State v. Cory Ray Molder ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00385-CR
THE STATE OF TEXAS APPELLANT
V.
CORY RAY MOLDER APPELLEE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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In four related points, the State appeals the trial court‘s order granting
appellee Cory Ray Molder‘s motion to suppress evidence that the police found in
his truck. The State contends that officers found the evidence during a legal
inventory. We affirm.
Background Facts
One morning in June 2009, Texas Department of Public Safety (DPS)
Trooper Earl (―Dub‖) Gillum Jr. stopped at a gas station to wash his windshield.
While Trooper Gillum was there, Denisa Rudnicky, a clerk from the station,
walked outside, began talking to Trooper Gillum, and received a call on her cell
phone from appellee. Trooper Gillum heard appellee scream to Rudnicky that he
was going to ―f--- [her] up‖ and ―ram [her] vehicle.‖ Trooper Gillum put the phone
to his ear and said, ―This is Trooper Dub Gillum with the highway patrol.‖
Appellee hung up.
Trooper Gillum traced the call to a Granbury motel, and he called
appellee‘s room. Trooper Gillum told appellee that he had heard the threats
appellee had made, and Trooper Gillum said that he was going to come to the
motel to talk to appellee. Appellee said that he would leave the motel. Trooper
Gillum called dispatch, and two Granbury Police Department officers went to the
motel to ensure that appellee did not leave.
When Trooper Gillum arrived at the motel, appellee was outside in a
parking lot between the motel and another building that contained Song Hays
Chinese Restaurant. An officer gave appellee‘s keys to Trooper Gillum.
Appellee was shirtless and handcuffed. His eyes were dilated and moving
rapidly as if he was ―high on some type of drug.‖ Trooper Gillum told appellee
that he was under arrest for assault by threat. Appellee expressed concern
about the motel owner‘s throwing his possessions away, but Trooper Gillum told
appellee that would not happen. One of the officers took appellee to jail.
Trooper Gillum decided to take an inventory of appellee‘s truck—which
was parked and locked in a private lot near the motel but closer to Song Hays—
2
and then have a wrecker transport the truck to an impound lot. Two other
troopers brought Trooper Gillum an HQ-109 inventory form, which must be
completed as part of DPS‘s policy, and helped Trooper Gillum inventory the
truck.
During the inventory, Trooper Gillum found a blue cloth bag that had a
rope around it and smelled like marijuana. He opened the bag and saw a
cigarette box. Inside the box, he discovered three clear plastic baggies
containing a crystal white substance that he believed to be methamphetamine.
Also inside the blue cloth bag, Trooper Gillum found another baggie with two
prescription pills, $166, an electronic gram scale, a glass pipe that could be used
to smoke methamphetamine, a metal pipe that contained marijuana residue, a
gas lighter, and approximately thirty empty plastic baggies.1
A Hood County grand jury indicted appellee for possession of
methamphetamine and possession of methamphetamine with intent to deliver.2
Appellee filed a motion to suppress the evidence found in his truck, arguing that
officers had violated his constitutional and statutory rights by searching the truck
without a warrant or probable cause. He relied on the United States Supreme
1
The inventory form also shows that the truck contained valuable items
unassociated with drug use. Officers found an air tank, two chairs, two
hammers, and a cooler in the truck‘s bed. They found ―ammo‖ in a toolbox.
They also found a wallet inside the truck.
2
See Tex. Health & Safety Code Ann. §§ 481.102(6), .112(a), .115(a)
(Vernon 2010).
3
Court‘s decision in Arizona v. Gant.3 The trial court held a hearing, at which the
State called Trooper Gillum in an attempt to prove that he had found the
evidence while conducting a lawful inventory. The trial court granted appellee‘s
motion, and the State filed notice of this appeal.4
The Suppression of the Evidence
In four points, the State argues that the trial court erred by granting
appellee‘s motion to suppress. Specifically, the State contends that the court
erred by finding that (1) Trooper Gillum did not conduct the inventory under
DPS‘s general policy, (2) the impoundment of appellee‘s truck was unreasonable
and therefore illegal under federal and state law, and (3) Gant affects the legality
of inventories.
Standard of review
We review a trial court‘s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court‘s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
3
129 S. Ct. 1710, 1723 (2009).
4
See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2010).
4
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006).
