IN THE TENTH COURT OF APPEALS
No. 10-08-00243-CR
THOMAS LEON BYRD, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2007-1823-C1
MEMORANDUM OPINION
Thomas Leon Byrd appeals the denial of a motion to suppress evidence that was
the subject of an inventory search conducted on his vehicle pursuant to being
impounded, during which cocaine was discovered. After the motion was denied, Byrd
pled nolo contendere to the charge of Possession of a Controlled Substance with Intent to
Deliver Cocaine, a first degree felony, pursuant to a plea bargain with the State and was
sentenced to fifteen (15) years in the Texas Department of Criminal Justice –
Institutional Division. TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2003); TEX.
PEN. CODE ANN. § 12.32 (Vernon 2003). The trial court certified Byrd’s right to appeal
the denial of the motion to suppress. TEX. R. APP. P. 25.2(2)(A). Because we find that the trial court did not err by denying the motion, we affirm the judgment of the trial
court.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a
bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.
2007). We give almost total deference to the trial court's determination of historical facts
and review de novo the trial court's application of law to facts not turning on credibility
and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
Inventory Searches
An inventory search is permissible under the United States and Texas
constitutions if it is conducted pursuant to a lawful impoundment. South Dakota v.
Opperman, 428 U.S. 364, 372-75, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Benavides v. State,
600 S.W.2d 809, 810 (Tex. Crim. App. 1980); Josey v. State, 981 S.W.2d 831, 842 (Tex.
App.—Houston [14th Dist.] 1998, pet. ref'd). The State bears the burden of proving that
an impoundment is lawful and may satisfy its burden by showing that (1) the driver
was arrested, (2) no alternatives other than impoundment were available to ensure the
automobile's protection, (3) the impounding agency had an inventory policy, and (4)
that policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref'd). To determine the reasonableness of impoundment we consider
the following factors: (1) whether someone was available at the scene of the arrest to
whom the police could have given possession of the vehicle; (2) whether the vehicle was
impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle
was locked; (4) whether the detention of the arrestee would likely be of such duration as Byrd v. State Page 2 to require police to take protective measures; (5) whether there was some reasonable
connection between the arrest and the vehicle; and (6) whether the vehicle was used in
the commission of another crime. Josey, 981 S.W.2d at 842.
In making inventory searches, the police are not required to use the least
intrusive means of safeguarding the property. Colorado v. Bertine, 479 U.S. 367, 374-75,
93 L. Ed. 2d 739, 107 S. Ct. 738 (1987); Illinois v. Lafayette, 462 U.S. 640, 647-48, 77 L. Ed.
2d 65, 103 S. Ct. 2605 (1983). The police may inventory even locked automobile trunks
and glove compartments. Bertine, 479 U.S. at 374-75. The authorities are not required to
offer the arrestee a chance to make other arrangements, or to ask him whether he wants
his valuables protected. Id. at 373-74. The police are also not required to independently
investigate possible alternatives to impoundment absent some objectively demonstrable
evidence that alternatives do, in fact, exist. Mayberry v. State, 830 S.W.2d 176, 180 (Tex.
App.—Dallas 1992, pet. ref'd).
In his brief, Byrd does not challenge the fact that he was arrested, that there was
an inventory policy, or that the policy was followed by the officer. See Garza v. State,
137 S.W.3d at 882. He does challenge whether there were other alternatives to
impoundment and the reasonableness of the impoundment.
Byrd was the driver of the vehicle. His brother, Joe, was in the passenger seat.
Byrd was stopped in Waco for expired inspection and registration stickers and having
his front license plate displayed inside the vehicle on his dash, which rendered it
Byrd v. State Page 3 unreadable as required by statute1. When Byrd was pulled over by the officer, he
parked the car in a parking lot of a store. Upon running a search for warrants, the
officer discovered that Byrd had outstanding warrants for DWI and driving with a
suspended license. Byrd was then arrested and placed in the patrol car by the officer.
