Wilkes v. State

681 S.W.3d 843

Elanna Jena WILKES, Appellant

v.The STATE of Texas, Appellee

NO. 03-22-00669-CR

Court of Appeals of Texas, Austin.

Filed: November 30, 2023

FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY, NO. 19-0208-K26, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING

Andrew T. Erwin, Assistant District Attorney, 405 Martin Luther King, #1, Georgetown, TX 78626, John C. Prezas, Assistant District Attorney, 405 Martin Luther King, No. 265, Georgetown, TX 78626, Shawn W. Dick, The Williamson County District Attorney’s Office, 405 M.L.K. St., Box 1, Georgetown, TX 78626-6739, for Appellee.

Dal Ruggles, Law Office of Dal R. Ruggles, 1103 Nueces St., Austin, TX 78701, for Appellant.

Before Chief Justice Byrne, Justices Kelly and Theofanis

OPINION

Rosa Lopez Theofanis, Justice

Appellant Elanna Jena Wilkes was indicted for capital murder but was convicted by a jury of the lesser-included offense of murder and sentenced to life imprisonment. See Tex. Penal Code §§ 19.02(b)(3), .03. On appeal, Wilkes challenges the trial court’s denial of her motion to suppress evidence. We will affirm the trial court’s ruling.

BACKGROUND¹

The facts underlying Wilkes’ conviction are largely undisputed. On the night of January 20, 2019, Wilkes drove two associates, Cornelius Martin and Darious Burdett-Hornsby, as the three committed a series of armed robberies at apartment complexes in Austin and Cedar Park. During the third and final robbery, Burdett-Hornsby shot and killed Austin Burroughs, a 22-year-old airman, in front of his wife.

After learning that Wilkes and Martin had outstanding warrants on unrelated charges, police arrested them in a Wendy’s drive-thru on January 24, 2019. Martin was driving Wilkes’ car, and Wilkes was in the front passenger’s seat. Officers performed a "vehicle assault," pinning the car in place with their own vehicles and immobilizing it. The car was then towed to a secure evidence bay at the Killeen Police Department (KPD). At trial, a KPD officer testified that access to the lot in which the car was stored is monitored 24 hours a day "by video and police surveillance" and that the "actual evidence bay for the vehicles is, again, secured through roller doors in a secured building that has limited access to proximity cards."

On January 29th, DPS investigators conducted a warrantless search of the car. Among the items recovered were a swab from a bloodstain on the back of the front passenger’s seat, which subsequent DNA testing suggested was Burroughs’, and a phone and credit cards belonging to the first robbery victim.

Following her, indictment for capital murder, Wilkes filed an amended motion to suppress all evidence collected as a result of the search together with all "fruits born from that evidence." In her motion, Wilkes argued that there had not been exigent circumstances justifying the search and that officers had not shown that they were unable to obtain a search warrant despite knowing "in advance what vehicle they wanted to search, where it was located, and intend[ing] all along to seize it." Because of their delay, Wilkes asserted, the vehicle exception was inapplicable to the search of her car.

At the hearing on the motion, the State responded that the exception was not rendered inapplicable by the car’s being immobilized in the KPD impound lot and that because probable cause to search the car, which was "inherently mobile," had existed at the time of the search, it was covered by the exception. The parties each offered cases from the United States Supreme Court (Supreme Court) in support of their positions.

The trial court denied the motion, and, after a trial, Wilkes was convicted of the lesser-included offense of murder and sentenced to life imprisonment. This appeal followed.

