Tendo Edmond v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00038-CR
___________________________
TENDO EDMOND, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 4
Denton County, Texas
Trial Court No. CR-2018-07211-D
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Tendo Edmond pled nolo contendre to possessing under two
ounces of marijuana in exchange for sixty days in jail, and the trial court convicted
him and sentenced him accordingly. See Tex. Health & Safety Code Ann.
§ 481.121(a)(b)(1); Tex. Penal Code Ann. § 12.22. Appellant preserved his right to
appeal the trial court’s pretrial denial of his motion to suppress and timely appealed.
In one issue, Appellant contends that the trial court erred by denying his motion to
suppress the warrantless search of his car because the State forfeited any argument
based on the automobile exception. Alternatively, he argues that the automobile
exception did not justify the search because his car was not readily mobile. We hold
that the preservation rules did not apply to the State, who prevailed in the trial court,
and that the automobile exception justified the search. We therefore uphold the trial
court’s denial of Appellant’s motion to suppress and affirm the trial court’s judgment.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
During a traffic stop based on unconfirmed insurance and a warrant “hit”
related to Appellant’s Nissan Sentra’s license plate number, Carrollton police smelled
the odor of marijuana coming from the car. The police arrested Appellant after
confirming active arrest warrants and placed him in a patrol car. They then searched
his car and found marijuana inside a black box in the front passenger seat.
Appellant was later charged with possessing less than two ounces of marijuana,
and he filed a motion to suppress the warrantless search, arguing that it violated
2
Arizona v. Gant’s proscription of searches incident to arrest, 556 U.S. 332, 351, 129 S.
Ct. 1710, 1723–24 (2009); exceeded a limited search allowed in a Terry stop, Terry v.
Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968); was not a lawful inventory
search; and was not justified by the automobile exception (although he cited
impoundment inventory-search cases—South Dakota v. Opperman, 428 U.S. 364, 375–
76, 96 S. Ct. 3092, 3100 (1976), and Benavides v. State, 600 S.W.2d 809, 812 (Tex. Crim.
App. 1980), not cases based on the automobile exception grounded in probable
cause).
At the hearing on Appellant’s motion to suppress, the two Carrollton police
officers involved in his arrest and the car search testified, and the trial court admitted
the audio-video recording of the detention and search. In her closing argument, the
prosecutor conceded that the inventory-search and search-incident-to-arrest
exceptions did not apply but argued that “it’s well settled that smelling marijuana gives
officers the ability to search a vehicle” and “[t]hat’s an exception to a warrant. If you
have probable cause to search you don’t need a warrant.” The prosecutor did not use
the term automobile exception.
The trial court issued the following written findings after denying the motion to
suppress:
1. Sgt. Christopher Gent and Officer Micah Goodman are both
certified peace officers in the State of Texas and work for the
Carrollton Police Department.
3
2. Sgt. Gent and Officer Goodman testified before this Court at a
hearing on Defendant’s Motion to Suppress on January 24, 2019.
The Court finds the testimony of both witnesses to be credible in all
regards.
3. On November 22, 2018 at around 11:02 PM, Sgt. Gent was
conducting routine patrol on Frankford Road, Carrollton, Denton
County, Texas.
4. Sgt. Gent conducted a traffic stop on the defendant’s black Nissan
Sentra for unconfirmed insurance and warrants attached to the
vehicle.
5. The driver, and only occupant of the vehicle, was identified as Tendo
Edmond, the defendant in this case.
6. Sgt. Gent did not initially smell an odor of marijuana coming from
the vehicle because he was congested from being ill and his sense of
smell was compromised, which was apparent from the video
evidence.
7. Sgt. Gent confirmed that the defendant had active warrants from
three different agencies, which included two felony warrants from the
Dallas County Sheriff’s Office.
8. Once Sgt. Gent confirmed the defendant’s warrants, he called for a
back-up unit since his vehicle was not equipped for prisoner
transport. Officer Goodman arrived to backup Sgt. Gent.
9. Sgt. Gent testified that he smelled the odor of marijuana on his
second approach of the defendant’s vehicle.