Therefore, we give almost total deference to the trial court‘s rulings on
(1) questions of historical fact, even if the trial court‘s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court‘s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court‘s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the ruling.
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.
2006). When the trial court makes explicit fact findings, we determine whether
the evidence, when viewed in the light most favorable to the trial court‘s ruling,
supports those fact findings. Kelly, 204 S.W.3d at 818–19. We then review the
trial court‘s legal ruling de novo unless its explicit fact findings that are supported
by the record are also dispositive of the legal ruling. Id. at 818. We must uphold
5
the trial court‘s ruling if it is supported by the record and correct under any theory
of law applicable to the case even if the trial court gave the wrong reason for its
ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (―Our task . . .
is to determine whether the trial court could have reasonably denied appellant‘s
motion to suppress given the record evidence and given the applicable federal
and state law.‖), cert. denied, 541 U.S. 974 (2004).
The legality of Trooper Gillum’s inventory
The United States and Texas constitutions protect against unreasonable
searches by government officials. U.S. Const. amend. IV; Tex. Const. art. I, § 9.
Once a defendant shows that a search occurred without a warrant, the burden
shifts to the State to prove that the search was reasonable under the totality of
the circumstances. Amador, 221 S.W.3d at 672–73; Torres v. State, 182 S.W.3d
899, 902 (Tex. Crim. App. 2005). Trooper Gillum found the items in appellee‘s
truck without a warrant.
Thirty-five years ago, the Supreme Court recognized that in some
circumstances, the police‘s standardized, routine inventory of a vehicle may be
reasonable and valid. South Dakota v. Opperman, 428 U.S. 364, 375–76, 96 S.
Ct. 3092, 3100 (1976). Eleven years later, the Supreme Court repeated that
holding. Colorado v. Bertine, 479 U.S. 367, 369, 107 S. Ct. 738, 739–40 (1987);
see also Illinois v. Lafayette, 462 U.S. 640, 643, 103 S. Ct. 2605, 2608 (1983)
6
(explaining that the absence of a warrant in an inventory is immaterial to the
inventory‘s reasonableness).
In Opperman, the Vermillion, South Dakota police had towed a car to an
impound lot because it was unoccupied and illegally parked. 428 U.S. at 365–
66, 96 S. Ct. at 3095. At the lot, an officer, using a standardized form,
inventoried the contents of the car, which included looking in an unlocked glove
compartment, and found marijuana. Id. at 366, 96 S. Ct. at 3095. After
Opperman came to the lot to claim his property, the police charged him with
possessing marijuana, and he filed a motion to suppress the evidence found
during the inventory. Id. at 366, 96 S. Ct. at 3095–96. The trial court denied his
motion, and a jury convicted him, but the South Dakota Supreme Court reversed
the conviction, holding that the marijuana had been obtained in violation of the
Fourth Amendment. Id. at 366–67, 96 S. Ct. at 3095–96. In reversing the South
Dakota court, the United States Supreme Court stated in part,
When vehicles are impounded, local police departments
generally follow a routine practice of securing and inventorying the
automobiles‘ contents. These procedures developed in response to
three distinct needs: the protection of the owner‘s property while it
remains in police custody . . . ; the protection [of] the police against
claims or disputes over lost or stolen property . . . ; and the
protection of the police from potential danger . . . . The practice has
been viewed as essential to respond to incidents of theft or
vandalism. . . .
....
The Vermillion police were indisputably engaged in a
caretaking search of a lawfully impounded automobile.
The inventory was conducted only after the car had been impounded
7
for multiple parking violations. The owner, having left his car illegally
parked for an extended period, and thus subject to impoundment,
was not present to make other arrangements for the safekeeping of
his belongings. The inventory itself was prompted by the presence
in plain view of a number of valuables inside the car. . . .
On this record we conclude that in following standard police
procedures, prevailing throughout the country and approved by the
overwhelming majority of courts, the conduct of the police was not
―unreasonable‖ under the Fourth Amendment.
Id. at 368–76, 96 S. Ct. at 3097–3100 (citations and footnotes omitted).
Similarly, in Bertine,
a police officer in Boulder, Colorado, arrested [Bertine] for driving
while under the influence of alcohol. After Bertine was taken into
custody and before the arrival of a tow truck to take Bertine‘s van to
an impoundment lot, a backup officer inventoried the contents of the
van. The officer opened a closed backpack in which he found
controlled substances, cocaine paraphernalia, and a large amount of
cash. . . .
