PD-1262-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/19/2015 2:43:59 PM Accepted 10/19/2015 4:39:53 PM ABEL ACOSTA CASE NO. PD-1262-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS
ALPHONSON DAMON MALONE, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Petition for Discretionary Review from The First Court of Appeals In No. 01-14-00054-CR Affirming the Judgment of Conviction in Cause No.1899612 from the County Criminal Court at Law No.8 Harris County, Texas
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
GARY TABAKMAN TBA No. 24076065 712 MAIN ST., Ste. 2400 HOUSTON, TEXAS 77002 TELEPHONE: (713) 228-8500 FACSIMILE: (713) 228-0034 EMAIL: Gary@BSDLawfirm.com October 19, 2015 COUNSEL FOR APPELLANT, ALPHONSON DAMON MALONE NOTICE OF INTERESTED PARTIES
Pursuant to Tex. R. App. R. 68.4(a), the following is a list of all parties to the
trial court’s judgment as well as the names and addresses of trial and appellate
counsel.
Presiding Judge The Honorable Jay Karahan Harris County Criminal Court at Law No.8 1201 Franklin, 9th Floor Houston, Harris County, Texas 77002
Attorneys for Appellee (State of Texas) Ryan Trask (at trial) Kathryn Davis (on appeal) Devon Anderson (on appeal) Harris County District Attorney’s Office 1201 Franklin Houston, Texas 77002
Attorneys for Appellant Gary Tabakman (at trial and on appeal) 712 Main, Ste. 2400 Houston, Texas 77002
Appellant Alphonson Damon Malone
ii TABLE OF CONTENTS
NOTICE OF INTERESTED PARTIES ................................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT REGARDING ORAL ARGUMENT ..............................................vi
STATEMENT OF THE CASE .................................................................................vi
STATEMENT OF PROCEDURAL HISTORY..................................................... vii
APPELLANT'S FIRST GROUND FOR REVIEW .................................................. 2
The Court of Appeals erred in finding probable cause for the warrantless arrest of Appellant, a passenger in a vehicle, by a totality of the circumstances in conflict with Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991).
APPELLANT'S SECOND GROUND FOR REVIEW ............................................. 7
The Court of Appeals erred in holding that Appellant’s incriminating statement after he was in custody was voluntarily made rather than the result of a custodial interrogation triggering Appellant’s Miranda rights.
PRAYER FOR RELIEF .......................................................................................... 11
CERTIFICATE OF COMPLIANCE ....................................................................... 12
CERTIFICATE OF SERVICE ................................................................................ 12
APPENDIX ........................................................................................................... A-1
iii INDEX OF AUTHORITIES
CASES PAGE
Amores v. State, 816 S.W.2d 407 (Tex.Crim.App.1991) .......................................................... iii,3,4,7
Estrada v. State, 154 S.W.3d 604 (Tex.Crim.App. 2005). ................................................................... 5
Leday v. State, 3 S.W.3d 667, 672 (Tex. App.—Beaumont 1999, pet. ref’d). ............................ 3,5,6
Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)........................... iii,7-10
Nuttal v. State, 87 S.W.3d 219 (Tex. App.—Amarillo 2002, no pet.) ............................................ 4,5
Pyles v. State, 755 S.W2d 98 (Tex. Crim. App. 1988) .................................................................. 4,5
Ramirez v. State, 105 S.W.3d 730 (Tex. App.-Austin 2003, no pet.) .............................................. 8-10
Rhode Island v. Innis, 466 U.S. 291, 100 S. Ct. 1682 (1980) ........................................................................ 8
State v. Crisp, 74 S.W.3d 474, 483 (Tex. App. Waco 2002) ......................................................... 5,6
State v. Moore, 25 S.W.3d 383, 386 (Tex.App.-Austin 2000, no pet.) ............................................ 5,6
State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012) ................................................................ 10
iv Terry v. Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968). .................................................... 3
Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979) ............................................................................. 3
STATUTES
TEX. CODE. CRIM. PROC. ART. § 14.01(b) ...................................................... 4,6
RULES
TEX. R. APP. P. 66.1................................................................................................. 1
TEX. R. APP. P. 66.3(a) ......................................................................................... 2,7
TEX. R. APP. P. 66.3(c) ....................................................................................2,7,11
v STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument as it will assist the Court in fashioning the
proper relief. Oral argument would be of significant assistance to this Court as this
case presents important issues regarding whether an officer had probable cause to
arrest Appellant based on unusual factors applying a totality of the circumstances
factors and whether Appellant’s incriminating statement to the officer was a result
of a custodial interrogation.
