Pettigrew v. State

appellant. chanan handcuffed DAY, Before LIVINGSTON and taken to Officer Buchanan’s JJ., DAUPHINOT, M. and PATRICE ear, patrol pockets his were searched. and BARRON, J., (Sitting Former Justice $4,212 cash, in a small yielded The search Assignment). residue, containing powder a glass vial white watch, gold gold a one two rings, three OPINION knives, keys, a a and wallet contained placed in Appellant was LIVINGSTON, Texas inmate card. Justice. patrol back of Officer Buchanan’s the seat Gary Wayne (“appellant”) was Pettigrew parked on the street. car was still guilty possession found with intent to de- ap- substance, the search of The officers’ versions of amphetamine, liver a controlled car, pellant’s were visible in years’ what items imprisonment and sentenced fifteen error, car, and to view the items points how came the trial court. In two that after he by varied. Officer Cole testified appellant argues trial erred court appellant and during and Officer Buchanan searched warrant- admitting evidence seized a car, placed appellant squad in the he went appellant’s and less search automobile appellant’s parked. car Officer for an refusing grant his motion instructed verdict, that he and Officer Cole explained Buchanan prove appel- on failure to based to the to talk to the walked back house possession. lant’s affirm because we find plac- people gathered who had outside after was seized after valid evidence talking After with ing in the car. there was sufficient because evidence them, “walked over he and Officer Cole appellant. link the controlled substance [appellant’s] inside.” car” and “looked Arlington Police Glen Cole of the Officer May syringe testified that he saw a Department patrol night was on Officer Cole syringe and Based past Kippers drove Court on console. on 1991. He Texas, appellant, be- he vial found on Officer Cole Arlington, a residence where previously could be narcotics inside had made arrests for narcotics lieved “there there unoccupied vehicle.” Cole testified violations. Officer Cole saw two Officer bag protruding portion driveway of a blue bank in the and wrote down vehicles participate in the revoking appellant's parole location and his failure 1. The warrant issued monitoring program. change to an unknown electronic was for his of residence (Tex.Crim.App.1986). from under the seat that was “readi- 9-10 The U.S. Su driver’s ly excep from outside vehicle. preme recognized visible” Based has several Court upon bag syringe, requirement the blue and the Officer tions to the warrant based on Cole decided to search the vehicle. exigencies “the of the situation.” These ex search,2 inventory “plain ceptions are an Buchanan, According to Officer he ob- doctrine,3 exception,” view” “the automobile served a microwave in the back seat and a and a search and seizure incident to a lawful syringe on the console of the car. He did not arrest.5 See Aitch v. seeing anything “plain recall else view.” (Tex.App.—Houston [14th Dist.] Officer Buchanan testified that he and Offi- ref'd). pet. cer Cole “then searched the vehicle to see what all was it.” suppress, a motion to On During opened the officers fact, such, judge is the trier of and as is the bag. bag blue bank The blue bank contained credibility exclusive of the wit eight syringes, plug adapter, a DC a set of weight given nesses and the to be their testi scales, ease, glasses miscellaneous docu- mony. Romero v. ments, zippered pouch: black (Tex.Crim.App.1990). The trial court is zippered pouch syringe contained another position the best to make the determinations plastic baggies and some clear with white advantage viewing because it has the powder powder in them. The white firsthand, seeing evidence the demeanor amphetamine later determined to be and co- witnesses, expression judging of the the caine, and it was this evidence that formed credibility. Virgi witnesses’ See Jackson v. the for basis this conviction. nia, 307, 319-20, 2781, 443 99 S.Ct. U.S. 2789-90, 560, (1979); 61 L.Ed.2d 573-74 Gee error, point In his first State, (Tex. 154, sa v. 820 178 n. 12 S.W.2d argues the evidence seized from the search of Crim.App.1991). the suppressed automobile should have been illegal because the search was an warrantless judge’s Our review of a trial fact search. “It principle is a first of Fourth findings is limited to the issue whether the jurisprudence police Amendment that findings supported by fact are the record. may not conduct a they search unless first Romero, 800 S.W.2d at 543. If the fact magistrate convince a neutral that there is record, findings supported by are we will probable cause to do so.” New York v. Bel rather, appeal; not disturb them on we will ton, 454, 457, 2860, 2862, 453 U.S. 101 S.Ct. only question address of whether 768, (1981). 69 L.Ed.2d 772 As the movant improperly applied trial court the law to the suppress, the motion to appellant met his facts. Id. defeating initial burden of presumption proper police by conduct establishing that Additionally, reviewing when a trial the search of his automobile occurred without suppress, court’s decision on a motion to we a warrant. must affirm if the decision of the trial court