The backup officer inventoried the van in accordance with
local police procedures, which require a detailed inspection and
inventory of impounded vehicles. He found the backpack directly
behind the frontseat of the van. Inside the pack, the officer observed
a nylon bag containing metal canisters. Opening the canisters, the
officer discovered that they contained cocaine, methaqualone
tablets, cocaine paraphernalia, and $700 in cash. In an outside
zippered pouch of the backpack, he also found $210 in cash in a
sealed envelope. After completing the inventory of the van, the
officer had the van towed to an impound lot and brought the
backpack, money, and contraband to the police station.
After Bertine was charged with [various offenses], he moved
to suppress the evidence found during the inventory search on the
ground, inter alia, that the search of the closed backpack and
containers exceeded the permissible scope of such a search under
the Fourth Amendment.[5]
5
In the Supreme Court‘s opinion, it noted that the Colorado trial court had
found that the ―standard procedures for impounding vehicles mandated a
8
479 U.S. at 368–69, 107 S. Ct. at 739–40. The Supreme Court held that the
inventory was lawful, reasoning,
[I]nventory searches are now a well-defined exception to the warrant
requirement of the Fourth Amendment. The policies behind the
warrant requirement are not implicated in an inventory search, . . .
nor is the related concept of probable cause . . . .
....
In the present case, as in Opperman and Lafayette, there was
no showing that the police, who were following standardized
procedures, acted in bad faith or for the sole purpose of
investigation. In addition, the governmental interests justifying the
inventory searches in Opperman and Lafayette are nearly the same
as those which obtain here. In each case, the police were
potentially responsible for the property taken into their custody.
By securing the property, the police protected the property from
unauthorized interference. . . .
....
. . . We conclude that . . . reasonable police regulations
relating to inventory procedures administered in good faith satisfy
the Fourth Amendment . . . .
Id. at 371–74, 107 S. Ct. at 741–42 (citations and footnotes omitted); see also
Jurdi v. State, 980 S.W.2d 904, 906, 908 (Tex. App.—Fort Worth 1998, pet. ref‘d)
(relying on Bertine to overrule a defendant‘s challenge to the denial of his motion
to suppress evidence found during an inventory of a car); Starlling v. State, 743
S.W.2d 767, 772 (Tex. App.—Fort Worth 1988, pet. ref‘d) (citing Opperman to
hold that evidence obtained during an inventory was admissible).
‗detailed inventory involving the opening of containers and the listing of [their]
contents.‘‖ Bertine, 479 U.S. at 370, 107 S. Ct. at 740 (emphasis added).
9
The trial court recognized the existence of the inventory exception to the
warrant requirement but held that it is not applicable to this case. To support that
decision, the court concluded that Trooper Gillum‘s inventory was not authorized
because, in sum,
it was not conducted according to DPS‘s general policy because DPS did
not have possession of the truck or an obligation to protect it or its
contents;
it was not reasonable under federal and state law because the truck was
not in DPS‘s possession, it was not creating a traffic hazard, it was parked
and locked, and there were reasonable alternatives to impoundment
because (1) appellee‘s confinement was expected to be short, and the
truck would have been protected by leaving it parked and locked; and (2)
appellee‘s family was at the arrest site;6 and
Gant affects the validity of an inventory that would otherwise be authorized
by Bertine.
The State‘s four points essentially attack these conclusions. We need not
address any of these reasons for suppression, however, because we conclude
that the trial court‘s decision must be affirmed on a different, more specific legal
basis. See Armendariz, 123 S.W.3d at 404.
In appellee‘s brief, he argues,
It is noteworthy that [Trooper] Gillum had to pass through two
closed containers during his inventory search before he arrived at
several clear baggies of meth. The first closed container was a blue
bag with a white rope around it. The second container was a
cigarette box. There was no testimony developed by the State as to
what the standard criteria was for the search policy regarding
containers, and closed containers. Part of the reasonableness of an
6
However, according to Trooper Gillum, appellee‘s father arrived after the
inventory occurred while the ―wrecker was . . . hooking up to the truck.‖
10
inventory search derives from its standard and clearly defined
manner.
