to a search of the capsule. #34.
Garcia’s experience as a peace officer includes investigating close to
150 illegal drug cases and training to recognize illegal drugs. #17. Officer
2
Garcia had also previously found drugs in containers like the one attached
to Ramirez’s keychain. #30. Looking for narcotics, Officer Garcia opened
the capsule and discovered what he believed to be black tar heroin. #33.
On January 17, 2014, a Grand Jury indicted Ramirez for possession of
less than one gram of heroin, a state jail felony. CR 4; TEX. HEALTH &
SAFETY CODE § 481.115(b). On June 11, Ramirez filed a boilerplate Motion
to Suppress. CR 15. On September 24, the trial court heard the motion. RR
1.
At the hearing on the motion to suppress, Ramirez limited his attack
to the propriety of Officer Garcia search of the capsule. Supp. CR 17 (#2).
On November 3, the court granted the motion to suppress. CR 29. This
State’s appeal ensued. CR 30.
SUMMARY OF THE ARGUMENT
Under the totality of the circumstances facing Officer Garcia and
found by the trial court, probable cause existed to search the capsule
attached to Defendant Ramirez’s keychain. A witness present at the scene,
Ramirez’s sister, told another officer that Ramirez had heroin on his
3
person. When Officer Garcia received this information, he saw Ramirez
trying to walk away from the scene of the disturbance to which the officers
had been dispatched. Ramirez was nervous, trying to avoid the officers,
and kept reaching into his right pocket.
When Ramirez consented to Officer Garcia’s request to empty the
contents of that pocket, he retrieved a keychain to which was attached a
silver, capsule-shaped contained. In Officer Ramirez’s experience
investigating close to 150 drug cases, he has found drugs in similar
containers. Thus, upon removing and viewing the capsule, a person of
reasonable caution would have believed that heroin would probably be
found in the capsule.
In sum, Officer Garcia had probable cause to search and open the
capsule, which allegedly contained heroin. The trial court’s legal
conclusion to the contrary was erroneous, is reviewed de no novo, is
entitled to no deference, and should be reversed by this Court.
4
ARGUMENT
Officer Garcia had probable cause to search the heroin-containing
capsule.
A. Legal standards.
In reviewing a trial court’s ruling on a motion to suppress, appellate
courts employ a bifurcated standard, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact
that rely upon the credibility of a witness, but applying a de novo standard
of review to pure questions of law and mixed questions that do not depend
on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273
(Tex. Crim. App. 2013).
When a trial court makes explicit fact findings, the appellate court
determines whether the evidence (viewed in the light most favorable to the
trial court’s ruling) supports these fact findings. State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006). Whether a specific search or seizure is
reasonable or supported by probable cause under the Fourth Amendment
is subject to de novo review. E.g., Dixon v. State, 206 S.W.3d 613, 616 (Tex.
Crim. App. 2006).
5
A police officer has probable cause to conduct a search when “the
facts available to him would warrant a person of reasonable caution in the
belief that contraband or evidence of a crime is present.” Florida v. Harris,
133 S. Ct. 1050, 1055 (2013) (quotation omitted); see also Estrada v. State, 154
S.W.3d 604, 609 (Tex. Crim. App. 2005) (“Probable cause to search exists
when reasonably trustworthy facts and circumstances within the
knowledge of the officer on the scene would lead a man of reasonable
prudence to believe that the instrumentality of a crime or evidence of a
crime will be found.”). Summarizing the core principles pertaining to
probable cause, the Court of Criminal Appeals has written,
Probable cause is a “fluid concept” that cannot be “readily, or
even usefully, reduced to a neat set of legal rules.” Though the
concept evades precise definition, it involves “a reasonable
ground for belief of guilt” that is “particularized with respect to
the person to be searched or seized.” “Probable cause” is a
greater level of suspicion than “reasonable suspicion” and
requires information that is more substantial in quality or
content and a greater reliability with respect to the source of
information. At least in the context of searches, probable cause
involves “a fair probability that contraband or evidence of a
crime will be found.” Probable cause is a relatively high level of
suspicion, though it falls far short of a preponderance of the
evidence standard.
