Brian Keith McAllister v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00030-CR ______________________________



BRIAN KEITH MCALLISTER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Fourth Judicial District Court Rusk County, Texas Trial Court No. CR08-014-2

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Brian Keith McAllister was convicted of theft of copper wire stripped from electric poles in Rusk County. At trial, he moved to suppress all evidence gathered as the result of a consensual search made after the stop of a vehicle in which he was a passenger--and during the course of which officers found a substantial amount of copper wire. His sole claim on appeal asserts that the trial court's denial of his motion to suppress was error because the law enforcement officer did not have reasonable suspicion for the initial stop of the vehicle. We disagree.

I. Ruling on Motion to Suppress is Reviewed for an Abuse of Discretion

Since the trial court was the sole and exclusive trier of fact at the suppression hearing, we will not set aside the denial of McAllister's motion to suppress evidence absent a showing of abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985); Jackson v. State, 968 S.W.2d 495, 498 (Tex. App.--Texarkana 1998, pet. ref'd) (citing Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996)). Thus, we will afford almost total deference to the trial court's determination of the historical facts in this case. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Jackson, 968 S.W.2d at 498. If the determination was reasonably supported by the record, and was correct under any theory of law applicable to the case, we are not at liberty to disturb the trial court's findings. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Etheridge v. State, 903 S.W.2d 1, 15 (Tex. Crim. App. 1994); State v. Hopper, 842 S.W.2d 817, 819 (Tex. App.--El Paso 1992, no pet.). Therefore, instead of engaging in a factual review of the record, we will view the evidence in a light most favorable to the trial court's ruling to decide only whether the trial court improperly applied the law to the facts. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); Romero, 800 S.W.2d at 543.

The pertinent facts are as follows: on November 10, 2007, Fay McElroy, a dispatcher for the Rusk County Sheriff's Department, received an emergency call from a Rusk County Electric Cooperative employee identifying herself as "Linda." Linda reported that copper wire was stolen from electric poles located on 1249 County Road 288 the previous week. She said that the thief had risked his life, climbed up an electric pole that morning, and cut down a live electric copper wire, resulting in a power outage to residents in the area. Linda called 9-1-1 dispatch the following morning and asserted that a member of the cooperative saw a suspicious "red Ford Taurus with two men in it" on County Road 292. She asked the 9-1-1 operator to dispatch officers to interview the witnesses.

McElroy testified that after Deputy Kevin Roy spoke to the witness, a Rusk County Electric Cooperative representative, he advised the vehicle was a red Ford hatchback. McElroy then sent a be-on-the-lookout (BOLO) broadcast to all officers in the vicinity:

  They just talked to one of the witnesses out there. The suspect or the suspicious vehicle out there is going to be an 80s or a 90s model red ford hatchback. It's going to be occupied by two white males possibly in their 20s. Also a blue over silver possibly an S-10 pickup occupied by a white female. The witnesses advised that he saw them turn off of a -- going 1249 north going towards 292.

Deputy James Charlo received the BOLO and was dispatched to County Road 288. Approximately an hour to an hour and a half later, he observed a red Ford hatchback containing two white males on County Road 292 traveling northbound. ⁽¹⁾ Charlo initiated the stop less than a mile away from the location where the copper wire was cut.

Charlo could smell the odor of alcoholic beverages emanating from driver Joshua Kee as soon as he approached him. Charlo observed an open container of Busch beer on the floorboard of the backseat and asked Kee to step out and walk to the rear of the Ford hatchback. Charlo told Kee that he initiated the stop to investigate the theft of copper wire from the area. Kee stated there was copper wire in the trunk that belonged to McAllister. Kee claimed he was asked to help McAllister transport the copper wire to Gregg County to get it recycled in exchange for gas and beer money. He also admitted that there were two crack pipes that belonged to him and McAllister in the Ford console.

Charlo then asked passenger McAllister to exit the Ford and began questioning him about the copper wire. McAllister said he cut the wire from an abandoned house and intended to take it to Gregg County for recycling. After obtaining Kee's consent to search the vehicle, Charlo recovered the copper wire, crack pipes, and open container of Busch beer. Kee and McAllister were placed under arrest. In a videotaped confession, McAllister admitted to the crime of theft of copper wire.

II. Shifting Burden During Motion to Suppress

The Fourth Amendment to the United States Constitution protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Charlo's detention of McAllister and seizure of the copper wire amounts to a sufficient intrusion on McAllister's privacy to implicate Fourth Amendment protections. Terry v. Ohio, 392 U.S. 1, 16 (1968); Carmouche, 10 S.W.3d at 328. If Charlo conducted a search or seizure in an unreasonable fashion, the fruits from his search or seizure must be suppressed. Wong Sun v. United States, 371 U.S. 471, 479-84 (1963); Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997).

