Kevin Dewayne Pagan v. State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed June 14, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00206-CR

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KEVIN DEWAYNE PAGAN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12,745

O P I N I O N

Kevin Dewayne Pagan pleaded guilty to the state jail felony offense of possession of methamphetamine in the amount of less than one gram. The trial court sentenced him to twenty-two months confinement in a state jail facility and a $2,000 fine. We reverse and remand.

Background Facts

Appellant was indicted for possession of methamphetamine in the amount of less than one gram. Appellant filed a motion to suppress the evidence seized at the traffic stop asserting that his constitutional and statutory rights were violated under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; Article I , section 9 of the Texas Constitution; and Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). At the hearing on appellant=s motion to suppress, Officer Michael Don Stoner testified that he observed appellant driving at a high rate of speed and failing to stop at a stop sign. Officer Stoner initiated a traffic stop. Officer Stoner testified that he smelled an odor of alcohol on appellant=s breath and that appellant admitted to having a few beers. Officer Stoner testified that he obtained appellant=s consent to search the vehicle for open containers of alcohol. During the search, he found a cigarette package with a syringe sticking out of it. Officer Stoner testified that, as he approached appellant with the cigarette package, appellant took off running. Officer Stoner testified that he looked inside the cigarette package and that, next to the syringe, he saw a plastic bag containing a white powdery substance, which was later determined to be methamphetamine. After the hearing, the trial court denied appellant=s motion to suppress.

Issue on Appeal

In a sole issue, appellant contends that the trial court erred in denying his motion to suppress evidence seized from inside the vehicle he was driving.

Standard of Review

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). 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. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85 (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 and sustains the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case. 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. Myers v. State, 203 S.W.3d 873, 879 (Tex. App.CEastland 2006, pet. ref=d). A question turns on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998).

Consent to Search

Appellant argues that Officer Stoner exceeded the scope of the consent to search by seizing and looking inside the cigarette package. Consent to search operates as an exception to the Fourth Amendment=s warrant requirement. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997); Myers, 203 S.W.3d at 886. A suspect may limit the scope of the search to which he consents. Florida v. Jimeno, 500 U.S. 248, 251 (1991); Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The scope of the consent is defined by what a typical reasonable person would have understood by the exchange between the officer and the suspect. Simpson, 29 S.W.3d at 330. Absent an explicit limitation by the person, consent to search inside a vehicle includes consent to search containers that could contain the object of the search. Jimeno, 500 U.S. at 251; Vargas v. State, 18 S.W.3d 247, 254 (Tex. App.CWaco 2000, pet. ref=d).

In this case, the consent to search was limited to the search of the vehicle for open containers. Officer Stoner testified that he only wanted to search the vehicle for open containers because of the smell of alcohol on appellant=s breath. Appellant testified that he understood the search to be only for open containers of alcohol. Officer Stoner testified that he looked inside the center console and discovered a cigarette package bound together with the syringe sticking out of the top of it. He further testified that the center console was large enough to hold an open container of alcohol. Appellant did not limit his consent to exclude the compartments in the vehicle. Officer Stoner did not exceed the scope of the search when he looked in the center console.

Officer Stoner seized the cigarette package when he removed it from the vehicle. See Arizona v. Hicks, 480 U.S. 321, 324-25 (1987). Officer Stoner testified that, before looking inside the cigarette package, he approached appellant with the package and asked, What=s this? Appellant fled. Officer Stoner then looked inside the cigarette package and discovered a plastic bag with a white powdery substance, which was later determined to be methamphetamine. Appellant=s consent did not extend to the cigarette package. An open container of alcohol could not fit inside a cigarette package. Therefore, it was not proper for Officer Stoner to seize and search the cigarette package based on appellant=s consent as an exception to the Fourth Amendment.

Plain View Doctrine

The State argues that, once Officer Stoner saw the syringe, he had probable cause to seize the cigarette package. The trial court denied appellant=s motion to suppress because of his consent. The State initially stated in its brief that it agreed with this finding but then briefed the issue of probable cause. This is relevant only to the plain view doctrine. We will, therefore, consider whether the seizure was justified on this alternative basis.

The plain view doctrine allows officers to seize evidence in plain view without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). When an item can be observed and seized without involving any invasion of privacy, it is in plain view. Texasv. Brown, 460 U.S. 730, 738-39 (1983); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). In order to seize an item in plain view, an officer must have probable cause to believe that the object is evidence of a crime. Hicks, 480 U.S. at 326; Williams v. State, 743 S.W.2d 642, 644 (Tex. Crim. App. 1988). A police officer has probable cause to seize an item if the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime. Brown, 460 U.S. at 742; Waugh v. State, 51 S.W.3d 714, 717 (Tex. App.CEastland 2001, no pet=n). For the plain view doctrine to apply, three requirements must be satisfied: (1) the officer must have a prior justification or otherwise properly be in a position from which he can view the area; (2) the discovery of the incriminating evidence must be inadvertent; and (3) it must be immediately apparent to the officer that the item may be evidence of a crime, contraband, or otherwise subject to seizure. Coolidge, 403 U.S. at 465 70; White v. State, 729 S.W.2d 737, 739 (Tex. Crim. App. 1987).

In this case, Officer Stoner was justified in searching the vehicle and the center console because of appellant=s consent, and he inadvertently discovered the cigarette package and syringe. Officer Stoner testified that he immediately saw the syringe sticking out of the end of the package. He further testified that, when he observed the cigarette package with the syringe sticking out of it, he did not observe anything that looked like methamphetamine. Officer Stoner testified that a syringe that is brand new and has not been used for drugs is not illegal. He also testified that he could not tell if the syringe had been used for drugs just by looking at it. Thus, there was no evidence that it was immediately apparent to Officer Stoner that the syringe was illegal. [T]he >plain view= doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Coolidge, 403 U.S. at 466-67. Because Officer Stoner did not have probable cause at the time he seized the cigarette package, the removal and further search of the cigarette package was not justified. The trial court erred in denying appellant=s motion to suppress. We sustain appellant=s issue on appeal.

Conclusion

We reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

RICK STRANGE

JUSTICE

June 14, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange. J.