Morrow v. State

• Decision Date: 31 August 1988
• Docket Number: No. 01-87-00677-CR,01-87-00677-CR
• Citation: 757 S.W.2d 484
• Parties: Marc Mauricio MORROW, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 484

757 S.W.2d 484

Marc Mauricio MORROW, Appellant, v. The STATE of Texas, Appellee.

No. 01-87-00677-CR.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 31, 1988.

Stanley Schneider, Houston, for appellant.

John B. Holmes, Dist. Atty., Harris County, for appellee.

Before SAM BASS, LEVY and STEPHANOW, JJ.

OPINION

LEVY, Justice.

A jury found the appellant guilty of possession of cocaine with intent to deliver, and assessed punishment at imprisonment for 25 years and a fine of $250,000.

The record reflects that on the morning of April 12, 1987, appellant arrived at Houston Intercontinental Airport on a Delta Airlines flight after taking Eastern Airlines from Miami to Dallas. The appellant went to the Delta baggage office around 8:30 in the morning and reported to Delta employee Fred Ortiz that "his bag did not come in." Appellant was requested to fill out information for a baggage tracer, and he gave Ortiz the name "M. Morrow" but did not give an address or phone number, saying he would be "out of pocket." Appellant then made three phone calls to the Delta baggage office between 10:15 a.m. and 10:45 a.m. inquiring whether the suitcase had arrived, even though the agent then on duty, Tom Gower, told the appellant that the suitcase probably would be arriving around 12:20 p.m. Appellant continued to call Delta throughout the morning and on the fourth or fifth call he told Gower "that he would prefer [they] not open the bag," saying it contained "personal valuables." Gower told appellant that bags were not opened unless they lacked name tags, and appellant then told Gower that his suitcase bore a tag with the name "Steve" and an address on Beverly Hills in Houston. Gower, who had worked for Delta for 26 years, regarded it as being unusual for a customer to make so many phone calls about lost baggage and for luggage to be labeled with the name of someone other than the passenger.

Around 11:30 a.m., appellant's suitcase was found at the American Airlines baggage area, and an American agent brought the suitcase to the Delta office. Based on the unusual circumstances, Gower remarked to his supervisor Jim Watson, "I don't know if we've got guns, dope, or explosives or something, but something is in the bag that he is concerned about." Between 11:30 a.m. and noon, Watson opened the suitcase, which was not locked. Watson testified that his primary purpose in opening the bag was to identify the bag to the tracer and identify the contents in the bag to facilitate its return to its proper owner. Inside, Watson and Gower saw plastic containers sandwiched between two towels, along with some athletic clothes. Watson then called Officer T.A. Hoffpauer of the airport detail of the Houston Police Department Narcotics Devision.

When Officer Hoffpauer arrived, he called U.S. Customs agent Paul Meaghers, who brought along "Oliver," a trained narcotics detection dog. Oliver went straight to the open suitcase, ignoring the 20 to 50 other bags in the room. He alerted on the bag and even grabbed and held onto one of the plastic packages, which then had to be removed from his mouth by Officer Meaghers. The suitcase was thereafter closed.

Later, appellant once more called Gower and was told that the bag had been found. About an hour later appellant appeared at the Delta baggage office and claimed the bag. He left with the suitcase but was stopped soon thereafter by the police officers who detained him and, after obtaining his consent, searched his bag. Following the search, appellant was arrested. The plastic containers from the suitcase were found to contain 3,013 grams of 73 percent pure cocaine, which is more than 100 ounces, or over six and a half pounds.

Appellant's first and 13th points of error will be considered together.

In his first point of error, appellant contends that the evidence was insufficient to support the jury's verdict that appellant possessed a controlled substance with intent to deliver because the State presented no evidence of appellant's intent to deliver a controlled substance.

Where a sufficiency of the evidence point is raised, the appellate court views the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the elements of the offense beyond a reasonable doubt. This is true whether the State's proof is by direct or circumstantial evidence. Where a reasonable hypothesis other than the guilt of the defendant remains after such review, proof of guilt is not established to the necessary degree. Intent may be proved by circumstantial evidence.

Pitts v. State, 731 S.W.2d 687, 691 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd) (cites omitted).

