State v. Navigator

• Decision Date: 28 August 2014
• Docket Number: No. 13–13–00484–CV.,13–13–00484–CV.
• Citation: 496 S.W.3d 97
• Parties: The STATE of Texas, Appellant, v. ONE (1)2004 LINCOLN NAVIGATOR, VIN # 5LM FU27RX4LJ28242, Appellee.
• Court: Texas Court of Appeals

496 S.W.3d 97

The STATE of Texas, Appellant,

v.ONE (1)2004 LINCOLN NAVIGATOR, VIN # 5LM FU27RX4LJ28242, Appellee.

No. 13–13–00484–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

Aug. 28, 2014.

Douglas K. Norman, Mark Skurka, for The State Of Texas.

Celina Lopez Leon, for One (1)2004 Lincoln Navigator, Vin # 5LM FU 27RX4LJ28242.

Before Justices RODRIGUEZ, GARZA and LONGORIA.

MEMORANDUM OPINION

Memorandum Opinion by Justice LONGORIA.

This appeal arises out of a civil forfeiture action. See Tex.Code Crim. Proc. Ann. arts. 59.01 –.14 (West, Westlaw through 2013 3d C.S.). Police arrested Miguel Herrera after discovering a firearm in Herrera's 2004 Lincoln Navigator (the vehicle), which the police subsequently seized. The State later filed a petition seeking to forfeit the vehicle to the State. See id. art. 59.02(a). On Herrera's motion, the trial court suppressed all the evidence gained from the search and seizure of the vehicle and issued a separate judgment that denied the State's petition for forfeiture and ordered possession and title to the vehicle returned to Herrera. We affirm.

I. BACKGROUND

A. Background Facts

Texas Department of Public Safety (DPS) Officer Stephen West testified that a “cooperating defendant” informed him that he had arranged to meet and buy drugs from a man at a certain time that same night in the parking lot of Rack Daddy's, a pool hall in Corpus Christi, Texas. The source did not know the dealer's name, but he told Officer West that the dealer was a Hispanic male who would be driving a white SUV with “shiny rims” and transporting “an unknown amount of drugs” for sale and that he would be armed. The tipster was a recently-arrested person with charges pending against him. None of the officers involved had ever used the source before and could not vouch for his veracity.

A group of DPS officers under the supervision of DPS Lieutenant Guadalupe Ramon immediately placed the parking lot of Rack Daddy's under surveillance. Approximately twenty minutes later, which was around the time specified by the source, Herrera drove into the parking lot in the vehicle and parked but remained in the driver's seat. Officer West drove by Herrera's car with the source in his front seat; Officer West testified without objection that the source identified Herrera as the man that he had arranged to meet to buy drugs. After the source identified Herrera, Lieutenant Ramon and three other officers approached the vehicle. Lieutenant Ramon and Officer Clayton Cohea testified that they did not observe Herrera commit any criminal act, including any traffic violation. Lieutenant Ramon testified that he made eye contact with Herrera as he approached the car and witnessed Herrera make a “quick gesture down towards the floorboard.” Lieutenant Ramon testified that he “asked this individual to get out of his vehicle,” but he did not remember exactly the words he used. Only Lieutenant Ramon testified about Herrera's alleged furtive movements. Officer Cohea testified that he did not witness any furtive movements, but he stated that the car's windows were tinted and Lieutenant Ramon was closer to the car at the time. None of the officers drew their weapons.

Lieutenant Ramon and another officer patted Herrera down while Officer Cohea searched the “reachable area” in the vehicle around the driver's compartment. Officer Cohea discovered a firearm in a hidden compartment that had been cut into the floor of the car near the center console. The officers arrested Herrera for being a felon in possession of a firearm. The officers impounded the car, returned it to their headquarters, and conducted a more thorough search. The search disclosed another hidden compartment in the center console which contained multiple baggies of cocaine, several pills, and an additional magazine for the pistol. The source was never named in any of the proceedings in the trial court.

B. Proceedings Below

All criminal charges against Herrera were dismissed, but the State filed a petition asking the trial court to order the vehicle forfeited to the State. See id. art. 59.02. The trial court originally signed a default judgment in favor of the State, but Herrera subsequently filed a motion for new trial. In his motion, Herrera asserted that he had not been personally served with the forfeiture petition even though he had been incarcerated in the Nueces County Jail during the relevant time. The trial court granted Herrera's motion for a new trial. The State successfully petitioned this Court for a writ of mandamus ordering the trial court to state its reasons, and the trial court issued an amended order. In re State ex rel. Skurka, No. 13–13–00086–CV, 2013 WL 865426, at *5 (Tex.App.-Corpus Christi Mar. 4, 2013, orig. proceeding) (mem. op.).

