William Dale Perkins v. State ( 2017 )


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  •                                      In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ____________________
    NO. 09-16-00003-CR
    ____________________
    WILLIAM DALE PERKINS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 75th District Court
    Liberty County, Texas
    Trial Cause No. CR32009
    MEMORANDUM OPINION
    A grand jury indicted William Dale Perkins (Perkins or Appellant) for
    possession of methamphetamine, a controlled substance, in an amount of four
    grams or more but less than 200 grams, with intent to deliver. See Tex. Health &
    Safety Code Ann. § 481.112(d) (West 2010).1 The indictment included
    enhancements for two prior felony convictions. Perkins filed a pretrial Motion to
    1
    The indictment charged Perkins as a habitual offender under section 12.42
    of the Texas Penal Code, but the State later abandoned the habitual enhancement
    count as part of its plea agreement with Perkins.
    1
    Suppress, asking the court to suppress the evidence obtained pursuant to a
    warrantless search of his vehicle. The trial court denied the motion to suppress
    without issuing findings of fact and conclusions of law. Thereafter, Perkins
    pleaded guilty to the charge of possession of a controlled substance and pleaded
    true to the enhancements. The court sentenced Perkins to twenty years’
    confinement and certified his right to appeal the pretrial ruling. In a single issue,
    Perkins appeals the trial court’s denial of his motion to suppress. We affirm.
    PRETRIAL HEARING
    In his Motion to Suppress, Perkins argued that there was no established
    vehicle inventory policy or that the officer who performed the search of Perkins’s
    vehicle did not properly follow a vehicle inventory policy. At the hearing, the State
    stipulated that the search of Perkins’s vehicle was not pursuant to a warrant.
    Officer Michael Leffew (Officer Leffew or Leffew), a police officer for the
    Daisetta Police Department, testified at the pretrial hearing that, while on duty on
    the night of January 30, 2015, he stopped a pickup truck pulling a four-wheeler on
    a trailer because the trailer had no lights. At the hearing, Officer Leffew identified
    Perkins as the only occupant of the vehicle that night. Leffew testified that, as
    Perkins braked to come to a stop, Leffew noticed the vehicle did not have a left
    brake light. Leffew also explained that the license plate on the trailer and the
    2
    inspection and registration on the pickup truck were expired. According to Leffew,
    Perkins produced a Texas ID card and told the officer he did not have proof of
    financial responsibility. Leffew further explained that, with the help of the Liberty
    County Sheriff’s department, he determined that Perkins’s Texas ID card was
    invalid and that, although Perkins had a driver’s license, it was invalid. Officer
    Leffew testified that he arrested Perkins for driving with a suspended license and
    for not having proof of financial responsibility.
    According to Officer Leffew, Perkins pulled off the road into a private
    driveway between two houses, neither house was Perkins’s, and Perkins’s vehicle
    did not allow other vehicles to freely come and go[.]” Leffew explained that, in
    accordance with his training, he decided to have the vehicle impounded because of
    the expired registration and lack of insurance. Leffew testified that there was a
    procedure in place regarding towed vehicles that he was expected to follow and
    that it required him to “document and secure the vehicle, [and] inventory
    everything in it[,]” although on cross-examination Leffew agreed that it was within
    his discretion whether to impound a vehicle. Officer Leffew explained that police
    department procedures required him to open any closed container found in a
    vehicle and document its contents, but on cross-examination Leffew agreed he had
    discretion as to what to include on the inventory form. Leffew testified that he
    3
    found a closed container in Perkins’s vehicle that night that contained coins,
    knives, and various drugs, including methamphetamine. The State offered and the
    court admitted Exhibits 1 through 4, which Leffew testified were photographs of a
    bag he found in Perkins’s vehicle.
    Officer Leffew was questioned specifically about the Daisetta Police
    Department’s procedure for inventorying a vehicle:
    [State’s attorney]: Now, are there any procedures in place that you’re
    expected to follow whenever you tow a vehicle like that?
    [Leffew]: Yes, sir, both to secure the vehicle, document any valuable
    items in it on an inventory sheet so we can make sure we get it back to
    the guy or girl that comes and gets it once it’s released back to them.
    [State’s attorney]: Now, how do you know that’s procedure and
    what’s expected of you?
    [Leffew]: That’s how we were trained at the time with the boss we
    had.
