ACCEPTED 12-15-00059-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/15/2015 5:09:45 PM CATHY LUSK CLERK
12-15-00059-CR
FILED IN 12th COURT OF APPEALS IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 6/15/2015 5:09:45 PM CATHY S. LUSK Clerk
DERRICK DEMOND COOKS
Appellant, RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS v. 6/15/2015 5:09:45 PM CATHY S. LUSK THE STATE OF TEXAS Clerk
Appellee
On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241-1485-14
ORAL ARGUMENT REQUESTED
Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel: Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702
Trial Counsel: Don Davidson PO Box 1105 Tyler, TX 75710
Attorney for the State on Appeal
Michael J. West Assistant District Attorney, Smith County 4th Floor, Courthouse 100 North Broadway Tyler, TX 75702
ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii TABLE OF CONTENTS............................................................................................... iii INDEX OF AUTHORITIES ......................................................................................... iv STATEMENT OF THE CASE....................................................................................... 2 ISSUE PRESENTED ...................................................................................................... 2 STATEMENT OF FACTS ............................................................................................. 2 SUMMARY OF THE ARGUMENT ............................................................................. 4 ARGUMENT .................................................................................................................. 5
I. BECAUSE THE SEARCH OF MR. COOKS' POCKETS EXCEEDED THE SCOPE OF ANY LEGALLY PERMISSIBLE SEARCH, THE TRIAL COURT ERRED IN DENYING HIS MOTION TO SUPPRESS. ............................................................................ 5
Standard of Review ................................................................................................... 5 Mr. Cooks Was Detained ............................................................................................ The Search Exceeded the Limited Scope Search Authorzied by Terry .................... 8 There Was No Valid Consent to the Search ........................................................... 11
CONCLUSION AND PRAYER .................................................................................. 13 CERTIFICATE OF SERVICE ..................................................................................... 14 CERTIFICATE OF COMPLIANCE ............................................................................ 14
iii INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT:
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) .................................... 8
Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ................................ 13
Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967) ...................................... 7
Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) ................................ 12
Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) .................................... 6
Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ................................ 8, 9
Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) ...................................... 7
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ........................................ passim
FEDERAL COURTS OF APPEAL:
United States v. Dalpiaz, 494 F.2d 374 (6th Cir. 1974) ......................................................................... 11
United States v. Foust, 461 F.2d 328 (7th Cir. 1972) ......................................................................... 11
United States v. Reyes, 349 F.3d 219 (5th Cir. 2003) ......................................................................... 11
iv TEXAS COURT OF CRIMINAL APPEALS:
Amador v. State, 221 S.W.3d 666 (Tex.Crim.App. 2007) ........................................................ 5
Baldwin v. State, 278 S.W.3d 367 (Tex.Crim.App. 2009) ........................................................ 9
Carmouche v. State, 10 S.W.3d 323 (Tex.Crim.App. 2000) .......................................................... 6, 11, 12
Davis v. State, 829 S.W.2d 218 (Tex.Crim.App. 1992) ........................................................ 10, 11
Ford v. State, 158 S.W.3d 488 (Tex.Crim.App. 2005) ........................................................ 9
Hamal v. State, 390 S.W.3d 302 (Tex.Crim.App. 2012) ........................................................ 8
Lippert v. State, 664 S.W.2d 712 (Tex.Crim.App. 1984) ........................................................ 10
State v. Ibarra, 953 S.W.2d 242 (Tex.Crim.App. 1997) ........................................................ 12
State v. Velaquez, 994 S.W.2d 676 (Tex.Crim.App. 1999) ........................................................ 12, 13
State v. Weaver, 349 S.W.3d 521 (Tex.Crim.App. 2011) ........................................................ 6
St. George v. State, 237 S.W.3d 720 (Tex.Crim.App. 2007) ....................................................... 5
Wood v. State, 515 S.W.2d 300 (Tex.Crim.App. 1974) ........................................................ 11
v TEXAS COURTS OF APPEAL:
Arroyo v. State, 881 S.W.2d 784 (Tex.App.—Houston [14th Dist.] 1994) ............................. 12
Graham v. State, 893 S.W.2d 4 (Tex.App.—Dallas 1994, no pet.)........................................... 9
Flores v. State, 824 S.W.2d 704 (Tex.App.—Corpus Christi 1992) ...................................... 10
Harris v. State, 827 S.W.2d 49 (Tex.App.—Houston [1st Dist.] 1992) ................................. 9, 10
Josey v. State, 981 S.W.2d 831 (Tex.App.—Houston [14th Dist.] 1998) ............................. 6
STATUTES AND CONSTITUTIONAL PROVISIONS:
TEX. CODE. CRIM. PROC. art. 38.23 ................................................................... 7
U.S. CONST. AMEND. IV .................................................................................... 7
TEX. CONST. art. I § 9 ........................................................................................ 7
vi 12-15-00059-CR
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
Appellant,
v.
