Thomas v. State
| Decision Date | 08 June 2017 |
| Docket Number | NO. 14-16-00230-CR,14-16-00230-CR |
| Parties | KEITHRICK THOMAS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 230th District Court Harris County, Texas
Appellant Keithrick Thomas pleaded guilty to possession of cocaine, and the trial court sentenced him to two years' confinement. Appellant contends the trial court erroneously denied his motion to suppress. We affirm because appellant was justifiably detained incident to a traffic stop, a pill bottle containing Xanax was in plain view and lawfully seized, and appellant's further search that uncovered cocaine in a second pill bottle constituted a lawful search incident to arrest.
Appellant was indicted for possession of a controlled substance, namely cocaine, weighing more than one gram and less than four grams. Appellant filed a motion to suppress and the trial court held a hearing on his motion on February 23, 2016.
At the hearing, Houston Police Officer Rohan Walker testified that he was part of a tactical unit conducting surveillance of a house located on 4306 Trafalgar Street on January 15, 2015. Narcotics previously had been recovered from that house. Officer Walker testified that he observed a car driving up to the house, appellant exiting the passenger side of the car, appellant walking into the garage of the house, appellant coming out of the garage just a short time later, appellant getting back into the passenger side of the car, and the car driving off.
After appellant exited the house and got back into the car, Officer Walker called police officers in a marked unit and provided a description of the car appellant was in so the police officers could "develop the P[robable] C[ause] to stop the vehicle." Officer Walker testified that, based on his training and experience, he "believed that there was some type of narcotics or illegal activity" because "it's a known dope house that we've gotten narcotics the same way before in the past." Officer Walker testified that he has in the past "arrested people that have gone into that house and come back out [a] short time later."
Houston Police Officer Elizabeth Gemmill testified that she was assigned to the tactical unit on January 15, 2015. The unit's assignment that day was to monitor "a known narcotics house that in the past was known to distribute narcotics;" the house was located on 4306 Trafalgar Street. Officer Gemmill testified: Officer Gemmill testified that she and other officers had arrested individuals coming from the house for narcotics "for a few weeks before" January 15, 2015.
Officer Gemmill and her partner Officer Gilcrest, who were nearby in a marked car, were told by Officer Walker via radio that Officer Gemmill and Officer Gilcrest started following the car. They observed that its driver failed to use a turn signal when making a right turn. They caught up to the car "as it came to a stop in front of a house and initiated a traffic stop." The house was appellant's residence, but Officer Gemmill was unaware of that fact. Officer Gemmill testified that she and Officer Gilcrest pulled up behind the car, turned on the police car lights, and appellant exited the car and started walking in the driveway towards his residence. At that point, Officer Gemmill instructed appellant to stop walking; she told him to stop because she "wanted to detain — detain him as a result of a traffic stop."
According to Officer Gemmill, appellant turned around when she instructed him to stop. Appellant was holding a beer can in one of his hands, and he started "making movements toward his midsection area" — toward his waistband. Officer Gemmill ordered him to stop "for officer safety" reasons because appellant made "a furtive movement" and "[a] lot of times, the midsection is where people carry guns and any weapons or anything like that." Officer Gemmill testified: "I approached him and I put the beer can on the ground and detained him for officer safety since he made that furtive movement." Officer Gemmill stated that she detained appellant by placing him in handcuffs" because "I don't have to worryabout [appellant making] that movement again towards [his] waistband and me not being able to prevent that movement." She then frisked appellant. As she was handcuffing appellant, she noticed "[t]here was a pill bottle protruding from one of his pant pockets." She could see "in plain view" the cap of the pill bottle and a "little bit of the orange."
Based on her experience, Officer Gemmill thought that narcotics were in the prescription pill bottle she saw in appellant's pocket because "oftentimes people . . . carry their narcotics within pill bottles." Officer Gemmill removed the pill bottle from appellant's left front pant pocket, "saw that it did not have defendant's name on it and it had Xanax tablets inside of it." Officer Gemmill stated that, "[a]fter finding narcotics within that pill bottle in plain view, yes, after that I conducted a full search of his person." Officer Gemmill testified: "By finding that, it led me to believe that perhaps there may be more illegal narcotics on his person and I continue[d] my search to find another pill bottle that did not have his name on it with crack cocaine inside of it" in the front right pant pocket.
Officer Gemmill testified that she was the only one who approached appellant and interacted with him. During the traffic stop, Officer Gilcrest "approached the driver who was also making a furtive movement." Officer Gemmill also testified that it is "unusual for somebody to get out of the vehicle" when a traffic stop is made and that it generally leads her to believe that the person "want[s] to get away from" police. Officer Gemmill stated that, "when the traffic stop was conducted and [appellant] got out of the passenger seat," she believed appellant "wanted to get away" from her or the traffic stop.
Appellant also testified at the hearing. He stated that his girlfriend, Erica Fisher, drove him to a store on the morning of January 15, 2015, so he could buy a case of beer and then dropped him off at the house on 4306 Trafalgar Street.Appellant testified that his friends Clifton and Charlie Johnson lived at the house and that he arrived at their house for a visit around 9:00 a.m. Appellant claimed that he spent the entire day at his friends' house playing video games, watching television, talking, and drinking beer. Appellant claimed that he called his father's friend John Bradshaw to pick him up at his friends' house between 3:00 and 4:00 p.m. When Bradshaw picked him up, appellant "entered the back passenger seat" of Bradshaw's car because the front seat was wet.
Appellant testified that he did not see a police car, see police car lights, or hear sirens when Bradshaw stopped in front of his house. Appellant testified that he exited the car after Bradshaw pulled in front of his house, walked up his driveway, pulled out the last beer can from a carton, went to the trash can to throw away the empty beer carton, opened up the beer can, and started walking towards his house. Appellant then noticed a police car turning the corner at a fast speed. Appellant testified that he did not "believe that as they were driving really fast that they were coming for" him or he "probably would have run."
Appellant testified that the police car stopped in front of his house as he was walking towards his front door. According to appellant, two police officers exited the police car. Officer Gemmill approached him, did not ask him any questions, immediately handcuffed his hands behind his back, and started searching his pockets. Appellant denied making a furtive movement or reaching for his midsection and claimed that he could not have reached for his midsection because he was holding a beer in his hand. Appellant also denied that any pill bottles were protruding from his pockets and claimed that the bottles were "completely concealed." Appellant admitted having a previous conviction for possession of cocaine and for possession of a firearm as a felon.
Appellant's friend, Clifton Johnson, also testified at the hearing. Cliftontestified that he resides in the house on 4306 Trafalgar Street. Clifton remembered appellant coming to his house around 9:00 a.m. on January 15, 2015. He confirmed that appellant spent the day at his house playing video games, watching television, and drinking beer until appellant left around 3:30 or 4:00 p.m. Clifton admitted having a previous conviction for possession of a controlled substance, for tampering with evidence, and for theft.
Clifton's 85-year-old grandfather, Charlie Johnson, testified at the hearing. Charlie stated that he remembered January 15, 2015 "very, very, very vaguely" because his memory was not as good as it used to be. Charlie stated that appellant was always at his house on 4306 Trafalgar Street, but Charlie "couldn't say" how long appellant was at his house on January 15, 2015. Charlie stated that he "imagin[ed]" appellant spent "[p]robably all day" at his house. Charlie admitted that the police had executed a search warrant at his house "one day last year" and that the police arrested his son for drug possession. Charlie could not remember if the police executed another search warrant at his house at some other time in the past.
After the hearing, the trial court denied appellant's motion to suppress on February 23, 2016. Appellant pleaded guilty to possession of a controlled substance,...
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