Melton Bell, Jr. v. State ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-203 CR ______________________ MELTON BELL, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 94502

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  MEMORANDUM OPINION

Melton Bell, Jr. appeals his conviction for possession of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (Vernon 2003). Bell asserts the trial court erred in admitting as evidence the cocaine recovered from a matchbox Bell removed from his pocket.

Beaumont police officers Everett Cormier and Eric Heiman were on routine patrol when they observed Bell walking on the wrong side of the road in violation of state law. He was carrying what appeared to be a bottle in a brown sack. The officers stepped out of the patrol car and stopped Bell. They identified themselves as police officers and told Bell they needed to speak with him about a pedestrian traffic violation. Bell hesitated before he approached the officers. As he walked towards the car, he immediately placed both of his hands in his pant pockets. Considering the risk of a weapon, the officers ordered Bell to remove his hands from his pockets. When he did not, Cormier grabbed Bell's right hand and Heiman removed Bell's left hand from his pocket and placed it on the hood of the police car. Heiman noticed that when Bell's hand came out of his pocket, his hand was clenched in a fist. Heiman testified that Bell's hand was in an unnatural position and he was concerned that Bell may have a weapon. Heiman asked Bell to open his hand. Bell did not comply. When Bell finally opened his hand, a matchbox fell onto the hood of the car. Bell was "spread-eagled" on the car as Cormier stood behind him. Heiman stated that in his experience as a police officer, he had discovered small razor blades in similar matchboxes. Heiman stated that he believed there was a threat to officer safety. Heiman opened the matchbox and found "three small chunks of an off-white rock-like substance" that he believed to be crack cocaine. Heiman arrested Bell for the possession of a controlled substance. Lab tests revealed the substance found in the matchbox was cocaine.

The trial court admitted as evidence the cocaine found in the matchbox. Bell complains the trial court erred in admitting the evidence because Heiman searched the matchbox without a warrant, and the facts did not present a legal exception to the warrant requirement. We understand Bell to argue that the officers were not justified in fearing for their safety.

Generally, a law enforcement officer may briefly detain an individual to investigate "possibly-criminal behavior where the officer can 'point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'" Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968)). "[A] traffic violation committed in an officer's presence authorizes an initial stop." Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). The Transportation Code provides that when a sidewalk is not provided, pedestrians walking along and on a highway shall, if possible, walk on the left side of the roadway or the shoulder of the highway facing oncoming traffic. Tex. Transp. Code Ann. § 552.006(b) (Vernon Supp. 2006). Bell does not challenge the legality of the initial stop.

As part of a stop, an officer may conduct a limited search of a person's outer clothing when an officer reasonably believes the person is armed and dangerous. Carmouche, 10 S.W.3d at 329. The purpose of the limited search for weapons is to allow the officer to pursue the investigation without fear of violence. Id. The test to determine the reasonableness of a search and seizure is "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20. To assess the reasonableness of an officer's conduct, "'specific and articulable facts' must appear in the record which would warrant a self-protective search for weapons." Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim. App. 1991) (citing Terry, 392 U.S. at 21).

The State acknowledges that, in other circumstances, the Texas Court of Criminal Appeals has stated "that it is unreasonable for two armed police officers to fear a razor blade that might be contained in a matchbox." Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992). In Davis, a police officer responded to a dispatch call regarding a narcotics sale in progress. Id. at 219. The officer conducted a pat-down search on a man who had attempted to flee from the scene when the officer arrived. Id. The officer felt the pocket of the man's coat and felt an object solid enough to be a weapon. Id. He reached in the pocket and found keys, papers, and a matchbox. Id. When the officer opened the matchbox, he found cocaine. Id. The officer testified that he had seen narcotics hidden in matchboxes; however, he opened the matchbox because he was looking for razor blades or other weapons. Id. at 221. The Court held that the facts there did not justify a further search for weapons. Id. The Court noted that although the officer had seen narcotics hidden in matchboxes, the record lacked any additional facts giving rise to probable cause to search the matchbox for drugs. Id. at 221 n.5.

The case before this Court is distinguishable from Davis. The officers indicated they were concerned for their safety because, when Bell placed his hands in his pockets, they believed he was attempting to gain access to a weapon. Heiman testified that he was concerned that Bell may have had a weapon in his hand. Heiman asked Bell to open his hand and Bell refused. Bell eventually opened his hand and Heiman saw the matchbox fall. Heiman testified that when he saw the matchbox he believed "there's something in there that he doesn't want me to see." Heiman further testified that in his experience he had found small razor blades concealed in similar matchboxes. The officers had not yet completed a weapons search.

Furthermore, unlike the circumstances in Davis, Bell's behavior here made it probable the matchbox contained something other than matches. Cf. Davis, 829 S.W.2d at 221 n.5 (record lacked additional facts to give rise to probable cause to search a matchbox because a matchbox commonly contains innocent items, i.e., matches). Cormier indicated that when he encounters an individual who immediately places his hands in his pockets, he suspects the person may have drugs or a weapon. Heiman testified that the area where Bell was arrested was "known for high narcotics trafficking activity." Heiman indicated that he had made several drug-related arrests in the area. Heiman testified that Bell's actions led him to believe that Bell was trying to gain access to a weapon or to something that he wanted to discard. See generally Arnold v. State, 831 S.W.2d 556, 559 (Tex. App.--Austin 1992, pet. ref'd) (officer's suspicions that narcotics were contained in matchbox confirmed when defendant tried to hide or dispose of matchbox in officer's presence).

Heiman testified he opened the matchbox because he thought a weapon was inside which could be used to harm the officers. Heiman denied searching for drugs. Whether or not Heiman gave "the right reason" for conducting the search is not the issue here, however. Esco v. State, 668 S.W.2d 358, 366 (Tex. Crim. App. 1982). If the decision "was correct on any theory of law applicable to the case, it is sufficient as a matter of law." Id. Probable cause exists when reasonably trustworthy facts and circumstances within the officer's knowledge would lead someone of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. McNairy v. State , 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Probable cause is determined by examining the totality of the circumstances. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). In light of Bell's conduct and considering the totality of the circumstances, the decision to open the matchbox was supported by sufficient probable cause to search for drugs. See generally Arnold, 831 S.W.2d at 559 (attempt to hide matchbox). The trial court did not err in allowing the cocaine to be admitted into evidence. The judgment is affirmed.

AFFIRMED.

____________________________

DAVID GAULTNEY

Justice

Submitted on December 6, 2006

Opinion Delivered April 25, 2007

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.