Case Information

*1 PD-1356-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/20/2015 9:45:15 AM Accepted 10/20/2015 4:54:10 PM ABEL ACOSTA NO. PI)-1356-15 CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS RICARDO SOTO Appellant V. STATE OF TEXAS Appellee APPELLANTOS PETITION FOR DISCRETIONARY REVIEW Petition from the 66th Judicial District Court of Hill County, Texas Trial Court Cause Number 39,173 and Cause Number l0-15-00029-CR in the Tenth Court of Appeals of Texas Chelsea Tijerina State Bar No. 24076733 E-mail : attorneychelsea@gmail. com L.q.w Orr,rcn oF SIMEn &TnrnNs

3706 Bellmead Drive Waco, Texas 76705

(2s4) 412_2300 (888) 3 17 -7 610-Facsimite *2 IDENTITY OF PARTIES AND COUNSEL Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides the following list of all parties to the trial court's judgment and the names and addresses of all trial and appellate counsel. Appellant:

Ricardo Soto 21040 West Lincoln Avenue New Berlin, Wisconsin 53146

Trial Court Judge: Hon. F.B. (Bob) McGregor Jr. 66th Judicial District Court Judge Post Office Box 284 Hillsboro, Texas 76645 Telephon e: 25 4-582-40 45

Trial Counsel for Appellant: Josh Tetens Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephon e: 25 4-4lZ-23 00

Appellate counsel for Appellant: chelsea Tijerina Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephon e: 25 4-412-2300

: Mark pratt Hill County District Attorney's Office P.O. Box 400 Hillsboro, Texas 76645 Telephon e: 25 4- ^[5] 82- 407 0

Soto v. Stat+-Appellant's Petition for Disdetionarv Review *3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COLINSEL ......... I INDEX OF AUTHORITIES. ............4 STATEMENT REGARDING ORAL ARGUMENT..... ...... 6 STATEMENT OF THE CASE/ STATEMENT OF PROCEDURAL HISTORY

ISSUE

The Tenth Court of Appeals erred in finding the search of Appellant valid under Teruyv. Ohio.

....... ......7 REASON FOR REVIEW The Tenth Court of Appeals disregarded established case law from the United states supreme court, this Honorable court, and sisters courts of appeal to find the search of Appellant's person constitutionally justified and within the scope of Terry v. Ohio..

...... g

ARGUMENT

I. Factual Basis. il.

Case Law A Teryy search is appropriate where the officer has reasonable" articulable facts that a person is armed and dangerous, and the officerstrictlytailorshissearchtoapatdownforweapons................. l0

il. Conclusion

......l7

PRAYER FOR RELIEF.... 18

CERTIFICATE

OF SERVICE. 18 CERTIFICATE OF COMPLIANCE

T9

Soto v. Stata-Appellant's Petition for Disqetionary *4 APPENDX: ,soto v. state,2Ol5 Tex. App. LE)ils g524 (Tex. App.-waco

August 13, 2015, no pet. h.). Soto v. State-4ppellant's Petition for Discr€tionary Review Page 3 *5 INDEX OF AUTHORITIES Texas Cases: Page No. Carmouche v. State,l0 S.W.3d 323 (Tex. Crim. App. 2000) ....... 9, ll,12,16 Grffinv. State,215 S.W.3d 403 (Tex. Crim. App.2007) ........ t2 Lippert v. State,664 S.W.2d 712 (Tex. Crim. App. 1934) ........ t2 Del Carmen Moreno v. State,7g7 S.W .2d 2Zg (Tex. App.-Corpus Christi 1990, no pet.)..

.... 12,16 Guevarsv. state,6 S.w.3d 75g (Tex. App.-Houston [lst Dist.] rggg). 11. ^[16] O'Hara v. Stote,27 S.W.3d 54g (Tex. Crim. App. 2000) . . .. .. . . .. I I Ramirezv. State,672s.W.2d4g0 (Tex. Crim. App. 19g4) ....... 16 state v' Phillips, 752 s.w.2d r94 (Tex. App.-Amarillo 19gg, no writ.).. ....... 12, 16 state v. williams,312 s.w.3d 276 (Tex.App.-Houston [l4th Dist.] 20l0,no pet.).

