State v. Israel Ramirez ( 2015 )

ACCEPTED
13-14-00680-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
6/26/2015 3:52:03 PM
CECILE FOY GSANGER
CLERK
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
6/26/2015 3:52:03 PM
CECILE FOY GSANGER
Clerk
Table of Contents
Table of Contents ........................................................................................... 2
Table of Authorities ....................................................................................... 3
Statement of the Issue Presented for Review .................................... 4
Did Officer Garcia conduct an unlawful search when he opened a container
attached to Israel Ramirez's key chain?
Course of Proceedings ................................................................................... 4
Statement of Facts ......................................................................................... 4
Summary of the argument ............................................................................ 6
Officer Garcia did not have a warrant and there was not an exception to the
warrant requirement. The evidence was properly suppressed because it was
found in an unlawful search.
Argument ........................................................................................................ 6
Probable cause, alone is not an exception to the warrant requirement ................... 8
Israel Ramirez did not consent to Officer Garcia's search ....................................... 9
Prayer ........................................................................................................... 11
Certificate of Compliance ........................................................................... 12
Certificate of Service ................................................................................... 12
2
Table of Authorities
Cases
Dixon v. State 206 S.W.3d 613 (Tex. Crim.App. 2006) ................................. 9
Katz v. United States 390 U.S. 347, 360 (1967) ............................................. 7
McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003) ........................ 7
Miller v. State, 393 S.W.3d 255 262 (Tex.Crim.App.2012) ........................... 7
Mincey v. Arizona 437 U.S. 385, 390(1978) ................................................... 7
State v. Ibarra, 953 S.W.2d 242 (Tex. Crim.App. 1997) .............................. 10
State v. Rhonda Rombs, 2015 WL 3634579 (Tex.App.- Corpus Christi
2015) .............................................................................................................. 11
US. v. Mendoza-Gonzalez, 318 F.3d 663,667 (5th Cir.2003) ...................... 10
Statutes
Tex. Code Crim. Proc. Ann. art. 38.23 ............................................. 7
3
Statement of the Issue Presented for Review
Did Officer Garcia conduct an unlawful search when he opened a container
attached to Israel Ramirez's keychain?
Course of Proceedings
On June 30, 2013 Israel Ramirez was arrested for Possession of a Controlled
Substance. On January 17, 2014 a Grand Jury indicted Mr. Ramirez for state jail
possession of less than one gram of heroin. Defense counsel for Mr. Ramirez filed
a motion to suppress on June 11, 2014. The 94th District Court heard the motion
to suppress on September 24, 2014. On November 3, 2014 the motion to suppress
was granted by the court.
Statement of Facts
On June 30, 2013, Robstown Police officers Ernest Mendoza and John
Garcia were dispatched to a verbal disturbance. Finding of Fact #5. When the
officers arrived there were three to four people in the roadway arguing. Finding of
Fact #6. Lori Ramirez, one ofthe individuals arguing in the roadway told Officer
Mendoza that Israel Ramirez, the Defendant was in possession of heroin. Finding
of Fact #10. Officer Mendoza had no knowledge to the truthfulness or veracity of
that statement. Finding of Fact #13. Officer Mendoza did not know Lori Ramirez,
did not know her full name or criminal history, and only spoke with her for five to
4
eight seconds prior to this incident. Finding ofFact # 11 and # 12. Officers then
contacted Mr. Ramirez but did not have any evidence that he committed a crime.
