Philip Andrew Garcia v. State ( 2010 )

OPINION
No. 04-09-00446-CR
Philip Andrew GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A08-550
Honorable N. Keith Williams, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 7, 2010
AFFIRMED
Phillip Andrew Garcia appeals the trial court’s denial of his motion to suppress. We
affirm.
BACKGROUND
Garcia was charged with possession of marijuana in a drug free zone in an amount more
than two ounces but less than four ounces. At the hearing on his motion to suppress, only Mike
04-09-00446-CR
Baker, an investigator with the Kerrville Police Department assigned to the special crimes unit,
testified.
According to Investigator Baker, on October 7, 2008, at 11:30 p.m., he received a phone
call from Sergeant Kenneth Cleghorn, who informed him that Christian Gonzales had been
arrested for possession of marijuana and wanted to speak to investigators. In response to the call,
Investigator Baker went to the scene and interviewed Gonzales. Gonzales offered to purchase
marijuana from a man known as Kermit Compton. Investigator Baker knew Gonzales and had
used him before as a cooperating individual. According to Investigator Baker, Gonzales had
proven to be credible and reliable in the past. Investigator Baker was also familiar with Kermit
Compton; in January 2008, using Gonzales, Baker “had done a controlled delivery from Kermit
Compton.”
According to Investigator Baker, Gonzales called Kermit Compton on his cell phone.
After finishing the phone call, Gonzales told Investigator Baker that Compton had agreed to sell
him marijuana, but first needed to get some marijuana from Jesus “Chuy” Gonzales. Investigator
Baker testified that the department had “received prior information that Mr. Compton and Mr.
[Jesus ‘Chuy’] Gonzales were in partnership together selling drugs.” Thus, Investigator Baker
decided to attempt a “controlled delivery.”
Investigator Baker then testified that Gonzales received a phone call from Compton, who
said that he had the marijuana available and wanted to meet Gonzales at Gonzales’s house.
Investigator Baker testified, “[Compton] just said to meet him there at the residence. There was
no actual time frame given. So we loaded up into our vehicles and we headed to the location.”
While they were headed to Gonzales’s house, Gonzales received another phone call from
Compton. According to Investigator Baker, Gonzales told Compton that because Gonzales was
-2-
04-09-00446-CR
riding a bicycle, it would take him about fifteen minutes to get home. Investigator Baker testified
that the officers were hoping to get to Gonzales’s home in time to set up surveillance before
Compton’s arrival.
However, when Investigator Baker and Sergeant Cleghorn arrived at Gonzales’s home,
they saw a white Ford pickup and a blue Chevy two-door parked on the right-hand side of the
curb. So, they drove past the home. When they turned around and came back, their headlights
illuminated the inside of the Chevy. Investigator Baker testified that he saw the driver, whom he
did not recognize, and a passenger whom he did recognize as Kermit Compton. The driver was
later identified as Appellant Garcia.
Investigator Baker testified that he radioed Investigator Dagenhart, who was with
Gonzales in another vehicle, and informed him that Compton was already at the house,
Investigators Baker and Dagenhart then tried to decide how they “were going to deploy the
confidential informant,” Gonzales. Dagenhart was with Gonzales in another vehicle. As
Investigator Baker and Sergeant Cleghorn were driving past the house, considering what to do,
they saw the headlights of the Chevy turn on. The Chevy, driven by Garcia, turned into a
driveway, backed up, and started to leave. According to Investigator Baker, he knew Compton
was supposed to sell marijuana to Gonzales at that location, the vehicle was there, and he had
seen Compton in the vehicle. So, Investigator Baker decided to stop the Chevy. The Chevy had
three occupants: Compton was in the front passenger seat, Garcia was in the driver’s seat, and a
male juvenile was in the back seat.
Investigator Baker testified that he made all three occupants get out of the car.
Investigator Baker then conducted a pat-down search of the men, but did not find anything.
According to Investigator Baker, Sergeant Cleghorn then went into the vehicle and saw a three-
-3-
04-09-00446-CR
pound Folgers coffee can on the passenger side floorboard. Investigator Baker testified that due
to their training and experience, both he and Sergeant Cleghorn knew that people who traffic
narcotics like to use items like coffee and mustard to mask the odor of marijuana. Investigator
Baker testified that Gonzales had ordered a half-ounce of marijuana, worth about $60, which
would fit perfectly in a three-pound coffee can.
Sergeant Cleghorn opened the can, which had a plastic lid on it but did not have a seal.
Sergeant Cleghorn then pushed his finger down into the coffee, felt a plastic bag, and pulled it
out. The plastic bag contained marijuana. Garcia was then advised of his Miranda rights and was
taken to the police station where he spoke with officers. Garcia was later indicted for possession
of marijuana in a drug free zone.
