the State of Texas v. Melinda Kai Danley ( 2022 )

Opinion filed July 28, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00232-CR
__________
THE STATE OF TEXAS, Appellant
V.
MELINDA KAI DANLEY, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR55224
MEMORANDUM OPINION
Appellee, Melinda Kai Danley, filed a motion to suppress evidence seized as
a result of a warrantless search of her purse. She was a passenger in a pickup driven
by Wesley Butler. The trial court granted Appellee’s motion to suppress based on
its finding that there was no probable cause to search Appellee’s purse and that
Butler’s consent to search the pickup did not extend to Appellee’s purse. In one
issue, the State now appeals. We reverse and remand for trial.
Background Facts
On September 17, 2019, Trooper Luke Kanz stopped a pickup driven by
Wesley Butler for failing to use his turn signal. Appellee was seated in the passenger
seat of the pickup at the time of the stop. Trooper Kanz ordered Butler out of the
pickup and he conducted a protective pat-down search of Butler. During the pat-
down search, Trooper Kanz found a small plastic bottle in Butler’s front pants
pocket. Butler initially denied knowing what the plastic bottle contained. However,
Butler later told Trooper Kanz that the bottle contained “GHB,” but Butler denied
knowing for what purpose GHB is used. GHB is an abbreviation for gamma
hydroxybutyric acid, a controlled substance within penalty group one. See TEX.
HEALTH & SAFETY CODE ANN. § 481.102(9) (West Supp. 2021).1 GHB is
commonly known as a date-rape drug. See Casey v. State, 215 S.W.3d 870, 876
(Tex. Crim. App. 2007).
At the time of the stop, neither Trooper Kanz nor a second trooper who later
arrived on scene knew what GHB was. Despite Trooper Kanz’s lack of knowledge
concerning GHB’s illegality, he asked Butler whether there was anything illegal
within his pickup. Butler responded that “besides that”—an obvious reference to
the GHB found in Butler’s pocket—there was nothing else illegal within the pickup.
After discovering the bottle of GHB, Trooper Kanz asked Butler whether he had
used any drugs that night or in the past. Butler responded that he had used
methamphetamines six weeks prior to the stop.
Trooper Kanz asked Butler for permission to search the pickup. Butler
consented to Trooper Kanz’s request to search without placing any conditions on the
scope of the search. Before searching the pickup, Trooper Kanz informed Appellee
that he was going to search the pickup, and he ordered her to get out of the vehicle.
1
We note that the abbreviation “GHB” is specifically used in Section 481.102(9).
2
Trooper Kanz first searched the large purse that remained in the front
passenger floorboard after Appellee exited the vehicle. Trooper Kanz found two
capped syringes and twenty-nine grams of methamphetamine within the purse.
However, the methamphetamine was not readily visible within the purse because it
was located within a small coin purse that Trooper Kanz found in the purse. At the
hearing on Appellee’s motion to suppress, Trooper Kanz testified that he searched
the coin purse he found in the larger purse because there was plastic sticking out of
the coin purse that he believed was consistent with drug use.
After completing his search of Butler’s pickup, Trooper Kanz placed Appellee
under arrest for possession of a controlled substance. However, before Trooper
Kanz transported Appellee to the Midland County Jail, a second trooper arrived on
scene. Trooper Kanz asked the second trooper whether he knew what GHB was.
Similarly, the second trooper also did not know what GHB was. Accordingly, Butler
was not arrested that night.
Appellee filed a motion to suppress in which she asserted that her purse was
illegally searched. The trial court granted Appellee’s motion, and it subsequently
entered findings of fact and conclusions of law. The trial court concluded that the
search was illegal because Trooper Kanz lacked probable cause to search the coin
purse located within the larger purse. Additionally, the trial court found that Butler’s
consent to search the pickup did not extend to either Appellee’s purse or the smaller
coin purse.
Analysis
We note at the outset that the State has limited rights of appeal in criminal
cases. See TEX. CODE CRIM. PROC. ANN. art. 44.01 (West 2018). The State is
entitled to appeal a court order that grants a motion to suppress if jeopardy has not
attached and if the elected prosecutor certifies to the trial court that the appeal is not
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taken for the purpose of delay and that the suppressed evidence is of substantial
importance to the case. Id. art. 44.01(a)(5). The elected district attorney for Midland
County personally signed the notice of appeal certifying the matters required to
invoke this court’s jurisdiction to review the trial court’s interlocutory order granting
the motion to suppress. See State v. Redus, 445 S.W.3d 151, 154–55 (Tex. Crim.
