ACCEPTED 01-14-00993-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 4/21/2015 2:12:40 PM CHRISTOPHER PRINE CLERK
NO. 01-14-00993-CR
IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST DISTRICT HOUSTON, TEXAS HOUSTON, TEXAS 4/21/2015 2:12:40 PM CHRISTOPHER A. PRINE Clerk DEMETRUS TREMAINE HORTON § DEFENDANT-APPELLANT § VS. § § THE STATE OF TEXAS § PLAINTIFF-APPELLEE
APPELLANT’S BRIEF
APPEAL IN CAUSE NO. 1387050 IN THE 178TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY
SCHNEIDER & McKINNEY, P.C.
TOM MORAN TEXAS BAR NO. 14422200 440 LOUISIANA, SUITE 800 HOUSTON, TEXAS 77002 (713) 951-9994 TELECOPIER: (713) 224-6008 EMAIL: tom6294@aol.com
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT LIST OF PARTIES
The Hon. Leslie Brock Yates (in her official capacity). . . . . . . . . . . . . . Trial Judge 1201 Franklin Houston, Texas 77002
The Hon. Devon Anderson (in her official capacity). . . . . . . Attorney for the State
Erik M. Locascio (in his official capacity.. . . . . . . . . . . Trial Counsel for the State
Harris County District Attorney’s Office 1201 Franklin Houston, Texas 77002
Brian D. Coyne. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellant 1914 N. Memorial Drive Way Houston, Texas 77007
Tom Moran. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant Schneider & McKinney, P.C. 440 Louisiana, Suite 800 Houston, Texas 77002
i TABLE OF CONTENTS
LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Other Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
I. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. STATEMENT CONCERNING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . 1
III. ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Issue One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Whether Appellant was deprived of the right of effective assistance of counsel as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI, not being familiar with the law of search and seizure as it applies to warrantless searches of persons... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Issue Two.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Whether the trial court erred in overruling Appellant’s motion to suppress evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV. STATEMENT OF RELEVANT FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Officer Moela’s Initial Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. Hearing on the Motion to Suppress Evidence.. . . . . . . . . . . . . . . . . . . . . 4 C. Officer Moela’s Continued Testimony in the Jury’s Presence. . . . . . . . . 7 D. Officer Benavidez’s Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
V. SUMMARY OF THE ARGUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Issue One. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Issue Two.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
VI. ARGUMENTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. Issue One (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. The Test for Effective Assistance of Counsel. . . . . . . . . . . . . . . . 10
ii Appellant Was Not Under Arrest When Searched. . . . . . . . . . . . 11 2. 3. If Appellant Was Under Arrest, the Arrest Was Unlawful. . . . . . 13 4. The Warrantless Search Was Constitutionally Impermissible. . . 14 5. Trial Counsel Was Ineffective. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 a. Trial Counsel Lacked a Firm Understanding of the Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 b. Appellant Was Prejudiced. . . . . . . . . . . . . . . . . . . . . . . . . . 21 c. There Can Be No Reasonable Trial Strategy. . . . . . . . . . . 22 d. Conclusion as to Issue One. . . . . . . . . . . . . . . . . . . . . . . . . 22 B. Issue Two (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
iii INDEX OF AUTHORITIES
Cases
Chambers v. Maroney, 399 U.S. 42 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . 15
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . 12
Berkemer v. McCarty, 468 U.S. 420 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chambers v. State, 397 S.W.3d 777 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . 12
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005). . . . . . . . . . . . 13, 19-21
Ex parte Welborn, 785 S.W.2d 391 (1990).. . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 22
Frangias v. State, 392 S.W.3d 642 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . 10
Griffin v. Wisconsin, 483 U.S. 868 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Minnesota v. Dickerson, 508 U.S. 366 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Missouri v. McNeely, U.S. , 133 S. Ct. 1552 (2013). . . . . . . . . . . 15-17, 20, 21
Riley v. California, U.S. , 134 S. Ct. 2473 (2014). . . . . . . . . . . . . . . . . . . . . . 16
Rodriguez v. United States, No. 13-9972 (U.S. April 21, 2015) (not yet reported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Sibron v. New York, 392 U.S. 40 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . 19
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . 11
iv State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . 12
State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 13
State v. Villarreal, No. PD-0306-14 (November 26, 2014) (not yet reported). . 15- 17, 20, 21
Strickland v. Washington, 466 U.S. 668 (1964). . . . . . . . . . . . . . . . . . . . . . . . 10, 22
