Jerold Anthony Williams v. State ( 2009 )

Affirmed and Memorandum Opinion filed November 5, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00268-CR

jerold anthony williams, Appellant

v.

The State of Texas, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1108368

MEMORANDUM OPINION

Appellant Jerold Anthony Williams challenges the trial court’s denial of his motion to suppress.  We affirm.

I. Factual and Procedural Background

Appellant was charged by complaint with the felony offense of possession with intent to deliver a controlled substance, cocaine. Appellant filed a motion to suppress the cocaine discovered on his person after a felony stop.  At the motion-to-suppress hearing, the parties stipulated that the search at issue in this case was performed without a warrant. Viewing the evidence in the light most favorable to the trial court’s ruling,[1] the evidence from the hearing shows the following:

On March 15, 2007, Houston Police Department Gang Task Force officer Hans Wagner was patrolling a “high narcotics area[] . . . associated with known gang locations, gang hangouts.”  He saw appellant, driving a vehicle, turn into the driveway of a residence where several narcotics arrests had occurred.  Officer Wagner ran the vehicle’s license plate number through his on-board computer, and the vehicle was identified as stolen through the “NCIC/TCIC”[2] system.  He parked nearby and watched the vehicle.  Shortly thereafter, he saw the vehicle drive away from the residence; after radioing for backup, Officer Wagner initiated a “felony stop” on the vehicle.[3]

When the vehicle was stopped, appellant was a back-seat passenger.  After appellant was ordered to exit the vehicle and lie down on the ground, the officer handcuffed him.  Officer Wagner then frisked appellant and discovered a small bag of narcotics in appellant’s pants pocket.[4]  After the initial search, Officer Wagner had appellant walk to his patrol car.  As appellant was walking to the vehicle, the officer noticed that appellant was “walking clenched up, taking very small steps,” which indicated to Officer Wagner that appellant might be hiding contraband on his person.  He then conducted a more thorough pat-down search and noticed “some type of a metal object” that was about the size of a small knife and something that felt like a plastic bag in appellant’s pants.  Another officer grabbed the waistband of appellant’s pants and vigorously shook his pants; more narcotics fell to the ground.  The other officer pulled appellant’s waistband back and removed another large plastic bag from the back of appellant’s pants, which contained a metal whisk about the size of a small knife and a “very, very large amount” of crack cocaine.  

The entire stop and search happened “very fast.”  At the same time that Officer Wagner was searching appellant, another individual who had been in the car also was being searched; another officer discovered a large bottle of prescription liquid codeine in his front pocket.  Other officers searched the vehicle and found several bottles of prescription Xanax in the back floorboard of the car where appellant had been sitting.  After appellant was searched for the second time, he was placed in the backseat of Officer Wagner’s patrol vehicle.  Once appellant was in the backseat of Officer Wagner’s vehicle, appellant asked why the car had been pulled over.  Officer Wagner explained that the car had been reported stolen, and appellant stated the car was not stolen and belonged to him.  Officer Wagner then discovered that appellant was the registered owner of the vehicle.

After the trial court denied his motion to suppress the evidence, appellant pleaded “guilty” and, pursuant to a plea agreement with the State, was sentenced to twenty years’ confinement.  The trial court certified appellant’s right to appeal the denial of his motion to suppress.

II.  Analysis

In a single issue, appellant contends the trial court erred in denying his motion to suppress.  We review a trial court’s ruling on a motion to suppress “‘in the light most favorable to the trial court’s ruling.’” Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).  If supported by the record, a trial court’s ruling on a motion to suppress will not be overturned.  Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented.  Id. We give almost total deference to the trial court’s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court’s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  When, as in this case, there are no written findings in the record, we uphold the ruling on any theory of law applicable to the case and assume the trial court made implicit findings of fact in support of its ruling so long as those findings are supported by the record.  State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000).

In his motion to suppress, appellant argued that the evidence should have been suppressed because the officers lacked probable cause to “arrest or even detain” him.  Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest.  See Terry v. Ohio, 392 U.S. 1, 22 (1968); Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  An officer must have reasonable suspicion to justify an investigatory stop.  See United States v. Sokolow, 490 U.S. 1, 7 (1989).  Reasonable suspicion for an investigatory detention arises when an officer has specific articulable facts which, premised upon his experience and personal knowledge and coupled with the logical inferences from those facts, warrant intruding upon the detained citizen’s freedom.  Chapnick, 25 S.W.3d at 877.  The validity of the stop is determined from the totality of the circumstances.  Id. (citing Sokolow, 490 U.S. at 8).

Officer Wagner testified that, at the time of the felony stop, he had learned through the NCIC/TCIC system that the vehicle appellant occupied had been reported stolen.  Thus, the officer had reasonable suspicion to stop and detain the driver and passengers of the vehicle.  See Brown v. State, 830 S.W.2d 171, 174–75 (Tex. App.—Dallas 1992, pet. ref’d) (concluding that officer had reasonable suspicion to stop vehicle reported stolen and detain driver and passengers).  Moreover, appellant concedes in his reply brief[5] that Officer Wagner “had reasonable suspicion to conduct a traffic stop and briefly detain appellant to determine if appellant or another occupant was the rightful owner of the car or if in fact the car was stolen.”  Thus, we conclude that the record supports the trial court’s implied finding that Officer Wagner had reasonable suspicion to stop and detain appellant.