THE STATE OF TEXAS
On Appeal from the 241st District Court of Smith County, Texas Trial Cause No. 241-1485-14
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Austin Reeve Jackson, attorney for Derrick Cooks, and files
this brief pursuant to the Texas Rules Of Appellate Procedure, and would show the
Court as follows: STATEMENT OF THE CASE
Derrick Cooks seeks to appeal his conviction and sentence for the offense of
possession of a controlled substance. (I CR 78). Mr. Cooks was indicted for this
case in November of last year in the 241st District Court of Smith County. (I CR
1). To this charge he entered a plea of “not guilty” and proceeded to trial by jury.
(I CR 78). After being found guilty, Mr. Cooks was sentenced by that jury to serve
a term of two years’ confinement and pay a fine of $6,500. (Id.). Sentence was
pronounced on 3 March 2015 and notice of appeal then timely filed. (I CR 78, 89).
ISSUES PRESENTED
I. BECAUSE THE SEARCH OF MR. COOKS’ POCK- ETS EXCEEDED THE SCOPE OF ANY LEGALLY PERMISSIBLE SEARCH, THE TRIAL COURT ERRED IN DENYING HIS MOTION TO SUPPRESS.
STATEMENT OF FACTS
On 30 June 2014, an officer with the Smith County Sherriff’s Office was
working in tandem with undercover officers who were observing a suspected drug
house. (III RR 11). That officer was given information describing a vehicle that
had just left that house. (III RR 11). After observing the car commit a traffic vio-
lation the officer initiated a traffic stop. (III RR 12).
Upon approaching the vehicle the officer observed an infant in the back seat,
a young woman in the driver’s seat, and Appellant, Mr. Derrick Cooks, in the front
passenger seat. (III RR 15). After checking the driver’s license the officer discov-
ered that she had outstanding warrants and he placed her in handcuffs with the in-
tent that she would be arrested. (III RR 16). He then approached Mr. Cooks and
asked him to step out of the car. (III RR 16). According to the officer, at that
point he was intending simply to make sure he could release the vehicle and the in-
fant to Mr. Cooks. (III RR 16). Upon exiting the vehicle, the officer observed
that, in his opinion, Mr. Cooks appeared nervous, fumbled with his cell phone, and
otherwise seemed suspicious. (Id.). As a result, the officer conducted a Terry pat-
down for his safety. (III RR 17).
Despite finding no weapons, the officer nonetheless then conducted a second
search of Mr. Cooks by instructing Mr. Cooks to walk to the back of the car and
empty his pockets. (III RR 17). When he did so, Mr. Cooks removed from his
pocket a bottle that was later determined to contain narcotics. (III RR 18). On this
basis, Mr. Cooks was arrested and subsequently charged with the offense of pos-
session of a controlled substance. (III RR 19).
In response to the charge Mr. Cooks entered a plea of “not guilty” and by
way of a motion to suppress and an evidentiary hearing on the same developed the
argument that the seized narcotics should have been suppressed, as they were the
result of an illegal search. (I CR 26, 78). The trial court, however, disagreed and
denied the motion. (III RR 40). The trial proceed, Mr. Cooks was convicted, and
he was then sentenced to serve a term of two years’ confinement. (I CR 78). Sen-
tence was pronounced on 3 March 2015 and notice of appeal then timely filed. (I
CR 78, 89).
SUMMARY OF THE ARGUMENT
Both the United States Constitution and the Texas Constitution prohibit un-
reasonable searches and seizures. Generally, searches without warrants are
deemed unreasonable. One exception to this rule is a protective Terry pat-down of
an individual who has lawfully been detained. However, the scope of a Terry
search is limited to an officer’s pat-down search for weapons which may reasona-
bly place him in fear of his life or serious injury. Once an officer has conducted
such a search and that search has produced no weapons or contraband, any further
search must be justified my probable cause and cannot be conducted merely be-
cause the officer is suspicious that a person might have an unarticulated “some-
thing else” in his pockets.