STATEMENT OF THE CASE
This case concerns a conviction for possession of marijuana. On December 6,
2013, the trial court conducted an evidentiary hearing on Appellant’s written motion
to suppress evidence. On that same date, the trial court denied the motion to suppress
evidence. (CR 24).1 Appellant entered a plea of guilty and was sentenced to two (2)
days in the Harris County Jail, with one (1) day Credit. (CR 25). On January 6, 2013,
Appellant filed his written notice of appeal, appealing the denial of the written
pretrial motion to suppress evidence. (CR 31). No motion for new trial was filed.
1 (CR) refers to the Clerks Record and (RR) will refer to the Reporters Record.
vi STATEMENT OF PROCEDURAL HISTORY
1. December 6, 2013 Evidentiary Hearing (Motion to Suppress)
2. October 2, 2014 Appellant’s Brief Filed (First Court of Appeals)
3. November 21, 2014 State Brief Filed.
4. December 30, 2014 Appellant’s Reply Brief Filed
5. February 10, 2015 Judgment Affirming Trial Court’s Judgement with
Memorandum Opinion.
6. March 27, 2015 Appellant Filed Motion for Rehearing.
7. April 23, 2015 The First Court of Appeals Opinion Issued
withdrawing February 10th Opinion.
8. On May 28, 2015 Appellant’s Second Motion for Rehearing Filed.
9. June 11, 2015 The First Court of Appeals issued a sua sponte order
for the court to receive and review the video (CD)
as State’s Exhibit No. 1.
10. August 18, 2015 The First Court of Appeals denied Appellant’s
motion for rehearing.
11. October 19, 2015 Petition for Discretionary Review due,
vii CASE NO. PD-1262-15
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, ALPHONSON DAMON MALONE, Appellant in the above-
styled and numbered cause of action, by and through counsel of record, Gary
Tabakman, and pursuant to Tex. R. App. P. 66.1, respectfully urges this Court to
grant discretionary review of this cause, and in support thereof would show unto this
Honorable Court the following:
1 APPELLANT’S FIRST GROUND FOR REVIEW
The Court of Appeals erred in finding probable cause for the warrantless arrest of Appellant, a passenger in a vehicle, by a totality of the circumstances in conflict with Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991).
ARGUMENT
The Court of Appeals erroneously held that, based on a totality of the
circumstances, sufficient probable cause for a warrantless arrest of Appellant
existed when it did not, such that review is warranted pursuant to Tex. R. App. P.
66.3(a) and Tex. R. App. P. 66.3(c). Specifically, the Court of Appeals found the
following as probable cause for arrest:
“The sum of the information known to Officer Sutton and Officer Ball at the time Sutton handcuffed Malone, however, includes that (1) Officer Ball had smelled marijuana on Malone and the driver an hour before the traffic stop when both men were eating at Red Lobster; (2) the license plate number of the men seen at the restaurant matched that of the car Officer Sutton stopped; (3) the driver of the car had marijuana shake on his shoulder; and (4) the car smelled of cologne when Officer Sutton made the traffic stop.” (Malone Opinion at 11).
In this case, Appellant was the passenger in the vehicle and, after being
removed from the vehicle, was handcuffed within twenty-five (25) seconds of the
stop. (2RR-32). Officer Sutton stated that the vehicle pulled over right away without
any attempt to be evasive. (2RR-26). The vehicle was pulled over early in the night
and not in an area that’s classified as a “high crime.” (2RR-26). Officer Sutton made
2 no attempt to run Appellant’s criminal history or run his driver’s license to find out
the type of individual he was dealing with. (2RR-32). Most importantly, no evidence
of criminal activity with respect to Appellant was cited anywhere in the record.
