Alice Bright v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

No. 04-99-00912-CR
Alice BRIGHT,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-5563
Honorable Bill M. White, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah Duncan, Justice

Delivered and Filed: January 24, 2001

AFFIRMED

The appellant, Alice Bright, was charged with possession of cocaine, less than one gram. Bright moved to suppress the State's evidence, and the trial judge conducted a hearing on the motion. After the State presented its evidence, the trial judge denied Bright's motion to suppress. Subsequently, Bright entered a plea of guilty. The trial judge accepted the plea and placed Bright on deferred adjudication probation for three years. In this appeal, Bright challenges the trial court's ruling on her motion to suppress.

To review the trial judge's ruling on a motion to suppress, the court of appeals applies a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts, and reviews the trial court's application of the law of search and seizure de novo. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Because the trial court in the instant case did not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling. See Carmouche, 10 S.W.3d at 327-28. We will review the trial court's determinations of reasonable suspicion and probable cause de novo. See Carmouche, 10 S.W.3d at 328; Guzman, 955 S.W.2d at 87.

On appeal, Bright complains that the trial judge erred by denying her motion to suppress. Although Bright's argument is not fully developed, she appears to argue that the search that led to her arrest was unreasonable because the arresting officer had no articulable facts to search her hand which contained cocaine. Because she contends the officer had no articulable facts, Bright argues that the trial judge should have granted her motion to suppress.

The Fourth Amendment to the United States Constitution protects a person from unreasonable searches. U.S. Const. amd. IV. This protection, however, does not extend to reasonable searches. Elkins v. U.S., 364 U.S. 206, 222 (1960). To constitute a reasonable search, the search must be supported by probable cause, and must be made pursuant to a warrant or under an exception to the warrant requirement. Schmerber v. Cal., 384 U.S. 757, 768-70 (1966). One exception to the warrant requirement is the circumstances under which a police officer may conduct a pat-down search. Terry v. Ohio, 392 U.S. 1, 27 (1968). Under the exception, an officer may conduct a pat-down search when the officer justifiably believes the individual whose suspicious behavior he is investigating at close range is armed and dangerous. Terry, 392 U.S. at 30.

In this case, the officer who arrested Bright, Officer Rose, testified that he initially stopped Bright for making a left-hand turn in her vehicle without signaling. Rose explained that Bright exited her vehicle as he approached her. Rose stated that when he asked Bright for her driver's license and insurance, Bright handed her license to him in a "bundled-up" fist. Rose testified that this manner was "not generally how someone hands a driver's license over or anything else for that matter." Rose went on the explain that because he did not know whether Bright had a weapon-a razor blade, a needle, or a small knife-in her hand, he grabbed Bright's wrist and told her to open her hand. This testimony constitutes articulable facts to justify Rose's belief that Bright might be armed. While Bright's attorney challenged Rose about the reasonableness of this belief, Rose testified, "Through my training and experience and by general observation of literally hundreds of traffic stops, her posture, position of her hand and everything led me to believe that possibly there was danger to myself." Justifiably believing that he might be in danger, Rose was authorized to conduct a pat-down search to determine whether Bright was armed. Nonetheless, a pat-down search was not required at that point because Bright opened her hand.

Bright stated that when Bright opened her hand, he observed what he recognized as crack cocaine. At that point, what Rose suspected as contraband was in plain view. Seizure of contraband other than weapons is justified during a Terry, or pat-down search, under the plain view doctrine. Michigan v. Long, 463 U.S. 1032, 1050 (1983). Under that doctrine, the warrantless seizure of personal possessions is justified when an officer's initial intrusion is proper, and probable cause exists to associate the seized item with criminal activity. Ramos v. State, 934 S.W.2d 358, 365 (Tex. 1996). Here, Rose's testimony about his concern for his safety established that his actions were proper. Ramos, 934 S.W.2d at 365. Rose's testimony about his recognition of the contents of Bright's fist established probable cause. Id. Rose testified that he confirmed his belief that the substance in Bright's hand was contraband by having another officer field-test the substance. Rose stated that the test revealed that the substance was cocaine. At that point, Rose certainly had probable cause to believe that the seized item was associated with criminal activity.

Because Rose's initial contact was proper, and because Rose had probable cause to believe the seized item was associated with criminal activity, we find that the trial judge properly denied Bright's motion to suppress. We overrule Bright's issue on appeal, and affirm the judgment of the trial court.

Alma L. L pez, Justice

DO NOT PUBLISH