Here, the detaining officer conducted a Terry frisk and found no weapons.
After doing so and finding no weapons, the officer then ordered Mr. Cooks to emp-
ty his pockets. That second search, conducted on the officer’s mere suspicion or
hunch that there may be something in Mr. Cooks’ pockets the nature of which was
not immediately discernable to the officer, was not constitutionally permissible and
the resulting motion to suppress drug evidence recovered from that search should
have been granted.
ARGUMENT
I. BECAUSE THE SEARCH OF MR. COOKS’ POCKETS EXCEEDED THE SCOPE OF ANY LEGALLY PERMIS- SIBLE SEARCH, THE TRIAL COURT ERRED IN DENYING HIS MOTION TO SUPPRESS.
In the instant case Mr. Cooks filed a motion to suppress in which he sought
to exclude from trial a bottle of PCP that officers recovered as a result of searching
his pockets. (I CR
(I CR 32). A hearing was held on this motion during which time the detaining of-
ficer was the only witness to testify. (III RR 10-40). Following the hearing the tri-
al court made written findings of fact and conclusions of law and ultimately found
that the motion to suppress should be denied. (III RR 35-40). However, because
the trial court erred in concluding that the second search of Mr. Cooks’ pockets
was constitutionally permissible, the Court should reverse the underlying judgment
and remand the case for a new trial.
Standard of Review
A trial court’s ruling on a motion to suppress is reviewed under a bifurcated
standard. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). A trial
court’s determination of historical facts is given almost total deference while the
application of law to those facts is reviewed de novo. Id. As such, the trial court
acts as the sole judge of the credibility of the witnesses and the weight to be given
their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007).
On appeal, the party that prevailed at trial is generally afforded the most favorable
vie of the evidence and the reasonable inferences that can be drawn from the same.
State v. Weaver, 349 S.W.3d 521, 525 (Tex.Crim.App. 2011); Carmouche v. State,
10 S.W.3d 323, 332 (Tex.Crim.App. 2000).
Mr. Cooks Was Detained
After hearing evidence on the motion to suppress, the trial court, although
not explicitly, effectively found that Mr. Cooks had been detained. (I CR 38-39).
Moreover, although the issue was uncontested at trial, that the actions of the officer
in this case constituted an investigatory detention, or seizure is worth nothing as
part of the analysis of this case. See Maryland v. Wilson, 519 U.S. 408, 412-14,
117 S.Ct. 882, 885-86, 137 L.Ed.2d 41 (1997) (holding that when the driver of a
vehicle is detained any passengers in that vehicle are detained as well); see also
Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (For
Fourth Amendment purposes a “seizure” occurs when “by means of physical force
or show of authority, [an officer] has in some way restrained the liberty of a citi-
zen.”). Similarly, to aid the Court’s in its review of the issue before it, Appellant
would concede that the driver in this instance, as found by the trial court, was le-
gally detained. (I CR 38); See, e.g., Josey v. State, 981 S.W.2d 831, 837-38
(Tex.App.—Houston [14th Dist.] 1998, pet. ref’d) (driver and passengers may be
detained on the basis of a traffic violation committed by the driver).
This does not, however, end the inquiry.
Simply because someone has been legally detained does not mean that any
subsequent search of their person is automatically legal. Katz v. United States, 389
U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507, 514 (1967) (holding that such search-
es are per se unreasonable and subject to only a few, limited circumstances). In
fact, a person detained by law enforcement continues to enjoy protections against
searches from both the United States and Texas constitutions. U.S. CONST. amend.
IV; TEX. CONST. art. I § 9; TEX. CODE CRIM. PROC. art. 38.23(a).
One of the few exceptions to the “inestimable right of personal security” the
government intrusion on which is protected by our founding state and federal doc-
uments was discussed in the landmark case of Terry v. Ohio. Terry, 392 U.S. at 8-
9. In Terry, the Supreme Court held that a police officer who has reasonable, ar-
ticulable suspicion “that the individual whose suspicious behavior he is investigat-
ing at close range is armed and presently dangerous to the officers or others” may
be searched “to determine if the person is in fact carrying a weapon.” Id. at 24.
