Pettigrew v. State

• Decision Date: 29 September 1995
• Docket Number: No. 2-93-512-CR,2-93-512-CR
• Parties: Gary Wayne PETTIGREW, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 563

908 S.W.2d 563

Gary Wayne PETTIGREW, Appellant, v. The STATE of Texas, State.

No. 2-93-512-CR.

Court of Appeals of Texas,

Fort Worth.

Sept. 29, 1995.

Rehearing Overruled Nov. 16, 1995.

Jim Shaw, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Betty Marshall and Charles M. Mallin, Assistant Chiefs of Appellate Section, Lynn Allison Bollish, Peter Keim, Terry Barlow, Assistant Criminal District Attorneys, Fort Worth, for Appellee.

Before DAY, LIVINGSTON and DAUPHINOT, JJ., and PATRICE M. BARRON, J., Former Justice (Sitting by Assignment).

OPINION

LIVINGSTON, Justice.

Gary Wayne Pettigrew ("appellant") was found guilty of possession with intent to deliver a controlled substance, amphetamine, and sentenced to fifteen years' imprisonment by the trial court. In two points of error, appellant argues the trial court erred by admitting evidence seized during a warrantless search of appellant's automobile and in refusing to grant his motion for an instructed verdict, based on failure to prove the appellant's possession. We affirm because we find the evidence was seized after a valid arrest and because there was sufficient evidence to link the controlled substance to the appellant.

Officer Glen Cole of the Arlington Police Department was on patrol the night of May 9, 1991. He drove past 3809 Kippers Court in Arlington, Texas, a residence where he had previously made arrests for narcotics violations. Officer Cole saw two unoccupied vehicles in the driveway and wrote down the license plate numbers so he could check them. One of the cars was registered to appellant, for whom there was an outstanding warrant based on a parole violation. ¹ Officer Cole contacted Officer Buchanan for backup.

Appellant was spotted driving his vehicle. The officers followed the car back to the 3809 Kippers Court residence. The officers did not activate their lights or sirens. When the car pulled into the driveway at 3809 Kippers Court, Officers Cole and Buchanan both parked their cars on the street. Appellant got out of the vehicle and began walking quickly to the front door of the house. The officers got out of their cars, yelled appellant's name, drew their weapons, and ordered appellant to the ground. Appellant complied. Officer Cole told appellant, "You're under arrest for a parole violation." Officer Buchanan handcuffed appellant.

Appellant was taken to Officer Buchanan's patrol car, and his pockets were searched. The search yielded $4,212 in cash, a small glass vial containing a white powder residue, three gold rings, a gold watch, one or two knives, keys, and a wallet that contained a Texas inmate card. Appellant was placed in the back seat of Officer Buchanan's patrol car that was still parked on the street.

The officers' versions of the search of appellant's car, what items were visible in the car, and how they came to view the items varied. Officer Cole testified that after he and Officer Buchanan searched appellant and placed appellant in the squad car, he went to where appellant's car was parked. Officer Buchanan explained that he and Officer Cole walked back to the house to talk to the people who had gathered outside after placing appellant in the car. After talking with them, he and Officer Cole "walked over to the [appellant's] car" and "looked inside."

Officer Cole testified that he saw a syringe on the console. Based on the syringe and the vial found on appellant, Officer Cole believed "there could be narcotics inside the vehicle." Officer Cole testified that there was a portion of a blue bank bag protruding from under the driver's seat that was "readily visible" from outside the vehicle. Based upon the blue bag and the syringe, Officer Cole decided to search the vehicle.

According to Officer Buchanan, he observed a microwave in the back seat and a syringe on the console of the car. He did not recall seeing anything else in "plain view." Officer Buchanan testified that he and Officer Cole "then searched the vehicle to see what all was in it."

During the search, the officers opened the blue bank bag. The blue bank bag contained eight syringes, a DC plug adapter, a set of scales, a glasses case, miscellaneous documents, and a zippered black pouch. The zippered pouch contained another syringe and some clear plastic baggies with white powder in them. The white powder was later determined to be amphetamine and cocaine, and it was this evidence that formed the basis for this conviction.

