Clark v. State, No. 06-03-00262-CR (TX 10/13/2004)

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Unpublished Opinion

BENJAMIN FRED CLARK, Appellant v. THE STATE OF TEXAS, Appellee.

No. 06-03-00262-CR

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: August 18, 2004.

Decided: October 13, 2004.

Do Not Publish.

On Appeal from the 115th Judicial District Court Upshur County, Texas, Trial Court No. 13,284.

Before MORRISS, C.J., ROSS and CARTER, JJ.

MEMORANDUM OPINION

CARTER, Justice.

Benjamin Fred Clark appeals his conviction by jury trial for possession of a controlled substance, namely methamphetamine. The sentence was enhanced by a prior felony conviction, and Clark was sentenced to ten years' imprisonment. Clark complains that the trial court erred in denying his motion to suppress evidence discovered in an improper "inventory search" of his vehicle and that the evidence was legally and factually insufficient. We affirm the conviction.

The evidence at trial showed that Clark failed to dim his headlights within 500 feet of Deputy Wayde Davis, an Upshur County Deputy Sheriff. When Davis attempted to stop Clark for the traffic violation, Clark fled and led the deputy on a high-speed chase until Clark crashed his truck into a creek. Davis observed Clark exit the vehicle and attempt to hide something in the creek a short distance from the truck. The deputies discovered three containers of methamphetamine in the creek bed.

Inventory Search

In his first point of error, Clark challenges the denial of his motion to suppress the items discovered in the "inventory search." We agree that an inventory search must be justified by evidence of the arresting agency's normal operating policy or established routine.

Deputy Marty Massoletti, a deputy sheriff with the Upshur County Sheriff's Department, testified he conducted an "inventory search" of Clark's truck and discovered in the truck bed¹ a can of acetone,² a can of charcoal lighter fluid in a brown paper bag, as well as a hypodermic needle in a plastic trash bag. Deputy Massoletti and Paul Alan Steelman, an employee of the Upshur County Sheriff's Department assigned to the Drug Enforcement Agency in Tyler, both testified that these items were commonly used in the manufacture and use of methamphetamine and that the holes in the bottoms of the cans were consistent with use for the manufacture of methamphetamine.

The United States and Texas Constitutions both guarantee the right to be secure from unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9. The Texas Code of Criminal Procedure forbids any evidence obtained in violation of such guarantees to be admitted against an accused. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2004-2005). There are, however, certain exceptions to the warrant requirement under which federal and state law allow warrantless searches. One exception is an inventory search conducted pursuant to "standardized criteria" or "established routine." Florida v. Wells, 495 U.S. 1, 4 (1990).

Clark first argues that Article I, Section 9 of the Texas Constitution provides greater protection than the Fourth Amendment to the United States Constitution. Clark cites the plurality decision of the Texas Court of Criminal Appeals in Autran v. State, 887 S.W.2d 31 (Tex. Crim. App. 1994), for the proposition. In Autran, a plurality of the Texas Court of Criminal Appeals held that Article I, Section 9 of the Texas Constitution provides greater protection than the Fourth Amendment in the context of inventory searches of closed containers. Id. at 42. The members of the court joining in the plurality opinion stated they would "refuse to presume the search of a closed container reasonable under art. I, § 9 simply because an officer followed established departmental policy." Id. The opinion concluded that peace officers "may not rely upon the inventory exception" to conduct a warrantless search of a closed or locked container. Id.

This Court has previously noted that Autran was a plurality decision and is not binding precedent, and we rejected the contention that the Texas Constitution provides greater protection than the United States Constitution. See Madison v. State, 922 S.W.2d 610, 613 (Tex. App.-Texarkana 1996, pet. ref'd); Hatcher v. State, 916 S.W.2d 643, 645 (Tex. App.-Texarkana 1996, pet. ref'd). Several of our sister courts have likewise rejected the argument that Article I, Section 9 of the Texas Constitution provides greater protection from inventory searches than the Fourth Amendment. See Rothenberg v. State, No. 01-03-00364-CR, 2004 Tex. App. LEXIS 5145 (Tex. App.-Houston [1st Dist.] June 10, 2004, no pet. h.); Garza v. State, 137 S.W.3d 878, 884 (Tex. App.-Houston [1st Dist.] 2004, pet. granted); State v. Mercado, 993 S.W.2d 815, 818-19 (Tex. App.-El Paso 1999, pet. ref'd); Jurdi v. State, 980 S.W.2d 904, 907 (Tex. App.-Fort Worth 1998, pet. ref'd); Wells v. State, 968 S.W.2d 483, 486 (Tex. App.-Eastland 1998, pet. ref'd); Trujillo v. State, 952 S.W.2d 879, 881 (Tex. App.-Dallas 1997, no pet.); cf. Johnson v. State, 912 S.W.2d 227, 232 (Tex. Crim. App. 1995). We see no reason to reconsider our past decisions, and we reject Clark's argument that the Texas Constitution provides greater protection than the Fourth Amendment.