13,16

Woodv. Stote,sls S.W.2d 300 (Tex. Crim. App.1974)...... .... t3 Worthey v. State,805 S.W.2d 435 (Tex. Crim. App. 1991)

......... t6

Soto v. State--Appellant,s petition for Discretionary *6 X'ederal Cases: Page No. Coolidge v. New Hampshire,4O3 U.S. 443 (1971) ........ 16 Katzv. UnitedStates,3gg U.S.347 (1967). ........ ll Marylandv. Buie,494 U.S.325 (1990)...... ................ ll Minnesotav. Carter,525 U.S. g3, gg (199g).. ......... lt Sibronv. New York,392 U.S. 40 (196S)... . 9, 10, 12,13,15, 16 Terry v. Ohio.392 U.S. I (1968). . 2, g,9, 10, tl,l2, 14, 15, 16 Ybarrav. Illinois,444 U.S. 35 (1979).. I l, 16 Federal Statutes: U.S. Cotisr. Amend. IV State Statutes:

Page No. Soto v. StatFApp€llant s petition for Discrotionary Review Page 5 *7 TO THE HONORABLE JUDGES OF TI{E COURT OF CRIMINAL APPEALS: Oral argument would not benefit this Honorable Court as the issues in this case are quite straightforward.

ST

This is a criminal case in which Ricardo Soto was convicted of possessing less than one gram of cocaine.l In Cause Number 38,173, Mr. Soto was indicted as follows: "RfCARI)O SOTO hereinafter styled Defendant, on or about the 27rH day of FEBRUARY, 2014 and before the presentment of this indictment, in the County of Hill and State aforesaid, did then and there intentionally or knowingly possess a controlled substance, namely, cocaine of less than I gram, including any adulterants or dilutants.,'2 Appellant moved to suppress evidence obtained during law enforcement,s

illegal search of his person.' The district court denied Appellant,s Motion to Suppress.a

The case was tried to the bench on December 5, 2014 in the 66th Judicial ] O c.n. at2o-2t). " (I C.R. at 4). ' (I C.R. 5-6). n

1t c.R. at z;. Soto v. State-Appellant's petition for Discletionarv *8 District Court before the Honorable Judge F.B. (Bob) McGregor.5 During the bench trial, Appellant re-urged his motion to suppress evidence and the district court again denied said motion.u Th. district court found Appellant guilty of possession of a controlled substance in penalty group one in the amount of one gram or less and assessed punishment as follows: 20 months state jail probated for 4.5 years and a fine of $2,000.00.7

Appellant timely filed a Notice of Appeal on December 5,2014.r on appeal, the Tenth Court of Appeals upheld the legality of the search and denied Appellant's sole issue.e Thereafter, the Tenth Court denied Appellant,s Motion for Rehearing on September 3,2015. The Court granted one motion for an extension of time in which to file the Petition for Discretionary Review; therefore, the Petition for Discretionary Review is due by November 4,2015.

ISSUE

The Tenth Court of Appeals erred in upholding the unconstitutional search of Appellant. s

1t c.R. at20). o 1t R.R. at t7). ' 1t c.R. at20-2.1\. 8

1t c.R. at27). e soto v. state:,2015 Tex. App. LEXIS g524 at *r0 (Tex. App.-waco August 13,20r5)(mem. Soto v. StatFAppellant's petition for Discretionary *9 The Tenth Court of Appeals has blatantly disregarded the Fourth Amendment's guarantee against uffeasonable searches. In Mr. Soto,s case, the Tenth Court of Appeals held that the reasonable suspicion necessary to warrant a Terry frisk need not be particularized to the person searched.l0 The Tenth court of Appeals further held that Terry v. ohio permits an officer to remove a person,s outer clothing during a search for weapons if the person's outer clothing is .onot transparent."l I