In his first point of error, appellant argues the evidence seized from the search of the automobile should have been suppressed because the search was an illegal warrantless search. "It is a first principle of Fourth Amendment jurisprudence that the police may not conduct a search unless they first convince a neutral magistrate that there is probable cause to do so." New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768, 772 (1981). As the movant in the motion to suppress, appellant met his initial burden of defeating the presumption of proper police conduct by establishing that the search of his automobile occurred without a warrant.

Once the search was shown to be warrantless, the burden shifted to the State to prove the reasonableness of the warrantless search. Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986). The U.S. Supreme Court has recognized several exceptions to the warrant requirement based on "the exigencies of the situation." These exceptions are an inventory search, ² the "plain view" doctrine, ³ "the automobile exception," ⁴ and a search and seizure incident to a lawful arrest. ⁵ See Aitch v. State, 879 S.W.2d 167, 172 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd).

On a motion to suppress, the trial judge is the trier of fact, and as such, is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). The trial court is in the best position to make the determinations because it has the advantage of viewing the evidence firsthand, seeing the demeanor and expression of the witnesses, and judging the witnesses' credibility. See Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789-90, 61 L.Ed.2d 560, 573-74 (1979); Geesa v. State, 820 S.W.2d 154, 178 n. 12 (Tex.Crim.App.1991).

Our review of a trial judge's fact findings is limited to the issue of whether the fact findings are supported by the record. Romero, 800 S.W.2d at 543. If the fact findings are supported by the record, we will not disturb them on appeal; rather, we will address only the question of whether the trial court improperly applied the law to the facts. Id.

Additionally, when reviewing a trial court's decision on a motion to suppress, we must affirm the decision of the trial court if the decision is correct on any theory of law which finds support in the record. Calloway v. State, 743 S.W.2d 645, 651-52 (Tex.Crim.App.1988); Shannon v. State, 800 S.W.2d 896, 899 (Tex.App.--San Antonio 1990, pet. ref'd). If the record reveals the trial court's decision is based on an incorrect theory, but the decision is correct under another legal theory supported by the record, the trial court's decision will not require reversal. See Calloway, 743 S.W.2d at 651-52; Shannon, 800 S.W.2d at 899. As the trial judge in this case did not specify the basis for allowing the evidence from the search to be admitted, we must determine whether the record supports a conclusion that the warrantless search at issue fell within any one of the four recognized exceptions to the warrant requirement. We find that it does.

Inventory Search

We will first look at the inventory search exception. In order to have a proper inventory search, there must be a lawfully impounded vehicle. See Backer v. State, 656 S.W.2d 463, 464 (Tex.Crim.App.1983). The record in this case reveals no lawful impoundment, and therefore, the inventory search exception is not a valid basis for the admission of the items seized from appellant's car in this case.

Plain View

Next, we consider the plain view exception. The "plain view doctrine" provides that police officers may seize items in plain view if: 1) the officers have a right to be where they are when the discovery is made; and 2) it is immediately apparent to the police that the items viewed are associated with criminal activity. State v. Haley, 811 S.W.2d 597, 599 (Tex.Crim.App.1991).

Here, the officers' testimony regarding the layout of the scene varied. Officer Cole indicated that appellant was in the yard about ten feet from the front door and about ten feet from appellant's vehicle when the police ordered him to the ground. Officer Buchanan estimated that appellant was thirty or forty feet from the car at the time he was arrested. Officer Buchanan approximated the yard to be twenty-five feet wide. According to Officer Cole, Officer Buchanan's vehicle, in which appellant was placed, was twenty to twenty-five feet from where appellant was arrested. Officer Buchanan estimated the officers' cars were fifty to sixty feet from the front door of the house.

The trial judge determined that the officers did not meet the first requirement--the officers did not have a right to be by appellant's car at the time they observed the evidence at issue in this case. Specifically, the trial judge concluded:

[T]he route reversed [sic] by the officers in making the original arrest of the defendant, and then returning him to the automobile, did not carry them within plain sight of the syringe, which was in the console of the automobile.

And with the further finding that any return trip that might have been made by the officers would not have justified their--would not have placed them in a position where they should legally have been in order to make any such observation.

The testimony at trial regarding the route traveled by the officers and the circumstances surrounding their "presence" at the vehicle...