Danny Joe McGee v. the State of Texas

• Decision Date: 15 June 2000
• Docket Number: No. 14-98-00499-CR,14-98-00499-CR
• Citation: 23 S.W.3d 156
• Parties: <!--23 S.W.3d 156 (Tex.App.-Houston 2000) DANNY JOE MCGEE, Appellant v. THE STATE OF TEXAS, Appellee In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

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23 S.W.3d 156 (Tex.App.-Houston[14th Dist.] 2000) DANNY JOE MCGEE, Appellant
v.
THE STATE OF TEXAS, Appellee No. 14-98-00499-CR In The Fourteenth Court of Appeals June 15, 2000

On Appeal from the 232nd District Court Harris County, Texas; Trial Court Cause No. 771,262

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Panel consists of Chief Justice Murphy and Justices Anderson and Hudson.

MAJORITY OPINION

Paul C. Murphy, Chief Justice

We withdraw our opinion filed January 20, 2000, substitute the following in its place, and overrule appellant's motion for rehearing.

In this case, we decide if evidence seized from a suspect's anal region should have been suppressed. Because we do not find sufficient information in the record to support the trial court's ruling allowing the admission of the evidence, we reverse its decision and remand this case for further proceedings.

I. Factual Summary

Houston Police Officer Steven Rowan was contacted one evening by a concerned citizen who told him that three men were selling crack cocaine in the area of Fleming and Cool Wood in Houston. The citizen described the clothes and appearance of the three men, told Officer Rowan the names of two of them, and stated an individual named Joe was hiding narcotics "in his ass."

With this information, Officer Rowan and his partner decided to investigate the

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tip. Upon their arrival at the scene, Officer Rowan and his partner found three young men, one of whom was appellant, matching the descriptions given by the citizen. These three were surrounded by a haze of blue smoke, which Officer Rowan stated he thought to be marijuana smoke. The officers approached the three men, noted that the smell of marijuana emanated from all three of them, and proceeded to obtain identification from them. Officer Rowan confirmed that the names matched the names given by the concerned citizen, and determined that two of the men were juveniles. While one of the officers checked the appellant and the two juveniles for weapons, the other officer searched the area around appellant and his friends. This officer discovered a Swisher Sweet cigar containing a small amount of marijuana. Upon this discovery, the officers handcuffed the three, loaded them into the police car, and proceeded to a fire station less than a mile away, refusing to give an explanation for this strange destination.

At the fire station, Officer Rowan obtained some sanitary rubber gloves and proceeded to perform a visual check of the buttocks and external anal area of appellant and one of the two juveniles. During the search of appellant, Officer Rowan requested that appellant bend over a table, lower his pants and underwear, and spread his buttocks. When he refused, Officer Rowan kicked appellant's legs apart, removed appellant's clothing, and spread appellant's buttocks himself. Officer Rowan testified that a plastic covered object was in "plain view" lodged between appellant's buttocks. A field test showed this object to be crack cocaine. Officer Rowan testified that appellant was then placed under arrest and charged with possession of a controlled substance.

At the hearing on his motion to suppress, appellant related a different story from that of Officer Rowan. Appellant claimed that when the officers initially checked him for weapons, they also pulled on the waistband of appellant's pants and underclothes and looked down the front and back of appellant's pants, apparently in a search for crack cocaine. Appellant also claimed that the cocaine was not in plain view when Officer Rowan performed his search at the fire station. Rather, the cocaine was discovered after Officer Rowan probed inside appellant's anal cavity for an extended period of time. Appellant's testimony was buttressed by one of the juveniles, who testified that Officer Rowan also digitally explored his anal cavity.

The trial court overruled the motion. Appellant then pled guilty to the State's possession charges, and instituted this appeal. Appellant asserts that the trial court erred in denying his motion to suppress because the narcotics were fruits of an unconstitutional arrest and search.

II. Preliminary Analysis

Before we can examine the propriety of the trial court's ruling on the motion to suppress, however, we must conduct a preliminary analysis to determine whether we can reach this issue at all. See Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998). In cases such as this one where the appellant pleads guilty after the trial court denies his motion to suppress, appellate courts must perform a two-pronged analysis. We must first identify what "fruits" the trial court refused to suppress. See id. (citing McGlynn v. State, 704 S.W.2d 18, 21 (Tex. Crim. App. 1982). The second part of the test requires an analysis of whether or not those fruits were somehow used by the State. See id. (citing Kraft v. State, 762 S.W.2d 612, 613-14 (Tex. Crim. App. 1988). If either of these prongs is not satisfied, we cannot address the merits of appellant's claim. See id.

In the present case, the first prong of the test is easily determined from the record. The fruit of the search is the crack cocaine recovered from appellant's anal region.

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The second part of this analysis, in contrast, is not as apparent. Nothing in the record shows that appellant based his plea on the trial court's decision to admit the cocaine. Even though this is the case, the cocaine found on appellant strongly incriminates him on the possession charge asserted by the State. Since this evidence is incriminating, we find that it has been used against appellant, giving us the right to entertain his appeal. See Kraft, 762 S.W.2d at 615.

Turning to the merits of the appellant's challenge to the trial court's ruling, we must set up the standard of review in cases of this nature. We review a trial court's ruling on a motion to suppress based on an abuse of discretion standard. See Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App.1991). At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the witnesses' credibility and the weight to be given their testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990). The trial judge may choose to believe or disbelieve any or all of a witness's testimony. See Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App.1996). We must afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We also afford nearly complete deference to the trial court's rulings on "mixed questions of law and fact," such as probable cause and reasonable suspicion, where the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id. Further, the evidence is viewed in the light most favorable to the trial court's ruling. See Whitten v. State, 828 S.W.2d 817, 820 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd).

III. The Warrantless Arrest Challenge

We find that the trial court must have found appellant to be under arrest prior to the search for the search to be justifiable, especially since an intrusive search such as that conducted by Officer Rowan cannot be conducted on reasonable suspicion. See Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed. 908 (1966). Under Texas law, the point at which a person is under arrest is clear. "A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person acting without a warrant." Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1994); see also Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App.1988). "An arrest is complete when a person's liberty of movement is restricted or restrained." Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). Conversely, an individual is not in custody or under arrest when he acts on the "invitation, urging or request of a police officer, and [is] not being forced, coerced or threatened." Id.

When a defendant seeks to suppress evidence because of an illegal arrest that violates the federal or state constitution, the defendant bears the initial burden to rebut the presumption of proper police conduct. See Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App.1986); Johnson v. State, 834 S.W.2d 121, 122 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd). The defendant meets this burden by proving that police seized him without a warrant. See Russell, 717 S.W.2d at 9. Once the defendant establishes that a warrantless search or seizure occurred, the burden shifts to the State either to produce evidence of a warrant or to prove the reasonableness of the search or seizure pursuant to one of the recognized exceptions to the warrant requirement. See id.

Here, the uncontroverted testimony elicited at the hearing revealed that prior to taking appellant to the fire station,

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Officer Rowan and his partner placed appellant in handcuffs and placed him in the back of the police vehicle. Officer Rowan testified that, at this point in appellant's detention, he was neither under arrest nor free to leave. Based on this testimony we find the only reasonable inference is that appellant was under arrest at the time the search was conducted, since his liberty of movement was restrained from the moment that he was handcuffed and placed in the police car. Further, it is clear from the record that appellant's arrest was warrantless. Since the evidence here clearly established the absence of a warrant, the burden rested upon the State to prove the existence of a valid exception.

In Texas, warrantless arrests...