John Matthew Downing v. State of Texas--Appeal from 173rd District Court of Henderson County

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NOS. 12-00-00372-CR










John Matthew Downing pleaded guilty to two cases of possession of a controlled substance. Pursuant to the terms of the plea bargain agreements, the trial court sentenced him to twenty-two years of confinement in one case and twenty years of confinement in the other case, to run concurrently. In his sole issue, he asserts the trial court erred in denying his motion to suppress in each case. We affirm.

Kay Langford, an investigator for the Henderson County Sheriff's Department, testified at the hearing on Appellant's motions to suppress. She explained that, at about noon on May 11, 2000, a confidential informant told her that a woman named Peggy Scott, or her daughter, would be dropping Appellant off at the Budget Inn in Athens. Appellant was going to be delivering drugs to Janice Atwater in a motel room. The informant said Appellant would be in possession of drugs when he arrived and when he left the motel. The drugs would be in a black bag he would carry with him. The informant told Langford Appellant would have "speed," which is methamphetamines or amphetamines. Langford testified that she had spoken with this informant numerous times and used this informant on prior occasions. Langford considers this informant, who had given her true and correct information in the past, to be reliable. Also, Langford contacted an ex-narcotics officer, Bryan Nutt, who had used this informant on prior occasions and found the informant to be reliable and credible because he/she had given accurate information in the past. Based on that information, Langford set up a surveillance team to watch for Appellant's arrival at the Budget Inn. Based on information provided by the Athens Police Department, the investigators knew Scott owned a 1973 gray, four-door, Toyota sedan.

A small, gray car drove into the motel's parking lot about 4:25 p.m. One of the investigators participating in the surveillance, Kalon Rollins, recognized Appellant when he exited from the vehicle. There were also two females in the car. Appellant walked upstairs and went into a motel room. He was carrying a small, black bag, the size of a shaving kit. Detective Brett Morman, testified that both females also went upstairs to the room and one, later identified as Margie Whettington, came back out and drove the car away. Another investigator, Ray Nutt, testified that only one female accompanied Appellant up to the room and Whettington drove away without ever exiting the car. All agree that Appellant stayed in the room when Whettington drove away and that she returned about twenty or thirty minutes later. Appellant, still carrying the black bag, came back downstairs and got in the front passenger seat of the car. Whettington drove the car away again. The other female, Peggy Scott, remained in the motel room.

Law enforcement officers, in at least two different vehicles, followed the gray car. A police officer in a marked vehicle was instructed to stop the car. As the car was moving over to the shoulder, Appellant hung his right arm out of the window holding the black bag. He then threw the bag toward the front of the car. It bounced off the guard rail and landed on the pavement in front of the car. Officers found methamphetamine, amphetamine, and drug paraphernalia in the bag. After Appellant was arrested, Langford returned to the motel room where she found Scott and Janice Atwater. However, contrary to the informant's claim that Appellant was selling drugs to Atwater, no drugs were found on her.

In his sole issue, Appellant contends the trial court erred in denying his motions to suppress the evidence found in the black bag. He asserts the record shows the State failed to establish the reliability of the confidential informant and therefore the police did not have reasonable suspicion to support the initial stop of the vehicle and detain Appellant. As the detention was illegal, the argument continues, the evidence obtained in the ensuing search was inadmissible and his motions to suppress should have been granted.

A trial court's decision on a motion to suppress is reviewed under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court should give almost total deference to a trial court's determination of historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. We consider de novo issues that are purely questions of law, such as whether reasonable suspicion existed at the time of the search or seizure. Id. at 87.

An officer may temporarily stop and investigate a vehicle if the officer has reasonable suspicion based on articulable facts that the detainee is connected to unusual activity with some indication that the activity is related to a crime. Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim. App. 1986). The test for "reasonable suspicion" requires consideration of the totality of the circumstances confronting the police. Sandoval v. State, 860 S.W.2d 255, 258 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd). Reasonable suspicion is dependent upon both the content of the information possessed by police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990). A confidential informant can provide the requisite reasonable suspicion to justify an investigative detention provided additional facts are present to demonstrate the informant's reliability. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The reasonable suspicion required does not rise to the level of probable cause such as is required to justify a warrantless search or arrest. Stone, 703 S.W.2d at 654.

The officers were acting on information received by Investigator Langford from a confidential informant. This informant had proved to be reliable in the past. Langford testified that she believed the informant to be credible based on past dealings with the informant. The informant identified Appellant and two other participants in the drug transaction by name. Based on that information, the officers were able to determine the make and model of the vehicle Appellant would be arriving in. The informant identified the date and approximate time of the transaction and the location where the transaction would occur. The informant also said Appellant would be carrying a black bag containing narcotics. At the time of the stop, observation by the officers had confirmed most of the informant's information, except for the presence of narcotics. Further, Detective Morman testified that it is not uncommon for drug deals to occur in motel rooms and there has been drug activity at the Budget Inn in the past. Based on the totality of the circumstances, we conclude that the law enforcement officers possessed sufficient reliable information based on which they could form the requisite reasonable suspicion at the time of the stop. See Carmouche, 10 S.W.3d at 328 (warrantless stop of vehicle was constitutionally justified based on informant's tip that defendant was transporting cocaine, her prior history of providing reliable information, and corroboration of her information by officers' observations); Fonseca v. State, 881 S.W.2d 144, 150 (Tex. App.-Corpus Christi 1994, no pet.) (officers had reasonable suspicion relying on information obtained from reliable informant, substantiated by police observation).

Further, as the car was moving to the shoulder and slowing to stop, Appellant abandoned the contraband by throwing it out of the window on to a public road. The Fourth Amendment does not protect those who voluntarily abandon property. Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698, 4 L. Ed. 2d 668 (1960). Voluntary abandonment occurs if: (1) the defendant intended to abandon property, and (2) the decision to abandon the property was not induced by police misconduct. Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1996) (on reh'g). Intent may be inferred from words spoken, acts done, and other objective facts. Armstrong v. State, 966 S.W.2d 150, 153 (Tex. App.-Austin 1998, no pet.). If a person throws an object into an area open to the public he has abandoned his property for search and seizure purposes. Id. Appellant's act of throwing the bag containing illegal narcotics on to a public road shows the intent to abandon the contraband. We have determined that the stop was legal. Therefore, the abandonment was not induced by police misconduct. As the stop was constitutionally justified and Appellant abandoned the contraband, the trial judge did not err in denying Appellant's motions to suppress. We overrule Appellant's sole issue.

We affirm the trial court's judgments.



Opinion delivered April 12, 2002.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.