ACCEPTED 12-15-00055-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/10/2015 6:58:36 PM CATHY LUSK CLERK
No. 12- 1 5—0O055-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE TWELF TH COURT OF APPEALS 6/10/2015 6:58:36 PM TYLER, TEXAS CATHY S. LUSK Clerk
JORGE ZEPEDA APPELLANT
VS.
THE STATE OF TEXAS APPELLEE
On Appeal fiom the County Court at Law #2 cause # O02-82159-14 Smith County, Texas Judge Rodgers
APPELLANT’S BRJEF
Jeff Sanders State Bar No: 24033153 120 S. Broadway, Suite 112 ORAL ARGUMENT REQUESTED Tyler, Texas 75702 (903) 593-8040 (903) 595-5532 fax
ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL Parties to Trial Cou1t’s Judgment:
Appellant is JORGE ZEPEDA. Appellee is The State of Texas.
Names and Addresses of Trial and Appellate Counsel
1. JORGE ZEPEDA Jeff Sanders 120 Broadway, Suite 112 S. Tyler, Texas 75702
2. The State of Texas
Michael West Smith County District Attorney’s Office 100 North Broadway Tyler, Texas 75702 TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pi . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iV
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 15
Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii INDEX OF AUTHORITIES PAGE Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19, 20
Florida v. Wells, 495 U.S. 1, 4, 110 s. Ct. 1632, 1635, 109 L. Ed. 2d 1 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 21, 22
South Dakota Oggermarz, 428 U.S. 364, 369, 96 v. S. Ct. 3092, 3097, 49 L. Ed. 2d 1000 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19, 21
Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980) . . . . 19, 21
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) . . . .17, 18
Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) . . . . . . . . 22
Hubert v. State 312 S.W.3d 554, 559 (Tex. Crim. App. 2010) . . . . . . . . . 17
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) . . . . . . . . . 18
Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 1991) . . . . . . . . 20
Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008) . . . . . . . . . . . 17
Shepard v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) . . . . . . . . 17
State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999) . . . . . . . . . 18
State v. Castlebemv, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) . . . . . 18
State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008) . . . . . . . . . 19
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) . . . . . . . . . . . . 18
Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) . . . . . . . 18 iv Ward v State, 659 S.W.2d 643, 646 (Tex. Crim. App. 1983) . . . . . . . . . . . 22
Banda v. State 317 S.W.3d 907, 907-08 (Tex. App. — Houston[14“‘ District] 2010, no pet.) . . . . . . . . . . . . . 19
Ferzton v. State, 785 S.W.2d 443 (Tex. App. Austin 1990) . . . . . . . . . . . . 22
Garza V. 137 S.W.3d 878, 882 State, (Tex. App. — Houston[15‘ Dist] 2004, pet. Refd) . . . . . . . . . . . . . . .
Greer v. State, 436 S.W.3d 1, 7 (Tex. App. — Waco 2014, no pet.) . . . . . . 20
Kennedy v. State, case# 12-13-00248-CR . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Mosg v. 333 S.W.3d 696, 702 State, (Tex. App. — Houston[1S‘ Dist.] 2010, no pet.) . . . . . . . . . . . . . . . . . 19
Rodrigyez v. State, 641 S.W.2d 955 (Tex. App. — Amarillo 1982, no writ) . . . . . . . . . . . . . . . . . . . . . 20, 21 STATEMENT OF THE CASE The Smith County District Attorney charged Appellant by information
for possession of marijuana arising from Appellant’s arrest on May 26,
2014. (CR 2). Appellant filed a pretrial motion to suppress illegally seized
evidence because of an unlawful inventory search. (CR 32-35). After a
hearing, the trial court denied the motion. (CR 43). The trial court filed its findings of fact and conclusions of law on January 15, 2015. (CR 36-3 7). On February 11, 2015, Appellant waived his constitutional right to a
jury trial and entered a guilty plea to the charge with an agreed plea
recommendation. (CR 48-49). On February ll, 2015, the trial court assessed
punishment at 2 years deferred adjudication probation. (CR 44-47). Appellant timely filed Notice of Appeal on February 1 1, 2015. (CR
43). The Certification By Trial CO1]1'tt0 allow this appeal was filed on
February 1 1, 2015 (CR 58) Appellant appeals the judgment based on the
trial court’s denial of his motion to suppress illegally seized evidence. ISSUE PRESENTED
The trial court committedreversible error when it denied Appellant’s motion to suppress illegally seized evidence, namely, marijuana, during an unlawful inventory search of the vehicle.
