Veronica Ann Gallegos v. State ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00564-CR



Veronica Ann Gallegos, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT NO. CR-95-353, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING

The trial court denied appellant's pre-trial motion to suppress the introduction in evidence of the controlled substance found in her purse. At the trial on its merits, appellant entered a plea of guilty to the offense of possession of less than one gram of a controlled substance, 3, 4-methylenedioxy methamphetamine. See Tex. Health and Safety Code Ann. § 481.116(b) (West Supp. 1997). The trial court assessed punishment at a term of deferred adjudication, placed appellant on community supervision for ten years, and assessed a five hundred dollar fine. It is from the trial court's denial of her motion to suppress that appellant appeals. We will overrule appellant's contentions that the seizure of the contents of her purse was the result of an illegal search and affirm the judgment of the trial court.

On June 7, 1995, Wade Parham, an investigator with the San Marcos Police Department, received a dispatch that there was a possible drunk driver on Ranch Road 12. Parham located the vehicle and after observing it speeding and making an illegal turn, stopped the vehicle. Appellant, who was the driver of the vehicle, was asked to exit the car after Parham detected the odor of alcohol on her breath. Sobriety tests were not consistent with intoxication. Parham suspected appellant may have been using narcotics since his observations of her were not inconsistent with a person under the influence of drugs. Parham stated that appellant looked away from him while vehemently denying that narcotics were in the vehicle. Parham's training and experience taught him that this type of response was sufficient to arouse suspicion.

Having determined that the passenger in the front seat was the owner of the car, Parham asked her if drugs were in the vehicle. She said no and invited him to search the vehicle. Parham's search under the front seat revealed a piece of "white plastic with a knot tied in the end of it" protruding from a purse. In his experience Parham had "very often" seen a piece of plastic with a knot tied in it, and he had never seen such a packet "contain anything but narcotics." The two tablets removed from the packet were later determined to be the controlled substance alleged in the indictment.

In her first point of error, appellant asserts that her consent was necessary to search her purse because it exceeded the scope of the owner's consent to search the car. In her second point of error, appellant contends that no contraband was visible when the officer saw the packet protruding from her purse to justify the "plain view" exception to the Fourth Amendment's limitations on searches. The State agrees with appellant's second point, however, we disagree with both parties.

The scope of review by a court of appeals on a trial court's ruling in a suppression hearing is set forth in Guzman v. State, No. 190-94 (Tex. Crim. App. Sept. 24, 1997):

[A]s a general rule, the appellate courts . . . should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor.. The appellate courts . . . should afford the same amount of deference to trial courts' rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.

We find it unnecessary to consider appellant's first point of error in light of our holding that the seizure of the purse was legal under the plain view exception. Appellant agrees the officer had the right to search the car as the result of the owner's consent; only, that the scope of the consent did not extend to the search of appellant's purse. Appellant contends that the officer's sight of the plastic baggie with a knot tied in it did not meet the practical, non-technical probability that the evidence was incriminating, and did not rise to the level of probable cause. We find appellant's reliance on Texas v. Brown, 460 U.S. 730 (1983), to be misplaced.

In Brown, the officer's stop of the defendant's car was legal. In the instant cause, appellant agrees the stopping of the vehicle was legal. After Brown's car was stopped, the officer shined his flashlight into the car, and saw an opaque, green party balloon, knotted near the tip, fall from Brown's hand to the seat beside him. The balloon was seized and the ensuing search revealed that it contained a powdery substance a chemist determined to be heroin. Brown is remarkably similar to the instant cause. The conduct of the officers in observing the packet protruding from the purse and the opaque balloon did not constitute an invasion of privacy. In both cases, the officers testified that their training and experience taught them that the items seized were used to contain narcotics.

The Brown court stated that the seizure of property in plain view is "presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Id. at 740-41. "The fact that Maples [arresting officer] could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon spoke volumes as to its contents--particularly to the trained eye of the officer." Id. at 743. In determining probable cause, "the evidence . . . must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. at 742. The court held that when the arresting officer viewed the balloon in the interior of the defendant's car, he had probable cause to believe that it was subject to seizure under the Fourth Amendment. Id. at 744.

In the instant cause, the plastic baggie with a knot tied in it "spoke volumes" to the trained eye of Parham. The officer's testimony and experience also taught him that appellant's reaction to his inquiry about narcotics in the vehicle was significant to arouse suspicion. Appellant points to Parham's testimony under cross-examination that there might be other uses for this type of plastic baggie. It must be remembered that at a suppression hearing, the trial judge is the sole and exclusive judge of the weight to be given the testimony of a witness.

We hold that the officer lawfully viewed the protruding baggie in appellant's purse, and had probable cause to believe it was subject to seizure under the Fourth Amendment. Appellant's contention that the search and seizure were illegal is overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice

Before Chief Justice Carroll, Justices Aboussie and Davis^*

Affirmed

Filed: December 4, 1997

Do Not Publish

^* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

to consider appellant's first point of error in light of our holding that the seizure of the purse was legal under the plain view exception. Appellant agrees the officer had the right to search the car as the result of the owner's consent; only, that the scope of the consent did not extend to the search of appellant's purse. Appellant contends that the officer's sight of the plastic baggie with a knot tied in it did not meet the practical, non-technical probability that the evidence was incriminating, and did not rise to the level of probable cause. We find appellant's reliance on Texas v. Brown, 460 U.S. 730 (1983), to be misplaced.

In Brown, the officer's stop of the defendant's car was legal. In the instant cause, appellant agrees the stopping of the vehicle was legal. After Brown's car was stopped, the officer shined his flashlight into the car, and saw an opaque, green party balloon, knotted near the tip, fall from Brown's hand to the seat beside him. The balloon was seized and the ensuing search revealed that it contained a powdery substance a chemist determined to be heroin. Brown is remarkably similar to the instant cause. The conduct of the officers in observing the packet protruding from the purse and the opaque balloon did not constitute an invasion of privacy. In both cases, the officers testified that their training and experience taught them that the items seized were used to contain narcotics.

The Brown court stated that the seizure of property in plain view is "presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Id. at 740-41. "The fact that Maples [arresting officer] could not see through the opaque fabric of the balloon is all but irrelevant: the distinctive character of the balloon spoke volumes as to its contents--particularly to the trained eye of the officer." Id. at 743. In determining probable cause, "the evidence . . . must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. at 742. The court held that when the arresting officer viewed the balloon in the interior of the defendant's car, he had probable cause to believe that it was subject to seizure under the Fourth Amendment. Id. at 744.

In the instant cause, the plastic baggie with a knot tied in it "spoke volumes" to the trained eye of Parham. The officer's testimony and experience also taught him that appellant's reaction to his inquiry about narcotics in the vehicle was significant to arouse suspicion. Appellant points to Parham's testimony under cross-examination that there might be other uses for this type of plastic baggie. It must be remembered that at a suppression hearing, the trial judge is the sole and exclusive judge of the weight to be given the testimony of a witness.

We hold that the officer lawfully viewed the protruding baggie in appellant's purse, and had probable cause to believe it was subject to seizure under the Fourth Amendment. Appellant's contention that the search and seizure were illegal is overruled.

The judgment of the trial court is affirmed.

Tom G. Davis, Justice