PD-1356-15
NO. PD-______ IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
RICARDO SOTO
Appellant
v.
STATE OF TEXAS
Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Petition from the 66th Judicial District Court of Hill County, Texas Trial Court Cause Number 38,173 and Cause Number 10-15-00029-CR in the Tenth Court of Appeals of Texas
Chelsea Tijerina
State Bar No. 24076733
E-mail: attorneychelsea@gmail.com
LAW OFFICE OF SIMER &TETENS 3706 Bellmead Drive Waco, Texas 76705
(254) 412-2300
(888) 317-7610—Facsimile
October 19, 2015
IDENTITY OF PARTIES AND COUNSEL
Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides the following list of all parties to the trial court's judgment and the names and addresses of all trial and appellate counsel.
Appellant: Ricardo Soto 21040 West Lincoln Avenue New Berlin, Wisconsin 53146
Trial Court Judge: Hon. F.B. (Bob) McGregor Jr.
66th Judicial District Court Judge Post Office Box 284 Hillsboro, Texas 76645 Telephone: 254-582-4045
Trial Counsel for Appellant: Josh Tetens Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephone: 254-412-2300
Appellate Counsel for Appellant: Chelsea Tijerina Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephone: 254-412-2300
Trial and Appellate Counsel for State: Mark Pratt Hill County District Attorney’s Office P.O. Box 400 Hillsboro, Texas 76645 Telephone: 254-582-4070
Soto v. State—Appellant’s Petition for Discretionary Review Page 1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………………………………….. 1
INDEX OF AUTHORITIES……………………………………………………………………... 4
STATEMENT REGARDING ORAL ARGUMENT…………………………………………..... 6
STATEMENT OF THE CASE/ STATEMENT OF PROCEDURAL HISTORY………………………………………………..... 6
ISSUE
The Tenth Court of Appeals erred in finding the search of Appellant valid under Terry v. Ohio………………………………………………………………. 7
REASON FOR REVIEW
The Tenth Court of Appeals disregarded established case law from the United States Supreme Court, this Honorable Court, and sisters courts of appeal to find the search of Appellant’s person constitutionally justified and within the scope of Terry v. Ohio……………………………………………………………………... 9
ARGUMENT…………………………………………………………………………………….. 9
I. Factual Basis……………………………………………………………………... 9
II. Case Law
A Terry search is appropriate where the officer has reasonable, articulable facts that a person is armed and dangerous, and the officer strictly tailors his search to a pat down for weapons.………...…. 10
III. Conclusion……………………………………………………………………… 17
PRAYER FOR RELIEF………………………………………………………………………… 17
CERTIFICATE OF SERVICE…………………………………………………………………. 18
CERTIFICATE OF COMPLIANCE…………………………………………………………… 19
Soto v. State—Appellant’s Petition for Discretionary Review Page 2
APPENDIX: Soto v. State, 2015 Tex. App. LEXIS 8524 (Tex. App.—Waco August 13, 2015, no pet. h.).
Soto v. State—Appellant’s Petition for Discretionary Review Page 3
INDEX OF AUTHORITIES
Texas Cases: Page No.
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)……………………….. 9, 11, 12, 16
Griffin v. State, 215 S.W.3d 403 (Tex. Crim. App. 2007)……………………………………… 12
Lippert v. State, 664 S.W.2d 712 (Tex. Crim. App. 1984)……………………………………... 12
Del Carmen Moreno v. State, 797 S.W.2d 228 (Tex. App.—Corpus Christi 1990, no pet.)………………………………………………… 12, 16
Guevara v. State, 6 S.W.3d 759 (Tex. App.—Houston [1st Dist.] 1999)………………….. 11, 16
O’Hara v. State, 27 S.W.3d 548 (Tex. Crim. App. 2000)……………………………………… 11
Ramirez v. State, 672 S.W.2d 480 (Tex. Crim. App. 1984)……………………………………. 16
State v. Phillips, 752 S.W.2d 194 (Tex. App.—Amarillo 1988, no writ.)………………….. 12, 16
State v. Williams, 312 S.W.3d 276 (Tex. App.—Houston [14th Dist.] 2010, no pet.)……... 13, 16
Wood v. State, 515 S.W.2d 300 (Tex. Crim. App. 1974)………………………………………. 13
Worthey v. State, 805 S.W.2d 435 (Tex. Crim. App. 1991)………………………………...….. 16
Soto v. State—Appellant’s Petition for Discretionary Review Page 4
Federal Cases: Page No.