Once the any theory search was shown to be the decision is correct on of law warrantless, the burden support Calloway shifted to the State which finds in the record. (Tex.Crim. prove State, 645, the reasonableness of the v. warrant- 743 S.W.2d 651-52 State, 7, State, less search. Russell v. App.1988); 717 S.W.2d Shannon v. 800 S.W.2d 364, 42, Opperman, Maroney, 2. See South Dakota v. 428 U.S. 4. See v. Chambers 399 U.S. 90 S.Ct. 3092, (1976); 1975, (1970); 96 S.Ct. 49 L.Ed.2d 1000 see also 26 L.Ed.2d 419 see also Christo State, (Tex.Crim.App.1976), Robertson 541 S.W.2d 608 932, (Tex.Crim. pher v. denied, 1109, t. 429 U.S. 97 S.Ct. 1982). App. Op.] cer [Panel 1145, (1977). 51 L.Ed.2d 563 752, California, 5. See Chimel v. 395 U.S. 89 S.Ct. 443, Coolidge Hampshire, 3. See v. New 2034, (1969). 23 L.Ed.2d 685 2022, (1971); 91 S.Ct. 29 L.Ed.2d 564 Horton v. 128, 2301, California, 496 U.S. (1990); Haley, L.Ed.2d 112 see also State v. (Tex.Crim.App.1991). sixty pet. fifty cars were (Tex.App. Antonio mated officers’ —San 'd). If door of the house. ref reveals trial court’s feet from front the record theory, decision is on an but based incorrect the offi- judge The trial determined that legal the decision another is correct under requirement not first cers did meet the —the record, by the the trial supported right by appel- did not have a be require court’s decision will not reversal. they at time lant’s car observed 651-52; Calloway, Shan See 743 S.W.2d at Specifically, at in this case.' evidence issue non, judge As 800 S.W.2d at 899. the trial concluded: specify case for allow did not basis by route reversed the officers [T]he [sic] ing the from the admit evidence search to be making original the defen- ted, we record must determine whether the dant, returning him and then to the auto- supports a warrantless conclusion mobile, carry did not them within four any search fell within one of the issue sight syringe, which in the recognized exceptions to re the warrant automobile. console quirement. find that it does. We any finding And with the further trip might have made return been Inventory Search justified not the officers would have inventory first look will at the placed have them their —would not proper exception. search In order have a position legally should have inventory lawfully there must be a any been order to make such observa- impounded vehicle. See Backer v. tion. (Tex.Crim.App.1983). testimony regarding at trial the route no im- record this case reveals lawful officers and the circum- traveled therefore, inventory poundment, and “presence” surrounding their at the stances exception search is not a valid basis vehicle came from Officer Cole and Officer appel admission of the items seized from judge’s Buchanan. The trial determination lant’s car in this ease. that the officers’ route would not “have they in where placed position them a should Plain View supported by legally have is the rec- been” Next, plain consider view we the we, ord, therefore, cannot conclude that and pro exception. “plain view doctrine” question require- in the the search met first may that police vides officers seize items “plain doctrine.” Because ment of the view 1) right plain view if: the officers have a to right officers did not have a to be where discovery they where when is be are made, discovery they were when the was 2) made; immediately apparent to it is appellant’s justified car was search of not police items are associat that the viewed plain Haley, under the view doctrine. See activity. Haley, with v. 811 ed criminal State 811 S.W.2d 599. 597, (Tex.Crim.App.1991). 599 out, point that the court’s further trial Here, regarding the testimony the officers’ findings right by be regarding the officers’ to layout of indi- the scene varied. Officer Cole the car was limited to the court’s discussion yard appellant cated that was about applicability plain excep- of the view ten ten feet from the front door and about tion, plain exception not the view police appellant’s feet from vehicle when the exception claimed incident to arrest as search ground. Buchan- ordered him to the Officer by the dissent. thirty appellant an estimated that was Exception Automobile was forty feet the car at the time he from Third, we must consider whether approximated Buchanan arrested. Officer excep fell yard twenty-five wide. Ac- the search within the “automobile to be feet Cole, an cording A automobile to Officer Buchanan’s tion.” warrantless search Officer vehicle, placed, probable was is cause which is allowable where there appel- that contra twenty twenty-five feet believe the automobile contains from v. esti- or evidence of a crime. Carroll lant was arrested. Officer Buchanan band 569 States, 280, Shannon, 132, theory. at 899. 800 S.W.2d United U.S. S.Ct. (1925); Aitch, Therefore, affirm L.Ed. 543 879 S.W.2d at 173. this court must justification exception for this is that court’s decision as a lawful search incident readily expecta- theory are supports vehicles mobile and if the record that privacy respect an though theory tion with automobile not even advanced Aitch, relatively is low. 879 S.W.2d at 173 the State at trial. Id. (citing Opperman, South Dakota v. 428 U.S. case, however, Appellant in ar this 3092, 3096, 367, 96 L.Ed.2d S.Ct. ruling gues we cannot affirm the as a search (1976); Maroney, Chambers v. conceded incident to arrest because the State 42, 51, 1975, 1981, legal at trial that the search was not search (1970)). Further, L.Ed.2d as with Appellant argues the incident to arrest. searches, all warrantless there must be a State this at trial. waived exigent justi- showing circumstances that points prosecutor statement one fies failure to a warrant. first obtain during suppress support the motion to his