Terry v. Ohio, 392 U.S. 1 (1967).. . . . . . . . . . . . . . . . . . . . . . . 10, 12, 14, 15, 20, 24
United States v. Jordan, 232 F.3d 447 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . 12
Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . 14, 15
Statutes and Rules
TEX. CODE CRIM. PROC. ANN. art. 14.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. CODE CRIM. PROC. ANN. art. 14.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. CODE CRIM. PROC. ANN. art. 14.04. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. CODE CRIM. PROC. ANN. art. 38.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. CONST. art. I, § 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
TEX. CONST. art. I, § 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 20, 22, 23
TEX. R. APP. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. R. APP. P. 9.4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
TEX. R. APP. P. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
v TEX. TRANS. CODE ANN. § 543.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. CONST. amend. IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 20, 22, 23
U.S. CONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 23
Other Authority
TEX. DISCIPLINARY R. PROF’L CONDUCT Rule 3.03(a)(4) . . . . . . . . . . . . . . . . . . 21
vi TO THE JUSTICES OF THE COURT OF APPEALS:
COMES NOW DEMETRUS TREMAINE HORTON, Appellant herein, by
and through his attorney, TOM MORAN, and pursuant to TEX. R. APP. P. 38, files
this appellate brief and in support thereof, would show the Court as follows:
I. STATEMENT OF THE CASE
Appellant was charged by indictment with possession of 1-4 grams of
controlled substance, enhanced by two prior felony convictions. C.R.-12.1 He was
convicted in a jury trial and the trial court assessed his punishment at 25 years
incarceration. R.R. 115-18. Appellant filed a timely notice of appeal, C.R. 120-21,
124-25, and this appeal follows.
II. STATEMENT CONCERNING ORAL ARGUMENT
This case presents the issue of whether a police officer may conduct a
warrantless search of a person during an investigative detention when there is no
reasonable suspicion that the defendant is armed.
Appellant asserts that warrantless searches of not under arrest persons are
impermissible under the Fourth Amendment unless the officer has reasonable
suspicion that the suspect is armed.
He believes oral argument would be helpful to the Court.
1 “C.R.” refers to the Clerk’s Record.
1 III. ISSUES PRESENTED
A. Issue One
Whether Appellant was deprived of the right of effective assistance of counsel as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI, not being familiar with the law of search and seizure as it applies to warrantless searches of persons.
B. Issue Two
Whether the trial court erred in overruling Appellant’s motion to suppress evidence.
IV. STATEMENT OF RELEVANT FACTS
Trial defense counsel filed a pretrial motion to suppress. C.R. 21-23. The
relevant paragraph in the motion reads in full:
The evidence to be used against Defendant was seized in violation of the United States Constitution and the Constitution of the State of Texas. Defendant was not under arrest and the officer was not conducting a legal pat-down of Defendant.
C.R. 21.
A. Officer Moela’s Initial Testimony
Houston Police Officer Gerald Meola, his partner Officer John Eric Benavidez
and a chemist were the State’s only witnesses. Meola testified he stopped Appellant
for a traffic violation – cutting across three lanes of traffic and exiting a freeway
2 without signaling. R.R.-III-13.2 After Moela turned on his lights, Appellant pulled
into a parking lot and stopped without incident. He was alone in his car Id., at 14.
Moela testified that when he approached the car, he smelled PCP, which he
described as similar to embalming fluid. Id., 14-15.3 Moela testified that at that point
he had “probable cause” to order Appellant out of the car. He patted him down and
found no contraband “at that point.”4 Moela then “handed him off” to his partner and
searched Appellant’s car. Id., at 16-17. He did not find anything. Id., at 17. He then
had his partner search the car, also with no result. Id., at 17-
Moela testified that he smelled PCP on Appellant, so he thought the drug was
in his shorts or underwear. Id, at 17-18. He stepped back, saw a bulge in Appellant’s
left sock and thought that was where the PCP was. Id., at 18. He handcuffed
Appellant because people on PCP “can become violent from one second to the next.”
Id., at 19.5 Moela described Appellant’s behavior as “very methodical. I would ask
him a question and he would pause a couple of seconds and then he would just
2 “R.R.” refers to the Reporter’s Record. The Roman numeral is the volume number and the Arabic numerals are the cited pages. Therefore, R.R.-III-13 is volume 3, page 13 of the Reporter’s Record. 3 Moela testified he had no formal training in recognizing the smell of PCP. He picked up that knowledge by dealing with it on the street about 40-50 times. R.R.-III-15. 4 Appellant was wearing a T-shirt, basketball shorts, open toed sandals and socks. R.R. III-18. 5 Moela also testified that in his eight years as a Houston police officer he had never encountered a violent person on PCP but he had heard stories. R.R. III-19-20.
