ACCEPTED 01-15-00130-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 6/22/2015 7:27:36 PM CHRISTOPHER PRINE CLERK
NO. 01-15-00130-CR
IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST SUPREME JUDICIAL DISTRICT6/22/2015 7:27:36 PM CHRISTOPHER A. PRINE Clerk HOUSTON, TEXAS ....................................................................................................................................
MICHAEL W. PETERS * APPELLANT
VS. *
THE STATE OF TEXAS * APPELLEE ....................................................................................................................................
TRIAL COURT NO. 1413407
IN THE 176TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS .................................................................................................................................
BRIEF FOR APPELLANT ...............................................................................................................................
Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 832-603-1330 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant TABLE OF CONTENTS
Page:
Identity of Parties and Counsel i
List of Authorities ii
Statement of the Case 1
Point for Review Number One 1
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE (RR 2:61).
Statement of the Facts 1
Summary of the Argument 4
Argument 5
Prayer for Relief 15
Certificate of Service 15
Certificate of Compliance 16 IDENTITY OF PARTIES AND COUNSEL
Judge: Honorable Stacey W. Bond
Complainant: The State of Texas
Trial Prosecutors: Ms. Courtney Chester TBA #24077335
Ms. Mia Magness TBA #00787363 1201 Franklin Houston, Texas 77002 713-755-6908
Defense Counsel: Mr. William B. Portis, Jr. TBA #16161000 8561 Long Point Road, Suite 205 Houston, Texas 77055 713-224-6473
Appellant: Mr. Michael W. Peters
Appellant's Counsel: Mr. Charles Hinton TBA #09709800 P.O. Box 3719 Houston, Texas 77052-3719 832-603-1330
Appellee's Counsel: Ms. Devon Anderson Harris County District Attorney 1201 Franklin Houston, Texas 77002 713-755-5800
i LIST OF AUTHORITIES
Cases: Page:
Colorado v. Bertine, 479 U.S. 367 (1987) 8
Delgado v. State, 718 S.W.2d 718 (Tex. Crim. App. 1986, reh. den.) 7
Florida v. Wells, 495 U.S. 1 (1990) 4, 8
Garza v. State, 137 S.W.3d 878 (Tex. App. -- Houston [1st Dist.] 2004) 4, 8
Moskey v. State, 333 S.W.3d 696 (Tex. App. -- Houston [1st Dist.] 2010) 9, 14
Rothenberg v. State, 176 S.W.3d 53 (Tex. App. -- Houston [1st dist.] 2004, PDRR) 8
Shepherd v. State, 273 S.W.3d 681 (Tex. Crim. App. 2008) 5
South Dakota v. Opperman, 428 U.S. 364 (1976) 7
Constitutions:
U.S. CONST. amendment IV 5
TEX. CONST. art. I, sec. 9 5
ii TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL
FOR THE FIRST SUPREME JUDICIAL DISTRICT:
Comes now, appellant Michael W. Peters, and submits this brief pursuant
to TEX. R. APP. PROC. 38.1.
STATEMENT OF THE CASE
On January 8, 2015, the trial court denied appellant's motion to suppress
evidence but also stated that appellant had permission to appeal her decision (RR
2: 61). On January 9, 2015, appellant pled guilty, without waiving his right to
appeal the motion to suppress evidence ruling, to the first degree felony offense
of possession with intent to deliver methamphetamine between 4 and 200 grams
(RR 2: 63). The trial court found that there was sufficient evidence to find him
guilty (RR 2: 65). On February 9, 2015, the trial court found appellant guilty and
sentenced him to 10 years in prison. (CR I: 82). Appellant gave notice of appeal as
to the trial court's denial of his motion to suppress (CR I: 84).
POINT FOR REVIEW NUMBER ONE
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE (RR 2: 61).
STATEMENT OF THE FACTS
1 State's Witnesses
Harris County Deputy Constable Kyle Cornelius conducted a traffic stop on a
vehicle, with an expired registration, driven by its sole occupant, appellant
Michael Peters, at 1942 hours on January 5, 2014 at North Main and Wallisville.
