Ramirez v. State

• Decision Date: 01 May 2003
• Docket Number: No. 03-02-00367-CR.,03-02-00367-CR.
• Citation: 105 S.W.3d 730
• Parties: Andrew RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

105 S.W.3d 730

Andrew RAMIREZ, Appellant, v. The STATE of Texas, Appellee.

No. 03-02-00367-CR.

Court of Appeals of Texas, Austin.

May 1, 2003.

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Jon T. Evans, Law Office of Evans and Lusk, Austin, for appellant.

C. Bryan Case, Jr., Assistant District Attorney, Austin, for appellee.

Before Justices KIDD, YEAKEL and PATTERSON.

OPINION

LEE YEAKEL, Justice.

Following the district court's denial of his motion to suppress, appellant Andrew Ramirez pleaded guilty to felony possession of marihuana. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (West Supp.2003). The district court sentenced appellant to six months in a state jail facility. Appellant had moved the court to suppress both an oral statement he made to police and the marihuana obtained when a police officer searched, without a warrant or consent, a closed ice cooler in the appellant's garage. Appellant appeals only the district court's denial of his motion to suppress. We will reverse and remand.

BACKGROUND

On the afternoon of November 21, 2001, the Austin Police Department ("APD") received a call from a neighbor of appellant, complaining that she was "tired of [appellant] selling mari[h]uana out of his garage." APD Officer Chris Sobieszczyk responded to the call. Sobieszczyk first approached the neighbor's house, speaking with the neighbor for approximately ten to fifteen minutes. Then Sobieszczyk knocked on the front door of appellant's residence, and a young boy answered. Sobieszczyk asked whether an adult was present, and the boy directed him to the garage. When Sobieszczyk reached the garage, he knocked on the garage's closed door. From inside, individuals shouted profanities at Sobieszczyk. The officer then identified himself as "Austin police." Sobieszczyk heard shuffling, and a few moments later, appellant came to the garage door and stepped outside, closing the door behind him. While the door was open, Sobieszczyk noticed a scale with marihuana residue and seeds on it, a set of finger scales, and a large green pipe on a table approximately two feet inside the garage. Sobieszczyk detected a strong odor of fresh marihuana and noticed plastic baggies and rolling papers on the floor. Outside of the garage, in a garbage can, he saw a brick-sized cellophane wrapper containing marihuana residue.

Sobieszczyk talked with appellant and learned that appellant owned the property. During the discussion, a second individual, Pedro Reynosa, left the garage, leaving the door partially open behind him. Sobieszczyk had been at the scene of an aggravated assault involving a shooting the prior week. He knew Reynosa "had been handled for weapons before," and believed that either Reynosa or one of Reynosa's brothers had been involved in the shooting. Sobieszczyk was concerned that Reynosa or appellant might possess weapons.

Both appellant and Reynosa acted nervously, hiding their hands either behind their backs or inside their clothing. Appellant, who wore a gray sweatshirt with a large front pocket, held his hands inside the pocket. Because it was dark behind the garage and because he believed Reynosa might possess weapons, Sobieszczyk called for a backup officer before conducting a safety pat down of appellant and Reynosa. Sobieszczyk continued to talk with the two men until Officer Kenneth Murphy arrived.

Murphy approached Reynosa and requested his permission to pat down Reynosa for weapons. Reynosa told Murphy that he had a knife. During his pat down of Reynosa, Murphy found a double-edged stiletto and a small plastic bag of marihuana in a pocket of Reynosa's pants. Reynosa was immediately placed under arrest and moved away from the garage doorway.