Finding of Fact #6. Officer Garcia asked Mr. Ramirez if he had any weapons and
Mr. Ramirez replied that he did have a pocket knife. Finding of Fact #22. Officer
Garcia then handcuffed Mr. Ramirez and asked if he could grab the knife and the
contents of his pocket. Finding of Fact #23. Mr. Ramirez replied "okay" or "yes"
to the officer's request. Finding of Fact #24. Officer Garcia gave testimony
explaining that the reason he requested and obtained consent to grab the contents
of Mr. Ramirez's pocket was to "take the weapon for our safety." RR 26. Officer
Garcia reached into Mr. Ramirez's pocket, took the knife out, and removed a
keychain that had a capsule shaped container attached to it. Find of Fact #25. The
knife in Israel Ramirez's pocket was not an illegal knife and Israel Ramirez was
not under arrest at this time. Finding ofFact #27 and #28. Officer Garcia testified
that he had experience with similar containers where he found narcotics, but the
court did not believe this part of Officer Garcia's testimony. Finding of Fact #30-
31.
At this point Israel Ramirez is not under arrest. Finding of Fact #35. Mr.
Ramirez did not provide consent to search the container. Finding of Fact #34 and
#36. Officer Garcia did not have a search warrant to search the container. Finding
of Fact #37. However, Officer Garcia then opened the container with the sole
5
purpose of looking for narcotics. Finding ofFact #32. After opening the container
Officer Garcia found a substance known to him to be black tar heroin. Finding of
Fact #33.
Summary of the argument
The trial court properly suppressed evidence that was found during a
warrantless search of a container. With only a few specific exceptions, a
warrantless search is per se unreasonable. Those well-defined exceptions include
search incident to lawful arrest, the automobile exception, the plain view
exception, the Terry v. Ohio stop and frisk exception, hot pursuit, exigent
circumstances, and consent. In the case at hand the officer did not have a warrant
and there was not an exception to the warrant requirement. The evidence was
properly suppressed because it was found in an unlawful search.
Argument
On review, findings of fact made by the trial court are given almost
complete deference, and mixed questions of law and fact are generally upheld if
supported by the record. Miller v. State, 393 S.W.3d 255 262
(Tex.Crim.App.2012). When determining if a search violated the Fourth
Amendment the guiding principle is reasonableness. Katz v. United States 390
U.S. 347, 360 (1967). A warrantless search is presumed unlawful and the
6
prosecution must rebut that presumption. Mincey v. Arizona 437 U.S. 385,
390(1978). The prosecution has the burden to show that the warrantless search
falls within one of the specific exceptions to the warrant requirement. McGee v.
State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003). The only exceptions to the
warrant requirement are: search incident to lawful arrest, the automobile exception,
the plain view exception, the Terry v. Ohio stop and frisk exception, hot pursuit,
exigent circumstances, and consent. Id.
No evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on
the trial of any criminal case. Tex. Code Crim. Proc. Ann. art.
38.23(a)
When Officer Garcia opened the capsule container on Israel
Ramirez's key chain he conducted an unlawful search. The trial court found
that there was not a warrant, there was no consent to open the container, and
concluded that the evidence should be suppressed. There are no other
exceptions to the warrant requirement in the trial court' s finding of fact nor
7
does the record reflect any evidence of an exception. These findings of fact
should be given total deference on review.
Probable cause, alone is not an exception to the warrant requirement.
The State's argument that probable cause existed prior to the search is
irrelevant. Whether or not probable cause existed does not create an exception to
the warrant requirement. Although probable cause is used to obtain a warrant, no
warrant was ever obtained or even attempted to be obtained in this case. Probable
cause is also used in the automobile exception to the warrant requirement, but this
case does not involve an automobile. The State's argument even if successful does
not overcome the warrant requirement because none of the specific exceptions
were met.
The auto exception to the warrant requirement does not apply to this case
because the search was not conducted on an automobile. In Dixon v. State, on
which the Appellant relies, the Court of Criminal Appeals found that the court can
look to the totality of the circumstances to determine if probable cause existed.
Dixon v. State 206 S.W.3d 613 (Tex. Crim.App. 2006). In Dixon, there was a
confidential informant that described the defendant within a specific area,
identified him by name and appearance, and described the car with license plate
number. Id. Police officers then located the defendant in his car and detained him.