Appellant pulled over in the parking lot of a grocery store (RR 2: 2, 7, 9, 11).
Deputy Cornelius identified State's Exhibit #4 as an accurate video and
audio recording of the traffic stop. The exhibit was admitted into evidence and
published for the trial court. While the video played, Deputy Cornelius gave a
running commentary on it in response to the prosecutor's questions (RR 2: 14).
Since appellant was on parole, Deputy Cornelius had a safety concern and
so he had appellant step out of the vehicle in order to do a Terry search for
weapons. When informed by Dispatch that appellant had 6 class C traffic warrants
pending, Deputy Cornelius arrested appellant (RR 2: 15-16). At that point, Deputy
Cornelius followed Precinct 3's policy which was to tow the vehicle and conduct
an inventory of the vehicle for any property (RR 2: 16-17).
Precinct 3's policy concerning the inventory directed that the deputy list
any pertinent or valuable property plus any vehicle damage on the tow slip which
2 also contains the vehicle information, case number and appellant's name. The
policy directed Deputy Cornelius to open any container that was not locked and
Deputy Cornelius proceeded accordingly (RR 2: 18-19). As he inventoried the
vehicle, Deputy Cornelius opened the center console and found a towel at the
top. Inside of the towel, he felt what he believed to be a methamphetamine pipe.
Inside the towel, he found a glass methamphetamine pipe containing what he
believed to be burnt methamphetamine residue (RR 2: 20).
At this point, Deputy Cornelius, besides conducting the inventory, also
began a probable cause search for any more illegal substances (RR 2: 20-21).
Deputy Cornelius located a small flat safe. He opened it and found 5 clear plastic
baggies containing a crystal like substance that field tested positive for
methamphetamine (RR 2: 21-22).
Deputy Cornelius filled out the standard Precinct 3 tow slip and inventory
form (RR 2: 26-27). Appellant did not give Deputy Cornelius permission to either
impound his vehicle or to search it (RR 2: 28-29). Deputy Cornelius testified that it
was correct that, according to his training, he would not have a right to conduct
an inventory search of an impounded vehicle if he couldn't see any contraband in
plain view in the vehicle (RR 2: 29-30).
3 Appellant's vehicle was drivable and it didn't create any kind of hazardous
condition. It was not legally parked and Deputy Cornelius refused appellant's
request to call a friend to move the vehicle. Deputy Cornelius didn't see any
contraband in the vehicle until he started the inventory (RR 2:30-31). Deputy
Cornelius had to pick up and look under the towel before he saw the pipe. The
pipe was inside the towel (RR 2: 33).
State's exhibit 5 (RR 3: 7), a copy of the Precinct 3 towing and inventory
policy, was identified by Deputy Cornelius and admitted into evidence (RR 2: 51-
52). Deputy Cornelius testified that he complied with the policy (RR 2: 53).
SUMMARY OF THE ARGUMENT
Deputy Cornelius used the inventory "as a ruse for general rummaging in
order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990).
Deputy Cornelius' inventory of appellant's vehicle "was clearly a pretext for an
investigatory motive." Garza v. State, 137 S.W.3d 878, 883 (Tex. App. -- Houston
[1st Dist.] 2004.
The trial court erred in denying appellant's motion to suppress the illegally
seized methamphetamine in both the vehicle's center console and in the small
flat safe.
4 ARGUMENT
There was no search warrant in this cause (RR 3: 5).
Appellant's motion to suppress evidence claimed that the search of his
vehicle violated both his Fourth Amendment rights under the U.S. Constitution
and his rights under the Texas Constitution's Article I, Sec. 9. (CR I: 21).
Appellant claims that Deputy Cornelius did not comply with Precinct 3's
police departmental vehicle inventory policy and that the trial court erred in
denying appellant's motion to suppress evidence of the methamphetamine that
was seized as a result of the illegal inventory search.