Aitch, (citing at 174 United claim that the State waived “search incident Cisneros-Mireles, States v. 739 F.2d 1000 ground upholding to arrest” as a (5th Cir.1984)). search. case, In showing exigent there is no However, question oc- the statement excusing circumstances failure to obtain arguing curred while the State was the facts searching warrant before the car. See Gaul support view the State’s (Tex. din 414-15 primary theory prosecu- at trial. When Chambers, Crim.App.1984). Unlike this case digressed probable tor into a discussion of stop does not involve a of a vehicle on the cause, asked, appellant’s attorney I “Could Instead, open highway. question the car in then, get a clarification from the State Further, parked private driveway. Judge? you alleging Are that this is a police officers testified re prosecutor search incident to arrest?” The keys appellant. trieved to the car from Un responded: robbery like Chambers where there saying, Judge, I’m No. What is that’s the accomplices large, were still at there is no leading up facts to it. evidence in the record of similar concern in Finally, saying I’m officer— police this case. What is there were two my squad assuming argument again, from and two cars at the scene. An there, lawfully the officer was what officer could have remained at the scene until syringe officer saw was a view. prevent a search warrant was obtained to anyone probable Did that “mobilizing” from he have cause search the automobile or tampering car even if the defendant consented or with items the automobile. Be cause the didn’t consent? State failed to sustain its burden of proof by establishing exigent the existence of prosecutor The trial then directed the circumstances, the search in this case does police back to the issue of whether the officer exception.” not fall within the “automobile lawfully driveway. Search Incident To Arrest Appeals The Texas Court of Criminal has appeal adopted

The State contends on “the classic definition of waiver.” State, 121, appellant’s Capistran search of car was a lawful search v. 759 S.W.2d 123 1982). (Tex.Crim.App. Op.] incident to arrest. As [Panel stated earlier this Waiver is de opinion, reviewing relinquishment when a trial court’s deci- ‘“an intentional or fined as ” suppress, uphold right privilege.’ sion on a motion to will a or we abandonment of known State, supports (quoting the decision if the record in 577 699 the case Id. Robles v. S.W.2d any legal ground. Calloway, (Tex.Crim.App.1979)). the decision on do not believe the 651-52; Shannon, single during 743 S.W.2d at 800 isolated statement made S.W.2d Thus, reviewing arguing theory uphold at 899. a can affirm court a middle of another relinquish ruling theory ing on a not an intentional advanced at search was supports appellate if court appeal right the State the record on the ment of the to have an 570 Chimel, 395 on or evidence. supporting evidence destructible

