The State of Texas v. Janelle Rene Rascbaum--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

THE STATE OF TEXAS, )

) No. 08-03-00182-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

JANELLE RENE RASCBAUM, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D00133)

)

O P I N I O N

In a single issue, the State appeals the trial court=s granting of the Appellee=s motion to suppress. We reverse and remand.

At a motion to suppress hearing, El Paso Police Officer Jose De Avila testified that on January 5, 2003, he was on duty working with the DWI Task Force, observing for any traffic violations at the intersection of Cincinnati and North Stanton. Sometime around 12:30 a.m., he witnessed a black Yukon traveling northbound on Stanton fail to complete a stop at the four-way stop intersection and proceeded to conduct a traffic stop. When Officer De Avila approached the driver=s side of the vehicle, he noticed the driver, Luis Baca, had red bloodshot eyes, smelled of a strong odor of alcohol, and his speech was slurred. There were two passengers in the vehicle as well, a woman sitting in the front passenger seat, and a man sitting behind the driver=s seat. Officer De Avila testified that he asked Mr. Baca for his driver=s license and proof of insurance, but could not recall if Mr. Baca provided him with that documentation. Additionally, Officer De Avila could not recall who was the owner of the vehicle.

Officer De Avila asked the driver to step out of the vehicle and conducted a field sobriety exam, specifically the horizontal gaze nystagmus test. Mr. Baca complied with Officer De Avila=s request, and according to Officer De Avila, Mr. Baca performed so poorly on the sobriety exam that he failed it. Officer DeAvila testified that he did not have any independent recollection of any other standardized field sobriety test that was requested of or actually performed by Mr. Baca. He additionally could not remember if Mr. Baca took or refused to take an intoxilyzer test. Officer De Avila placed Mr. Baca under arrest for suspicion of DWI, handcuffed him, and placed him in the back seat of his patrol car[1]. Officer De Avila then went back to the vehicle and asked for identification from the passengers, which they provided. Officer De Avila also called in for a canine unit; this was done about ten minutes after the traffic stop was conducted and twenty to twenty-five minutes later, the canine unit arrived. Once the canine unit arrived at the scene, Officer De Avila asked the passengers to exit the vehicle. The passengers complied with his request.

Officer Sergio Lopez, a canine unit officer, testified that he was dispatched to where Officer De Avila had conducted his traffic stop for a narcotic=s search. When he arrived at the scene, he testified that he saw a black SUV in front of the patrol car and Officer De Avila talking to a male subject. Officer De Avila then briefed him as to the circumstances and as he understood, Officer De Avila wanted a narcotics search of the vehicle. He testified that he did not have any communications with Mr. Baca, nor did he look at his face or notice a white powdery substance on it. He testified that he believed Officer De Avila had tested the white substance and he further testified that he did not ask for consent to have the vehicle searched, since he assumed that Officer De Avila had already done so.

Officer Lopez then testified that before he had his search dog, Rex, go through the vehicle, he first had Rex sniff the exterior of the vehicle and as is customary, he conducted a visual inspection of the inside of the vehicle to make sure there were no objects that could possibly harm the dog, such as open narcotics, needles, knives, or other sharp objects. Upon searching the inside of the vehicle, he testified that Rex alerted to a black purse located on the floorboard of the front passenger side of the vehicle. As he moved Rex to the back of the vehicle, he alerted to the back passenger=s seat, where Officer Lopez found an empty plastic zipblock bag. Officer Lopez testified that he opened the black purse Rex had originally alerted to and inside he found a small zipblock bag containing a white powdery substance which he believed to be cocaine[2]. He also opened the wallet to identify the owner of the purse and the identification card was of a female.

Officer De Avila testified at the suppression hearing that he had not talked to the Appellee between the time that he arrested Mr. Baca and when he requested that both passengers exit the vehicle. He never told Appellee she was under arrest or that she was being detained for a suspicion of a crime. Additionally, he testified that Appellee never expressed a desire to leave the scene.

Additional testimony was elicited from Officer De Avila by the prosecuting attorney. The State indicated that they were passing the witness, Officer De Avila, but then requested to briefly reopen its direct examination. The defense counsel did not object and the trial court allowed the State to do so. The following exchange then took place:

The State: Officer, I wanted to ask you one other thing. When you were conducting field sobrieties upon the defendant -- upon the driver of the vehicle, not the defendant -- did you notice anything in particular about his face?

Witness: Yes, I did.

The State: Tell the Judge what you noticed that was peculiar?

