Mario Priego v. The State of Texas--Appeal from 34th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MARIO PRIEGO, ) No. 08-04-00314-CR

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Appellant, ) Appeal from

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v. ) 34th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20030D03772)

O P I N I O N

Appellant, Mario Priego, appeals his conviction of possession of more than four but less 200 grams of cocaine. Following the denial of a motion to suppress, Appellant waived his right to a jury trial and entered a negotiated plea of guilty. In accordance with the plea bargain, the court assessed punishment at five years imprisonment, probated for five years, and a $2,000 fine. We affirm.

LEGALITY OF THE

DETENTION AND SEARCH

In his sole issue for review, Appellant contends that the trial court erred in denying his motion to suppress because his detention and search were unreasonable in violation of the Fourth Amendment. //

Standard of Review

We review a trial court s ruling on a motion to suppress based upon an alleged lack of probable cause or reasonable suspicion using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--El Paso 2002, pet. ref d). Under this standard, we afford almost total deference to the trial court s express or implied determination of historical facts and review de novo the court s application of the law pertaining to search and seizure to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche, 10 S.W.3d at 327; Krug, 86 S.W.3d at 765. As there were no explicit findings of historical facts by the trial court, the evidence must be viewed in a light most favorable to the trial court s ruling. Carmouche, 10 S.W.3d at 327.

Relevant Facts

Guadalupe Ruiz, a detective assigned to the narcotics division of the El Paso Police Department, received separate anonymous tips that two individuals, Appellant and Arturo Carmona,

were dealing drugs from the Off Sides Bar. The caller provided Ruiz a description of Appellant. Ruiz, working undercover, went into the bar on three occasions but did not find an individual matching the description. On July 30, 2003, approximately two weeks after he first received the anonymous tips, Ruiz and another detective returned to the Off Sides Bar. Ruiz observed an individual, later identified as Appellant, who matched the description provided by the anonymous tipster. A female patron walked over to Appellant and they went outside for a minute before returning. Once back inside of the bar, the female patron and Appellant did not have any further contact. In Ruiz s experience, this behavior was consistent with and indicated narcotics activity. At this point, Ruiz called other police officers and requested that they conduct a bar check. At approximately 9:20 p.m., Officer Gabriel Peralta and other police officers received a request from the narcotics division that a bar check be conducted at the Off Sides Bar. Peralta and the other officers, who were checking the identification of all patrons, were given instructions to look for Appellant. Based on the information provided, Peralta located Appellant inside. Peralta asked Appellant for a driver s license or current ID card. When Appellant said that he did not have any identification with him, Peralta asked Appellant his name. Appellant stated his name and showed Peralta a piece of jewelry with his last name on it. Peralta asked Appellant to step outside because he could not hear over the music in the bar. Once outside, Appellant complied with Peralta s request to provide his full name, date of birth, address, and social security number. Peralta told Appellant that he was going to do a pat-down search and asked if Appellant had any sharp objects, weapons, narcotics, or anything illegal that might harm or alarm him. Appellant responded that he had a cigarette box in his pocket containing cocaine. Peralta patted down Appellant s pocket and removed the cigarette box, finding a diamond fold of cocaine inside. Peralta then placed Appellant under arrest for possession of a controlled substance and advised him of his rights. Pointing to a gray Cadillac, Appellant asked Peralta what would happen to his vehicle. Peralta told Appellant that the car would be impounded because it could not be left at the bar and he refused Appellant s request to release the car to a family member. Appellant orally consented to a search of the vehicle before it was impounded. A K-9 unit searched the car and located several bindles of cocaine.

Raul Bertolli was with Appellant on the night of the arrest. Uniformed police officers approached them and asked for ID. After running a warrant check, the officers asked Appellant to step outside. An officer returned to the table and asked Bertolli to go outside as well. The officer asked Bertolli if he had anything illegal in his pockets, and Bertolli responded that he did not. The officer, without asking for consent, then searched Bertolli s pockets. Bertolli was allowed to go back inside, but was brought outside a second time and asked how he knew Appellant. He said Appellant was just a friend, and the officers left him outside with Appellant, who was already in handcuffs. Bertolli did not hear the officers ask Appellant for consent to search his car, but he admitted that it could have occurred while he was inside the bar. Bertolli recalled that Appellant went outside with a woman named Nancy to get change. Bertolli did not believe he was free to leave because officers were guarding the doors.