    [State’s attorney]: Is that policy still in place?
    [Leffew]: They have put in a new policy. It’s more defined than it was
    before, yes, sir.
    [State’s attorney]: So, were these policies and procedures with relation
    to securing the vehicle and inventorying it, were they ever written?
    [Leffew]: Yes.
    [State’s attorney]: And what did they require at that point?
    4
    [Leffew]: They require that you document and secure the vehicle,
    inventory everything in it.
    [State’s attorney]: Now, were there any other procedures written or
    unwritten that were required of you when inventorying a vehicle?
    [Leffew]: Just make sure we document it and secure it.
    [State’s attorney]: Did y’all have any procedures or requirements as
    they pertain to closed containers in vehicles?
    [Leffew]: Not at that time, no, we didn’t.
    [State’s attorney]: What were you expected to do if you found a
    closed container?
    [Leffew]: We’re supposed to document it and make sure it didn’t have
    valuables in it and if it did document them. If not document it’s empty
    or whatever it is.
    [State’s attorney]: How can you ascertain whether there are valuables
    in a closed container unless you open it?
    [Leffew]: You can’t.
    [State’s attorney]: So, does that mean that you were expected to open
    closed containers?
    [Leffew]: Yes, sir.
    [State’s attorney]: And how long -- have you done that on more than
    one occasion?
    [Leffew]: Oh, yes, sir.
    [State’s attorney]: How long have you been doing that?
    [Leffew]: At that point four years.
    5
    [State’s attorney]: Do you know -- have you ever assisted [Officer]
    Terry Cosgrove on similar stops where inventories were taken of
    vehicles?
    [Leffew]: Yes. Her, Chief [], deputies in the county, everybody.
    [State’s attorney]: Is that how all those folks do the same thing?
    [Leffew]: Yes. I have helped on many of them, yes, sir.
    [State’s attorney]: Do they open closed containers as well?
    [Leffew]: Yes, sir.
    Officer Leffew agreed he completed an inventory form for the items found in
    Perkins’s vehicle but he also listed some of the items on his incident report because
    there were too many items for him to complete the inventory “on the side of the
    road.” Leffew explained that he put the knives and coins that were in closed
    containers into evidence “[b]ecause it was evidence. It didn’t belong to me. It
    belonged to him.” Perkins offered Exhibit M1 into evidence, which was a copy of
    the inventory form Leffew filled out. According to Leffew, he secured the
    container found in Perkins’s vehicle in the patrol bag in his police vehicle and put
    the items into evidence with the Daisetta Police Department.
    After examination and cross-examination, the trial court directly questioned
    Leffew, and Leffew testified that the written policy in effect on the night of the
    incident provided that he should inventory any and all items in the vehicle and that
    6
    the policy gave him the authority to open a closed container found in the vehicle.
    The defense offered Exhibit M2, a written “Arrest Procedures” policy of the
    Daisetta Police Department, with an issuance date of “04/22/2009[.]” A section of
    this policy titled “Officer Actions Incidental to Arrest[]” lists the following tasks
    an officer should complete upon arresting a suspect:
    1. Frisk the suspect for any potential weapons, evidence, or
    extraneous that could potentially aid in escape;
    2. Provide or request any medical first aid;
    3. Secure, bag, and tag and actual or potential evidence;
    4. Make arrangements for the security of the suspect’s motor vehicle,
    if any;
    5. Transport suspect in an authorized emergency vehicle to the
    hospital, jail, investigative office, or other secure facility; and
    6. Complete all required report incidental to the arrest.
    Leffew explained that he understood this policy provided that he should “secure
    everything in the vehicle[,]” including opening containers therein. Leffew agreed
    that Exhibit M2 contained the written policies and procedures on the night of the
    incident.
    ISSUE ON APPEAL
    In a single issue, Appellant argues the trial court erred in denying his motion
    to suppress because “the inventory exception to the warrant requirement does not
    apply where no established written policy defines the proper scope of the inventory
    procedure and allows the officer full discretion.” Appellant argues that the Daisetta
    7
    Police Department did not have an impoundment policy and that it was left
    completely to Leffew’s discretion whether to impound Perkins’s vehicle. Appellant
    also argues that the State did not meet its burden to prove that the Daisetta Police
    Department had an inventory policy and that Officer Leffew followed that policy.
