Levi Stuart Nichols AKA Levi Stuart Nicholas v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00278-CR

LEVI STUART NICHOLS AKA LEVI STUART NICHOLAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 74,586-E, Honorable Douglas R. Woodburn, Presiding

February 26, 2020

ORDER Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Pending before the Court is appellant’s motion for rehearing. We clarify one matter

addressed in the motion and otherwise deny it. The matter concerns the first footnote in

our opinion. Through it, we observed that 1) the circumstances could raise suspicions

about whether the sole purpose of the inventory was to search for drugs, and 2) appellant

did not so argue below or on appeal as grounds for suppressing the contraband eventually

found. Appellant replied to those observations by arguing that:

In addition, the substance of footnote 1 of this Court’s opinion seems to imply that trial counsel below should have requested the trial court to issue fact findings on whether the totality of the circumstances evinced an intent on the part of the police to conduct a pretextual inventory search. However, pretextual seizures are permitted under the current state of the law. Therefore, to request such a finding in the instant case would have accomplished little.

We make no comment on whether “pretextual seizures are permitted under the

current state of the law.” Rather, our intent was to indicate that appellant did not question

whether the inventory was undertaken in good faith or merely as a subterfuge to justify a

general search for contraband. As said in Colorado v. Bertine, 479 U.S. 367, 107 S. Ct.

738, 93 L. Ed. 2d 739 (1987), “reasonable police regulations relating to inventory

procedures administered in good faith satisfy the Fourth Amendment.” Id. at 374

(emphasis added). Similarly, our United States Supreme Court in Florida v. Wells, 495

U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990), explained that inventory searches were

permissible due to “the principle that an inventory search must not be a ruse for a

general rummaging in order to discover incriminating evidence.” Id. at 4 (emphasis

added). Because appellant did not contend that, under the circumstances at bar, the

inventory procedures were not administered in “good faith” or were invoked merely as “a

ruse for a general rummaging . . . to discover incriminating evidence,” that topic fell

outside the scope of our review. See Washington v. State, 152 S.W.3d 209, 213 (Tex.

App.—Amarillo 2004, no pet.) (holding that the issue of whether the trial court erred in

refusing to suppress evidence was waived because the grounds asserted on appeal did

not comport with those proffered to the trial court).

With that, we deny the motion for rehearing.

Do not publish.