An abuse of discretion is the standard of review utilized in the review of a
trial court's denial of a motion to suppress and the facts are viewed in the light
most favorable to the trial court's decision. Almost total deference is given to the
trial court's express or implied determination of historical facts while the
application of the law of search and seizure to those facts is reviewed de novo.
Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).
Deputy Cornelius conducted a traffic stop on appellant's vehicle due to an
expired vehicle registration (RR 2: 11). He arrested appellant after being advised
by dispatch that appellant had 6 traffic warrants . Deputy Cornelius testified that
5 Precinct 3's policy in such a situation was "To tow the vehicle and make an
inventory of the vehicle for any valuable property (RR 2: 15-16)."
Pursuant to policy the deputy called a wrecker (RR 2: 17) and began the
inventory of appellant's vehicle (RR 2: 19). In performing the inventory, Deputy
Cornelius used a Precinct 3 carbon copy to list pertinent or valuable property. The
inventory is performed to protect the appellant, his property and also to protect
Deputy Cornelius (RR 2: 18).
During the inventory, Deputy Cornelius found what he believed to be a
methamphetamine pipe with some fresh residue wrapped in a towel that he
found in the vehicle's center console (RR 2: 19-20). Upon finding the pipe, Deputy
Cornelius stated that he then began a dual purpose inventory and "probable
cause search" of the vehicle. The inventory was for valuable property and the
"probable cause search" was "for anymore illegal substances" (RR 2: 20-21).
During the inventory and search, Deputy Cornelius found a small flat safe
and opened it. Inside, he found 5 clear plastic baggies containing a crystal like
substance which tested positive for methamphetamine (RR 2: 21). Inside the safe,
the deputy also found a digital scale, Xanax bars, assorted pills, stamps, a green
leafy substance and a rolled cigarette that smelled of marijuana (RR 2: 22).
6 In denying appellant's motion to suppress evidence of the controlled
substances seized by the deputy, the trial court stated, in pertinent part, that:
(RR 2: 61):
" .... I have also read those cases provided by the State of Texas, Delgado
versus State, and that cite is 718 S.W.2d 718,, and then Rothenberg versus State,
that's 176 S.W.3d at 53, and based on the testimony of the officer and my review
of the case law, I will deny your motion to suppress .... "
Concerning an inventory of a vehicle's contents, the Court of Criminal
Appeals in Delgado v. State, 718 S.W.2d 718, 721 ( Tex. Crim. App. 1986, reh.
den.), cited the United States Supreme Court case of South Dakota v. Opperman,
428 U.S. 364 (1976) for the holding that inventories conducted pursuant to
standard police procedures are reasonable. The Court of Criminal Appeals further
clarified the vehicle inventory issue by specifically stating that "One of the
instances in which an automobile may be validly impounded and inventoried is
where the driver is removed from his automobile and placed under custodial
arrest and no other alternatives are available other than impoundment to insure
the protection of the vehicle." Id. at 721.
Also cited and relied upon by the trial court as a basis for her decision to
7 deny appellant's motion to suppress the evidence of the methamphetamine was
Rothenberg v. State, 176 S.W.3d 53 (Tex. App. -- Houston [1st Dist.]. 2004, PDRR).
In Rothenberg, id. at 56, this First Court of Appeals cited Colorado v.
Bertine, 479 U.S. 367, 371 (1987) for the proposition that "The inventory has long
been recognized as falling outside the Fourth Amendment's warrant
requirement." This Court also stated that "the Fourth Amendment to the
United States Constitution allows police to open closed -- even locked --
containers as part of the inventory of an automobile, as long as they do so in
accordance with standardized police procedures and as long as the police do not
act in bad faith or for the sole purpose of investigation. Id. at 57. Florida v. Wells,
495 U.S. 1, 4 (1990).
In Garza v. State, 137 S.w.3d 878, 885 (Tex. App. -- Houston [1st Dist.]
