Paulette Wright v. Pete Reed and Wife, Carla Reed

• Court: Court of Appeals of Texas
• Decided: February 11, 2004
• Docket: 06-04-00022-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00022-CV

PAULETTE WRIGHT, Appellant

V.

PETE REED AND WIFE, CARLA REED, Appellees

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On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 02C0230-005

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Appellant, Paulette Wright, has filed a motion with this Court in which she informs this Court she no longer desires to proceed with her appeal. She has, therefore, asked this Court to dismiss her cross-appeal of the trial court's judgment.

            In order to provide the relief sought, we order Wright's cross-appeal against the Reeds severed from the Reeds' appeal against Wright. We assign Wright's cross-appeal against the Reeds to cause number 06-04-00022-CV.

            Pursuant to Rule 42.1(a) of the Texas Rules of Appellate Procedure, Wright's motion is granted. See Tex. R. App. P. 42.1(a). The cross-appeal by Wright against the Reeds, 06-04-00022-CV is dismissed.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          February 10, 2004

Date Decided:             February 11, 2004

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A. Right.

Q. But you continued to search him anyway?

A. Well, what I knew was -- I knew that wasn't a weapon.

. . . .

Q. Sometime in between patting on his pocket and getting down to the end of his body to complete the search, you stuck your hand into his pocket and --

A. Immediately after I patted his pocket, I went inside his pocket. I knew what it was as soon as I patted it.

Q. How did you know what's inside of his pocket when you patted it when you did not see it?

A. Police experience.

Q. You're telling me that if you pat my pocket right now, you can tell what's inside of it?

A. I can get a general description what it is, yes. I can if it's a narcotic.

Q. What else did you believe was in his pocket in terms of a weapon at the time you started a pat-down prior to sticking your hand in his pocket?

A. I figured it would be some cocaine-type substance.

Q. You were looking for drugs?

A. No, I wasn't looking for it. Once I felt it, I knew that's probably what it was.

Q. When you pulled the item out of his pocket, it was in tinfoil?

A. Yes.

Q. At that point in time you knew absolutely it was not a weapon, correct?

A. Not necessarily.

Q. . . . It's your testimony before this Court today that the tinfoil was in such a shape or form after you pulled it out of the pocket that you believed that it was a weapon?

A. No. I knew it was either a weapon or -- and it could be possibly marijuana or cocaine.

Q. At the point in time that you pulled out the tinfoil, whatever was inside the tinfoil was not visible to you; is that correct?

A. Correct, not all of it. It wasn't sealed totally.

Q. Is that the foil you thought could possibly contain a weapon?

A. Could have contained a razor blade.

Joseph's only issue on appeal concerns the validity of his search by the deputy and the seizure of the evidence from his pocket. He contends that the search and seizure were unreasonable and unconstitutional and that the evidence seized should have been suppressed.

When reviewing a trial court's ruling on a motion to suppress evidence, the appellate courts apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the trial court's application of the law of search and seizure. Johnson v. State, 32 S.W.3d 294, 296 (Tex. App.-San Antonio 2000, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

We must first determine whether Deputy Eddie Willrich's pat-down search of Joseph constituted an unreasonable search and seizure.

The United States Supreme Court has stated that

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889, 908 (1968). Recognizing this need, the Court held that police officers, under certain limited circumstances, could conduct a "stop and frisk" search of a suspect, for weapons, without violating the constitutional prohibition against unreasonable searches and seizures:

[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id., 392 U.S. at 27 (citations omitted).

This court, citing Terry, has recently reiterated that a police officer has the power to determine whether a person is carrying a weapon and to neutralize the threat of harm, so long as the officer has a reasonable suspicion based on articulable facts that the person is armed and presently dangerous. We held that such a search must be narrow in scope and limited to that which is necessary for the discovery of weapons that are readily accessible. McAllister v. State, 34 S.W.3d 346, 352 (Tex. App.-Texarkana 2000, pet. ref'd). The Beaumont Court of Appeals has held the initial investigatory stop and pat-down search is only justified where the officer can point to specific and articulable facts which reasonably lead the officer to conclude the suspect might possess a weapon. Williams, 27 S.W.3d at 692.

Under these circumstances, we hold Willrich was justified in conducting a pat-down search of Joseph for weapons. We also review whether the circumstances justified Willrich's seizure of the tinfoil and substance contained therein from the pocket of Joseph after he conducted the pat-down search.

The United States Supreme Court has held that if a law enforcement officer lawfully pats down the outer clothing of a suspect and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized by the officer's search for weapons. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334, 346 (1993); Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000); McAllister, 34 S.W.3d at 352.

In Dickerson, the officer testified that based on his feeling a small, hard object wrapped in plastic inside the suspect's clothing, he knew the lump was crack cocaine. The Supreme Court held that the evidence should have been suppressed because the officer's determination that the lump he felt was contraband was not based on immediate recognition, but was made only after "squeezing, sliding and otherwise manipulating the contents of the defendant's pocket -- a pocket which the officer already knew contained no weapon." 508 U.S. at 378. In Carmouche, the Texas Court of Criminal Appeals held that based on the officer's testimony that he immediately recognized the bulge in appellant's pants pocket as money, the "plain feel" exception had been established. ⁽¹⁾

In the Dickerson opinion, the United States Supreme Court deemed the sense of touch equivalent to finding contraband under the plain view doctrine, and if it is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the Fourth Amendment--or at least no search independent of the initial intrusion that gave the officers their vantage point. The Court goes on to say that if an officer pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons. The Court in Dickerson observes that the sense of touch is generally less reliable than the sense of sight, but that this only suggests the officers will less often be able to justify seizures of unseen contraband.

In the present case, applying the Constitution to the facts is difficult. The officer's conclusion was that immediately after he felt the bulk, the identity of the bulk was immediately apparent to him. He testified that he based his immediate recognition of the lump as crack cocaine on his police experience. He made this tactile discovery through the pants and wrappings of the substance. However, when asked about the shape or form of the tinfoil, the officer testified he knew it was either a weapon or possibly marihuana or cocaine. He also testified the tinfoil could have contained a razorblade. His testimony was not unequivocable.

Giving deference to the fact finding of the trial court, as well as to the Texas Court of Criminal Appeal's determination that an officer could immediately identify money through the outer clothing in the case of Carmouche, this court, by precedent and by the trial court's determination, must hold the search and seizure was not unreasonable and was not unconstitutional.

The judgment of the trial court is affirmed.

Ben Z. Grant

Justice

Date Submitted: August 29, 2001

Date Decided: March 6, 2002

Do Not Publish

1. The opinion, citing Dickerson, states that no privacy interest is implicated by the seizure of an item whose identity is plainly known through an officer's sense of touch. Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000). The language of the Carmouche opinion does not indicate that the officer is required to articulate any specific facts by which he claims to "immediately recognize" what he feels as contraband. Id. at 330-31.