STATENIENT OF THE FACTS Tyler Police Officer Boyce was on patrol on May 26, 2014, and conducted a traffic stop on Appellant for failure to signal a turn properly.
(RR 8). Appellant provided Offlcer Boyce with a driver’s license that was
suspended and an insurance card which displayed that Appellant was an
excluded driver on this vehicle. (RR 9) The vehicle was registered to Appellant’s father, Juan Zepeda. The insurance card named Juan Zepeda as
the insured for this vehicle. (RR 24). Said insurance was valid and in effect
at the time of the traffic stop for Juan Zepeda.
Prior to the unlawful inventory search, Officer Boyce asked Appellant
several questions about marijuana. (RR 16). Officer Boyce admitted he
asked Appellant when Appellant last smoked marijuana. (RR 15). Officer
Boyce issued Appellant citations for Driving While License Invalid and No
Liability Insurance. Appellant was not under arrest at that point.
2 Officer Boyce stated he had to tow the vehicle pursuant to Tyler
Police Department Towing Policy. (RR 10); (RR 48); (RR Exhibit 1 and 2). Subsequent to the off1cer’s decision to impound and tow the vehicle, Officer
Boyce conducted an inventory search of the vehicle. Officer Boyce
admitted he had no intention of arresting Appellant until after the marijuana
was found during the inventory search. (RR 20).
Officer Boyce testified that he did not contact Appellant’s father
because, as Officer Boyce stated, “He [Appellant’s father] already allowed
Jorge to drive the vehicle. He isjust going to turn around and allow Jorge to continue driving the vehicle, so therefore, I towed the vehicle.” (RR 24).
Officer Boyce agreed that there was no way he would allow
Appellant’s father to pick up Appellant and vehicle. (RR 28). Officer Boyce stated this was because “his father allowed an unlicensed driver to operate a
motor vehicle with insurance that has him as an excluded driver.” (RR 28).
Officer Boyce denied Appellant’s request to call his father, Juan
Zepeda, to pick up the vehicle and Appellant. (RR 27). Officer Boyce
admitted he could have allowed that to happen. (RR 27). Appellant’s father
Juan Zepeda testified that he lived nine blocks away and would have come
to pick up the vehicle and Appellant in less than ten minutes. (RR 43).
3 Officer Boyce stated he knew that Appellant’s address would be roughly a
mile away. (RR 30).
Officer Boyce found marijuana in the ashtray during the inventory
search and arrested Appellant for the Class B Misdemeanor charge of Possession of Marijuana. (RR 14). Appellant was arrested for Possession of Marijuana only. Officer Boyce stated his plan was for Appellant to call
somebody to pick up Appellant after the inventory search if the marijuana
had not been found and if Appellant had not been arrested. (RR 26).
Officer Boyce agreed that the Tyler Police Department Towing Policy
states that before the impoundment of a vehicle the officer shall consider
mitigating circumstances not to impound the vehicle. (RR 31). Officer
Boyce stated there were not any mitigating circumstances to justify not
towing the vehicle. Officer Boyce did not see any mitigating circumstances.
Officer Boyce stated he towed the vehicle because “Everything I had
it met the elements. He was operating the vehicle. No insurance. No license. He had a prior. That is all I needed.” (RR 37).
Officer Boyce agreed that father of Appellant, Juan Zepeda, had valid
insurance on this vehicle and was authorized to drive this vehicle. Officer
Boyce agreed there was a request by Appellant to call his father to come and 4 pick up vehicle and Appellant. (RR 37-38). Officer Boyce agreed this incident occurred in the daytime and the vehicle could have been left in the
parking lot. (RR 26). Appellant’s father also testified he had valid
insurance and had to go pick up his Vehicle at Crow Towing Co. (RR 44).