On the same day it issued its opinion in Terry, the Supreme Court issued an opin-
ion in Sibron v. New York in which it explicitly limited the nature of the search dis-
cussed in Terry to those few searches the “only goal of which might conceivably”
result in in the discovery of dangerous weapons. Sibron, 392 U.S. 40, 65, 88 S.Ct.
1889, 20 L.Ed.2d 917 (1968). The Court has continued to restrict Terry searches
in an unequivocal manner, explaining that “[t]he purpose of this limited search is
not to discover evidence of a crime, but to allow the officer to pursue his investiga-
tion without fear of violence.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct.
1921, 32 L.Ed.2d 612 (1972). Any search that exceeds that limited scope produces
results that must be suppressed. Minnesota v. Dickerson, 508 U.S. 366, 373, 113
S.Ct. 2130, 124 L.Ed.2d 334 (1993).
This Search Exceeded the Limited Scope Search Authorized by Terry
Appellant does not argue that the initial pat-down search of Mr. Cooks was
illegal or impressible. Rather, Appellant concedes, given the totality of the cir-
cumstances, that the officer could permissibly conduct a pre-emptive, protective
search of Mr. Cooks. See, e.g., Hamal v. State, 390 S.W.3d 302, 308
(Tex.Crim.App. 2012) (holding that nervousness when coupled with additional
factors may justify a protective search). However, the officer admitted at trial that
after initially patting down Mr. Cooks he found no weapon and conducted a second
search of his pockets to see if Mr. Cooks “was still trying to hide something.” (III
RR 32). After making this statement the officer attempted to walk it back some-
what explaining:
There’s a potential [after the pat-down] to have a weapon in his pock- et. I don’t know exactly what’s in his pocket. I mean, I can feel loose change. There’s other items in the pocket. Could be a small pocket- knife. Could not be. I mean, I have no idea what’s in his pocket.
(III RR 33).
The problem with this comment is that a Terry search is limited to those sit-
uations where “a reasonably prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27.
Importantly, the officer in this case, even while noting there might have been
something else in Mr. Cook’s pocket, was unable to describe anything he reasona-
bly believed to be a threat: no bulge in the shape of a weapon, no sharp or danger-
ous object, nothing. Where the incriminating character of an object is not reasona-
bly and immediately apparent, an office has no authority to perform a search to re-
trieve the same. Graham v. State, 893 S.W.2d 4, 6 (Tex.App.—Dallas 1994, no
pet) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d
334 (1993)). “[W]hen the conditions of the ‘plain feel’ doctrine … are not pre-
sent, an officer conducting a valid investigative detention must have probable
cause in order to conduct a search for non-weapon contraband or other evidence.”
Baldwin. v. State, 278 S.W.3d 367, 372 (Tex.Crim.App. 2009). And an inarticu-
late suspicion or hunch, as the Court has here, is not the stuff of probable cause.
Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005). Because the officer
found no weapons or other immediately identifiable contraband, and because he
lacked probable cause to conduct his search exceeding that scope permissible by
Terry, there was no legal basis to support any additional search of Mr. Cooks’
pockets. See, e.g., Harris v. State, 827 S.W.2d 49, 50-52 (Tex.App.—Houston [1st
Dist.] 1992, pet. ref’d) (officers cannot extend Terry search to contents of pockets
on mere hunch or possibility of finding contraband or a weapon).
Additionally, to the extent that the officer in this instance was concerned
about his safety, that concern must have been reasonable. Terry, 392 U.S. at 28.
That is, the officer must have been reasonable concerned that Mr. Cooks was car-
rying a weapon in his pockets the nature of which posed a legitimate risk to his
safety. Id. Yet we know this was not the case as the officer had already check for
weapons and found none and further testified that, at most, he thought Mr. Cooks
might have “a small pocketknife.” (III RR 33). A small knife, razor blades, nee-
dles or other such weapons does not rise to the level of threatening officer safety to
the point that an additional search can be justified. See Davis v. State, 829 S.W.2d
218, 220 (Tex.Crim.App. 1992) (scope of search is limited to the discovery of
weapons that could reasonably be used to harm the officer); Harris, 827 S.W.2d at
52; Flores v. State, 824 S.W.2d 704, 706 (Tex.App.—Corpus Christi 1992, no
pet.).