review the record for 2040, 762-63, at 23 L.Ed.2d in this a at 89 S.Ct. search case was U.S. that the Further, to arrest. we at 694. lawful search incident believe two other defense coun do not principle, but recognized this Belton prevent the dissent sel’s statements cited rejected application the rule case-by-case a arguing that ed defense counsel from Bel confronting when automobile searches. to an arrest. The search was not incident 2863, ton, 458, 101 at 69 at S.Ct. 453 U.S. quoted by the dissent are such statements Belton, police a 773. Under when L.Ed.2d at arguments. officer made a lawful custodial has instance, despite first court’s In the vehicle, may occupant the officer go did not statement the defense need of the vehi contemporaneous make a search Belton, of New York v.

into discussion is entitled to search cle. The officer exactly proceeded defense counsel make vehicle passenger compartment of the entire arguments. such immediate as the within the arrestee’s area simply The second instance is defense 2864, 460, at control. 453 U.S. alleg- that the State had counsel’s assertion State, 774; 726 v. 69 L.Ed.2d at Osban not edly conceded the search was incident 107, (Tex.Crim.App.1986), over 111 S.W.2d As above we do not believe arrest. stated Heitman ruled with to the extent conflict a direct or the State made such statement State, (Tex.Crim.App. v. 815 S.W.2d therefore, We, acquiescence. conclude 1991). right did not waive the to have State upheld Belton, incident to arrest. search as search have used Since courts an auto “bright-line” for the rule search determining In the ex whether arrest, allowing po following mobile a lawful first, applies, must a lawful ception there be passenger compart lice to search contentions, Contrary appellant’s arrest. if the arrestee ment of the arrestee’s vehicle or war parole revocation warrant “blue occupant recent occupant was an See v. rant” was valid warrant. Garrett Osban, A at 111. vehicle. See 137, (Tex.Crim.App. S.W.2d is even when search under Belton allowed 1990). Therefore, law appellant’s arrest was placed the arrestee has been handcuffed ful. Garcia, police v. car. See State following A a lawful custo search (Tex.App. Antonio —San permitted arrest is because of the need dial ref'd). 1990, pet. Applying “bright-line” any weapons that the arrestee to remove ease, car appellant’s search rule to this attempt might use in order to resist arrest be incident to arrest was a search lawful preserve the need escape or to effect police officers observed cause the California, v. evidence. Chimel immediately prior to ar driving vehicle 752, 762-63, 23 L.Ed.2d S.Ct. resting only from the vehicle him feet (1969); Smith Abandoning occu parked. the “recent 163, (Tex.App. [14th Dist.] 166 for provision —Houston an incentive pant” would create ref'd). 1988, pet. scope of The áttempt to scene to flee the detainees to “ however, justified ‘strictly tied to must be point of Appellant’s first avoid a search. y' which rendered its b circumstances error is overruled. Chimel, permissible.” 395 U.S. at initiation error, point ap 762, 2039, In his second 23 at 693 89 S.Ct. at L.Ed.2d Ohio, 19, refus 1, pellant argues the court erred 88 (quoting Terry (1968)). in 889, for an 1868, ing appellant’s motion 1878, grant 20 L.Ed.2d 904 5.Ct. ground there on the Thus, in inci structed verdict area a search the searchable appel link” no between “affirmative to a lawful is the area from which dent reviewing In amphetamine.6 possession weap- lant and the might gain arrestee of a an support sufficiency challenge of the evidence to denial motion a trial court's of a 6. A State, 467, 470 actually challenge Cook v. 858 S.W.2d conviction. instructed is verdict