3 answer my question.” He testified that behavior was indicative of someone who had
smoked or was in possession of PCP. Id.
When asked by the State whether he knew the effects of PCP on a person,
Moela first asked the prosecutor, “Formally or just my personal experiences?” The
prosecutor replied, “In your experience, 8 years as a police office, have you come into
contact with people who are on PCP?” Moela replied, “Yes.” Id.
He continued: “Best way I can describe is like a zombie. They’re there but
their lights aren’t on.” Id., at 20. Moela testified he reached into Appellant’s sock
and pulled out three cigarettes “coated with PCP.” He identified the cigarettes as
State’s Exhibit 4. Id., at 20-21.
B. Hearing on the Motion to Suppress Evidence
At this point, the State moved to introduce State’s Exhibit 4 and trial defense
counsel replied, “We have no objection, Your Honor.” Id., at 21.
At that point, the trial judge called counsel to the bench. It then excused the
jury to conduct a hearing on the motion to suppress evidence. Id.,, at 22-23. The trial
court told trial counsel that despite his statement of no objection, he had told the court
earlier that he wanted a hearing on his motion to suppress evidence. It said it had
heard the officer’s testimony and asked trial defense counsel if he had any further
cross examination for the motion to suppress. Id., at 23.
4 Moela testified outside the jury’s presence that he stopped Appellant and got
him out of the car because he saw Appellant commit a traffic violation and he smelled
PCP in the car. Id., at 24. Both Moela and his partner searched the car and found no
contraband. Id. He testified his offense report described Appellant as wearing a
white T-shirt and blue, above the knee shorts. Id.
There was the following exchange between counsel and Moela:
Q. So, other than your suspicion or the odor that you smelled, you had no reason to think that there had been any crime committed other than a traffic violation at that point, correct?
A. At the time I was searching the vehicle I had reasonable suspicion to believe there was narcotics inside the vehicle was the reason why I was searching it.
Q. That proved not to be true, correct?
A. Inside the vehicle, that's correct.
Id., at 25.
Moela admitted he did not have a warrant to search anything. Id., at 26. The
examination continued:
Q. When you observed Mr. Horton standing after you had completed your search of the vehicle, you said you saw a bulge in his sock?
A. A bulge in his left sock, correct.
Q. How big a bulge was that?
5 A. Not -- it wasn't like a golf ball size, but it was big enough to catch my attention.
Q. Did you think it was a weapon?
A. No.
Q. But at that time you still didn't have a warrant to search him, did you?
A. I did not.
Q. Did you perform a pat down before you went into his sock?
A. I did but only on his waistband and his upper body, like I said previously, because he was wearing sandals. I wasn't paying too much attention to his feet.
Q. But you didn't perform a pat down on his socks or ankles or feet, did you?
A. No. I already had probable cause at that point.
Q. So, rather than perform a pat down, you just opened his sock and reached in and pulled out what you say was contained in a plastic bag and it turned out to be three cigarettes, correct?
A. Correct, because I had probable cause. I just reached into his sock, pulled out the contraband.
Q. What was your probable cause based on, just the suspicious odor?
A. The odor of PCP.
Id., at 26-27 (emphasis added).
6 In argument, trial defense counsel told the trial court that Moela had no reason
to search Appellant’s sock and that the proper procedure would have been to perform
a pat down to determine if there was any contraband before performing the search.
Id., at 30-31. The State argued that while the search and arrest were warrantless,
Moela had probable cause that there was PCP either in the vehicle or on Appellant’s
person. It further argued that after searching the car and finding nothing, the officer
had probable cause that it was on Appellant. Because he could not hide it in pockets
of his shorts and after seeing the bulge in Appellant’s sock, the PCP could not be
anywhere else. It argued that based on the totality of the circumstances, the officer
had probable cause to search and arrest Appellant. Id., at 31.
The trial court overruled the motion to suppress evidence. Id.
C. Officer Moela’s Continued Testimony in the Jury’s Presence
Most of the remainder of Moela’s direct examination relates to chain of
custody and is not relevant to this appeal.
Moela testified that after the cigarettes in State’s Exhibit 4 were seized,
Appellant asked to make a telephone call. Moela said Appellant gave him a
telephone number, he dialed it on Appellant’s cell phone and, after it started to ring,
he put the phone on Appellant’s ear. Id., at 35-36. Moela testified Appellant said he
had gotten pulled over and, “they have my sherm.” Moela further testified that
7 “sherm” is a street name for a cigarette dipped in PCP. Id., at 37.