App. 2014).
In its sole issue, the State asserts that the trial court erred in granting
Appellee’s motion to suppress. When a defendant seeks to suppress evidence on the
basis of a Fourth Amendment violation, the defendant initially bears the burden of
proof. State v. Martinez, 569 S.W.3d 621, 623–24 (Tex. Crim. App. 2019) (citing
Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986), disavowed on other
grounds by Handy v. State, 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006)). The
defendant meets her initial burden by establishing that a search or seizure occurred
without a warrant. Id. at 624 (citing Russell, 717 S.W.2d at 9–10). If the defendant
meets this burden, the burden then shifts to the State to show the reasonableness of
the search or seizure. Id. It is undisputed in this case that Appellee’s purse was
searched without a warrant.
We use a bifurcated standard when reviewing a trial court’s ruling on a motion
to suppress evidence. Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021)
(citing State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013)). In applying
this standard, “[w]e give almost total deference to the trial court’s findings of fact
and review de novo the application of the law to the facts.” Id. (quoting State v.
Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). “When a trial judge makes
express findings of fact, an appellate court must examine the record in the light most
favorable to the ruling and uphold those fact findings so long as they are supported
by the record.” Id. (quoting State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App.
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2017)). If the trial court’s ruling is correct under any applicable theory of law, we
will uphold the ruling. Id.Automobile Exception
Under the Fourth Amendment, all searches conducted without a warrant are
per se unreasonable unless an exception to the warrant requirement applies.
Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017) (citing
Arizona v. Gant, 556 U.S. 332, 338 (2009); McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003)). One exception to the warrant requirement is the
automobile exception. Id. The automobile exception allows police officers to
conduct a warrantless search of an automobile if the vehicle is readily mobile and
the officer has probable cause to believe that the vehicle contains contraband. Id.(citing Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009)).
Probable cause to support a warrantless search of an automobile exists when
“the facts and circumstances known to law enforcement officers are ‘sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has
been or is being committed.’” Id. at 599–600 (quoting Brinegar v. United States,
338 U.S. 160, 175–76 (1949)); see also Ornelas v. United States, 517 U.S. 690, 696
(1996) (holding that probable cause to conduct a warrantless search exists if, when
viewing the historical facts, an objectively reasonable police officer would conclude
that probable cause exists). Probable cause exists when there is “a ‘fair probability’
of finding inculpatory evidence at the location being searched.” Marcopoulos, 538
S.W.3d at 600 (citing Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008)).
When analyzing the probability of finding inculpatory evidence, a reviewing court
should consider “the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Id. (quoting Brinegar, 338
U.S. at 175). Additionally, we must consider the “totality of the circumstances
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known to the officer.” Id. The scope of a warrantless search that is based on
probable cause is just as broad as a search authorized by a properly obtained warrant.
See United States v. Ross, 456 U.S. 798, 823 (1982).
An officer may conduct a warrantless search of all containers within a car as
long as the officer has probable cause that the container conceals the object of the
search. See Neal, 256 S.W.3d at 282 (citing Ross, 456 U.S. at 825). This rule applies
regardless of who the owner of the container is. See Guajardo v. State, No. 13-19-
00424-CR, 2020 WL 7063685, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 3,
2020, no pet.) (mem. op., not designated for publication) (citing Wyoming v.
Houghton, 526 U.S. 295, 302 (1999)).
Generally, when reviewing a trial court’s ruling on a motion to suppress, we
review “the evidence in the light most favorable to the trial court’s ruling.”
Marcopoulos, 538 S.W.3d at 600 (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006)). Moreover, we will give the trial court’s historical determinations
almost complete deference. Id. However, we will review de novo the trial court’s
application of search and seizure law to historical facts. Id. Here, the trial court
made express findings of facts and conclusions of law. Thus, our analysis will give
almost total deference to the trial court’s factual findings, but we will review de novo
the application of search and seizure law to those facts.