Tyler Police Department General Order for Impoundment for Failure
to Maintain Financial Responsibility 07.500 (RR 48) (RR Exhibit 1) states:
“07.50l PURPOSE As authorized by Tyler City Code Section 4-73, the purpose of this
policy is to establish guidelines and procedures for Tyler Police Department
officers who encounter individuals operating a motor vehicle without the
financial responsibility required by State law, Texas Transportation Code,
Chapter 601 .
07.502 POLICY It is the policy of the Tyler Police Department to conduct traffic
enforcement that will provide maximum protection to all individuals who use the roadways within the city. As part of this strategy, the Tyler Police
Department’s goal is to ensure that all motor vehicles are operated with the
financial responsibility required by law. Enforcement action shall be taken
5 when officers encounter individuals who fail to maintain the required
financial responsibility unless mitigating circumstances discussed in the
policy exist. Any action taken will be applied equitably and without discrimination to any person.
07.503 FINANCIAL RESPONSIBILITY DEFINITION For the purposes of this policy, the term “financial responsibility”
refers to the financial responsibility on a specific motor vehicle at the level
of coverage meeting or surpassing, State requirements (Texas Transportation
Code, Sections 601.051 — 601.124). Financial responsibility is required
whether the vehicle is operated on a public roadway or private property.
Evidence of this financial responsibility is set forth in Texas Transportation
Code, Section 601.053. Enforcement action taken on private property will be
with supervisor approval.
07.504 TRAFFIC STOPS A. As part of a normal traffic stop, ofiicers shall ask the driver for the
required proof of financial responsibility of the vehicle.
B. If the driver is unable to produce the required documentation, the
officer shall generally issue a citation for the appropriate offense.
C. If the officer, either through a driver’s license check or through
6 personal contacts, determines that the driver has previously been
convicted for operating a motor vehicle with no financial
responsibility, the officer shall impound the vehicle. Before the officer
impounds a vehicle under this policy, the officer shall comply with the
requirements in subsections B. — F. under “Accidents” in this policy.
D. If the driver’s license check indicates that the driver does not possess
a driver’s license or that the license is suspended for not having
insurance and the driver is unable to show proof of financial
responsibility on the vehicle being operated, the officer shall impound
the vehicle. No prior conviction for failing to maintain financial responsibility is necessary when the driver does not possess a driver’s
license. Prior to impounding a vehicle under this policy, the officer
shall comply with the same requirements as listed in subsections B through F as listed under “Accidents” in this policy.
07.505 ACCIDENTS A. If, during the investigation of a motor vehicle accident, an officer
determines that one or more of the involved vehicles was operated
without the required financial responsibility the officer shall impound
7 the vehicle(s). No prior conviction for failure to maintain financial responsibility is necessary in order to tow a vehicle involved in an
accident.
Impoundment should generally be restricted to those cases where the
driver admits to not having financial responsibility or the officer is
able to verify that no coverage exists.
Before impounding a vehicle, when the operator claims to have
financial responsibility but fails to show the required proof of
coverage, an officer shall make reasonable efforts to determine if the
vehicle is covered. Steps to Verify coverage may include but are not limited to:
a. Contacting the driver’s insurance company.
b. Contacting the driver’s insurance agent.
c. Contacting a parent or guardian if dealing with a minor.
(1. Contacting the lien holder.
e. Checking through TexSure database.
If the officer, after making reasonable efforts to verify coverage, is
unable to get a definitive answer, and the driver continues to claim
8 that coverage exists, the officer may elect not to impound the vehicle. Officers should note on the accident report under “officer summary”
the steps taken to verify coverage.
If the vehicle is impounded, the officer shall issue a citation for the
failure to maintain or show proof of financial responsibility, unless the
offence is classified as a class B Misdemeanor. If it is determined or verified that the driver does not have the required
financial responsibility but the officer believes that there are
mitigating circumstances not to impound the vehicle, a supervisor will
be contacted.