D. Officer Benavidez’s Testimony
Moela’s partner, Officer John Eric Benavidez also testified about the stop and
arrest. His testimony was after the trial court ruled on the motion to suppress
evidence and the admission of State’s Exhibit 4. Generally, his testimony mirrored
Moela’s testimony.
He testified that after Moela got Appellant out of the car, he “handed him off”
to Benavidez, who ran a computer check for outstanding warrants. He did not say
what he found but he further testified he did not take control of Appellant, who was
outside the vehicle and not handcuffed. Id., at 73. After both he and Moela had
searched Appellant’s car, they did not let Appellant go because “we hadn’t searched
his person.” Id. He said they searched Appellant for the same “probable cause,
strong odor of PCP.” Id., at 74.
Appellant testified in his own defense. Generally, his testimony was that he
bought less than a gram of PCP and dipped his cigarettes into the liquid. See
generally, Id., at 77-97.6
6 The trial court included a charge on the lesser included offense of possession of less than a gram of PCP. C.R. 106-07.
8 V. SUMMARY OF THE ARGUMENTS
To provide effective assistance of counsel, an attorney must have a firm grasp
of the facts and the applicable law of the case. In the instant case, trial counsel failed
to have a firm grasp of the applicable law.
The record affirmatively reflects that trial counsel was unfamiliar with the
difference between investigative detentions and arrest as well as the concepts of
reasonable suspicion and probable cause and exceptions to the warrant requirement
for both searches and arrests. This caused him to fail to make specific arguments to
the trial court in support of his motion to suppress evidence, including but not limited
to, whether in view of recent case law, police may conduct a warrantless search of a
person who is not under arrest.
Trial counsel’s errors prejudiced Appellant by depriving him of a fair
opportunity to litigate a meritorious motion to suppress and to appeal an adverse
ruling.
Appellant was stopped on traffic. The Supreme Court and Court of Criminal
Appeals have held that a traffic stop is akin to an investigatory detention, not an
9 arrest.7 The only justification for a warrantless search of a person not under lawful
arrest is if there is a reasonable suspicion that he is armed. Terry v. Ohio, 392 U.S.
1 (1967). Moela made no claim Appellant was armed at the time he searched
Appellant’s sock. To the contrary, he testified that he had frisked Appellant and that
Appellant was unarmed.
VI. ARGUMENTS AND AUTHORITIES
A. Issue One (Restated)
Whether Appellant was deprived of the right of effective assistance of counsel as guaranteed by the Sixth Amendment, U.S. CONST. amend. VI by not being familiar with the law of search and seizure as it applies to warrantless searches of persons.
1. The Test for Effective Assistance of Counsel
Texas follows the two-prong deficient performance/prejudice test set out by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1964). In Ex parte
Welborn, 785 S.W.2d 391, 393 (1990), the Court of Criminal Appeals held that to
provide effective assistance of counsel, a lawyer must have a firm grasp of both the
facts of the case and the applicable law. See also Frangias v. State, 392 S.W.3d 642,
7 While the Transportation Code appears to make traffic stops arrests as a matter of Texas law, see TEX. TRANS. CODE ANN. § 543.003, if in fact they arrests, it would cause a sea change in investigations and prosecutions of such offenses as driving while intoxicated because the full panoply of rights for persons in custody would apply. So, for example, TEX. CODE CRIM. PROC. ANN. art. 38.22 would apply to questioning of any person stopped on traffic.
10 653 (Tex. Crim. App. 2013) (citing Welborn for the proposition that reviewing courts
defer to trial counsel’s strategic decisions as long as they are based on adequate
investigation of the facts and governing law).
In the instant case, the record clearly reflects that counsel was unfamiliar with
both Texas law on preservation of error, the difference between an investigatory
detention and a full custody arrest as well as the difference in the right of officers
with reasonable suspicion that a person is armed to conduct a pat down search and the
right of officers to conduct a warrantless search for evidence of a person who is not
in custody.
In view of these errors, Appellant will discuss the applicable law, law which
also is applicable to his Issue Two on denial of the motion to suppress evidence.
2. Appellant Was Not Under Arrest When Searched
A traffic stop normally is an investigative detention, not an arrest. Rodriguez
v. United States, No. 13-9972 (U.S. April 21, 2015) (not yet reported), slip op. at 5,8
Berkemer v. McCarty, 468 U.S. 420 (1984); State v. Ortiz, 382 S.W.3d 367 (Tex.