The Tenth Court of Appeals' decision in this case conflicts with decisions from the United States Supreme Court and this Honorable Courtl2 as well as with decisions from sister courts of appeal.t' Additionally, the Tenth Court of Appeals "has so far departed from the accepted and usual course ofjudicial proceedings... as to call for an exercise of the Court of Criminal Appeals, power of supervision."r4 Left unchecked by this Honorable Court, the Tenth Court of op., not designated for publication). i!::^:t:,n,-r^o_r,t}*ltt trTll 8s.24:at *4 (rex. App._waco August r3,20rs,no pet. h.) (mem. op., not designated for publication). " Id.,at*5. ^[12] Tpx. R. App. P.66.3(c). ^[13] Trx. R. App. P.66.3(a). 'a TEx. R. App. p.66.3(0. Soto v. State-Appellant's petition for Discretionary

*10 Appeals' holding in Mr. Soto's case will exponentially expand the justifications for and the breadth of a Terrv search.

ARGUMENT

An officer may frisk a person for weapons under Terry v. ohio only when the officer has reasonable, articulable facts directed to the person searched that the person is armed and dangerous.tt Despite the particularity requirement, the Tenth Court of Appeals found the officer's search of Appellant valid under Terry v. ohio based solely on the officer's knowledge that Appellant's companion had a criminal history.r6

Although the search approved by Terry v. Ohio consists solely of a,,limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault,rT the Tenth Court of Appeals found the officer,s removal of Appellant's outer clothing constitutionally sound based on the fact that Appellant's outer clothing was ,,not

transparent.',18 L Fsctual Busis The Tenth Court of Appeals set forth the following facts in its opinion:

ts Trrry v. ohio.392 u.s. l,2s (196g); sibron v. New york,392u.s. 40, 65 (196s); carmouche v. State,10 S.W.3d 323,329 (Tex. Crim. App. 2000). '6 soto v. state,2015 Tex. App. LEXIS s5t4, at*4 (Tex.App.-waco August 13,20r5,no pet. f;) (mem. op., not designated for publication). " Sibron,392U.S. at65. Soto v. Stat+-Appellant,s petition for Discretionary Review

Page 9 *11 soto was travelling in a vehicle with four other people which was stopped for vehicle equipment violations by Joe Abreu who, at the time, was working for the Hilsboro porice Department. The driver of the vehicle gave his consent for Abreu to search the vehicle. After getting everyone out of the vehicle, Abreu decided to pat-down all the occupants for weapons. Soto was wearing a cap. Abreu attempted to pat-down the cap and removed it from Soio's head. when he removed the cap, a folded dollar bill fell out. The dollar bill contained under an ounce of cocaine...t' Abreu removed five individuals, including soto, from the vehicle. He had information that at least one of the other individuals had a criminal history of possessing a controlled substance with intent to distribute and was known to traffic large amounts of cocaine... Abreu testified that Soto was wearing a cap and that the cap was not transparent to be able to see whether there was a weapon in it. Further, Abreu testified that a bladed weapon like a razorbrade inside a cap would not necessarily be felt when a cap is patted against someone's head. Through training at the poii." academ/ and experience, Abreu had learned that the only proper way to search a cap for bladed weapons is to remove the cap fromthe person's head.2O

IL Case Law To conduct afriskfor weapons, on officer must have reasonable, articulable facts purticularized to the person to be seurched that the person is armed and dangerous.