Based on these facts, the detention of Appellant was sufficient to justify, not an
arrest, but rather the lesser intrusion of an investigative detention under Terry v.
Ohio, 392 U.S. 1, 88 S.Ct.1868, 20 L.Ed.2d 889 (1968).
An arrest, must be based upon “probable cause.” Amores v. State, 816 S.W.2d
407, 411 (Tex.Crim.App.1991). In Texas, the "totality of the circumstances" test
applies for determining probable cause for a warrantless search and seizure. Id at
413. A peace officer may arrest an offender without a warrant for any offense
committed in his presence or within his view. Tex. Code Crim. Proc. Art. 14.01(b).
Id at 414. Neither a police broadcast nor an anonymous phone call is sufficient,
standing alone, to establish probable cause for an arrest. Id at 416. A person's mere
proximity or propinquity to others independently suspected of criminal activity does
not, without more, give rise to probable cause. Leday v. State, 3 S.W.3d 667, 672
(Tex. App.—Beaumont 1999, pet. ref’d); see also Ybarra v. Illinois, 444 U.S. 85, 91
(1979).
The Court of Appeals decision, in finding that probable cause for a warrantless
arrest, was erroneous as the factors used for a “totality of the circumstances” were
3 too broadly applied, in conflict with Amores v. State and cases from intermediate
appellate courts that follow a closer fact pattern to the case at hand. In Amores, a
police officer responded to a "burglary in progress" call from an apartment complex
indicating a black male was loading a box into a car. Amores, 816 S.W.2d at 410.
This Court held that there was no available fact or circumstance to support probable
cause and the warrantless arrest was not authorized under Chapter Fourteen of the
Code of Criminal Procedure. Id. at 416-417.
The Court of Appeals opinion, combines numerous distinguishable cases,
unlike Amores and this case, for the purpose of making a probable cause evaluation
based on a totality of the circumstances. (Malone Opinion 9-11). As an example, the
court cited Pyles v. State; 755 S.W2d 98 (Tex. Crim. App. 1988), Nuttal v. State, 87
S.W.3d 219 (Tex. App.—Amarillo 2002, no pet.) and Estrada v. State, 154 S.W.3d
604 (Tex.Crim.App. 2005).
In Pyles v. State, the Court of Criminal Appeals found that probable cause
existed for arrest based on information from another officer after a deputy had been
shot and killed. 755 S.W2d 98, 109 (Tex. Crim. App. 1988). In Nuttal v. State,
appellant was "extremely nervous," and evasively answered the officer's questions,
two of seven factors that weighed into the court’s decision. 87 S.W.3d 219, 222. In
Estrada v. State, after responding to a disturbance call, the arresting officer smelled
4 the odor of marijuana and that was a found to be a factor weighing in favor of
officer’s belief that a crime was being committed for probable cause to search. 154
S.W.3d 604, 606, 609.
This particular case however stands out from the cases cited by the Court of
Appeals and is analogous and factually aligned with State v. Crisp, 74 S.W.3d 474,
483 (Tex. App. Waco 2002), Leday v. State, 3 S.W.3d 667, 672 (Tex. App.—
Beaumont 1999), and State v. Moore, 25 S.W.3d 383, 386 (Tex.App.-Austin 2000,
no pet.). In Crisp, the appellate court affirmed the trial courts motion to suppress
evidence where officers stopped a vehicle, did not briefly question the defendant’s
respecting their identities and handcuffed them immediately; finding that their
arrests were illegal as there was no probable cause for arrest. Crisp 74 S.W.3d 474
at 483. In Leday, actual circumstances relating to suspicious behavior existed that
do not exist in this case; the court still found that appellant’s behavior did not rise
above the level of mere suspicion, and under a totality of the circumstances the
deputy did not have probable cause to justify a warrantless arrest of appellant. 3
S.W.3d 667, 672. In Moore, the Austin Court of Appeals affirmed the lower court’s
ruling that the handcuffing of Moore transformed the detention into an arrest for
which there was not probable cause. 25 S.W.3d 383 at 387.
