Timothy Eugene Hattox v. State of Texas--Appeal from 220th District Court of Bosque County

IN THE

TENTH COURT OF APPEALS

No. 10-01-008-CR

TIMOTHY EUGENE HATTOX,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court # 00-05-13303-BCCR

O P I N I O N

Timothy Hattox pleaded guilty to possession of marihuana in the amount of five (5) pounds or less but more than four (4) ounces. The trial court sentenced him to two years imprisonment, suspended imposition of sentence, and placed him on community supervision for five years. In his sole point of error, Hattox contends that the trial court erred in refusing to grant his motion to suppress evidence obtained in violation of his rights under the Fourth Amendment, the Texas Constitution, and section 38.23 of the Texas Code of Criminal Procedure.

Background Facts

On April 23, 2000, Hattox was a passenger in a car driven by his girlfriend, Katy Anderson. Officer Mabry of the Texas Department of Public Safety stopped Anderson s car for failure to display a front license plate. Mabry testified that he saw a driver and two passengers in the car. Hattox was the front seat passenger, Anderson was the driver, and Jonathan Patterson was the rear passenger. Mabry testified that he saw the front passenger, Hattox, lean over in his seat as he approached the vehicle from behind to initiate the stop. Upon stopping the vehicle, Mabry asked Anderson to step to the rear of the car. He asked her why Hattox had leaned over in his seat, and she told Mabry that he bent down to pick up his cell phone off the floorboard.

Mabry then approached the passenger side of the vehicle and asked Hattox to step out of the car. Mabry asked him why he leaned over, and Hattox responded that he was reaching for a drink on the floorboard. Following these conflicting accounts, Mabry asked Hattox if he had any weapons, and Hattox replied that he possessed a pocket knife. Mabry patted Hattox down to locate any other weapons. Mabry s pat down of Hattox produced no contraband.

At this point, the officer asked the backseat passenger, Patterson, to step out of the car. Mabry noted that Patterson had both hands in his pockets. Mabry asked Patterson if he had any weapons in his possession, and Patterson stated that he also had a small knife. While Mabry patted down Patterson, he felt a spongy-like substance in his pocket. Suspecting the substance to be a bag of marihuana because of its texture, Mabry reached into Patterson s pocket and seized the bag. Mabry confirmed that the bag contained a substance that looked and smelled like marihuana. Next, Mabry handcuffed Patterson and searched the rest of the vehicle. Mabry searched under the front passenger seat of the vehicle, where Hattox had earlier been seated and leaned over during the stop. Mabry found an opaque plastic bag under Hattox s seat. Mabry opened the bag and discovered more marihuana. Hattox and Anderson were handcuffed and arrested along with Patterson.

Search and Seizure

Hattox argues that the trial court erred in refusing to suppress the marihuana found under the passenger seat of the car. Hattox claims the evidence was seized after an illegal search of the vehicle and argues the evidence should have been suppressed as the fruit of an illegal search. He asserts standing to challenge the search, despite not being the owner of the automobile. Hattox also claims a legitimate expectation of privacy in the contents of the searched bag. Because the search of the vehicle and the search of the bag are argued as separate searches in Hattox s brief, we address the searches separately in this opinion. Hattox does not, however, separately brief his state and federal constitutional claims. Therefore, we assume that he claims no greater protection from the state constitution than that afforded by the federal constitution, and we need not separately address his state constitutional claim. See Carmouche v. State, 10 S.W.3d 323, 326 n.1 (Tex. Crim. App. 2000); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993).

Investigative Detention

Initially, we must determine whether the investigative detention of Hattox was unlawful. Where the initial detention is unlawful, any evidence seized subsequent to such a detention is inadmissible. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994); see also Tex. Code. Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2001). A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Id. (citing Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). The officer is entitled to rely on all of the information obtained during the course of his contact with the citizen in developing the articulable facts which would justify a continued investigatory detention. See Bustamonte v. State, 917 S.W.2d 144, 147 (Tex. App. Waco 1996, no pet.) (citing Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979). The Court of Criminal Appeals has held that passengers in an automobile are also subject to temporary investigative detentions. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

During the Motion to Supress hearing, Mabry testified that: (1) before the vehicle pulled over to the shoulder he noticed Hattox lean over out of sight as if to hide or retrieve something under the seat; (2) upon investigating the furtive movements, Hattox and Anderson gave conflicting statements concerning Hattox s movement towards the floorboard of the vehicle; (3) he knew from his experience as an officer that suspicious movements toward the floorboard often involved the hiding or retrieving of weapons; (4) a pat-down of Hattox produced a pocket knife; and (5) Hattox carried no driver s license identification. Given these articulated facts, the court was justified in concluding that the officer s continued detention of Hattox to investigate the furtive movement and subsequent conflicting stories was lawful. Gurrola, 877 S.W.2d at 302. Under the totality of the circumstances, we find that Mabry s detention of Hattox furthered the goal of investigation, maintenance of the status quo, and officer safety, and we cannot find the detention unlawful. Id.

