Alexander Thomas Timbrook v. State ( 2006 )

Opinion issued June 29, 2006

    In The

Court of Appeals

For The

First District of Texas

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  NO. 01-05-00765-CR

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ALEXANDER TIMBROOK, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1016816

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MEMORANDUM OPINION

          Appellant, Alexander Thomas Timbrook, was charged by indictment with possession with intent to deliver cocaine weighing more than four grams and less than 200 grams. After his motion to suppress the evidence was denied, appellant entered a plea of guilty without an agreed punishment recommendation. The trial court deferred adjudication of guilt and placed appellant on community supervision for five years. Appellant appeals the denial of his motion to suppress the evidence, contending that the arresting officer exceeded the limitations of a Terry stop and that his father’s consent to search appellant’s car was ineffective. We affirm.

BACKGROUND

          Officer W. Tomlinson, a Houston Police officer with 26 years experience, 19 of which were in narcotics, was working an approved extra job patrolling a Houston subdivision. At approximately 2 a.m. on February 15, 2005, he received a cell phone call informing him that a suspicious car was backed up in a driveway with the motor running and two individuals inside the car. Tomlinson drove to the address given to him, saw the car as described, and parked his car 10 or 15 feet from the driveway. He estimated that the car in the driveway was about 10 yards from the street. He walked up the driveway, shining his flashlight, and saw two occupants in the front seat with the seats reclined. As he shined his light toward the car, the two men inside jumped up and opened the car doors so that they could get out. Tomlinson arrived at the passenger door as the occupant was getting out and shined his light into the open door. He saw a baggie containing a green substance, which he recognized as marijuana, on the floorboard. He told the two men to put their hands on the hood of the car. He asked them what was in the baggie, and they both said it was marijuana. He asked them if there was any more marijuana in the car, and they said there was. Appellant, who had been in the driver’s seat, told Tomlinson that he lived at that address, and Tomlinson looked at both men’s driver’s licenses to identify them and verified that appellant lived at that address.

          Tomlinson called for a couple of units to provide backup for him. When the two backup officers arrived, they took the two men to their patrol cars, and Tomlinson proceeded to search the car in the driveway. He found several other bags of marijuana and a few pills. The glove box was locked, and Tomlinson asked appellant for the key. Appellant said that he did not have a key and had never been in the glove box. Appellant later stated that there was nothing in the glove box.

          Tomlinson went to the front door of the house and knocked. Appellant’s father came to the door, and Tomlinson explained the situation and said he wanted the key to the glove box. Tomlinson also explained that he could have the car towed and searched by breaking into the glove box. Appellant’s father agreed to look for the key, which he found in appellant’s room. Tomlinson opened the glove box with the key and found a Crown Royal bag containing about four ounces, or approximately 130 grams, of cocaine. Tomlinson placed appellant and the other man under arrest.

DISCUSSION

Standard of Review

          We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The Court will afford almost total deference to a trial court’s determination of historical facts that the record supports, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The fact finder is the sole judge of the witnesses’ credibility and may accept or reject any or all of the witnesses’ testimony. Taylor, 945 S.W.2d at 297. In reviewing a ruling on a question of application of law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Guzman, 955 S.W.2d at 89.

Validity of the Search

          In his first issue, appellant contends that, although lawful at its inception, Tomlinson’s investigation violated appellant’s Fourth Amendments rights by exceeding the bounds of a Terry stop when he looked into the car and discovered the marijuana, which led to the discovery of the cocaine. Appellant incorrectly refers to his interaction with Tomlinson as a Terry stop.

          The three recognized categories of interaction between the police and private citizens are encounters, investigative detentions, and arrests. Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App 1996). An encounter, in which the citizen is free to respond to the officer or to walk away, does not intrude upon the citizen’s privacy and does not implicate the Fourth Amendment. Id. An investigative detention, also referred to as a Terry stop, is a temporary detention, which must be justified by the officer’s reasonable suspicion that the citizen is connected with some unusual activity related to a crime. Id. An arrest is a seizure of generally longer duration and requires the officer to have probable cause to believe that the citizen has engaged in or is engaging in criminal activity. Id. When a policeman has lawfully arrested the occupant of an automobile, the officer may search the passenger compartment of the automobile, including the glove compartment, incident to that arrest. New York v. Belton, 453 U.S. 454, 460–61, 101 S. Ct. 2860, 2864 & n.4 1981); Ashton v. State, 931 S.W.2d 5, 8 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).

          Seizing property in plain view is not a violation of the Fourth Amendment because it involves no invasion of privacy. Texas v. Brown, 460 U.S. 730, 738–39, 103 S. Ct. 1535, 1541 (1983). Two conditions must be met to justify a warrantless seizure under the “plain view” doctrine: (1) the law enforcement officer must not have violated the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed and (2) the incriminating character of the object must be immediately apparent to the officer. Horton v. California, 496 U.S. 128, 136–37, 110 S. Ct. 2301, 2308 (1990); Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).

          In this case, when Tomlinson walked up the driveway to investigate the complaint he had received, he had not yet detained appellant. The detention did not occur until after Tomlinson looked in the open door of the car and saw the baggie of marijuana in plain view. At that point, Tomlinson had probable cause to believe that appellant was engaged in criminal activity. Therefore, Tomlinson did not detain appellant in a Terry stop, but in an arrest, and was justified in searching appellant’s car, including the glove box, incident to that arrest. We hold that the search of appellant’s car did not violate his Fourth Amendment rights.

          Accordingly, we overrule appellant’s first issue.

          Having held that the search of appellant’s car did not violate his Fourth Amendment rights because of the plain-view doctrine and the search incident to appellant’s arrest, we need not consider appellant’s second issue regarding whether his father’s permission to search the glove box was effective.

          We affirm the judgment.

                                                             Sam Nuchia

                                                             Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

Do not publish. Tex. R. App. P. 47.2(b).