The presumption of proper police conduct is a well-recognized principle of criminal jurisprudence. Gaines v. State, 888 S.W.2d 504, 508 (Tex. App.--El Paso 1994, no pet.). In order to shift the burden of reasonable conduct to the State, McAllister was initially required to produce evidence to defeat the presumption that Charlo acted properly. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); Davison v. State, 249 S.W.3d 709, 717-18 (Tex. App.--Austin 2008, no pet.) (citing Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986)). To accomplish this, McAllister needed to show that a search or seizure occurred without a warrant in violation of his own Fourth Amendment rights. Simmons v. United States, 390 U.S. 377, 389-90 (1968); Gaines, 888 S.W.2d at 508. Because it was undisputed that the search and seizure occurred without a warrant, the only question is whether Charlo's initial stop and detention, and the resulting search and seizure, were reasonable under the totality of the circumstances existing at the time. See Ford, 158 S.W.3d at 492.

III. Officer Charlo had Reasonable Suspicion to Detain McAllister

An arrest occurs when a person is actually placed under restraint or when he or she is taken under custody. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). Because a person's liberty of movement is restricted or constrained during an arrest, probable cause to justify the intrusion is required. Hoag v. State, 728 S.W.2d 375, 379 (Tex. Crim. App. 1987). To contrast, due to the principle that law enforcement interests logically warrant a limited intrusion on the personal security of suspects, federal and state jurisprudence readily recognizes that law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. United States v. Brignoni-Ponce, 422 U.S. 873 (1975); Terry, 392 U.S. at 22; Davis, 947 S.W.2d at 243-44. Thus, a temporary detention based on the totality of the circumstances that objectively supports a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity does not violate the Fourth Amendment. United States v. Hensley, 469 U.S. 221, 229 (1985); Terry, 392 U.S. at 25-26; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Woods v. State, 956 S.W.2d 33, 37-39 (Tex. Crim. App. 1997); Davis, 947 S.W.2d at 243-44.

The question of whether Charlo was required to have probable cause or reasonable suspicion turns on whether his halt of the driver of the Ford hatchback was an arrest or an investigative stop. McAllister relies heavily on the case of Amores v. State throughout his briefing for the proposition that Charlo did not have reasonable justification to stop the driver of the red Ford hatchback.   816 S.W.2d 407 (Tex. Crim. App. 1991). His reliance is mistaken. Amores involved the question of whether the officers had probable cause to effectuate an arrest. Id. at 411. In Amores, officers blocked the defendant's vehicle with their patrol car, ordered him out of the car at gunpoint, told him to lie face down in the parking lot with his hands behind his head, and threatened to shoot him if he did not cooperate. Id. at 410. The Texas Court of Criminal Appeals rightfully concluded that the officers' actions amounted to an arrest because the defendant's liberty of movement was restricted. Id. at 411. Here, Charlo stopped Kee's red Ford hatchback based on the dispatcher's broadcast to briefly question him about the theft. While the vehicle was stopped, and during the time Kee was being questioned outside of the vehicle, McAllister was seated inside the car. He was not restrained or in custody. His freedom of movement was not restricted. His arrest occurred after Charlo found the copper wire in the vehicle, an event giving rise to probable cause for an arrest. We conclude Charlo's actions in stopping the vehicle amounted to a temporary detention for which only reasonable suspicion was required.

The United States Supreme Court adopted a dual inquiry that will aid us in determining whether  Charlo's  actions  were  reasonable:  (1)  were  his  actions  justified  at  their  inception; and, (2) were his actions reasonably related in scope to the circumstances that justified the interference of criminal activity. Terry, 392 U.S. at 19-20; Davis, 947 S.W.2d at 242. Under the first prong, Charlo must "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion" into McAllister's privacy. Terry, 392 U.S. at 21; Carmouche, 10 S.W.3d at 328; Davis, 947 S.W.2d at 242-43. These facts must amount to more than a mere hunch or suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). "[W]hen used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person . . . ." Woods v. State, 956 S.W.2d 33, 37-38 (Tex. Crim. App. 1997).