Crim. App. 2012). The initial detention and stop was a traffic stop for making a lane
change without signaling. Being handcuffed by Moela did not escalate the traffic
8 “A stop for a traffic violation justifies a police investigation of that violation. ‘[A] relatively brief encounter,’ a routine traffic stop is ‘more analogous to a so-called ‘Terry stop’ .... than a formal arrest.’” (internal citations omitted).
11 stop from a Terry-type investigative detention to a full custody arrest.9
There is no bright line between a Terry detention and an arrest. The mere act
of handcuffing a person does not automatically convert an investigatory detention
into an arrest. State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008).
During an investigative detention, an officer may use the force reasonably necessary
to effect the goal of the detention, maintain the status quo or for officer safety.
Chambers v. State, 397 S.W.3d 777, 781 (Tex. Crim. App. 2013). For example, in
Chambers, the Court of Criminal Appeals determined that Chambers was not arrested
even though handcuffed because the handcuffing was reasonably necessary to protect
the officer and those around him. Id., at 783. See also United States v. Jordan, 232
F.3d 447 (5th Cir. 2000) (handcuffing a suspect does not automatically convert an
investigatory stop into an arrest), cited with approval in Baldwin v. State, 278 S.W.3d
367, n. 4 at 374 (Tex. Crim. App. 2009) (Cochran, J., concurring).
In the instant case, Moela testified he handcuffed Appellant because he
believed Appellant was on PCP and people on PCP “can become violent from one
second to the next.” Thus, just like the officer in Chambers, Moela acted restrain
Appellant for the officer’s safety. This is consistent with Benavidez’s testimony that
9 In Rodriguez, Justice Thomas distinguishes between a traffic stop based on reasonable suspicion and one based on probable cause. Slip op., at 8 (Thomas, J., dissenting). He acknowledges the Majority rejected this distinction. Id.
12 Appellant was not released because he had not yet been searched. If Appellant had
been under arrest, Benavidez would have said so.
3. If Appellant Was Under Arrest, the Arrest Was Unlawful
In Estrada v. State, 154 S.W.3d 604, 608 (Tex. Crim. App. 2005), the Court of
Criminal Appeals, explaining its holding in State v. Steelman, 93 S.W.3d 102 (Tex.
Crim. App. 2002), held that while the smell of burning marijuana can constitute
probable cause to search, it does not constitute probable cause that a person
committed the offense of possession of marijuana in the officers’ presence. This is
based on the truth that the smell of marijuana and PCP will remain after the drug is
gone.10 Moela’s testimony was that his sole probable cause was the smell of PCP.
As Estrada explains, that is not sufficient probable cause that a crime is being
committed in the officer’s presence.
Chapter 14 of the Code of Criminal Procedure limits peace officers’ authority
to make warrantless arrests. A peace officer may arrest anyone who commits a crime
in his presence, TEX. CODE CRIM. PROC. ANN. art. 14.01. Other provisions of Chapter
14 grant officers the authority to make warrantless arrests in certain limited
circumstances involving specific offenses such as family violence or drunk driving,
10 The best example of this truth is the testimony of the two officers that they smelled PCP in Appellant’s vehicle but found none after a thorough search of the car.
13 TEX. CODE CRIM. PROC. ANN. art. 14.03, and if there is probable cause that a felony
has been committed and the suspect is about to escape, TEX. CODE CRIM. PROC. ANN.
art. 14.04.
None of these exceptions authorize an arrest in the instant case. There is no
allegation that Appellant had committed a crime of family violence or any other
offense set out in Article 14.03. At the time of the search, Appellant was 1)
handcuffed and 2) in custody as part of the investigative stop for the traffic offense.
He was not about to escape such that the officers had no time to procure a warrant.
Thus, a warrantless arrest for possession of PCP prior to the search was not
authorized by Chapter 14 and a later arrest was the product of an unconstitutional
search.
4. The Warrantless Search Was Constitutionally Impermissible
Probable cause to search and permissible warrantless searches are separate
concepts. An officer may have probable cause to search but in the absence of a
warrant or a recognized exception to the warrant requirement, a warrantless search
is a Fourth Amendment/Article I, § 9 violation. While the Court of Criminal Appeals
has said in dicta the Supreme Court authorizes a police officer to conduct a
warrantless search of a person for contraband, see e.g., Wright v. State, 7 S.W.3d 148,
150 (Tex. Crim. App. 1999), that is incorrect. Terry frisks are limited to searches for
14 weapons. In fact, one of the cases cited in Wright, Minnesota v. Dickerson, 508 U.S.