Law enforcement may not place hands on a citizen 'oin search of anything', tl Soto,2015 Tex. App. LEXIS g524, at *5. le^ Soto,2015 Tex. App. LEXIS 8524, at *1. 'o Id., at*4. Soto v. StatFAppellant's petition for Disqetionary

*12 without "constitutionally adequate, reasonable grounds for doing so.,,2t The Fourth Amendment of the united states constitution prohibits unreasonable searches and seizu."s." "searches conducted without a wartantare unreasonable per se under the Fourth Amendment, subject only to a few and well-delineated exceptions."23

In the interest of officer safety, the United States Supreme Court created an exception to the general rule prohibiting warrantless searches which allows officers to frisk or "pat down" a person to determine whether the person is carrying a *"apon.'o

o'Terry does not authorize a frisk for weapons in all confrontational encounters."25 A "weapons frisk" is justified only where the officer can point to specific, articulable facts which reasonably lead him to conclude that the suspect might possess a weapott. 'u Because every individual is ,oclothed

with constitutional protection against an unreasonable search,"27 a Terry search for weapons must be based on a reasonable suspicion particularized to the person " Sibronv. New York,392U.S.40,64 (1963). 22 u.s. coNsr. Amend ry; Minnesotav. carter,525u.s. g3, gg (199s). 23 o'Hora v. State,27 S.W.3d 548, 550 (Tex. crim. App. 2000) (citing Katz v. (Jnited states, 389 U.S. 347,3s7 (1967)). |i ,** v. Ohio.392 U.S. r,24 (rs6|). " GLtevqrav. state,6 s.w.3d at764 (citing Marylandv. Buie,4g4 u.s. 325,333-334 (1gg0). 26 Car*ouche v. Siate,10 S.W.3d 323,32g (Tex. Crim. App. 2000). Soto v. Stats-Appellant,s petition for Discretionarv Review

Page I *13 searched.28 A person's mere proximity to others independently suspected of criminal activity does not, without more, justiff a search of that p.rror.r, An officer may not search a person in a vehicle merelv because another occupant of the vehicle is suspected of criminal activity.3o The nature of the suspected criminal activity is a relevant consideration in determining whether a frisk is warranted.3l However, an officer may not o.base a determination that his safety is in danger solely upon the basis that .the suspect is a drug dealer."'32 b- The scope of o Terry search must be carefutty timited. Under Terry v. Ohio, the frisk must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer."3' Th. search for weapons approved in Terry consists solely of a limited patting of the outer clothing of the suspect for 2'

Ybarra v. Illinois,444 U.S. gS, 94 (lg7g). 28,. ,i Llfyyt v. State,664 S.W.2d 712,717 (Tex. Crim.App. 1934). 2e Dei carmen Moreno v. state,7g7 s.w.2d,22g,n0Jit g"r. App.-corpus christi 1990, no p^et.) (citing Terry v. Ohio,392 U.S. 40 (1963). ,", Yrt v. Phillips,752 s.w.2d rg4, 196 (Tex. App.-Amarillo 19gg, no writ.). '' C'armouche,l0 S.W.3d at 330.

!:,fly:. stqry,2r5 s.w.3d 403,4r1 (Tex. crim. App.2007)(citing Teffy,392 u.s. at 33)). " 392 U.S. at 29. ^^ Soto v. StatFAppellant,s petition for Discretionarv Review

Page'12 *14 concealed objects which might be used as instruments of assault.3a A search for narcotics, rather than weapons, during the frisk is not allowed.35

"The puqpose of a limited search after investigatory stop is not to discover evidence of crime but to allow the peace officer to pursue investigation without fear of violence' So long as the officer... has reason to believe that the suspect is armed and dangerous' the officer may conduct a weapons search limited in scope to the purpose of enabling the officer to pursue investigation without fear of violence'"36 when conducting a pat-down search, an officer may not employ a more intrusive means of searching the suspect without first patting down the suspect and feeling potential weapons.3T

The officer lacked reasonabre suspicion directed to Appellant that Appellant was armed and dangerous.