5 Here, Appellant is handcuffed with less reasonable suspicion than articulated
in Crisp, Leday and Moore. Appellant was simply a passenger in the car, and Officer
Sutton had no time to observe any suspicious behavior prior to handcuffing the
Appellant. Furthermore, Officer Sutton never testified about smelling marijuana
emitting from the vehicle and neither from the driver or Appellant. That information
came from Officer Ball an hour prior to the traffic stop. In addition to that, there is
nothing in the record linking Appellant to any criminal activity in front of Officer
Sutton to warrant an arrest pursuant to Article 14.01(b), V.A.C.C.P.
Most importantly, all factors addressed by the Court of Appeals for a totality
of the circumstances argument were directly connected to the driver of the vehicle,
who was arrested and released, rather than Appellant. Sutton’s testimony that “he
could possibly be trying to destroy evidence…so I detained him to prevent further
destruction of evidence,” was with respect to the driver not Appellant. (2RR-12).
The marijuana shake apparently observed by Sutton was on the driver of the vehicle,
not Appellant, (2RR-12) and lastly, the cologne smell came from the direction of the
driver when Sutton walked up to the vehicle, not Appellant, (2RR-17).
Accordingly, the Court of Appeals opinion extends beyond the interpretation
of totality of the circumstances pursuant to this Court’s decision in Amores v. State
and the decisions in Crisp, Leday and Moore from other Appellate Courts. Thus,
6 review should be granted to consider whether the Court of Appeals opinion is in
conflict pursuant to Tex. R. App. P. 66.3(a) and Tex. R. App. P. 66.3(c).
APPELLANT’S SECOND GROUND FOR REVIEW
The Court of Appeals erred in holding that Appellant’s incriminating statement after he was in custody was voluntarily made rather than the result of a custodial interrogation triggering Appellant’s Miranda rights. ARGUMENT
The Court of Appeals erroneously held that Appellant’s incriminating
statement was made voluntarily made after his arrest, such that review is warranted
pursuant to Tex. R. App. P. 66.3(c) as the opinion conflicts with applicable decisions
of the Court of Appeals and the Supreme Court of the United States.
Because Appellant had not been read his Miranda rights, appellant argues that
the incriminating statement made by him was inadmissible. See Miranda v. Arizona,
384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) (holding that, before
questioning, person in police custody must be warned that he has right to remain
silent, that any statement he makes may be used as evidence against him, and that
he has right to presence of retained or appointed attorney). The Court of Appeals
opinion addresses this issue pursuant to the seminal Supreme Court case of Rhode
Island v. Innis, 466 U.S. 291, 100 S. Ct. 1682 (1980) and Ramirez v. State, 105
7 S.W.3d 730 (Tex. App.-Austin 2003, no pet.), one of the cases relied on by Appellant
as well.
The Supreme Court established that custodial interrogation means
"questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of in any significant way." Miranda,
384 U.S. at 444; see also Rhode Island v. Innis, 446 U.S. 291 at 298. The Supreme
Court clearly distinguishes between a voluntary statement and those made in
response to interrogation. Innis, 446 U.S. at 299-300. "Interrogation," for Miranda
purposes, refers both to express questioning and to any words or actions by the
police--other than those normally attendant to arrest and custody--that police "should
know are reasonably likely to elicit an incriminating response." Id. at 301. The
likelihood of eliciting a response focuses on the perception of the suspect, not the
intent of the police. Id. at 301. The Court in Innis noted that any practice the police
should know is "reasonably likely to evoke an incriminating response from a
suspect" constitutes interrogation. Id.
This Court has previously addressed this issue and Appellant has also relied
on State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012), where a motion to
suppress was granted after Ortiz was found to be in custody for Miranda purposes
when incriminating statements were elicited. The Ortiz opinion is factually and
8 legally analogous to this case and is completely overlooked by The Court of Appeals.