366, 373 (1993), specifically holds that a Terry frisk is strictly limited to searches for
weapons.11 If it goes beyond what is necessary to determine if a suspect is armed, the
fruits must be suppressed. See also, Sibron v. New York, 392 U.S. 40, 65-66 (1968).
See also Baldwin v. State, 278 S.W.3d 367, 371-72 (Tex. Crim. App. 2009) (holding
that contraband found by “plain feel” during a weapons pat down is admissible but
probable cause is necessary to search other than for weapons).
In the instant case, at the time of the search of Appellant’s sock, 1) there was
no evidence in the record that the officers had reasonable suspicion at any time that
Appellant was armed, and 2) Moela previously had conducted a pat down –
permissible under Terry or not – in which Moela determined that Appellant was
unarmed. At that point, there was no exception to the Fourth Amendment, Article I,
§ 9 warrant requirement allowing a search of Appellant’s sock.
This case was tried and the motion to suppress argued on December 2, 2014.
R.R. III-3. This is after the Court of Criminal Appeals handed down its decision in
State v. Villarreal, No. PD-0306-14 (November 26, 2014) (not yet reported), and long
after the Supreme Court handed down Missouri v. McNeely, U.S. , 133 S. Ct.
11 Of course, if during a proper Terry frisk, an officer discovers something immediately recognizable as contraband, he is not required to ignore it and the contraband is not subject to suppression.
15 1552 (2013), on April 7, 2013.
One section of Villarreal is titled by the Court of Criminal Appeals “1. A
Search of a Person Pursuant to a Criminal Investigation Requires a Search Warrant
or Recognized Exception to a Warrant.” Slip op. at 25. In that section, the Court of
Criminal Appeals cited McNeely, U.S., at , 133 S. Ct., at 1558, and Riley v.
California, U.S. , , 134 S. Ct. 2473, 2482 (2014), for the proposition that a
warrantless search of people to further a criminal investigation is reasonable only if
it falls within a recognized exception to the warrant requirement. Slip op., at 26.
None of the exceptions to the warrant requirement apply to the warrantless
search of Appellant. There is no evidence that Appellant consented to a search of his
person or that he was even asked for consent. Appellant’s car was searched and no
contraband was found. Appellant was not under arrest at the time he was searched.
The special needs doctrine set out in the cases cited by the Court of Criminal Appeals
in Villreal, Griffin v. Wisconsin, 483 U.S. 868 (1987), involved the special need for
states to conduct searches of probationers in order to properly operate a probation
program, a program involving persons who are under supervision of the state.
Special needs is a very narrow exception to the warrant requirement inapplicable to
the instant case..
Of importance to the analysis of peace officers to conduct a warrantless search
16 of a person is a careful reading of McNeely. McNeely does not limit the warrant
requirement for searches of persons to blood draws in DWI investigations. To the
contrary, the Court held that DWI blood draws are included in the general prohibition
of warrantless searches of persons. The Court wrote:
The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's "most personal and deep-rooted expectations of privacy."
U.S., at , 133 S. Ct., at 1558 (internal citations omitted).
Thus, McNeely and Villareal hold warrantless searches of persons generally are
unreasonable and a blood draw is one of those types of searches. Stated differently,
warrantless searches of persons are unreasonable absent some exception to the
warrant requirement and blood draws are one genre of searches requiring warrants or
an exception to the warrant requirement such as exigent circumstances.
There is no exception to the warrant requirement applicable to the instant case
authorizing the officers to search Appellant for contraband. Therefore, the trial court
should have suppressed the PCP cigarettes found in Appellant’s sock.
17 5. Trial Counsel Was Ineffective
a. Trial Counsel Lacked a Firm Understanding of the Applicable Law
Trial counsel’s full argument to the trial court was:
MR. COYNE: Yes, Your Honor. I would like to point out that the officer did perform a warrantless arrest on Mr. Horton. He failed to follow proper procedures. He really had absolutely no reason to search my client's socks. There was a – he said a small – I mean, we know what was contained in the sock according to the officer was three cigarettes, which do not create a bulge, not even if they're in a sandwich bag. I think that his proper procedure would have been to perform a pat-down search of this suspect to see if they were able to locate any type of contraband that would allow them to further search and that wasn't done, Judge. And with that, I would ask that you suppress this evidence.
R.R. III-30-31.