After hearing Investigator Baker’s testimony and arguments of counsel, the trial court
denied Garcia’s motion to suppress. In accordance with a plea-bargain agreement, Garcia then
pled guilty to possession of marijuana in a drug-free zone and was placed on deferred
adjudication for one year and fined $500.00. He now appeals the trial court’s denial of his
motion to suppress.
STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard
of review. Wilson v. State, No. PD-0307-09, 2010 WL 715253, at *3 (Tex. Crim. App. Mar. 3,
2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give
almost total deference to the trial court’s determination of historical facts, we conduct a de novo
review of the trial court’s application of the law to those facts. Wilson, 2010 WL 715253, at *3;
Carmouche, 10 S.W.3d at 327. As the sole trier of fact during a suppression hearing, the trial
court may believe or disbelieve all or any part of a witness’s testimony. Wilson, 2010 WL
-4-
04-09-00446-CR
715253, at *3; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Furthermore, we
examine the evidence in the light most favorable to the trial court’s ruling. Wilson, 2010 WL
715253, at *3; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
DISCUSSION
In his first issue, Garcia argues that the trial court erred in overruling his hearsay
objection to Investigator Baker’s testimony about Gonzales’s phone conversation with Compton.
Assuming but not deciding whether the testimony at issue was hearsay, we note that a trial court
is permitted to rely on hearsay testimony in determining preliminary questions concerning the
admissibility of evidence. See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002)
(explaining that because suppression hearings involve the determination of preliminary questions
concerning the admissibility of evidence, the language of the current rules indicates that the rules
of evidence (except privileges) no longer apply to suppression hearings); see also Ford v. State,
305 S.W.3d 530, 538, 539 (Tex. Crim. App. 2009) (explaining that a suppression hearing is an
“informal hearing in which the trial judge, in his discretion, may use different types of
information, conveyed in different ways, to resolve the contested factual or legal issues”; “[a]
trial judge may use his discretion in deciding what type of information he considers appropriate
and reliable in making his pre-trial ruling”; and a trial judge does “not abuse his discretion in
relying upon an unsworn hearsay document”). Therefore, even if the testimony at issue was
hearsay, the trial court did not abuse its discretion in relying on it.
In his second issue, Garcia argues that Baker did not have reasonable suspicion to justify
detaining him, because he was merely the driver of the car in which Kermit Compton, the
suspect, was a passenger. In response, the State emphasizes that Garcia would have an officer
-5-
04-09-00446-CR
turn a blind eye to the fact that Garcia was driving his vehicle to a location where the information
received indicated a drug deal was about to occur.
Pursuant to Terry v. Ohio, 392 U.S. 1, 21 (1968), an officer has the right to briefly detain
and investigate a person when the officer has a reasonable suspicion supported by facts that the
person is, has been, or will be engaged in criminal activity. See State v. Sheppard, 271 S.W.3d
281, 287 (Tex. Crim. App. 2008); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).
The reasonableness of an investigative detention turns on the totality of the circumstances in
each case. Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).
Here, the officers knew Compton would be arriving at a specific location within
approximately fifteen minutes to sell marijuana to Gonzales. When the officers arrived at that
location, they saw a parked car. As they drove past, Investigator Baker recognized one of the
passengers in the parked car as Compton. Considering the totality of the circumstances, the
officers had reasonable suspicion to stop the vehicle and detain the occupants of the vehicle for
purposes of conducting a Terry stop.
In his third issue, Garcia argues that there was no probable cause to justify the search of
his vehicle. In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court established
the automobile exception to the Fourth Amendment’s warrant requirement, holding that officers,
without violating the Fourth Amendment, could conduct a warrantless search of a vehicle if they
had probable cause to believe the vehicle contained contraband. Probable cause requires that the
facts available to the officer would “warrant a man of reasonable caution in the belief” that
certain items may be contraband or stolen property or useful as evidence of a crime. Id. at 162.
That there may be an innocent explanation for the set of facts does not defeat a finding of
probable cause:
-6-
04-09-00446-CR
[P]robable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity. By hypothesis, therefore, innocent
behavior frequently will provide the basis for a showing of probable cause; to
require otherwise would be to sub silentio impose a drastically more rigorous
definition of probable cause than the security of our citizens demands ... In
making a determination of probable cause the relevant inquiry is not whether
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of non-criminal acts.
Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex. Crim. App. 1984) (quoting Illinois v. Gates, 462
U.S. 213, 243 n. 13 (1983)) (alteration in original), overruled on other grounds by Heitman v.
State, 815 S.W.2d 681 (Tex. Crim. App. 1991).