Further investigation revealed that the vehicle’s owner was, in fact, Byrd’s wife,
who lived in Riesel. Byrd was specifically excluded from the liability insurance policy
on the vehicle. Joe did not have a driver’s license. After the officer determined that Joe
had no outstanding warrants, Joe walked away from the scene with a gas can from the
vehicle. It is the policy of the Waco Police Department that they do not release vehicles
to unlicensed drivers or non-owners of the vehicle. The officers are not allowed to leave
the vehicle unattended without someone to take custody of it.
Upon determining that the vehicle would be impounded, the officer undertook
an inventory search which revealed a rag stuffed in a cup wedged between the driver’s
seat and the center console. When the officer pulled the rag out of the cup, three
baggies filled with what was later determined to be cocaine and several empty baggies
fell out of the rag.
In reviewing the factors used to determine the reasonableness of the
impoundment, the factor we believe is determinative in the instant case is the
availability of someone at the scene of the arrest to whom the police could have given
possession of the vehicle. Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App. 1986).
If a passenger in the car or someone at the scene of the arrest cannot furnish
1The officer determined that the inspection and registration stickers were in fact current after he stopped Byrd, but the license plate was, in fact, improperly displayed. However, Byrd does not complain of the validity of the traffic stop in either the motion to suppress or his brief. Byrd v. State Page 4 identification or a driver's license, it is not improper for the officer to refuse to release
the car to that person. Stephen v. State, 677 S.W.2d 42, 43-44 (Tex. Crim. App. 1984); State
v.
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IN THE TENTH COURT OF APPEALS
No. 10-08-00243-CR
THOMAS LEON BYRD, Appellant v.
THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas Trial Court No. 2007-1823-C1
MEMORANDUM OPINION
Thomas Leon Byrd appeals the denial of a motion to suppress evidence that was
the subject of an inventory search conducted on his vehicle pursuant to being
impounded, during which cocaine was discovered. After the motion was denied, Byrd
pled nolo contendere to the charge of Possession of a Controlled Substance with Intent to
Deliver Cocaine, a first degree felony, pursuant to a plea bargain with the State and was
sentenced to fifteen (15) years in the Texas Department of Criminal Justice –
Institutional Division. TEX. HEALTH & SAFETY CODE ANN. § 481.112 (Vernon 2003); TEX.
PEN. CODE ANN. § 12.32 (Vernon 2003). The trial court certified Byrd’s right to appeal
the denial of the motion to suppress. TEX. R. APP. P. 25.2(2)(A). Because we find that the trial court did not err by denying the motion, we affirm the judgment of the trial
court.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a
bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.
2007). We give almost total deference to the trial court's determination of historical facts
and review de novo the trial court's application of law to facts not turning on credibility
and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
Inventory Searches
An inventory search is permissible under the United States and Texas
constitutions if it is conducted pursuant to a lawful impoundment. South Dakota v.
Opperman, 428 U.S. 364, 372-75, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); Benavides v. State,
600 S.W.2d 809, 810 (Tex. Crim. App. 1980); Josey v. State, 981 S.W.2d 831, 842 (Tex.
App.—Houston [14th Dist.] 1998, pet. ref'd). The State bears the burden of proving that
an impoundment is lawful and may satisfy its burden by showing that (1) the driver
was arrested, (2) no alternatives other than impoundment were available to ensure the
automobile's protection, (3) the impounding agency had an inventory policy, and (4)
that policy was followed. Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref'd). To determine the reasonableness of impoundment we consider
the following factors: (1) whether someone was available at the scene of the arrest to
whom the police could have given possession of the vehicle; (2) whether the vehicle was
impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle
was locked; (4) whether the detention of the arrestee would likely be of such duration as Byrd v. State Page 2 to require police to take protective measures; (5) whether there was some reasonable
connection between the arrest and the vehicle; and (6) whether the vehicle was used in
the commission of another crime. Josey, 981 S.W.2d at 842.
