Shawn Patrick Bryan v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00189-CR

__________

SHAWN PATRICK BRYAN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12,621

O P I N I O N

Shawn Patrick Bryan entered an open plea of guilty to the offense of possession of less than one gram of methamphetamine, a state jail felony. See Tex. Health & Safety Code Ann. ' 481.115(b) (Vernon 2003). The trial court convicted appellant of the offense and assessed his punishment at confinement for twenty months and a fine of $2,500. The confinement portion of the sentence was suspended, and appellant was placed on community supervision for four years. We reverse and remand.

In his sole issue on appeal, appellant contends that the contraband should have been suppressed because it was discovered during an unreasonable detention and search. Appellant argues that the search and the continued detention of appellant were unreasonable because the officer had completed the purpose of the traffic stop at the time he asked appellant for consent to search. Appellant also asserts that the pat-down search was unreasonable and was performed without reasonable suspicion. Appellant filed a pretrial motion to suppress. The trial court held a hearing and denied the motion.

In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.[1] Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Id.

Deputy Johnny McKee testified that, shortly after 8:00 p.m. on February 28, 2004, he stopped appellant for speeding and issued a warning citation to appellant. After completing the traffic stop for speeding, at which time appellant was free to leave, Deputy McKee asked appellant for consent to search his vehicle. Appellant consented to the search of his pickup. Deputy McKee then advised appellant that he was going to pat appellant down for safety purposes. During the pat-down, Deputy McKee felt something Asquishy@ that felt like plastic in appellant=s pants pocket. He asked appellant what it was, and appellant responded that it was money and some other stuff. When the deputy asked appellant if he could see the items, appellant took some items out of his pocket and put them in his pickup. After appellant had finished putting the items in his pickup, Deputy McKee noticed a plastic bag in appellant=s hand and said, AThat=s what I=m looking for.@ Appellant then threw the plastic bag over the pickup and into the Abar ditch.@ After taking appellant down and placing him in custody, Deputy McKee retrieved the plastic bag, which appeared to contain Acrystal meth, ice.@

In addition to the testimony of Deputy McKee, the trial court viewed video of the events beginning when Deputy McKee was standing at the door asking for appellant=s consent to search. We have also reviewed the video. The video shows that appellant consented to the search of his vehicle and that he got out of his pickup. When appellant got out, Deputy McKee advised him that he was going to check for weapons. The deputy then felt appellant=s pants pocket and asked, AWhat=s at the bottom?@ Appellant responded, AChange.@ Deputy McKee said, ANo, there=s something else.@ Appellant then took some items out of his pocket and dropped something. Deputy McKee responded affirmatively when appellant asked him if he should put it in the pickup. Appellant then leaned into the pickup. When appellant raised back up, he started showing the deputy some papers that had been in his pocket, but Deputy McKee said, ALet me see this hand.@ Then Deputy McKee said, AThat=s what I=m looking for.@ Appellant then threw something over the pickup and into the ditch, and Deputy McKee took him to the ground saying, ABuddy, you don=t f---ing do that to me. You hear me?@ Shortly after Deputy McKee retrieved the baggie from the ditch, another officer arrived on the scene. Deputy McKee told that officer that he could feel baggies in appellant=s pocket and that Deputy McKee Ahad [appellant] empty his pocket.@

Appellant relies on Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997), to support his contention that, once the reason for the detention has been satisfied, the detention may not be used as a fishing expedition for unrelated criminal activity. Davis is distinguishable from this case because it involved a continued detention and search without consent, whereas this case involves a consensual search. After the purpose of a traffic stop has been accomplished, a police officer may ask for consent to search a vehicle; however, if consent is refused, the officer may not detain the occupants or vehicle further unless reasonable suspicion of some criminal activity exists. Magana v. State, 177 S.W.3d 670, 673 (Tex. App.CHouston [1st Dist.] 2005, no pet.); Leach v. State, 35 S.W.3d 232, 235-36 (Tex. App.CAustin 2000, no pet.); Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); see Ohio v. Robinette, 519 U.S. 33 (1996). If consent is given voluntarily, a search incident to that consent is not unreasonable. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). In this case, appellant does not challenge the voluntariness of his consent. Because the officer requested and obtained appellant=s consent to search the vehicle, we hold that appellant was not unreasonably detained.

Appellant also contends that the pat-down search of his person was unreasonable because Deputy McKee could articulate no facts to support a suspicion that appellant was armed. A pat-down search for weapons is permissible 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. Terry v. Ohio, 392 U.S. 1, 24 (1968); O=Hara v. State, 27 S.W.3d 548, 550-51 (Tex. Crim. App. 2000). The pat-down must be limited to that which is necessary for the discovery of weapons. Terry, 392 U.S. at 25-26. In determining whether a pat-down search was justified, the issue is whether a reasonably prudent person would have been warranted under the circumstances in believing that his safety or that of others was in danger. Terry, 392 U.S. at 27; O=Hara, 27 S.W.3d at 551. The determination turns on an objective assessment of the officer=s actions and does not depend on the officer=s actual state of mind. O=Hara, 27 S.W.3d at 551.

The record from the hearing on the motion to suppress shows that Deputy McKee testified that he had no reason to believe appellant was armed and dangerous and that he did not suspect that appellant had a weapon. Rather, Deputy McKee testified that he suspected appellant was involved in some type of Aillegal drug activity.@ Deputy McKee=s state of mind, however, does not determine whether the pat-down was justified. The question is whether a reasonably prudent person would be warranted in believing that he or others were in danger.

The video shows that Deputy McKee advised appellant that, for Asafety@ purposes, he was going to check appellant for weapons. However, in neither his testimony nor at the scene did Deputy McKee articulate any justification for believing that appellant was armed and dangerous. Furthermore, the video does not reveal anything happening prior to the pat-down that would warrant a reasonably prudent person to be concerned for his safety or that of others. All it shows is Deputy McKee standing outside appellant=s pickup door with a flashlight while asking for consent to search the vehicle. Appellant responded that he did not mind, and he got out of his pickup. Based upon the record before us, we are constrained to hold that there is nothing indicating that a reasonably prudent person would have been warranted under the circumstances in believing that his safety or that of others was in danger.

Furthermore, we note that appellant abandoned the contraband by throwing the baggie into the ditch and that the Fourth Amendment does not protect property that has been voluntarily abandoned. See Abel v. United States, 362 U.S. 217, 241 (1960). When officers seize property that has been voluntarily abandoned, no violation of the Fourth Amendment occurs. Hawkins v. State, 758 S.W.2d 255, 257 (Tex. Crim. App. 1988). Voluntary abandonment occurs if the defendant intended to abandon the property and the decision to abandon the property was not induced by police misconduct. Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1996); Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1986). In this case, appellant=s abandonment of the contraband was not voluntary as it was induced by police misconduct: an unjustified pat-down. See Comer, 754 S.W.2d at 658-59. Accordingly, we hold that the trial court erred by failing to grant appellant=s motion to suppress. Appellant=s issue is sustained.

The judgment of the trial court is reversed, and the caused is remanded.

JIM R. WRIGHT

CHIEF JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]We note that the trial court made no findings of fact or conclusions of law and that neither party requested them. Consequently, we will Aimpl[y] the necessary fact findings that would support the trial court=s ruling if the evidence (viewed in the light most favorable to the trial court=s ruling) supports these implied fact findings.@ State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see State v. Cullen, 195 S.W.3d 696, 700 (Tex. Crim. App. 2006).