Witness: He had a white, powdery substance along his nose.

The State: Based on your training and experience, did you come to a conclusion as to what that white, powdery substance on his lip may be?

Witness: Yes. I thought it might be cocaine.

The State: And tell the Judge, again, when you first saw the white, powdery substance on the driver=s lip area?

Witness: When she [sic] stepped out of the car -- out of the truck, he came between his truck and my patrol car. As I was doing the horizontal gaze nystagmus, that=s when it got my attention that he had a white, powdery substance on the upper lip area.

The State: Officer, did he have a mustache, or was he clean shaven in the upper lip area?

Witness: I don=t remember that.

This white powdery substance was not preserved or seized. In addition, on

cross-examination, he agreed with defense counsel that he did not know for sure whether it was cocaine or white powder from a doughnut, given that there was a doughnut shop about a block away from the intersection that is open twenty-four hours. Furthermore, a search of Mr. Baca=s person did not result in finding cocaine. He also testified that he did not remember whether he asked Mr. Baca what was the white powdery substance. Officer Lopez also testified that he did not recall if Mr. Baca had a white substance on his upper lip or nose. He testified that he was only advised by Officer De Avila that Mr. Baca had some kind of white substance.

The Appellee was then arrested and later indicted of knowingly and intentionally possessing cocaine, having an aggregate weight, including adulterants or dilutants, of less than one gram. On January 31, 2003, Appellee filed a motion to suppress evidence alleging that the search of her purse and any seizure was without probable cause or her consent and was therefore unlawful. At the beginning of the motion to suppress hearing held on March 28, 2003, the parties stipulated as to both standing and to the arrest being a warrantless arrest. After hearing the evidence presented at the hearing, the trial court signed an order granting Appellee=s motion. The State now timely files this appeal.

In a single issue on appeal, the State challenges the trial court=s decision to grant Appellee=s motion to suppress the evidence. The State puts forth two theories as to why the search was legal. First, the State argues that under the automobile exception, the search of the vehicle was legal. Second, the State argues that the search was legal as incident to the lawful arrest of the driver of the vehicle.

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion standard. Villareal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.--El Paso 1999, no pet.). An abuse of discretion occurs when the trial court=s decision was so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992). We afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We afford the same amount of deference to the trial court=s rulings on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turn on evaluating credibility and demeanor. Johnson, 68 S.W.3d at 653; Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89. We review de novo a trial court=s determination of reasonable suspicion and probable cause. Guzman, 955 S.W.2d at 89.

In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witness, including what weight, if any, is to be given to their testimony. See State v. Ballard, 987 SW.2d 889, 891 (Tex.Crim.App. 1999); Bradley v. State, 960 S.W.2d 791, 800 (Tex.App.--El Paso 1997, pet. ref=d). Consequently, the trial court may choose to believe or disbelieve any or all of a witness=s testimony. See Villareal, 935 S.W.2d at 138. We review the record and all reasonable inferences therein in the light most favorable to the trial court=s ruling. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). As no findings of fact or conclusions of law were filed, we will assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See Ross, 32 S.W.3d at 855.

The State relies on three cases to support its theory that the search was legal under the automobile exception. First, the State cites to Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). In Houghton, a vehicle was stopped for speeding and driving with a faulty brake light. Houghton, 526 U.S. at 297-98, 119 S. Ct. 1299. The officer noticed a syringe in the driver=s pocket and asked him why he had a syringe; the driver responded that he used it to take drugs. Id. After searching the vehicle, the police found drugs in the passenger=s (defendant in that case) purse located in the back seat of the vehicle. Id. In that case, it was uncontested that the police had probable cause to search the vehicle. Houghton, 526 U.S. at 299, 119 S. Ct. at 1300. The Supreme Court held that there was probable cause to search the vehicle, including the defendant=s purse. Houghton, 526 U.S. at 307, 119 S. Ct. at 1304.

The State also cites to Levine v. State, 794 S.W.2d 451 (Tex.App.--Amarillo 1990, pet. ref=d). In Levine, after a legal traffic stop, the defendant was asked to exit the vehicle and at that point, the officers noticed a strong odor of marijuana coming from Mr. Levine=s person. Levine, 794 S.W.2d at 451-52. After the appellant in that case refused to consent to a search of his vehicle, the police officers believing they had probable cause to believe Mr. Levine=s vehicle had contraband in it, searched the vehicle. Id. at 452. The Court in that case held that there was probable cause to search the vehicle based on the following:

The objective facts bearing on the trooper=s probable cause for the search of appellant=s lawfully stopped vehicle are that after appellant emerged from his vehicle, a strong smell of burnt marihuana emanated from this person; no marihuana was discovered in the pat-down search of his person for weapons; and when told that his vehicle would be searched, he offered to give his pot to the troopers.