6
Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (footnotes and
citations omitted). The test for probable cause is an objective one,
unrelated to the subjective beliefs of the arresting officer. E.g., Amador v.
State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
When determining probable cause, courts look to the totality of the
circumstances. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see
also Florida v. Harris, at 1055 (describing “all-things-considered approach”).
When considering all of the circumstances, the question is not whether
certain conduct is “innocent” or “guilty”—
[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity. By hypothesis, therefore, innocent behavior frequently
will provide the basis for a showing of probable cause; to
require otherwise would be to sub silentio impose a drastically
more rigorous definition of probable cause than the security of
our citizens demands. . . . In making a determination of
probable cause the relevant inquiry is not whether particular
conduct is “innocent” or “guilty,” but the degree of suspicion
that attaches to particular types of non-criminal acts.
Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983), quoted with approval in Angulo
v. State, 727 S.W.2d 276, 279 (Tex. Crim. App. 1987).
7
B. The totality of the circumstances facing Officer Garcia and found
by the trial court would have led a person of reasonable prudence
to believe that heroin would be found in the capsule attached to
Defendant Ramirez’s keychain.
The State does not contend that Ramirez explicitly or implicitly
consented to the search of the capsule attached to his keychain. Rather,
Ramirez plainly consented to Officer Garcia removing the keychain and the
capsule attached to it from his pocket. Supp. CR 19 (Findings ##21-24).
Thus, the critical question becomes whether, upon removing and viewing
the capsule, Officer Garcia had probable cause to search and open it. The
answer to this legal question is “Yes.”
The tip from Ramirez’s sister, Lori, that he possessed heroin. The
sequence of events culminating in probable cause to search began with
Lori’s tip to Officer Mendoza, relayed to Officer Garcia, that Ramirez “had
heroin on him.” Supp. CR 18 (Finding #10). Without that information, a
reasonable officer may not have been able discern the likely reason for
Ramirez’s odd behavior. See id. at 18-19 (nervousness [#20], avoidance of
the officers [##8, 9, 18, 20], and repeatedly reaching into his right pocket
[#21]).
8
Because Lori was subject to investigation at the scene for the
disturbance call, the State concedes that she is not a citizen-informant
whose tip would be presumed reliable. E.g., Elardo v. State, 163 S.W.3d 760,
768-69 (Tex. App.—Texarkana 2005, pet. ref’d) (“[I]information provided
by private citizens whose only contact with the police was to witness the
crime is presumed to be reliable.”). But Lori was more than an anonymous
tipster; she identified herself to police, was present at the scene, and could
be held to account for the accuracy and veracity of her tip.2 Additional
indicia of reliability enjoyed by Lori’s tip included that it singled out the
specific person at the scene alleged to be in possession of contraband
(Defendant), specified the type of contraband (heroin), specified where it
2
Cf. Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011)
(“[I]nformation provided to police from a citizen-informant who identifies himself and
may be held to account for the accuracy and veracity of his report may be regarded as
reliable.”); see also Allen v. State, 13-13-00188-CR, 2014 WL 4402135, at *3 (Tex. App.—
Corpus Christi Sept. 4, 2014, no pet.) (citing Derichsweiler; not designated for
publication); Navarette v. California, 134 S.Ct. 1683, 1689 (2014) (finding increased
veracity from anonymous informant’s use of 911 call due to “features that provide for
identifying and tracing callers, and thus provide some safeguards against making false
reports with immunity . . . [a] reasonable officer could conclude that a false tipster
would think twice before using such a system”); Matthews v. State, 431 S.W.3d 596, 600
(Tex. Crim. App. 2014) (citing Navarette); Furr v. State, 13-14-00287-CR, 2015 WL 307757,
at *5-6 (Tex. App.—Corpus Christi Jan. 22, 2015, pet. filed) (discussing and
distinguishing Matthews; not designated for publication).