This case hinges on whether Trooper Kanz had probable cause to search
Butler’s pickup and, under the rule in Neal, Appellee’s purse. Neither party contends
that Butler’s vehicle was immobile. See Marcopoulos, 538 S.W.3d at 599 (noting
the requirements for the automobile exception to apply). Rather, Appellee contends
that Trooper Kanz did not have probable cause to search Butler’s pickup or her purse
because he did not know that GHB was illegal at the time of the search. Probable
cause is a legal determination that is subject to de novo review. State v. Sheppard,
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271 S.W.3d 281, 291 (Tex. Crim. App. 2008). “The test for probable cause is an
objective one, unrelated to the subjective beliefs of the arresting officer[,] and it
requires a consideration of the totality of the circumstances facing the arresting
officer.” Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
It is undisputed that Trooper Kanz was unaware of GHB’s illegality at the
time of the search. However, Trooper Kanz’s lack of knowledge about the particular
illegality of GHB is irrelevant to a probable cause determination because it relates
to his subjective belief. Viewed objectively, the facts, when considered together,
provided Trooper Kanz with the necessary probable cause to search Butler’s pickup
and, by extension, Appellee’s purse. See Neal, 256 S.W.3d at 282 (“If [the
automobile exception] applies, then the police may search ‘every part of the vehicle
and its contents that may conceal the object of the search.’” (quoting Ross, 456 U.S.
at 825)). Butler told Trooper Kanz that the plastic bottle contained GHB. By doing
so, Butler admitted to possessing a penalty group one substance, and he later
indicated to Trooper Kanz that the substance was illegal to possess. See PENAL
§ 481.102(9). These matters objectively gave Trooper Kanz probable cause to
search the automobile and its contents for contraband. As we held in Daves v. State,
the discovery of drug paraphernalia on the person of the driver of a vehicle gives
officers probable cause to believe that the vehicle contains evidence related to that
offense. 327 S.W.3d 289, 293 (Tex. App.—Eastland 2010, no pet.); see Houghton,
526 U.S. at 297–98 (1999) (holding that hypodermic syringe found in driver’s pocket
gave police officers probable cause to search the driver’s vehicle for contraband).
Additionally, Trooper Kanz testified that he became suspicious of Butler and
Appellee because at 1:00 a.m. they were driving in an area of Midland known for its
illegal drug activity. 2 When asked if he had used any drugs in the past, Butler
2
We acknowledge that presence within a “hotbed of narcotics activity” is insufficient, by itself, to
establish probable cause. See Marcopoulos, 538 S.W.3d at 601.
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admitted that he had used methamphetamine in the past, albeit six weeks prior to the
stop. When taken together, these factors provided Trooper Kanz with probable cause
to search Butler’s pickup for additional narcotics. Under the rule in Neal, Trooper
Kanz also had probable cause to search the containers within Butler’s pickup that
were capable of concealing contraband, including Appellee’s purse. See Neal, 256
S.W.3d at 282; see also Houghton, 526 U.S. at 307 (holding that officers with
probable cause to search a vehicle may inspect passengers’ belongings found in the
vehicle that are capable of concealing the object of the search). As stated by the
Supreme Court in Houghton:
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. A
passenger’s personal belongings, just like the driver’s belongings or
containers attached to the car like a glove compartment, are “in” the
car, and the officer has probable cause to search for contraband in the
car.
526 U.S. at 302. Moreover, Trooper Kanz further testified that the small coin purse
where he found the methamphetamine had plastic packaging sticking out of it which,
in his experience, was consistent with drug packaging. A law enforcement officer’s
training and experience are factors to consider when considering the totality of the
circumstances. See Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007)
Based on the facts within Trooper Kanz’s knowledge prior to his search of
Butler’s pickup, and subsequently Appellee’s purse, we conclude that a person of
reasonable caution would have believed that there was probable cause to search
Butler’s pickup. See Marcopoulos, 538 S.W.3d at 599–600. When viewing the facts
objectively as a whole, there existed a fair probability that Trooper Kanz would
discover inculpatory evidence of contraband within Butler’s pickup. See id.
Because Trooper Kanz found the methamphetamine in Appellee’s purse as the result
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of a legal search pursuant to the automobile exception, the trial court erred when it
granted Appellee’s motion to suppress. We sustain the State’s sole issue.
This Court’s Ruling
We reverse the trial court’s order granting Appellee’s motion to suppress, and
we remand this case to the trial court for further proceedings consistent with this
opinion.
JOHN M. BAILEY
CHIEF JUSTICE
July 28, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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