State v. Pena, 03-18-00765-CR

• Decision Date: 13 August 2019
• Docket Number: NO. 03-18-00765-CR,03-18-00765-CR
• Citation: 581 S.W.3d 467
• Parties: The STATE of Texas, Appellant v. David PENA, III, Appellee
• Court: Texas Court of Appeals

581 S.W.3d 467

The STATE of Texas, Appellant

v.David PENA, III, Appellee

NO. 03-18-00765-CR

Court of Appeals of Texas, Austin.

Filed: August 13, 2019

Jennifer A. Tharp, Sammy M. McCrary, Stacey M. Soule, Joshua D. Presley, for Appellant.

David A. Schulman, John G. Jasuta, Austin, for Appellee.

Before Justices Goodwin, Baker, and Kelly

OPINION

Thomas J. Baker, Justice

David Pena, III, was charged with possession with intent to deliver between one and four grams of a controlled substance (methamphetamine). See Tex. Health & Safety Code §§ 481.102(6), .112(a), (c). Before trial, Pena filed a motion to suppress. The district court granted the motion after a hearing. The State appeals the district court's order granting the motion to suppress. See Tex. Code Crim. Proc. art. 44.01(a)(5). We will affirm the district court's order in part, reverse the order in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

Pena filed a motion to suppress evidence pertaining to a statement that he made and to items that were seized from his trunk after he was arrested. During the suppression hearing, the arresting officer, Officer Christopher Koepp, was the only witness to testify.

Officer Koepp testified that he observed Pena driving a car with an old and faded license plate and that he initiated a traffic stop for driving with an obscured license plate. See Tex. Transp. Code § 504.945(a). According to Officer Koepp, Pena admitted that the writing on the plates was faded. Officer Koepp performed a warrant check and discovered a warrant for Pena's arrest for the offense of theft by check. Officer Koepp asked dispatch to confirm that the warrant was still active by contacting "the original agency that the warrant [wa]s out of." Dispatch later confirmed that the warrant was active. Officer Koepp then arrested Pena and discovered "a meth pipe in" Pena's pocket while arresting him. After finding the pipe, Officer Koepp searched the car. While searching the trunk, Officer Koepp and other officers found a handgun, "approximately 3.7 grams" of what appeared to be methamphetamine, multiple clear baggies, two digital scales, and another glass pipe "with pink residue inside the pipe." After the officers completed the search of the trunk and the remainder of the car, they released the car to Pena's son who had been a passenger in the car.

During the suppression hearing, a recording from Officer Koepp's dashboard camera was admitted into evidence. The district court reviewed the recording after the suppression hearing concluded. The recording is generally consistent with Officer Koepp's testimony regarding the reason that he initiated the traffic stop, regarding Pena's admission about the license plate's condition, regarding Officer Koepp's learning about a warrant for Pena's arrest, and regarding Officer Koepp's asking dispatch to confirm the warrant's status. On the recording, Officer Koepp informed Pena that he will have to go to jail if the warrant is confirmed to be active. After dispatch verified that the warrant was active, Officer Koepp told Pena that he was being arrested, placed him in handcuffs, performed a search of his person, and discovered a glass pipe in his pocket. Officer Koepp then asked Pena if there was anything illegal in the car, and Pena stated that there is "maybe a couple of grams" and a weapon in a black bag in the trunk. Officer Koepp then placed Pena in the back of his patrol car. Officer Koepp and two other officers searched the trunk and found a handgun and several baggies containing a white crystalline substance. Shortly thereafter, Officer Koepp read Pena his Miranda rights, and Pena stated that he understood those rights.

After viewing the recording, the district court issued an order granting Pena's motion to suppress and issued the following findings of fact and conclusions of law relevant to the issue on appeal:

Findings of Fact

1. Comal County Sheriff's Deputy Koepp has proven himself believable, and his testimony is credible.

2. Deputy Koepp articulated facts to justify the initial stop of the Defendant.

3. After the initial stop, Deputy Koepp conducted a warrant check and verified the existence of a non-drug-related warrant (theft by check) for the arrest of the Defendant.

4. During the pendency of verification of the warrant, Deputy Koepp indicated that upon verification of the warrant the Defendant would be arrested but Defendant's son would be allowed to drive the vehicle from the scene of the traffic stop.

...

