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Lamb, Sedrick v. State ( 2003 )


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  • Affirmed and Memorandum Opinion filed July 31, 2003

    Affirmed and Memorandum Opinion filed July 31, 2003.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-01-01034-CR

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    SEDRICK LAMB, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

    __________________________________________

     

    On Appeal from the 248th District Court

    Harris County, Texas

    Trial Court Cause No. 867,073

     

    __________________________________________

     

                                  M E M O R A N D U M   O P I N I O N

                Appellant Sedrick Lamb pleaded guilty to possession of narcotics weighing less than one gram.  In his sole point of error, appellant contends the trial court erred in denying his motion to suppress evidence.  In support of this contention, he argues:  (1) the officers lacked reasonable suspicion to detain him; (2) the detention evolved into an arrest; (3) the arrest was not supported by probable cause; and (4) the illegality of the initial detention renders the “plain view doctrine” inappropriate under the circumstances.  We affirm.

                                                                 I. Background

                On January 25, 2001, appellant was arrested for possession of cocaine weighing less than one gram.  Prior to trial, he filed a motion to suppress evidence alleging violations of his constitutional and statutory rights.

                Houston Police Department Officer James Price was the sole witness at the hearing on the motion to suppress.  Price testified regarding the detention, subsequent arrest and search of appellant. According to Price, he and his partner were patrolling an area of Houston known for high narcotics activity when they observed appellant engage in an apparent hand-to-hand narcotics transaction. Price testified that he saw appellant reach into his mouth to retrieve an object, and give it to another individual, who then apparently gave money to appellant.  As a four-year veteran of the Department, Price recognized this behavior as typical of a hand-to-hand narcotics transaction.  As Price and his partner approached in their vehicle, appellant and the other individual saw them drawing near and began walking “briskly” in opposite directions.  Price and his partner followed appellant to a nearby convenience store and requested that appellant “come here.”  Appellant looked back at the officers, both of whom were in uniform, but ignored their repeated requests to halt.  Instead, he continued walking toward the convenience store.  Price’s partner made contact with appellant’s arm and asked him to “hold on a second.”  Appellant stopped, and Price and his partner began questioning him.

                Price testified that appellant appeared “extremely nervous.”  As appellant talked to the officers, Price saw a small chunk of an off-white substance in appellant’s mouth.  Price believed it to be crack cocaine.  The officers told appellant to “spit it out,” at which time appellant attempted to swallow the substance.  Price recognized this behavior as typical of an individual attempting to swallow contraband upon apprehension.  The officers then applied “pressure points” to appellant’s jaw area. Appellant struggled, but the officers held appellant and he eventually spit out the substance.  The substance field-tested positive for cocaine.

                The trial court denied appellant’s motion to suppress and found that there was sufficient evidence to justify appellant’s detention.  The court stated that its ruling was based on Price’s testimony regarding the specific location of the event, the time of day, and the fact that he saw appellant reach into his mouth and remove an object in an apparent hand-to-hand narcotics transaction.  Appellant then pleaded guilty, subject to appeal of the trial court’s ruling.

                                                                   II.  Discussion

                                                           A. Preservation of Error

                We first address the State’s argument that appellant has waived his challenge to the trial court’s ruling.  The State asserts that appellant’s point of error on appeal fails to comport with his objection at trial.  Specifically, the State argues that because the hearing focused almost exclusively on the initial detention, appellant’s contentions of illegal arrest and illegal search are not preserved for our review.  To preserve an issue for appellate review, the record must show that an objection was made with sufficient specificity so as to make the trial court aware of the complaint, unless specific grounds were apparent from the context; and the trial court must rule on the objection, either expressly or implicitly.  Tex. R. App. P. 33.1; Gutierrez v. State, 36 S.W.3d 509, 510–11 (Tex. Crim. App. 2001).

                A motion to suppress acts as a specialized objection.  Morrison v. State, 71 S.W.3d 821, 826 (Tex. App.—Corpus Christi 2002, no pet.).  In his motion, appellant alleged the actions of the officers “violated [his] constitutional and statutory rights.”  The relevant portion of appellant’s argument in his motion to suppress is set forth as follows:

    2.         The actions of the Houston Police department violated the constitutional and statutory rights of the Defendant under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure.