After it decided Opperman and Bertine, the Supreme Court readdressed
inventories in Florida v. Wells. 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990). In
Wells,
A Florida Highway Patrol trooper stopped respondent Wells
for speeding. After smelling alcohol on Wells‘ breath, the trooper
arrested Wells for driving under the influence. Wells then agreed to
accompany the trooper to the station to take a breathalyzer test.
The trooper informed Wells that the car would be impounded and
obtained Wells‘ permission to open the trunk. At the impoundment
facility, an inventory search of the car turned up two marijuana
cigarette butts in an ashtray and a locked suitcase in the trunk.
Under the trooper‘s direction, employees of the facility forced open
the suitcase and discovered a garbage bag containing a
considerable amount of marijuana.
Wells was charged with possession of a controlled substance.
His motion to suppress the marijuana on the ground that it was
seized in violation of the Fourth Amendment to the United States
Constitution was denied by the trial court. . . . On appeal, the Florida
District Court of Appeal . . . held . . . that the trial court erred in
denying suppression of the marijuana found in the suitcase. Over a
dissent, the Supreme Court of Florida affirmed.
Id. at 2–3, 110 S. Ct. at 1634. The United States Supreme Court affirmed the
suppression of the marijuana that was found in the closed suitcase, reasoning,
Our view that standardized criteria . . . or established routine
. . . must regulate the opening of containers found during inventory
searches is based on the principle that an inventory search must not
be a ruse for a general rummaging in order to discover incriminating
evidence. The policy or practice governing inventory searches
should be designed to produce an inventory. The individual police
officer must not be allowed so much latitude that inventory searches
are turned into ―a purposeful and general means of discovering
evidence of crime[.]‖
11
....
In the present case, the Supreme Court of Florida found that
the Florida Highway Patrol had no policy whatever with respect to
the opening of closed containers encountered during an inventory
search. We hold that absent such a policy, the instant search was
not sufficiently regulated to satisfy the Fourth Amendment and that
the marijuana which was found in the suitcase, therefore, was
properly suppressed by the Supreme Court of Florida.
Id. at 4–5, 110 S. Ct. at 1635 (citations omitted and emphasis added).
Thus, opening closed containers while conducting an inventory is lawful only
when there is evidence of a policy or established procedure that allows for such.
See id.; Rothenberg v. State, 176 S.W.3d 53, 57 (Tex. App.—Houston [1st Dist.]
2004, pet. ref‘d) (―[T]he Fourth Amendment . . . allows police to open closed—
even locked—containers as part of the inventory of an automobile, as long as
they do so in accordance with standardized police procedures‖); Richards v.
State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2004, pet. ref‘d) (en
banc) (stating that either ―standardized criteria or established routine must
regulate the opening of closed containers during an inventory search‖ and
upholding a search because an officer testified that he was trained to inventory
any container he had access to); see also United States v. Salmon, 944 F.2d
1106, 1121 (3d Cir. 1991) (citing Wells and holding that based on ―the lack of
evidence of any criteria or established routine regarding the scope of an
inventory search, we conclude that the searching officers had impermissible
discretion regarding the . . . treatment of closed containers‖), cert. denied, 502
U.S. 1110 (1992); cf. Perry v. State, 933 S.W.2d 249, 252–53 (Tex. App.—
12
Corpus Christi 1996, pet. ref‘d) (distinguishing the holding in Wells and holding
that an inventory of an ashtray was permissible because it was not a closed
container); 1975 Chevrolet v. State, 801 S.W.2d 565, 566–67 (Tex. App.—Dallas
1990, writ denied) (upholding the inventory of a closed container because the
police department‘s policy was to open locked containers if the police had access
to the keys of the container).
The burden is on the State to show a lawful inventory. State v. Giles, 867
S.W.2d 105, 108 (Tex. App.—El Paso 1993, pet. ref‘d). Here, the State did not
provide the trial court with a written inventory policy.7 Instead, the sole evidence
of DPS‘s inventory policy came from testimony by Trooper Gillum when the State
asked him the following questions:
Q . . . Let me ask you, does the Department of Public Safety
have prescribed procedures for an arrest and when there‘s a vehicle
involved and . . . people‘s property?
A Yes, ma‘am. It‘s our policy that the arresting officer take
control and secure that property in the safest way possible.
Q Okay.
A That property is now my responsibility as the arresting
officer, so I have to take care of that property and do it through
policy with an inventory and a written inventory and witnesses and
filing of that inventory.