In Mr. Soto's case, the officer not only testified that he did not fear for his 3o_ Sibronv. New York,392U.S.40,65 (196g) 3s Id. at 64. 36

wood v. state,s15 S.W.2d 300, 306 (Tex. crim. App. lg7|)(holding the search appropriate where "limited to a 'pat down"'). ^[37] stat, v. williams, itz s.w.: d276,283 (Tex. App.-Houston Il4th Dist.] 20T0,no pet.) (an offtcer's requesting the suspect to move her bra rtrup du. to fear she might huu. u knife in her bra went beyond the bounds of a Teffy frisk); Sibroi v. New york,392U.S. 40, 65 (196g) (holding that the officer exceeded the permissible scope of a pat down search for weapons by making oono attempt at aninitial limited exploration for arms" and instead .lhrust[ing]

his hand into [Appellant's] pocket"). Soto v. State-Appellant's petition for Discretionarv

*15 safety when he detained Mr. Soto and his companions on the side of the highway3s but also that Appellant and his companions "seemed to be very cooperative.,'3e The officer further stated that neither Appellant nor any of the other occupants of the vehicle made "any threatening gestures or comments."40 The officer stated that at the time of the detention, he had no knowledge that Appellant had any criminal history.ar

Despite Appellant's compliance during his encounter with the officer, the officer decided to frisk Appellant for weapons. The Tenth Court of Appeals held that the officer was justified in searching Appellant because the officer had "removed five individuals [from the vehicle], including Appellant," one of whom "had a criminal history of possessing a controlled substance with intent to distribute and was known to traffic large amounts of cocaine."a2

By holding that the search of Appellant's person was justified under Terry v. Ohio based solely on law enforcement's knowledge that Appellant's associate had a criminal history, the Tenth Court of Appeals stands in gross contravention of this Court's and the Supreme Court's rulings. As such, this Court should grant the " 1l R.R. at2o). 3e ^[11] n.R. at 18); (1 R.R. at2t). oo (1 R.R. at2o-21\. ot ^[11] R.R. at24). o' soto v. state,2015 Tex. App. LEXIS 8524, at *4 (Tex. App.-waco August 13,20r5,no pet. Soto v. StatFAppellant's Petition for Discretionary Review *16 Petition for Review.

d- The ofJicer exceeded the scope of rerry by removing Appellant's outer garment. In this case' the officer's frisk of Appellant was not confined in scope to a "limited patting of the outer clothing" as authorized by Tnry v. ohio.a3 Rather than patting down Appellant's outer clothing, the officer opted to remove it.aa By removing Appellant's outer clothing, the officer employed a more intrusive means of searching the suspect without first patting down the suspect and feeling potential weapons.ot

The officer testified to the following regarding his search of Appellant: Defense counsel: o'you didn't pat down [Appellant],s hat prior to

removing it, did you?,' Officer: "No, sir.,' Defense Counsel: 'oAnd once you did pat down the hat after you removed it, there wasn't anything that you felt by touch or contraband that you felt by touch in the hat, was there?"

Officer: 'No, sir."46 The Tenth Court of Appeals' bizarre reasoning for why the officer did not h.). o3 Sibronv. New York,392U.S.40,65 (196g). o.a. Soto,2015 Tex. App. LEXIS g5i4, at *5. ot

see state v. williams,312 s.w.3d 276,283 (Tex. App.-Houston [14th Dist.] 20r0,no pet.). a6 1t R.R. at2r\. Soto v. StatFAppellant's petition for Djscretionarv *17 exceed the scope of Terry by removing Appellant's cap was as follows: 66the cap was part of his outer clothing, like a jacket or overcoattt and .6was not transparent to be able to see whether there was a weapon in it... [A] bladed weapon like a razotblade inside a cap would not necessarily be felt when a cap is patted against someone,s head.,,a7

e' The Tenth Court of Appeals'ruling conflicts with decisions from the united states supreme court,lhi, Honorable court and Sister Courts of Appeal

The Tenth Court of Appeals' decision in this case conflicts with decisions from the United States Supreme Court,as this Honorable Court,ae and sister courts of appeal.50 With the exception of Mr. Soto's case, there is no court-created exception to the general rule that a wartantless search is unreason able per se5r enabling law enforcement to remove a suspect's outer cloth in order to conduct a weapons search.

