Green, Roy Leonard v. State ( 2004 )

Affirmed and Memorandum Opinion filed June 22, 2004

Affirmed and Memorandum Opinion filed June 22, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00213-CR

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ROY LEONARD GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 927,570

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M E M O R A N D U M   O P I N I O N

In his sole issue, appellant Roy Leonard Green contends the trial court erred in denying his motion to suppress evidence.  We affirm.

I.  Factual and Procedural Background

Drug Enforcement Administration (ADEA@) Agent Jack Schumacher received a telephone call from an attorney concerning information his client, Gabriel Monroe, had regarding drug trafficking in Houston.  Monroe had not worked with the police or the DEA in the past.  Approximately three weeks after their initial meeting, Monroe telephoned Schumacher and stated he would be able to arrange the sale of two kilograms of cocaine from a man named Roger Dyer.  According to testimony, Dyer insisted the sale take place on October 15, 2002, at a Burger King located near the intersection of Martin Luther King Boulevard and Interstate 610. With the assistance of officers from the Pasadena Police Department Narcotics Division, Schumacher set up surveillance at the Burger King. Dyer informed Monroe that he did not have two kilograms of cocaine and would be relying on a third-party supplier to consummate the deal. Dyer informed Monroe that his supplier, who later turned out to be appellant, preferred to meet at a shopping center located further north on

Martin Luther King Boulevard

rather than the Burger King.

According to Schumacher=s testimony, Monroe informed him that Dyer would be driving a black Harley Davidson-model Ford pickup truck.^[1]  Schumacher testified that, upon arriving at a service station located across the street from the shopping center, he observed a black Harley Davidson pickup truck in the parking lot positioned in close proximity to a gray Harley Davidson-model Ford pickup truck. Monroe was located at the same service station as Schumacher and also testified that Dyer=s black truck was in the shopping center parking lot.  Monroe, however, did not recall seeing the gray truck, and did not know what type of vehicle the supplier was driving.^[2]  Schumacher was unwilling to purchase the cocaine at the shopping center and insisted Monroe inform Dyer that the sale had to take place at the Burger King.  By radio, Schumacher kept the Pasadena police officers informed of the transpiring events.

According to Detective Timothy Smith of the Pasadena Police Department Narcotics Division, the black and gray pickup trucks, driven by Dyer and appellant respectively, traveled in tandem southbound on Martin Luther King Boulevard in the direction of the Burger King. Smith observed the vehicles pull off the road, at which time Dyer exited his vehicle and talked to someone in the gray pickup truck.  Dyer telephoned Monroe and agreed to proceed with the transaction at the Burger King. Monroe relayed this message to Schumacher and Schumacher informed the Pasadena police officers.

Upon arriving at the Burger King, Dyer and appellant parked their vehicles, and Monroe, who was already at that location, parked his vehicle next to Dyer.  Appellant exited his truck and walked to Dyer=s vehicle where he and Dyer conversed.  Monroe approached both men and appellant returned to his truck, moving it to the other side of the parking lot.  Monroe entered Dyer=s vehicle and received a telephone call from Schumacher asking if the cocaine was present.  Monroe told Schumacher the cocaine was at the Burger King, but did not indicate which vehicle contained the contraband.  Schumacher radioed the Pasadena police officers, signaling the officers to proceed.

Smith was the first officer on the scene. At the sight of Smith=s unmarked police vehicle, appellant attempted to back out of the Burger King parking lot, but was blocked by several poles.  Smith placed his vehicle in front of appellant=s truck, effectively blocking in appellant.  Wearing a police raid vest, Smith exited his vehicle with his service weapon drawn and ordered appellant to display his hands.  While appellant was raising his hands, a gun fell to his lap, at which time Smith gave appellant additional commands to keep his hands raised. Appellant told Smith that he had a gun and that Smith should Abe cool because the dope is in the back.@ Smith opened appellant=s door and removed appellant from the vehicle.  Appellant was placed on the ground and handcuffed.  Turning back to appellant=s vehicle, Smith saw the gun lying on the front seat of the truck.  Upon looking through the side window, Smith observed a package wrapped in clear plastic and black duct tape.  Smith testified that, based on his experience, this type of wrapping was a common way of packaging cocaine.  The package later tested positive for the presence of cocaine.

