George Casarez (Casares) v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00294-CR
George CAZARES,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8074
Honorable Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 31, 2003

AFFIRMED

George Cazares was found guilty of the offense of possession of chemicals with intent to manufacture a controlled substance. The trial court sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice along with a $1,000 fine. On appeal, Cazares contends the trial court erred in denying his motion to suppress evidence, which, he argues, was illegally seized in violation of the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. We disagree and affirm the judgment of the trial court.

Factual Background

A SWAT team from the Bexar County Sheriff's Department arrived at a residence with an arrest warrant for a subject (other than Cazares) at that location. As they approached the residence, they saw a pickup truck in the driveway with the door open and Cazares sleeping in the front seat. Deputy Gary Spires asked Cazares to keep his hands up and to step out of the truck. Cazares complied and the officers patted him down for weapons. The officers handcuffed and detained Cazares while Deputy Spires ran a search to identify him. According to Cazares's drivers license, he did not live at this residence. The search revealed that Cazares had active warrants including a parole violation warrant. At that point, SWAT officers took Cazares into custody and Deputy Spires went back to the truck to look inside through the open door.

Upon looking in the truck, Deputy Spires saw what appeared to be scales with burned residue, which led him to think it was a type of narcotic residue. Deputy Spires retrieved his canine partner, Pepper, to do a free air sniff around the car. Pepper indicated an odor of narcotics as she scratched at the area where the scale was located. Deputy Spires removed the scale from the truck whereupon Pepper gave a final response to the scale's narcotic odor. At Spires' command, Pepper searched the interior of the extended cab truck and sniffed at a black gym bag. Spires removed the bag from the truck for Pepper to adequately inspect it and she gave a final response indicating an odor of narcotics. The officers found several glass jars containing a white, thick, milky substance and other items such as crystal iodine, Red Devil Lye, and a bottle of Heat in the bag. The field test showed a presumptive positive reaction for methamphetamines. The officers took custody of the evidence and arrested Cazares not only for the outstanding warrant, but also for the narcotics that were recovered. Cazares filed a motion to suppress the recovered narcotics, which the trial court denied.

Standard of Review

Generally, the trial court's decision to admit evidence is reviewed under an abuse of discretion standard. See State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.--San Antonio 2000, pet. ref'd). During a hearing on a motion to suppress evidence, "the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Thus, reviewing courts should give almost total deference to a trial court's findings of fact that are supported by the record, especially those fact findings that are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Oliver, 29 S.W.3d at 191. The reviewing court should also give almost total deference to the trial court's application of law to facts, known as "mixed questions of law and fact," that are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89; Oliver, 29 S.W.3d at 191. However, when such "mixed questions of law and fact" are not based on credibility and demeanor, the appellate court may apply a de novo standard of review. Id.

When the trial court fails to make findings of fact, "we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." Ross, 32 S.W.3d at 855. Furthermore, if the reviewing court finds that "the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained." Id. at 856.

Investigative Detention/Arrest and The Attenuation Doctrine

Cazares argues that when the officers initially detained him they actually placed him under arrest since his freedom of movement was restrained, which was unlawful since they lacked probable cause to do so. Therefore, Cazares claims, the narcotics evidence should not be admitted in evidence since the officers seized it in violation of the law. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2003) (evidence seized in violation of the law may not be admitted in evidence in a criminal trial against the accused).

Under Texas law, a person is under arrest when the person has been placed under restraint or taken into custody by an officer. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977). Cazares was handcuffed while the officers ran an identity search, but "[t]here is no bright-line test providing that mere handcuffing is always the equivalent of an arrest." Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002). When analyzing the reasonableness of an investigative detention "'common sense and ordinary human experience must govern over rigid criteria.'" Id. (quoting Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997)). Under this approach, Cazares was not likely under arrest just because he was handcuffed. See id.

