Marshall, Juanito v. State ( 2013 )

Affirmed; Opinion Filed March 22, 2013.
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No. 05-11-01591-CR
JUANITO MARSHALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-53984-R
OPINION
Before Justices Lang-Miers, Myers and Richter’
Opinion by Justice Myers
Appellant Juanito Marshall pleaded guilty to possession with intent to deliver cocaine,
pursuant to a plea agreement. See TEx. HEALTH & SAFETY CODE ANN. § 481.112(a). He was
sentenced by the trial court to fifteen years’ imprisonment and a $3,000 fine. In three issues,
appellant contends the trial court erred by denying his pretrial motion to suppress. We affirm the
trial court’s judgment.
BAcKGRouND AND PRocEDuRAL HISTORY
Jacob Cuevas testified at the hearing on appellant’s motion to suppress that he worked for
three years at the Greyhound bus station in downtown Dallas, Texas, as a licensed security guard
The Hon. Martin Richter, retired Justice, sitting by assignment.
for State Wide Patrol, a private security company hired to provide security and handle baggage
screening at the bus station. Greyhound’s policy provided for random hand searches of all
baggage on certain randomly designated buses for items prohibited by Greyhound’s rules.
Notification of the search policy was included among other warnings printed—in both English
and Spanish—on the back of each bus ticket and on a poster that was displayed on the wall of the
bus station, not far from the ticket counter: “All persons, their belongings and packages, are
subject to being searched at any time.” The written warnings on the bus ticket also stated that
Greyhound has a “zero tolerance” policy for violations of any law, rule, regulation or company
policy. Purchasers who did not want their baggage searched were told they could have their
money refunded and find other means of travel. The searches took place inside the bus station as
people lined up to board the bus.
On April 20, 2009, at around 11:45 p.m., Cuevas was watching as other security
personnel searched the baggage of every person in line to board a bus bound for Memphis and
Chicago. Cuevas had been told to “check the line” and “look for any prohibited items.” The
security officers “scanned every person in that line; no one was singled out.” After they
searched and tagged every piece of luggage, Cuevas watched as the passengers boarded the bus.
Passengers were informed before they boarded the bus that if they got off the bus, there was a
possibility they could be left behind. Cuevas saw appellant board the bus, then immediately get
“right back off.” Appellant walked across the street to a waiting vehicle, a black four-door SUV
whose engine was running, and grab a black luggage suitcase from the rear hatch of the vehicle.
The vehicle drove away at a high rate of speed. Appellant attempted to place the suitcase next to
the luggage that had already been searched. This behavior “grabbed” Cuevas’s attention.
Cuevas and the other two Greyhound security personnel. .1. Carroll and Frankarlos
lovar. told appellant to either remove the item and have it searched or find some other lorm of
travel. Appellant told them he did not mind if they checked the suitcase. He pulled the suitcase
over to the side and started “patting himself around looking fbr the key,’ then told the security
guards he did not have the key.
Cuevas asked appellant to step aside so the other passengers could continue boarding the
bus. As appellant continued looking for the key, the security guards told him they had a way of
opening the suitcase without damaging his property, and appellant said “okay.” According to
Cuevas, no one told appellant he had to stay; appellant wanted to stay. Cuevas testified that as
Carroll started to open the suitcase appellant became “irate or kind of distraught and in the
process of it pushed my officer back to gain possession of that suitcase.” Cuevas described the
contact 1w stating that appellant “swatted and pushed” Carroll’s hand back, and that Carroll
“pushed away because he wanted to keep [hirn]self clear to make sure that he wasn’t in any type
of physical harm.”
Cuevas concluded, based on his training and experience, that appellant had assaulted the
security guard. He handcuffed appellant, took him to an upstairs room, and “flagged” a Dallas
police officer that happened to be “passing by in front of the Greyhound bus station.” Cuevas
was present when that patrol officer, Eric Weast, spoke to appellant. Afier appellant’s handcuffs
were removed, Cuevas heard the officer ask appellant “if that was his luggage,” and appellant
“denied any ownership of the luggage.”