Appellant also testified at the suppression hearing. He arrived at the bar first and was then joined by Armando and Raul Bertolli, as well as Nancy when she was finished bartending. One officer came into the bar, followed by two others, but the first officer went straight to Appellant and asked him for his ID. When Appellant said he didn t have any ID, the officer asked him to step outside. Once outside, the officer told him to put his hands on the wall and he searched him without asking for consent. Appellant did not consent to the search of his person. The officer took Appellant s car keys and pack of cigarettes. Appellant did not tell the officer that he had cocaine in his cigarette pack. The officer laughed when Appellant asked if he could release his car to his sister. Appellant did not consent to a search of his car. Appellant felt that he could not leave when the officers asked him for ID in the bar and when they patted him down outside.

The Initial Detention

Appellant first argues that the officers lacked reasonable suspicion to detain him. An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. A reasonable-suspicion determination is made by considering the totality of the circumstances. Id. at 492-93. When several officers are working together, the information known collectively by all the officers is considered. Young v. State, 133 S.W.3d 839, 841 (Tex.App.--El Paso 2004, no pet.).

While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention. Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); Davis v. State, 989 S.W.2d 859, 863 (Tex.App.--Austin 1999, pet. ref d). Normally, a police officer must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified. Davis, 989 S.W.2d at 863. An officer s prior knowledge and experience and his corroboration of the details of the tip may be considered in giving the anonymous tip the weight it deserves. Id. at 864.

The corroboration of details that are easily obtainable at the time the information is provided and which do not indicate criminal activity will not lend support to the tip. Id. An accurate description of a subject s readily observable location and appearance will help the police correctly identify the person whom the tipster means to accuse, but it does not show that the tipster has knowledge of concealed criminal activity. Florida v. J.L., 529 U.S. 266, 272, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). Here, the detectives observation of Appellant in the Off Sides Bar did not provide any basis for crediting the tipster s suspicion that Appellant was dealing drugs there. But other observations supported the tip. Ruiz observed a woman approached Appellant and went outside with him. The woman and Appellant returned in only a minute and did not have any further contact. In Ruiz s experience as a narcotics detective, this behavior was consistent with what he termed narcotics activity. Appellant s conduct and the inferences that experienced officers could draw from that conduct gave the officers reason to credit the anonymous tip. The totality of the circumstances gave the officers a reasonable, articulable basis for suspecting that Appellant was dealing drugs in the bar, and therefore, a brief investigative detention was reasonable. Officer Peralta s request that Appellant produce his ID was a minimally intrusive manner of further verifying the tip. Because Appellant did not have identification and the officer had difficulty hearing Appellant because of the music, he asked him to step outside to answer questions regarding his identity. These actions were reasonable under the Fourth Amendment.

The Search of Appellant s Pocket

Appellant next contends that the pat-down search for weapons was not justified. A peace officer who detains a person briefly for investigation may conduct a limited pat-down search of that person if the official has a reasonable belief that the person detained poses a threat to the official s safety or the safety of others. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968). Peralta, who knew Appellant was being investigated for suspected narcotics activity in the bar, informed Appellant of his intent to conduct a pat-down search and asked whether he had any dangerous items or contraband on his person. Appellant said yes and admitted to Peralta that he had cocaine inside of a cigarette box in his pocket. At this point, Peralta had probable cause to search Appellant s pocket and seize the diamond fold. See Nuttall v. State, 87 S.W.3d 219, 223 (Tex.App.--Amarillo 2002, no pet.)(where defendant admitted to officer that he had baggie of drugs on his person, probable cause existed to justify search). Thus, the search of Appellant s person was not conducted pursuant to a pat-down search but rather was done based on probable cause.

The Search of Appellant s Car

Finally, Appellant complains that he did not consent to a search of his car. The trial court had before it conflicting evidence as to whether Appellant consented to a search of his car. The court apparently resolved that conflict in favor of the State. Under the applicable standard of review, we are required to give deference to the court s determination of historical fact. A consensual search is an exception to the requirement that a search be based upon a warrant supported by probable cause. Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003); Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). Even if Appellant had not consented, the search of Appellant s car was a valid search incident to arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981); State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999). We overrule the sole issue for review and affirm the judgment of the trial court.

September 15, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)