Delayed Enforcement
If an officer investigates an accident where the driver(s) show the
required proof of financial responsibility, and it is later determined
that the coverage was not valid; the original investigating officer shall
issue a citation.
1. The officer must retrieve the original accident report from Data
Management, make the appropriate correction indicating no
financial responsibility and the issuance of the citation, and submit
9 a supplemental CRB-3 if the original has already been sent to DPS Austin. The officer will make a notation that the report was
amended at the top of the report.
2. Additional charges may be filed by the investigating officer if appropriate (e.g. Texas Transportation Code Section 548.603,
Texas Penal Code Section 37.10, etc.).
07.506 IMPOUNDMENT PROCEDURES A. Before impounding a vehicle under this policy, officers should
consider the mitigating circumstances surrounding the situation
including:
1. Time of day.
2. Location.
3. Ability of operator to safely leave the location.
4. Availability of other units to assist with the safe removal of
occupants.
5. Call demand
6. Weather conditions
7. Lighting
8. Traffic volume, conditions, and speed.
10 An officer impounding a vehicle for failure to maintain or show proof of financial responsibility will make reasonable effort to provide for
the safety of the driver(s) and any occupant(s). Examples of
reasonable effort include, but are not limited to, transportation of the
driver(s) and occupant(s) to a safe place or calling a friend or relative
for a ride. If there is no reasonable way to avoid placing the driver(s)
and occupant(s) in an unsafe situation, the officer shall contact a
supervisor for review to not impound the car.
A vehicle impounded under this policy will be taken to the wrecker company lot.
1. Tows will be made by the on-call wrecker from the normal
Rotation List.
2. Officers will write the word “no financial responsibility” on the
TPD Form 3 (Vehicle Release Page) under the “Reason”
category.
3. A vehicle inventory will be completed on any vehicle that is towed.
4. The towing officer is to complete the ‘Towed Vehicle
Instruction’ form and provide a copy of the form to the operator
11 of the vehicle. The original fonn is to be attached to the report
for routing to Data Management. The form will also be made
available in Spanish.
D. The Shift Commander has the authority to suspend these measures
based on workload or weather conditions.
07.507 RELEASING VEHICLES FROM Il\/IPOUND A. Proof of financial responsibility, in the form of a ‘Financial
Responsibility Verification’ form obtained from the Police
Department, will be required by the wrecker company prior to the
release of any vehicle being removed from the wrecker lot. In order to
obtain a ‘Financial Responsibility Verification’ form, proof of current
financial responsibility must be presented to the Police Department,
which shall issue the form upon verification of the policy, and the
payment of a $5.00 administrative fee, see Tyler City Code Section 4-
73.
A vehicle impounded for a violation of this policy will not be released from the Wrecker company until the ‘Financial Responsibility
Verification’ form obtained from the Police Department is provided.
To allow for the verification of coverage, releases related to this
l2 policy should generally occur during normal business hours (Monday — Friday, 8:00 a.m. — 5:00 p.m.) at the downtown police department. If
the carrier has an afier-hour contract and the coverage can be verified,
then a Patrol Supervisor may authorize that the vehicle may be released. The Supervisor will have to complete the verification form
from Data Management. Copies of the completed verification form
and the proof of financial responsibility, and a supplemental report
will be submitted to Data Management for attachment to the original
case.
. A Customer Service Representative in the Data Management Unit will take the proof of financial responsibility presented by the person that
appears at the Police Department seeking verification to get the
vehicle released from impound. The Customer Service Representative
will attempt to make contact with the insurance agency/agent listed on
the received information and attempt to verify that the proof is
legitimate. If the Customer Service Representative is able to verify
proof of financial responsibility and upon receipt of the $5.00
administrative fee, the Representative shall complete and then issue
the ‘Financial Responsibility Verification’ form. The Representative
13 shall stamp the lower right of the form to authenticate the form. A copy of the form will be attached to the original report along with a copy of the
proof of financial responsibility.
1. If the Representative is unable to verify proof of financial
responsibility from the presented information, the person will
be asked to obtain the required information and return to the
Police Department at that time for verification.