Id. Through the auto exception to the warrant requirement, the officers found
8
probable cause and conducted a lawful search of the automobile without a warrant.
!d.
The search of Israel Ramirez has important distinctions from the Dixon case.
Most importantly that the search of Israel Ramirez was not in an automobile and
had nothing to with an automobile, therefore the automobile exception does not
apply. The confidential informant in Dixon had several articulable facts that were
corroborated by the police officers unlike the brief five to eight second
conversation Officer Mendoza had with the informant in this case. Find of Fact
#11 .
Israel Ramirez did not consent to Officer Garcia's search.
Although consent is an exception to the warrant requirement, it did not
provide an exception in this case. When obtaining consent from an individual to
search his or her person or property, there must be clear and convincing evidence
that consent was given. State v. Ibarra, 953 S.W.2d 242 (Tex. Crim.App. 1997).
Additionally the scope of the consent can be limited and is determined by the
factual circumstances surrounding the consent. State v. Rhonda Rombs, 2015 WL
3634579 (Tex.App.- Corpus Christi 2015), citing US. v. Mendoza-Gonzalez, 318
F.3d 663, 667 (5th Cir.2003). In this case, Officer Garcia asked Mr. Ramirez for
consent to empty the contents from his pocket for officer safety. RR 24. Officer
Garcia repeatedly testified that the purpose of any search and retrieval of the knife
9
was for safety reasons. RR 24-27. Officer Garcia never used the word search when
obtaining permission from Mr. Ramirez and only asked him if he could empty the
contents of his pocket in order to secure the knife. RR 24-27. The trial court found
that any consent to empty Mr. Ramirez's pocket was limited and made two specific
findings of fact that Mr. Ramirez at no time ever consented to Officer Garcia
searching the container that was attached to the keychain. Finding of Fact #34 and
#36.
This is unlike the issue in State v. Rhonda Rombs. In Rombs, the defendant
gave an officer general consent to search her purse. State v. Rhonda Rombs, 2015
WL 3634579 (Tex.App.- Corpus Christi 2015). With general consent, an officer
may search all readily opened containers. ld. Unlike Rombs, Israel Ramirez did
not give general consent, and instead only gave Officer Garcia permission to
remove the contents of his pocket so that a knife could be secured. RR 24. A
reasonable person would not believe that would include consent to search a
container attached to keychain so small that Officer Garcia testified that it was not
a weapon and did not contain a weapon. RR 27-28.
In conclusion, the trial court properly suppressed evidence found in an
unlawful search. In making this determination it was first found that there was a
search but there was not a warrant. After it was concluded that there was not a
warrant then we look to the exceptions to the warrant requirement. The State did
10
not raise that any of the exceptions existed in this case. Upon reviewing the record
and the trial court's finding of fact it is apparent that an exception to the warrant
requirement did not exist when Officer Garcia opened and searched the container
attached to Israel Ramirez's key chain. Officer Garcia conducted an unlawful
search when he searched, without a warrant, and without an exception to the
warrant requirement and that evidence was properly suppressed.
Prayer
For the reasons stated above, the Appellee requests the Court affirm the trial
court's order granting Defendant, Israel Ramirez's motion to suppress and grant
the Appellee all other proper relief.
Respectfully Submitted,
Todd A. Robinson
SBN: 24007931
102 N. Staples
Corpus Christi, Texas 78401
Tel: (361) 883-2200
Fax: (361) 883-4538
Email: trob4225@aol.com
Attorney for Appellee
11
Certificate of Compliance
This document has 2,072 words according to the computer program used to
prepare this document.
Certificate of Service
On June 26, 2015, a true copy of the foregoing was served via hand delivery
on the following:
Cliff Gordon, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Room 206
Corpus Christi, Texas 78401
Mark Skurka, District Attorney
Elizabeth Schmidt, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Room 206
Corpus Christi, Texas 78401
Todd A. Robinson
12