Sakhorn Khamsiry v. the State of Texas ( 2024 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00216-CR
SAKHORN KHAMSIRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 451st Judicial District Court
Kendall County, Texas
Trial Court No. 9133
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
On August 22, 2023, in Kendall County,1 Sakhorn Khamsiry waived his right to a jury
trial and pled guilty to the offense of possession of methamphetamine in the amount of four
grams or more but less than 200 grams.2 See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d)
(Supp.). After Khamsiry pled true to the State’s punishment enhancement allegations, the trial
court found Khamsiry guilty and sentenced him to fifty-five years’ imprisonment. On appeal,
Khamsiry claims the trial court erred in denying his motion to suppress. This is the only issue
raised. Because we find the motion to suppress was properly denied, we affirm.
I. Factual Background
On January 1, 2023, a concerned driver called 9-1-1 and reported to Boerne, Texas,
dispatch that a reckless driver3 was driving “all over the roadway.” Deputy Merta responded to
that call.4 The reckless driver was reported to be in a red pickup truck.
Merta followed Khamsiry and planned to “initiate a stop somewhere where it was safe.”
After following Khamsiry, Merta observed that the driver of the truck was “unable to maintain
his lane” and was “driving slowly” at approximately “[fifty] miles an hour.” Merta followed him
1
Originally appealed to the Fourth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We are unaware of
any conflict between precedent of the Fourth Court of Appeals and that of this Court on any relevant issue. See
TEX. R. APP. P. 41.3.
2
Although this is a plea-bargain case, Khamsiry did not waive his right to appeal matters “raised by written motion
filed and ruled on before trial and not withdrawn or waived.” As a result, he did not waive his right to file an appeal
raising the issue presented here: whether the trial court properly denied his motion to suppress.
3
At the suppression hearing, the officer on patrol that night, Mitchell Quade Merta, deputy sheriff with the Kendall
County Sheriff’s Office, identified the reckless driver as Khamsiry.
4
Merta’s dashcam recorded the events of that night. The recording was admitted into evidence during the
suppression hearing.
2
for several miles before he initiated a traffic stop. While following Khamsiry, Merta observed
evidence of impaired driving. For example, Merta observed Khamsiry driving dangerously: “At
one point when [Khamsiry] was driving, he went into the left lane and a car that was trying to
pass, because he was going so slow, had to stop.”
Ultimately, Merta initiated a traffic stop, and Khamsiry responded to the traffic stop by
“stopp[ing] in the middle of the road.” Merta “got on [his] PA” and advised Khamsiry “to pull
forward.” Khamsiry did not pull forward but stayed in the middle of the roadway. Merta then
got out of his patrol car and approached Khamsiry’s vehicle. Upon approach, Merta noticed
Khamsiry did not make eye contact, was “looking down,” and “was moving around in his
vehicle.” Khamsiry was also reaching into his “backpack and different places in the car.”
Based upon his observations of Khamsiry’s behavior, Merta asked Khamsiry to exit the
vehicle. While Khamsiry was exiting his vehicle, Merta “noticed that he had . . . like a
knife/flashlight combination on . . . the driver’s side floorboard.” As a result, Merta decided to
do a pat down for weapons. Merta started on Khamsiry’s left side and “felt a knife.” Once
Merta felt the knife, Khamsiry reached for the knife, but Merta directed him not to reach for it.
Khamsiry complied. Merta then continued the pat-down search. In Khamsiry’s midsection,
“where [a] belt buckle would be,” he “felt a hard, ball-shaped object,” which he thought was “a
top of a methamphetamine pipe.”
Once Merta felt that object, Khamsiry “immediately reached for it.” Merta told
Khamsiry to stop, but he did not comply. As a result, Merta detained Khamsiry and took the
object away from Khamsiry, which was a “black ball with electrical tape around it.” Merta
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believed it to contain methamphetamine. Ultimately, the police unwrapped the ball of tape,
found a pipe, which when opened revealed a plastic bag containing “a clear, crystal-like
substance.” That substance was later found to be methamphetamine.
On April 27, 2023, Khamsiry filed a motion to suppress, seeking to suppress the
methamphetamine contained in the pipe and obtained as a result of Merta’s pat-down search of
Khamsiry. On August 10, 2023, the trial court held a hearing on the motion. After the hearing,
the trial court denied the motion. After that denial, Khamsiry was sentenced to fifty-five years’
imprisonment in accordance with a negotiated plea agreement. On October 17, 2023, the trial
court issued findings of fact and conclusions of law on the motion to suppress. The single issue
in this appeal is whether that motion to suppress was properly denied. Upon review, we find that
it was properly denied.