2. If for some reason, the Representative believes that the proof
that has been presented is not legitimate or is fictitious; the Data
Management Supervisor will be notified. If the Data
Management Supervisor determines it is necessary, an officer
may be called to investigate whether criminal charges may need to be filed.
D. After-hour exceptions may be made by an on-duty patrol supervisor E. If it is determined that a vehicle impounded under this policy was
towed in error, the shift commander has the discretion to authorize a
no-fee release. The wrecker company shall be notified to send the bill
to the Police Department with the authorizing supervisor’s signature.
Approved: 02/28/12”
14 SUMMARY OF THE ARGUMENT Appellant’s two-fold position is that, first, the State did not properly
follow Tyler Police Department’s policy on impounding Vehicles. Second,
the impoundment policy of the Tyler Police Department is not reasonable.
Officer Boyce did not follow the policy because he did not consider
mitigating circumstances as the policy indicates.
The policy is not reasonable because it is inconsistent as to what
actions are required in the decision-making process by law enforcement.
Specifically, some portions of the policy indicate that vehicles “shall” be
towed while other portions say that there are mitigating circumstances when
towing should not occur.
In fact, the trial judge said as much in his ruling on the record. At the
conclusion of the hearing on the Motion To Suppress, the trial judge stated,
“Number one, poor quality of testimony. Poor quality. Number two, it
appears that the Tyler ordinance conflicts with each other. One part is
mandatory. It doesn’t say shall. It doesn’t say after considering mitigating
circumstances. It says shall. The other side says mitigating circumstances.
It’s clear the officer didn’t consider any mitigating circumstance, but it also
15 says shall. So based on that basis, the shall part, I am going to deny your motion to suppress. I don’t have a bit of problem with you taking it up on
that issue all daylong. (RR 52).
l6 ARGUMENT The trial court committed reversible error when it denied Appellant’s motion to suppress illegally seized evidence, namely, marijuana, during an unlawful inventory search of the vehicle.
A. Standard of Review
On March 18, 2015, the 12TH Court of Appeals, in Kennedy v. State,
case # 12-13-00248-CR, stated the standard of review as follows: “We review a trial cou1t’s ruling on a motion to suppress under bifurcated
standard of review. Hubert v. State, 312 S.W.3d 554, 55 9 (Tex. Crim. App.
2010); Carmouche v. State, 10 S.W.3d 323, 327(Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to suppress is generally
reviewed under an abuse of discretion standard. Sheperd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). Almost total deference is given to
atrial court’s determination of historical facts, especially if those
determinations turn on witness credibility or demeanor, and review de novo
the trial cou1t’s application of the law to facts not based on an evaluation of
credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim.
App. 2008).
When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v. 17 State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) Accordingly, a
trial court may choose to believe or disbelieve all or any part of a witness’s
testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Moreover, if, as here, the trial judge makes express findings of fact, the
evidence is viewed in the light most favorable to the trial judge’s ruling and
determine whether the evidence supports those factual findings. Valtierra v.
State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When there is not an express finding on an issue, the appellate court infers implicit fndings of
fact that support the trial cou1t’s ruling as long as those findings are
supported by the record. See id.
The prevailing party is entitled to “the strongest legitimate View of the
evidence and all reasonable inferences that may be drawn from that
evidence.” State v. Castlebeny, 332 S.W.3d 460, 465 (Tex. Crim. App.
2011). When all evidence is viewed in the light most favorable to the trial court’s ruling, an appellate court is obligated to uphold the ruling on a
motion to suppress if that ruling was supported by the record and was correct
under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;
Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex.
Crim. App. 1999).