7
The trial court admitted DPS‘s property inventory form, which contained
the results of the particular inventory in this case but did not contain any
statement about DPS‘s policy. The general legality of an inventory is not
contingent on whether the inventory policy is written. See United States v.
Skillern, 947 F.2d 1268, 1275 (5th Cir. 1991), cert. denied, 503 U.S. 949 (1992);
Richards, 150 S.W.3d at 771.
13
....
Q Did you feel safe in leaving his vehicle there?
A No, ma‘am, I didn‘t. I didn‘t know what was in the vehicle,
so I inventoried it and then called the wrecker to store it in a safe,
secure place.[8]
Trooper Gillum‘s concise testimony establishes that DPS has a general
policy to inventory vehicles associated with defendants‘ arrests, but the testimony
relates nothing about the scope of the policy or how it affects closed containers
such as appellee‘s roped blue bag. DPS‘s actual inventory policy may require
opening all containers or some containers under specific circumstances, but
those details were not proved in this case.
We recognize that courts have held that an officer does not need to
specifically mention ―closed containers‖ to establish a policy regarding them.
See, e.g., United States v. Mundy, 621 F.3d 283, 290–93 (3d Cir. 2010)
(explaining that ―[s]tandardized criteria or routine may adequately regulate the
opening of closed containers discovered during inventory searches without using
the words ‗closed container‘ or other equivalent terms‖ and holding that a policy
had sufficiently described the scope of an inventory to allow the opening of a
shoebox). But we hold that in this case, Trooper Hall‘s testimony, as the sole
evidence at the suppression hearing, was too barren to show any particular
8
Trooper Hall also testified about some exceptions to requiring an
inventory, but he did not give details about DPS‘s procedures when those
exceptions do not apply and an inventory therefore proceeds.
14
standardized criteria or routine concerning the scope of the inventory; the
testimony is therefore insufficient for us to infer the extent of DPS‘s policy
regarding closed containers. Also, we conclude that we cannot infer DPS‘s
policy to open closed containers from the mere fact that Trooper Hall did so; such
an inference would eviscerate the requirement described in Wells.
Because the evidence at issue was found within a closed container, and
the State did not meet its burden to show the legality of the inventory of that
container, we hold that the trial court did not err by granting appellee‘s motion to
suppress, and we overrule all of the State‘s points that contest, on other grounds,
the trial court‘s suppression decision. See Wells, 495 U.S. at 4–5, 110 S. Ct. at
1635; Armendariz, 123 S.W.3d at 404.
Conclusion
Having overruled all of the State‘s points, we affirm the trial court‘s order
granting appellee‘s motion to suppress.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
MEIER, J. filed a concurring opinion.
PUBLISH
DELIVERED: February 24, 2011
15
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00385-CR
THE STATE OF TEXAS APPELLANT
V.
CORY RAY MOLDER STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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CONCURRING OPINION
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I concur in the result reached by the majority opinion, but I write separately
to voice my belief that the trial court‘s ruling to suppress the evidence found
during the inventory of Molder‘s truck was correct for the additional reason that
the truck should not have been impounded in the first place. The majority holds
that because the State did not offer evidence of any particular standardized
criteria concerning the scope of inventory searches that would lead to a
conclusion regarding DPS‘s policy as to opening closed containers, the State
failed to meet its burden to show the legality of the inventory of a closed
container found in Molder‘s vehicle. I join in the majority‘s analysis and ruling
concerning closed containers under the facts of this case.
I write separately, however, to express my view and opinion that
regardless of what DPS‘s policy is toward closed containers, an inventory of
Molder‘s vehicle should have never occurred. And that is what the trial court
specifically found.
An inventory search is permissible under the federal and state
constitutions if it is conducted pursuant to a lawful impoundment. South Dakota
v. Opperman, 428 U.S. 364, 375–76, 96 S. Ct. 3092, 3100 (1976); Benavides v.
State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980). For an
impoundment to be lawful, the seizure of the vehicle must be reasonable under
the Fourth Amendment. Benavides, 600 S.W.2d at 811. Courts have identified a
number of circumstances in which law enforcement may reasonably impound an
automobile; principal among these circumstances is whether there is some
reasonable connection between the arrest and the vehicle. Id.; Delgado v. State,
718 S.W.2d 718, 721 (Tex. Crim. App. 1986); Daniels v. State, 600 S.W.2d 813,
815 (Tex. Crim. App. [Panel Op.] 1980). But to be sure, an inventory cannot
simply be a ―ruse for a general rummaging in order to discover incriminating
evidence.‖ Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990).