In his 13th point of error, appellant urges that the trial court erred in overruling his objection to Houston Police Officer Henry Lewis's testimony concerning the use of cocaine and narcotic dealing generally as being irrelevant.

The record reflects that appellant had approximately 3,013 grams, or about 6.6 pounds, of cocaine in his possession at the time of his arrest.

Houston Police Officer Henry Lewis testified as an expert witness that cocaine typically is consumed by its users in small doses. Lewis said a user of cocaine typically buys one or two grams of it at a time, with the minimum price being around $75. Lewis demonstrated what a gram of powder is by displaying a one-gram packet of "Sweet 'N Lo" and explained that a cocaine user could get one to five "rails" of cocaine out of a gram. A rail is inhaled, using a straw. In the alternative, Lewis explained, cocaine can be processed into a solid "rock" which can be smoked. This form of cocaine, also called "crack," is commonly sold in "rocks" weighing a quarter of a gram, and costing about $25. Lewis opined that it would be impossible for a person to have 3,013 grams of cocaine, or even 400 grams, for individual use; it would take "years" to use it up, and the human body could not "take that kind of abuse."

Evidence of a large quantity of cocaine seized (in the amount of 1,025 grams), coupled with a police officer's expert witness testimony as to the amount of cocaine a user would normally and customarily possess for personal use, is sufficient to show possession with intent to deliver. Pitts, 731 S.W.2d at 692.

In the case at bar, appellant possessed almost three times as much cocaine as the defendant possessed in Pitts. The testimony of Officer Lewis was similar to the police officer's testimony in Pitts and was highly relevant to show that the quantity possessed by appellant far exceeded any amount he would normally possess for his own personal use.

Points of error one and 13 are overruled.

In points of error two, three, and four, appellant asserts that the trial court erred in failing to suppress the admission of the cocaine into evidence because its seizure stemmed from the illegal search of appellant's suitcase. Appellant urges that the opening and search of his suitcase by Delta Airlines personnel violated his right to privacy under the Fourth Amendment of the United States Constitution and under article I, § 9 of the Texas Constitution, and that the eventually seized evidence was thus inadmissible under Tex.Code Crim.P.Ann. art. 38.23 (Vernon 1979).

Generally, the exclusionary rule does not apply to the search and seizure of property by a private individual where there is no governmental involvement. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The courts have uniformly established a two-prong analysis to determine whether a search is "private." First, when a search is conducted by a private individual but at the government's initiation and guidance, it is not a private search. United States v. Newton, 510 F.2d 1149 (7th Cir.1975); Corngold v. United States, 367 F.2d 1 (9th Cir.1966). Second, when a search is not clearly initiated by the government, it must be judged according to the nature and degree of the governmental participation in the functional, not merely physical, search process. Appellant argues that the Delta Airlines employees involved in the opening and search of his suitcase were actually acting as agents on behalf of the federal government due to the government's establishment and regulation of security measures to be followed by the airline industry.

In Chaires v. State, 480 S.W.2d 196 (Tex.Crim.App.1972), the Court of Criminal Appeals held that an airline agent's detection of the odor of marijuana emanating from luggage, and the airline employee's verification thereof by opening the baggage and thereafter notifying the police, presented the State with probable cause for a warrantless arrest of the owner of the bag and a warrantless seizure of contraband aboard the aircraft. The court noted that Braniff Airlines agents, acting on their own initiative, suspected the presence of marijuana and made a discovery inspection that sustained their initial suspicions, after which they alerted the police. The Court of Criminal Appeals concluded that "the police did not open, induce the opening of, or participate in the opening of the appellant's baggage necessary to bring him within the Corngold rule." Id. at 198; see Corngold, 367 F.2d at 1. The Chaires court concluded that the Braniff agents were acting as private parties and were not acting in the role of agents for the police.

Appellant asserts that Chaires is of no precedential value in the case at bar because in Chaires the record failed to show any affirmative link between law enforcement and the airlines based upon any government regulations. Appellant argues that here he established the affirmative link by showing that the federal government mandates certain security regulations and requirements that all airlines must adhere to. We conclude, however, that appellant failed to show any affirmative link between these regulations and the airline's handling of domestic inbound "lost" luggage, the category concerned in the case...