    3.         Any tangible evidence seized in connection with this case was seized without warrant, probable cause or other lawful authority in violation of the rights of Sedrick Lamb pursuant to the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 9, 10 and 19 of the Constitution of the State of Texas

    4.         Therefore, Defendant requests that the following matters be suppressed at trial of this cause:

                a.         Any and all tangible evidence seized by law enforcement officers or others in connection with the detention and arrest of Sedrick Lamb in this case or in connection with the investigation of this case, and any testimony by the Houston Police Department or any other law enforcement officers or others concerning such evidence.

                b.         Any other matters that the Court finds should be suppressed upon hearing of this motion.

                Appellant’s mere references to the United States and Texas Constitutions, or to various constitutional doctrines, are insufficient to preserve error on appeal.  See Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) (noting that “[i]t is not sufficient that appellant raise only a general constitutional doctrine in support of his request for relief”).  However, a general objection may be sufficient to make the trial court aware of specific constitutional provisions relied upon where the objection is apparent from the context.  See Cooper v. State, 961 S.W.2d 222, 228 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d.).  At the hearing on the motion to suppress, both the State and appellant questioned Price regarding the circumstances surrounding appellant’s initial detention and subsequent arrest, as well as the seizure of evidence.  In his closing argument at the hearing, appellant’s counsel emphasized the illegality of the initial detention, however, he made no mention of the legality of the arrest or the seizure of evidence.  Thus, appellant’s general objection was insufficient to preserve his illegal search and illegal arrest arguments for appeal.

                The State argues that, because the trial court explicitly based its ruling only on the legality of the initial detention, appellant failed to obtain a ruling on his remaining contentions of illegal arrest and inapplicability of the plain view doctrine.  A trial court’s ruling on a matter need not be expressly stated if its actions or other statements unquestionably indicate a ruling.  Gutierrez, 36 S.W.2d at 511; see also Chappell v. State, 850 S.W.2d 508, 510 (Tex. Crim. App. 1993).  A trial court may impliedly overrule all issues in a pretrial motion to suppress where the court proceeds with the admission of the offensive evidence. James v. State, 102 S.W.3d 162, 168–69 (Tex. App.—Fort Worth 2003, pet. filed).  After the hearing, the trial court explicitly denied appellant’s motion to suppress and found that there was sufficient evidence to justify appellant’s detention. The trial court then proceeded to receive appellant’s guilty plea.  These actions implied that the motion was overruled on all incorporated issues under consideration.  Id.

                Because we find that appellant did not sufficiently object to his arrest and the seizure of evidence in either his motion to suppress or his argument to the trial court, appellant has waived those issues for appeal.  See Tex. R. App. P. 33.1.  However, even if appellant had preserved the complaints for appeal, we conclude they are without merit.

                                                             B. Standard of Review

                In reviewing a trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  We give almost total deference to the trial court’s determination of historical facts, while conducting a de novo review of the trial court’s application of the law to those facts.  Id.

                During a motion to suppress hearing, the trial court is the sole trier of fact. Id. Accordingly, the trial judge may choose to believe or disbelieve all or any part of a witness’ testimony.  Id.  When, as here, no explicit findings of fact are filed, we must view the

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    evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Id.

                   C.  Did the Officers Have Reasonable Suspicion to Detain Appellant?

                Appellant first argues that the officers’ reasons for detaining him amounted to no more than a “hunch” and that the “mere suspicion” of criminal activity is insufficient to support detention.  An officer may conduct a brief investigative detention, or a “Terry stop,” when he has a reasonable suspicion to believe that an individual is involved in criminal activity.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).  The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.  Id.  Reasonable suspicion to detain requires less information than is constitutionally required for probable cause to arrest.  Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

                Price testified that the facts known to him at the time he initially detained appellant were as follows:  (1) the area was known for high narcotics activity; (2) appellant was standing near a building where Price had made several previous narcotics arrests;[1] (3)

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    appellant was engaged in an apparent hand-to-hand narcotics transaction with another individual; (4) appellant reached into his mouth, retrieved an object, and gave it to another individual; (5) that individual then apparently gave money to appellant; (6) appellant saw the officers approach in their vehicle and briskly walked away; (7) as the officers called to appellant to stop, he looked over his shoulder, saw the uniformed officers, and continued to walk away.[2]  Reasonable suspicion for detention is justified where an officer observes a detainee near an area where criminal activity is known to have occurred, and that detainee appears nervous and walks briskly away from the area.  Balentine, 71 S.W.3d at 768–69. Similarly here, appellant was observed in an area known for criminal activity, engaged in an apparent hand-to-hand narcotics transaction.  When approached by uniformed police officers, appellant began walking briskly away, ignoring their requests to stop.  These specific, articulable facts, when taken together with rational inferences, demonstrate Price had reasonable suspicion– not just a mere “hunch”–to believe appellant was engaged in criminal activity, thus justifying an investigatory detention.  Id.[3]  In Worley v. State, the court of appeals held reasonable suspicion existed where the officer: (1) saw the detainee at a residence known for narcotics activity; (2) observed the detainee leaving the residence with capsules visible in his hand, and (3) the detainee turned away from the officers as they approached.  912 S.W.2d 869, 874 (Tex. App.—Fort Worth 1995, pet. ref’d).  Similarly, appellant was observed in an area known for narcotics activity, engaged in an apparent hand-to-hand narcotics transaction, and walked away from the officers as they approached.  In