9
was (“on him”), and a basis therefore (she was present at the scene with
Defendant and is Defendant’s sister). See Illinois v. Gates, 462 U.S. 234
(“[E]ven if we entertain some doubt as to an informant’s motives, his
explicit and detailed description of alleged wrongdoing, along with a
statement that the event was observed first-hand, entitles his tip to greater
weight than might otherwise be the case.”), cited with approval in Dixon v.
State, 206 S.W.3d at 617 n.16. Thus, an officer could reasonably consider
Lori’s tip, while not sufficient in itself to establish probable cause, as
possessing sufficient reliability to support probable cause if corroborated.
Cf. Rojas v. State, 797 S.W.2d 41, 44 (Tex. Crim. App. 1990) (“[W]hen an
anonymous tip is relied upon to furnish probable cause, the informer must
assert personal knowledge or there must be additional facts showing
reason to believe that the contraband sought will probably be where the
information indicates it will be.”); Rodriguez v. State, 13-12-00233-CR, 2014
WL 1514061, at *3 (Tex. App.—Corpus Christi Apr. 17, 2014, no pet.)
(“Probable cause may arise from a tip supplied by a confidential informant
10
if it is corroborated. Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex. Crim.
App. 1984)”; not designated for publication).
Circumstances corroborating Lori’s tip that Defendant possessed
contraband. Upon learning that a witness identified Ramirez as having
heroin in his possession, Officer Garcia faced the following
circumstances—
1. Ramirez was walking away from the scene of the disturbance
that prompted the police presence. Supp. CR (Findings ##5, 8,
9).
2. Ramirez was trying to avoid the officers. #20.
3. Ramirez was nervous. #20.
4. Ramirez kept reaching into his right front pocket. #21.
At this point, a reasonable officer would likely believe that Ramirez had
contraband in that pocket. See, e.g., Miller v. State, 458 S.W.2d 680, 683 (Tex.
Crim. App. 1970) (finding suspect’s nervousness and furtive movements as
factors supporting probable cause); Guzman v. State, 955 S.W.2d 85, 90 (Tex.
Crim. App. 1997) (“[A]voiding officers is a factor to consider when
11
determining probable cause.”). However, Officer Garcia still did not yet
search.
When Ramirez agreed that Officer Garcia could empty his pocket, the
officer retrieved a closed, silver, capsule-shaped container. Supp. CR 19
(Findings ##24, 25). Officer Garcia recognized the capsule as similar to
containers in which he has found contraband in the past, which involves
investigating close to 150 drug cases and training to recognize illegal drugs
such as heroin. ##17, 30. See, e.g., Wiede v. State, 214 S.W.3d at 25 (“[T]he
training, knowledge, and experience of law enforcement officials is taken
into consideration” when determining probable cause.”). Only then did
Officer Garcia open the capsule to search for narcotics and find heroin
inside. ##32, 33.
Viewed in isolation, none of the circumstances found by the trial
court would support probable cause to search the capsule. However, when
considered together, as required by the applicable standard of review,
these particulars more than suffice to warrant a person of reasonable
caution to believe that heroin would be present in the capsule. Sullivan v.
12
State, 626 S.W.2d 58, 60 (Tex. Crim. App. 1981) (“[O]bjects which are not
inherently suspicious can become so under certain circumstances. Thus, the
State can show that the seizing officer was aware, at the time of the seizure,
that contraband drugs are commonly packaged in a particular manner.
This specialized knowledge, in combination with suspicious facts and
circumstances, can sustain the State’s burden of proof.”; citations omitted).
PRAYER
For these reasons, the State requests that the Court reverse the trial
court’s order granting Defendant’s motion to suppress and grant the State
all other proper relief.
Respectfully Submitted,
/s/ A. Cliff Gordon
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
13
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to
prepare this document, it contains 3122 words.
CERTIFICATE OF SERVICE
On April 27, 2015, a true copy of the foregoing was served via EServe
on the following:
Mr. Todd Robinson
Batek & Robinson, LLP
102 N. Staples St.
Corpus Christi, TX 78401
Counsel for Appellee
/s/ A. Cliff Gordon_______________
A. Cliff Gordon
14