Marcopoulos, Andreas ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0931–16
ANDREAS MARCOPOULOS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
HARRIS COUNTY
K EEL, J., filed a dissenting opinion in which K ELLER, P.J., joined.
DISSENTING OPINION
We should either dismiss this petition as improvidently granted or uphold the
finding of probable cause to search Appellant’s truck. Since the majority does neither, I
respectfully dissent.
Dismiss as Improvidently Granted
A trial court’s ruling on a motion to suppress must be upheld on appeal if any
applicable legal theory supports it. State v. Copeland, 501 S.W.3d 610, 612-13 (Tex.
Marcopoulos dissent–Page 2
Crim. App. 2016).
Police officers may search persons whom they lawfully arrest. United States v.
Robinson, 414 U.S. 218, 236 (1973).
Appellant has never challenged the lawfulness of his arrest for traffic offenses.
After that arrest, police found cocaine in his truck and on his person. The cocaine found
on his person was admissible because it was found in a search incident to his arrest. See
Robinson, 414 U.S. at 236. The trial court’s ruling was correct on that theory and must be
upheld on appeal. See Copeland, 501 S.W.3d at 612-13. Since Appellant was indicted
for and pled guilty to possession of less than a gram of cocaine, the cocaine on his person
supported his prosecution regardless of the cocaine found in his truck, and we need not
address the legitimacy of the search of his truck.
We should dismiss the petition for discretionary review as improvidently granted.
Probable Cause to Search the Truck
Police may search a vehicle if they have probable cause to believe it contains
evidence of a crime. United States v. Ross, 456 U.S. 798, 825 (1982). In such a case “a
search is not unreasonable if based on facts that would justify the issuance of a warrant,
even though a warrant has not actually been obtained.” Id. at 809. Due to the lower
expectation of privacy attendant to automobiles, however, the warrant requirements for
searching them are less rigorous than those for other types of searches. Wiede v. State,
214 S.W.3d 17, 24 (Tex. Crim. App. 2007), quoting South Dakota v. Opperman, 428 U.S.
Marcopoulos dissent–Page 3
364, 367 (1976).
Probable cause exists when “the facts and circumstances within the knowledge of
the arresting officer and of which he has reasonably trustworthy information would
warrant a reasonable and prudent man in believing that a particular person has committed
or is committing a crime.” Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972).
“Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual
and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.’” Wiede, 214 S.W.3d at 24, quoting Brinegar v. United States, 338
U.S. 160, 175 (1949). If the totality of the circumstances demonstrates a “fair
probability” of finding evidence at the location being searched, then the probable cause
standard is met. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).
Appellate courts must review a trial court’s probable cause finding in the light
most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
App. 2006).
Viewed in the light most favorable to the trial court’s ruling, the evidence here
showed that undercover narcotics officer Joseph Oliver had been making cases out of
Diddy’s Sports Bar throughout his six-year tenure in the narcotics division. Diddy’s was
“set up like a sports bar but they don’t sell anything other than narcotics out of there.”
Two weeks before Appellant’s arrest, Oliver had made an undercover buy at Diddy’s
after which his team had executed a search warrant.
Marcopoulos dissent–Page 4
On the day of Appellant’s arrest, they were “continuing the investigation by
knocking cases out, proving that they were still” selling drugs, trying “to pick off
customers who’d just in and buy.” The prevalence of drug deals at Diddy’s was
corroborated by the defense witness, an attorney who testified that he had “had a case
from Diddy’s” and had “heard about these other cases in which the police stop somebody
who has bought dope there and pulled them over and indeed found dope there.”
That day, Oliver and his partner were watching Diddy’s from a nearby parking lot.
They saw appellant park in Diddy’s lot, go into the bar for about three minutes and then
return to his car and leave. His brief stay meant that he did not have time for a drink, and
his actions conformed to a pattern of behavior exhibited by other Diddy’s narcotics
buyers. Oliver had seen Appellant at Diddy’s before but had been unable to stop him on
those prior occasions.1
After Oliver and his partner saw Appellant commit traffic offenses, they called for
a marked patrol unit to stop him. The patrol officer, Tony Villa, pulled behind Appellant
in such a way that, according to the defense witness, it was obvious whom he was after
even without lights and sirens.
With Villa behind him, Appellant began making furtive gestures toward the center
console and watching Villa in his rearview mirror. According to Oliver, Appellant
1
“We’d seen him at the location before, we couldn’t get him to stop quick enough and
get him out of there due to traffic or we couldn’t enter in there. At this time when we seen him
come back which we did, it was another customer we’ve seen at the location before.”
Marcopoulos dissent–Page 5
reached toward the passenger side of his truck as if “trying to hide something.” After
Villa activated his emergency equipment, Appellant pulled into a gas station. As Villa
was approaching the truck on foot, Appellant was still moving his hands around toward
the center console area.
