Jessica Beechum v. State

Opinion

OPINION No. 04-10-00276-CR

Jessica BEECHUM, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 1, Bexar County, Texas Trial Court No. 309989 Honorable Al Alonso, Judge Presiding

Opinion by: Steven C. Hilbig, Justice

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 2, 2011

AFFIRMED

Jessica Beechum was charged with possession of marijuana. Beechum filed a motion to

suppress, challenging her arrest and the seizure of the marijuana. After a hearing, the trial court

denied the motion to suppress. Beechum subsequently entered a plea of guilty pursuant to a plea

bargain, which the court followed. Beechum appeals, complaining the trial court erred in

denying her motion to suppress. We affirm. 04-10-00276-CR

BACKGROUND

San Antonio Police Officer Eric Rubio testified that on November 25, 2009, he was on

patrol when he was flagged down by two individuals who identified themselves as Bexar County

Juvenile Probation Officers. Officer Rubio testified one of the officers handed him a bag of

marihuana, which the probation officer stated he had obtained from Beechum. 1 The probation

officers told him they were going to a residence for a probation check and noticed a car with

three people inside parked in front of the residence. They parked behind the car and when they

got out to approach the residence, they saw smoke and smelled marihuana coming from inside

the car. As they approached the car, one of the probation officers saw Beechum holding a bag of

marihuana. Officer Rubio testified the probation officer saw the bag of marihuana in “plain

view.” The probation officer told Officer Rubio that he asked Beechum about the marihuana,

and she responded by handing the bag to him. Officer Rubio testified that after taking custody of

the marihuana, he went to the car where Beechum was still sitting in the front passenger seat and

arrested her.

Beechum testified she was sitting in a car with two other people when a vehicle parked

behind them and used spotlights to illuminate them. She told the court that one of the people in

the car was smoking a cigar, which contained only tobacco. She testified that two men in black

uniforms, who she believed were police officers, walked up to the car. One of them opened the

car door, shined a flashlight inside, and told her to give him what she had in her hand. Beechum

testified that she had her cell phone in her hand, that she showed it to the officer, but refused to

give it to him. Beechum testified the officer told her several more times to give him what was in

her hand, and she finally gave him the bag of marihuana she had hidden between her legs.

1 Neither of the probation officers testified at trial. The State’s only witness was Officer Rubio, who related what he had been told by the probation officers.

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Beechum testified the bag of marihuana was not in plain sight and the officer could not have

seen it.

The trial court denied the motion to suppress and entered written findings of fact and

conclusions of law. The court found: the probation officer saw the marihuana in plain view; he

immediately recognized the substance as marihuana; Beechum handed the marihuana to the

probation officer when asked about it; the “search” took place before any detention; Officer

Rubio’s testimony was credible; and Beechum’s testimony was not credible. The court

concluded that “having drugs in plain view next to the dwelling of a juvenile on probation is in

fact a breach of the peace,” Beechum was not detained by the probation officers, and Officer

Rubio had probable cause to arrest Beechum, and lawfully arrested her for possession of

marihuana.

In a single point of error, Beechum asserts the trial court erred in denying the motion to

suppress the marihuana because it “was seized without a warrant and in violation of the Fourth

Amendment.” Beechum argues the marihuana was seized pursuant to an illegal arrest because

neither the probation officers nor Officer Rubio had legal authority to arrest her. She contends

the plain-view doctrine does not apply because the probation officers were not peace officers,

and further argues that the record does not support the trial court’s fact finding that the

marihuana was in plain view.

STANDARD OF REVIEW

We review the trial court’s ruling on a motion to suppress under an abuse of discretion

standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We scrutinize the

record in the light most favorable to the trial court’s ruling and we will reverse the trial court’s

ruling only if the ruling is outside the zone of reasonable disagreement. Id. The trial court is the

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sole arbiter of the credibility of the witnesses and the weight to be given their testimony. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We afford almost total deference to the trial

court’s determination of historical facts, especially those based on an evaluation of the witnesses’

credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

However, we review de novo mixed questions of law and fact that do not turn on an evaluation

of credibility or disputed facts and the trial court’s application of the law of search and seizure to

the facts. State v. Iduarte, 268 S.W.3d 544, 549 (Tex. Crim. App. 2008) (mixed questions of law

and fact); Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (application of law to the

facts). We will sustain the trial court’s ruling “if it is reasonably supported by the record and is

correct on any theory of law applicable to the case.” Dixon, 206 S.W.3d at 590.

DISCUSSION

Search Incident to Arrest

Beechum initially contends the trial court erred in denying her motion to suppress the

marihuana because it was obtained in a search incident to an illegal arrest. She argues the

probation officers could not legally arrest her because they are not peace officers and did not

observe her commit a felony or breach of the peace. See TEX. CODE CRIM. PROC. ANN. art. 2.12

(West Supp. 2010) (identifying individuals who are peace officers); TEX. HUM. RES. CODE ANN.