571 h.) rejected sufficiency support pet. specifically this court of the evidence to conviction, light in in prior the evidence is viewed court’s decision Brown to extent judgment. analysis most favorable to the Narvaiz v. it that the affirmative link held State, 415, (Tex.Crim.App.1992), proof 840 S.W.2d 423 longer no viable as an element of — denied, U.S.-, Therefore, rt. 113 S.Ct. re possession offenses. we will ce (1993). 1422, 122 L.Ed.2d 791 The critical presented in view the evidence the instant whether, inquiry viewing is after so the evi whether there is sufficient case to determine dence, any rational trier of fact could have requisite affirmative evidence to establish the found the essential elements of the crime conducting link In factors. this review we beyond a reasonable doubt. Moreno v. Virginia will use the Jackson v. standard of State, 866, (Tex.Crim.App. 755 867 S.W.2d 319, 2789, 61 review. 443 U.S. at 99 S.Ct. at 1988). gives play familiar full “This standard at L.Ed.2d 573. responsibility fairly to the of the trier fact testimony, weigh to resolve conflicts in the analysis The “affirmative link” is evidence, and to draw reasonable infer used to review the evidence of the accused’s ences from basic facts to ultimate facts.” knowledge and control the contraband. Jackson, 319, 2789, at 99 at 61 U.S. S.Ct. State, 185, Martinets v. 884 S.W.2d L.Ed.2d at 573. 1994, (Tex.App. pet.). no When a defen —Austin charged possession dant is with of a con sufficiency of the evidence is substance, trolled the evidence must affirma question appeal of law. The issue on is not tively link the defendant to the contraband. whether we as a court believe the State’s (Tex. State, 220, 222 Green v. 892 S.W.2d evidence or believe that the defense’s evi filed). 1995, App. pet. Among —Texarkana outweighs dence the State’s evidence. See determining factors be considered State, (Tex. 839, Matson v. 819 S.W.2d 1) an link whether affirmative exists is: State, Crim.App.1991); Wicker v. 667 S.W.2d presence defendant’s when the search war 137, denied, (Tex.Crim.App.), cert. 2) executed; rant was whether the contra 892, U.S. 83 L.Ed.2d 204 3) view; band was in the defendant’s (1984). judgment may not be over accessibility proximity to and the of the nar unsupported turned unless it is irrational or 4) cotic; whether the defendant was under beyond proof a reasonable doubt. Mat 5) arrested; the influence of narcotics when son, 819 S.W.2d at 846. possessed con the defendant other whether The standard for review is the same 6) arrested; traband or narcotics when for direct and circumstantial evidence cases. incriminating whether the defendant made Geesa, past, In 158-62. 7) arrested; statements when whether the successfully argued the State has that Geesa 8) flee; attempted defendant whether the redefined the law such that traditional “affir 9) gestures; defendant made furtive whether analysis requiring mative link” “link” a direct 10) contraband; there an odor between the contraband and the defendant drug parapher contraband or whether other drug circumstantial evidence is no case 11) present; nalia was whether defendant longer appropriate. In Brown v. right possess place owned or had the (Tex.App. pet. Worth —Fort 12) found; drugs were wheth granted), this court held that because the place drugs er the were found was en analysis link” closely “affirmative is so tied to Id.; closed. Chavez v. hypothesis analysis” rejected the “reasonable (Tex.App. [1st Dist.] 288-89 —Houston Geesa, longer light it is “no viable ref'd). pet. Brown, Geesa.” 699. Howev er, recently published in a opinion, Howell v. contraband in this ease was found in The 2-93-454-CR, appel- No. an WL 515836 enclosed area —a vehicle—and the 31, 1995, (Tex.App. Aug. person driving Worth no lant was the last the vehicle. —Fort Madden, 1993) (Tex.Crim.App. (citing guiltftnnocence phase Madden v. of trial. (Tex.Crim.App.1990)). We S.W.2d at 686. must review all the evidence introduced at the arrest, in to like Belton appellant. The incident registered to search The vehicle was New York or— was discov- verses bag in which contraband blue the driver’s protruding from under ered was go to THE don’t need COURT: You according officers at to one of the seat into that. thus, to scene, readily accessible and again day Appellant counsel The next for Further, contra- other appellant. there was invalidity He con- arguing the of the arrest. in drug paraphernalia the vehicle: band and it’s by stating: that cluded “Not that —not eight ear and syringe on the of the a console case, germane to this because particularly bag syringes and a set in the blue of scales already that this has conceded State parapher- containing drugs. drug Other to arrest.” an arrest —a search incident not cash, $4,212 in a small nalia contraband — Appellant allowed that was not It is clear residue, containing powder white glass vial a a was not search argue to that search appel- found on and one or two knives —were agreed to arrest because the State incident lant. properly a search search was not in this case was hold that the evidence We im- arrest and the court incident to because “link” the contra- appellant sufficient In his oral plicitly agreed with the State. permit judge trial to reason- band and to law, the findings of fact and conclusions ably was in infer and conclude judge specifically found that: trial Appellant’s of the possession amphetamine. officers reversed [sic] the route point of overruled. second error is making original of the defen- dant, auto- returning him to the and then judgment of is affirmed. The the trial court mobile, carry not within did them syringe, in the sight which was DAUPHINOT, Justice, dissenting. console of automobile. majority the rec- Because the misconstrues any finding that with the further And the search support finding ord its might trip that been made return have justified as a Appellant’s vehicle was justified would not have the officers arrest, respectfully dis- incident to I search a them in placed not have their —would sent. they have legally position where should out, majority pros- points any when the such observa- As order make been argued probable cause ecutor tion. asked, get I Appellant counsel for “Could permis- were incident to arrest If search then, Judge? from clarification the State to the trial presented the facts sible under you alleging that this is a search incident Are court, law- officers could have returned prosecutor responded “No.” to arrest?” They would then fully Appellant’s car. exchange as majority refers to position syringe to see the have been during the “single isolated made statement judge found no plain view. When the arguing uphold- for middle of another returning for officers’ lawful reason reading of the ing the search.” A careful car, were implicitly he found the officers simply shows that not the case. record this is at or in justified placing themselves not recognized that for the State Counsel any for reason. the car justified as could not be search vehicle Belton, York v. New Unlike the trial incident arrest. And a search (1981), L.Ed.2d agreed with him. initiate us did not in the case before attempted to Appellant counsel When They lights. their stop. did not activate justified not be argue that the search could pulled they Appellant waited until Instead arrest, he was not a search incident to as out, car, driveway, parked got his into the ar- specifically he to do so. More allowed They did walking to began the house. gued: searching the area suggest not were weapon might gain a guy that’s ar- from which got a [COUNSEL:] Remember, Appellant destroy It’s not evidence. away the car.