Coolidge v. New Hampshire, 403 U.S. 443 (1971)…………………………………………….. 16
Katz v. United States, 389 U.S. 347 (1967)…………………………………………………….. 11
Maryland v. Buie, 494 U.S. 325 (1990)……………………………………………………….... 11
Minnesota v. Carter, 525 U.S. 83, 88 (1998)…………………………………………………... 11
Sibron v. New York, 392 U.S. 40 (1968)…………………………………...… 9, 10, 12, 13, 15, 16
Terry v. Ohio. 392 U.S. 1 (1968)…………………………………… 2, 8, 9, 10, 11, 12, 14, 15, 16
Ybarra v. Illinois, 444 U.S. 85 (1979)…………………………………………………....… 11, 16
Federal Statutes:
U.S. CONST. Amend. IV………………………………………………………………….. 8, 10, 11
State Statutes: Page No.
TEX. R. APP. P. 66.3………………………………………………………………………….. 8, 17
STATEMENT REGARDING ORAL ARGUMENT
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Oral argument would not benefit this Honorable Court as the issues in this
case are quite straightforward.
STATEMENT OF THE CASE/
STATEMENT OF PROCEDURAL HISTORY
This is a criminal case in which Ricardo Soto was convicted of possessing
less than one gram of cocaine.1 In Cause Number 38,173, Mr. Soto was indicted
as follows:
“RICARDO SOTO hereinafter styled Defendant, on or about the 27TH day of FEBRUARY, 2014 and before the presentment of this indictment, in the County of Hill and State aforesaid, did then and there intentionally or knowingly possess a controlled substance, namely, cocaine of less than 1 gram, including any adulterants or dilutants.”2
Appellant moved to suppress evidence obtained during law enforcement’s
illegal search of his person. 3 The district court denied Appellant’s Motion to
Suppress.4
The case was tried to the bench on December 5, 2014 in the 66th Judicial
1 (I C.R. at 20–21).
2 (I C.R. at 4).
3 (I C.R. 5–6).
4 (I C.R. at 7).
District Court before the Honorable Judge F.B. (Bob) McGregor. 5 During the
bench trial, Appellant re-urged his motion to suppress evidence and the district
court again denied said motion. 6 The district court found Appellant guilty of
possession of a controlled substance in penalty group one in the amount of one
gram or less and assessed punishment as follows: 20 months state jail probated for
4.5 years and a fine of $2,000.00.7
Appellant timely filed a Notice of Appeal on December 5, 2014. 8 On
appeal, the Tenth Court of Appeals upheld the legality of the search and denied
Appellant’s sole issue.9 Thereafter, the Tenth Court denied Appellant’s Motion for
Rehearing on September 3, 2015. Appellant’s Petition for Discretionary Review is
due on or before October 19, 2015.
ISSUE
The Tenth Court of Appeals erred in upholding the unconstitutional search
of Appellant.
REASONS FOR REVIEW
The Tenth Court of Appeals has blatantly disregarded the Fourth
5 (I C.R. at 20).
6 (1 R.R. at 17).
7 (I C.R. at 20–21).
8 (I C.R. at 27).
9 Soto v. State, 2015 Tex. App. LEXIS 8524 at *10 (Tex. App.—Waco August 13, 2015) (mem.
Soto v. State—Appellant’s Petition for Discretionary Review Page 7
Amendment’s guarantee against unreasonable searches. In Mr. Soto’s case, the
Tenth Court of Appeals held that the reasonable suspicion necessary to warrant a
Terry frisk need not be particularized to the person searched.10 The Tenth Court of
Appeals further held that Terry v. Ohio permits an officer to remove a person’s
outer clothing during a search for weapons if the person’s outer clothing is “not
transparent.”11
The Tenth Court of Appeals’ decision in this case conflicts with decisions
from the United States Supreme Court and this Honorable Court12 as well as with
decisions from sister courts of appeal.13 Additionally, the Tenth Court of Appeals
“has so far departed from the accepted and usual course of judicial proceedings…
as to call for an exercise of the Court of Criminal Appeals’ power of
supervision.” 14 Left unchecked by this Honorable Court, the Tenth Court of
Appeals’ holding in Mr. Soto’s case will exponentially expand the justifications
for and the breadth of a Terry search.
op., not designated for publication). 10 Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet. h.) (mem. op., not designated for publication). 11 Id., at *5. 12 TEX. R. APP. P. 66.3(c).