In the alternative, Clark argues that the inventory search was improper because the State failed to present any evidence that the search was conducted pursuant to standard operating procedure of the investigatory agency.³

In Wells, the United States Supreme Court affirmed the Florida Supreme Court's decision to suppress evidence found in a closed container during an inventory search, because police had "no policy whatever with respect to the opening of closed containers encountered during an inventory search." Wells, 495 U.S. at 4-5. The Court reasoned that "standardized criteria . . . or established routine must regulate the opening of containers found during inventory searches." Id. at 4. Since "there was no evidence that the inventory search was done in accordance with any standardized inventory procedure," the trial court should have suppressed the evidence. Id. at 5 (Brennan, J., concurring). While the Supreme Court rejected the proposition that a policy could only allow the search of all containers or a search of no containers, the Supreme Court emphasized that inventory searches must be conducted pursuant to "standardized criteria" or "established routine." Id. at 4.

The inventory exception to the warrant requirement exists in order to promote the public policies of protecting an owner's property while it is in police custody; insuring against a claim of lost, stolen, or vandalized property; and guarding police from danger. Id. While an officer may exercise some discretion in deciding whether to examine closed containers, the record must at least indicate that police followed some "standardized criteria" or "established routine" when conducting the search. Id. An inventory search may not serve as a "ruse for a general rummaging" in order to discover incriminating evidence. Id.

Although the Supreme Court indicated that officers could exercise some discretion in executing the inventory search, Wells forbids "uncanalized discretion" and requires that an inventory search be conducted pursuant to "standardized criteria" or "established routine." Id. As this Court has noted in dicta, failure by the State to show evidence that the search was conducted pursuant to the police department's procedure will invalidate the search.⁴ While Deputy Davis testified that the search of the bed of the truck was an inventory search, there was no evidence introduced at the hearing on the motion to suppress that the department had a policy concerning inventory searches or that the search was conducted according to "established routine." The State had to prove the applicability of the exception to the warrant requirement. See Yaws, 38 S.W.3d at 723. However, Deputy Massoletti testified at trial that it is the policy of the Upshur County Sheriff's Department to conduct an inventory search concerning all property impounded and that an inventory search is conducted each time a person is placed under arrest.

In reviewing a trial court's decision concerning a motion to suppress, we generally consider only evidence adduced at the suppression hearing, since the ruling was based on that evidence, rather than evidence introduced later in the trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Green v. State, 78 S.W.3d 604, 608 (Tex. App.-Fort Worth 2002, no pet.); Westfall v. State, 10 S.W.3d 85, 89 n.1 (Tex. App.-Waco 1999, no pet.). However, when the legality of the seizure is relitigated at trial, consideration of relevant trial testimony is appropriate in our review. Rachal, 917 S.W.2d at 809; Green, 78 S.W.3d at 608; In re L.R., 975 S.W.2d 656, 658 (Tex. App.-San Antonio 1998, no pet.). "Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review." Rachal, 917 S.W.2d at 809. The Texas Court of Criminal Appeals concluded it would be "unreasonable to ignore trial evidence in our review of the court's suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless." Id. At trial, Clark objected to "anything that was found in the inventory search" and was granted a running objection on all items found in the inventory search. There was no consensual relitigation of the inventory search. Therefore, we cannot consider the evidence presented at trial concerning the department policy for inventory searches in determining the admissibility of items found from such search. Admission of evidence found from that search was error.

We are placed in the position that the Texas Court of Criminal Appeals envisioned in Rach...