Weast testified that he went to the Greyhound station on April 20, 2009, because he had
received a call from the security guards at the bus station. Weast recalled that he went to the
The record does not reveal Carrofl’s full name, and he did not testify at the suppression hearing.
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Greyhound station quite often——he noted it was “probably still the number one call location in
the Cdv of Dallas “and that there were “a lot of disturbances” there, including intoxicated
individuals, homeless persons. drug dealers, drug sales, drug trafficking, and “pimps.” Weast
also said he had been there “a number of times for trafficking.” I-Ic had worked with the security
officers at the bus station several times and “had given them a lot of instruction,” including that
if “they had drugs in a suitcase and they didn’t have consent to open the suitcase,” they should
call police officers or 911 for assistance but not open the suitcase.
Appellant was still handcuffed when Weast first saw him. Weast met appellant in an
upstairs room at the bus station, approximately eight to ten minutes after the guards called Weast
for assistance. Appellant was nervous but “didn’t seem violent by any means,” so Weast ordered
the handcuffs removed. Weast recalled specifically asking the three security guards in the room.
each of whom carried a handgun, whether they had opened the suitcase. and the guards told
Weast they had not opened the suitcase, which was locked. Weast went downstairs to obtain a
consent to search form, then asked appellant for consent to search the suitcase. Appellant told
Weast he did not know where the suitcase came from, he did not know who owned it, and he
denied the suitcase was his. Weast said to appellant, “You’re telling me the suitcase isn’t
yours?” Appellant replied “no, the suitcase wasn’t his.” Weast informed appellant that if he did
not claim the suitcase, he was going to take the suitcase as abandoned property, search it, and
place it in the Dallas Police Department property room. According to Weast, appellant never
claimed ownership of the suitcase.
Weast testified that he searched the suitcase in front of appellant because he wanted to
give him “every opportunity to claim the suitcase was his.” Appellant indicated he did not have
the key to the locked suitcase, so Weast “had one of the security guards pop the lock.” The
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suitcase did not appear to have been tampered with in any way. Weast found folded clothing in
the suitcase and a “brick” ol then—unknown substance. 1—Ic called for assistance from another
police officer who was certified in testing drugs the substance tested positive for cocaine. After
speaking to the security guards and reviewing a surveillance video recording that showed
appellant had, according to Weast, maintained “care, custody and control of that suitcase,” Weast
arrested appellant. Weast’s written police report was admitted into evidence.
State’s exhibit three was the security video of the Greyhound bus terminal from August
20, 2009. The color video, which had no sound, was first played in court during Cuevas’s
testimony. As he watched the security video, Cuevas testified that appellant could be seen in the
video standing in the middle of a line of people waiting to board the bus, wearing a light colored
T-shirt. After boarding the bus. appellant exited the bus and headed in the direction of the
bottom of the viewing screen---- after which, according to Cuevas, he walked across the street to
the waiting vehicle. Appellant then reentered the viewing screen and placed a black suitcase on
the ground next to the other luggage, before attempting to board the bus. He was confronted by a
security officer and pulled aside.
The security video showed that the security officer who confronted appellant, identified
by Cuevas as Carroll, squatted down and attempted to open the suitcase as appellant stood
adjacent. After watching him for approximately twenty-five to thirty seconds, appellant gestured
to one of the other officers before bending over and reaching down toward Carroll’s hands.
Appellant was promptly handcuffed and escorted from the loading area by Carroll, Cuevas, and a
third security officer. The time counter on the video footage showed that approximately four
minutes passed between the moment appellant first boarded the bus and his detention by the
security guards. Cuevas acknowledged that the poor quality of the video, which he agreed was
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“choppy,” made it difficult to determine whether appellant had any physical contact with Carroll.