9. At or near this time, two additional police officers arrived as back-up to assist Deputy Koepp.

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11. After the warrant was verified, Defendant was arrested, handcuffed and taken into custody.

12. After the custodial arrest, the Defendant's person and clothing were searched.

13. During the search of the Defendant's person, a pipe commonly associated with illicit drug use was found in a pants pocket of the Defendant.

...

22. Without reciting the Miranda and Texas Code of Criminal Procedure article 38.22 admonitions or receiving waivers thereto, Deputy Koepp asked Defendant if there was anything in the vehicle.

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24. The Defendant replied that there was something in the trunk.

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26. Thereafter, the trunk was searched where alleged illicit narcotics were found inside a backpack along with a handgun.

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30. At no time after the search did Deputy Koepp express, on the video—SX #1 or during the hearing on the motion to suppress, a reason, cause or other articulable fact to justify a search of any portion of the vehicle, specifically including its trunk, for the offense of arrest (theft by check) or any other probable cause arrest arising thereafter—other than receipt of Defendant's statement that there was something in the trunk.

...

Conclusions of Law

A. Comal County Sheriff's Deputy Koepp conducted a lawful stop of Defendant's vehicle based upon probable cause of a traffic violation.

...

C. Deputy Koepp lawfully arrested the Defendant for an outstanding warrant alleging a non-drug-related offense and conducted a lawful pat-down and search incident to the arrest of the Defendant's person.

D. Deputy Koepp lawfully seized a pipe commonly associated with illicit drug use from the Defendant's pant pocket, yet the Defendant was never charged with possession of drug paraphernalia.

E. The existence of the pipe on the Defendant's person did not constitute probable cause to believe additional evidence of the offense of arrest (theft by check) would be found in [the] vehicle.

F. The existence of the pipe on the Defendant's person did not, in and of itself, constitute probable cause to believe additional evidence of the offense of possession of drug paraphernalia would be found in the vehicle.

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K. Accordingly, there was not probable cause to believe the vehicle contained evidence, if at all, relevant to offenses other than the offense of arrest, and a broader scope of a warrantless search, i.e., search of the trunk pursuant to the automobile exception , was also not objectively and legally authorized by the dictates found in United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) as cited in [ Arizona v. ] Gant , [556 U.S. 332,] 347, 129 S.Ct. 1710, 173 L.Ed.2d 485 [(2009)].

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M. Further—at this point in time, the Defendant was legally in custody.

N. By asking Defendant if there was anything in the vehicle, Deputy Koepp interrogated the Defendant.

O. Defendant had not been properly informed of his Miranda and Texas Code of Criminal Procedure article 38.22 admonitions before being interrogated, nor did the Defendant legally acknowledge or waive those admonitions and rights before being interrogated.

P. The Defendant's response to the custodial interrogation was obtained in violation of his constitutional rights and statutory protections—although with no mal-intent by Deputy Koepp.

Q. Although Deputy Koepp expressed no ill will nor malice toward the Defendant, the credible evidence objectively indicates that the only reason expressed or acted upon by Deputy Koepp to conduct a search of the trunk of the vehicle was based upon the Defendant's illegally obtained statement.

R. Pursuant to both the U.S. and Texas Constitutions, our Bill of Rights and Texas Code of Criminal Procedure article 38.23, the Defendant's statement that there was something in the trunk should be, as a matter of law, suppressed as well as any evidence seized as a product of that unlawfully obtained statement.

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X. Accordingly, the search of the trunk of the Defendant's vehicle was unlawful.

Y. Moreover, the evidence found in the trunk of the Defendant's vehicle, including but not limited to the alleged controlled substance and a handgun, was unlawfully and illegally seized.

After the district court issued its findings of fact and conclusions of law, it issued an addendum explaining that Pena was not given his statutory warnings under article 38.22 and did not waive his rights before Officer Koepp questioned Pena about whether there was anything illegal in the car. For that reason, the district court concluded that Pena's statement was obtained in violation of article 38.22, that the evidence seized from the car was discovered because of the improper questioning of Pena, and that the evidence should be excluded under the Texas "exclusionary rule contained in Article 38.23."

The State appeals the district court's ruling granting Pena's motion to suppress.

STANDARD OF REVIEW

Appellate courts review a trial court's ruling on a motion to suppress for an abuse of discretion. Arguellez v. State , 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that standard, the record is "viewed in the light most favorable to the trial court's determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’ " State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) ). In general, appellate...