Lopez v. State, 07-05-0243-CR.

• Decision Date: 14 February 2006
• Docket Number: No. 07-05-0243-CR.,07-05-0243-CR.
• Parties: Arturo LOPEZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

223 S.W.3d 408

Arturo LOPEZ, Appellant v. The STATE of Texas, Appellee.

No. 07-05-0243-CR.

Court of Appeals of Texas, Amarillo.

February 14, 2006.

Scott H. Palmer, Dallas, for appellant.

Tanya S. Dohoney, Asst. Crim. Dist. Atty., Fort Worth, for State.

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

OPINION

DON H. REAVIS, Justice.

After the trial court denied his motion to suppress, appellant Arturo Lopez pled guilty to, and was convicted of, possession of cocaine with intent to deliver. After pleading true to the enhancement paragraph, he was sentenced to 15 years confinement. Presenting a sole issue, appellant asserts the trial court erred in overruling his motion to suppress evidence based on lack of probable cause to search the locked gas compartment of his vehicle. We affirm.

The testimony presented at the motion to suppress hearing established the following facts. While on patrol one evening, Officer Jeffrey Coffey stopped appellant because his car displayed blue turn signals in violation of the Transportation Code. See Tex. Transp. Code Ann. § 547.324(d) (Vernon 1999). Appellant was accompanied by an adult passenger in the front seat and a young child in the back seat. Coffey approached the driver's side and asked appellant for his driver's license and insurance card; he had neither. A check revealed no outstanding warrants and that appellant possessed a Texas identification card, but no Texas driver's license. While in the process of issuing a citation to appellant, Officer Coffey approached the passenger's side of the car to determine if the passenger could take custody of the vehicle once the stop was completed.

Initially, the passenger gave a false name. He quickly admitted doing so and was arrested for failure to identify himself and placed in the back of the patrol car. Appellant and the child in the back seat were asked to exit the car to conduct a search incident to the passenger's arrest. Coffey began with a search of the driver's side and, as he proceeded around the rear of the vehicle to the passenger's side, observed a "tiny bit" of a plastic baggie in the crease around the gas cap compartment located on the rear driver's side.

Believing he had probable cause, Coffey entered the car and pulled the release lever to disengage the gas cap cover without appellant's consent. He observed but did not remove at that time the plastic baggie containing what appeared to be a white powder located inside the gas compartment. The record at the suppression hearing does not demonstrate when, or under what circumstances, the baggie was seized.

Presenting a sole issue, appellant challenges the denial of his motion to suppress asserting a lack of probable cause to search the locked gas compartment. He maintains the search was constitutionally invalid as either a search incident to the passenger's arrest or a search pursuant to the automobile exception. The State contends the seizure of the narcotics was legitimate under both the automobile exception and the plain view doctrine. The discrete question presented for our review is whether the officer had probable cause to open the locked gas cap compartment without consent or a search warrant.

A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Cr.App.2002). In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the court's determination of historical facts when supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997). However, for mixed questions of law and fact, which do not fall within this category, an appellate court may conduct a de novo review of the trial court's ruling. Hernandez v. State, 957 S.W.2d 851, 852 (Tex.Cr.App.1998) (citing Guzman, 955 S.W.2d at 89). In other words de novo review applies when the facts are undisputed. State v. Jennings, 958 S.W.2d 930, 932 (Tex.App.-Amarillo 1997, no pet.).

When, as here, the trial court failed to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Cr.App.2000). At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Cr.App.2000). Additionally, questions involving reasonable suspicion and probable cause are reviewed de novo. See Loesch v. State, 958 S.W.2d 830, 832 (Tex.Cr.App.1997). Finally, if the trial court's decision is correct on any theory of law applicable to the case, it will be sustained. Ross, 32 S.W.3d at 855-56.

