Corey Ladon Perry v. State, 05-15-01267-CR

Background

In May 2014 three uniformed Dallas narcotics officers in an unmarked car investigated drug complaints near a grocery store and observed a gold car with three people at the trunk.
An officer saw someone rolling what he believed to be a marijuana cigarette; as officers approached the individuals discarded the cigarette and drug residue and rolling paper were on the trunk and ground.
Officer Varden asked the individuals questions; appellant Corey Perry handed Varden a plastic bag containing several small baggies that Varden recognized as crack cocaine.
Before handcuffing Perry, another officer observed an imprint of a gun in Perry’s waistband, lifted his shirt, and seized a handgun for officer safety; a field test confirmed cocaine and a later jail search recovered powder cocaine from Perry’s shoe.
Perry moved to suppress the seized evidence arguing there was no reasonable suspicion to stop or detain him and that the searches/arrest were unlawful; the trial court denied the motion.
Perry pleaded guilty (waiving jury) to being a felon in possession of a firearm and possession with intent to deliver cocaine in a drug-free zone; the court assessed sentences of 5 and 15 years. On appeal, Perry challenged only the denial of the suppression motion.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officers had reasonable suspicion to approach/detain Perry	Perry: Officers could not identify who rolled the cigarette, could not be sure it was marijuana, and therefore lacked reasonable suspicion to stop or detain him	State: Officers observed apparent drug activity (rolling cigarette, residue on trunk/ground) near complaints, giving reasonable suspicion to investigate; encounter was consensual	Court held the initial interaction was a consensual encounter and valid; no Fourth Amendment violation
Whether Perry’s voluntary handing over of cocaine was a seizure/search	Perry: Giving the baggie occurred during an unlawful stop, so any resultant evidence should be suppressed	State: Perry voluntarily gave the baggie while not detained; officer’s experience plus field test provided probable cause	Court held the baggie gave probable cause for arrest; handing was voluntary and admissible
Whether gun seizure was lawful	Perry: Seizure/search of person was unlawful because arrest/detention was unlawful	State: Officers were in process of arresting Perry for cocaine when an officer observed the gun imprint and lawfully retrieved it for safety as search incident to arrest	Court held the gun seizure was lawful as a search incident to a lawful arrest
Whether overall denial of suppression was error	Perry: All evidence flowed from an unlawful stop/arrest and should be suppressed	State: Observations, voluntary delivery of drugs, field test, and safety concerns justified arrest and searches	Court affirmed denial of suppression; convictions affirmed

Key Cases Cited

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) (trial court is sole trier of fact on suppression issues)
State v. Maldonado, 259 S.W.3d 184 (Tex. Crim. App. 2008) (appellate court defers to trial court’s resolution of conflicting evidence)
Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) (review considers totality of circumstances for Fourth Amendment issues)
State v. Castleberry, 332 S.W.3d 460 (Tex. Crim. App. 2011) (distinguishing consensual encounters from seizures)
State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008) (officers may approach and ask questions; seizure requires show of authority)
Gerstein v. Pugh, 420 U.S. 103 (U.S. 1975) (definition of probable cause for arrest)
Beck v. Ohio, 379 U.S. 89 (U.S. 1964) (probable cause standard quoted)
State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) (search incident to arrest principles)
United States v. Robinson, 414 U.S. 218 (U.S. 1973) (search incident to lawful custodial arrest permits searching person for weapons/evidence)