§ 141.065 (West Supp. 2010) (peace officer or other person employed by law enforcement or

prosecution official may not act as juvenile probation officer); TEX. CODE CRIM. PROC. ANN. art.

14.01(a) (West 2005) (person who is not a peace officer may, without warrant, arrest one who

commits a felony or breach of the peace in his presence or within his view). She argues Officer

Rubio could not make a warrantless arrest based solely on the word of the juvenile probation

officers.

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The premise of Beechum’s argument — that the marihuana was obtained in a search

incident to arrest — is contrary to the trial court’s finding that Beechum gave the bag of

marihuana to the probation officer before any detention or arrest occurred. We hold the trial

court’s finding is supported by the law and the record.

“‘A person has been “seized” within the meaning of the Fourth Amendment only if, in

view of all the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.’” California v. Hodari D., 499 U.S. 621, 627-628 (1991) (quoting

U.S. v. Mendenhall, 446 U.S. 544, 554 (1980)). Beechum was seated in the vehicle when the

probation officers first approached, and the officers did not take any action to restrict Beechum’s

movements. Although Beechum testified that the probation officers appeared to have been

wearing some type of uniform, even police officers may approach citizens in public areas

without implicating the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434-35 (1991)

(stating that “even when officers have no basis for suspecting a particular individual, they may

generally ask questions of that individual,” “ask to examine the individual’s identification,” and

“request consent to search his or her luggage” “as long as the police do not convey a message

that compliance with their requests is required”). The probation officer saw the marihuana as

soon as he approached the car. According to Officer Rubio, the probation officer simply “asked

[Beechum] about the marijuana and he told me that she just – handed it to him.” This was the

first interaction between the probation officer and Beechum. Viewing the record in the light

most favorable to the trial court’s ruling, we hold Beechum had not been detained when she gave

the marihuana to the probation officer. Accordingly, the marihuana was not obtained as a result

of an illegal arrest.

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Plain-View Doctrine

Beechum next contends the seizure of the marihuana cannot be supported by the plain-

view doctrine. We disagree.

The Fourth Amendment is implicated when property is seized by government agents,

even though the agents are not peace officers. “Although the Fourth Amendment does not apply

to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the

Amendment protects against such intrusions if the private party acted as an instrument or agent

of the Government.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989); see also

O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (holding “[s]earches and seizures by government

employers or supervisors of the private property of their employees . . . are subject to the

restraints of the Fourth Amendment”); New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (holding

that search of student by school authorities must comport with the Fourth Amendment).

The plain-view doctrine is an exception to the warrant requirement of the Fourth

Amendment. Horton v. California, 496 U.S. 128, 133 (1990). In general terms, the doctrine

permits the warrantless seizure of evidence or contraband if the police officer is justified in being

at the location where the evidence is observed, the contraband or evidence is in plain view, and

its nature as contraband or evidence is immediately apparent. See id. at 136; State v. Dobbs, 323

S.W.3d 184, 187 (Tex. Crim. App. 2010). As long as the officer has not violated the Fourth

Amendment to be in the physical position to view the evidence, “neither its observation nor its

seizure would involve any invasion of privacy.” Horton, 496 U.S. at 133. Beechum asserts the

probation officers could not seize the marihuana pursuant to the plain-view doctrine because they

are not peace officers. However, she does not cite any authority or provide any argument as to

why the probation officers’ seizure of the marihuana, which was required to be reasonable under

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the Fourth Amendment, was not subject to the plain-view exception to the Fourth Amendment.

We hold that the plain-view doctrine is properly considered in an analysis of whether a

government agent’s search and seizure was reasonable under the Fourth Amendment. We

therefore review the trial court’s ruling that the probation officers lawfully seized the marihuana

pursuant to the plain-view doctrine.

Officer Rubio testified the probation officers approached the car after seeing smoke

coming from the interior and smelling the odor of marihuana. The car was parked on a public

street. No Fourth Amendment right was implicated by the probation officers walking up to the

car and speaking to Beechum. See Bostick, 501 U.S. at 434-35. He also testified the probation

officers saw, in plain view, a bag of marihuana in Beechum’s hand. Beechum contends the

record does not support the trial court’s finding that the marihuana was in the officers’ plain view

because she testified she had the marihuana hidden between her legs. However, Officer Rubio’s

testimony clearly supports the trial court’s finding, and as the sole arbiter of the credibility of the

witnesses, the court was free to believe Officer Rubio’s testimony and to discredit Beechum’s.

See Ross, 32 S.W.3d at 855. We hold the trial court did not err in denying the motion to suppress

the marihuana because it was in plain view of the government agents who were in a place they

had a right to be and the nature of the contraband was immediately apparent. See Horton, 496

U.S. at 136. 2

2 The record also supports the trial court’s implied finding that the seizure of the marihuana was consensual. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”).

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CONCLUSION

The trial court did not abuse its discretion in denying Beechum’s motion to suppress, and

the judgment of the trial court is affirmed.

Steven C. Hilbig, Justice

Publish

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