A warrantless search is per se unreasonable subject only to a few specifically established and well-delineated exceptions. Horton v. California, 496 U.S. 128, 133, n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112, 110 S.Ct. 2301 (1990). A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his person or property. Id., (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)).

Search Incident to Arrest

A search incident to arrest is limited to an arrestee's person and the area in his immediate control to prevent him from obtaining possession of a weapon or concealing or destroying evidence. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In New York v. Belton, 453 U.S. 454, 459-60, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), to establish a workable rule regarding the definition of the area within an arrestee's immediate control, the Court held that when an officer makes a lawful custodial arrest of the occupant of a vehicle, he may, contemporaneously incident to that arrest, search the passenger compartment of the vehicle. See also State v. Ballard, 987 S.W.2d 889, 892 (Tex.Cr.App.1999). A lawful search also includes the contents of containers found within the passenger compartment of the vehicle. Belton, 453 U.S. at 460-61, 101 S.Ct. 2860.

According to Coffey's testimony on direct examination, after the passenger was arrested and placed in the patrol car, he began his search of the interior of the car on the driver's side. During cross-examination, Coffey indicated an intent to search the passenger's immediate wingspan. No incriminating evidence was discovered in the interior of the car. It was after this search that Coffey noticed the plastic baggie in the crease of the gas cap compartment and investigated further to discover the cocaine. Coffey testified the gas cap compartment was located outside the vehicle on the rear driver's side. Concluding that Chimel and Belton do not validate the search of the gas cap compartment, we next consider the automobile exception to warrantless searches.

Automobile exception

In 1925, the Supreme Court established the automobile exception to the Fourth Amendment's warrant requirement in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It held that a warrantless search of a vehicle stopped by officers with probable cause to believe the vehicle contained contraband did not run afoul of the Fourth Amendment. Carroll distinguished a search of dwellings or structures with a search of movable vessels and rationalized that mobility justified a warrantless search. Id. at 151, 45 S.Ct. 280; see also Powell v. State, 898 S.W.2d 821, 827 (Tex.Cr.App.1994). The Court then addressed under what circumstances a warrantless search was reasonable and concluded probable cause was necessary. Carroll, 267 U.S. at 156, 45 S.Ct. 280.

Then, in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Court found no distinction, given probable cause, between carrying out an immediate search of a vehicle without a warrant or seizing and holding the vehicle and conducting a delayed search. Id. at 52, 90 S.Ct. 1975. In Chambers, witnesses to an armed robbery described the vehicle, its four occupants, and some of their clothing to officers. Id. at 44, 90 S.Ct. 1975. Shortly after details were broadcast over the police radio, officers stopped a vehicle answering the description. The occupants were arrested and the vehicle was driven to the police station and thoroughly searched. Id. Evidence material to the robbery was discovered and introduced at trial. Id. at 45, 90 S.Ct. 1975.

The Supreme Court reasoned that probable cause is determined at the time of the stop and if an immediate search is valid, so too is a later search. Id. at 51-52, 90 S.Ct. 1975. The justification to conduct a warrantless search does not vanish once the vehicle is immobilized. See Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982).

In 1982, the Supreme Court clarified the scope of a Carroll automobile search and held that officers may conduct a search of a vehicle that is as thorough as a magistrate could authorize in a warrant describing the place to be searched. See United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Ross was stopped by officers based on a reliable informant's tip that he was selling narcotics stored in the trunk of his car. Id. at 801, 102 S.Ct. 2157. A warrantless search of the interior of the car revealed a bullet in the front seat and a pistol in the glove compartment. Ross was arrested and handcuffed. Thereafter, a detective took his keys and opened the trunk of the car to reveal a closed brown paper bag which the detective opened to discover a number of bags containing white powder, later determined to be heroin. He replaced the bag, closed the trunk, and drove the car to the police station. In addition to the brown paper bag, a thorough search revealed a red zippered leather pouch which contained $3,200 in cash. Id.

The Court explained that the scope of a warrantless search...