By finding that removing a person's cap falls within the purview of Terrv ^[47] Id. a8 Terryv. ohio.392 u.s. 1 (196s); sibronv. New york,392u.s.40,65 (196g); ybaffav. Illinois,444 U.S. 85,94 (1979). 4e ca,mouche v. state,lO s.w.3d 323,32g (Tex. crim. App. 2000) ; Balentine v. state,Tl s.w.3d 763,769 (Tex. Crim. App. 2002); worthey v. stati, g05 s.w.2d 435,438(Tex. crim. Soo^ lnjtl; Ramirez v. state, 672 s.w.2d 480, 4g2(Tex. irim. App. I 984). "" Del carmen Morenov. state,797 s.w.2d228,230-231 (Tex. App.-corpus christi 1gg0, no pet'); State v. Phillips,752 S.w.2d rg4, 196 (Tex. App.-Amarillo 19gg, no writ.); Guevara v. state,6 S.W.3d 759,764 (Tex. App.-Houston [lst Dist.] lggg). Soto v. Stata-Appellant's petitlon for Discrelionarv

*18 due to the opaqueness of the cap, the Tenth Court of Appeals has created an appalling precedent whereby law enforcement may strip a person of his outer garments based on the officer's inability "to be able to see,,52 through a person,s clothing to determine whether a person possesses a weapon.

III. Conclusion Upholding the illegal search of Appellant required the Tenth Court of

Appeals to wholly disregard law from this Honorable Court and the Supreme Court53 and to so far depart from the accepted and usual course of judicial proceedings, as to demand an exercise of the Court of Criminal Appeals,power of supervision.ta Therefore, this Honorable court should grant review. ^[51]

See Coolidge v. New Hampshire,403 U.S. 443 (lg7l). ^[52] Id. ^[53] TBx. R. App. P.66.3(c). ^[54] Tnx. R. App. P.66.3(0. Soto v. StatFAppellant's petition for Dissetionarv Review Page'17 *19 PRAYER FOR RELIEF Mr' Soto prays that this Court grant his Petition for Discretionary Review. Respectfully submitted, Law Or,rrcr or Snnnn & Tnrnxs /s/ Chelsea Tiierina Chelsea Tijerina 3706 Bellmead Drive Waco, Texas 76705 (2s4) 412_2300 (888) 3 t7 -7 610_Facsimile E-mail : attorneychelsea@gmail. com State Bar No. 24076733 ATTORNEY F'OR APPELLANT

On October 20,2015, a copy of this Petition for Discretionary Review was delivered to the Hill county District Attorney by email. /s/ Chelsea Tiierina Chelsea Tijerina

Soto v. Stat+-Appellant,s petition for Discreilonary Review *20 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. g.4 certificate of compliance with Type-volume Limitation, Typeface Requirements, and Type Styre Requirements Thi: brief complies with the type-volume limitation of Tpx. R. App. p. 1. 9'4(i)(2)(D) because this brief contains 2,2gg words, excluding the parts of the brief exempted by Tnx. R. App. p. 9.4(iX1), and This brief complies rvith the typeface requirements and the type style

2. requirements of TBx. R. App. P. 9.a(e) because this brief has beln produced on a computer in conventional typeface using Microsoft word in Times New Roman 14 point font in the body of the trief and Times New Roman 12 point font in the footnotes.

ls/ Chelsea Tijerina Chelsea Tijerina Attorney for Appellant

Soto v. Stat*Appellant,s petition for Discretionarv *21 Page I f Lextsf'tre#s. I of I DOCIIMENT RICARDO SOTO, Appeilantv. THE STATE OF TEXAS, Appeilee No. 10-15-00029-CR couRT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO 2015 Tex App. LEXIS BS24 August 13,2015, Opinion delivered August 13,2015, Opinion Fited NOTICE: PLEASE CONSULT THE TEXAS pat-down all the occupants for weapons. Soto was wear_ RULES OF APPELLATE PROCEDURE FOR CITA- ing a cap. Abreu attempted to pafdown ttre cap and re_ TION OF UNPUBLISHED OPINIONS. moved it from Soto's head. When he removed tir" .up, u folded dollar bill fell out. The dollar bill contained under

PRIOR HISTORy: [*l] From the 66th District an ounce of cocaine. prior to tial, Soto filed a motion to Court. Hill County, Texas. Trial Court No. 3g,173. suppress the [*2] cocaine. After a hearing, the trial court denied the motion. It was again den"ied durin!