The State’s full argument was:
MR. LOCASCIO: Your Honor, the arrest and search were warrantless but as Officer Meola testified, he had probable cause that there was PCP either somewhere on the defendant or in the vehicle. He methodically checked the vehicle, didn't find PCP, looked at the defendant, and was still getting a very, very strong odor of the chemical odor of PCP and therefore had the probable cause. Additionally, looking at the – when he saw the bulge in his sock, that tipped him off to it could possibly be there, especially in light of the fact the defendant was wearing pocketless basketball shorts where he couldn't be hiding it really anywhere else. Based on the totality of the circumstances, the officer had probable cause the crime was being committed and, therefore, was able to search the defendant and arrest him based on that.
R.R. III-3. (Emphasis added).
18 The italicized portion of the State’s argument is an admission that the arrest
was for possession of drugs. This means that the State acknowledges Appellant was
not under arrest until the drugs were found. Even if the arrest for possession of PCP
was before the search, the search would have been the product of an illegal arrest
because the smell of drugs standing alone is insufficient under Estrada to be probable
cause that an offense was committed in the officer’s presence. See State v.
Granville, 423 S.W.3d 399, 410 (Tex. Crim. App. 2014) (warrantless search
permissible pursuant to lawful arrest).
The generic language in the motion to suppress evidence is sufficient to raise
the issue of the constitutionality of the warrantless search and whether Appellant was
under arrest. However, in his argument to the trial court, trial counsel essentially 1)
admitted a warrantless arrest and 2) based his argument on “proper procedure,” which
he said was to conduct a pat down to see if they could locate contraband and therefore
proceed further in a search. In fact, Appellant was not under arrest and if he had
been, the search would have been permissible as a search incident to arrest only if the
arrest was legal. In his oral argument, trial counsel abandoned the argument in his
written motion to suppress that it was an illegal pat down. To the contrary, he
asserted Moela should have conducted a pat down. Trial counsel never argued orally
or in writing that Appellant was not under arrest and he did not distinguish between
19 an investigatory detention under Terry and a full custody arrest. He he never argued
– either in his generic written motion to suppress or orally – that warrantless searches
of persons are Fourth Amendment/Article I, § 9 violations in the absence of a
recognized exception to the warrant requirement
McNeely and Villarreal were decided before the trial in the instant case and the
hearing on the motion to suppress. Both the Supreme Court and the Court of
Criminal Appeals held in those cases that warrantless searches of persons are
unreasonable unless they fall within an exception to the warrant requirement,
something not present in the instant case. Villarreal, was handed down and placed
on the internet only six days before the trial in the instant case. All trial counsel had
to do was look at the most recent handdowns from the Court of Criminal Appeals to
find Villarreal.12 Neither trial counsel nor the attorney for the State appeared to
recognize the necessity for a warrant to search a person. The attorney for the State
argued that the smell of PCP was sufficient probable cause that a crime was being
committed, justifying a warrantless search and warrantless arrest,
Estrada notwithstanding. At most, the officers had probable cause to obtain a search
12 On November 26, 2014, the Court of Criminal Appeals released only three opinions on petitions for discretionary review. http://www.search.txcourts.gov/handdown.aspx? coa=coscca&fulldate=11/26/2014 (visited April 15, 2015). Surely, reading three opinions is not too much of a task for a lawyer about to begin a trial in which his client faces 25 years to life in prison.
20 warrant for Appellant’s person, not make a warrantless arrest in violation of Chapter
14.
It is apparent from the record that neither trial counsel nor the prosecutor was
familiar with the holdings in McNeely and Villarreal that searches of persons require
warrants.13 Neither was familiar with Estrada. It also is apparent that neither lawyer
was familiar with Chapter 14 of the Code of Criminal Procedure or chose to ignore
it.
It follows directly that trial counsel’s performance was deficient for purposes
of Strickland based on his lack of a firm grasp of the applicable law.
b. Appellant Was Prejudiced
The criminal act alleged in the instant case was possession of a controlled
substance, PCP. The PCP was located by the police based on an illegal, warrantless
search of Appellant’s person. Without the PCP-laced cigarettes in evidence and the
testimony from the chemist that they contained PCP, there is a reasonable probability
that the result would have been different, that is, there would have been a directed
verdict of acquittal. Therefore, Appellant was prejudiced for purposes of Strickland.
13 If the prosecutor was aware of and understood the holdings in McNeely and Villareal, and failed to disclose them to the trial court, he was acting unethically. TEXAS DISCIPLINARY R. PROF’ CONDUCT, Rule 3.03(a)(4) (A lawyer shall not knowingly...fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.)
