Marcopoulos v. State

548 S.W.3d 697

Andreas MARCOPOULOS, Appellant

v.The STATE of Texas, Appellee

NO. 01-15-00317-CR

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

Opinion issued April 3, 2018

Carmen Roe, 440 Louisiana, Suite 900, Houston, TX 77002, Robert Fickman, 1229 Heights Boulevard, Houston, TX 77008, for Appellant.

Kim Ogg, District Attorney, Eric Kugler, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.

Panel consists of Justices Jennings, Keyes, and Higley.

Laura Carter Higley, Justice

Appellant, Andreas Marcopoulos, was charged by indictment with possession of less than one gram of cocaine.¹ Following a motion to suppress, Appellant pleaded guilty, and the trial court placed Appellant on deferred adjudication with community supervision for three years. On appeal, Appellant argued the trial court abused its discretion by denying his motion to suppress the admission of drugs found in a warrantless search of his truck. The State argued Appellant lacked standing to challenge the search. In an earlier opinion, we held that Appellant had standing to challenge the warrantless search of his vehicle.² We upheld the trial court’s denial of the motion to suppress, applying the automobile exception to the requirement of obtaining a search warrant in one opinion.³ The Court of Criminal Appeals reversed our judgment, holding that the search was not permissible under the automobile exception to a search warrant.⁴ The court remanded the case back to this Court to review Appellant’s remaining grounds for challenging the validity of the search of his truck.

We reverse and remand.

Background

On September 10, 2014, Officer J. Oliver was performing surveillance on a bar in Houston, Texas known for narcotics sales. Officer Oliver observed Appellant drive up to the bar in a truck, enter the bar, and leave within three to five minutes. After Appellant left the bar, Officer Oliver followed him. He saw Appellant change lanes without signaling and asked for a uniformed officer to perform a traffic stop.

Officer T. Villa was working that evening with Officer Rogers. They received Officer Oliver’s request to stop Appellant. Officer Villa drove up behind Appellant while he was stopped in a left turn lane. Appellant did not signal his turn until after he began to turn. Officer Villa activated his emergency lights. Appellant immediately pulled into a gas station and parked.

Officer Villa removed Appellant from the truck and "pretty much immediately" placed him under arrest. As Officer Villa took Appellant to the patrol car, Officer Rogers began to search Appellant’s car. Officer Villa described this as an inventory of the car because the car was going to be impounded. He testified that the inventory was necessary because departmental procedure requires that all vehicles be impounded when the driver is arrested.

Officer Villa searched Appellant, placed Appellant’s belongings on the hood of the patrol car, and placed Appellant in the patrol car. He testified that he then helped Officer Rogers search Appellant’s truck. Officer Rogers found two baggies containing cocaine in the truck. Officer Villa then returned to the patrol car, looked through Appellant’s wallet, and found another baggie of cocaine.

Before trial, Appellant filed a motion to suppress. Officers Oliver and Villa testified at the hearing on the motion. Officer Rogers was not present. At the conclusion of the hearing, the trial court denied the motion to suppress. The same day, Appellant pleaded guilty to the offense, subject to his right to appeal the denial of the motion.

Motion to Suppress

In four issues, Appellant argues the trial court abused its discretion by denying his motion to suppress evidence obtained from searching the truck.

A. Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court’s factual findings for abuse of discretion and review the trial court’s application of the law to the facts de novo. Id. Almost total deference should be given to a trial court’s determination of historical facts, especially those based on an evaluation of witness credibility or demeanor. Gonzales v. State , 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility and may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) ; State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

When, as here, a trial judge does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court’s ruling. Walter v. State , 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We will defer to the trial court’s fact findings and not disturb the findings on appeal unless the trial court abused its discretion in making a finding not supported by the record. See Cantu v. State , 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).

B. Error

Appellant’s four issues challenge (1) whether the search of his truck fit within the inventory-search exception to obtaining a search warrant, (2) whether the search could properly be characterized as an inventory-search, (3) whether the Houston Police Department’s inventory search requirements were constitutional, and (4) whether the search exceeded the scope of his arrest.

"Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a few specifically defined and well established exceptions." McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (internal quotations omitted). When a search has been conducted without a warrant, the State carries the burden in a motion to suppress to establish the application of the exception for the requirement to obtain a warrant. See id.

Many permissible searches without a warrant are based on probable cause, like with the automobile exception to obtaining a search warrant. See Marcopoulos v. State , 538 S.W.3d 596, 600 (Tex. Crim. App. 2017). The Court of Criminal Appeals held there was not sufficient probable cause to support a search of Appellant’s truck. See id. at 604. At trial below, the State argued there were two applicable exceptions to the requirement to obtain a search warrant that did not require probable cause: the search-incident-to-arrest exception and the inventory-search-pursuant-to-impounding-the-vehicle exception. See Colorado v. Bertine , 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987) (holding inventory search does not invoke probable cause protections); State v. Ford , 537 S.W.3d 19, 24 (Tex. Crim. App. 2017) (requiring, for search incident to arrest, probable cause for arrest but not for search).

1. Search Incident to Arrest Exception

In his fourth issue, Appellant argues that the officers' search of his vehicle was not permissible under the search-incident-to-arrest exception to the requirement to obtain a warrant. The exception for a warrantless search incident to arrest "derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations." Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009). This exception to the warrant requirement is a limited exception that permits officers to remove any weapons the arrestee might seek to use and to prevent the concealment or destruction of evidence. New York v. Belton , 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981), abrogation recognized in Davis v. United States , 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ; McGee , 105 S.W.3d at 615. Thus, "[a] search incident to arrest permits officers to search a defendant, or areas within the defendant’s immediate control, to prevent the concealment or destruction of evidence." McGee , 105 S.W.3d at 615.

The exception "places a temporal and a spatial limitation on searches incident to arrest, excusing compliance with the warrant requirement only when the search ‘is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.’ " Belton , 453 U.S. at 465, 101 S.Ct. at 2866–67 (Brennan, J., dissenting) (quoting Shipley v. California , 395 U.S. 818, 819, 89 S.Ct. 2053, 2054, 23 L.Ed.2d 732 (1969) (per curiam)). The phrase "the area ‘within his immediate control’ " means "the area from within which he might gain possession of a weapon or destructible evidence." Gant , 556 U.S. at 339, 129 S.Ct. at 1716. That limitation defines a boundary of the exception which "ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy." Id.

"If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the [exception] does not apply." Id. ; see also Knowles v. Iowa , 525 U.S. 113, 116–17, 119 S.Ct. 484, 487, 142 L.Ed.2d 492 (1998) (holding that, when both justifications for exception are absent, namely "(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial," search is unjustified). Accordingly, the basic scope of searches incident to lawful custodial arrests "authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search" or "when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ " Gant , 556 U.S. at 343, 129 S.Ct. at 1719 (quoting Thornton v. United States , 541 U.S. 615, 632, 124 S.Ct....