Josey v. State

• Decision Date: 22 October 1998
• Docket Number: No. 14-95-01332-CR,14-95-01332-CR
• Citation: 981 S.W.2d 831
• Parties: Edward JOSEY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 831

981 S.W.2d 831

Edward JOSEY, Appellant, v. The STATE of Texas, Appellee.

No. 14-95-01332-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Oct. 22, 1998.

Stanley G. Schneider, Houston, for appellant.

Rikke Burke Graber, Houston, for appellee.

Before FOWLER, LEE, and AMIDEI, JJ.

OPINION

FOWLER, Justice.

Appellant, Edward Josey, entered a plea of guilty to the offense of possession of a controlled substance, ie., cocaine. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (Vernon Supp.1998). In accordance with an agreed punishment recommendation, the trial court assessed a $2,500 fine and seven years confinement in the Institutional Division of the Texas Department of Criminal Justice but it probated the sentence. In ten points of error, appellant claims the trial court improperly denied his motion to suppress. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

While on patrol, two officers of the Houston Police Department's Southeast Gang Task Force observed two vehicles parked in the middle of the street. The driver of one vehicle was standing in the street talking to the occupants of the other car. The officers pulled up behind one of the cars and turned on their overhead lights. When the driver of the second car started to drive away, one officer ordered the driver to stop and return to the scene. Because the traffic stop involved two cars and four people, the officers called for backup assistance.

Officer Douglas Griffith approached one car and asked the driver, Geron Randall, for his driver's license and proof of insurance. Randall had neither, therefore, Griffith placed him under arrest for traffic violations. Griffith asked appellant, who was sitting in the passenger seat of the vehicle, for identification. Appellant gave him a Texas identification card, but not a driver's license. Griffith ran a computer check on appellant and discovered appellant had a valid Texas driver's license. In the meantime, Griffith's partner called a wrecker to impound the vehicle. Impoundment was necessary because the driver was under arrest. Officers could not release the vehicle to appellant because appellant did not have his driver's license with him.

Before giving the keys to the wrecker driver, Griffith and a backup officer conducted an inventory search of the vehicle. During the search, Griffith found a large plastic bag containing $7,000 in cash in the car's trunk. The money had been separated in $1,000 bundles, and each bundle was folded over and secured with a rubber band. Because, in Griffith's experience, money used in narcotics transaction is often bundled this way, Griffith suspected narcotics might be present in the vehicle. Griffith placed appellant in custody while he tried to determine who owned the car. He asked appellant to get out of the car, and patted him down. In the meantime, a crowd of five to ten people gathered at the corner of a nearby intersection. Concerned about the officers' safety and maintaining the status quo, Griffith handcuffed appellant and placed him on the other side of the patrol car.

Griffith then continued to search the vehicle. In the passenger-side glove compartment, Griffith found the title to the automobile, which named appellant as the owner. After appellant confirmed his ownership of the car, the officers contacted the narcotics division to determine what to do next. On the advice of the narcotics dog handler, one of the officers drove appellant's vehicle to the Southeast Command Station, and the other officers transported appellant and the other men to the station.

Once at the station, the narcotics dog alerted officers to the odor of drugs on the money. The dog also alerted officers to the odor of drugs in the center of the dashboard of appellant's car. Suspecting the presence of narcotics inside the radio compartment, the officers removed the radio and found a loaded .40 caliber Glock pistol and a small amount of cocaine and marijuana. Appellant admitted to Griffith that he owned the gun.

Appellant was arrested and indicted for possession of cocaine. Before trial, appellant filed a motion to suppress evidence obtained during the search of his vehicle. After hearing evidence and reading the parties' memoranda of law, the trial court denied appellant's motion to suppress. The trial court then accepted appellant's plea of guilty and assessed punishment, and appellant perfected this appeal.

II. ILLEGAL STOP AND ARREST

In his first four points of error, appellant argues the trial court improperly denied his motion to suppress because his detention and arrest violate the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Texas Constitution. Specifically, appellant contends the officers did not have a reasonable articulable suspicion or probable cause to stop his car and did not have probable cause to arrest him for any violation of the law.