10. Sgt. Gent testified that based on his training and experience, he is
familiar with the odor of marijuana.
11. Officer Goodman testified that he smelled the odor of marijuana
coming from the defendant’s vehicle while he was still several feet
away from the vehicle.
12. Officer Goodman testified that based on his training and experience,
he is familiar with the odor of marijuana.
4
13. The defendant was placed under arrest for his warrants and placed in
the back of Officer Goodman’s vehicle.
14. Sgt. Gent and Officer Goodman then conducted a probable cause
search of the defendant’s vehicle based on the smell of marijuana
coming from the vehicle.
15. Marijuana was located inside the defendant’s vehicle in a black box
sitting in the passenger’s seat.
The trial court concluded that the automobile exception justified the
warrantless search.
II. STANDARDS OF REVIEW
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). While we give great
deference to a trial court’s rulings on questions of historical fact and application-of-
law-to-fact questions that turn on evaluating credibility and demeanor, we review
de novo application-of-law-to-fact questions that do not turn on credibility and
demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
Even if the trial court gave the wrong reason for its ruling, we must uphold the ruling
if it is both supported by the record and correct under any applicable legal theory.
State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State,
123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
5
Whether a warrantless search is reasonable is a question of law that we review
de novo, measuring reasonableness by examining the totality of the circumstances.
Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). In the process we must
balance the public interest and the individual’s right to be free from arbitrary
detentions and intrusions. Id. at 63.
III. DISCUSSION
In his sole issue, Appellant complains that the trial court erred by denying his
motion to suppress because the State did not raise the automobile exception in the
trial court and therefore forfeited it. Alternatively, Appellant complains that the
automobile exception did not apply because his car was not readily mobile, as he was
already in custody at the time of the search.
A. The State had no duty to raise the automobile exception.
Appellant argues that the State did not argue the automobile exception in the
trial court and therefore forfeited its appellate argument based on it. As the prevailing
party in the trial court, the State was not subject to the rules of procedural default. See
Alford v. State, 400 S.W.3d 924, 928 (Tex. Crim. App. 2013). The case Appellant relies
on does not state otherwise. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.
2002) (holding that the court of appeals correctly declined to consider the appellant
State’s argument not made in the trial court). We review the trial court’s legal rulings
de novo, upholding them under any correct legal theory. Alford, 400 S.W.3d at 929.
Nevertheless, in the interest of justice, we point out that the State here did argue the
6
automobile exception in the trial court, albeit not by name. In her closing argument,
the prosecutor alluded to the automobile exception by stating that “smelling
marijuana gives officers the ability to search a vehicle” and “[t]hat’s an exception to a
warrant. If you have probable cause to search you don’t need a warrant.” Further,
Appellant mentioned the term automobile exception in his motion to suppress, and the
trial court based its denial of Appellant’s motion to suppress on the automobile
exception. This is therefore not a case where Appellant was sandbagged on appeal
with a legal theory he had no opportunity to argue against in the trial court. But see
State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013) (upholding the
intermediate appellate court’s reversal of the trial court’s suppression order without
addressing Rule 702 theory because neither the suppression motion nor the
suppression hearing gave the State or the trial court any notice that the challenged
breath-test results could be excluded on that basis). We therefore reject this portion
of Appellant’s issue.
B. The automobile exception justifies the warrantless search.
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). A warrantless search is per se unreasonable unless it falls
within one of the “specifically defined and well established” exceptions to the warrant
requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (footnote
7
and internal quotation marks omitted); see Best v. State, 118 S.W.3d 857, 862 (Tex.
App.—Fort Worth 2003, no pet.).
Under the automobile exception to the warrant requirement, police may search
a vehicle without a warrant if it is readily mobile and they have probable cause to
believe the vehicle contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940,
116 S. Ct. 2485, 2487 (1996); California v. Carney, 471 U.S. 386, 393, 105 S. Ct. 2066,
2070 (1985); Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); Wiede,
214 S.W.3d at 24. The two justifications for the automobile exception are the
automobile’s ready mobility and the lower expectation of privacy in an automobile in
contrast to a home or office. Carney, 471 U.S. at 391, 105 S. Ct. at 2069; Keehn,
279 S.W.3d at 335. Exigent circumstances are not a requirement of the automobile
exception. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014 (1999); Neal v.