The objective facts in Ortiz showed that the following: (1) the officer had expressed
his suspicion to the appellee "point blank" that he had drugs in his possession; (2)
two additional law enforcement officers had arrived on the scene; (3) Mrs. Ortiz and
the appellee had both been patted down and handcuffed; and (4) the officers had
manifested their belief to the appellee that he was connected to some sort of (albeit,
as-yet undisclosed) illegal or dangerous activity on Mrs. Ortiz's part. Id at 373. Based
on the factors above and prior to Ortiz making an incriminating statement, this Court
found that his liberty was compromised to a degree associated with formal arrest and
Miranda rights were triggered. Id. Likewise in Ramirez, the Austin Court of Appeals
held that appellant was interrogated within the meaning of Miranda and should have
provided Miranda warnings prior to such interrogation. Ramirez, 105 S.W.3d 730 at
741.
Like in Ortiz and Ramirez, the objective facts here show that Appellant was
in custody, triggering his Miranda rights prior to the incriminating response
provided to questioning by Officer Sutton. In fact, by the time Appellant provides
the incriminating response the following circumstances had occurred: (1) Both
Appellant and driver were handcuffed immediately upon the stop of the vehicle, (2)
Officer Sutton had expressed his suspicion to the Appellant “point blank” that either
9 he or the driver had drugs in their possession or connected to narcotics in some way,
(3) an additional law enforcement officer had arrived on the scene, (4) the driver was
questioned about marijuana or other drugs in front of Appellant and then placed in
the back of a patrol vehicle, and (5) Officer Sutton testified Appellant was not free
to leave. (1RR-42).
Most importantly, Officer Sutton could reasonably foresee that his question
would elicit an incriminating response when he asked Appellant, “You are not going
to BS me like your buddy…You’re going to be honest with me about what’s going
on here,” to which Appellant gave the following incriminating response of, “I’m
going to be honest with you. I have a sweet in my pocket.” (2RR-49).
Accordingly, the Court of Appeals opinion is in conflicts with this Court’s
opinion in State v. Ortiz and the United States Supreme Court’s decision in Miranda
v. Arizona. Thus, review should be granted to consider whether the Court of Appeals
opinion is in conflict pursuant to Tex. R. App. P. 66.3(c).
10 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Honorable Court grant this Petition for Discretionary Review. Following the grant
of review, Appellant prays that the judgment of the Court of Appeals be reversed
and the judgment be vacated, a new trial ordered, or the case remanded for further
review.
Respectfully submitted,
/s/Gary Tabakman GARY TABAKMAN TBA No. 24076065 JPMorgan Chase Bank Building 712 Main Street, 31st Floor Houston, Texas 77002 Telephone: (713) 228-8500 Facsimile: (713) 228-0034
Counsel for Appellant, ALPHONSON MALONE
11 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
counsel of record certifies that the Petition for Discretionary Review contains 2097
words.
/s/Gary Tabakman GARY TABAKMAN
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant’s Petition For Discretionary Review was served via e-mail delivery
through eFile.TXCourts.gov to Lisa McMinn, Assistant District Attorney, Harris
County District Attorney’s Office, 1201 Franklin, Appellant Division, on the 19th
day of October, 2015.
12 APPENDIX
First Court of Appeals’ Opinion of April 23, 2015.
A-1 Opinion issued April 23, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00054-CR ——————————— ALPHONSON DAMON MALONE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Cause No. 1899612
MEMORANDUM OPINION ON REHEARING
Alphonson Damon Malone pled guilty of the offense of possession of
marijuana of a quantity between zero and two ounces, and the trial court sentenced
him to two days’ confinement. Malone moved to suppress both his inculpatory statement to an officer and the marijuana found on his person. After a hearing, the
trial court denied the motion to suppress. On appeal, Malone contends that he
made his statement in response to a custodial interrogation that occurred before he
received Miranda warnings. He further contends that no probable cause existed
for his arrest, which occurred before he confessed to possessing marijuana. After a
panel of our court issued its opinion in this case, Malone moved for rehearing. The
panel denies the motion for rehearing, withdraws its opinion and judgment, and
issues this opinion and judgment in its stead. We conclude that the evidence
adduced at the motion to suppress hearing supports the trial court’s ruling; we
therefore affirm.