Appellant was charged by indictment with possession of a controlled substance with intent to deliver.  See Tex. Health & Safety Code Ann. ' 481.112 (Vernon 2003).  Following the trial court=s denial of appellant=s motion to suppress, appellant pleaded guilty.  Pursuant to a plea agreement, the trial court sentenced appellant to thirty years= confinement in the Texas Department of Criminal Justice, Institutional Division. 

II.  Issue Presented

Appellant contends the trial court erred in denying his motion to suppress in violation of appellant=s rights under the Fourth Amendment to the United States Constitution, article I, section 9 of the Texas Constitution,^[3] and article 14.01 of the Texas Code of Criminal Procedure.^[4]

III.  Analysis

Appellant argues he was illegally placed under arrest without a warrant when Detective Smith exited his vehicle with his gun drawn and pointed at appellant. As a result, appellant claims the subsequent search of his vehicle was also illegal.  The State contends that Smith=s actions amounted to a mere detention based on reasonable suspicion rather than an arrest, that events quickly escalated to an arrest, and that the subsequent search of appellant=s vehicle was thereby lawful.  We agree.  

Generally, we review the trial court=s ruling on a motion to suppress evidence under an abuse-of-discretion standard.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned.  Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  At a suppression hearing, the trial judge is the sole finder of fact. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993).  The trial judge is free to believe or disbelieve any or all of the evidence presented.  See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on evaluating a witness=s credibility and demeanor.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  We afford the same amount of deference to the trial court=s ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.  Id.  In this case, the trial court did not make explicit findings of historical fact, so we review the evidence in a light most favorable to the trial court=s ruling.  O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).

Review of a trial court=s decision on a motion to suppress calls for the reviewing court to consider de novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed at the time of the search or seizure. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review.  See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). 

A.        Detention or Arrest?

Interactions between police and civilians are divided into three categories: (1) encounters, (2) investigative detentions, and (3) arrests.  See State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).  AA person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.@  Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977).  However, this Arestraint of liberty@ standard is not adequate when distinguishing between an arrest and a detention because it is a characteristic common to both.  Dang v. State, 99 S.W.3d 172, 180 (Tex. App.CHouston [14th Dist.] 2003, pet. granted).  Whether a particular seizure of a person is an arrest or merely a temporary investigative detention is a matter of degree and depends upon the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation.  See Woods v. State, 970 S.W.2d 770, 775 (Tex. App.CAustin 1998, pet. ref=d).

At the suppression hearing, Detective Smith testified that once he received information via radio indicating the cocaine was at the Burger King location, he parked his unmarked vehicle behind appellant=s truck.  Wearing a police raid jacket, Smith exited his vehicle, approached appellant with his service revolver drawn, and ordered appellant to display his hands. Smith testified he was attempting to detain appellant at this point.  The officer=s testimony is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place.  Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

Based on the testimony at the hearing, the length of the detention was very brief because events escalated quickly.  Detective Smith testified that when appellant obeyed the command to raise his hands, Smith witnessed appellant drop a pistol into his lap.  According to Smith=s testimony, as he gave appellant additional commands to continue raising his hands, appellant stated, AI got a gun.  I got a gun and it=s in the back.@  Smith testified that appellant then stated, ABe cool because the dope is in the back.@  While one factor for the court=s consideration in determining whether a detention or arrest occurred is whether the officer conducted an investigation, in this case, it appears from the testimony that appellant=s actions and statements escalated events so rapidly that Detective Smith was unable to conduct an investigation. 