Cuevas said his testimony was based on his memory of the events.
The third security guard, Frankarlos Tovar. testified that he was a captain and “head line
supervisor” for field operations at the Greyhound bus station. He was present during the
baggage scans and searches at the bus station on the day in question and was supervising Carroll,
who had been on the job only a few months. When the security guards first identified
themselves to appellant and asked about the suitcase, Tovar recalled that appellant was
cooperative but seemed “kind of nervous,” a “little jittery,” and made “a lot of eye movements,”
as if he was looking around and “trying to notice his surroundings.” They asked appellant
several times if he had any knives, weapons or anything illegal in the suitcase, or if there was any
type of contraband in the suitcase. They told him several times that if he did not want his
baggage searched, they would refund his money and he could find another means of travel. But
appellant appeared determined to stay, according to Tovar.
Tovar testified that, before Carroll attempted to search the suitcase, he asked appellant
again if there was anything in the suitcase they needed to know about. Appellant said “no, no,
go ahead and search.” When he noticed the suitcase was locked, Carroll asked appellant if there
was a key. Appellant appeared to search his pockets and belongings for a key. When he could
not find it, he told the security officers they could open the suitcase by other means. Tovar saw
Carroll squat down to open the suitcase but did not see appellant actually come into “physical
contact” with Carroll, nor was Tovar sure if Carroll “busted” the lock on the suitcase, because
Tovar’s attention was focused on the other passengers as they boarded the bus. The next thing
Tovar recalled was Carroll telling him to “go 10-1 5,” which was the security code for making an
arrest, and he handcuffed appellant and escorted him to an upstairs room. Upstairs, they waited
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br a Dallas police ollicer to arrive hefhre opening the suitcase, which was on a table next to
appellant. When Weast arrived, he spoke to Carroll before opening the suitcase.
On cross—examination, when Tovar watched the security video footane in court, he
asserted that he could see Carroll bending o’er to touch the suitcase, followed by appellant
squatting down to push away Carroll’s hand. Tovar said appellant “moved” Carroll and that the
contact was like a “push” or a “brush,” suggesting appellant wanted Carroll to “free his hands
from the baggage.” Tovar also recalled appellant indicating he no longer wanted the suitcase to
be searched. Tovar assumed appellant was trying to retrieve the suitcase because he wanted to
leave. When Tovar handcuffed appellant, he asked Tovar if he “was going to jail” and Tovar
“told him that was not up to me.” Tovar initially suggested appellant was yelling when he said
this but later admitted that, if appellant spoke loudly, he did so only because of disturbances and
other general noise in the loading area.
The trial court denied appellant’s motion to suppress. In its written findings, the court
found that “Mr. Tovar had observed a breach of the peace, and therefore, his detention of the
Defendant at that time was lawful.” TEx. CoDE CRIN. PRoc. ANN. art. 14.01(a). Regarding
Weast’s search of the suitcase, the court found:
When ownership of property is abandoned or disclaimed prior to search, there is
no Fourth Amendment right against unlawful search since the Defendant has no
legitimate expectation of privacy in the abandoned property. See flawkins v. State,
758 S.W.2d 255, 257 (Tex. Crim. App. 1988). The Court, therefore, finds that
when the Defendant denied ownership of the bag and voiced no objection to its
search, he abandoned the bag absent any police misconduct, and therefore, lost
the right to complain about the search of its contents. State v. Velasquez, 994
S.W.2d 676, 678-79 (Tex. Crim. App. 1999).
The court concluded by finding that “the Defendant was lawfully detained and that he disclaimed
ownership of the bag and, therefore, had no right to privacy with regard to its contents.” After
the court denied the motion to suppress, appellant pleaded guilty before the court to possession
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with intent to deliver cocaine, pursuant to a written plea agreement. The trial court sentenced
appellant to Ii ftecn years imprisonment and a S3 .()0() fine. This appeal 101 lowed.
