State v. Joshua Lindsey

ACCEPTED
13-15-00292-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
9/16/2015 11:00:39 AM
Dorian E. Ramirez
CLERK
#13-15-00292-CR
FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
Thirteenth Court of Appeals, Corpus 9/16/2015
Christi 11:00:39 AM
& Edinburg
DORIAN E. RAMIREZ
Clerk
THE STATE OF TEXAS,
Appellant
v.
JOSHUA LINDSEY,
Appellee
ON STATE’S APPEAL FROM THE 105TH DISTRICT COURT
OF NUECES COUNTY, CAUSE #13-CR-4068-D
STATE’S BRIEF
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Jud. Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant: The State of Texas, District Attorney for the 105th Judicial
District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney
Jordan Brown, Asst. Dist. Atty.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Appellee: Joshua Lindsey, represented by
Trial and Appellate Counsel:
Celina Lopez Leon
Law Office of Scott Ellison, PLLC
410 Peoples St.
Corpus Christi, TX 78401-2318
361.887.7600 phone
361.882.4728 fax
celinamarielopez@gmail.com
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ................................................................................... v
STATEMENT OF THE CASE ............................................................................. vii
ISSUE PRESENTED ............................................................................................ viii
After explicitly finding that the investigating officer smelled the
‘strong odor’ of marihuana emanating from Defendant’s
vehicle, did the trial court err by suppressing the cocaine
found in the trunk of Defendant’s vehicle for want of probable
cause? ........................................................................................................ viii
STATEMENT OF FACTS .......................................................................................1
Indictment for possessing 4 to 200 grams of cocaine ..................................1
Hearing on Lindsey’s motion to suppress all contraband found in
his vehicle, including the passenger area and trunk .............................1
The trial court finds that Officer Ortiz smelled the ‘strong odor’ of
marihuana emanating from Lindsey’s vehicle .......................................2
The trial court suppresses over 40 grams of cocaine found in the
trunk but not the .61 grams of cocaine found in the passenger
area ................................................................................................................3
SUMMARY OF THE ARGUMENT ......................................................................3
ARGUMENT ............................................................................................................4
The trial court erred by granting, in part, Defendant Lindsey’s
motion to suppress .....................................................................................4
1. General Suppression Standards .........................................................4
1.a Review ..............................................................................................4
1.b Evidentiary Burdens ......................................................................5
1.c Probable Cause ...............................................................................6
iii
2. The controlling legal standards recognize that, when an
officer detects the odor of marihuana emanating from a
vehicle, probable cause exists to search any part of the
vehicle where marihuana could be secreted, such as the
trunk .......................................................................................................8
2.a The odor of marihuana emanating from a vehicle
provides probable cause to search it ...........................................8
2.b Probable to search a vehicle for marihuana provides
probable cause to search its trunk ...............................................9
3. The trial court ignored controlling Texas law by
concluding that the ‘strong odor’ of marihuana failed to
provide probable cause to search the trunk of Lindsey’s
vehicle...................................................................................................11
PRAYER ..................................................................................................................12
CERTIFICATE OF COMPLIANCE ....................................................................12
CERTIFICATE OF SERVICE ...............................................................................13
iv
INDEX OF AUTHORITIES
Cases
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) .................................8
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) .................................7
Chambers v. Maroney, 399 U.S. 42 (1970) ...........................................................6
Dixon v. State, 206 S.W.3d 613 (Tex. Crim. App. 2006) .....................................5
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ..................................7
Florida v. Harris, 133 S. Ct. 1050 (2013) ...........................................................7, 8
Garza v. State, No. 13-05-374-CR, 2006 WL 3375333 (Tex. App.—
Corpus Christi Nov. 22, 2006, pet. ref’d) .................................................10
Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991) ................................9
Herring v. State, 758 S.W.2d 849 (Tex. App.—Corpus Christi 1988,
pet. ref’d) ......................................................................................................10
Jordan v. State, 394 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d) ........................................................................................................9
Levine v. State, 794 S.W.2d 451 (Tex. App.—Amarillo 1990, pet. ref’d) .......11
Marsh v. State, 684 S.W.2d 676 (Tex. Crim. App. 1984) ....................................8
Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008), cert. denied, 555
U.S. 1154 (2009) .............................................................................................6
Osban v. State, 726 S.W.2d 107 (Tex. Crim. App. 1986) ....................................9
Parker v. State, 206 S.W.3d 593 (Tex. Crim. App. 2006) ....................................8
Rocha v. State, 464 S.W.3d 410 (Tex. App.—Houston [1st Dist.] 2015,
pet ref’d) .......................................................................................................11
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................5
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................5
v
State v. Montes de Oca, No. 13-14-00289-CR, 2015 WL 4504927 (Tex.
App.—Corpus Christi July 23, 2015, no. pet. h.) ......................................6
United States v. Ross, 456 U.S. 798 (1982) ...........................................................9
Villarreal v. State, 703 S.W.2d 301 (Tex. App.—Corpus Christi 1985,
no pet.) ..........................................................................................................10
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) ......................................8
vi
STATEMENT OF THE CASE
Nature of the Case On February 6, 2015, a grand jury indicted
Defendant-Appellee Joshua Lindsey for
possession of 4 grams or more but less than 200
grams of cocaine. CR 5.
