Rothenberg v. State

• Decision Date: 08 December 2004
• Docket Number: No. 01-03-00364-CR.,01-03-00364-CR.
• Citation: 176 S.W.3d 53
• Parties: Eric Lee ROTHENBERG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

176 S.W.3d 53

Eric Lee ROTHENBERG, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00364-CR.

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

June 10, 2004.

Discretionary Review Refused December 8, 2004.

Kyle B. Johnson, Houston, TX, for Appellant.

Charles A. Rosenthal, Jr., District Attorney, Harris County, William J. Delmore, III, Chief Prosecutor, Appellate Division, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.

Panel Consists of Justices TAFT, HANKS, and HIGLEY.

OPINION

TIM TAFT, Justice.

After the trial court denied his motion to suppress, appellant, Eric Lee Rothenberg, pleaded guilty, pursuant to a plea agreement, to the offense of possession with intent to deliver methamphetamine weighing more than four grams and less than 200 grams. See TEX. Health & Safety Code Ann. §§ 481.102(6), 481.112(a), (d) (Vernon 2003). As part of the agreement, appellant also pleaded true to two enhancement paragraphs alleging the prior offenses of delivery of, and possession of, controlled substances. The trial court found appellant guilty, assessed his punishment at 30 years in prison, and certified his right to appeal the pretrial ruling. See id. § 481.112(d); TEX. PEN.CODE ANN. §§ 12.32(a), 12.42(d) (Vernon 2003); TEX.R.APP. P. 25.2(a)(2)(A). We are asked to determine whether, under Texas Constitution article I, section 9, law-enforcement personnel could, without appellant's consent, unlock a box in appellant's car and review its contents during a post-arrest inventory of the vehicle. See TEX. CONST. art. I, § 9. Based on this Court's recent resolution of this very issue in Garza v. State, No. 137 S.W.3d 878 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.), we answer the question in the affirmative. We affirm.

Background

One evening, appellant was driving a borrowed car, in which his wife, Julianne Rothenberg, was a passenger. Katy Police Officer Shiller pulled appellant over for his car's having an expired registration sticker. Officer Hughes stopped at the scene soon after Officer Shiller had arrived. When the officers ran appellant's driver's license number, they discovered an outstanding arrest warrant, arrested appellant, handcuffed him, and placed him in a police car.

When the officers told appellant that the car could be turned over to Julianne or towed, appellant requested the former. However, Julianne advised the officers that she had been having seizures that day, was weak, and was not feeling well. She "just didn't know if [she] was in the best condition to be [driving] at the time," and she told the officers that it was probably not a good idea for her to drive. Accordingly, the officers were unable to release the car to Julianne, and the car was instead impounded.

After Julianne had also been placed in the patrol car, the officers began an inventory of the impounded car. During the inventory, the officers found a large bag of lithium batteries; two bank bags containing white, powdery residue; and a bottle of ephedrine inside the car.¹ Additionally, the officers found in the car some beakers and two books—one showing where to obtain chemicals and chemical supplies, and the other outlining the chemical composition of various drugs, including methamphetamine.

The officers also found a lockbox in the car's hatchback. At the suppression hearing, Julianne testified that appellant kept jewelry, money, and tax records for his jewelry business in the lockbox. Appellant told the officers that the lockbox contained cash, jewelry, checks, bank statements, paperwork, and tools for his jewelry business. Appellant testified that the lockbox was important to him and that he would want it taken care of.

The Katy Police Department had a policy, which the officers followed with appellant's car, for inventorying impounded vehicles. That policy required officers to inventory "all items inside of" the vehicle. Specifically, departmental policy required that "personal items that are worth something" and "anything of value" be inventoried. Officer Shiller explained that "if all items aren't documented, then obviously the person whose vehicle was towed can claim that there was anything in the vehicle. . . . [I]f there is a suitcase or something . . . that we are going to leave with the car, we are pretty much responsible for whatever is in the vehicle. If we don't look and see what's in it, then he could say there is a million dollars in there or anything else he wanted to and we would be responsible for that." Officer Shiller also agreed that anything, including something that might be capable of harming officers, could be in a closed container.² Both officers testified that they would not be allowed to deposit the lockbox with the departmental property room without first having determined the box's contents.

