Miller v. State

• Decision Date: 14 August 1991
• Docket Number: 3-90-166-CR,Nos. 3-90-165-C,s. 3-90-165-C
• Citation: 815 S.W.2d 805
• Parties: Billy Hugh MILLER, Jr., Appellant, v. The STATE of Texas, Appellee. Craig Allen GREGORY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 805

815 S.W.2d 805

Billy Hugh MILLER, Jr., Appellant, v. The STATE of Texas, Appellee.

Craig Allen GREGORY, Appellant, v. The STATE of Texas, Appellee.

Nos. 3-90-165-CR, 3-90-166-CR.

Court of Appeals of Texas,

Austin.

Aug. 14, 1991.

Rehearing Overruled in No. 3-90-165-CR Sept. 11, 1991.

Cynthia A. Stewart, Jackson, Miss., for Billy Hugh Miller, Jr.

Jim Brookshire, Georgetown, for Craig Allen Gregory.

Sally Ray, Asst. Dist. Atty., Georgetown, for the State.

Before CARROLL, C.J., and SMITH, J., and DAVIS, J. ^* (Retired, Sitting by Assignment).

DAVIS, Retired Justice.

Appellants entered negotiated pleas of guilty before the court to the offense of possessing a usable quantity (more than 5 pounds) of marihuana. See Tex. Health & Safety Code § 481.121(b)(4) (1991). Punishment was assessed for each of the appellants at fifteen years' confinement and a $5,000 fine. Appellants challenge only the trial court's denial of their motions to suppress evidence. See Tex.R.App.P.Ann. 40(b)(1) (Pamph.1991) (regarding appeal of nonjurisdictional matters when judgment entered on plea).

In his sole point of error, appellant Miller asserts the trial court erred in overruling his motion to suppress evidence seized following his arrest. Appellant Gregory asserts five points of error, contending the trial court erred in overruling his motion to suppress because: (1) he had a reasonable expectation of privacy in the vehicle in which the evidence was discovered; (2) the search was the result of an illegal detention; (3) the search was the result of an illegal, warrantless arrest; (4) the State failed to show the warrantless arrest was conducted under circumstances that made procuring a warrant impractical; and (5) the search was not conducted under exigent circumstances that made it impractical to secure a warrant.

The events that resulted in the arrest of appellants and the search of their vehicle began with a telephone call on Friday, November 3, 1989, to Texas Department of Public Safety (D.P.S.) Sergeant Robert Nestoroff from an employee at Air Center II, a "fixed base rental agency" in Austin. The employee related to Nestoroff that he was suspicious of Miller because he had come from out of state and because he claimed to have a given amount of flying time, but could not produce a current log book. Miller was advised that without an updated log book, an instructor would have to check him out in an aircraft. Air Center II employees were suspicious also because Miller would not provide a local telephone number, but gave a digital pager number, and because he paid cash for his aircraft rental.

Sergeant Nestoroff, a licensed pilot, testified that he had been actively engaged in investigating the air transportation of controlled substances for approximately fourteen years and had lectured extensively throughout this country on aircraft smuggling operations. Nestoroff detailed a number of awards he had received for his work in this field. He related that he had cooperated with other agencies on all levels in investigating air smuggling of controlled substances and had maintained contact with aircraft rental agencies that furnished him with information concerning possible narcotics operations.

The Air Center II employee advised Nestoroff that Miller stated he was staying at a local trailer park, "but currently he was staying at the Crest Hotel." The employee provided Nestoroff with Miller's hotel room number. A hotel employee advised Nestoroff that the room was rented to an Ed Sanders who had given an Atlanta, Georgia address and a company name of Sky Dog, Incorporated. The hotel employee furnished Nestoroff with a list of telephone calls that had been made from the room. The list reflected calls to aircraft rental agencies in Lockhart and Georgetown, two calls to Mississippi, and a single call to Southwest Airlines in San Antonio.

Nestoroff contacted Icon Aviation in Georgetown, one of the aircraft rental agencies called from the hotel room. An Icon employee reported that Miller had rented an aircraft to go to Brandon, Mississippi. A call to the Mississippi Bureau of Narcotics revealed that Miller had been arrested in Louisiana in January 1989 with approximately $36,000 in cash and was under "current active investigation" for narcotics trafficking by the Drug Enforcement Administration (D.E.A.). The agent at the Mississippi bureau further reported that the D.E.A. had a reliable confidential informant who had reported that Miller was involved in the air transportation of marihuana from Texas to Mississippi.