Background
In June 2013, Officer T. Sutton of the Humble Police Department received a
phone call from Officer N. Ball, who reported that he had observed two customers
who smelled like marijuana while he was working an extra job at a Red Lobster
Restaurant. As the customers were leaving the restaurant, Ball notified Sutton of
his suspicion, and he provided the customers’ description and a license plate
number. En route, Officer Sutton passed the car matching Officer Ball’s
description. The driver did not lower his high beam lights as he passed in front of
Officer Sutton’s car, which is a violation of the Texas Transportation Code Section
2 547.305. See TEX. TRANSP. CODE ANN. § 547.305 (West 2014). Officer Sutton
stopped the car to investigate.
As Officer Sutton approached the vehicle, he noticed “marijuana shake,” or
residue, on the driver’s left shoulder. He also smelled cologne. He asked the
driver to exit and then detained the driver with handcuffs. Sutton also asked the
passenger, Malone, to exit the vehicle and handcuffed him.
After about one minute, another officer arrived. Officer Sutton directed him
to detain the driver in the back of his police car. Sutton asked the driver whether
he had marijuana on his person or in his car; the driver responded that he did not.
After about 10 minutes Sutton approached Malone, stating: “You’re not going to
BS me like your buddy . . . You’re going to be honest with me about what’s going
on here.” Malone responded: “I’m going to be honest with you. I have a sweet in
my pocket.” Officer Sutton knew through his training and experience that Malone
was describing a sweet containing marijuana. Sutton reached into Malone’s pocket
and retrieved a sweet containing over one gram of marijuana. Both Malone and
the driver were compliant with Sutton’s requests, both at the time of the traffic stop
and during the detention.
Course of Proceedings
Malone moved to suppress the marijuana found in his pocket and the
statement he made after being apprehended. After a hearing, the trial court denied
3 Malone’s motion to suppress. In its findings, the trial court determined that Officer
Sutton was a credible witness. In its conclusions of law, the trial court ruled that
Malone was under arrest when Officer approached him, but that Malone’s response
was not the product of a custodial interrogation.
Discussion
Statement Made in the Absence of Miranda Warnings
Standard of Review
An appellate court conducts a bifurcated review to a trial court’s findings
regarding a motion to suppress, deferring to the trial judge’s rulings on questions
of historical fact. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012).
We similarly defer to the trial court’s determinations of mixed questions of law and
fact that turn on demeanor and credibility. State v. Saenz, 411 S.W.3d 488, 494
(Tex. Crim. App. 2013) (citing State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim.
App. 2012)). In contrast, we review de novo mixed questions of law and fact that
do not turn on demeanor and credibility. Id. Particular to the facts presented here,
“[t]he decision as to whether custodial questioning constitutes ‘interrogation’ under
Miranda is a mixed question of law and fact, and we defer to the trial court’s fact
findings that turn on an evaluation of credibility and demeanor.” Alford, 358
S.W.3d at 653 (citing Ripkowski v. State, 61 S.W.3d 378, 381–82 (Tex. Crim. App.
2001)).
4 Analysis
Malone first contends that the trial court abused its discretion when it denied
the motion to suppress his statement because Officer Sutton had not warned
Malone of his Miranda rights. Both Miranda v. Arizona and state law prohibit the
State from introducing a defendant’s statements made during a custodial
interrogation, unless the State demonstrates that, before making the statement, the
police had informed the defendant of certain constitutional rights. 384 U.S. 436,
444, 86 S. Ct. 1602, 1612 (1966); see also TEX. CODE CRIM. PROC. ANN. art. 38.22
§§ 2, 3 (West 2014). The Supreme Court has defined a “custodial interrogation” as
“questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.
But if a defendant volunteers a statement, then it is not subject to
suppression for lack of Miranda warnings. Warren v. State, 377 S.W.3d 9, 17
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The Fifth Amendment does not
bar “[v]olunteered statements of any kind.” Miranda, 384 U.S. at 478, 86 S. Ct. at
1630. Article 38.22 similarly does not preclude the admission of statements made
by the defendant that do not stem from an interrogation. TEX. CODE CRIM. PROC.
ANN. art. 38.22 § 5 (West 2014) (“Nothing in this article precludes the admission
5 of . . . a voluntary statement . . . whether or not the result of custodial interrogation
. . . .”).