The officers had already taken appellant's keys, along with the other property that appellant had on his person, when they arrested appellant. When the officers asked him if his keys included a key to the lockbox, appellant responded affirmatively, but he refused to consent to a search of the box. Nevertheless, the officers opened the lockbox with the key. Inside, the officers found several hundred small plastic baggies; a narcotics test kit containing vials, one of which contained a strong acid that could be used to make methamphetamine; scales; a flat, metal spoon; a bottle of PH test strips; funnels; brushes; and small baggies containing methamphetamine.

Standard of Review

Rulings on motions to suppress are subject to a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court's determination of historical facts that depend on credibility choices. See Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997); Wilson v. State, 98 S.W.3d 265, 271 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). However, we decide de novo whether the trial court erred in applying the law to the facts. Carmouche, 10 S.W.3d at 327; Wilson, 98 S.W.3d at 271.

Although the trial court was not required to make fact findings or legal conclusions based on the type of suppression grounds asserted here, it did, which was within its discretion. See 40 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 4.177 (2nd ed.2001) [hereinafter "DIX & DAWSON"]; see also Janicek v. State, 634 S.W.2d 687, 690 (Tex.Crim.App.1982) (noting that trial court made fact findings after suppression hearing concerning allegedly illegal entry into home); Scallion v. State, 433 S.W.2d 438, 439 (Tex.Crim.App.1968) (noting that trial court made fact findings after suppression hearing concerning allegedly illegal arrest). Accordingly, we review its express fact findings with great deference. See, e.g., State v. Fudge, 42 S.W.3d 226, 230 (Tex.App.-Austin 2001, no pet.) (in review of suppression ruling concerning validity of temporary detention, stating "Based on the standard of review, we will give great deference to this finding."); see also Scallion, 433 S.W.2d at 439 (noting, "The record in the case supports the judge's findings," which were filed as written findings after suppression hearing in which defendant sought suppression of fruits of allegedly illegal arrest); State v. Velasquez, 994 S.W.2d 676, 677 (Tex.Crim.App.1999) (relying on officer's testimony from hearing, at which defendant sought suppression of fruits of search, because trial court's written fact findings stated that officer was credible and that court below took his testimony as true).

Inventory

In part of his sole issue on appeal, appellant argues that the search of the lockbox was invalid as an inventory under Texas Constitution article I, section 9, which he claims provides broader protection than does the Fourth Amendment of the United States Constitution.

We begin by noting that appellant does not challenge on appeal the validity of his arrest,³ the officers' right to impound his car, the officers' right generally to inventory the car's contents (with the exception of their opening the lockbox), or the search or inventory of the lockbox under the Fourth Amendment. Rather, he challenges the officers' right, under Texas Constitution article I, section 9, to open the lockbox and to review its contents as part of the vehicle's post-arrest inventory. See TEX. CONST. art. I, § 9.

The trial court found in pertinent part as follows:

11. Officer Shiller began to inventory the vehicle in preparation for impoundment.

. . .

13. Officer Shiller's inventory was conducted in accordance with the Katy Police Department's standard operating procedures for such inventories.

. . .

16. During the inventory, Officer Hughes discovered a locked box in the rear of the vehicle.

17. During the inventory, Officer Shiller opened the box, and found the substance that is the basis of Defendant's motion to suppress.

The trial court expressly concluded, in pertinent part:

2. The search of ERIC ROTHENBERG's vehicle was a routine automobile inventory search made without warrant in accordance with the police department's standard operating procedures.

3. The search of the box in ERIC ROTHENBERG's vehicle was within the scope of a reasonable routine automobile inventory search made without a warrant.

The trial court made no findings or conclusions concerning any other basis to justify the search of the lockbox.

The inventory has long been recognized as falling outside the Fourth Amendment's warrant requirement. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987). The policies supporting inventories are the need to protect the owner's property while it is in police custody, to protect police from claims of lost, stolen, or vandalized property that is in their custody, and to protect the police from potential danger. See Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); Garza, 137 S.W.3d at 881. As appellant...