Historically, a trial court's decision on a motion to suppress has been reviewed under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). As a general rule, an appellate court should give almost total deference to a trial court's determination of historical facts supported by the record, 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). An appellate court should also give the same amount of deference to the trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. See id. An appellate court may review de novo "mixed questions of law and fact" not falling within this category. See id. If the trial court does not file findings of fact and conclusions of law, an appellate court presumes the trial court made findings necessary to support its ruling so long as those implied findings are supported by the record. See State v. Simmang, 945 S.W.2d 219, 221-22 (Tex.App.--San Antonio 1997, no pet.).

A. REASONABLENESS OF INITIAL STOP

In his first and second points of error, appellant contends the State violated his rights under the state and federal constitutions because the officers had neither reasonable suspicion nor probable cause to believe he had committed a traffic offense or any other crime in their presence, justifying an investigatory detention. ¹ At the suppression hearing, the arresting officers testified they observed appellant's car parked along side a second vehicle on a narrow two-lane road, completely blocking the road to other traffic. Believing the parked cars created a safety hazard, the officers initiated an investigative stop of the vehicles.

A violation of a traffic law is sufficient authority for an officer to stop a vehicle. See Armitage v. State, 637 S.W.2d 936, 939 (Tex.Crim.App.1982); Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.--Houston [14th Dist.] 1991, pet. ref'd) (holding "[a]fter an officer has validly stopped a vehicle for a traffic offense, the officer may conduct a brief investigative detention of the occupants of the vehicle, based upon his observations of suspicious activity by the occupants of the vehicle before and after the stop, combined with his knowledge of the area and the frequency of crime in the area, and the reasonable inferences to be drawn from the behavior of the occupants of the vehicle"). A routine traffic stop is a temporary investigative detention. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Moreover, an officer's observation of a traffic violation is probable cause to arrest the driver. See Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App.1986). In this case, the record establishes that the driver of appellant's car violated section 95(a)1a of article 6701d of the Texas Revised Civil Statutes, which prohibits a person from stopping, standing or parking a vehicle "[o]n the roadway side of any vehicle stopped or parked at the edge or curb of a street." TEX.REV.CIV. STAT. ANN. art. 6701d, § 95(a)(1)(a) (Vernon 1977); see also § 153 (authorizing any peace officer to arrest without warrant any person found committing a violation of any provision of article 6701d). Therefore, the officers had reasonable suspicion to stop appellant's car and probable cause to arrest its driver.

Appellant, nevertheless, maintains the officers did not have reasonable suspicion to detain him for investigatory purposes. An investigative stop of an automobile results in the seizure of both the driver and the passenger. See Wright v. State, 959 S.W.2d 355, 356 (Tex.App.--Austin 1998, pet. filed) (discussing passenger's standing to complain of admissibility of evidence where initial stop was unlawful). Moreover, a passenger in an automobile is subject to a temporary investigative detention in the same manner as a pedestrian. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.), cert. denied, --- U.S. ----, 118 S.Ct. 236, 139 L.Ed.2d 167 (1997). Because appellant was a passenger in an automobile lawfully detained for a traffic violation, the officers were justified in detaining appellant for investigative purposes. Accordingly, we overrule appellant's first and second points of error.

B. REASONABLENESS OF SEIZURE

In his third and fourth points of error, appellant contends the officers' investigative detention exceeded its constitutional parameters, resulting in an illegal warrantless arrest. Both state and federal courts recognize three categories of interaction between police and citizens: encounters, investigative detentions, and arrests. See e.g., Florida v. Royer, 460 U.S. 491, 497-502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Francis v. State, 896 S.W.2d 406, 408 (Tex.App.--Houston [1st Dist.] 1995), pet. dism'd improvidently granted, 922 S.W.2d 176 (Tex.Crim.App.1996). All three...