Because Malone was detained and handcuffed during the investigation
without any other circumstances warranting a restriction on Malone’s movement,
the record supports the trial court’s determination that Malone was in custody.
Thus, this case turns on whether Officer Sutton’s statement to Malone rose to the
level of an interrogation, or whether Malone’s statement was made voluntarily.
To be an interrogation, a statement or question must demonstrate “a measure
of compulsion above and beyond that inherent in custody itself.” Rhode Island v.
Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689 (1980). An interrogation includes
“any words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Id. at 301.
In Innis, the Supreme Court held that police officers had not interrogated a
suspect when officers had a conversation in the range of the suspect’s hearing but
did not ask the suspect a question. Id. at 294–95, 302. In that case, officers
discussed a missing shotgun while transporting the defendant, noting a concern
that children were present in the area and could discover the weapon. Id. at 294–
95. The suspect interrupted the officers’ conversation with a statement. Id. at 295.
After receiving Miranda warnings, he led them to the hidden weapon. Id. The
6 Supreme Court found that the officers’ conversation was not an interrogation. Id.
at 302.
In contrast, the Texas Court of Criminal Appeals in Janecka found that a
police detective’s response to a suspect’s question constituted interrogation or its
equivalent. Janecka v. State, 739 S.W.2d 813, 829 (Tex. Crim. App. 1987) (per
curiam). There, the detective informed the suspect of the damaging evidence
against him, and then told the suspect that he should “tell the truth.” Id. at 826,
829. Similarly, in Ramirez, the Austin Court of Appeals found that an officer’s
statements to a suspect were the functional equivalent of interrogation, where the
officer informed the suspect that marijuana paraphernalia and residue were present
in the suspect’s garage, and then asked whether more could be found. Ramirez v.
State, 105 S.W.3d 730, 740–41 (Tex. App.—Austin 2003, no pet). The court of
appeals held that the officer should have known that his questioning would
encourage an incriminating response. Id. at 741 (citing Innis, 446 U.S. at 301, 100
S. Ct. 1682). Malone relies on the latter cases to contend that Sutton should have
known that his words or actions were reasonably likely to elicit an incriminating
response.
We hold that the record supports the trial court’s finding that the statement
was not reasonably likely to move Malone to make a self-incriminating statement.
Officer Sutton’s statement was not a “lengthy harangue,” and the record does not
7 suggest that Sutton was aware of any particular susceptibility that Malone had to
the officer’s appeal to his conscience. See Innis, 446 U.S. at 302–03, 100 S. Ct. at
1690–91. In its findings of fact, the trial court described Malone’s statement as
“spontaneously” made. Officer Sutton had not informed Malone of any damaging
evidence against him, nor had he asked Malone any questions. See Janecka, 739
S.W.2d at 826; Ramirez, 105 S.W.3d at 741.
Officer Sutton testified that his statement to Malone was not threatening.
The trial judge found that Officer Sutton was a credible witness, and we defer to
the trial court’s findings that turn on credibility. Alford, 358 S.W.3d at 652–53.
We hold that the record supports a determination that Malone’s statement was
voluntarily made and not the result of a police interrogation. See id.; see also TEX.
CODE CRIM. PROC. ANN. art. 38.22 § 5; Innis, 446 U.S. at 300, 100 S. Ct. at 1689
(“[T]he special procedural safeguards outlined in Miranda are required not where a
suspect is simply taken into custody, but rather where a suspect in custody is
subjected to interrogation.”).
Probable Cause
Next, Malone argues that there was no probable cause to arrest him. The
Fourth Amendment prohibits unreasonable searches and seizures by government
officials. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). An officer
may arrest a suspect without a warrant if he has a reasonable belief that the
8 individual has committed an offense. TEX. CODE CRIM. PROC. ANN. art. 14.01
(West 2013); Torres v. State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005).