Standing to Search the Vehicle

Before a Fourth Amendment claim can be raised, a defendant must establish standing to object to the illegal conduct on the part of the police. See Metoyer v. State, 860 S.W.2d 673, 677 (Tex. App. Fort Worth 1993, pet. ref d). The defendant has the burden to establish standing to object to a search. See State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (citing Rakas v. Illinois, 439 U.S. 128, 134, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978)). In order to establish standing to contest a search, one must show that he had a legitimate expectation of privacy in the area searched. Id.

Fourth Amendment rights are personal rights which may not be vicariously asserted. See Rakas, 439 U.S. at 133-34, 99 S. Ct. at 425. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person s premises or property has not had any of his Fourth Amendment rights infringed and does not have standing to challenge the search. Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000) (quoting Rakas, 439 U.S. at 134, 99 S. Ct. at 425). A passenger in a vehicle does not have a legitimate expectation of privacy in a vehicle where he fails to assert a possessory interest in the vehicle or the property seized. See Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); Trinh v. State, 974 S.W.2d 872, 874 (Tex. App. Houston [14th Dist.] 1998, no pet.). A passenger without a possessory interest in an automobile lacks standing to complain about its search because his privacy expectation is not infringed. See Rovnak v. State, 990 S.W.2d 863, 870 (Tex. App. Texarkana 1999, no pet.) (citing United States v. Riazco, 91 F.3d 752, 754 (5th Cir. 1996)). Stated another way, where the defendant cannot show he gained permission to possess the car, he does not have standing to challenge any search of the car. //

Hattox claims a possessory interest in the vehicle because he paid for the gas in the car. He adds that, although the car belonged to Anderson s grandmother, it was his primary mode of transportation. However, Hattox was not driving the vehicle, nor did he gain permission from Anderson to possess the car. Because he was merely a passenger, we find Hattox cannot claim a violation of any legitimate reasonable expectation of privacy as a result of the search and seizure of the vehicle or its other occupants. See Hughes, 24 S.W.3d at 838; Meeks, 692 S.W.2d at 510. Simply paying for gas and relying on the vehicle as primary transportation is not sufficient to establish a possessory interest. Therefore, without a possessory interest in the automobile Hattox does not have standing to challenge the search. Id.Search of the BagHattox argues the subsequent search of the contents of the plastic bag discovered under the passenger seat was unlawful because he had a reasonable expectation of privacy in the bag containing the marihuana. We disagree.

Under the automobile exception, once probable cause to believe that an automobile contains evidence of a crime is established, officers may conduct an immediate warrantless search of the vehicle. See Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim App. 1994). The United States Supreme Court has held:

The scope of a warrantless search of an automobile is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.

United States v. Ross, 456 U.S. at 820-25, 102 S. Ct. at 2170-73, 72 L. Ed. 2d 572 (1982). In other words, if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. See id.; Levine v. State, 794 S.W.2d 451, 453-54 (Tex. App. Amarillo 1990, no pet.).

An officer possesses sufficient probable cause when "reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found." Holmes v. State, 962 S.W.2d 663, 671 (Tex. App. Waco 1998, pet. ref d, untimely filed) (quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Whether the officer possessed probable cause to pursue a course of action is determined by the totality of the circumstances. See Bustamonte, 917 S.W.2d at 147 (citing Illinois v. Gates, 462 U.S. 213, 230-31, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983)).

We find the probable cause in this case justified the search of every part of the vehicle that might conceal marihuana, including containers such as the plastic bag. See Ross, 456 U.S. at 825, 102 S. Ct. at 2173; Levine, 794 S.W.2d at 454. At the time of the search, Officer Mabry had already seized marihuana from backseat passenger Patterson, noticed furtive movements towards the floorboard by Hattox, and heard conflicting accounts explaining Hattox s movements. Under these facts Mabry had probable cause to believe that the bag discovered under Hattox s seat contained contraband. Based on the totality of the circumstances, Mabry could lawfully search the vehicle, and any containers inside the vehicle likely to produce marihuana. Id. We find that the search of the bag discovered under the passenger seat of the automobile did not violate Hattox s rights under the Fourth Amendment, the Texas Constitution, or section 38.23 of the Texas Code of Criminal Procedure. Accordingly, the sole point of error is overruled. The judgment is affirmed.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed December 28, 2001

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