Here, the officers had probable cause to search the vehicle. Investigator Baker witnessed
a known, credible informant make arrangements for a drug delivery at the informant’s home in
approximately fifteen minutes. When the officers arrived at the informant’s home, Investigator
Baker saw a parked vehicle and recognized Compton, the person whom the informant had called
to purchase the illegal drugs, as one of the occupants of the parked car. Garcia, the driver of the
parked car, then turned on the headlights and attempted to drive away, prompting the officers to
stop the vehicle. Given the totality of circumstances, the officers could reasonably believe that
the marijuana was located either on the person of Compton, on the person of one of the other
occupants, or in the vehicle itself. Investigator Baker first conducted a pat-down search of all
three occupants, but did not feel evidence of illegal drugs. He then searched the car and noticed
the three-pound coffee can. See Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (reiterating that
“[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” officers
may without a warrant search “any area of the vehicle in which the evidence might be found”);
Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (explaining that when “there is probable cause
to search for contraband in a car, it is reasonable for police officers . . . to examine packages and
containers without a showing of individualized probable cause for each one”).
-7-
04-09-00446-CR
In his fourth issue, Garcia argues that the manner of the search of the coffee can was
unreasonable and violated the Fourth Amendment because the officer destroyed the coffee by
placing his bare finger in the coffee grounds. According to Garcia, “[e]ven if the search of
[Garcia]’s car was reasonable, when the officer placed his hand into the coffee, the search
became unreasonable.” Garcia argues that merely having goods “in an automobile does not give
the police carte blanche to search [the goods] by probing them with their fingers. That concept
itself is unreasonable.” 1
Without commenting on whether the coffee was, in fact, “destroyed,” we note that while
the destruction of property in carrying out a search is not favored, destroying property does not
necessarily violate one’s constitutional rights. Instead the standard is whether the destruction of
property was reasonably necessary to effectively execute the search. See Dalia v. United States,
441 U.S. 238, 258 (1979) (recognizing that “officers executing search warrants on occasion must
damage property in order to perform their duty”); Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir.
1982) (“The touchstone, however, is reasonableness; destruction of property that is not
reasonably necessary to effectively execute a search warrant may violate the Fourth
Amendment.”). As noted, the officer had probable cause to believe that the vehicle contained
marijuana, and the coffee can was the right size for the amount of marijuana ordered. Placing his
finger inside an inexpensive can of coffee grounds to see whether marijuana was indeed inside
the can was not unreasonable and did not violate Garcia’s constitutional rights. See United States
v. Santana-Aguirre, 537 F.3d 929, 933 (8th Cir. 2008) (holding that destruction of large, plain,
and inexpensive candles was not unreasonable because the officer had probable cause to believe
the candles contained contraband), cert. denied, 129 S. Ct. 2051 (2009); United States v. Alverez,
1
We note that Garcia cites no legal support for this proposition. Garcia does point to the officer’s testimony that he
would not drink coffee that had been tainted by someone placing his finger in the coffee grounds.
-8-
04-09-00446-CR
235 F.3d 1086, 1089 (8th Cir. 2000) (holding that because officers had probable cause to believe
the spare tire contained contraband, “they could lawfully complete a full and thorough search of
the tire, including dismantling or damaging it”).
In his final issue, Garcia argues that “[b]y placing his bare hand in the coffee, the police
officer destroyed consumable property” in violation of the Takings Clause of the Fifth
Amendment to the Constitution.2 However, “[w]hen property has been seized pursuant to the
criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’
for which the owner is entitled to compensation.” Acadia Tech., Inc. v. United States, 458 F.3d
1327, 1331 (Fed. Cir. 2006); see also Amerisource Corp. v. United States, 525 F.3d 1149, 1153
(Fed. Cir. 2008) (explaining that under its inherent police power, a state had the ability to seize
and retain property to be used as evidence in a criminal prosecution, and property seized and
retained pursuant to this police power is not taken for a public use in the context of the Takings
Clause), cert. denied, 129 S. Ct. 1611 (2009); Rhaburn v. United States, 88 Fed. Cl. 310, 313
(2009) (same). “The same rule applies even if the property is seized as evidence in a criminal
investigation or as the suspected instrumentality of a crime, but is ultimately returned to the
owner either because the government does not pursue forfeiture proceedings or because the
owner prevails in a forfeiture action.” Arcadia, 458 F.3d at 1331-32; see also Amerisource, 525
F.3d at 1154 (holding that government’s decision to hold pharmaceutical drugs past their
expiration date did not result in a compensable taking under the Constitution because “[o]nce the
government has lawfully seized property to be used as evidence in a criminal prosecution, it has
2
We note that Garcia also cites Article I, section 19 of the Texas Constitution, but does not explain how the Texas
Constitution provides more protection than the United States Constitution. Therefore, to the extent that the Texas
Constitution might provide more protection than the United States Constitution, Garcia has inadequately briefed the
issue. See TEX. R. APP. P. 38.1(i).
-9-
04-09-00446-CR
wide latitude to retain it so long as the investigation continues, regardless of the effect on that
property”).
CONCLUSION
We affirm the judgment of the trial court.
Karen Angelini, Justice
PUBLISH
- 10 -