18 The appellate court is to review the trial cou1t’s legal conclusions de
novo and uphold the ruling so long as it is supported by the record and
correct under any legal theory applicable to the case. State v. Iduarte, 268
S.W.3d 544, 548 (Tex. Crim. App. 2008); Banda v. State, 317 S.W.3d 907,
907-08 (Tex. App. — Houston[14"’ District.] 2010, no pet.) “
B. The Law on Vehicle Inventofl
On March 18, 2015, the 12m Court of Appeals, Kennedy v. State,
case # 12-13~00248-CR, stated “If conducted pursuant to a lawful
impoundment, a police offlcer’s inventory search of the contents of an
automobile is permissible under both the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution.” See
Colorado v. Bertine, 479 U.S. 367, 371, 107 S. Ct. 738, 741, 93 L. Ed. 2d
739 (1987); S. Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092,
3097, 49 L. Ed. 2d 1000 (1976); Benavides v. State, 600 S.W.2d 809, 810
(Tex. Crim. App. 1980); Moskey v. State, 333 S.W.3d 696, 702 (Tex. App. —
Houston[15‘ Dist.] 2010, no pet.). Inventories serve to protect (1) the owner’s
property while it is in custody, (2) the police against claims or disputes over
lost or stolen property, and (3) the police from potential danger. Opperman,
19 428 U.S. at 369, 96 S. Ct. at 3097.
Inventory searches should be designed to produce an inventory, not
turned into a purposeful and general means of discovering evidence of a
crime. Florida v. Wells, 495 US. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d
1 (1990). Unless there has been a showing that the officer acted in bad faith
or for the sole purpose of investigation, the officer may conduct an inventory search subsequent to a decision to impound a vehicle. Bertine, 479 U.S. at
372-73, 107 S. Ct. at 741-42.
The state bears the burden of proving that an impoundment is lawful
and may satisfy its burden by showing that (1) the driver was arrested, (2) no
alternatives other than impoundment were available to ensure the vehicle’s
protection, (3) the impounding agency had an inventory policy, and (4) the
policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App. —
Houston [15‘ Dist.] 2004, pet. refd).
There are two general categories of events justifying impoundment.
See Rodriquez v. State, 641 S.W.2d 955, 958 (Tex. App. — Amarillo 1982,
no writ). First, an officer may impound a vehicle when the Vel1icle is a
danger to traffie. See id. Second, an officer may impound a vehicle after an
arrest of the vehicle’s driver when the vehicle can not be protected by any
20 means other than impoundment. See id, Greer v.; State, 436 S.W.3d 1, 7
(Tex. App. — Waco 2014, no pet.). An officer “need not independently
investigate possible alternatives to impoundment absent some objectively
demonstrable evidence that alternatives did, in fact exist.” Greer, 436
S.W.3d at 7.”
The courts have listed circumstances under which law enforcement
may reasonably impound a vehicle, including (1) driver’s arrest when the
arrest is reasonably connected to the vehicle (2) statutory authorization (3)
vehicle abandonment or a vehicle that is hazardous and presents a danger to
the public (4) a reasonable belief that the vehicle is stolen (5) vehicle
removal from an accident scene and (6) parking violations. Benavides at
811-812, Opperman at 369.
For an irnpoundrnent of a vehicle to be lawful, it must be reasonable
under the Fourth Amendment. Benavides at 811. The Court in Wells states
that an inventory search must be conducted pursuant to a “standardized
criteria” or “established routine”. An inventory search must not deviate from police department policy. Moberg v. State, 810 S.W.2d 190, 195 (Tex.
Crim. App. 1991).
Impoundment and inventory searches must be carefillly examined and
21 narrowly confined in each case because of a dilution of Fourth Amendment
rights against unreasonable searches and seizures. Rodriguez v. State, 641
S.W. 2d 955 ( Tex. App. Amarillo 1982). “While it may be standard procedure to impound the vehicle of a person who is arrested, we conclude that the Fourth Amendment protection against seizures cannot be whittled
away by a police regulation.” Benavides at 812.
For example, impoundment was unlawful in an arrest for speeding
and driving without a license when vehicle was legally parked in parking lot
and defendant’s incarceration would likely be temporary. Fenton v. State
785 S.W.2d 443 (Tex. App. Austin 1990).
An inventory search is reasonable only if conducted for an inventory and not as an investigatory tool to produce or discover incriminating
evidence. Wells at 4. An inventory is proper when conducted in accordance with standard police procedures. The burden is on the State to
show compliance with standard procedure. Ward v State, 659 S.W.2d 643,
646 (Tex. Crim. App. 1983).
