Marcopoulos v. State

• Decision Date: 20 December 2017
• Docket Number: NO. PD-0931-16,PD-0931-16
• Parties: Andreas MARCOPOULOS, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

538 S.W.3d 596

Andreas MARCOPOULOS, Appellant

v.The STATE of Texas

NO. PD-0931-16

Court of Criminal Appeals of Texas.

Delivered: December 20, 2017

Carmen Roe, Carmen Roe Law Firm, Robert Fickman, Houston, TX, for Appellant.

Kimberly Aperauch Stelter, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for the State.

OPINION

Keasler, J., delivered the opinion of the Court, in which Hervey, Alcala, Richardson, Newell, and Walker, JJ., joined.

Andreas Marcopoulos walked into a bar known for narcotics activity, stayed for three to five minutes, and then left. A Houston police officer subsequently pulled up behind Marcopoulos's vehicle and saw Marcopoulos make "furtive gestures" around the center console. When Marcopoulos committed a traffic violation, the officer stopped him, searched his vehicle, and found cocaine. The court of appeals concluded that this search was justified under the automobile exception. We disagree and will reverse.

I. FACTS AND PROCEDURAL POSTURE

On September 10, 2014, undercover Houston Police Officer J. Oliver was surveilling Diddy's Sports Bar ("Diddy's"), an establishment in Houston, Texas with a well-documented history of narcotics sales. Officer Oliver saw Marcopoulos enter the bar, leave within three to five minutes, and drive away. As Marcopoulos left, the officer followed him and observed him change lanes without signaling. Hoping to maintain his undercover status, Officer Oliver radioed for a uniformed officer to perform a traffic stop.

Officer T. Villa received this request and, upon stopping his marked police car behind Marcopoulos, noticed him make "furtive gestures" around the center console of his vehicle. Officer Oliver, driving next to Marcopoulos in an unmarked car, also observed these gestures. Officer Villa then activated his emergency lights, stopped Marcopoulos, and immediately arrested him. Villa searched Marcopoulos's vehicle and found two "baggies" of cocaine: one inside the center console and another between the center console and the passenger seat. Villa subsequently searched Marcopoulos's personal effects and found a third "baggie" of cocaine in his wallet.

Marcopoulos filed a pre-trial motion to suppress the evidence uncovered by the search, but his motion was denied. He pleaded guilty, reserving his right to appeal the trial court's ruling, and was placed on three years' deferred adjudication probation.

Before the First Court of Appeals, Marcopoulos claimed that the trial court abused its discretion by denying his motion to suppress.¹ Marcopoulos argued that the search of his vehicle was unreasonable because it did not qualify as an inventory search and it exceeded the scope of his arrest.² The State conversely argued that an inventory search was appropriate once Marcopoulos had been arrested and that the "search incident to arrest" issue was irrelevant.³

A one-justice plurality of the court of appeals declined to reach the merits of these claims, instead upholding the search under the automobile exception to the Fourth Amendment warrant requirement.⁴ The court held that, pursuant to this exception, Officer Villa had probable cause to search the vehicle due to Marcopoulos's "repeated history of going to a place ... known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him."⁵ In dissent, Justice Keyes reasoned that the facts did not support a probable cause finding because the search was based on "furtive gestures[ ] alone," without any corroborating evidence.⁶

We granted Marcopoulos's petition for discretionary review solely to address the following question: Did probable cause exist, on these facts, to search Marcopoulos's vehicle under the automobile exception to the warrant requirement?

II. LAW

Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within a warrant exception.⁷ The automobile exception allows for the warrantless search of an automobile "if it is readily mobile and there is probable cause to believe that it contains contraband."⁸ As the court of appeals noted, there is no question in this case that Marcopoulos's vehicle was readily mobile. "Accordingly, the only ... inquiry" relevant to this petition "is whether the officers had probable cause to believe the truck contained contraband."⁹

Probable cause exists where the facts and circumstances known to law enforcement officers are "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed."¹⁰ For probable cause to exist, there must be "a ‘fair probability’ of finding inculpatory evidence at the location being searched."¹¹ A reviewing court should measure this "probabilit [y]" by "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."¹² And it must take into account "the totality of the circumstances" known to the officer, eschewing a "divide-and-conquer" or "piecemeal" approach.¹³

