Holmes v. State

• Decision Date: 31 October 2017
• Docket Number: No. 08-16-00150-CR,08-16-00150-CR
• Parties: MICHAEL J. HOLMES, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

MICHAEL J. HOLMES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-16-00150-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

October 31, 2017

Appeal from Criminal District Court No. 2 of Tarrant County, Texas

(TC # 1395500D)

OPINION

The State indicted Michael J. Holmes for possession of more than one but less than four grams of methamphetamine with intent to deliver. After a jury returned a guilty verdict, the trial judge sentenced him to ten years' confinement. On appeal, he challenges (1) the trial court's denial of a motion to suppress, (2) references before the jury that he told the police they did not have permission to search his vehicle, (3) the denial of a jury instruction, and (4) the imposition of certain court costs. For the reasons that follow, we affirm.

MOTION TO SUPPRESS

A specialized narcotics unit arrested Appellant after they discovered methamphetamine in his vehicle following an alert by a drug-sniffing dog. He filed a pretrial motion to suppress any evidence collected in the search of his vehicle. The motion alleged that the police lacked a warrant, probable cause, or reasonable suspicion to detain him. The circumstances surrounding the search are at the core of this case. Testimony from the motion to suppress hearing sharply conflicted. We recount the State's version first.

The State's Claim

On the evening of December 9, 2014, Officers Michael Putnam and Cole Dickerson were working with the "Zero Tolerance" unit of the Fort Worth Police Department.¹ The unit patrols "high crime" areas, defined to mean those with a high incidence of assaults, robberies, burglaries, and narcotics activity. One such area is a strip center that contained the "Vapor City" game room. The game room had several slot machines and was the subject of a separate investigation (and sometime subsequent to the arrest here, the City shut it down). A liquor store occupied the only other space in the strip center and was adjacent to the game room. The police had noticed "a lot" of narcotics violations in the strip center parking lot, as well as stolen vehicles, and persons with felony warrants. At the suppression hearing, the State admitted into evidence crime reports generally supporting its characterization of the strip center as a high crime area.

Officers Putnam and Dickerson arrived at the parking lot around ten o'clock that night in an unmarked vehicle. Both officers were dressed in black uniforms with the word "police" in yellow lettering on both the front and back of their vests. Putnam recalled that the lot was completely dark. Several cars were parked in front of the game room and a single pickup truck was on the other side of the parking lot, in front of the liquor store. The liquor store was closed at that hour. Officer Putnam was initially suspicious of the vehicle for two reasons: from experience, he knew that drugs were sold at that location from vehicles parked away from the game room's front door, and second, a vehicle parked in front of the closed liquor store might be that of aburglar.²

Both officers testified that they parked several spaces away and approached the pickup on foot to make a "consensual encounter" with the driver, later identified as Appellant, who was seated in the pickup's driver's side seat. A female passenger was in the front passenger seat at the time. As they approached the vehicle, Officer Dickerson told Putnam that he saw the female reach down as if she were putting something in between the seats. Officer Putnam tapped on the driver's side window and identified himself as a police officer. Appellant first cracked the door to speak with Putnam. Officer Putnam started the conversation by generally asking questions like "how are you doing," and "what are you doing here" and "what is your name." Officer Putnam did not recall Appellant's exact response, other than it was not a "straightforward answer." Officer Dickerson at the time was separately talking with the female occupant.

At that point, Officer Putnam believed he had a reasonable suspicion to continue his interaction with Appellant based on: (1) his being in a high crime area and location known for narcotics; (2) it was late at night; (3) Appellant parked in front of a closed business; and (4) his passenger's furtive movement as witnessed by Officer Dickerson.

Officer Putnam then asked Appellant to step out of the truck to talk with him, at which point, Appellant exited the truck, immediately closed the door, and told Putnam "I do not consent to any searches." Putnam replied that he had not requested to search the pickup, but asked if there was anything he needed to be aware of. Appellant responded no. The exchange seemed strange to Officer Putnam, not because Appellant refused consent, but because he immediately got out of his vehicle and started talking about consent before the officers ever made a request to search thevehicle.³ Appellant's demeanor throughout the exchange was nervous and evasive.