The failure to provide evidence that the inventory was conducted
pursuant to standard procedure invalidates it, whether or not the authority to
inventory actually existed. Gauldin v. State, 683 S.W.2d 411.415 (Tex.
22 Crim. App. 1984). The United States Supreme Court relates that an
inventory search cannot be used by law officers as a “ruse for a general
rurnrnaging.” Wells at 3-5.
C. Analysis
The actions of Tyler Police Officer resulting in the impounding and
searching of the vehicle Appellant’s drove were unlawful and, as such, the
discovery of marijuana in the vehicle was the result of an illegal search in
violation of the Fourth Amendment of the United States Constitution.
First, Officer Boyce’s actions did not satisfy the standards outlined in
the Garza ruling. Offlcer Boyce did not arrest Appellant prior to the search.
Officer Boyce admitted he would let Appellant call someone to give him a
ride once the car was impounded. In addition to the driver not being arrested
prior to the impoundment, there were alternatives, other than impoundment,
to insure the vehic1e’s safety. Officer Boyce could have contacted
Appellant’s father, as Appellant requested, who was the owner of the car and
had insurance for the car. Additionally, Officer Boyce could have allowed
23 the car to be parked in a nearby parking lot. Either alternative would have
protected the Vehicle, required minimal effort by the officer, and would have
avoided any need to impound the vehicle.
The third standard under Garza is that there was a reasonable towing
and impounding policy in place. As the trial judge clearly noted, the Tyler
Police Department towing and impounding policy is not clear. While one
portion says that the towing shall occur, another portion of the policy says
that mitigating circumstances should be considered. Section 07.504 under
Traffic Stops says that the vehicle shall be impounded but then goes on to
say that the officer shall comply with other subsections before impounding.
Those subsections limit and restrict the general language of Section 07.504
that says the Vehicle shall be impounded. The problem is that it makes no
sense that the officer is told that he shall tow if a certain criteria is met and is
also told at the same time that the officer shall follow other rules that would
mean that impounding is not automatic. As such, the policy is not
reasonable. The trial judge acknowledged that in his previously-quoted
ruling.
Finally, the fourth Garza standard says that the policy must be
followed. In this instance, Officer Boyce did not follow the policy. First,
24 Section 07.504(C) and (D) says that the vehicle shall be impounded if there
is no insurance. However, the evidence is clear that there was insurance on
the vehicle—just for Appellant’s father, not Appellant. Furthermore, both
sections instruct the officer to follow Section 07.505 (B) — (F). In this
instance, Officer Boyce did not follow 07.505(B) because he was able to
verify that insurance existed for the vehicle. If Officer Boyce had concerns
about the insurance, he could have followed Section 07.505(C) and
contacted other individuals to verify that the Vehicle was covered by
insurance. Section 07.505(D) lets the officer still make a decision not to
impound if there is no definitive answer that insurance exists. While that
doesn’t apply to this situation because insurance was confirmed, Sub-section
(D) notes that the officer still has discretion not to impound, which is
contrary to Officer Boyce’s interpretation of the policy. In his eyes, he has
to impound no matter what. That’s not what the policy says in Section
07.5 05 .
Section O7,505(F) allows for the officer to consider mitigating
circumstances before impounding. On top of the fact that insurance was verified, the officer shall consider sub-section (F) concerning mitigating
circumstances such as an alternate placement of the vehicle, time of day,
25 safety of driver, transporting the driver, allowing driver to call a relative or
friend. In this situation, had the officer considered all of the circumstances
as the policy says the officer is to do, then there would have been no need to
impound the vehicle. Appellant’s father owned the vehicle and had
insurance for the vehicle in his name. A simple, reasonable phone call to Appellant’s father would have avoided any need to impound the Vehicle.
The officer was not going to allow that until after the impounding and
searching of the vehicle because the officer wanted to investigate the
contents of the car for contraband. In no way is that a permissible purpose for the inventory search exception.