With regard to the amount of force used, officers may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety.  Rhodes, 945 S.W.2d at 117.  Here, Detective Smith testified that for safety purposes, he blocked in appellant=s vehicle and exited the patrol car with his weapon drawn.  See id. at 117B18 (concluding officer=s temporary investigative detention was reasonable under the circumstances when officer handcuffed the appellant primarily out of concern for his safety).  In this case, Detective Smith knew a drug transaction involving two kilograms of cocaine was scheduled to take place at the Burger King location.  According to his testimony, Smith was made aware by Agent Schumacher that two vehicles would be involved.  Smith stated that he was the first mobile unit to respond after he had been given the signal that the cocaine was on the premises.  He testified that when he pulled behind appellant=s truck, appellant shifted his vehicle into reverse and attempted to back out of his parking space, an effort hindered by poles located behind appellant=s truck.  Under these circumstances, Smith=s actions of blocking appellant=s vehicle and approaching appellant with his service revolver drawn were reasonable to maintain officer safety.  See Morris v. State, 50 S.W.3d 89, 98 (Tex. App.CFort Worth 2001, no pet.) (holding handcuffing of the appellant was reasonable force to maintain officer safety in situation involving arranged reverse drug transaction with multiple parties and multiple vehicles).  Therefore, we hold appellant was not under arrest when Detective Smith blocked his vehicle and approached appellant with his service revolver drawn.

B.        Validity of Detention

To temporarily detain a person for investigative purposes, an officer need have only Aspecific and articulable facts which, in light of a police officer=s experience and personal knowledge taken together with rational inferences from those facts, would reasonably warrant the intrusion upon a citizen=s freedom.@  Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App. 1988).  For a temporary investigative detention to be valid, the following factors must be present: (1) an unusual activity must be occurring or have occurred; (2) the accused must be connected with the suspicious activity; and (3) the suspicious activity must be connected with crime.  Davis v. State, 829 S.W.2d 218, 219 n.2 (Tex. Crim. App. 1992). Information from an informant that exhibits sufficient indicia of reliability may provide the reasonable suspicion necessary to justify an investigatory detention.  See Alabama v. White, 496 U.S. 325, 329B30, 110 S. Ct. 2412, 2415B16, 110 L. Ed. 2d 301 (1990); Adams v. Williams, 407 U.S. 143, 146B47, 92 S. Ct. 1921, 1923B24, 32 L. Ed. 2d 612 (1972).  Where there has been some cooperation between police officers, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists.  Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987).             The information possessed by Detective Smith at the time he approached appellant came from Agent Schumacher by way of Gabriel Monroe, as well as from observations made by both Smith and Schumacher. Although Schumacher testified that he did not consider Monroe to be a police informant, but rather viewed him as a witness, Monroe provided Schumacher with detailed information about the narcotics transaction.  Though this was the first time Monroe provided information to the officers, Monroe testified that he had engaged in narcotics transactions with Dyer and had personal knowledge that he dealt in cocaine.  He met with Schumacher in person to discuss setting up the narcotics transaction and later gave Schumacher a specific date and location, informed him of the quantity of the cocaine, and told him someone other than Dyer would be supplying the narcotics at the transaction.  Monroe testified that he saw two Harley Davidson-edition pickup trucks, one black and one gray, park at the Burger King parking lot.  Monroe then witnessed the driver of the gray truck, appellant, speak with Dyer before Monroe gave Schumacher the signal that the cocaine was on the premises.

This information was corroborated by the observations of both Schumacher and Smith.  Schumacher testified that, upon arriving at a service station located across the street from the shopping center where Dyer had initially requested moving the transaction, he observed a black Harley Davidson pickup truck in the parking lot positioned in close proximity to a gray Harley Davidson pickup truck.  Schumacher testified that Monroe pointed to the two trucks in the parking lot, stating A[t]hat=s them right there@; however, Monroe denied making the statement during his testimony.  In addition to receiving the information about the transaction via Schumacher, Detective Smith personally observed the two trucks travelling in tandem and watched as the occupants parked the trucks on the side of the road at one point and conversed.  Smith also observed the trucks in the Burger King parking lot when he was notified that the cocaine was at the location.  See Zone v. State, 84 S.W.3d 733, 738 (Tex. App.CHouston [1st Dist.] 2002), aff=d 118 S.W.3d 776 (Tex. Crim. App. 2003) (stating anonymous informant=s tip made more reliable when officer arrived and determined informant had described scene accurately). Appellant then attempted to leave his Burger King parking space at the sight of Smith=s unmarked police vehicle.

