MELISSA ANNETTE BLANTON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed June 30, 1994.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-93-00489-CR
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MELISSA ANNETTE BLANTON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 283rd District Court
Dallas County, Texas
Trial Court Cause No. F92-34496-T
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O P I N I O N
Before Justices Lagarde, Burnett, and Maloney
Opinion By Justice Lagarde
        Melissa Annette Blanton appeals her conviction for possession of cocaine. The trial court found her guilty and sentenced her to twelve years' imprisonment. Appellant brings two points of error contending that the trial court erred in overruling her motion to suppress because (1) the State was unable to prove that appellant's arrest was made pursuant to lawful arrest warrants; and (2) the police lacked probable cause to conduct a warrantless canine search of appellant's hotel room. We overrule the points and affirm the trial court's judgment.
FACTUAL BACKGROUND
        Officers Lee Orr and Cameron McKay with the City of Mesquite police department were flagged down one morning by the manager of a motel. Based on his conversation with the manager, Orr called in officer David Bowers for backup and contacted his dispatcher to determine whether appellant had any outstanding arrest warrants. The dispatcher told Orr that warrants appeared to exist on appellant. When Bowers arrived, Orr, Bowers, and McKay went to appellant's room. One of the officers knocked on the door. The door opened and appellant stood in the doorway. Orr told appellant that they would like to speak to her about some warrants for her arrest. The officers entered the room after being invited in. Two men were in the room with appellant. Orr saw a three-to-four-inch piece of coathanger singed at one end sitting on a table in the room. Orr testified that, based on his experience, he believed this wire had been used as a tamping rod in smoking crack cocaine. Orr then requested a canine unit. While waiting for the canine unit, the dispatcher confirmed the arrest warrants for appellant. The canine unit arrived within a few minutes.
        Officer Max Barker was the dog's handler. Barker had Orr remove everyone from the room so that the dog would not be distracted. The dog alerted to the bed, where they found a crack-smoking pipe under the mattress. The dog also alerted to a tray on the open shelf of a nightstand. On the tray was a single-edge razor blade and a small "ziplock" plastic bag containing hard white substance later determined to be cocaine. FN:1
        Midway through the State's presentation of its case, appellant informed the trial court that she had filed a motion to suppress. The prosecutor and the judge told appellant that they were unaware of the motion. The prosecutor explained to the court that he did not have certified copies of the arrest warrants because he was unaware that appellant challenged the legality of the arrest. The trial court told appellant that he would consider the motion to suppress. After the State rested, the trial court heard argument on the motion and overruled it.
        Alonzo Bennett, one of the men in the room when the police arrived, testified for the defense. He stated that he had gone to appellant's room that morning to retrieve some clothes. Larry Ricardo opened the door and let him in. Appellant was asleep on the bed. Bennett sat on the edge of the bed and watched television. Ricardo stood next to the nightstand. When they heard a knock on the door, Bennett saw the police through the peephole. Ricardo woke up appellant and told her the police were at the door. Appellant cracked the door and asked the policemen what they wanted, and they told her they had a warrant for her arrest. Appellant told them she needed to put on some clothes, but the policemen stopped her and forced their way into the room. One of the officers saw the wire. He told Bennett and Ricardo to sit at the table. The officer then walked around the room and found the tray. He brought the tray to the table and asked, "What is this?" Ricardo told the officer that the drugs belonged to him. The officer then requested a canine unit. The dog did not alert to anything in the room.
        Appellant did not testify at the guilt-innocence phase, but she did testify at the punishment phase. Appellant stated that she did not know how the drugs got into her motel room. She did not know how Ricardo and Bennett got into her room because she did not let them in. She awoke from Ricardo shaking her and telling her the police were outside the room.
        
MOTION TO SUPPRESS
Standard of Review
        At a suppression hearing, the trial judge is the sole judge of the witnesses' credibility and the weight given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge may accept or reject any or all of the witnesses' testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 2914, overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991). We do not engage in our own factual review. We only consider whether the trial court improperly applied the law to the facts. See Romero, 800 S.W.2d at 543. Absent a showing of an abuse of discretion, we do not disturb the trial court's findings. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). We view the evidence in the light most favorable to the trial court's ruling. Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App.), cert. denied, 479 U.S. 885 (1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n.3 (Tex. Crim. App. 1988). If the evidence supports the trial court's ruling, we do not disturb that ruling. Johnson, 803 S.W.2d at 287. We must uphold the trial court's ruling if it can be upheld on any valid theory, regardless of whether the State argued it in the trial court or on appeal. See Lewis v. State, 664 S.W.2d 345, 347 (Tex. Crim. App. 1984) (disposing of motion to suppress on grounds of appellant's lack of standing despite fact that State did not argue lack of standing at trial or on appeal).
Burden of Proof on a Motion to Suppress
        When a defendant seeks to suppress evidence on the basis of the right to be free of unreasonable search and seizure, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). In Russell, the court of criminal appeals further explained the burden of proof as follows:
As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.
        Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. If the State produces evidence of a warrant, the burden of proof is shifted back to the defendant to show the invalidity of the warrant. If the State is unable to produce evidence of a warrant, it must prove the reasonableness of the search or seizure.
 