However, analyzing whether Cazares's initial detention was an illegal detention or an illegal arrest is not imperative to the current evidentiary issue since the attenuation doctrine applies. The attenuation doctrine applies to Article 38.23 of the Texas Code of Criminal Procedure's "prohibition against evidence 'obtained' in violation of the law because evidence sufficiently attenuated from the violation of the law is not considered to be 'obtained' therefrom." Johnson v. State, 871 S.W.2d 744, 750 (Tex. Crim. App. 1994). The discovery of outstanding warrants during an illegal detention or illegal arrest purges the taint of the evidence from the initial illegality. See Welcome v. State, 865 S.W.2d 128, 134 (Tex. App.--Dallas 1993, pet. ref'd). The issue to analyze is whether the obtained evidence was discovered by exploitation of the initial illegality or instead in a manner sufficiently distinct to be purged of the primary taint. Lewis v. State, 915 S.W.2d 51, 54 (Tex. App.--Dallas 1995, no pet.).

The officers in the present case did not obtain any evidence during Cazares's initial detention. They patted Cazares down for weapons and then handcuffed him. Not until the outstanding parole violation warrant was discovered and Cazares was taken into custody for that warrant did anyone search Cazares's truck and seize any evidence. The narcotics evidence was not obtained as a fruit of the initial detention. Therefore, the outstanding warrant and subsequent arrest were intervening circumstances that served as the basis for the subsequent search and seizure of narcotics, thereby removing any taint from the initial detention. See Fletcher v. State, 90 S.W.3d 419, 420 (Tex. App.--Amarillo 2002, no pet.); Sims v. State, 84 S.W.3d 805, 810 (Tex. App.--Houston [1st Dist.] 2002, no pet.); Lewis, 915 S.W.2d at 54; Welcome, 865 S.W.2d at 134; Reed v. State, 809 S.W.2d 940, 947-48 (Tex. App.--Dallas 1991, no pet.).

Search Incident to Arrest

When a police officer has made a "lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981). This search includes the contents of containers found in the passenger compartment, "for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." Id. Texas courts have held that the scope of the search of a passenger compartment of an automobile incident to a lawful custodial arrest of its occupants under Article I, Section 9 of the Texas Constitution is as defined by the United States Supreme Court in Belton. Russell v. State, 644 S.W.2d 554, 556 (Tex. App.--Dallas 1982, pet. ref'd); see Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); see State v. Garcia, 801 S.W.2d 137, 141 (Tex. App.--San Antonio 1990, pet. ref'd).

Cazares claims the search of his truck was illegal since his investigative detention rose to the level of an unlawful, warrantless arrest. However, once the officers discovered the outstanding warrants and lawfully arrested Cazares for a parole violation, a search of his truck incident to his lawful, custodial arrest was proper under Belton. Therefore, the narcotics evidence seized from the truck pursuant to the search was not obtained in violation of the law.

Plain View Exception

In addition to a legal search incident to a custodial arrest, the officers stated that the scales with narcotic residue were in plain view inside the truck. For the plain view doctrine to apply the following requirements are necessary: "1) the officer must be in a proper position to view the item or lawfully be on the premises; and 2) the fact that the officer has discovered evidence must be immediately apparent." Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Horton v. California, 496 U.S. 128 (1990)). As to the second prong, the plain view doctrine requires a showing of probable cause that the item discovered is incriminating evidence; actual knowledge of the incriminating evidence is not required. Id.; Nichols v. State, 886 S.W.2d 324, 325-26 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). "Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband . . . ." Miller v. State, 686 S.W.2d 725, 728 (Tex. App.--San Antonio 1985, no pet.). The officer may rely on his training and experience to draw inferences and make deductions as to the nature of the item seen. Nichols, 886 S.W.2d at 326.

When the officers saw the scales in Cazares's truck, they were legally on the property pursuant to an arrest warrant for another individual. In addition, the officers immediately noticed burned residue on the scales, which they suspected to be some type of narcotic based on their experience and training. Since the officers had probable cause to believe the scales contained narcotic residue, they lawfully seized the scales under the plain view doctrine. See White v. State, 729 S.W.2d 737, 741 (Tex. Crim. App. 1987). After Deputy Spires seized one scale, Pepper gave him an indication that there was indeed an odor of narcotics. Based on this indication, the officers had probable cause to search Cazares's truck under the "automobile exception" for further evidence of narcotics. See Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994); Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.--Houston [14th] 2000, no pet.). Therefore, the narcotic evidence was legally obtained under a search incident to custodial arrest and the plain view doctrine, thus the trial court did not err in denying Cazares's motion to suppress.

Conclusion

Overruling Cazares's issue, we affirm the judgment of the trial court.

Catherine Stone, Justice

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