13 TEX. R. APP. P. 66.3(a).
14 TEX. R. APP. P. 66.3(f).
Soto v. State—Appellant’s Petition for Discretionary Review Page 8
ARGUMENT
An officer may frisk a person for weapons under Terry v. Ohio only when
the officer has reasonable, articulable facts directed to the person searched that the
person is armed and dangerous.15 Despite the particularity requirement, the Tenth
Court of Appeals found the officer’s search of Appellant valid under Terry v. Ohio
based solely on the officer’s knowledge that Appellant’s companion had a criminal
history.16
Although the search approved by Terry v. Ohio consists solely of a “limited
patting of the outer clothing of the suspect for concealed objects which might be
used as instruments of assault,17 the Tenth Court of Appeals found the officer’s
removal of Appellant’s outer clothing constitutionally sound based on the fact that
Appellant’s outer clothing was “not transparent.”18
I. Factual Basis
The Tenth Court of Appeals set forth the following facts in its opinion:
Soto was travelling in a vehicle with four other people which was stopped for vehicle equipment violations by Joe Abreu who, at the time, was working for the Hillsboro Police Department. The driver of 15 Terry v. Ohio. 392 U.S. 1, 25 (1968); Sibron v. New York, 392 U.S. 40, 65 (1968); Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). 16 Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet. h.) (mem. op., not designated for publication). 17 Sibron, 392 U.S. at 65. 18 Soto, 2015 Tex. App. LEXIS 8524, at *5.
Soto v. State—Appellant’s Petition for Discretionary Review Page 9 the vehicle gave his consent for Abreu to search the vehicle. After getting everyone out of the vehicle, Abreu decided to pat-down all the occupants for weapons. Soto was wearing a cap. Abreu attempted to pat-down the cap and removed it from Soto's head. When he removed the cap, a folded dollar bill fell out. The dollar bill contained under an ounce of cocaine…19
Abreu removed five individuals, including Soto, from the vehicle. He had information that at least one of the other individuals had a criminal history of possessing a controlled substance with intent to distribute and was known to traffic large amounts of cocaine…
Abreu testified that Soto was wearing a cap and that the cap was not transparent to be able to see whether there was a weapon in it. Further, Abreu testified that a bladed weapon like a razorblade inside a cap would not necessarily be felt when a cap is patted against someone's head. Through training at the police academy and experience, Abreu had learned that the only proper way to search a cap for bladed weapons is to remove the cap from the person's head.20
II. Case Law
a. To conduct a frisk for weapons, an officer must have reasonable, articulable facts particularized to the person to be searched that the person is armed and dangerous.
Law enforcement may not place hands on a citizen “in search of anything”
without “constitutionally adequate, reasonable grounds for doing so.” 21 The
Fourth Amendment of the United States Constitution prohibits unreasonable
19 Soto, 2015 Tex. App. LEXIS 8524, at *1.
20 Id., at *4.
21 Sibron v. New York, 392 U.S. 40, 64 (1968).
Soto v. State—Appellant’s Petition for Discretionary Review Page 10 searches and seizures.22 “Searches conducted without a warrant are unreasonable
per se under the Fourth Amendment, subject only to a few and well-delineated
exceptions.”23
In the interest of officer safety, the United States Supreme Court created an
exception to the general rule prohibiting warrantless searches which allows
officers to frisk or “pat down” a person to determine whether the person is
carrying a weapon.24
“Terry does not authorize a frisk for weapons in all confrontational
encounters.”25 A “weapons frisk” is justified only where the officer can point to
specific, articulable facts which reasonably lead him to conclude that the suspect
26
might possess a weapon. Because every individual is “clothed with
constitutional protection against an unreasonable search,” 27 a Terry search for
weapons must be based on a reasonable suspicion particularized to the person
searched.28
A person’s mere proximity to others independently suspected of criminal
22 U.S. CONST. Amend IV; Minnesota v. Carter, 525 U.S. 83, 88 (1998). 23 O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000) (citing Katz v. United States, 389 U.S. 347, 357 (1967)). 24 Terry v. Ohio. 392 U.S. 1, 24 (1968). 25 Guevara v. State, 6 S.W.3d at 764 (citing Maryland v. Buie, 494 U.S. 325, 333–334 (1990)). 26 Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). 27 Ybarra v. Illinois, 444 U.S. 85, 94 (1979).
Soto v. State—Appellant’s Petition for Discretionary Review Page 11 activity does not, without more, justify a search of that person. 29 An officer may
not search a person in a vehicle merely because another occupant of the vehicle is
suspected of criminal activity.30
The nature of the suspected criminal activity is a relevant consideration in
determining whether a frisk is warranted.31 However, an officer may not “base a
determination that his safety is in danger solely upon the basis that ‘the suspect is
a drug dealer.’”32
b. The scope of a Terry search must be carefully limited.