Officer Putnam then called a K-9 unit to the scene. The unit arrived seventeen minutes later and the dog alerted on the vehicle. The officers found what later turned out to be 3.722 grams of methamphetamine contained in four plastic bags, all found in a black case in the driver's seat.⁴ They also found a bag containing methamphetamine between the passenger seat and center console. The police then arrested both Appellant and his female passenger.

Appellant's Claim

Appellant presented a diametrically opposing version of events. At the suppression hearing, he testified that the parking lot was completely full at the time, and therefore his vehicle was not alone at one end of the parking lot. The two officers did not approach him on foot, but rather three vehicles all pulled up behind him. The unmarked police vehicle actually bumped the rear of his truck. When Appellant got out of his vehicle to see who had hit him, Officer Putnam approached with his gun drawn. Appellant testified that the other officer pulled his female passenger out of the pickup, and started going through the vehicle. It was at that point that Appellant told Putnam they did not have permission to search his vehicle.

Appellant also presented a former employee of the Vapor Room to testify that the parking lot was crowded. The employee testified that the police vehicles blocked Appellant's truck in, and the undercover vehicle tapped Appellant's bumper. Other officers were also present when Putnamand Dickerson first approached Appellant. The employee did not actually witness all these events firsthand, but reviewed security camera video of the parking lot. The normal operation of the security system, however, had recorded over the night in question by the time of the hearing and no video was available.

None of the officers wore bodycams or audio recorders. Either the police vehicles did not have dash-cam units, or the units were not activated.

The Ruling

The trial court denied the motion to suppress. The court analyzed the issue in two parts: (1) were the officers justified at the inception in making an investigatory stop; and (2) were their subsequent actions reasonably related in scope to the circumstances that justified the stop. The court first found the officers had a reason to patrol the strip center, based on the duties assigned to their task force, and the high crime in the area. Once at the location, the trial court explained its rationale for upholding the detention:

Now, when [the officers] spotted Mr. Holmes' vehicle there, and they approached the vehicle, they noticed that Mr. Holmes was acting nervously, suspicious. He gets out of the vehicle, he tells them I'm not going to allow you to look at the -- and go inside my vehicle. Or my person for that matter. And without them even requesting that.

Now, the question of whether or not he was blocked in and whether or not how many officers was there, Mr. Hawkins testified that he saw at least three cars, one on each side and one in the back. Mr. Holmes testified that he was bumped but it didn't leave any marks on his vehicle. But he didn't say he was blocked in.

The reasonable suspicion because of the high crime area and because the way the Defendant asked -- his answers to the questions that were made, made the officers suspicious of criminal activity, they requested that a K-9 unit appear. Testimony is that a K-9 unit did appear within 17 minutes of the stop, which is not an unreasonable amount of time. And after the dog alerted, they actually went in and found these drugs in the vehicle, wherein Mr. Holmes was arrested. His passenger, Melissa Sherman, was also arrested and charged with these offenses.

Based upon this, the Court believes that both parts of what I need to look at in order to make a determination about this motion has been satisfied. Officer was justified at the inception, and then his subsequent actions were reasonably related in scopeto circumstances that justified that stop. So based upon that the Court's finding is that these were good reasons for the officers to be there to make the stop, to make the arrest, and as such I' m going to deny the Motion to Suppress. That's going to be the order [of] the Court.

Both Appellant and the State treat the above quoted statement from the bench as the trial court's findings of fact and conclusion of law. Appellant's first issue claims the trial court erred in failing to grant the motion to suppress.

Standard of Review

We review a trial court's ruling on a motion to suppress for an abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). That discretion is tested under a bifurcated standard of review as articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--El Paso 2002, pet. ref'd). Under that bifurcated standard, we give almost total deference to the trial court's resolution of questions of historical fact,...