    Appellant further argues that the purpose of the inventory search performed on
    Perkins’s vehicle was to gather evidence and that “Officer Leffew’s actions
    amount to ‘general rummaging’ in order to discover incriminating evidence
    expressly prohibited by Florida v. Wells[.]” Appellant’s brief also notes that the
    inventory form that was completed “contains no indication of any case removed
    from the vehicle of Appellant from which the evidence at issue herein was
    inventoried.”
    STANDARD OF REVIEW
    We review a trial court’s denial of a motion to suppress under a bifurcated
    standard of review. Cole v. State, 
    490 S.W.3d 918
    , 922 (Tex. Crim. App. 2016);
    Turrubiate v. State, 
    399 S.W.3d 147
    , 150 (Tex. Crim. App. 2013). We review the
    trial court’s factual findings for abuse of discretion and review the trial court’s
    application of the law to the facts de novo. 
    Id. When, as
    here, a trial judge does not
    make explicit findings of fact, we review the evidence in the light most favorable
    to the trial court’s ruling. Walter v. State, 
    28 S.W.3d 538
    , 540 (Tex. Crim. App.
    8
    2000). When the trial court does not issue findings of fact, findings that support the
    trial court’s ruling are implied if the evidence, viewed in a light most favorable to
    the ruling, supports those findings. See State v. Kelly, 
    204 S.W.3d 808
    , 818-19
    (Tex. Crim. App. 2006). Almost total deference is given to the trial court’s implied
    findings, especially those based on an evaluation of witness credibility and
    demeanor. See Valtierra v. State, 
    310 S.W.3d 442
    , 447 (Tex. Crim. App. 2010). At
    a suppression hearing, the trial court is the sole and exclusive trier of fact and
    judge of the witnesses’ credibility and may choose to believe or disbelieve all or
    any part of the witnesses’ testimony. Maxwell v. State, 
    73 S.W.3d 278
    , 281 (Tex.
    Crim. App. 2002); State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000). We
    will sustain the trial court’s ruling if it is reasonably supported by the record and is
    correct on any theory of law applicable to the case. 
    Ross, 32 S.W.3d at 855-56
    ; see
    also Arguellez v. State, 
    409 S.W.3d 657
    , 662-63 (Tex. Crim. App. 2013).
    INVENTORY SEARCH
    The Fourth Amendment of the United States Constitution and article I,
    section 9 of the Texas Constitution protect against unreasonable searches and
    seizures. U.S. Const. amend. IV; Tex. Const. art. I § 9. A warrantless search of
    property is presumptively unreasonable subject to a few specifically defined and
    well-established exceptions. McGee v. State, 
    105 S.W.3d 609
    , 615 (Tex. Crim.
    
    9 Ohio App. 2003
    ). One exception to the requirement of a warrant is an inventory search.
    See Colorado v. Bertine, 
    479 U.S. 367
    , 371 (1987); Jackson v. State, 
    468 S.W.3d 189
    , 194-95 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Moskey v. State, 
    333 S.W.3d 696
    , 700 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing South
    Dakota v. Opperman, 
    428 U.S. 364
    , 375-76 (1976); Benavides v. State, 
    600 S.W.2d 809
    , 810 (Tex. Crim. App. 1980)). An inventory search protects (1) the
    owner’s property while the vehicle is in police custody, (2) the police against
    claims or disputes over lost, stolen, or vandalized property, and (3) the police from
    possible danger. 
    Bertine, 479 U.S. at 372
    . Issues of probable cause do not apply to
    an inventory search because an inventory is not conducted to investigate criminal
    activity but instead to fulfill administrative purposes. See 
    id. at 371-72
    (quoting
    
    Opperman, 428 U.S. at 370
    n.5) (explaining that the inventory-search exception
    centers   “upon   the   reasonableness    of   routine   administrative   caretaking
    functions[]”); see also State v. Cruz, 
    461 S.W.3d 531
    , 542 (Tex. Crim. App. 2015)
    (noting that the inventory search exception is based on administrative concerns)
    (citing to 
    Bertine, 479 U.S. at 371
    ); 
    Jackson, 468 S.W.3d at 195
    .
    To satisfy the inventory search exception, the inventory must be conducted
    in good faith and pursuant to a reasonable standardized police procedure. 