Under Terry v. Ohio, the frisk must be “confined in scope to an intrusion
reasonably designed to discover guns, knives, clubs, or other hidden instruments
for the assault of the police officer.”33 The search for weapons approved in Terry
consists solely of a limited patting of the outer clothing of the suspect for
concealed objects which might be used as instruments of assault. 34 A search for
narcotics, rather than weapons, during the frisk is not allowed. 35
28 Lippert v. State, 664 S.W.2d 712, 717 (Tex. Crim. App. 1984). 29 Del Carmen Moreno v. State, 797 S.W.2d 228, 230–231 (Tex. App.—Corpus Christi 1990, no pet.) (citing Terry v. Ohio, 392 U.S. 40 (1968)). 30 State v. Phillips, 752 S.W.2d 194, 196 (Tex. App.—Amarillo 1988, no writ.). 31 Carmouche, 10 S.W.3d at 330. 32 Griffin v. State, 215 S.W.3d 403, 411 (Tex. Crim. App. 2007) (citing Terry, 392 U.S. at 33)). 33 392 U.S. at 29. 34 Sibron v. New York, 392 U.S. 40, 65 (1968) 35 Id. at 64.
Soto v. State—Appellant’s Petition for Discretionary Review Page 12
“The purpose of a limited search after investigatory stop is not to discover
evidence of crime but to allow the peace officer to pursue investigation without
fear of violence. So long as the officer… has reason to believe that the suspect is
armed and dangerous, the officer may conduct a weapons search limited in scope
to the purpose of enabling the officer to pursue investigation without fear of
violence.”36 When conducting a pat-down search, an officer may not employ a
more intrusive means of searching the suspect without first patting down the
suspect and feeling potential weapons.37
c. The officer lacked reasonable suspicion directed to Appellant that Appellant was armed and dangerous.
In Mr. Soto’s case, the officer not only testified that he did not fear for his
safety when he detained Mr. Soto and his companions on the side of the highway 38
but also that Appellant and his companions “seemed to be very cooperative.” 39
The officer further stated that neither Appellant nor any of the other occupants of
36 Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974) (holding the search appropriate where “limited to a ‘pat down’”). 37 State v. Williams, 312 S.W.3d 276, 283 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (an officer’s requesting the suspect to move her bra strap due to fear she might have a knife in her bra went beyond the bounds of a Terry frisk); Sibron v. New York, 392 U.S. 40, 65 (1968) (holding that the officer exceeded the permissible scope of a pat down search for weapons by making “no attempt at an initial limited exploration for arms” and instead “thrust[ing] his hand into [Appellant’s] pocket”). 38 (1 R.R. at 20). 39 (1 R.R. at 18); (1 R.R. at 21).
Soto v. State—Appellant’s Petition for Discretionary Review Page 13 the vehicle made “any threatening gestures or comments.”40 The officer stated that
at the time of the detention, he had no knowledge that Appellant had any criminal
history.41
Despite Appellant’s compliance during his encounter with the officer, the
officer decided to frisk Appellant for weapons. The Tenth Court of Appeals held
that the officer was justified in searching Appellant because the officer had
“removed five individuals [from the vehicle], including Appellant,” one of whom
“had a criminal history of possessing a controlled substance with intent to
distribute and was known to traffic large amounts of cocaine.” 42
By holding that the search of Appellant’s person was justified under Terry
v. Ohio based solely on law enforcement’s knowledge that Appellant’s associate
had a criminal history, the Tenth Court of Appeals stands in gross contravention of
this Court’s and the Supreme Court’s rulings. As such, this Court should grant the
Petition for Review.
d. The officer exceeded the scope of Terry by removing Appellant’s outer garment.
In this case, the officer’s frisk of Appellant was not confined in scope to a
40 (1 R.R. at 20–21).
41 (1 R.R. at 24).
42 Soto v. State, 2015 Tex. App. LEXIS 8524, at *4 (Tex. App.—Waco August 13, 2015, no pet.
Soto v. State—Appellant’s Petition for Discretionary Review Page 14
“limited patting of the outer clothing” as authorized by Terry v. Ohio.43 Rather
than patting down Appellant’s outer clothing, the officer opted to remove it. 44 By
removing Appellant’s outer clothing, the officer employed a more intrusive means
of searching the suspect without first patting down the suspect and feeling
potential weapons.45
The officer testified to the following regarding his search of Appellant:
Defense Counsel: “You didn’t pat down [Appellant]’s hat prior to removing it, did you?”
Officer: “No, sir.”
Defense Counsel: “And once you did pat down the hat after you removed it, there wasn’t anything that you felt by touch or contraband that you felt by touch in the hat, was there?”