Herrera later filed a motion to suppress all of the evidence gained from the search, seizure, and arrest on the basis that it:

was seized as the result of an illegal traffic stop, arrest, or search in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, Article 1, Sections 9, 10, [and] 19 of the Texas Constitution, Articles 1.04, 1.05, 1.06, 38.23, and chapter 59 of the Texas Code of Criminal Procedure.

At the beginning of the trial, the trial judge asked the parties to confirm that they were there for a trial on the merits, and both parties agreed. The trial judge also inquired whether “the suppression issue will be carried with the trial on the merits of the seizure,” and both sides again agreed. After the trial court heard live testimony from five witnesses, the State announced that “[w]e rest, Your Honor, no more witnesses.” Herrera's counsel rose and made an oral motion to the trial court:

At this point in time, Your Honor, before the Defense presents our case, we would ask for the Court to consider ruling upon the motion to suppress. I think that's an adequate remedy at this point in order to decide if we need to go on. I guess it's an oral request for summary judgment at this point. There's no material issue of fact here. It's all a legal matter whether or not the search was in fact valid. If you'd like to argue it at this point, I'm ready to do so.

One of the State's attorneys responded that, “[i]f [appellant] wants to argue it at this point, that's fine.” After both sides made their closing arguments with respect to the oral motion, the trial judge made the following oral ruling from the bench:

To the extent necessary, the Court treats this as an oral motion for summary judgment, the motion to suppress as well. And in light of the issues on whether or not suppression is proper in a forfeiture proceeding, I'm going to make some other findings as well. I'm going to grant the summary judgment with regard to the illegality of the stop, contact and/or search. I'm granting the motion to suppress. And I'm further finding that whether or not the exclusionary rule applies, law enforcement cannot seize property if their actions leading up to the seizure are illegal.

After a further exchange with the parties, the trial judge announced, “[a]nd the [c]ourt is denying the State's request to seize the property,” which we understand as referring to the State's request to have the property forfeited.

Following the hearing, the trial court issued two separate written orders. The first granted the motion to suppress without explanation. The second, entitled “Order Denying The State's Petition for Seizure and Forfeiture,” denied the State's petition for forfeiture “for all the reasons stated within the hearing, and additionally considered by the Court whether stated or not” and ordered the State to return title and possession of the vehicle to Herrera. At the State's request, the trial court entered the following¹ findings and conclusions:

(1) The Court treated the hearing as an oral motion for summary judgment, as there was no objection by the State in the Court doing so and the Court granted the Motion for Summary Judgment based upon a finding that the stop, contact and search were illegal. The Court granted the Motion to Suppress based upon the illegality of the stop, contact and search. The Court further found that the exclusionary rule does apply to the suppression hearings in forfeiture proceedings. However, the Court further found that even if the exclusionary rule is found not to apply, law enforcement cannot seize property if their actions leading up the seizure are illegal.

(2) The Court finds that no recognized exception to the warrant requirement existed under the facts as presented in this case. The Court further finds that probable cause to enter or search the specific location, i.e. the vehicle at issue in this proceeding, did not exist at the time the search was made. Further, the Court finds that even if probable cause existed, nothing about the circumstances as presented, made procuring a warrant impracticable.

(3) The Court finds that Agent West did not believe probable cause existed to obtain a warrant, nor did Agent Ramon. The Court further finds that Agent West did not believe he could obtain a warrant based upon the unreliability of the confidential source, and lack of credibility.

(4) The Court finds that the evidence presented did not provide any facts which would raise any suspicion that criminal activity was occurring or was likely to occur in this situation.

The vehicle arrived and the driver parked legally. Agent Ramon indicated that he was unable to do anything else but request a consensual contact with the driver. Agent Ramon and Agent West never indicated an intention to arrest the driver at that point.

(5) Agent Ramon testified he saw furtive movement in the vehicle by the driver, but the Court finds that it could just have easily been innocent activity. Nothing in the record indicates the driver even saw the police as they approached his vehicle.

(6) The Court finds based upon Agent Cohea's testimony that the officers were there to take down the driver, search for drugs, and

...