Id. at 454.

Additional, the State briefly cites to Cunningham v. State, 11 S.W.3d 436 (Tex.App.--Houston [14th Dist.] 2000, no pet.). In Cunningham, the appellant was pulled over for speeding and while running the background check on appellant=s license, the officer noticed appellant making A>overt movements= by >constantly reaching over to the floorboard of the passenger=s seat.=@ Cunningham, 11 S.W.3d at 438. The Court held that the marijuana residue gave the officer probable cause to believe that the vehicle contained a lager quantity of marijuana. Id. at 440.

We find the case before us distinguishable because in the cases cited by the State there were a series of factors that led to existence of probable cause. In this case, there is only the alleged presence of white powdery substance on the driver=s lip. Moreover, Officer De Avila testified that just as the white powder could have been cocaine, it could have also been white powder from a doughnut. Officer De Avila also testified that he did not remember whether the driver of the vehicle had a mustache or was clean shaven, even though he had looked at his face closely to notice the white powder on his upper lip. He also could not remember if he asked Mr. Baca what was the white powdery substance.

We believe the State=s reliance on a single fact to establish probable cause, namely the white powdery substance on Mr. Baca=s lip that could have been cocaine or residue from a white powdery doughnut, was insufficient to demonstrate probable cause to search the vehicle and consequently Appellee=s purse. Therefore, the warrantless search of the vehicle and Appellee=s purse was not supported by probable cause, and the trial court correctly rejected the State=s first theory as to why the search was legal.

Search Incident to Driver=s Arrest

The State=s second theory as to why the search was legal was that the search was incident to the lawful arrest of Mr. Baca, the driver of the Yukon for DWI. Further, the State contends that the lawful arrest of Mr. Baca has not been contested. The Appellee in this case does not dispute that if any occupant of the vehicle and any bags or containers found therein, even those bags or containers belonging to another occupant of that vehicle, can be searched incident to an arrest, but rather argues that the State incorrectly applied that rule to the facts in this case. Appellee argues that the evidence presented to the trial court at the suppression hearing Astrongly supports a legal finding that the search of Rascbaums= vehicle was not incident to a lawful arrest.@ We must disagree with the Appellee.

To support its argument, the State cites to New York v. Belton, 453 US 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). The Court in Belton held that Awhen a policeman 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.@ Belton, 453 U.S. at 460, 101 S. Ct. at 2864. A search incident to a valid custodial arrest of a person or persons who are or recently have been in an automobile extends to the entire passenger compartment and all containers found therein. Id.

Officer De Avila testified that he saw Mr. Baca fail to complete a stop at a four-way stop intersection. Upon conducting a traffic stop, Officer De Avila testified that Mr. Baca had red bloodshot eyes, smelled of a strong odor of alcohol, and had slurred speech. He also testified that Mr. Baca failed the horizontal gaze nystagmus test. Officer De Avila then placed Mr. Baca under arrest for suspicion of DWI. Once Officer De Avila saw Mr. Baca fail to stop at a stop sign, he was authorized to arrest the driver; Mr. Baca=s failure to stop at a stop sign would have made his arrest valid. See Tex.Transp.Code Ann. ' 544.010 and Tex.Transp.Code Ann. ' 543.001 (Vernon 1999). However, in this case, Mr. Baca was arrested for DWI, a fact which is not disputed in this case[3]. Therefore, once probable cause to arrest was established, the officer was entitled to search the interior of the car. See Belton, 453 U.S. 460-61, 101 S. Ct. at 2864.

Under this record, we must find that the officer had probable cause to arrest the Appellee and therefore, the search of Appellee=s automobile was permissible as to search incident to arrest. See Ballard, 987 S.W.2d at 892. We must therefore find that the trial court abused its discretion in granting Appellee=s motion to suppress. We sustain Issue One.

Accordingly, we reverse the trial court=s judgment and remand this cause for further proceedings consistent with this opinion.

May 31, 2005

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

Larsen, J., Not Participating

(Do Not Publish)

[1] Mr. Baca was not arrested for possession of cocaine.

[2] He testified that he did not conduct a field test of the white powdery substance to determine if it was in fact contraband.

[3] In Appellee=s motion to suppress, there is no mention of a unlawful arrest as the basis for the suppression of the evidence.