Luis Marroquin v. The State of Texas--Appeal from Co Crim Ct at Law No 8 of Harris County

Affirmed and Memorandum Opinion filed August 7, 2007

Affirmed and Memorandum Opinion filed August 7, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00990-CR

NO. 14-06-00991-CR

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LUIS MARROQUIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause Nos. 1407087 & 1353975

M E M O R A N D U M O P I N I O N

Challenging his misdemeanor offenses of possession of a prohibited weapon and possession of a controlled substance, appellant Luis Marroquin asserts that the trial court erred in denying his motion to suppress. We affirm.

I. Factual and Procedural Background

On January 28, 2006, Houston Police Officer Rafael Pantoja, Sergeant Glenn Riddle, and Detective Roy Swainson were called to investigate the death of a juvenile. Although the juvenile appeared to have died from a drug overdose, the police investigated the death as a possible homicide. During the investigation, the police learned from the juvenile=s brother, Michael Anthony Alvarez, that appellant was on his way to the scene and was a possible suspect or perhaps a material witness.[1] Alvarez explained that he had called appellant to request some more pills Alike those@ that had been sold to the his brother. Appellant agreed to provide them, and when he appeared soon thereafter, the police stopped appellant=s vehicle. They placed appellant in the backseat of a patrol car (without handcuffs) for questioning. Appellant gave Detective Swainson consent to search his vehicle. When Sergeant Riddle approached appellant=s vehicle, he noticed that the center console was open and it contained a pair of brass knuckles and a pill bottle. These items were confiscated, and appellant was arrested.

Appellant was charged by information in cause number 1353975 for possession of a prohibited weapon (brass knuckles), and in cause number 1407087 for possession of a controlled substance (Xanax pills). Appellant pleaded Anot guilty,@ and filed a motion to suppress both items. The trial court denied the motion to suppress, found appellant guilty as charged, and sentenced him to one year confinement, probated, on each offense. Appellant was also assessed a fine of $4,000.00, with $3,250.00 probated, for the prohibited weapon offense.

II. Issues and Analysis

In a single issue, appellant contends that the trial court erred in denying his motion to suppress evidence. Appellant asserts he was illegally detained without probable cause, and that his consent to search was tainted by an illegal detention. We review the trial court=s ruling on a motion to suppress under an abuse of discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned absent an abuse of discretion. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

 Did the trial court err in denying appellant=s motion to suppress evidence because of an illegal detention?

Appellant contends the police illegally detained him without reasonable suspicion or probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution, and article I, section 9 of the Texas Constitution. Therefore, appellant argues, the subsequent search and discovery of the brass knuckles and Xanax pills were Afruits of the poisonous tree@ and inadmissible evidence. We find no merit in appellant=s argument.

In a suppression hearing, the defendant bears an initial burden of rebutting the presumption that the police conduct was proper. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.. App. 1986). He can do so by showing that the search or seizure occurred without a warrant. Id. The burden then shifts to the State to either produce a warrant or prove that the warrantless search or seizure was reasonable. Id. at 9 10.

Not all encounters between police and citizens trigger the protection of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889 (1968). Police are as free as anyone else to ask questions of their fellow citizens. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Interactions between police and civilians are divided into three categories: (1) encounters, (2) investigative detentions, and (3) arrests. See State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000). An officer may stop a suspicious individual briefly Ato determine his/her identity or to maintain the status quo while obtaining further information.@ Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1988). Such encounters are consensual A[s]o long as a reasonable person would feel free >to disregard the police and go about his business.=@ Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991);Hunter, 955 S.W.2d at 104.

A seizure occurs only when the officer, by means of physical force or show of authority, in some way has restrained the liberty of a citizen. Bostick, 501 U.S. at 434, 111 S. Ct. at 2386. The test is whether Ain view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.@ Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988). The dispositive question is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers= requests or otherwise terminate the encounter. Bostick, 501 U.S. at 439, 111 S. Ct. at 2389; State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999).