2004). this Court stated:
"The Supreme Court has held that, under the Fourth Amendment, a
peace officer may open a closed container as part of an inventory of
an automobile as long as the inventory is conducted in good faith
pursuant to reasonable standardized police procedures. Bertine, 479
U.S. at 374, 107 S.Ct. at 742-43. We find this Fourth Amendment
8 authority to be reasonable, persuasive, and in harmony with Texas'
protection against unreasonable searches and seizures. Accordingly,
we further hold that, under Article I, section 9, this standard applies
in the context of inventories."
Appellant suggests that this Court's opinion in Moskey v. State, 333 S.W.3d
696 (Tex. App. -- Houston [1st Dist.] 2010) is not only one that is factually similar
to appellant's case but also aptly and thoroughly sets forth the law that is
applicable to a proper appellate analysis of appellant's complaint.
Appellant's complaint is that the trial court erred in denying his motion to
suppress evidence (RR 2: 61). The State's evidence failed to satisfy its burden to
demonstrate that Deputy Cornelius conducted the inventory search of appellant's
vehicle in accordance with Precinct 3's standardized police procedures. The trial
could not have reasonably determined that Deputy Cornelius conducted a valid
inventory search and, therefore, the trial court abused its discretion in denying
appellant's motion to suppress evidence.
Based on the law as set forth in Moskey, id., appellant concedes that the
traffic stop of appellant's vehicle and his arrest were lawful. Appellant also admits
that the impoundment of his vehicle was proper and that the deputy had a legal
9 right to perform an inventory of appellant's vehicle.
However, appellant contends that the State's evidence failed to
demonstrate that Deputy Cornelius conducted the inventory search according to
Precinct 3 police departmental policy. Id., at 700.
State's Exhibit #5 (RR 3: 7), the Precinct 3 inventory policy, was offered and
admitted into evidence (RR 2: 51). Deputy Cornelius' inventory form is reflected in
the appellate record as Defense No. CX-1 (RR 3: 11).
The trial court noted for the record the following:
(RR 2: 62):
" THE COURT: We're on the record in Cause No. 1413407, the State of Texas
versus Michael Peters. Before we enter into the plea bargain that was part of the
motion to suppress, the dispositive motion to suppress, we wanted to get on the
record at the request of Mr. Portis that the State will secure from the officer the
inventory slip that was submitted to his department as a result of the
impoundment of Mr. Peters' car.
MS CHESTER: Yes, your Honor.
THE COURT: That will be included in the record.
MS. CHESTER: Yes, your Honor.
10 MR. PORTIS: Is that your stipulation? That was my stipulation.
MS. CHESTER: I will ask him and attempt to get it to the best of my ability.
We will make sure to look everywhere to try to find it.
THE COURT: All right. He seems confident that he filed it with his report.
MR. PORTIS: I think he told me that two or three times.
MS. CHESTER: Shouldn't be a problem.
MR.. PORTIS: Thank you so much."
Deputy Cornelius testified that he had a Precinct 3 carbon copy tow slip
form on which he listed any pertinent or valuable property that he found during
his inventory of appellant's vehicle (RR 2: 18). As he was inventorying the vehicle,
Deputy Cornelius opened the center console and found what he believed to be a
methamphetamine pipe containing methamphetamine residue inside of a towel
(RR 2: 20).
Continuing on with his search, the deputy opened a small flat safe in which
he found "five clear plastic bags containing a crystal like substance which later
field tested positive for methamphetamine", "several new unused small clear
plastic baggies with pictures of cats on 'em", "a digital scale", "baggies with three
Xanax bars", "five Soma type pills", "six unknown gray and pink pills", "four round
11 white pills", "three small round pills", "a package of some small stamps",
"seventeen brown pills with two blue pills contained within the same bag', "a
baggie containing a green leafy substance that smelled strongly of fresh
marijuana" and "a baggie that contained a rolled cigarette that smelled strongly
of burnt marijuana (RR 2: 21-22)."