Discussio
In three related issues, appellant challenges the trial court’s denial of his pretrial motion
to suppress. In his first issue, appellant contends the trial court erred by holding that appellant, a
Greyhound bus passenger, and his bag were lawfully taken into custody by the civilian security
guards at the Greyhound bus station. In his second issue, appellant argues the court erred by
ruling he created reasonable suspicion of “drug trafficking and a breach of the peace offense.” In
his third issue, appellant contends the trial court ciTed by holding he could be arrested and his
luggage seized “on less than probable cause that he committed an offense or that his luggage
contained contraband” Given the interrelated nature of these arguments, we will address
appellant’s issues together.
Breach of the Peace
Appellant complains that the security guards violated Texas law when they took him and
the suitcase into custody because there was no reasonable suspicion to believe he committed a
felony offense or a “breach of the peace.” Citing article 14.01(a) of the Texas Code of Criminal
Procedure, the State contends the security guards lawfully arrested appellant because appellant’s
conduct amounted to a breach of the peace.
When reviewing a trial court’s ruling on a motion to suppress, we view all of the
evidence in the light most favorable to the ruling. State v. Garcia—Cantu, 253 S.W.3d 236, 241
Tex. Crim. App. 2008). When the trial court makes explicit findings of fact, we afford those
findings almost total deference as long as the record supports them, Guzinan v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997), regardless of whether the motion to suppress was granted or
8
denied. Garcia—Qantu, 253 S.W.3d at 241. The prevailing party is entitled to “the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence.” Id. We afford the same amount of deference to the trial court’s rulings on mixed
questions of law and fact, if those rulings turned on an evaluation of credibility and demeanor.
Guzrnan, 955 S.W.2d at 89. Other mixed questions of law and fact are reviewed de novo. Kothe
v. State, 1 52 S.W.3d 54, 62—63 (Tex. Crirn. App. 2004). We review de novo the trial court’s
application of the law, State v. Ross, 32 S.W.3d 853, $56 (Tex. Crim. App. 2000).
Article 14.01(a) provides that “[a} peace officer or any other person, may, without a
warrant, arrest an offender when the offense is committed in his presence or within his view, if
the offense is one classed as a felony or as an offense against the public peace.” TEX. CODE
CRIM. PROC. ANN. art. 14.01(a). Article 14.01(b) provides that a peace officer may arrest an
offender without a warrant “for any offense committed in his presence or within his view.” Id.
“Thus, a peace officer may arrest offenders for any misdemeanor committed within his view as
well as any such felony, while citizens may arrest only for a felony or a misdemeanor that is ‘an
offense against the public peace.” Miles v. State, 241 S.W.3d 28, 39 (Tex. Crim. App. 2007).
An offense against the public peace or a breach of the peace is not statutorily defined.
See Andrade v. State, 6 S.W.3d 584, 590 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d);
Turner v. State, 901 S.W.2d 767, 770 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). The
court of criminal appeals has explained the term “breach of the peace” this way:
‘The term ‘breach of the peace’ is generic, and includes all violations of
the public peace or order, or decorum; in other words, it signifies the offense of
disturbing the public peace or tranquility enjoyed by the citizens of a community;
a disturbance of the public tranquility by any act or conduct inciting to violence or
tending to provoke or excite others to break the peace; a disturbance of public
order by an act of violence, or by any act likely to produce violence, or which, by
causing consternation and alarm disturbs the peace and quiet of the community.
By ‘peace,’ as used in this connection, is meant the tranquility enjoyed by the
citizens of a municipality or a community where good order reigns among its
members. Breach of the peace is a commonlaw offense. It has been said that it is
not a specific offense, yet it may be, and at times is, recognized as such by statute
or otherwise and only when so regarded will it be considered in this article.