We first determine whether the police had reasonable suspicion to detain appellant. Thus, we consider whether the officer had reasonable suspicion that some activity out of the ordinary was occurring or had occurred, some suggestion that the detained person was connected with this unusual activity, and that the activity was related to a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). When there has been cooperation between police officers, the cumulative information known to the cooperating officers at the time of the stop is considered in determining whether reasonable suspicion exists. See Martinez v. State, 635 S.W.2d 629, 632 (Tex. App.CAustin 1982, pet. ref=d) (concluding that cumulative information developed into reasonable suspicion to justify a temporary detention).

In this case, the cumulative evidence shows that the police had specific, articulable facts to conclude that appellant may have engaged in criminal activity. There was evidence that appellant may have sold the juvenile some pills the night before he died of a drug overdose. The juvenile=s brother testified that he called appellant to request more pills the morning that he found his brother dead.[2] Alvarez told the police that appellant drove a maroon pickup truck. The police were able to personally corroborate this information when appellant arrived at the scene in a vehicle that matched the description Alvarez had provided. The police stopped appellant=s vehicle a short distance from the scene and detained him because of his possible role in the juvenile=s death. Officer Pantoja testified that he had reasonable suspicion to believe that appellant was a possible suspect, while Sergeant Riddle and Detective Swainson testified that they considered appellant, at the very least, to be a material witness in the investigation.[3] Moreover, appellant was not tracked down, but voluntarily drove to the location at Alvarez=s request to sell him more pills. When appellant arrived, the police placed him in the backseat of a patrol car (without handcuffs) so that they could determine his possible role in the juvenile=s death. Viewing the totality of the circumstances, we conclude the officers had reasonable suspicion to detain appellant. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (concluding detention is reasonable where officer believes suspect has engaged or is engaging in criminal activity; there must be some indication that an unordinary activity is or has occurred, that the suspect is linked to the unusual activity, and that the activity is linked to a crime); Martinez, 635 S.W.2d at 633 (stating that general field investigations of citizens as possible witnesses are not unlawful even though they may involve some detention); see also Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (stating that reasonable suspicion can be based upon information an officer receives from another person); Jackson v. State, 77 S.W.3d 921, 928B29 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (concluding that defendant=s encounter with airport police was consensual and not detention, and thus, encounter did not rise to level of Aseizure@ implicating Fourth Amendment rights; encounter occurred in open area, defendant agreed to speak with officers, officers were dressed in plain clothes and did not display any weapons, and during encounter officers never touched or restrained defendant through use of overt force or through tone of voice).

Having determined that the officers had reasonable suspicion to detain appellant, we now consider whether the search of his vehicle that followed the detention violated appellant=s constitutional rights.

 Did the search of appellant=s vehicle exceed the scope of the valid investigative detention and thus violate his constitutional rights?

The search of appellant=s vehicle was valid on two separate grounds. First, appellant gave consent to search his vehicle to Detective Swainson. Second, when Detective Swainson and Sergeant Riddle approached appellant=s vehicle, Sergeant Riddle saw that the center console was open, and the pill bottle and brass knuckles were in plain view. Appellant contends that the subsequent search of his vehicle was invalid because his consent to search was involuntary and tainted by the allegedly illegal detention, and the State failed to prove that the prohibited articles (brass knuckles and pills) were found in plain view.

Consent to Search

Relying on the multi-factor test outlined in Brick v. State, 738 S.W.2d 676, 678 (Tex. Crim. App. 1987), appellant contends that his consent to search was invalid for the following reasons:

(1) He provided his consent during the period of an illegal detention, and was continually and unlawfully held until he gave consent;

(2) The unlawful detention and unlawful seizure of his vehicle allowed the police to see the interior of his vehicle because they already had seized the keys to his vehicle;

(3) He was detained for no other purpose other than to interrogate him and obtain consent to search his vehicle;

(4) He did not volunteer consent to search; rather, Detective Swainson asked appellant if the police could search his vehicle;

(5) His consent was not in writing, and the police never explicitly informed him of his right to decline the request, and because the police had his keys, he believed that he had to give consent; and

(6) He was detained for the sole purpose of questioning him in the Ahopes@ of developing probable cause or reasonable suspicion to search his vehicle.

