Candace Orn v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00203-CR
Candace Orn, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 12-095, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
MEMORANDUM OPINION
After the trial court denied her motion to suppress, appellant Candace Orn pleaded
guilty to the state-jail-felony offense of possession of less than one gram of methamphetamine. See
Tex. Health & Safety Code §§ 481.102(6), .115(b). Pursuant to appellant’s agreement with the State,
the trial court deferred adjudication of guilt, placed appellant on community supervision for two
years, and assessed a $1,000 fine. In one issue on appeal, appellant contends the trial court abused
its discretion in denying appellant’s motion to suppress because there was no probable cause for the
warrantless search of appellant’s vehicle, the State did not prove that the arresting officer conducted
a valid inventory according to departmental procedures, and the search did not meet the requirements
of a valid search incident to arrest under Arizona v. Gant, 556 U.S. 332 (2009). We will affirm.
BACKGROUND
The following is a summary of testimony and evidence presented at the hearing on
the motion to suppress. At approximately 3:20 p.m. on February 23, 2012, Lockhart Police
Department Officer Clint Williams observed a vehicle parked at what he testified was a strange angle
in the parking lot behind an Auto Zone store in Lockhart. Williams testified that that portion of the
parking lot was usually used only by store employees, and he found the vehicle’s presence there
suspicious. When he slowed down to look at the vehicle he saw that appellant was inside and
appeared to be in “some form of emotional distress.” Williams testified that she was rubbing her
eyes and appeared to be crying. When he stopped to check on appellant, he observed that she was
not crying but rather was sweating profusely even though it was not a warm day. Williams testified
that appellant’s speech pattern was extremely rapid and that she was not making sense. Williams
stated that he deals with a lot of people under the influence of narcotics and on making contact with
appellant he believed she was under the influence of some kind of stimulant.
A driver’s license check revealed that Bastrop County had previously issued a warrant
for appellant’s arrest for the offense of theft by check. Williams then took appellant into custody and
confirmed the status of the warrant. Williams handcuffed appellant and placed her in the back seat
of his patrol car. Williams testified that he then “began to inventory the vehicle incident to arrest”
because he was going to have the vehicle towed to an impound lot. Williams stated that while he
was conducting the inventory he found a small baggy of a crystalline-type substance in the storage
compartment above the rear view mirror that he believed to be narcotics. Williams testified
that he then ceased the inventory and contacted his supervisor, a narcotics investigator.
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Williams’s supervisor advised Williams to seize the vehicle and have it driven to the Lockhart
Police Department.
A video taken from Williams’s dashboard camera was admitted into evidence during
the hearing on the motion to suppress. When the video begins, appellant is already seated in the back
of the patrol car and Williams reports to the police department dispatcher that he is waiting on a K-9
unit. An Auto Zone employee inquires what is going on, and Williams tells him that “there was a
lady sitting back here all weird and what not,” that he thinks she is “high on meth,” and that he might
“want to run the dog around.” The Auto Zone employee walks away, and Williams gets in his patrol
car. Appellant, who is fidgeting in the back seat, asks Williams to turn the car’s air conditioner up.
Williams then gets out of the car and begins talking on his phone. He says that he tried to contact
the K-9 unit officer but did not reach him. Williams then described appellant as “geeked” and
unable to sit still. After concluding that conversation, Williams’s phone rings and he can be heard
to say:
Yeah, she can’t sit still. She’s talking 90 miles an hour. She’s still sitting in the back
of my car just moving and moving and moving. Yeah, not yet. I mean I looked in
her purse a little bit because when I pulled up she was rubbing her nose and put her
purse down beside her. Yeah, I will. I’ll just inventory incident to arrest. Yeah, I’ll
just do that.
The video then shows Williams walking to appellant’s vehicle, where he opens the driver’s side door
and leans into the vehicle. The sound of Williams looking through the front portion of the vehicle
can be heard, and after approximately two minutes he finds the baggy containing the crystalline
substance he suspects is methamphetamine. At that point, Williams calls for another officer to come
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to the scene with a camera and requests that they “start a case for PCS”—possession of a controlled
substance. The remainder of the video shows Williams asking appellant whether she owns the
vehicle “free and clear” and the officers discussing that they will seize the vehicle and take it to the
Lockhart Police Department. At one point, Williams comments, “That would be why she is so
messed up and couldn’t sit still.” The video concludes with Williams driving appellant to the police
station for booking.