On Sunday, November 5, 1989, an Icon Aviation employee advised Nestoroff that Miller had told Icon he would have the aircraft back by 1:00 p.m. as scheduled in the lease, but that he wanted to rent the aircraft to return to Brandon, Mississippi the following day.

Nestoroff had previously contacted El Paso Intelligence Center (E.P.I.C.), an agency with aircraft tracking capability, about monitoring Miller's flight. Mid-morning Sunday, E.P.I.C. advised Nestoroff that the aircraft rented by Miller from Icon Aviation had just landed at the municipal airport in Austin and had taxied to Hughes West, a private facility located on the field.

A Hughes West employee told Nestoroff that two white males deplaned. The men carried soft-sided luggage through the terminal to a vehicle, then one of the men returned to the aircraft and departed. Knowing the aircraft was due back at 1:00 p.m., Nestoroff and other D.P.S. officers, dressed in street clothes, were waiting at Icon Aviation in Georgetown when the plane landed. Miller deplaned and met another man, identified as appellant Gregory, whom the officers had seen arrive in a station wagon with a Georgia license plate. Gregory handed Miller a sum of cash, and Miller returned to the terminal and paid cash for the aircraft rental. Miller gave Icon a receipt, in accordance with reimbursement provisions in the lease agreement, which reflected he had purchased fuel in Harlingen. In response to Icon employees' questions as to why he went to Harlingen rather than Mississippi, Miller told them he had decided to go fishing. Miller did not appear, however, to have any fishing gear with him when he deplaned.

Because Icon employees had earlier advised him that Miller had arranged to rent an aircraft the following day, Nestoroff expected Miller and Gregory to leave the airport in the station wagon driven by Gregory. Instead, Miller and Gregory proceeded to Pilot's Choice Aviation, another aircraft rental agency at the Georgetown airport, and one of the agencies called from Miller's room at the Crest Hotel. Nestoroff had previously learned from Pilot's Choice employees that a "Butch" Miller had inquired about renting an aircraft.

While Miller and Gregory were at Pilot's Choice, Nestoroff contacted one of the rental agency's employees, who stated that Miller wanted to rent an aircraft to fly to Mississippi that day. Pilot's Choice did not rent Miller an aircraft, but the agency did allow him to make a check-out flight.

Nestoroff and the other officers watched Miller and Gregory take off on their check-out flight. While the flight was in progress, the officers looked through the windows of the station wagon driven by Gregory, where they observed soft-sided luggage. The officers did not see any fishing equipment in the station wagon. After their check-out flight, Miller and Gregory departed in the station wagon, with Miller driving. Nestoroff testified that, at this point, he was "reasonably suspicious" that Miller and Gregory were transporting controlled substances.

The appellants proceeded south on Interstate 35 toward Austin. Nestoroff contacted a highway patrol officer and asked him to stop appellants' vehicle. Nestoroff and the other plain-clothed officers arrived after the patrolman stopped the station wagon. When appellants refused to consent to a search, the officers handcuffed them and drove them to the highway patrol station in Georgetown. Nestoroff was unsure whether he needed a warrant to search appellants' vehicle and so he called the district attorney to the station. The district attorney advised the officers that they had probable cause to make a warrantless search. A search of the soft-sided luggage revealed packages of marihuana weighing a total of fifty pounds.

Miller directs his sole point of error to the court's action in overruling his motion to suppress. Since issues are raised under his point of error that incorporate questions in Gregory's points of error, we will evaluate them together. In his five points of error, Gregory asserts that: (1) he had an expectation of privacy in the searched vehicle; (2) the search was the result of his illegal detention; (3) the search was the result of a warrantless arrest without probable cause; (4) the State failed to show that the arrest was made under circumstances that made procuring a warrant impractical; and (5) the search was not conducted under exigent circumstances which made it impractical to secure a warrant.

At the outset, we conclude that appellants were arrested when their vehicle was stopped on Interstate 35 and they were surrounded by a highway patrolman and five other D.P.S. officers. The highway patrol car and an unmarked vehicle were stopped behind the station wagon. Nestoroff stopped his vehicle in front of the station wagon and backed it "up close to the [appellants'] vehicle." The officers questioned Gregory at the front of the station wagon and Miller at the back of the vehicle. Nestoroff testified that it was "hard to say" whether appellants were free to leave at this point. Appellants were handcuffed, placed in separate vehicles, and taken to the D.P.S. station in Georgetown. Appellants' vehicle was towed to the D.P.S. station.

While we do not consider any of the ensuing events in determining whether probable cause existed to stop the vehicle, arrest defendants, and search the station wagon, we note...