The offense may consist of acts of public turbulence or indecorum in
violation of the common peace and quiet, of an invasion of the security and
protection which the laws afford to every citizen, or of acts such as tend to excite
violent resentment or to provoke or excite others to break the peace. Actual or
threatened violence is an essential element of a breach of the peace. Either one is
sufficient to constitute the offense. Accordingly, where means which cause
disquiet and disorder, and which threaten danger and disaster to the community,
are used, it amounts to a breach of the peace, although no actual personal violence
is employed. Where the incitement of terror or fear of personal violence is a
necessary element, the conduct or language of the wrongdoer must be of a
character to induce such a condition in a person of ordinary firmness.’
Woods v. State, 152 Tex, Crim. 338, 213 S.W.2d 685, 687 (1948) (quoting Head v. State, 131
Tex. Crim. 96. 99, 96 S.W.2d 981, 982 (1936)); see also Miles, 241 S.W.3d at 40.
“The determination of whether an act amounts to a breach of the peace is done on a case-
by-case basis, looking to the facts and circumstances surrounding the act.” Turner, 901 S.W.2d
at 770. Conduct that has been found to constitute a breach of the peace includes driving while
intoxicated, possession of a handgun, loud swearing or cursing in a public place, the unprovoked
assault by a man on a woman in a public place, throwing or swinging a beer bottle at another
person, failing to stop and give information after a traffic accident, and criminal trespass on
fenced land containing livestock by one who had previously been asked to leave. Andrade, 6
S.W.3d at 590 (citing additional authorities). In addition, in Estes v. State, 660 S.W.2d 873, 874-
75 (Tex. App.—-Ft. Worth 1983, pet. ref’d), the court found that a defendant who extended the
middle finger of his right hand to a high school principal during commencement exercises had
breached the peace because the obscene gesture amounted to “fighting words.”
Appellant was charged with possession with the intent to deliver cocaine. A person
commits an offense if he “knowingly manufactures, delivers, or possesses with intent to deliver a
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controlled substance listed in Penalty Group 1 “ TEx. HEALTH & SAFETY CODE ANN. §
48 1.1 12(a). Cocaine is listed as a controlled substance under “Penalty Group 1 .“ Id. §
481.1 02(3)(D).
in this case, after hearing all of the evidence, the trial court, citing article 14.01(a), found
the security guard observed a breach of the peace and that appellant’s detention was lawful.
Given the circumstances of this case, we cannot say the trial court erred in reaching this
conclusion. Appellant was in a crowded Greyhound bus station, at night, where police had been
summoned on a number of occasions, including arrests for prostitution, intoxication, drug sales,
and drug trafficking. Weast specifically noted that the police had been summoned to the bus
station a number of times for drug trafficking, and that he had instructed the security guards at
the bus station on how to handle suitcases or luggage suspected of containing drugs. The ticket
appellant purchased stated—in both English and Spanish—that “[ajil persons, their belongings
and packages, are subject to being searched at any time.” After being searched and boarding the
bus, appellant was seen getting off the bus and walking across the street to a waiting SUV. He
grabbed a black suitcase from the rear hatch of the vehicle, which quickly drove away at a high
rate of speed.
Appellant placed the unchecked suitcase alongside the already searched luggage before
attempting to “cut” the line and get back on the bus. One of the nearby security officers, Jacob
Cuevas, found this behavior suspicious. Appellant was asked if he had anything illegal, either
weapons or drugs, in the suitcase. He was told several times that he could take his suitcase and
leave the bus station if he did not want the suitcase searched. During his encounter with the
security guards, appellant was “looking around” and appeared “jittery” and “kind of nervous.”
When he could not find the key to the locked suitcase, appellant gave one of the guards
permission to open it if they could do so without damaging the lock. But after briefly watching
Carroll struggle to open the lock, appellant bent down and pushed away Carroll’s hand.