Once a suspect has been lawfully detained, an officer may conduct a limited search for weapons, or “protective frisk,” where it is reasonably warranted for his safety and the safety of others, even in the absence of probable cause.  See Terry, 392 U.S. at 27; see also Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002).  Such a frisk is justified only when specific and articulable facts reasonably could lead to the conclusion that the suspect might possess a weapon.  See Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).  “The officer need not be absolutely certain that an individual is armed; the issue is whether a reasonably prudent person would justifiably believe that he or others were in danger.”  Balentine, 71 S.W.3d at 769. 

Appellant asserts that the record contains no evidence that Officer Wagner believed he was in any danger.  But, as discussed above, Officer Wagner testified that the vehicle in which appellant was discovered had been reported stolen and was subject to a “felony stop.”  He further explained that a felony stop is considered a “high risk” endeavor and that the search of appellant was conducted for both his own safety and the safety of the other officers.  See Michigan v. Long, 463 U.S. 1032, 1049 (1983) (noting that “roadside encounters between police and suspects are especially hazardous”).  Officer Wagner testified that the vehicle had stopped and driven away from a location known for narcotics activity.  See, e.g., Carmouch, 10 S.W.3d at 330 (stating that officer’s reasonable belief suspect is armed and dangerous may be predicated on the nature of the suspected criminal activity).  Thus, the record supports the trial court’s implied finding that a reasonably prudent person in Officer Wagner’s situation would justifiably believe that he or others might be in danger from those suspects discovered in a stolen vehicle in an area known for narcotics and gang activity.  See Balentine, 71 S.W.3d at 769; Carmouche, 10 S.W.3d at 330 (noting that weapons and violence are associated with drug transactions). 

An officer may lawfully seize contraband discovered during a protective frisk if its “contour or mass makes its identity immediately apparent.”  Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see also Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (describing “plain feel” doctrine created in Dickerson).  The record reflects that Officer Wagner described the narcotics discovered on appellant’s person as follows:

This isn’t, like, a small [sic] four crack cocaine rocks wrapped up in a small little piece of sandwich baggie where the guy tells me he has it hidden on him and you have to go find it or something.  This is right there.  All you’re doing is just removing something you already felt before he gets in the backseat of the police car.

Thus, the record supports the trial court’s implicit finding that the seizure of the contraband was pursuant to the “plain feel” doctrine.  Cf. Brown, 830 S.W.2d at 175 (concluding that cocaine found pursuant to pat-down search of passenger in vehicle reported stolen was admissible in narcotics case against passenger).

Finally, we note that “to effectuate a valid arrest, an officer must at that time have ‘probable cause to believe that a criminal offense has been or is being committed’ by the person in question.”  Baldwin, 278 S.W.3d at 371 (quoting Devenpeck v. Alford, 543 U.S. 146, 152 (2004)).  Texas courts have concluded that an NCIC report indicating that a vehicle has been reported stolen provides officers with probable cause to make a warrantless arrest of the driver.  See Stevens v. State, 667 S.W.2d 534, 535, 538 (Tex. Crim. App. 1984) (en banc); Brown v. State, 986 S.W.2d 50, 52 (Tex. App.—Dallas 1999, no pet.).  As discussed above, Officer Wagner testified that the NCIC/TCIC system indicated that the car appellant was seen driving (and in which he later was apprehended as a passenger) had been reported stolen.  The trial court therefore could have determined that Officer Wagner had probable cause to arrest appellant prior to searching him, and that the contraband was discovered during a search incident to arrest.[6] See Baldwin, 278 S.W.3d at 371 (explaining that if an officer validly arrests a defendant, he may perform a search incident to arrest).  Under these circumstances, we find no merit in appellant’s argument.

We overrule appellant’s sole issue on appeal and affirm the trial court’s judgment.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Yates and Frost.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Baldwin v. State, 278 S.W.3d 367, 379 (Tex. Crim. App. 2009).

[2] The record does not indicate what these acronyms mean.

[3] Officer Wagner described a “felony stop” as follows:

A felony stop is just going to be . . . a lot like what everybody sees on “COPS,” you know, when you order them out and you use your vehicle as protection. You’re going - - hopefully more than one patrol unit is going to come up alongside you.  You’re going to use car doors and order the suspects out one at a time.  You’re going to bring them back good and slow and at the time they’re each going to be taken into custody individually.  They’re going to be thoroughly searched and then they’re going to be placed in the backseat of the patrol car after they’re handcuffed.

The officer elaborated that this procedure is followed for officer safety because a situation involving a vehicle identified as stolen is a “high-risk” stop.

[4] Officer Wagner stated that this stop occurred shortly after another police officer had been shot by a suspect who had been placed, in handcuffs, in the back of the officer’s patrol car.  Thus, officers were being extremely careful to thoroughly pat down suspects for weapons before placing them in the back of their patrol cars.

[5] Appellant’s first appointed attorney was suspended from the practice of law in May 2009.  We ordered this appeal abated so that new counsel could be appointed.  Appellant’s new appointed counsel filed a reply brief in this court on May 14, 2009.

[6] Although the reportedly stolen vehicle actually belonged to appellant, “an arrest is not invalid merely because an officer relies upon reasonably trustworthy information that later proves to be erroneous.”  Mount, 217 S.W.3d at 728.