When reviewing a trial judge's ruling on a motion to suppress, we "must view the evidence in the light most favorable to the trial court's ruling."¹⁴ We will afford "almost total deference" to a trial court's express or implied "determination of historical facts" and review de novo "the court's application of the law of search and seizure" to those facts.¹⁵

III. ANALYSIS

We have repeatedly held that furtive gestures alone are not a sufficient basis for probable cause.¹⁶ While "[f]urtive movements are valid indicia of mens rea ," they must be "coupled with reliable information or other suspicious circumstances relating the suspect to the evidence of crime" to constitute probable cause.¹⁷ Consequently, the focus of our analysis is whether Marcopoulos's furtive gestures, when considered alongside his brief appearance at a known narcotics establishment, give rise to probable cause. For the following reasons, we conclude that they do not.

A good starting point for this discussion is Sibron v. New York , a United States Supreme Court case which explored reasonable searches in the drug context.¹⁸ In Sibron , a police officer surveilled the defendant for eight hours, observing conversations between him and several other people—all of whom the officer knew to be narcotics addicts.¹⁹ The officer did not overhear the contents of these conversations; observe any transactions; or see, smell, or otherwise detect the presence of drugs.²⁰ The uniformed officer eventually approached Sibron, said, "You know what I'm after," and reached into Sibron's pocket, confiscating several envelopes of heroin.²¹

The court ruled the search unreasonable because, inter alia , Sibron's observed behavior did not give rise to probable cause to conduct an arrest for a drug offense.²² The court emphasized that, although Sibron had affiliated with known addicts, "[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security."²³ The court opined that probable cause required something more—perhaps knowledge of the contents of Sibron's conversations or the observation of a transaction.²⁴ When the officer approached Sibron, however, "[n]othing resembling probable cause existed."²⁵

We recognize that Sibron involved probable cause to arrest, rather than probable cause to conduct a search.²⁶ Sibron also did not implicate the automobile exception; at the time he was searched, Sibron was standing just outside of a restaurant.²⁷ Nevertheless, the fact that Marcopoulos was searched in connection with, rather than outright arrested for, a drug offense does not lessen the requirements of probable cause.²⁸ The same goes for the fact that his vehicle, rather than his person, was searched, as the automobile exception neither reduces nor eliminates the probable cause standard.²⁹

We interpret Sibron to severely limit the probative value of Marcopoulos's presence at Diddy's. As in Sibron , the officer in this case was not privy to Marcopoulos's business within the bar. Though Officer Oliver knew Diddy's to be a hotbed of narcotics activity, this activity was never even remotely linked to Marcopoulos. Oliver did not witness Marcopoulos initiate a transaction; engage anyone in the pursuit of drugs; or possess any containers, cash, or other paraphernalia which would suggest that he intended to buy or had recently bought contraband. Oliver testified that officers had "seen [Marcopoulos] at the location before," and the parties spend much of their briefing arguing whether the trial court could reasonably infer from this testimony that Marcopoulos had "been there multiple times,"³⁰ or only "one prior occasion."³¹ But even assuming Marcopoulos had been seen at Diddy's "multiple times," this hardly leads to the conclusion that, as suggested by the State, Oliver knew Marcopoulos to be a repeat narcotics customer.³²

While we do not discount the suspiciousness of Marcopoulos's unusually brief appearance within the bar, this behavior does not "warrant a man of reasonable caution in the belief that an offense has been or is being committed."³³ There remains, then, a discernible gap between the reasonable suspicion aroused by Marcopoulos's brief presence at Diddy's and the proof necessary to establish probable cause.³⁴ We also hold, for the following reasons and by the slightest of margins, that this gap was not bridged by Marcopoulos's furtive gestures.

We have repeatedly held that furtive gestures must be coupled with "reliable information or other suspicious circumstances relating the suspect to the evidence of crime" to establish probable cause.³⁵ Determining the nature of "reliable information" or "other suspicious circumstances" is a fact-driven inquiry that does not lend itself to bright-line rules.³⁶ We look to prior, analogous cases for guidance.

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