Additionally, the two Greer factors were not present. First, there was
no danger to traffic nor, second, was Appellant arrested before the issue of
impoundment arose. The search had to be reasonable and be the result of
properly following a reasonable policy. In this instance, policy was not
followed and the inconsistencies in policy indicate it is unreasonable
anyway.
If we analyze the 0ff1cer’s actions and the policy based on the sample
of permissible circumstances outlined in Benavides and Opperman, the
impounding of Appellant’s vehicle did not stem from Appellant’s initial
26 arrest, statutory authorization, vehicle abandonment, vehicle presenting
hazard to public, belief that vehicle is stolen, vehicle removed from accident
scene, or parking violations.
The trial court’s Findings of Fact #7 and #8 states “Tyler Police
Department’s standard policy regarding the impoundment and inventorying
of vehicles demands the impoundment of vehicles following: (1)
confirmation that the Defendant has a previous conviction for failing to
maintain financial responsibility; or (2) upon determination that the
Defendant’s license is currently suspended for not having insurance and the
Defendant fails to prove financial responsibility on the vehicle being
operated. A lawful inventory of the Defendant’s vehicle was performed pursuant to Tyler Police Department’s standardized policy. Officer Boyce
was acting in good faith and was not motivated by a desire to uncover
evidence. A green leafy substance suspected to be marijuana was found during the inventory.”
The trial cou1t’s Conclusion’s of Law # 3-5 states that “a green leafy
substance believed to be marijuana was uncovered during a lawful inventory
pursuant to standardized Tyler Police Department guidelines. The
Defendant’s vehicle was lawfully towed pursuant to Tyler Police
27 Department General Order 07.504(C) and 07.504(D). Officer Boyce
conducted an inventory of the Defendant’s vehicle in compliance with
written Tyler Police Department policy. The substance believed to be
marijuana was obtained pursuant to a lawful impoundment and inventory of
the Defendant’s vehicle and therefore the Defendant’s Motion to Suppress is
DENIED.”
The trial court did not take into account 7.502 Policy. “Enforcement
action shall be taken when officers encounter individuals who fail to maintain the required financial responsibility unless mitigating
circumstances discussed in this policy exist.”
This 7.502 Policy is the summary of this General Order. It is clear
that officers cannot tow the vehicle if there are mitigating circumstances.
The towing policy is designed for vehicles that cannot be legally driven.
However, the owner of the vehicle, Juan Zepeda, had the required insurance
and could have driven the vehicle away without an impoundment. This is
clearly a mitigating circumstance.
Even reviewing the evidence in the light most favorable to the trial
court’s ruling, the evidence does not support those factual findings.
Furthermore, the evidence does not satisfy the Garza standards. The trial
28 court’s conclusions are not supported by the record and are not correct under
any legal theory because the policy was not followed. There was insurance
on the Vehicle, the owner had proper insurance, and no mitigating
circumstances were considered.
Simply put, the officer’s actions were not reasonable nor is the
language of the policy reasonable. Reasonableness dictates that the officer
allow Appellant call the authorized driver and owner of the Vehicle to come
to the scene and pick up the car. Reasonableness dictates that no
impoundment occur.
PRAYER WHEREFORE, Appellant prays the Order of the trial court denying Appellant’s Motion to Suppress Evidence be reversed and remanded to the
trial court for a new trial with orders the Motion to Suppress Evidence be
GRANTED and for such other and further relief to which Appellant may be justly entitled.
Res ectfully/ybmitted,
IE ~ SANDERS ~ Bar No.2 24033153 State 120 S. Broadway, Suite 1l2 Tyler, Texas 75702 (903) 593—so40 (903) 595-5532 fax 29 CERTIFICATE OF SERVICE I, do hereby certify a true and correct copy the undersigned attorney, of the foregoing instrument was served upon the Smith County District Attorney’s Office by hand delivery on this the 10th day of June, 2015.
fizlf /wméw JEFF SANDERS CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3), the undersigned attorney certifies that this brief complies with the length requirements of the Texas Rules of Appellate Procedure in that the brief has 6,573 words.
I E
JEF SANDERS