Deputy Cornelius testified that, while he did fill out a standard Precinct 3
tow slip form on which he listed the items found during his inventory of
appellant's vehicle, he did not bring the tow slip form to court (RR 2: 26-27, 32).
Deputy Cornelius said that he couldn't recall what valuables were in the
appellant's vehicle without looking at his tow slip. However, he did recall some
speakers in the back of the vehicle (RR 2: 37).
The Precinct 3 inventory policy contained in State's Exhibit #5 (RR 3: 7)
states the following in regard to a prisoner's property and vehicle:
"3. Prisoner's Property
Each deputy, upon assuming custody of a prisoner, has the primary
responsibility to protect and safeguard all property which the prisoner
has in his possession at the time of arrest:
a. Deputies who arrest or transport or otherwise take custody of
12 a prisoner shall inventory the prisoner's property and maintain detailed
notes as to the type, amount, and disposition of the property. ....
4. Prisoner's Vehicles
When necessary will be towed and stored by an authorized wrecker
service.
....
All prisoners vehicles towed by this Department will be inventoried
including the trunk and glove compartment if accessible. ...."
The inventory form listed in the appellate record as "CX-1" (RR 3: 11) clearly
shows that Deputy Cornelius did not conduct his inventory of appellant's vehicle
pursuant to established Precinct 3 police department guidelines. The "Inventory
Of Vehicle Contents" reflects the following:
"Cell Phone . Center Console
Misc Tools - Back Seat / Bag Of Change - Back Seat
Misc Clothes - Cargo Area"
The deputy did not maintain detailed notes of the type and amount of the
property in appellant's vehicle. While there is mention of a cell phone there is no
description of the cell phone as to type. His inventory contains no mention at all
13 of a towel with a methamphetamine pipe found in the center console of the
vehicle. His inventory does not even mention the flat safe in which he testified
that he found 5 baggies of methamphetamine, digital scales, assorted pills,
stamps and marijuana (RR 2: 21-22). Nor does his inventory list the contents of
the flat safe. His inventory mentions miscellaneous clothes and miscellaneous
tools without stating their type or number which is apparently required by
Precinct 3's inventory policy as set forth in State's Exhibit # 5 (RR 3: 11). His
inventory does mention a bag of change but not the amount of money. There is
no mention of the two speakers that Deputy Cornelius testified that he saw in the
back of appellant's' vehicle (RR 2: 37).
As this Court stated in Moskey, supra, at 700, "The state bears the burden
of establishing that the police conducted a lawful inventory search. ... The State
satisfies this burden by demonstrating that (1) an inventory policy exists and (2)
the officers followed the policy." State's Exhibit #5 (RR 3: 7) showed that an
inventory policy did exist. The inventory form listed as "CX-1" (RR 3: 11) clearly
demonstrates that Deputy Cornelius did not follow the policy.
Since Deputy Cornelius did not follow Precinct 3's established police
14 department policy for inventory of the vehicle's contents, his inventory search
amounted to a "ruse for a general rummaging in order to discover incriminating
evidence." Moskey, supra, at 700. Therefore, the search for and seizure of the
methamphetamine was illegal.
The trial court erred in denying appellant's motion to suppress (CR I: 24; RR
3: 61).
PRAYER FOR RELIEF
Appellant prays that this Court reverse the judgment of the court below
and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).
Respectfully submitted,
/s/Charles Hinton_____ Charles Hinton P.O. Box 53719 Houston, Texas 77052-3719 832-603-1330 chashinton@sbcglobal.net SBOT #09709800 Attorney for Appellant
CERTIFICATE OF SERVICE
I certify that a copy of appellant's brief has been served by e-filing upon the
15 appellate attorney for the State, Mr. Alan Curry, Chief Prosecutor, Appellate
Division, Harris County District Attorney's Office, 6th Floor, 1201 Franklin,
Houston, Texas 77002 on June 22, 2015.
/s/Charles Hinton__________ Charles Hinton
CERTIFICATE OF COMPLIANCE
Appellant's counsel certifies that the word count of this document is 3,347.