After Murphy secured Reynosa, Sobieszczyk patted down appellant. As he began the pat down, Sobieszczyk told appellant, "[Y]ou are being detained," and placed him in handcuffs.¹ Sobieszczyk also told appellant that he could see drug paraphernalia and drug residue in the garage. Sobieszczyk then asked appellant, "Is there anything else I'm going to find in there that's illegal, any more mari[h]uana?" Appellant hesitated, and Sobieszczyk moved appellant closer to Murphy and Reynosa and stepped into the garage. Appellant then stated that he "guess[ed] there's some pot in the red cooler." Sobieszczyk testified that his main intent for entering the garage was to seize the paraphernalia and to ensure that no other individuals remained inside the garage. He seized the pipe and the cooler. Although the record is not clear as to the precise sequence of events, at the suppression hearing, the State suggested that, based on appellant's admission, Sobieszczyk searched the cooler, seized the marihuana inside the cooler, and then applied for a search warrant. The record does not contain the warrant. In its closing argument at the suppression hearing, the State argued that

we have no idea if the judge would have signed a search warrant had there not been any mari[h]uana seized. If that search warrant didn't contain the language that officers at the scene found a red cooler containing X amount of mari[h]uana, it is unknown at this time if an officer would have signed a search warrant to search the remainder of the residence to find it.

The State's closing argument leads this Court to conclude that the search of the cooler occurred before Sobieszczyk applied for the search warrant. Sobieszczyk testified that, after the seizure of the marihuana, appellant was "placed under arrest for possession of that mari[h]uana."² Sobieszczyk further testified that, after the search warrant arrived, it was executed by narcotics detectives, who proceeded to search the remainder of appellant's residence. The only usable quantity of marihuana obtained from appellant's residence was that found inside the cooler.

Appellant filed a motion to suppress both his oral statement to Sobieszczyk and the marihuana obtained from the cooler, contending that both were obtained illegally. See Tex.Code Crim. Proc. Ann. art. 38.23(a) (West Supp.2003) (evidence obtained unlawfully must be suppressed); Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App.1996) (discussing general situations that may give rise to protections of article 38.23(a)). Specifically, appellant argued that the admission regarding the cooler was the product of a custodial interrogation. Because he had not been read his Miranda rights, appellant argued that the statement was inadmissible. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that, before questioning, person in police custody must be warned that he has right to remain silent, that any statement he makes may be used as evidence against him, and that he has right to presence of retained or appointed attorney).³ Further, appellant argued that no exigent circumstances justified the warrantless search of his garage. See McNairy v. State, 835 S.W.2d 101, 106-07 (Tex.Crim.App.1991) (explaining that to justify warrantless search, police must show existence of probable cause at time of search and exigent circumstances that made procuring warrant impracticable). Finally, appellant argued that, because Texas does not recognize the inevitable-discovery doctrine, the marihuana obtained as a result of his statement and search should be suppressed. See State v. Daugherty, 931 S.W.2d 268, 270-71 (Tex.Crim.App.1996) (holding that plain language of article 38.23(a) of Texas Code of Criminal Procedure does not allow for "an inquiry into the potential legal acquisition of evidence once it has been established that it was actually `obtained in violation of law").

The district court denied appellant's motion, ruling that appellant was temporarily detained not under arrest at the time and admitted his statement because it was not the product of custodial interrogation. Further, the court ruled the marihuana and paraphernalia admissible, finding that exigent circumstances permitted the warrantless search.

DISCUSSION

On appeal, appellant presents two points of error. By his first point of error, appellant argues that the district court erred in finding that appellant was merely detained rather than formally arrested. As a result, he argues that the marihuana in the cooler and his statement were erroneously admitted into evidence. By his second point of error, appellant argues that the district court abused her discretion by ruling that exigent circumstances justified the warrantless search of the cooler.

Standard of Review

A trial court's ruling on a motion to suppress will be set aside only on a showing of an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). This Court affords almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Reviewing courts will afford the same amount of deference to trial court rulings on "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. For mixed questions of law and fact that require more than an evaluation of credibility and demeanor, such as determinations of probable cause and reasonable suspicion, de novo review is appropriate. Id. at 87.

Custody

Appellant's first point of error asserts that the district court erred in ruling that appellant was merely detained, rather than formally arrested. He argues that, because he had been formally arrested at the time his statement was made, the district court erroneously admitted the admission into evidence. Neither the Fourth Amendment nor article 38.22 of the Texas Code of Criminal Procedure preclude the admission of noncustodial statements. See, e.g., Miranda, 384 U.S. at 444, 86 S.Ct. 1602; Dowthitt, 931...