II. Standard of Review
This is an appeal of the trial court’s denial of a motion to suppress. As such, we apply a
“bifurcated standard of review, giving almost total deference to a trial court’s determination of
historical facts and reviewing de novo the court’s application of the law.” Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex.
Crim. App. 2000)); see also Ornelas v. United States, 517 U.S. 690, 699 (1996) (recognizing
that, “as a general matter[,] determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal”).
We also “give almost total deference to the trial court in determining what the actual facts
are, and then we review de novo whether those facts are sufficient to give rise to reasonable
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suspicion.” Meadows v. State, 356 S.W.3d 33, 36 (Tex. App.—Texarkana 2011, no pet.).
Where a “trial court makes explicit findings of fact in ruling on a motion to suppress, a reviewing
court views the evidence in the light most favorable to the trial court’s ruling and determines
whether the evidence, when viewed in that light, supports the fact findings.” State v. Smith, 335
S.W.3d 706, 714 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (citing State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006)); see also In re L.R., 975 S.W.2d 656, 657–658 (Tex.
App.—San Antonio 1998, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)).
III. Analysis
The single issue in this appeal is whether the stop and pat down of Khamsiry violated the
Fourth Amendment. See U.S. CONST. amend. IV (recognizing the right to be “secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures”). It is well-
established from Terry v. Ohio that, “[i]f an officer is justified in believing that a person whose
suspicious behavior he is investigating is armed, he may frisk that person to determine if the
suspect is, in fact, carrying a weapon and, if so, to neutralize the threat of physical harm.” Wade
v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013) (citing Terry v. Ohio, 392 U.S. 1, 24
(1968)), abrogated by Lall v. State, 686 S.W.3d 766 (Tex. Crim. App. 2024) (per curiam).
Khamsiry argues that his Terry stop and pat-down search were “unlawful when the officers went
beyond the scope of the search by squeezing and manipulating” the methamphetamine pipe. We
find Merta did not exceed the scope of a legal Terry search. Consequently, the trial court
properly granted the motion to suppress, and we affirm.
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A. Terry Standard and the “Plain-Feel” Doctrine
In Terry v. Ohio, the United States Supreme Court established a two-part test for an
investigative detention, also referred to as a “stop and frisk” or stop and pat-down search. Terry
v. Ohio, 392 U.S. 1, 10 (1968); see Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000). Under the first prong of Terry, an officer must have reasonable suspicion to justify the
stop in the first instance. Carmouche, 10 S.W.3d at 328–29. Reasonable suspicion requires less
support than probable cause. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
Notably, “a traffic violation committed in an officer’s presence authorizes an initial stop” and
satisfies the requirement of reasonable suspicion. State v. Daniel, 446 S.W.3d 809, 813 (Tex.
App.—San Antonio 2014, no pet.) (quoting Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim.
App. 1982)).
Under the second prong of Terry, the scope of the detention or stop must also be
reasonable. “The scope of the search must be limited because ‘a search which is reasonable at its
inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.’”
Davis, 947 S.W.2d at 243 (quoting Terry, 392 U.S. at 18). In assessing the constitutional scope
of a Terry stop, the “plain-feel” doctrine has emerged, and it allows for not only a search for
weapons but also other items whose incriminating nature is “immediately apparent.” See
Minnesota v. Dickerson, 508 U.S. 366, 370–71, 375 (1993). Under this doctrine, “[i]f a police
officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass
makes its identity immediately apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons.” Id. at 375. The “plain-feel”
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doctrine, however, does not allow an officer to further examine incriminating items that are “not
immediately apparent.” Id. at 379.
Actual knowledge is not required to demonstrate contraband was “immediately
apparent.” See Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991) (citing Texas v.
Brown, 460 U.S. 730 (1983)) (recognizing “[t]he immediately apparent prong of the plain view
analysis does not require actual knowledge of the incriminating evidence”). Instead, the
“viewing officers must have probable cause to believe an item in plain view [or feel] is
contraband before seizing it.” State v. Dobbs, 323 S.W.3d 184, 189 (Tex. Crim. App. 2010).
Applying the “plain-feel” doctrine, the Texas Court of Criminal Appeals found the
police’s seizure of a bulge of money from the accused’s pocket during a Terry stop was proper.
See Carmouche, 10 S.W.3d at 330–31. Because the police officer “immediately recognized the
bulge in appellant’s pocket as money” and had an “articulable suspicion that appellant was
trafficking in cocaine,” such that the incriminating nature of the money was immediately
apparent, the seizure of the money was consistent with the “plain-feel” doctrine in Dickerson.
Id. at 330. Similarly, in Griffin v. State, the Texas Court of Criminal Appeals found the police’s
seizure of plastic tubes from the accused’s pocket during a Terry stop to be proper. Griffin v.