According to the trial court‘s findings of facts, Molder‘s truck was parked
and locked approximately 175 feet from Molder‘s hotel room in front of a nearby
2
business—as the trial court phrased it, ―a private parking lot and not the street.‖
Molder‘s truck faced the street, but otherwise was not impeding the flow of traffic
nor was it a danger to public safety. The trial court found that the distance
between where Molder was detained and eventually arrested was approximately
100 feet from his truck. The trial court further found that there was no reasonable
connection between the arrest and Molder‘s truck; that Molder had not consented
to the search of his truck; that the truck was not blocking traffic; that no exigent
circumstances existed to authorize the search of Molder‘s truck; and that there
was ―no likely evidence of ‗assault by threat‘ to be found‖ in the truck and that
there was no evidence that ―Molder‘s truck had been used in the commission of
this or any other crimes.‖ Furthermore, the trial court determined that Molder
―was not in the proximity of his truck such that he could gain access to the
passenger compartment.‖ Regarding its legal determination of whether a valid
inventory of Molder‘s truck occurred, the trial court specifically concluded that as
a matter of law Molder‘s truck ―never validly came into the possession or
responsibility of the DPS and therefore should not have been impounded.‖
This conclusion by the trial court regarding the impoundment and inventory
of Molder‘s truck is supported by the court of criminal appeals‘s decision in
Benavides. 600 S.W.2d at 810. In Benavides, the police discovered the
defendant and his wife in their home; both had been shot, and the defendant‘s
wife was dead. Id. The police discovered the type of car the defendant drove
and began looking for it. The car was found locked and legally parked about two
3
blocks away from where the defendant and his wife were found. The police
impounded the car for ―protective custody‖ and ―safekeeping.‖ Before towing the
car, the police inventoried its contents and discovered a suicide note
incriminating the defendant. Id. at 810–11.
The court of criminal appeals held the car was unlawfully impounded
because (1) there was no evidence that the car was impeding the flow of traffic or
a danger to public safety; (2) the vehicle was legally parked in a residential area
and locked; (3) while the appellant may not have been able to retrieve the car,
there may have been someone else who could have done so for him, and (4)
there was no reasonable connection between the arrest and the vehicle. Id. at
812. In so holding, the court stated, ―The mere arrest of a defendant cannot be
construed to authorize the seizure of his automobile when the arrest took place
two or more blocks away from the automobile.‖ Id.1
This case is similar to Benavides. Molder was detained and arrested
approximately 100 feet from his truck. His truck was legally parked. The trial
court specifically found that there was no evidence Molder‘s truck was impeding
the flow of traffic. The trial court, which listened to the arresting officer‘s
testimony and reviewed the photographs depicting where Molder was in
1
The rule in Benavides that the mere arrest of a defendant cannot be
construed to authorize the search of his automobile has been expanded by some
courts to encompass those situations where there is a reasonable connection
between the crime of arrest and the vehicle. Lagaite v. State, 995 S.W.2d 860,
865 (Tex. App.—Houston [1st Dist.] 1999, pet. ref‘d). The trial court in this case
specifically found there was no reasonable connection between the crime for
which Molder was arrested and his truck.
4
relationship to his truck when he was arrested, found that there was no
reasonable connection between Molder‘s arrest and his truck. I conclude that
there is no reasonable distinction that the distance in Benavides was two blocks
and in this case approximately 100 feet. The gravamen of Benavides, like in this
case, is that the defendant‘s mere arrest does not automatically give the State
the authority to conduct an inventory. Id. I would hold that the mere arrest of
Molder did not authorize the seizure of his truck and that, given the record
evidence and the applicable federal and state law, the trial court could have
reasonably granted Molder‘s motion to suppress upon this additional ground.
See Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App. 2003) (We must
―uphold the trial court‘s ruling on appellant's motion to suppress if that ruling was
supported by the record and was correct under any theory of law applicable to
the case.‖), cert. denied, 541 U.S. 974 (2004). Because I would affirm the trial
court‘s judgment granting the motion to suppress on this basis, I concur with the
majority‘s opinion.
BILL MEIER
JUSTICE
PUBLISH
DELIVERED: February 24, 2011
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