rested from thought- I dissent to the already walking For these reasons toward the house when opinion diligently researched ful and confronted the officers. The officers first majority, violation of the law and did not observed no

testify they preserve car to returned is, consequently, sugges- no

evidence. There they

tion that knew of evidence to be found

in the car. exigent circum-

The record reflects no constitutional and statu-

stances to avoid the car tory requirement. Appellant’s warrant Jay LeBLANC, Appellant, Michael driveway private prop- parked on

erty. Appellant hand- The record shows police cuffed and in the ear when the officers Texas, State. STATE people talk to in the house went first to No. 2-94-501-CR. Appellant’s au- and then detoured look tomobile “to see what all was in it.” Since Texas, Appeals Court Appel- had taken contents of Fort Worth. pockets, they keys. car No- lant’s had his any they where do the officers state reason Sept. 1995. car, could not have locked the left one officer car, they at the and called for a if warrant probable

indeed had cause to search. The stipulated the found on

State white residue

Appellant They was not contraband. saw the

syringe may may provided which not have

probable they cause after went back to the they

car. The cocaine found as a result of

the search was under the seat black

pouch zipped bag. inside a blue bank And

again, Appellant there is no evidence fled prevent

from his car to its search.

There is no evidence to contradict the trial legal finding

court’s factual and that the offi- Appel-

cers no lawful had reason to return to

lant’s car.

For this court now to hold the search

proper as a fun- search incident arrest is (1)

damentally unfair because: as- State open

sured court that there was attempt justify

no the search as a search (2) arrest; judge

incident to the trial told

Appellant that no to offer there was need (3) theory;

evidence to rebut judge stopped Appellant

trial he at- when

tempted present regarding the law admissibility. Additionally, finding

majority now its own substitutes judge.

fact for that of the trial The officers returning

either had a reason for lawful not.

the car or did they did not.

found

Case Details

Case Name: Pettigrew v. State

Court Name: Court of Appeals of Texas

Date Published: Nov 16, 1995

Citation: 908 S.W.2d 563

Docket Number: 2-93-512-CR

Court Abbreviation: Tex. App.