DISPOSITION: Affirmed. Soto's fial. MoTToN To SUPPRESS

JUDGES: Before Chief Justice Gray, Justice Davis, and Justice Scoggins. In his sole issue on appeal, Soto asserts that the trial

col]rt lrred in denying his motion to suppress. Specifi_ OPINION BY: TOM GRAY cally, Soto contends the pat-down of Soto'was not valid purluant to Terry v. Ohio, 392 U.5.1, gg,S. Ct. Ig6g, 20 L^1(. 2-d 589 (1965) because l) the officer was not

OPINION

afraid of Soto or the others that were removed from the vehicle; and,2) the officer exceeded the scope of Terry MEMORANDUM OPINION by removing Soto's cap. Ricardo Soto was convicted after a bench trial of possession of less than one gram of cocaine and sen_ When reviewing a trial court's ruling on a motion to tenced to 20 months in a state jail facility. See TEx. suppress, we view the evidence in the light most favora_ ble to the trial court's ruling. State vl Robinson, ^[334] HEALTH & SAFETY C)DE ANN. S 48L115 (.West 2010). His sentence was suspended, and Soto was placed on S:!r.3!

176: 778 (Tex. frim. App 20r t); State v. Keily, 204 S..W.3d 808, 818 eex. Crim. epp.'1OOO1. The hial community supervision for four and a half years. Be_ judge is the sole trier of fact ana judge of the credibility cause the trial court did not err in denying Soto,s motion of the witnesses and the weight to bJ given to their tes_ to suppress, we affirm the fiial court's judgment.

timony. Wiedev. State, 214 S.W.Sa 17,-24_25 (Tex. Crim. App. 2007). We give almost total deference to a trial

BACKGROLT..ID

:ourt's express or implied determination of historical . Sllo was travelling in a vehicle with four other peo_ tacts and review de novo the court's application of the ple which was stopped for vehicle equipment violations law of search and seizure to those ficts. Hereford v. ,! Joe Abreu who, at the time, wai working for the State, 339 S.W.3d t I I, t j8 (Tex. Crim. App. 201l; State Hillsboro Police Deparfinent. The driver of the vehicle v. Dixon, 206 S.W.3d s!!, S!0 eex. Crim App. 2006); gave his consent for Abreu to search the vehicle. After State v. Ross, 32 S.W.3d gS3, g56 gu. Cii*. lpp. getting everyone out of the vehicle, Abreu decided to 2000). *22 Page 2 2015 Tex. App. LEXIS 8524. x ^ \*r, Solo complains that Abreu exceeded the scope