21 c. There Can Be No Reasonable Trial Strategy
Both the Supreme Court in Strickland and the Court of Criminal Appeals in
Wellborn recognize that trial lawyers have to make strategic decisions which should
be respected if they are based on a firm understanding of the applicable law and the
facts. In the instant case, regardless of trial counsel’s grasp of the facts, the record
shows he had no clue as to the applicable law.
There can be no rational trial strategy in failing to raise constitutionally
relevant and viable arguments in a motion to suppress evidence when the charge
against the client is possession of the evidence sought to be suppressed.
d. Conclusion as to Issue One
Prior to voir dire, Appellant told the trial court that trial counsel had told him
that he could not beat the case. R.R. II-7. Trial counsel was wrong. He had a viable
motion to suppress evidence. He simply failed to present it properly because he did
not know the applicable law.
Trial counsel did not argue, either orally or in writing, his Fourth
Amendment/Article I, § 9 illegal search claim. In his oral argument to the trial court
he affirmatively misstated the law by saying that the officer should have conducted
a non-Terry pat down before he searched Appellant’s sock. He effectively abandoned
and failed to present arguments showing the warrantless search of Appellant’s person
22 was a constitutional violation and not authorized by any exception to the warrant
requirement recognized by the Supreme Court of the United States or the Court of
Criminal Appeals.
As shown, supra., Appellant was not under arrest at the time of the search, the
officers lacked probable cause that he had committed an offense in their presence and
that a search of a person for contraband, other than one incident to a lawful arrest or
some other recognized exception to the warrant requirement is a Fourth
Amendment/Article I § 9 violation.
Trial counsel failed to provide the level of representation guaranteed by the
Sixth Amendment, U.S. CONST. amend. VI, and the Texas Constitution, TEX. CONST.
art. I, § 10. He essentially waived his motion to suppress with his arguments to the
trial court even though the evidence adduced from Moela showed the search violated
the Texas and United States Constitutions. He was unfamiliar with the law, including
at one case decided by the Court of Criminal six days before the trial. The only
defense he presented and argued was that the three cigarettes, which the chemist
testified weighed 2.98 grams,14 weigh less than a gram without the filters. See
generally, R.R. III-102-05. He asked the jury to convict Appellant of possession of
less than a gram of PCP. Id., at 105-06. He presented no evidence as to how much
14 R.R. III-54.
23 the filters weigh.
Due to trial counsel’s failure to understand applicable search and seizure law
and to argue it to the trial court adequately and competently, Appellant was convicted
of a crime for which he should have been acquitted or which should have been
dismissed after the motion to suppress was granted.
B. Issue Two (Restated)
Whether the trial court erred in overruling Appellant’s motion to suppress evidence.
This issue is briefed in conjunction with Issue One, ineffective assistance of
counsel. Appellant adopts by reference § VI(A)(2) through § VI(A)(5)(a) as the
arguments and authorities for this issue.
The seizure of the PCP from Appellant’s person was, in the words of the
motion to suppress evidence, “in violation of the United States Constitution and the
Constitution of the State of Texas. Defendant was not under arrest and the officer
was not conducting a legal pat-down of Defendant.”
While the search of Appellant’s vehicle probably passed constitutional muster
based on the automobile exception to the warrant requirement, Chambers v.
Maroney, 399 U.S. 42 (1970), there is nothing in the record indicating Moela had
reasonable suspicion to conduct Terry pat down for weapons. Even so, once Moela
24 was assured Appellant was unarmed by that pat down, regardless of its legality, there
was no constitutionally viable reason for the warrantless search of Appellant’s person.
For these reasons, this Court should reverse the trial court’s order overruling
his motion to suppress evidence, vacate the conviction and remand for a new trial.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
grant oral argument, reverse the trial court’s decision on the motion to suppress
evidence, vacate the conviction and remand for a new trial.
Respectfully submitted, Schneider & McKinney, P.C.
/s/ Tom Moran Tom Moran Texas Bar No. 14422200 440 Louisiana, Suite 800 Houston, Texas 77002 (713) 951-9994 Telecopier: (713) 224-6008 Email: tom6294@aol.com
25 CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above document contains
5,675 words, excluding the portions excluded in TEX. R. APP. P. 9.4(i)(1).
/s/Tom Moran Tom Moran
CERTIFICATE OF SERVICE
I certify that the above brief was served on the State of Texas through
electronic filing and by delivering a copy to the Harris County District Attorney’s
Office, ATTN: Appellate Division, 1201 Franklin, Houston, Texas 77002 on this 21st
Day of April, 2015.
/s/ Tom Moran