On cross-examination, Williams confirmed that he had called for a K-9 unit because
he wanted to see if the dog would alert to anything in the vehicle. Williams stated that he did not
search the vehicle but had “inventoried it incident to arrest.” Williams testified that the inventory
was conducted in accordance with standard operating policy that had been “passed on from training
officer to student,” but that he was unaware if the Lockhart Police Department had any written policy
regarding how to conduct an inventory. Williams described the policy as advising the officer to take
a form to the car and make a list of valuables, but he stated that he did not take a form with him to
this inventory because it is his practice to look through the car and then go back to his patrol car and
write down what he found.
Appellant testified at the hearing that she had pulled into the Auto Zone parking lot
because she needed to buy some things for an oil change for her car. She stated that she had come
from Wal-Mart where she had bought some makeup, and that she was sitting in the car putting on
makeup prior to going into the Auto Zone store. Appellant testified that when asked, she told
Williams she was fine and nothing was wrong. Appellant stated that she was not crying and her
speech was not rambling. Appellant testified that she gave Williams her driver’s license when he
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asked for it and volunteered that there was possibly an outstanding warrant for her arrest for a “hot
check.” According to appellant, she was a “nervous wreck” because she was concerned about the
arrest warrant. Appellant testified that Williams asked her if he could get a K-9 unit out and she said
that was fine. Williams then placed handcuffs on her and put her in his patrol car. Appellant
testified that it was hot in the car and she moved around because she was uncomfortable. She denied
that she had been sweating before she was placed in the patrol car. She also attributed any fidgeting
on her part to concern about going to jail because of the warrant. She said that she was not
concerned about or nervous that Williams would find methamphetamine in her car.
At the conclusion of the hearing, the trial court expressed the view that he found
Williams’s testimony regarding his concerns about appellant to be credible and that he found
appellant’s testimony about makeup to be “less than credible.” He also expressed his view that the
officer testified about legitimate signs that appellant was under the influence of a stimulant. After
considering post-hearing briefing, the trial court denied the motion to suppress.
DISCUSSION
We review a denial of a motion to suppress for an abuse of discretion. Shepherd
v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We apply a bifurcated standard of review,
giving almost total deference to the trial court’s express or implied findings of historical facts and
reviewing de novo the trial court’s application of the law of search and seizure. Carmouche v. State,
10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). When the trial court does not make explicit findings of historical facts, we review the
evidence in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327. “In
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other words, we will assume that the trial court made implicit findings of fact supported in the record
that buttress its conclusion.” Id. The trial court is the “sole trier of fact and judge of the credibility
of the witnesses and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007). We sustain the trial court’s ruling if it is reasonably supported by the
record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857
(Tex. Crim. App. 2003).
“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is
a cardinal principle that searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S. 385, 390
(1978). Among the exceptions is the search of an automobile based on probable cause to believe it
contains evidence of a crime. See Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008).
Under the automobile exception, law enforcement officials may conduct a warrantless search
of a vehicle if there is probable cause to believe that it contains contraband. Keehn v. State,
279 S.W.3d 330, 335 (Tex. Crim. App. 2009). This exception is justified because the ready mobility
of a vehicle creates an exigency, and an individual has a reduced expectation of privacy in a vehicle
because it is subject to “pervasive [government] regulation.” Pennsylvania v. Labron, 518 U.S. 938,
940 (1996) (citing California v. Carney, 471 U.S. 386, 391-92 (1985)). If the automobile exception
applies, law enforcement officers may search “every part of the vehicle and its contents that may
conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982); Neal,
256 S.W.3d at 282.
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“Probable cause to search exists when reasonably trustworthy facts and circumstances
within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe
that the instrumentality of a crime or evidence of a crime will be found.” Estrada v. State,
154 S.W.3d 604, 609 (Tex. Crim. App. 2005). Williams testified that he had experience dealing
with people who are under the influence of narcotics. He testified that he observed appellant sitting
in her car, sweating profusely, and wiping her nose. He also described her as fidgeting and talking
very rapidly and in a confused manner. According to Williams, these are all signs of
methamphetamine use. The video confirms that appellant was fidgeting as she sat in the patrol car.
In the video, Williams described appellant as “geeked” and stated his belief that she was “high on
meth.” Based on this evidence, we conclude that the trial court could reasonably have concluded that
Williams had probable cause to believe that methamphetamine would be found in appellant’s
vehicle. Accordingly, the trial court did not abuse its discretion when it denied appellant’s motion
to suppress.1
CONCLUSION
We overrule appellant’s sole appellate issue and affirm the trial court’s order
deferring adjudication of appellant’s guilt and placing her on community supervision.
1
Because we hold that the search was lawful pursuant to the automobile exception, we need
not address the State’s alternative argument that Williams was conducting a lawful inventory. See
Tex. R. App. P. 47.1.
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_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed
Filed: November 13, 2014
Do Not Publish
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