John Haney Summers v. State

NO. 07-10-0287-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 15, 2012
___________________________________
JOHN HANEY SUMMERS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
___________________________________
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY;
NO. 2009-0000211M-CR; HON. ROGER E. TOWERY, PRESIDING
__________________________________
Memorandum Opinion
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Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
John Haney Summers (appellant) appeals the trial court’s denial of his motion to
suppress filed after he was charged with possession of child pornography. According
to appellant, he was illegally detained after a legal traffic stop.1 We affirm.
1
The State of Texas failed to submit an appellee’s brief addressing appellant’s contentions. That
is a frustrating circumstance occurring with greater frequency. Whether intentional or not, such omissions
are not an acceptable alternative to effective advocacy.
Background
The situation before us involves appellant arranging a rendezvous with a minor
female at a local park late one evening. The purpose of the meeting was so they could
play “mistress.” Via that activity, the youth “could command [appellant] to do things and
that she could spank him for being bad.” He would also “kiss[] her shoes.” The two had
met over the internet and communicated through emails. Appellant also maintained a
“profile on the internet site [through] which he was writing” to the girl. According to the
arresting officer, information on the site included a representation that appellant was
sixteen and that he had “friends” who were “13 years or younger.” Some of these
“friends” were dressed “in provocative ways, putting intimate objects in their mouths and
[using] suggestive language . . . stating they were sexually active and things of that
sort.”
The same officer, after viewing the emails and website, opted to conduct
surveillance of the park at which the minor and appellant were supposed to meet. While
there, he spied a green Chevy pickup like the one appellant said he would be driving,
parked behind the truck, and activated his emergency lights. It was approximately 9:30
p.m. Furthermore, the officer learned, “while [he] was checking on [appellant’s] driver
status,” of a “dispatch” advising him that the minor in question had received another
email from appellant stating that he “was pulled over at the park and the police were
checking him out.”
As the officer approached the pickup, he noticed appellant operating a laptop
with “many chat windows . . . open . . . .” Appellant was told that the officer wanted to
speak with him and “asked if he would come . . . to the Nocona PD.” Appellant said
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“okay.” The officer then handcuffed appellant, placed him in the patrol car, and drove
him to the police station. Upon their arrival, appellant was informed of “his Miranda
rights” and waived them. Thereafter, the officer “began questioning him about child
pornography.” Appellant eventually disclosed that he had such pornography on his
laptop and allegedly executed a consent form purporting to allow the officer to view
those pictures. “[N]ear 500 pictures of children from the ages of 13 to infant performing
sexual acts with . . . people named as their sister or brother, father or mother, other
unidentified males and females” were found on the computer. This led to appellant’s
arrest.
Appellant moved to suppress the evidence found after he was detained. The trial
court denied the motion. The propriety of that decision is now before us.
Discussion
In his sole issue, appellant argues that the “the legal investigatory detention of
[himself] at the time of a traffic stop ripened into an illegal arrest without probable cause
in violation of the Fourth Amendment when [he] was detained in handcuffs and
transported to the police station in the officer’s car.” Thus, the “evidence obtained
thereafter . . . was tainted and should have been excluded . . . .” We overrule the issue.
The pertinent standard of review is well-settled and thoroughly described in
opinions such as St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007),
Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002), Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997) and Hudson v. State, 247 S.W.3d 780, 783 (Tex.
App.–Amarillo 2008, no pet.). To reiterate it here would serve little purpose.
3
Next, a warrantless arrest is, pursuant to the Fourth Amendment, unreasonable
per se unless it fits into one of a “few specifically established and well delineated
exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135, 124
L. Ed. 2d 334 (1993); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). One
such exception permits a police officer to effect such an arrest when facts and
circumstances within his knowledge, and of which he has reasonably trustworthy
information, would authorize a reasonably prudent person to believe that the suspect
committed or is committing a crime. Quinones v. State, 325 S.W.3d 801, 803 (Tex.
App.–Amarillo 2010, no pet.). Under this test, the State need not prove that the suspect
actually committed a crime. Id. Rather, it is enough to illustrate that the circumstances
enabled a reasonable officer to so believe. Id.; See Adkins v. State, 764 S.W.2d 782,
785 (Tex. Crim. App. 1988) (holding that art. 14.01 arrests have previously been
sanctioned when an individual's conduct, while not overtly criminal by itself, is coupled
with an officer's prior knowledge so that the otherwise innocuous conduct reflects that
an offense is then occurring). In other words, if an officer could reasonably believe that
the elements comprising a crime existed, given the totality of circumstances before him,
he has probable cause to arrest the actor irrespective of whether the State can prove
later at trial that a crime actually, i.e. factually, occurred. Quinones v. State, 325 S.W.3d
at 803; see Delgado v. State, 718 S.W.2d 718, 720-21 (Tex. Crim. App. 1986) (finding
the warrantless arrest legal even though the fact that the hypodermic syringe in the
instant case later was shown by a laboratory report not to contain a controlled
substance, contrary to the police officer's impression at the scene).
4
We next note that a person commits an offense if he, “over the Internet, by
electronic mail or text message or other electronic message service or system, or
through a commercial online service, knowingly solicits a minor to meet another person,
including the actor, with the intent that the minor will engage in sexual contact, sexual
intercourse, or deviate sexual intercourse with the actor or another person.” TEX. PENAL
CODE ANN. § 33.021(c) (West 2011). This provision says nothing of anyone actually
engaging in sexual contact or intercourse before a crime arises. Rather, the actor need
only have the intent to so engage while knowingly soliciting a minor via the internet.
And, the circumstances known to the officer at bar were enough to allow a reasonable
person to believe that appellant (at the time he was handcuffed and placed in the squad
car) was in the process of violating § 33.021(c).
The circumstances of which we speak include the officer 1) knowing of the
emails between appellant and the minor, 2) seeing the pictures on the internet site
being utilized by appellant to converse with the minor, 3) seeing pictures on that site of
“friends” putting intimate objects in the mouth, 4) reading the language on the same site
indicating that his “friends” were “sexually active,” 5) reading information on the site
indicating that his “friends” included children thirteen years old and younger, 6) knowing
that a minor had been solicited by an individual driving a green Chevy pickup to meet in
a park, 7) knowing that the solicitation occurred via the internet, 8) reading that the
person wanted to play “mistress” with the minor at the park, 9) encountering appellant in
a green Chevy pickup at the designated location and time, 10) seeing appellant
operating a laptop computer, and 11) knowing appellant had just sent the minor an
email about being stopped by the officer. Whether these circumstances would be
5
enough to support a conviction for solicitation under § 33.021(c) of the Penal Code is
unimportant, for that is not the issue before us. Rather, we need only determine if it
created probable cause to believe the statute had been violated at the time appellant
was handcuffed, and we so conclude irrespective of whether he was actually arrested at
that point.
The trial court not having abused its discretion in overruling the motion to
suppress, we affirm the judgment.
Per Curiam
Do not publish.
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