Here, Charlo testified he based his stop of Kee's vehicle solely on the BOLO broadcast. When the broadcast was received, Charlo had the right to act on the basis of the dispatch and was entitled to assume the officer requesting the arrest had sufficient cause to justify the stop or arrest. Colston v. State, 511 S.W.2d 10, 12 (Tex. Crim. App. 1974); Weeks v. State, 417 S.W.2d 716, 718 (Tex. Crim. App. 1967) (if officer who initiates request for arrest is in possession of sufficient knowledge to constitute probable cause, then he or she may transmit to officer who makes arrest only such information as is necessary for that officer to know who is wanted). The real test is whether the requesting officer was in possession of sufficient knowledge to constitute reasonable suspicion. Weeks, 417 S.W.2d at 718.

A police broadcast may be sufficient to provide an officer with reasonable suspicion to stop persons matching a description for investigatory purposes if based on reliable information furnished by an otherwise credible private citizen whose only contact with the police results from having witnessed a criminal act. Gaines, 888 S.W.2d at 507, 509 (description of "two black men" "driving a yellow Honda Civic automobile" who robbed an office located at a particular address amounted to reasonable suspicion justifying the stop of two black men driving a yellow Honda Civic); Brown v. State, 443 S.W.2d 261, 262 (Tex. Crim. App. 1969) (description of witness of three young black men in a 1959 blue and white Oldsmobile heading in the direction of Odessa was sufficient to justify stop of the Oldsmobile to confirm whether suspects robbed a jewelry store); Lesco v. State, No. 01-98-01168-CR, 1999 WL 343425 (Tex. App.--Houston [1st Dist.] May 27, 1999, no pet.) (mem. op., not designated for publication) (based on description that two intoxicated white men caused disturbance inside coffee shop, officers justified in stopping vehicle containing two white men close to shop, even though no traffic violation committed before the stop).

The 9-1-1 call from Linda asked for dispatch to send officers to interview witnesses who had information about the copper wire thefts. She described the suspects as two men in a red Ford Taurus being driven on County Road 292. Further, the record contains evidence that a witness, an electric cooperative employee, communicated information to Roy. McAllister made no challenge to the credibility of the witnesses or the reliability of the information provided by them at trial. Roy then spoke with dispatch to relay the witness' description of the vehicle and suspects. Charlo was told to stop a 1980-1990s model red Ford hatchback containing two white men in their twenties traveling on 1249 north going toward 292. These facts, taken together with rational inferences, warranted the stop of the red Ford hatchback on County Road 292, which contained suspects matching the description issued an hour and a half earlier. We conclude Charlo had reasonable suspicion to initiate the stop based on credible witness description, and the proximity in time and geography in relation to the crime.

We affirm the judgment of the trial court.   

Jack Carter

Justice

Date Submitted: July 23, 2008

Date Decided: August 22, 2008

Do Not Publish

1.

County Road 288 runs parallel to County Road 292, both intersecting at 1249.

d at bar.

The further question is whether the evidence would support a jury's finding that Canida was guilty as being criminally responsible for the acts of Jackson or Johns.

Section 7.01 of the Texas Penal Code provides that a person is criminally responsible as a party if the offense is committed by his own conduct, or by that of another for which he is criminally responsible. Tex. Penal Code Ann. § 7.01 (Vernon 2003). Section 7.02 states that a defendant is criminally responsible for an offense committed by the conduct of another if, acting with intent to assist in the commission of the offense, he "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code Ann. § 7.02 (Vernon 2003). In determining whether an accused bears criminal responsibility for an offense, we may look to events before, during, and after the commission of the offense. Marable v. State, 85 S.W.3d 287, 293 (Tex. Crim. App. 2002). Furthermore, a person can be convicted as a party even if (as in this case) the indictment does not explicitly charge him as a party. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006).

The State provided strong evidence that Johns and Jackson were involved in a methamphetamine cooking operation. The result of the cooking operation was their possession of the methamphetamine so produced. Thus, if the evidence proves that Canida intentionally solicited, encouraged, directed, aided, or attempted to aid them in the manufacturing process, it necessarily proves a connection with the finished product as well.

There is evidence that Jackson was both in possession of methamphetamine and that would readily support a conclusion that he was assisting with the manufacture. The evidence shows that Canida gave Jackson permission to stay in his trailer at the camp. There is some evidence that Canida had been (during the prior year) at the camp four to six times, and some evidence that he was there regularly, although that evidence is entirely imprecise. There was evidence that Canida was coming to the camp (with methamphetamine in his possession) and that, when he saw officers there, he slowed down and then turned to leave, in what could be construed as an attempt to avoid an encounter with the police. In the absence of any knowledge of illegal activity at the camp, Canida would have less of a reason to avoid police--although that argument is strained because, even if he had no knowledge of illegal acts at the camp, he was at that time in possession of a small amount of methamphetamine. The fact that the contraband he had in his possession was the same type of drug as was being manufactured at the camp allows some inference that he was going to the camp to protect his interest in the product being created, but we are also aware that methamphetamine is currently rampant and is not so unique or unusual as to allow any conclusive presumptions to be drawn from Canida's possession of the small amount in his truck.