DISCUSSION

[1] In her only issue, Wilkes contends that the trial court erred by denying her motion to suppress because "the search was not justified under the ‘vehicle exception’ to the Fourth Amendment."² Specifi- cally, she argues that the search of her car was not conducted "as soon as possible" and that exigent circumstances for the search did not exist. In support of her arguments, she cites two decisions from the Supreme Court: Chambers v. Maroney, U.S. 42, 51–54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and Coolidge v. New Hampshire, 403 U.S. 443, 462, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), holding modified on other grounds by Horton v. California, 496 U.S. 128, 138–42, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

[2–5] We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)). In general, we apply a bifurcated standard, giving almost total deference to the trial court’s findings of historical fact if they are supported by the record and reviewing de novo the court’s legal conclusions and its application of the law to the facts. See State v. Pena, 581 S.W.3d 467, 474 (Tex. App.—Austin 2019, pet. ref'd) (quoting State v. Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015)). "We review the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact supported in the record." Id. "We will sustain the trial judge’s decision if it is correct on any theory of law applicable to the case." Id. (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).

[6, 7] "Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within a warrant exception." Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017); see Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Under the vehicle exception, police can conduct a warrantless search of a vehicle "if it is readily mobile and there is probable cause to believe that it contains contraband."³ Pugh v. State, 624 S.W.3d 565, 570–71 (Tex. Crim. App. 2021) (quoting Marcopoulos, 538 S.W.3d at 599).

The vehicle exception was first articulated by the Supreme Court in Carroll v. United States, in which it held that officers acted reasonably in searching a stopped car without a warrant because they had probable cause to believe that it was carrying contraband liquor. 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Court justified the exception on the basis that a "vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id. at 153, 45 S.Ct. 280.

The exception was further delimited in Chambers, in which police stopped a station wagon suspected of having been used as the getaway car in an armed robbery of a gas station. 399 U.S. at 44, 90 S.Ct. 1975. The station wagon’s occupants were arrested, and the vehicle was driven to a police station where it was searched. Id. The Supreme Court explained that where "the circumstances that furnish probable cause to search a particular auto for particular articles are … unforeseeable[, and …] the opportunity to search is fleeting since a car is readily movable," the search must either "be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search." Id. at 51, 90 S.Ct. 1975.

However, while cautioning that "[o]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search," the Court held that because the "probable-cause factor" and the station wagon’s mobility "still obtained at the station house," the search there was constitutionally permissible. Id. at 52, 90 S.Ct. 1975; cf. Segura v. United States, 468 U.S. 796, 807, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (noting that Chambers "allowed the warrantless seizure to protect the evidence from destruction even though there was no immediate fear that the evidence was in the process of being destroyed or otherwise lost"). The Court elaborated:

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

Chambers, 399 U.S. at 51–52, 90 S.Ct. 1975.

The Court’s decision in Chambers was distinguished a year later by Coolidge, 403 U.S. at 458–64, 91 S.Ct. 2022. Coolidge was arrested at his home for murder following a multi-week investigation; his car, which was parked in the driveway, was seized pursuant to a defective search warrant, towed to the police station, arid searched for the first time two days later. Id. at 446–48, 91 S.Ct. 2022. A plurality⁴ of the Supreme Court found that the search was not justified by the vehicle exception. Id. at 462, 91 S.Ct. 2022. Emphasizing the fact that the car was seized from Coolidge’s home, see Carroll, 267 U.S. at 153, 45 S.Ct. 280 (contrasting searches of homes with those of conveyances), the Court concluded that there had been no exigent circumstances justifying a warrantless search because the opportunity to search the car was mot "fleeting"—it was regularly parked in the driveway; the car was not accessible by Coolidge or his wife at the time of the search; and there was no "contraband or stolen goods or weapons" in it, Coolidge, 403 U.S. at 460–62, 91 S.Ct. 2022.

We are unable to conclude, as Wilkes argues, that Coolidge establishes an exigency requirement for the vehicle exception. First, the portion of Coolidge rejecting the exception’s applicability under the facts of that case—and to which she directs us—is a plurality opinion to which we are not bound. Cf. Horton, 496 U.S. at 136, 110 S.Ct. 2301 ("Justice Stewart’s analysis of the ‘plain-view’ doctrine did not command a majority, and a plurality of the Court has since made clear that the discussion is ‘not a binding precedent.’ " (quoting Texas v. Brown,...