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    view of the totality of the circumstances, Price had reasonable suspicion to detain defendant.  Id.

                In support of his argument that the officers lacked reasonable suspicion to detain, appellant relies heavily on Cook v. State, 1 S.W.3d 722 (Tex. App.—El Paso 1999, no pet.).  In Cook, the officer saw defendant standing with another individual in an area known for high narcotics activity.  Cook, 1 S.W.3d at 723–24.  Defendant was holding something in his left hand and appeared to be counting money with his other hand.  Id.  at 724.  The officer recognized this behavior as typical of a narcotics transaction.  Id.  The officer attempted to detain defendant, and defendant resisted.  Id.  The court found that the officer did not have reasonable suspicion to justify defendant’s detention.  Id. at 726.  The court cited Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994), for the following propositions: (1) the reputation of an area alone could not serve as a basis for an investigatory detention; (2) the circumstances of two people speaking on the street during daylight hours is less suspicious than such an event occurring at night; and (3) the act of an individual in walking away from an officer cannot itself justify suspicion of criminal activity.  Cook, 1 S.W.3d at 725–26.[4]

                We find Cook distinguishable from the case at bar because appellant did not simply gesture with one hand while holding something in the other hand.  Price witnessed an apparent hand-to-hand transaction.[5]  Appellant reached into his mouth, removed an object,

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    and gave it to another individual, who then apparently gave money to appellant.  Considering the totality of the circumstances, this distinction, together with the facts stated above, leads us to conclude that Price had reasonable suspicion to detain appellant.

                                   D. Did the Initial Detention Evolve into an Arrest?

                Appellant contends that Price’s partner “grabbed” him and he was effectively under arrest rather than merely detained and that such arrest was not supported by probable cause.[6]  

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    Under Texas law, a person is arrested when he is “actually placed under restraint or taken into custody.”  Tex. Code Crim. Proc. Art. 15.22; Tran v. State, No. 74,040, 2003 WL 1799013, *5 (Tex. Crim. App. April 2, 2003) (not designated for publication); Vaughn v. State, 983 S.W.2d 860, 862 (Tex. App.—Houston [14th Dist.] 1998, no pet.).  The Court of Criminal Appeals has interpreted this statutory definition to mean that an arrest occurs when a person’s liberty of movement is restricted or restrained.  Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991).[7]  Whether or not a person is under arrest is to be determined based on all of the facts and circumstances surrounding the detention.  Id. at 412.

                Price testified to the facts and circumstances surrounding appellant’s initial detention.  He sought to question appellant regarding the apparent hand-to-hand narcotics transaction. As appellant walked away from the approaching officers, Price’s partner told appellant to “come here.”  Appellant continued to walk away.  After Price’s partner made contact with appellant’s arm, appellant stopped and turned toward the officers.  Under these facts, we cannot conclude that appellant was under custodial arrest at that time.  Appellant was not yet under restraint, nor was he in custody.  Tex. Code Crim. Proc. Art. 15.22.  The officers were conducting an investigative detention for the purpose of questioning appellant about his involvement in a possible hand-to-hand narcotics transaction.  This type of brief, interrogative detention was a permissible “Terry stop.”  See Terry, 392 U.S. at 21.  During a “Terry stop” an officer may even go so far as to grab a detainee’s wrist to check his hand for contraband and still fall under the definition of an initial detention rather than a custodial arrest.  Worley, 912 S.W.2d at 872–73. Considering all the facts and circumstances surrounding the detention, the officer’s contact with appellant’s arm did not constitute a custodial arrest.  Amores, 816 S.W.2d at 411.