State, 215 S.W.3d 403, 410 (Tex. Crim. App. 2006). As stated in Griffin, “[t]he record supports
a finding” that the police officer “immediately recognized the tubes in appellant’s pocket as
contraband based on his knowledge that appellant used [those] types of containers to carry illegal
narcotics.” Id.7
B. Pat Down of Khamsiry
In his appeal, Khamsiry does not claim the initial stop was unreasonable under Terry.
Instead, he argues Merta exceeded the permissible scope of a Terry pat down because the
methamphetamine pipe “was not immediately apparent as contraband.” Khamsiry claims Merta
“went beyond the scope of the search by squeezing and manipulating” the methamphetamine
pipe.
Khamsiry claims this case is analogous to Young v. State, wherein the First Court of
Appeals found the seizure of a pill bottle exceeded the parameters of Terry. See Young v. State,
563 S.W.3d 325 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). In Young, the illegal nature
of the contents of a pill bottle was not immediately apparent to the officer. Id. at 328. The
officer could only speculate that the pill bottle might contain narcotics, based off his experience.
Id. Likewise, Khamsiry claims that the facts in his case are analogous to Graham v. State. See
Graham v. State, 893 S.W.2d 4 (Tex. App.—Dallas 1994, no pet.). In Graham, the Fifth Court
of Appeals found the pat-down search was not authorized by Terry when an officer seized a
pocket watch that made a “crackling sound.” Id. at 6. After manipulating the watch and opening
it, the pocket watch was found to contain cocaine. See id. Upon review, we find Young and
Graham are both distinguishable.
In the present action, the nature of the methamphetamine pipe was immediately apparent
to Merta. During his testimony, Merta described feeling a “round-shaped object, really hard
when you pushed on it.” He believed it to be “a top of a methamphetamine pipe.” He based that
8
belief upon his “training and experience.” The trial court also made the following factual
findings regarding Merta’s pat down and discovery of the item:
18. While further patting down the driver, Deputy Merta felt what he believed
to be, based on his training and experience, the bulb of a methamphetamine pipe
near the driver’s belly button. Deputy Merta discovered the contraband by plain
feel and did not exceed the scope of Deputy Merta’s search for weapons. When
Deputy Merta felt what he believed to be a methamphetamine pipe, the driver
reached for the pipe and pulled his body away. Deputy Merta requested the driver
not to reach for the methamphetamine pipe. The driver did not cooperate with
Deputy Merta’s request and continued to reach for the item Deputy Merta
believed was a methamphetamine pipe.
Unlike the pill bottle in Young and the pocket watch in Graham, the pipe in the present
action satisfies the “plain-feel” doctrine because its incriminating nature was immediately
apparent to Merta.5 The circumstances here more closely resemble those in Griffin. In that case,
5
During cross-examination of Merta, Khamsiry’s counsel encouraged Merta to change his testimony and state that
he manipulated the pipe to determine what it was. While Merta testified that he manipulated the pipe at some point
in time, his assessment of the nature of the pipe was based on his training and experience and not based on his
manipulation of the pipe. The relevant testimony is as follows:
Q. You squeezed it?
A. Yes.
Q. Okay. You manipulated it with your fingers?
A. Yes.
Q. Okay. Prior to that, you felt a hard, round object; is that right?
A. Yes.
Q. But was it hard? I mean, if you were able to squeeze?
A. Well, when I say squeeze, I didn’t penetrate or anything. It was just - -
Q. I’m sorry?
A. I squeezed it, but it wasn’t pliable, it was hard.
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a shirt pocket contained items with a shape consistent with drug paraphernalia, and the
investigatory detainee strove to keep the officer from feeling the items. Griffin, 215 S.W.3d at
406.
Based upon these facts and our de novo review of the applicable standards from Terry,
Dickerson, and the relevant caselaw, we affirm the trial court’s denial of Khamsiry’s motion to
suppress.
IV. Conclusion
We affirm the trial court’s judgment.
Jeff Rambin
Justice
Date Submitted: March 13, 2024
Date Decided: May 20, 2024
Do Not Publish
Q. You squeezed it?
A. Yes.
Q. To determine if it was a crack [methamphetamine] pipe first?
A. No, not at first.
Consistent with the trial court’s finding, Merta’s manipulation of the pipe at some point in time did not change the
immediately apparent nature of the item such that the search was unconstitutional under Terry. See, e.g., In re L.R.,
975 S.W.2d at 659–60 (holding that the officer’s search was consistent with Terry where, even though the officer
later manipulated the cellophane baggie, the officer immediately recognized the incriminating nature of the
cellophane baggie from his training and experience, which taught him that “illicit substances were commonly
wrapped in cellophane packaging”).
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