For Canida to have permitted this miscreant to live in his trailer shows bad judgment, but does not necessarily make him a party to possession of the miscreant's drugs. For Canida to turn and try to avoid police might show knowledge of what the miscreant was doing, but is equally understandable for other reasons, since Canida had an illegal drug in his truck at the time. In the absence of any evidence that Canida was at the camp during any relevant time frame when he might have acquired knowledge of the manufacture, presumptions of knowledge from any apparent cooking process cannot be drawn. The wooden building was secured by a lock, and there is evidence that only Thompson and Canida had a key to the building and that Thompson had not given his key to anyone else. Nevertheless, the building was open, and Jackson and Johns were using that building for part of the wash process used in the manufacturing process.

This evidence, when reviewed in the light most favorable to the verdict, can be said to support a conclusion that Canida was aware of the activity, and that he was supporting its conduct by allowing one of the actors to stay there and conduct the criminal activity in an area that Canida claimed to possess. Thus, the evidence is legally sufficient to support the verdict.

In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. See Watson, 204 S.W.3d at 417. This evidence is weak.

Summarized, the evidence which favors conviction shows that:

(a) law enforcement officers arrived at the Fish Camp in time to catch Jackson and Johns involved in a methamphetamine cooking operation;

(b) Canida and his wife owned the camper trailer in which Jackson was staying and there were prescription drugs for a heart condition labeled for Jackson in the trailer;

(c) Canida had been seen in the area by a law enforcement officer four to six times in the previous year;

(d) the account for the provision of electrical service to the entire Fish Camp was held in Canida's name;

(e) the general premises of the Fish Camp were littered with the kinds of trash and paraphernalia which are common to the manufacture and use of methamphetamine;

(f) when Canida arrived near the area of the Fish Camp and detected the presence of strangers there, he diverted his course and went away; and

(g) when Canida was stopped by an officer for not wearing his seat belt, there was a small amount of methamphetamine in the truck he was driving (the possession of which he has been separately charged).

The evidence contravening those things is as follows:

(a) there was no evidence that Canida was actually aware that methamphetamine was being manufactured or stored at the Fish Camp;

(b) another person was actually residing in Canida's camper trailer at the time;

(c) although the electrical service contract was held in Canida's name, it was a matter of convenience because two other people equally shared the cost of provision of this utility;

(d) even though Canida had joint use of the metal and wooden buildings on the property and the property itself, he did not have exclusive control of them;

(e) because Canida had methamphetamine in his truck, which he would probably not want anyone to discover, he had good reason to avoid peace officers who were at the Fish Camp;

(f) except for the evidence that Canida had been seen around the Fish Camp area four or five times in the last year, there was nothing to show that Canida was around at any time when the methamphetamine-cooking operation was taking place or that he was aware that it was occurring; and

(g) there is nothing to show that Canida had any reason or occasion to check the area around the burn barrel to examine its contents and, even if he had examined its contents, to know the significance of the trash contained.

In summation, although the State can tie Canida to the trailer (as its owner), to the Fish Camp and its environs (as one of its co-possessors), and to Jackson (as Jackson's landlord), there is factually insufficient evidence to connect Canida to the methamphetamine for which he has been charged in this case.

We reverse the judgment and remand the case to the trial court for further proceedings.  

Bailey C. Moseley

Justice

Date Submitted: March 20, 2007

Date Decided: April 3, 2007

Do Not Publish

1. These belonged to Ken Maddox, Gary Thompson, and Woody Farmer.

2. The officers chased Leon Jackson into one of the buildings and captured both Jackson and Curtis Johns on the premises. The officers testified that they immediately recognized that the location was being used to cook methamphetamine, immediately obtained a search warrant, and then searched the other buildings.

3. Specifically, officers found Drainout, ether, acetone, coffee filters, ephedrine powder, and starting fluid.

4. The Texas Court of Criminal Appeals recently wrote in Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006), that these should be called "links" rather than "affirmative links" hereafter, as using the modifier "affirmative" adds to much confusion within the context of a factual sufficiency review.

5. As a sidenote, the officer who stopped Canida's pickup truck did so based on a seat belt violation, and truthfully acknowledged that he could have arrested Canida for that traffic violation, and would probably have done so instead of giving him a citation--and would of course then have been forced to inventory the vehicle before it was towed.