Officer: “No, sir.”46
The Tenth Court of Appeals’ bizarre reasoning for why the officer did not
exceed the scope of Terry by removing Appellant’s cap was as follows: “the cap
was part of his outer clothing, like a jacket or overcoat” and “was not
transparent to be able to see whether there was a weapon in it… [A] bladed
weapon like a razorblade inside a cap would not necessarily be felt when a cap is
h.). 43 Sibron v. New York, 392 U.S. 40, 65 (1968). 44 Soto, 2015 Tex. App. LEXIS 8524, at *5.
Soto v. State—Appellant’s Petition for Discretionary Review Page 15 patted against someone’s head.”47
e. The Tenth Court of Appeals’ ruling conflicts with decisions from the United States Supreme Court, this Honorable Court and Sister Courts of Appeal
The Tenth Court of Appeals’ decision in this case conflicts with decisions
from the United States Supreme Court,48 this Honorable Court,49 and sister courts
of appeal. 50 With the exception of Mr. Soto’s case, there is no court-created
exception to the general rule that a warrantless search is unreasonable per se51
enabling law enforcement to remove a suspect’s outer cloth in order to conduct a
weapons search.
By finding that removing a person’s cap falls within the purview of Terry
due to the opaqueness of the cap, the Tenth Court of Appeals has created an
appalling precedent whereby law enforcement may strip a person of his outer
45 See State v. Williams, 312 S.W.3d 276, 283 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
46 (1 R.R. at 21).
47 Id.
48 Terry v. Ohio. 392 U.S. 1 (1968); Sibron v. New York, 392 U.S. 40, 65 (1968); Ybarra v.
Illinois, 444 U.S. 85, 94 (1979). 49 Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000); Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002); Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim. App. 1991); Ramirez v. State, 672 S.W.2d 480, 482 (Tex. Crim. App. 1984)). 50 Del Carmen Moreno v. State, 797 S.W.2d 228, 230–231 (Tex. App.—Corpus Christi 1990, no pet.); State v. Phillips, 752 S.W.2d 194, 196 (Tex. App.—Amarillo 1988, no writ.); Guevara v. State, 6 S.W.3d 759,764 (Tex. App.—Houston [1st Dist.] 1999). 51 See Coolidge v. New Hampshire, 403 U.S. 443 (1971).
Soto v. State—Appellant’s Petition for Discretionary Review Page 16 garments based on the officer’s inability “to be able to see” 52 through a person’s
clothing to determine whether a person possesses a weapon.
III. Conclusion
Upholding the illegal search of Appellant required the Tenth Court of
Appeals to wholly disregard law from this Honorable Court and the Supreme
Court 53 and to so far depart from the accepted and usual course of judicial
proceedings, as to demand an exercise of the Court of Criminal Appeals' power of
supervision.54 Therefore, this Honorable Court should grant review.
PRAYER FOR RELIEF
Mr. Soto prays that this Court grant his Petition for Discretionary Review.
Respectfully submitted,
LAW OFFICE OF SIMER & TETENS
/s/ Chelsea Tijerina Chelsea Tijerina 3706 Bellmead Drive Waco, Texas 76705 (254) 412-2300 (888) 317-7610—Facsimile E-mail: attorneychelsea@gmail.com State Bar No. 24076733 ATTORNEY FOR APPELLANT
52 Id.
53 TEX. R. APP. P. 66.3(c).
54 TEX. R. APP. P. 66.3(f).
Soto v. State—Appellant’s Petition for Discretionary Review Page 17
CERTIFICATE OF SERVICE
On October 19, 2015, a copy of this Petition for Discretionary Review was
delivered to the Hill County District Attorney by email.
/s/ Chelsea Tijerina Chelsea Tijerina
Soto v. State—Appellant’s Petition for Discretionary Review Page 18
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of TEX. R. APP. P.
9.4(i)(2)(D) because this brief contains 2,299 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1) or,
2. This brief complies with the typeface requirements and the type style requirements of TEX. R. APP. P. 9.4(e) because this brief has been produced on a computer in conventional typeface using Microsoft Word in Times New Roman 14 point font in the body of the brief and Times New Roman 12 point font in the footnotes.
/s/ Chelsea Tijerina Chelsea Tijerina Attorney for Appellant
Soto v. State—Appellant’s Petition for Discretionary Review Page 19
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Petition for Discretionary Review Filing Type EFile Filing Code Petition for Discretionary Review Filing Description Petition for Discretionary Review Reference Number 101915 Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason 10/19/2015 The petition for discretionary review does not contain a copy of the court of appeals Other 03:48:40 opinion [Rule 68.4(j)]. Your petition was due to be filed October 5, 2015; it is
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