Based on these facts, there was reasonable suspicion to believe appellant was involved in
the ongoing criminal activity of drug trafficking
3 and that appellant’s conduct posed a threat of
harm to himself and/or the public. Given also the number of disturbances that had occurred at
the bus station as well as the fact that it was at night, crowded with passengers, and that the
security guard was attempting to determine whether appellant was carrying any weapons or
contraband, the evidence was sufficient in this case for the trial court to have concluded appellant
committed a breach of the peace and that the citizen’s arrest was proper under article 14.0 1(a).
Abandonment
Having determined appellant was lawfully detained, we turn to the police officer’s search
of the suitcase. The State argues appellant had no reasonable expectation of privacy in the
suitcase because he abandoned the property, and that Weast acted lawfully by opening it.
4
Abandonment of property occurs if (1) the defendant intended to abandon the property
and (2) his decision to abandon the property was not due to police misconduct. Swearingen v.
State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003). “When the police take possession of
property that has been abandoned independent of police misconduct, no seizure occurs under the
Fourth Amendment.” Id. In addition, when a defendant voluntarily abandons property, he lacks
standing to contest the reasonableness of the search. Id.
The record in this case shows that appellant voluntarily abandoned the property. When
Weast asked appellant for consent to search the suitcase, appellant denied it was his suitcase.
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a).
Appellant contends “the abandonment doctrine was inapplicable because a defendant’s decision to disclaim ownership of a piece of property
cannot be the result of illegalities, i.e., it cannot have been coerced by the illegality.” Since we have already concluded appellant was lawfully
detained, we need not address this argument.
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And when Weast told appellant that if he did not claim the suitcase it would be considered
abandoned property, appellant continued to deny the bag was his. Because appellant disclaimed
any ownership. if there was no police misconduct to tbrce him to deny the suitcase. then there
was no unlawful search. See Hawkins v. State, 75 S.W.2d 255, 257 (Tex. Crim. App. I 98$)
(when ownership of property is abandoned or disclaimed prior to search, no Fourth Amendment
violation occurs because defendant has no legitimate expectation of privacy in property that has
been abandoned); see also Swearingen, 101 S.W.3d at 101 (because defendant voluntarily
abandoned property, he lacked standing to contest reasonableness of search); State v. Velasquez,
994 S,W.2d 676, 678—79 (Tex, Crim. App. 1999) (appellant abandoned bag containing cocaine
and marihuana when he denied ownership at least twice and voiced no objection to officer’s
search of bag and there was no evidence of police misconduct); McDu// r. State, 939 S.W.2d
607. 616 (Tex. Crim. App. 1997) (intent to abandon may be inferred from words spoken, acts
done, and other objective facts and relevant circumstances); Bavhavong i’. State, No. 01—04—
01 120—CR. 2006 W[. 407790, at *23 (Tex. App.— Houston [1st Dist.] Feb. 23, 2006. no pet.)
(mem. op., not designated for publication) (denying ownership of a bag “is sufficient evidence of
a person’s intent to relinquish this expectation of privacy” in it) (citing Tankoy v. State, 738
S.W.2d 63, 67 (Tex. App.—Houston [1st Dist.] 1987, no pet.)).
On this record, we find no evidence of police misconduct. Absent such evidence,
appellant lacked standing to complain about the search or any evidence obtained from it. See
Swearingen, 101 S.W.3d at 101; Hawkins, 758 S.W.2d at 257. Thus, we cannot conclude the
trial court abused its discretion by denying appellant’s pretrial motion to suppress. We overrule
appellant’s issues.
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We affirm the trial CoUrt’S judgment.
JUSTICE
[)o Not Publish
Tux, R. App. P.47
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JUDGMENT
Juanito Marshall, Appellant On Appeal from the 265th Judicial District
Court, Dallas County, Texas
No. 05-1 1-01591-CR V. Trial Court Cause No. F09-53984-R.
Opinion delivered by Justice Myers.
The State of Texas, Appellee Justices Lang-Miers and Richter
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22 day of March. 2013
LANA MYE S
JUSTICE