Carmouche v. State

• Decision Date: 26 January 2000
• Citation: 10 S.W.3d 323
• Parties: (Tex.Crim.App. 2000) RONALD C. CARMOUCHE, Appellant v. THE STATE OF TEXAS NO. 0614-99
• Court: Texas Court of Criminal Appeals

Page 323

10 S.W.3d 323 (Tex.Crim.App. 2000)

RONALD C. CARMOUCHE, Appellant v. THE STATE OF TEXAS

NO. 0614-99

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

January 26, 2000

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS ANGELINA COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

O P I N I O N

Meyers, J., delivered the opinion of a unanimous Court.

Appellant was convicted by a jury of the offense of possession of a controlled substance, sentenced to twenty years confinement and assessed a $10,000 fine. See TEX. HEALTH & SAFETY CODE ANN. 481.115 (Vernon 1992 & Supp 1999). The Ninth Court of Appeals affirmed appellant's conviction. Carmouche v. State, 989 S.W.2d 392 (Tex. App.-Beaumont 1999). We granted appellant's pro se petition to review whether the appellate court erred in affirming the trial court's decision to admit evidence allegedly obtained in violation of the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution.¹

I.

On August 1, 1996, a police informant telephoned Sergeant Ricky Allen, a narcotics investigator with the Texas Department of Public Safety ("D.P.S."). Sergeant Allen recognized the informant from a previous investigation, wherein she had provided accurate information about at least eight of her co-defendants in a pending federal drug conspiracy case. In the phone call, the informant told Allen that she and appellant were planning on driving from Houston to Nacogdoches later that evening and that appellant would be carrying approximately ten ounces of cocaine. The informant further advised Allen that appellant was renting the car and had refused to tell her any descriptive details. Allen therefore asked the informant to stop at a specific gas station in Corrigan, Texas, so that officers could identify the vehicle.

Allen set up surveillance at the Corrigan gas station with Texas Ranger Dwayne Williams and Lt. Allen Alexander. At approximately 8:25 p.m., the informant and appellant pulled into the gas station driving a green Toyota Camry. When the Camry left the gas station, the officers followed the car to the Lufkin city limits in two unmarked vehicles. There, they radioed a description of the car to Trooper Kervin Largent, who was waiting in the highway median in a marked D.P.S. unit.²

Largent followed the Camry, and eventually pulled the car over when he observed a traffic violation.³ Meanwhile, the two unmarked cars, along with two additional police units, turned around and stopped on the opposite side of the highway. At least two uniformed Lufkin police officers also arrived at the site of the stop to assist Largent. Largent approached the Camry and asked the informant and appellant to get out of the car.⁴ After separating the two individuals, Largent asked and received consent to search the Camry. While Largent searched the interior of the car, the informant told a DPS communications operator who was riding with Largent to search appellant's person. The operator relayed this information to Largent, who conducted a pat-down of appellant and found more than nineteen-hundred dollars in appellant's front pocket. Finding no contraband on appellant, Largent radioed Williams and Allen to inform them that he had been unsuccessful in locating any narcotics. Largent then began to search the trunk of the car.

While Largent was searching the trunk, Williams crossed the highway to the site of the stop. When he arrived, he was told by the informant that appellant had placed the cocaine in his pants. Williams, accompanied by the three other officers, then walked up to appellant and asked if he could search him. Appellant stated that he had already been searched by Largent. Williams testified that he responded by asking, "Do you mind if I search you again?" Williams further testified that appellant then threw his hands up, said, "All right," and turned around and placed his hands on the car. There is some conflict, however, between Williams' trial testimony and the videotape of the stop. These conflicts will be addressed more fully below. It is clear, however, that Williams then reached for the crotch area of appellant's pants and recovered a package containing approximately 253 grams of powder cocaine. At no time did the police obtain a warrant to search appellant or the car.

At both a pretrial suppression hearing and at trial, appellant sought to have the money and cocaine suppressed for lack of probable cause. The trial court declined to suppress any of the evidence. At the Court of Appeals, appellant argued that this ruling was error. Specifically, appellant argued that the facts neither warranted the investigative stop nor the continued detention after Largent's initial search. Appellant also argued that the facts did not rise to the level of probable cause to search appellant.

Relying on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992), the Court of Appeals concluded that the police were reasonably justified in stopping appellant's vehicle. Carmouche, 989 S.W.2d at 394. The appellate court also determined that Largent's initial pat down was justified as a Terry frisk "[b]ecause Largent had reasonable suspicion to believe that Carmouche was involved in criminal activity." Id. Finally, the lower court concluded that appellant had consented to the search that ultimately revealed the narcotics:

In the present case, Ranger Williams testified during trial and during the motion to suppress hearing that Carmouche consented to the second pat down. Carmouche did not put on any evidence contradicting Ranger Williams' opinion. Consequently, the trial court could have found that Carmouche consented to the second pat down.

Id. at 394-95. The court also found that the period of time appellant was detained prior to his arrest was not so unreasonable as to violate any of appellant's constitutional rights. Id. at 395.

II.

The appropriate standard for reviewing a trial court's ruling on a motion to suppress evidence was articulated in Guzman v. State, 955 S.W.2d 85 (Tex Crim. App. 1997). In that Fourth Amendment case, the Court indicated that it would apply a bifurcated standard of review, giving "almost total deference to a trial court's determination of historical facts" and reviewing de novo the court's application of the law of search and seizure. Id. at 88-89.

In the case at bar, the trial court did not make explicit findings of historical fact. We therefore review the evidence in a light most favorable to the trial court's ruling. See State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). In other words, we will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion. We will review de novo the lower court's application of the relevant Fourth Amendment standards. Guzman, 955 S.W.2d at 89.

III.

A "stop" and "frisk" by law enforcement personnel amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections. See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2579, 45 L. Ed. 2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968). Nevertheless, under an exception to the warrant requirement, an officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly-criminal behavior where the officer can "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 88 S. Ct. at 1880; see also Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) ("Texas courts require reasonable suspicion before a seizure of the person or property can occur"). The information provoking the officer's suspicions need not be based on his own personal observations, but may be based on an informant's tip which bears sufficient "indicia of reliability" to justify a stop. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 1923-24, 32 L. Ed. 2d 612 (1972).⁵ The same standards will apply whether the person detained is a pedestrian or is the occupant of an automobile. See id. at 145-46, 92 S. Ct. at 1922-23; Shaffer v. State, 562 S.W.2d 853, 855 (Tex. Crim. App. 1978).

We conclude that the warrantless stop of the Camry was constitutionally justified based upon the informant's tip that appellant was transporting cocaine, her previous history of providing reliable information to authorities and the events at the gas station which served to corroborate her information.⁶ Appellant argues that the informant's descriptions were too vague to justify a stop. He emphasizes that the only physical description the informant gave police was that appellant was a black male with "sleepy" looking eyes and that he would be driving a rental car of an unknown make. However, appellant's argument fails to account for how this information was incorporated into the whole picture. The Supreme Court has emphasized that whatever terms are used to describe the "elusive concept" of what cause is sufficient to authorize a Terry stop, "the essence of all that has been written is that the totality of the circumstances - the whole picture - must be taken into account." United States v. Cortez,449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981); see also Alabama v. White, 496 U.S. 325, 328-29, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990) (using "totality of the circumstances" test to determine whether informant's anonymous tip supplied reasonable suspicion for stop); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (noting that determination of reasonable suspicion is subject to totality of the circumstances analysis). While the informant's description of app...