                However, we do conclude that the detention evolved into an arrest when the officers restrained appellant and attempted to retrieve suspected contraband from appellant’s mouth.  Shortly after initiating questioning of appellant as part of the initial detention, Price noticed a substance in appellant’s mouth that he believed to be crack cocaine.  Price saw appellant attempt to swallow the crack cocaine, and he and his partner began applying pressure to appellant’s jaw area.  Appellant resisted and the officers physically restrained him.  In Guzman v. State, the Court of Criminal Appeals acknowledged that, where an officer believed the defendant was swallowing contraband, the officer’s act of grabbing defendant by the throat and ordering him to “spit it out” constituted an arrest.  955 S.W.2d 85, 86 n.2 (Tex. Crim. App. 1997).  Similarly here, the officers saw appellant attempt to swallow suspected contraband and physically restrained appellant while applying pressure to his jaw area. At that time, considering all the facts and circumstances surrounding the detention, appellant’s liberty of movement was clearly restricted or restrained and appellant was effectively under arrest.  Amores, 816 S.W.2d at 411. 


     

                                     E. Was the Arrest Supported by Probable Cause?

                Appellant next argues that, even if the initial detention was proper, the subsequent warrantless arrest was illegal because the officers lacked probable cause.  Under state law, there are two primary means to attack a warrantless arrest.  State v. Steelman, 93 S.W.3d 102, 106 n.5 (Tex. Crim. App. 2002).  An accused may make a constitutional argument under Article I, section 9 of the Texas Constitution, or he may make a statutory argument under Texas Code of Criminal Procedure articles 14.01-14.05.  Id.

                In his motion to suppress, appellant alleges that the actions of the officers violated his rights under Article I, section 9 of the Texas Constitution. Appellant makes an additional argument in his brief that the facts of this case do not fit the statutory requirements of Articles 14.01-14.04.  We address both issues together.

                If the accused makes a state constitutional argument, then the proper inquiry is the reasonableness of the seizure under the totality of the circumstances.  Steelman, 93 S.W.3d at 106 n.5.  If the accused makes a statutory argument, the proper inquiry is (1) whether there was probable cause with respect to that individual, and (2) whether the arrest fell within one of the statutory exceptions.  Id.  One of the statutory exceptions, in Article 14.01(b), provides that, “[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”  Tex. Code Crim. Proc. Art. 14.01(b); Steelman, 93 S.W.3d at 107. Probable cause for a warrantless arrest under article 14.01(b) exists where, at that moment, the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense.  Steelman, 93 S.W.3d at 107 (citing Beverly v. State, 792 S.W.2d 103, 105 (Tex. Crim. App.1990).

                 The record reflects that, when asked what was in his mouth, appellant tried to swallow the substance.  This action constituted a destruction of evidence.[8]  See Sanders v. State, 855 S.W.2d 151, 153 (Tex. App.—Houston [14th Dist.] 1993, no pet.). Once a suspect takes action indicating that he may swallow suspected contraband, an officer has probable cause to seize appellant and prevent destruction of evidence.  Id. Therefore, because Price observed appellant attempting to swallow suspected contraband, Price had a reasonable belief that appellant had committed or was committing a crime, and there was probable cause to arrest appellant without a warrant pursuant to the statutory exception provided under article 14.01(b).

                                                                     F. Plain View

                Finally, appellant argues that the evidence obtained was the result of an improper plain view search and seizure.  The plain view seizure doctrine requires that:  (1) law enforcement officials have a right to be where they are, and (2) it must be immediately apparent that the item seized constitutes evidence.  Horton v. California, 496 U.S. 128, 136–37 (1990); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).  Appellant contends that the State cannot meet the first prong of the test because the officers observed what he later learned to be contraband only as a result of an illegal detention.  Appellant argues that the officers did not have the authority to be where they were when they observed the contraband in plain view.  We have already determined that the initial detention of appellant was proper based upon Price’s reasonable suspicion that appellant engaged in a suspected hand-to-hand narcotics transaction, and we have also already found that the officers’ attempt to prevent the destruction of evidence was permissible.  Accordingly, we do not address appellant’s plain view argument.

                                                                III.  Conclusion

                In sum, we conclude that  Price’s investigative detention of appellant was reasonable and justified under the circumstances and that appellant’s subsequent arrest was supported by probable cause.  The trial court did not abuse its discretion in denying appellant’s motion to suppress evidence obtained as a result of the detention and arrest.

                For the foregoing reasons, appellant’s point of error is overruled.

     

     

                                                                                       

                                                                            /s/        Eva M. Guzman

                                                                                        Justice

     

    Judgment rendered and Memorandum Opinion filed July 31, 2003.

    Panel consists of Justices Anderson, Seymore, and Guzman.