Russell, 717 S.W.2d at 9-10 (citations and footnote omitted). However, the State is not required to prove the propriety of the search beyond a reasonable doubt. Lalande v. State, 676 S.W.2d 115, 117 (Tex. Crim. App. 1984).
Analysis
        In his first point of error, appellant contends that the trial court erred in overruling appellant's motion to suppress the cocaine because the State did not prove that appellant was arrested pursuant to lawful arrest warrants. Appellant argues that the invalidity of the arrest warrants resulted in the officers not being lawfully on the premises when they found the tamping rod and cocaine.
        The record shows that the officers entered the room with appellant's consent. Bowers testified that the occupants of the room "invited us in." Orr testified, "We asked [appellant] if we could come in and explain the situation to her, and she allowed us entry." Because the officers were invited into the motel room, they were lawfully on the premises when they discovered the tamping rod and cocaine in plain view. See Sutton v. State, 519 S.W.2d 422, 424 (Tex. Crim. App. 1975); see also Stewart v. State, 640 S.W.2d 643 (Tex. App.--Houston [14th Dist.] 1982, no pet.). Thus, the lawfulness of the arrest warrants is irrelevant. We overrule appellant's first point of error.
        In his second point of error, appellant contends that the trial court erred in overruling the motion to suppress because the police lacked probable cause to conduct a canine search. A dog "sniff" is not a search. United States v. Place, 462 U.S. 696, 707 (1983); Crockett v. State, 803 S.W.2d 308, 310 n.5 (Tex. Crim. App. 1991). The dog merely amplifies the human olfactory capacities. United States v. Thomas, 787 F. Supp. 663, 684 (E.D. Tex. 1992), aff'd, 983 F.2d 1062 (5th Cir. 1993).
        Texas law allows seizure of items observed in plain view if: (1) the initial intrusion is proper, and (2) it is "immediately apparent" to police that they have evidence before them, i.e., probable cause to associate the property with criminal activity. State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991). The discovery of evidence does not have to be "inadvertent." Horton v. California, 496 U.S. 128, 129 (1990); Haley, 811 S.W.2d at 599. In this case, the initial intrusion by the police was proper because they were invited in. Further, when the dog alerted to the presence of an illegal drug on the tray, it was immediately apparent to the police that the item was contraband and subject to seizure. The cocaine was on a tray in open, plain view. The police did not have to lift a mattress to retrieve the material. See supra note 1. Thus, the seizure of the cocaine was pursuant to the plain view exception to the warrant requirement. See Haley, 811 S.W.2d at 599-600.
        Appellant may be arguing that the plain view exception to the warrant requirement does not apply because the officer with the dog was not legally on the premises at the time he found the cocaine because he was not one of the officers originally invited into the room. However, when an officer has reasonable, articulable suspicions that a suspect is involved in criminal activity, the officer may temporarily detain that person for the purpose of an investigation. Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983). In this case, when Orr found the wire he believed had been used as a tamping rod in a crack cocaine pipe, he had reasonable, articulable suspicions that the people in the motel room, including appellant, were connected with criminal activity: possession of cocaine. Cf. Cammack v. State, 808 S.W.2d 253, 257 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd) (presence of drug paraphernalia and knowledge that the defendant had history of drug trafficking gave probable cause to search for illegal drugs). Orr temporarily detained appellant, Bennett, and Ricardo and conducted a limited investigation by calling in the canine unit. See Place, 462 U.S. at 707 (dog sniff "investigative technique is much less intrusive than a typical search"). Barker and his dog arrived within a few minutes and found the cocaine in plain view on a tray on an open shelf of the nightstand. Thus, the cocaine was found pursuant to a reasonable, limited investigative detention.
        Appellant argues that this case is indistinguishable from the Ninth Circuit case United States v. DiCesare, 765 F.2d 890 (9th Cir.), opinion amended, 777 F.2d 543 (9th Cir. 1985). In that case, the police returned the defendant's child to the defendant's home. On entering the home, the police saw a note pad containing figures consistent with cocaine trafficking and a utility bill addressed to a codefendant. The police secured the premises, questioned the occupants, and sent for a canine unit. Id. at 898. Nearly two hours later, the canine unit arrived and "alerted" to a green suitcase. See id. at 894. The police detained the occupants while they obtained a search warrant based in part on the dog's alerting to the green suitcase. Id. at 898. Six hours after their initial entry, the police executed the search warrant and recovered $2000 in cash. The suitcase did not contain contraband. Id. The Ninth Circuit held that the seizure of the home preceding the entry of the canine unit was not supported by probable cause. Id. at 899. In this case, appellant did not argue to the trial court that the police lacked probable cause to seize the hotel room prior to the entry of the canine unit. Accordingly, appellant has failed to preserve this argument for appellate review. See Frierson v. State, 839 S.W.2d 841, 852 (Tex. App.--Dallas 1992, pet. ref'd). Accordingly, DiCesare is not applicable.
        We overrule appellant's second point of error. We hold that the trial court did not err in overruling appellant's motion to suppress.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
930489F.U05
 
FN:1 In his brief, appellant states, "Ultimately, some cocaine was found under the mattress." Appellant has misread the statement of facts. The record is clear--the police found a crack pipe under the mattress; they found the cocaine on the tray on an open shelf on the nightstand.
File Date[06-30-94]
File Name[930489F]