    Moskey, 333 S.W.3d at 700
    (citing 
    Bertine, 479 U.S. at 374
    ). The policy or practice
    10
    governing the inventory search should be designed to produce an inventory, and a
    search may not be used as a “‘ruse for a general rummaging in order to discover
    incriminating evidence.’” 
    Id. (quoting Florida
    v. Wells, 
    495 U.S. 1
    , 4 (1990)). The
    State bears the burden to establish that the police conducted a lawful inventory
    search. 
    Id. (citing Gauldin
    v. State, 
    683 S.W.2d 411
    , 415 (Tex. Crim. App. 1984),
    overruled on other grounds by Heitman v. State, 
    815 S.W.2d 681
    (Tex. Crim. App.
    1991)); Evers v. State, 
    576 S.W.2d 46
    , 50 & n.5 (Tex. Crim. App. 1978)). The
    State meets its burden by demonstrating an inventory policy exists and the officers
    followed the policy. 
    Id. (citing Moberg
    v. State, 
    810 S.W.2d 190
    , 195 (Tex. Crim.
    App. 1991)). To be lawful, an inventory search must not deviate from police
    policy. See Roberts v. State, 
    444 S.W.3d 770
    , 778 (Tex. App.—Fort Worth 2014,
    pet. ref’d), cert. denied by 
    136 S. Ct. 119
    (2015) (citing 
    Moberg, 810 S.W.2d at 195
    ; State v. Molder, 
    337 S.W.3d 403
    , 406 (Tex. App.—Fort Worth 2011, no
    pet.)); Josey v. State, 
    981 S.W.2d 831
    , 843 (Tex. App.—Houston [14th Dist.]
    1998, pet. ref’d). The general legality of an inventory search is not contingent upon
    whether the inventory policy is written. 
    Molder, 337 S.W.3d at 410
    n.7 (citing
    United States v. Skillern, 
    947 F.2d 1268
    , 1275 (5th Cir. 1991); Richards v. State,
    
    150 S.W.3d 762
    , 771 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)). An
    inventory search is not rendered unlawful because it is conducted prior to actual
    11
    impoundment. See Daniels v. State, 
    600 S.W.2d 813
    , 815 (Tex. Crim. App. 1980).
    Opening closed containers while conducting an inventory search is lawful when
    there is evidence of a policy or established procedure that allows for such. 
    Molder, 337 S.W.3d at 409
    (citing 
    Wells, 495 U.S. at 4-5
    ; Rothenberg v. State, 
    176 S.W.3d 53
    , 57 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); and 
    Richards, 150 S.W.3d at 771
    )). An inventory search may be reasonable even though the inventory
    does not list every item found in the vehicle. See Uballe v. State, 
    439 S.W.3d 380
    ,
    385 (Tex. App.—Amarillo, 2014, pet. ref’d); St. Clair v. State, 
    338 S.W.3d 722
    ,
    724-25 (Tex. App.—Amarillo, 2011, no pet.).
    Citing to Autran v. State, 
    887 S.W.2d 31
    (Tex. Crim. App. 1994), Appellant
    argues that the Texas Constitution “prohibit[s] inventories of closed containers in
    the context of an inventory[.]” In Autran, a three-judge plurality held that article I,
    section 9 of the Texas Constitution provided broader protection than the Fourth
    Amendment, applied the Texas provision to inventory searches, and concluded that
    the Texas Constitution did not allow for opening closed containers. 
    Autran, 887 S.W.2d at 41-42
    . However, “[p]lurality opinions do not constitute binding
    authority.” See Unkart v. State, 
    400 S.W.3d 94
    , 100 (Tex. Crim. App. 2013) (citing
    Vasquez v. State, 
    389 S.W.3d 361
    , 370 (Tex. Crim. App. 2012); Thornton v. State,
    
    145 S.W.3d 228
    , 234 (Tex. Crim. App. 2004)). The Court of Criminal Appeals has
    12
    not followed Autran’s specific holding concerning the validity of inventories of
    closed containers under the Texas Constitution. See 
    Rothenberg, 176 S.W.3d at 59
    (“[T]he high court has never followed Autran’s specific holding concerning the
    validity of inventories of closed containers under the Texas Constitution.”); see
    also 
    Uballe, 439 S.W.3d at 385
    (rejecting the argument that the Texas Constitution
    provides greater protection against unreasonable searches and seizures than the
    United States Constitution and declining to apply the Autran plurality opinion);
    Garza v. State, 
    137 S.W.3d 878
    , 884 (Tex. App.—Houston [1st Dist.] 2004, pet.
    ref’d) (explaining that the plurality holding in Autran is not binding precedent)
    (citing Vernon v. State, 
    841 S.W.2d 407
    , 410 (Tex. Crim. App. 1992)); Trujillo v.