State, 256 S.W.3d 264, 283 (Tex. Crim. App. 2008); State v. Guzman, 959 S.W.2d 631,
633 (Tex. Crim. App. 1998) (overruling the lower court’s decision that because a car
in police custody could not be moved without the police’s permission, the automobile
exception did not apply).
As for Appellant’s claim that his car was not readily mobile when it was
searched because he was sitting handcuffed in the police car, neither case cited by
Appellant in his brief stands for that proposition. See Marcopoulos v. State, 538 S.W.3d
596, 600–04 (Tex. Crim. App. 2017) (holding the automobile exception did not justify
the warrantless search of defendant’s car because police lacked probable cause); Keehn,
8
279 S.W.3d at 335–36 (holding the automobile exception justified the search of
defendant’s van parked in his driveway while officers were interviewing him inside his
home).
Further, courts, including this one, have already rejected the mobility argument
Appellant raises. See Rogers v. State, No. 02-15-00160-CR, 2016 WL 299752, at
*4 (Tex. App.—Fort Worth Jan. 14, 2016, pet. ref’d) (mem. op., not designated for
publication) (stating, in case in which the driver was arrested, handcuffed, and placed
in a patrol car before the search of his vehicle culminating in the defendant
passenger’s arrest, “There is no question that [the] vehicle was readily mobile as it was
being driven by [the driver] immediately prior to the search.”); see also State v. Pena,
No. 03-18-00765-CR, 2019 WL 3786570, at *11–12 (Tex. App.—Austin Aug. 13,
2019, pet. filed) (citing Rogers for the proposition that the car was readily mobile and
rejecting the defendant’s assertion that the automobile exception did not apply
because he had already been handcuffed and placed in a patrol car before the search
of his car); cf. Neal, 256 S.W.3d at 283 (rejecting defendant’s assertion that the
automobile exception did not apply because he was already in police custody and
therefore there was no risk of the evidence in his truck being lost or destroyed). But
see State v. Elias, 339 S.W.3d 667, 678 (Tex. Crim. App. 2011) (stating in dicta that “it
could perhaps be debated whether the automobile exception to the warrant
requirement ought properly to be applied” in case in which defendant was arrested
before the search of his van) (citing Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim.
9
Ohio App. 1991)); Amos, 810 S.W.2d at 161 (stating in dicta, “It may be that where police
come upon an automobile that is parked, and a suspect is in custody, something more
than the inherent mobility of the vehicle is needed to establish exigency to justify a
warrantless search,” but recognizing that the United States Supreme Court indicated
otherwise in Carney, 471 U.S. at 392–93, 105 S. Ct. at 2070).
Despite the dicta of the Texas Court of Criminal Appeals, the United States
Supreme Court has made clear that a car does not lose its ready mobility after its
occupant’s arrest. In Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079 (1982), the
minor driver who was cited for driving without a license and the passenger owner of
the car—the adult defendant who was arrested for having an open bottle of malt
liquor in the car—were taken to a patrol car before the police searched the
defendant’s car and found two bags of marijuana and a loaded revolver in the air
vents under the dashboard. The United States Supreme Court reversed a lower
court’s conclusion that because the car and its occupants were in custody by the time
of the warrantless search, no exigency justified it. Id. at 261, 102 S. Ct. at 3080–81.
The Court stated,
It is . . . clear that the justification to conduct . . . a warrantless search
[under the automobile exception] does not vanish once the car has been
immobilized; nor does it depend upon a reviewing court’s assessment of
the likelihood in each particular case that the car would have been driven
away, or that its contents would have been tampered with, during the
period required for the police to obtain a warrant.
Id.
10
Accordingly, we hold that the trial court correctly determined that the
automobile exception justified the warrantless search of Appellant’s car. We overrule
the remainder of his issue.
IV. CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: November 14, 2019
11