TERRYFRISK

of a Terry frisk for weapons because Abreu removed The Fourth Amendment prohibits unreasonable Soto's cap rather than patting it down on Soto,s head. searches and seizures. O,Hara v. State, 2Z S.W.3d 548, Abreu testified that Soto was wearing a cap and that 550 (Tex. Crim. App. 2000). Searches conducted without tfre cap was not transparent to be able to see whether a warrarfi are unreasonable per se under the Fourth 1r... yur a weapon in it. Further, Abreu iestified that a lryenlmeyt, subject only to a few specifically estab_ bladed weapon like a razorblade inside a cap would not lished and well-delineated exceptions. ia. On" exception necessarily be felt when a cap is patted against someone,s occurs when an officer- [*3] is justified in believing that head. Through training at the police u.ui*y and expe_ an individual is armed and presently dangerous. 1d. In rience, Abreu [*5] had learned that the only p.op". way that situation, the officer may conduct u pui_do*n search to search a cap for bladed weapons is to remove^the cap to determine whether the person is carrying aweapon. Id. from the person's head. B".fo1" conducting a pat-down ,"*.h, ai officir need only-be able to ',point to specific and articulable facts, Police officers may conduct a limited search for which, taken together with rational inferences from those yeapols_ of the suspect's outer clothing. See Balentine v. facts, reasonably warrant [the] intrusion.,, Terry v. Ohio, State, 7t S.I4/.3d 763,_7_6-9 (Tex. CrimlApp. 2002); Car_ 392 U.S. I, 21, ^[88] S. Ct. 1868, 1B80, 20 L. Ed. 2d B8g mouche v. State, t0 S.try.3d 323, 32g elx. Crim. App 2.290)r::" alg rerry v. ohio, 3s2 u.i. t, 27, 88 s. ct. (1968); O'Hara, 27 S.W.3d at 550_551. The officer need 19!_b" absolutely certain rhat the individual is armed. 1868, ^[20] L. Ed. 2d SS9 e96g). Soto cites to no authority O'Hara, 27 S.W.3d at S5I. The issue is whether a rea_ that prohibits the removal of a cap that is being worn sonably prudent person would justifiably believe that his prior to a pat-down of the cap. He only .it., ,o u ,ur" safety or that of others was in danger. ierry, 392 U.S. at from Houston where it was held that an off"icer,s request 27. for a suspect to move her bra strap due to f.* that she

Tight !?y. a weapon in her bra exceeded the scope of a JustiJication Terry frisk. See Stqte v. Williams, ^[312] S.lry.3d ZiO, ZAS (Tex. App.-Houston Il4th Dist.J 2010, no pet.). frisk Soto pursuant to Terry because AbrJu testified that Iililliams is distinguishable because the frisk in_ he was not in fear of his safety. The Court of Criminal v9ly9d urdergarments. Soto's cap was part of his outer Appeals has made it clear that an officer,s failure to tes_ clothing, like a jacket or overcoat, not his undergar_ tify that he was afraid of the suspect does not automati_ ments.' When it was removed from Soto,s head to-be cally invalidate a frisk for weapons. O,Hara v. Stqte, 27

:h::k:d for weapons according to the officer,s training, a S:Y_34 548, ^[551] (Tex. Crim. App. 2000); Jones v. State, folded dollar bill fell out. When abreu retrieved the dol_ 69 S.W.3d 225, 278 (Tex. App._-lustin i002, pet. refd). lar, he noticed a white substance in it that he believed to Regardless of whether Abreu stated he was imia, tt.

be cocaine. Soto confirmed the substanaa *u, cocaine, as validity of the search.must be analyzed by determining did a lab test. Accordingly, because tfr. .up was outer whether the facts available to Abreu at ttre tlme of the clothing, Abreu did not exceed the scope of T"rry, and, search would warrant a reasonably cautious person to the trial court did not err denying Sotob motion to sup_ believe that the action taken, l*41 i.e. a frisk io, *.up_ press under this theory. ons, was appropriate.

I We note the distinction [*61 between un_ Abreu removed five individuals, including Soto, dergarments, clothing, and outer ciothing and be_ from the vehicle. He had information that at least one of lieve the distinction is critical to the manner in the other individuals had a_criminal history of possessing yhich_ a Terry pat_down can be properly admin_ a controlled substance with intent to distribute and was h9* to traffic large amounts of cocaine. Coupled to_ istered. gether, these facts made Abreu feel that his safety would

CONCLUSION

be in danger if he did not pat down the individuals, in_ cluding Soto, before Abreu turned his back on them and Soto's sole issue is ovemrled, and the trial court,s judgment is affirmed. conducted a search of the vehicle. Based on these facts, Abreu was justified in conductin g a Terry frisk for

TOM GRAY

weapons. Thus, under this theory, the trial court did not en in denying Soto's motion to suppress.

Chief Justice Before Chief Justice Grav.

Scope Justice Davis, and *23 Page ^[3] 2015 Tex. App. LEXIS 8524,* Justice Scoggins Opinion delivered and frled August 13, ^[2015] Affrmed Do not publish