The test for probable cause is whether “at that moment [of the arrest] the facts and
circumstances within the officer’s knowledge and of which he had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that
the arrested person had committed or was committing an offense.” Parker v. State,
206 S.W.3d 593, 596 (Tex. Crim. App. 2006) (quoting State v. Steelman, 93
S.W.3d 102, 107 (Tex. Crim. App. 2002)). We consider the totality of the
circumstances in determining whether probable cause existed for a warrantless
arrest. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “It is well
established that an officer who does not himself possess probable cause for making
a warrantless arrest may act upon the basis of information relayed to him by
another officer requesting that an arrest be made.” Pyles v. State, 755 S.W.2d 98,
109 (Tex. Crim. App. 1988) (quoting Tarpley v. State, 565 S.W.2d 525, 529 (Tex.
Crim. App. [Panel Op.] 1978)). When members of the same law enforcement
agency have cooperated, the sum of information known to cooperating officers at
the time of an arrest should be considered in determining whether there was
probable cause. Id. (citing Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim.
App. 1982)). The “odor of an illegal substance” may be a factor that police
officers use in determining whether there is probable cause that an offense has
9 been or is being committed.” Estrada v. State, 154 S.W.3d 604, 606, 609 (Tex.
Crim. App. 2005) (holding that smell of marijuana on appellant, who was standing
in her driveway, was factor weighing in favor of officer’s belief that crime had
been or was being committed).
Probable cause to search exists where known facts and circumstances are
sufficient to warrant a person of reasonable prudence that evidence of a crime will
be found. Wiede, 214 S.W.3d at 24; Estrada, 154 S.W.3d at 609. “Known facts
and circumstances include those personally known to law enforcement officers or
those derived from a ‘reasonably trustworthy’ source.” Wiede, 214 S.W.3d at 24.
An officer may conduct a search without a warrant when an individual admits to
possessing contraband. See Sandoval v. State, 860 S.W.2d 255, 259–60 (Tex.
App.—Houston [1st Dist.] 1993, pet. ref’d) (“[T]he officer’s search of appellant’s
truck and seizure of the evidence inside was justified, following their detection of
the marijuana odor, and appellant’s admission that the truck contained
marijuana.”); Nuttall v. State, 87 S.W.3d 219, 223 (Tex. App.—Amarillo 2002, no
pet.) (holding that officer had probable cause to search defendant’s pocket when
defendant admitted he had drugs on his person).
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
10 TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2014).
Malone contends that Officer Sutton did not have probable cause to arrest
him before he made the statement admitting that he possessed marijuana. The sum
of the information known to Officer Sutton and Officer Ball at the time Sutton
handcuffed Malone, however, includes that (1) Officer Ball had smelled marijuana
on Malone and the driver an hour before the traffic stop when both men were
eating at Red Lobster; (2) the license plate number of the men seen at the
restaurant matched that of the car Officer Sutton stopped; (3) the driver of the car
had marijuana shake on his shoulder; and (4) the car smelled of cologne when
Officer Sutton made the traffic stop. See Pyles, 755 S.W.2d at 109. Officer Sutton
testified at the hearing that he believed that the driver and Malone may have been
attempting to destroy evidence, due to the marijuana shake and cologne smell, and
the trial court found that Officer Sutton was a credible witness. See Alford, 358
S.W.3d at 652. In light of the totality of the circumstances, we hold that Officer
Sutton had probable cause to arrest Malone. See Amador, 275 S.W.3d at 878;
Parker, 206 S.W.3d at 596; Estrada, 154 S.W.3d at 606, 609.
Malone further contends that Officer Sutton did not have probable cause to
search him. We have determined that the record supports the trial court’s finding
that Malone’s self-incriminating statement was voluntary and not a product of a
custodial interrogation. Because Malone voluntarily stated that he had a sweet in
11 his pocket, Officer Sutton had probable cause to search Malone. See Wiede, 214
S.W.3d at 24; Nuttall, 87 S.W.3d at 223; Sandoval, 860 S.W.2d at 259–60. We
hold that the marijuana found on his person was not obtained in violation of the
United States or Texas Constitutions. See TEX. CODE CRIM. PROC. ANN. art.
38.23(a).
Conclusion
We hold that the trial court acted within its discretion in denying Malone’s
motion to suppress his statement to Officer Sutton and the marijuana found on his
person. We therefore affirm the judgment of the trial court. The motion for
rehearing is denied.
Jane Bland Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. See TEX. R. APP. P. 47.2(b).