Thus, the officers possessed reasonable suspicion to believe appellant, as the driver of the gray pickup truck, was involved in unusual activity connected with crime, namely a scheduled narcotics transaction.  The information provided by Monroe, coupled with the officers= observations, gave Smith reasonable suspicion to temporarily detain appellant.  See Doyle v. State, 779 S.W.2d 492, 495 (Tex. App.CHouston [1st Dist.] 1989, no pet.) (holding officers justified in stopping car for further investigation when officer had information from known informant that narcotics transaction was about to take place and had corroborated information by personal observation).  We conclude that appellant=s detention did not rise to the level of an arrest and was reasonable and justified under the circumstances.   

C.        The Search of Appellant=s Vehicle

The search of appellant=s vehicle did not occur until after appellant dropped a pistol in the officer=s presence and made statements indicating he possessed both a weapon and narcotics.  Specifically, Detective Smith testified that when appellant obeyed the command to raise his hands, appellant dropped a pistol into appellant=s lap.  According to Smith=s testimony, as he gave appellant additional commands to continue raising his hands, appellant stated, AI got a gun.  I got a gun and it=s in the back.@  Smith testified that appellant then stated, ABe cool because the dope is in the back.@  At that point, Smith commanded appellant to exit the vehicle and lay on the ground. Appellant was then handcuffed. 

The subsequent search of appellant=s vehicle was valid on several grounds.  First, Smith testified he saw the pistol resting on the seat of appellant=s vehicle because the driver=s door was open.  In addition, according to Smith=s testimony, he observed the cocaine in appellant=s backseat through the side window of appellant=s vehicle.  Evidence is lawfully seized if it meets the requirements of the Aplain view@ doctrine.  Dickey v. State, 96 S.W.3d 610, 613 (Tex. App.CHouston [1st Dist.] 2002, no pet.).  That 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 (i.e., there is probable cause to associate the item with criminal activity).  Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).  Here, Smith was in a public place C a restaurant parking lot C performing an investigative detention, when appellant made statements indicating he possessed a weapon and narcotics.  Moreover, police officers may conduct a warrantless search of an automobile if they have probable cause to believe there is contraband or the instrumentalities of a crime located somewhere inside the vehicle. State v. Guzman, 959 S.W.2d 631, 632, 634 (Tex. Crim. App. 1998).  Finally, once appellant dropped his pistol in Smith=s view and made the statements regarding the weapon and the narcotics, Smith possessed probable cause to arrest appellant, and the search of his vehicle became a valid search incident to arrest.  See Brooks v. State, 76 S.W.3d 426, 434 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Doyle, 779 S.W.2d at 495 (finding admission to drug possession gave officer probable cause that offense was being committed in presence and seizure of contraband was justified).  

Therefore, the trial court did not err when it denied appellant=s motion to suppress the evidence obtained during the search.  Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2004.

Panel consists of Justices Edelman, Frost, and Guzman.

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

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^[1]  Appellant=s vehicle is referred to interchangeably as gray or silver throughout the record.  For consistency, we will refer to the color as gray.

^[2]  A DEA report authored by a person riding with Schumacher on the day of the arranged drug transaction did not mention the agents leaving the Burger King and travelling to the shopping center. The same DEA report also did not mention the sighting of appellant=s gray truck until the truck was seen entering the Burger King shortly before the arrest. This aspect of the DEA report was confirmed by a Pasadena police report.

^[3]  Although appellant asserts error under both the United States and Texas Constitutions, he does not indicate how his rights under the Texas Constitution are different from those under the federal constitution. As a result, we decline to address appellant=s state constitutional argument.  See Arnold v. State, 873 S.W.2d 27, 33 & n.4 (Tex. Crim. App. 1993).

^[4]  Appellant argues Detective Smith lacked authority to arrest him without a warrant because no offense was committed in Smith=s presence, as required for a warrantless arrest under article 14.01 of the Texas Code of Criminal Procedure.