    State, 
    952 S.W.2d 879
    , 881 (Tex. App.—Dallas 1997, no pet.) (“Autran, a three-
    judge plurality opinion, is not binding precedent.”) (citing 
    Vernon, 841 S.W.2d at 410
    ). Accordingly, Autran is not binding precedent.
    ANALYSIS
    Officer Leffew testified that he determined it was necessary to have
    Perkins’s vehicle impounded because Perkins did not have a valid driver’s license,
    Perkins did not have proof of insurance, the vehicle was not properly registered,
    and the vehicle was parked in a place that obstructed traffic. Leffew also testified
    that the regular practice of the Daisetta Police Department was to impound
    13
    vehicles that lacked insurance and registration and that he impounded the vehicle
    in a manner consistent with his training and the policy of the department.
    The evidence at the suppression hearing did not address alternatives to
    impoundment, nor does Appellant suggest in his brief on appeal that there were
    any alternatives. Based upon the record before us, the trial court did not err in
    concluding that the State met its burden of proving the impoundment of Perkins’s
    vehicle was lawful. See 
    Josey, 981 S.W.2d at 842
    (citing factors police may
    consider when determining whether to impound a vehicle).
    Officer Leffew testified that, when a driver is arrested and his automobile is
    to be impounded, it is the policy of the Daisetta Police Department to prepare a
    written inventory of the contents of the automobile to document any items present,
    including the contents of closed containers found therein, and to protect the
    property of the arrested driver. Leffew further testified that he conducted an
    inventory of the vehicle Perkins was driving and that he inventoried the vehicle’s
    contents in accordance with the policy of the Daisetta Police Department.
    The trial court was free to believe Leffew’s testimony at the suppression
    hearing. See 
    Ross, 32 S.W.3d at 855
    . There was no showing that Officer Leffew,
    who testified that he was following standardized procedures, acted in bad faith or
    for the sole purpose of investigation or that the inventory search was a ruse for
    14
    generally rummaging through the vehicle in order to discover incriminating
    evidence. See 
    Wells, 495 U.S. at 4
    ; 
    Bertine, 479 U.S. at 371
    -74. Although Officer
    Leffew did not list every item discovered in the vehicle on the inventory form, an
    inventory search may nonetheless be reasonable even though the inventory form
    does not list every item found in the vehicle. See 
    Uballe, 439 S.W.3d at 385
    ; St.
    
    Clair, 338 S.W.3d at 724-25
    .
    Viewing the evidence in a light most favorable to the trial court’s ruling, the
    record supports an implied finding by the trial court that the Daisetta Police
    Department had an inventory policy and that Officer Leffew followed the policy.
    See 
    Moskey, 333 S.W.3d at 700
    (citing 
    Moberg, 810 S.W.2d at 195
    ) (explaining
    that the State satisfies its burden of proof by showing that an inventory policy
    exists and that law enforcement followed the policy); see also 
    Jackson, 468 S.W.3d at 199
    (concluding that because the evidence was found during a lawful
    inventory search, the trial court did not err by denying the motion to suppress). The
    trial court could also have reasonably concluded that the inventory procedure of
    the Daisetta Police Department encompassed closed containers within a vehicle,
    that the inventory was not left to the sole discretion of Officer Leffew, and that the
    inventory Leffew conducted was not a pretext or ruse for an investigatory motive.
    See 
    Wells, 495 U.S. at 4
    ; 
    Moskey, 333 S.W.3d at 700
    ; 
    Rothenberg, 176 S.W.3d at 15
    57. Accordingly, we conclude that the trial court did not err in denying Appellant’s
    Motion to Suppress and we overrule Appellant’s issue.
    Having overruled Appellant’s sole issue on appeal, we affirm the trial
    court’s order.
    AFFIRMED.
    _________________________
    LEANNE JOHNSON
    Justice
    Submitted on January 3, 2017
    Opinion Delivered January 11, 2017
    Do Not Publish
    Before McKeithen, C.J., Kreger and Johnson, JJ.
    16