Autry v. State

21 S.W.3d 590, 2000 Tex. App. LEXIS 3459, 2000 WL 675661

• Court: Court of Appeals of Texas
• Decided: May 25, 2000
• Docket: 01-98-00667-CR
• Status: Published

Opinions

OPINION

ERIC ANDELL, Justice.

After his motion to suppress was denied, appellant pleaded guilty to possession of less than one gram of cocaine, pursuant to a plea agreement. The trial court sentenced appellant to deferred adjudication probation for five years and assessed a $1,000 fine. In his sole issue, appellant contends his motion to suppress should have been granted because the State did not meet its burden of proof to show his detention was based on a reasonable suspicion of criminal activity. We reverse.

Facts

Three Bryan Police Department officers were patrolling an area known for drug trafficking when Officer Thane saw an illegally parked car. When the officers passed appellant, who was sitting in the driver’s seat of the car, they saw two other people about 80 feet from the car making a waist-level exchange. Officer Thane has over 10 years of experience as a narcotics investigator, and believed the exchange he witnessed could have been a drug transaction. The officers drove around the block and doubled back to the scene.

When the officers arrived a few minutes later, appellant was out of his car, standing in front of a nearby mobile home. One of the two persons who had been involved in the waist-level exchange was still present, and was also standing near the mobile home. As Officer Thane got out of his car; appellant walked toward him. When appellant acknowledged the illegally parked car belonged to him, Officer Thane asked to see some identification. Appellant said he had none; he told the officer his name was Dennis Autry and he was born June 11,1971. Officer Thane asked appellant to get some identification from his car.

While appellant was in his car, Officer Thane saw him reach for something under the armrest. At that point, Officer Thane asked appellant to get out of the car, and patted him down for weapons. This pat-down did not produce a weapon or drugs. Officer Thane asked for appellant’s consent to search his person and his car; appellant consented only to the search of his person. Officer Thane searched appellant, but this search produced no contraband. Officer Thane told appellant he was free to leave, but detained appellant’s car until a narcotics detection dog could be brought to the scene. About 10 minutes later, the dog indicated it smelled drugs in the car. A search of the car produced marihuana and traces of cocaine.

Motion to Suppress

Appellant contends the State made no connection between appellant or his car and the two persons suspected of conducting a drug transaction, did not introduce evidence showing there had even been a drug transaction, and did not show he tried to avoid contact with the police. He concludes, therefore, that Officer Thane did not have probable cause to conduct the search of the vehicle and the cocaine discovered was the result of an illegal search and seizure in violation of the Fourth Amendment of the United States Constitution and the Texas Constitution article I, section nine. We agree.

We review de novo a trial court’s determination of reasonable suspicion and probable cause, and examine the evidence presented at the suppression hearing in the light most favorable to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App.1997). A warrant-less search of an automobile is not unreasonable under the Fourth Amendment when there is probable cause to believe the vehicle contains contraband or evidence of a crime. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925); Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App.1994).

Probable cause exists when the facts and circumstances, within the knowledge of the officer, would lead a person of reasonable caution and prudence to believe that an instrumentality of a crime or evidence will be found. Moulden v. State, 576 S.W.2d 817, 819 (Tex.Crim.App.1978). To justify an investigative detention, an officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion. Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997). The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex.Crim.App.1983).

We consider the totality of the circumstances when we evaluate the validity of an investigatory detention. Davis, 947 S.W.2d at 241. The evidence favorable to the trial court’s ruling shows that an experienced narcotics officer patrolling an area known for its high incidence of drug trafficking: (1) saw appellant’s car illegally parked in the street, with appellant seated inside the car; (2) saw what he perceived to be a drug transaction between two persons who were standing 30 feet away; (3) shortly thereafter, saw both appellant and one of the parties to this suspected drug transaction standing outside a mobile home; and (4) saw appellant attempt to grab something under the armrest in his car. There was nothing other than proximity to connect appellant to either of the parties to the suspected drug transaction. It was at Officer Thane’s request that appellant had gotten back into his car to look for identification, when the officer saw appellant attempt to grab something under the arm rest. Finally, although appellant supplied a false name and birthdate in response to Officer Thane’s questioning, this information was not known by the officers before the car was searched. Thus, it cannot support the search.

We conclude that once the patdown and search of appellant’s person produced neither drugs nor weapons, the limit of the investigatory detention was reached, and further detention of appellant or his car was impermissible. See Davis, 947 S.W.2d at 241 (after brief stop and patdown disclosed no contraband and driver was determined not to be intoxicated, detention of car until arrival of narcotics dog not justified). Given the totality of these circumstances, we hold the search of appellant’s car illegal. Therefore, we hold the trial court erred in denying the motion to suppress.

We sustain appellant’s sole issue on appeal.

We reverse the judgment and remand the cause.

Justice TAFT requested en banc consideration of this case. A majority of the court voted against en banc review.

Justice TAFT dissenting.