In making inventory searches, the police are not required to use the least
intrusive means of safeguarding the property. Colorado v. Bertine, 479 U.S. 367, 374-75,
93 L. Ed. 2d 739, 107 S. Ct. 738 (1987); Illinois v. Lafayette, 462 U.S. 640, 647-48, 77 L. Ed.
2d 65, 103 S. Ct. 2605 (1983). The police may inventory even locked automobile trunks
and glove compartments. Bertine, 479 U.S. at 374-75. The authorities are not required to
offer the arrestee a chance to make other arrangements, or to ask him whether he wants
his valuables protected. Id. at 373-74. The police are also not required to independently
investigate possible alternatives to impoundment absent some objectively demonstrable
evidence that alternatives do, in fact, exist. Mayberry v. State, 830 S.W.2d 176, 180 (Tex.
App.—Dallas 1992, pet. ref'd).
In his brief, Byrd does not challenge the fact that he was arrested, that there was
an inventory policy, or that the policy was followed by the officer. See Garza v. State,
137 S.W.3d at 882. He does challenge whether there were other alternatives to
impoundment and the reasonableness of the impoundment.
Byrd was the driver of the vehicle. His brother, Joe, was in the passenger seat.
Byrd was stopped in Waco for expired inspection and registration stickers and having
his front license plate displayed inside the vehicle on his dash, which rendered it
Byrd v. State Page 3 unreadable as required by statute1. When Byrd was pulled over by the officer, he
parked the car in a parking lot of a store. Upon running a search for warrants, the
officer discovered that Byrd had outstanding warrants for DWI and driving with a
suspended license. Byrd was then arrested and placed in the patrol car by the officer.
Further investigation revealed that the vehicle’s owner was, in fact, Byrd’s wife,
who lived in Riesel. Byrd was specifically excluded from the liability insurance policy
on the vehicle. Joe did not have a driver’s license. After the officer determined that Joe
had no outstanding warrants, Joe walked away from the scene with a gas can from the
vehicle. It is the policy of the Waco Police Department that they do not release vehicles
to unlicensed drivers or non-owners of the vehicle. The officers are not allowed to leave
the vehicle unattended without someone to take custody of it.
Upon determining that the vehicle would be impounded, the officer undertook
an inventory search which revealed a rag stuffed in a cup wedged between the driver’s
seat and the center console. When the officer pulled the rag out of the cup, three
baggies filled with what was later determined to be cocaine and several empty baggies
fell out of the rag.
In reviewing the factors used to determine the reasonableness of the
impoundment, the factor we believe is determinative in the instant case is the
availability of someone at the scene of the arrest to whom the police could have given
possession of the vehicle. Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App. 1986).
If a passenger in the car or someone at the scene of the arrest cannot furnish
1The officer determined that the inspection and registration stickers were in fact current after he stopped Byrd, but the license plate was, in fact, improperly displayed. However, Byrd does not complain of the validity of the traffic stop in either the motion to suppress or his brief. Byrd v. State Page 4 identification or a driver's license, it is not improper for the officer to refuse to release
the car to that person. Stephen v. State, 677 S.W.2d 42, 43-44 (Tex. Crim. App. 1984); State
v. Garcia, 801 S.W.2d 137, 141 (Tex. App.—San Antonio 1990, pet. ref'd); see also
Mayberry, 830 S.W.2d at 180. Additionally, because the police are not required to
independently investigate impoundment alternatives, the police were not required to
locate the owner of the store to determine if Byrd’s car could remain in the lot. See
Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston [1st Dist.] 2004, pet ref’d);
Mayberry, 830 S.W.2d at 180. We hold that there was no alternative to impoundment to
ensure the safety of the vehicle, and, therefore, the impoundment was lawful and
reasonable. Thus, the inventory was not an unreasonable search in violation of the
United States and Texas constitutions. We overrule Byrd’s sole issue.
Conclusion
We find that the impoundment of Byrd’s vehicle was lawful, and the inventory
of Byrd’s vehicle taken pursuant to that impoundment was not in violation of either the
United States Constitution or the Texas constitution. Therefore, the trial court did not
err in denying Byrd’s motion to suppress. We affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed October 28, 2009 Do not publish [CR25]
Byrd v. State Page 5