    Do Not Publish — Tex. R. App. P. 47.3(b).

     

     

     


                [1]  The reputation of an area for narcotics activity, standing alone, is insufficient to find reasonable suspicion.  Gamble v. State, 8 S.W.3d 452, 454 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  However, the U.S. Supreme Court has observed:

     

    An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.  But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.  Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

     

    Illinois v. Wardlow, 528 U.S. 199, 124 (2000) (citations omitted);.  Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) (noting that such a locale is an important factor when considering the totality of the circumstances).

                [2]  A person’s nervous, evasive behavior is a relevant factor in determining reasonable suspicion. Wardlow, 528 U.S. at 119–20. Unprovoked flight upon noticing the police may justify an officer in suspecting that an individual is involved in criminal activity.  See id. (noting that “headlong flight is the consummate act of evasion”); see also Gaines v. State, 99 S.W.3d 660, 667 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

                [3]  Appellant argues his conduct was “as consistent with innocent activity as with criminal activity,” and would therefore be an insufficient basis for reasonable suspicion. However, we note that this argument was explicitly overruled in Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); See Balentine, 71 S.W.3d at 769 n.6.

                [4]  The court of appeals in Cook discredited each of these facts on the basis that, standing alone, they could not support reasonable suspicion.  The court then considered only the remaining facts, the hand gestures witnessed by the officer, in its determination that there was no reasonable suspicion to detain defendant.  We disagree with that court’s application of the totality of circumstances test.  See Guzman, 955 S.W.2d at 87.

                [5]  In arguing that there was no reasonable suspicion to detain based upon an apparent hand-to-hand transaction, appellant points to the following exchange during the cross examination of Price.

     

    Q.  And that you believed that you saw money transfer between Mr. Lamb and whoever the other person was, correct?

    A.  I didn't say it was money for sure.  I said it was possible money.

    Q.  You don't really know what you saw then at that point, correct?

    A.  Could have been anything.

     

    . . .

     

    Q. You can't testify that what you saw was a drug transaction, correct?

    A.  All I can say is that it's possible.

    Q.  You were making an assumption that a drug transaction took place?

    A.  It was a high narcotics area that I was in and most incidents took place.

    Q.  And you see this gentleman and the other person in some type of transaction.  It could have been shaking hands, correct?

    A.  Could have been giving his gum.

    Q.  Could have been giving his gum?

    A.  Could have been buying his gum from him.

    Q.  Correct. You don't see any money transferred so you don't know if any money was involved in this?

    A.  There you go.

    Q.  Is that a legal answer?

    A.  It could have taken place.  Could have given him anything.

                                                               

                However, as the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony, the trial court was free to believe the officers’ testimony on direct examination that it “appeared that the suspect took money from the other suspect and reached into his mouth and pulled out something, handed it to the other suspect and handed him money.”  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Indeed, the trial court may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. Id.  This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.  Id.

                [6]  At issue during the hearing on the motion to suppress was whether the officers “touched” or “grabbed” appellant.  During the cross examination of Price, the following exchange took place:

     

    Q.  It's at that time your partner made physical contact with the defendant?  Your partner grabbed his arm?

    A.  That's correct.

    However, during Price's direct examination, the following exchange took place:

     

    A.  My partner touched his arm as he was telling him, Hold on a second, and I was walking around to him.

    Q.  So did your partner walk up to the defendant?

    A.  Yes, he did.

    Q.  At that point is it your testimony he touched the defendant's arm?

    A.  That's right.

     

    The trial court is in the best position to resolve conflicts arising from any apparent discrepancy in testimony.  Here, the trial court, as the sole trier of fact and the judge of the credibility of the witnesses may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted.  See Ross, 32 S.W.3d at 855.

                [7]  The court’s definition of arrest under Amores has been recognized as “problematic” by several lower courts.  Shipman v. State, 935 S.W.2d 880, 883 (Tex. App.—San Antonio 1996, pet. ref’d); see also, Dang v. State, 99 S.W.3d 172, 180 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (stating that the “restraint of liberty” standard was not adequate when distinguishing between an arrest and a detention because it is a characteristic common to both); and Worley, 912 S.W.2d at 874–75 (declining to extend the Amores definition of arrest where officer simply grabbed defendant’s hand to check for suspected contraband).

                [8]  A person commits an offense if the person, knowing that an offense has been committed, alters, destroys or conceals any . . . thing with intent to impair its verity, legibility or availability as evidence in any subsequent investigation of or official proceedings related to the offense.  Tex. Pen. Code § 37.09(d)(1).