Terry permits a search only for those weapons that could reasonably harm the police officer. “If in the course of a pat-down frisk the of- ficer satisfies himself that the suspect has no [such] weapons, the of- ficer has no valid reason to further invade the suspect’s right to be free of police intrusion absent probable cause to arrest.”
Davis, 829 S.W.2d at 221 (quoting Lippert v. State, 664 S.W.2d 712, 721
(Tex.Crim.App. 1984). The purpose of a limited search after an investigatory stop
is not to discover evidence of a crime, but to allow an officer to pursue an investi-
gation without the fear of violence. Wood v. State, 515 S.W.2d 300, 306
(Tex.Crim.App. 1974). Once the officer in this case relieved himself of that fear,
he had no legal authority to search Mr. Cooks’ pockets and the trial court erred in
concluding otherwise. To this end, Appellant would urge the Court to adopt the
language of the Court of Criminal Appeals in Davis and hold:
Although there were adequate grounds to search appellate for weap- ons, the scope of the search conducted by [the officer] clearly exceed- ed any justification that he might have had to search for weapons for his protection and therefore rendered the [drugs] inadmissible under Article I, section 9 of the Texas Constitution and the Fourth and Four- teenth Amendments to the United States Constitution.
Davis, 829 S.W.2d at 221.
There Was No Valid Consent to the Search
The State will likely argue in response that Mr. Cooks consented to the
search of his pockets. However, it should be noted that the “request” to empty his
pockets was not so much a request or option pretend to Mr. Cooks, but an instruc-
tion to submit to a search given to him by an officer who had detained him. See,
e.g., United States v. Reyes, 349 F.3d 219, 225 (5th Cir. 2003) (officer’s verbal or-
der to empty pockets constituted a search); United States v. Dalpiaz, 494 F.2d 374,
377 (6th Cir. 1974) (same); United States v. Foust, 461 F.2d 328, 331 (7th Cir.
1972) (same). To the extent that the request made of Mr. Cooks was a request to
which he consented, to be valid that consent must have been voluntary. Car-
mouche v. State, 10 S.W.3d 323, 331(Tex.Crim.App. 2000). Voluntariness must
be proven by the State by clear and convincing evidence and is determined by a re-
view of the totality of the circumstances. State v. Ibarra, 953 S.W.2d 242, 243
(Tex.Crim.App. 1997); Carmouche, 10 S.W.3d at 331.
Here, prior to asking Mr. Cooks to empty his pockets, the officer had made a
show of force by activating his vehicle lights, pulling over the driver of the vehicle,
ordering Mr. Cooks out of the car, and by instructing Mr. Cooks to walk to the rear
of the vehicle. (III RR 10-35). Mr. Cooks yielded to this show of authority and
was, for Fourth Amendment purposes, detained. Kaupp v. Texas, 538 U.S. 626,
629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (a “seizure” occurs when “by means
of physical force or show of authority, [an officer] has in some way restrained the
liberty of a citizen.”). Additionally, at that point, the driver of the vehicle was
standing in handcuffs and was being arrested on outstanding warrants. (III RR 31).
So, effectively the officer prevented Mr. Cooks from both waling away and driving
away. After thus restraining Mr. Cooks, the officer also failed to inform him that
he had the right to refuse to consent to any search. See State v. Velasquez, 994
S.W.2d 676, 679 (Tex.Crim.App. 1999) (an officer’s failure to advise a person of
their right to refuse consent is a factor courts may consider); Arroyo v. State, 881
S.W.2d 784, 789 (Tex.App.—Houston [14th Dist.] 1994, no pet.). Under these
circumstances no reasonable person would have believed they were free to leave or
refuse to comply with the instructions of an officer who had substantially infringed
on their liberty. Id. at 678-79 (the test is “whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the
officers’ requests or otherwise terminate the encounter.”) (citing Florida v. Bostick,
501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Therefore, because any
consent that was arguably given was involuntary, it cannot serve to cure an other-
wise unconstitutional search.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel prays that because the
search of Mr. Cooks was constitutionally impressible, and because, therefore, the
trial court erred in denying his motion to suppress the evidence seized subsequent
to that search, that the Court reverse the underlying judgment and remand the case
for a new trial.
Respectfully submitted,
/s/ Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for the
State by e-file concurrently with its filing in the Court.
/s/ Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and con-
sists of 3,136 words.