The totality of these circumstances viewed in the light most favorable to the trial
court’s ruling – Appellant’s brief, repeat visit to a location notorious for drug sales, his
behavior there mirroring that of other drug buyers, plus his efforts to hide something
when he realized the police were after him – indicated a “fair probability” of finding
contraband in his car. But instead of evaluating the totality of the circumstances, the
majority opinion picks them off one by one, viewing them in a light unfavorable to the
trial court’s ruling and holding each inadequate to support a finding of probable cause.
First the majority “severely” discounts “the probative value of Marcopoulos’s
presence at Diddy’s” and cites Sibron v. New York, 392 U.S. 40 (1968), in support of that
viewpoint. But the majority’s reliance on Sibron is misplaced.
Sibron did not involve an automobile search, and automobile searches are subject
to less rigorous warrant requirements because of a lower expectation of privacy in
automobiles. Opperman, 428 U.S. at 367; Wiede, 214 S.W.3d at 24. That does not mean
that the Fourth Amendment does not apply to automobiles; it does mean that equating the
requirements for searching cars with the requirements for searching persons is a false
equivalence.
Marcopoulos dissent–Page 6
Also, Sibron is distinguishable on its facts. The police officer who searched
Sibron’s pocket knew nothing about him; he merely saw him “talking to a number of
known narcotics addicts over a period of eight hours.” Sibron, 392 U.S. at 62. In this
case, by contrast, Oliver recognized Appellant as a repeat visitor to a “bar” that was a
front for narcotics sales and who exhibited behavior consistent with that of known drug
buyers at that establishment. The majority dismisses that testimony because, in its view,
“this hardly leads to the conclusion that . . . Oliver knew Marcopoulos to be a repeat
narcotics customer.” But these facts can fall short of establishing such a conclusion and
still help establish probable cause. Instead of considering them as part of the bigger
picture and looking at them in the light most favorable to the trial court’s ruling, however,
the majority discards them.
Having dispensed with any incriminating inferences to be drawn from Appellant’s
repeated visits to Diddy’s, the majority acknowledges that his “unusually brief” visit there
on the day of his arrest was suspicious but holds it insufficient to support a probable cause
finding, again isolating a fact instead of viewing it as part of a totality of the
circumstances. The majority then turns its attention to Appellant’s furtive gestures and
finds that they fall short, as well.
The majority claims that Appellant’s furtive gestures lacked significance because
they were not “in response to police action . . . but rather mere police presence” and cites
Brown, 481 S.W.2d 106, as authority for this supposed distinction. But Brown did not
Marcopoulos dissent–Page 7
hold, as the majority seems to, that something like “wailing sirens or flashing lights” must
precede furtive gestures to cast them in an incriminating light. Instead, Brown
acknowledged the lack of evidence in that case to show that (1) the defendants recognized
that the unmarked car following them was a police car, (2) their gestures were in response
to that recognition, and (3) their ambiguous shoulder movements were made for the
purpose of avoiding apprehension. Id. at 112. Here, by contrast, a marked patrol unit
pulled in behind Appellant’s truck, Appellant knew that the patrol car was behind him,
and his gestures, far from ambiguous, looked as if he were hiding something.
Deliberately furtive gestures at the approach of police “are strong indicia of mens rea,”
Sibron, 392 U.S. at 66, and the majority errs to discount them in this case.
Even if the law required police “action” for furtive gestures to have incriminating
significance, the gestures here would meet that requirement because Appellant continued
them after he pulled over in response to the patrol officer’s activation of his emergency
equipment, a fact ignored by the majority opinion.
The majority correctly states that furtive gestures alone do not establish probable
cause. But having dismissed the other suspicious circumstances in this case – the nature
of Diddy’s as a front for drug sales, Appellant’s repeated appearances there, his brief
appearance on this occasion – the majority destined Appellant’s furtive gestures to stand
alone and thus be insufficient to support a finding of probable cause.
The majority cites Turner v. State, 550 S.W.2d 686 (Tex. Crim. App. 1977)
Marcopoulos dissent–Page 8
(commissioner opinion), as an example of probable cause based on furtive gestures of
which it approves. In that case, a driver dropped a matchbox to the floor as he exited a
vehicle in response to a police officer’s command. Id. at 688. The Turner opinion held
that sufficed as probable cause. Id. If dropping a matchbox in the presence of a police
officer amounts to probable cause, then the totality of the circumstances here amounts to
probable cause, too.
We should dismiss this petition as improvidently granted. Alternatively, we should
uphold the trial court’s implicit finding of probable cause to search the truck. Since the
majority does neither, I dissent.
Filed: December 20, 2017
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