Appellant ultimately contends that his consent to search was a fruit of an illegal seizure and prolonged detention. However, we already have determined that the detention was not illegal but was supported by reasonable suspicion. The police officers had not yet completed their investigation of appellant when they asked for consent to search his vehicle. When consent to search is obtained during the scope of a lawful detention, the consent is valid. State v. Cardenas, 36 S.W.3d 243, 247 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d).

The record shows that appellant was detained with reasonable suspicion, and during this detention, appellant gave his consent to search. The circumstances do not indicate that appellant=s consent to search was the product of duress or coercion, or was otherwise involuntary. See Montanez v. State, 195 S.W.3d 101, 106B08 (Tex. Crim. App. 2006); Beverly v. State, No. 01 02 00259 CR, 2002 WL 31941509, at *3 (Tex. App.C Houston [1st Dist.] 2002, no pet.) (not designated for publication) (concluding that driver voluntarily consented to search of his vehicle after traffic stop in response to erratic driving even though police officer requested consent allegedly after the investigation dispelled the suspicion of an intoxicated driver). The police officers= conduct was not illegal; therefore, it is not likely that appellant=s consent was tainted by it. Viewing the record and all reasonable inferences in the light most favorable to the trial court=s ruling, we conclude that appellant=s consent to search was voluntary and valid. However, even if the appellant=s consent to search were invalid, there is another independent basis for denying the motion to suppressCthe prohibited articles were found in plain view.

Contraband in Plain View

A search conducted without a warrant is per se unreasonable unless it falls within one of the specifically defined and well-established exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). Although commonly classified as an exception to the warrant requirement, the Aplain view@ doctrine is not truly an exception to the warrant requirement because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). If the article is in plain view, neither seeing it nor seizing it would involve any invasion of privacy. Id. The plain view doctrine requires only that (1) law enforcement officials have a right to be where they are and (2) it be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity. Id. In determining whether the officer had a right to be where he was, we must be assured that Athe officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.@ Id..

The evidence shows that when Sergeant Riddle approached the vehicle, he immediately noticed that the center console was open. The pill bottle and brass knuckles were clearly visible. Based on his training and experience, he immediately recognized the brass knuckles as a prohibited weapon and the pills as Xanax. Accordingly, even if appellant=s consent were tainted, the items were nevertheless discovered in plain view. The search and seizure of appellant=s vehicle were reasonable under the plain view doctrine.

The trial court did not abuse its discretion in denying appellant=s motion to suppress the evidence. We overrule appellant=s sole issue on appeal and affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed August 7, 2007.

Panel consists of Justices Anderson, Fowler, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] There is a conflict in the police officers= testimony as to whether appellant was actually considered a possible suspect at this time, or if he was only a material witness.

[2] Appellant states that Alvarez=s testimony is inconsistent because during cross-examination, Alvarez stated that while he did not recall exactly what he exactly said to appellant during the telephone call, he did not tell appellant that he wanted more pills like the ones that were sold to his brother, but merely requested that appellant come to his home. Though there may be inconsistencies in Alvarez=s testimony, it is the trial court=s function to evaluate and determine the weight of the testimony at the motion to suppress hearing. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). The trial court, as the trier of fact, could have chosen to believe some, but not all of Alvarez=s testimony.

[3] Though the officers= testimony conflicts as to whether appellant was a suspect or material witness, the trial court was free to believe any or all of this evidence. The evidence shows that the officers collectively had information that appellant was a possible suspect at the time of the initial stop, and thereafter, at the very least, was considered a material witness. Because the officers= testimony clearly establishes that the officers had reasonable suspicion to detain appellant, and because the trial court could have chosen to disbelieve all or any part of the evidence presented, the record supports the trial court=s conclusion that reasonable suspicion existed.