Course of Proceedings On February 16, 2015, Lindsey moved to
suppress. CR 25. On June 5, the trial court
heard Lindsey’s motion to suppress. RR 1; CR
47.
Trial Court’s Disposition On June 18, 2015, the trial court granted, in part,
Lindsey’s motion and suppressed the cocaine
found in his vehicle’s trunk but not the
passenger area of the car. CR 47. On August 5,
the trial court signed findings of fact and
conclusions of law. CR 70.
vii
ISSUE PRESENTED
After explicitly finding that the investigating officer smelled the “strong
odor” of marihuana emanating from Defendant’s vehicle, did the trial
court err by suppressing the cocaine found in the trunk of Defendant’s
vehicle for want of probable cause?
viii
STATEMENT OF FACTS
Indictment for possessing 4 to 200 grams of cocaine.
On February 6, 2015, a grand jury indicted Defendant-Appellee
Joshua Lindsey for possession of 4 grams or more but less than 200 grams
of cocaine, a second degree felony punishable as a first degree due to his
prior murder conviction. CR 5. On February 16, Lindsey moved to
suppress and alleged that the police could not properly detain him because
he smelled of marihuana and could not use his keys to unlock his vehicle
and search it. CR 25.
Hearing on Lindsey’s motion to suppress all contraband found in
his vehicle, including the passenger area and trunk.
On June 5, 2015, the trial court heard Lindsey’s motion to suppress.
RR 1; CR 47. Corpus Christi Police Department Officer Vicente Ortiz to the
encounter involving him, fellow CCPD Officer Gonzalez and Lindsey. CR
70 (## 3, 4). That encounter resulted in a search of Lindsey’s vehicle that
produced four baggies of cocaine—one from the passenger area (.61 grams
of residue from the front passenger seat) and three from the trunk
1
(containing crushed cocaine and several rocks of cocaine totaling over 40
grams). RR 45-49; CR 47.
The trial court finds that Officer Ortiz smelled the “strong odor” of
marihuana emanating from Lindsey’s vehicle.
Based ostensibly on Officer Ortiz’s testimony, the trial court made the
following pertinent findings1:
As Officers Ortiz and Gonzalez approached a convenience store to
investigate a theft, they passed “two vehicles parked in front of the
store, and Ortiz could smell a strong odor of marijuana emitting from
the vehicles.” ## 4, 5.
“Officer Ortiz opened the trunk of Lindsey’s vehicle after Lindsey
had been in the unit for thirty minutes, pursuant to an inventory
search after he decided to impound the car.” #19.
“Officer Ortiz found crack cocaine rocks in the trunk of the vehicle.”
#19.
“When Lieutenant Bauer arrived at the scene after the trunk was
opened, Officer Ortiz told Officer Bauer that all he had was a ‘strong
odor of marijuana. That’s all I have.’” #21.
1
The trial judge initially signed the State’s proposed findings without
modification (CR 62), then it vacated that order (CR 78) and signed the Defendant’s
proposed findings without modification (CR 74). Citations to a number following “#”
refer to the number of the finding of fact found at CR 70-73.
2
From these findings, the trial court concluded that “probable cause did not
exist to search the trunk of Defendant’s vehicle.” CR 73 (Conclusion of
Law #1).
The trial court suppresses over 40 grams of cocaine found in the
trunk but not the .61 grams of cocaine found in the passenger area.
The trial court granted, in part, Lindsey’s motion to suppress. It
entered an order suppressing only the evidence found in the trunk of
Lindsey’s vehicle and not the passenger compartment. CR 47 (suppressing
“[a]ny contraband found as a result of the inventory search conducted . . .
in the trunk of Joshua Lindsey’s vehicle.”). Thus, the trial court refused to
suppress the cocaine residue found in the passenger area while
suppressing over 40 grams of cocaine found in the trunk. Ibid.; RR 45-49.
SUMMARY OF THE ARGUMENT
Based on its finding that the officer smelled the “strong odor” of
marihuana emanating from Lindsey’s vehicle, the trial court properly
refused to suppress the cocaine found in the passenger area. But, having
implicitly and properly found reasonable suspicion to detain Linsey and
3
probable cause to search the vehicle, the trial court erred by suppressing
the cocaine found in the trunk of Lindsey’s vehicle.
Probable cause to search based on the odor of marihuana emanating
from a vehicle extends to any part of the vehicle where marihuana may be
found, such as the trunk. The trial court’s attempt to “split the baby”—
implicitly finding probable cause to search the passenger area based on the
odor of marihuana but expressly finding no probable cause to search the
trunk—contradicts with established Texas law and should be reversed.
ARGUMENT
The trial court erred by granting, in part, Defendant Lindsey’s motion to
suppress.
1. General Suppression Standards
1.a Review
In reviewing a trial court’s ruling on a motion to suppress, appellate
courts employ a bifurcated standard, giving almost total deference to a trial
court’s determination of historic facts and mixed questions of law and fact
that rely upon the credibility of a witness, but applying a de novo standard
of review to pure questions of law and mixed questions that do not depend
4
on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273
(Tex. Crim. App. 2013).
When a trial court makes explicit fact findings, the appellate court
determines whether the evidence—viewed in the light most favorable to
the trial court’s ruling—supports these fact findings. State v. Kelly, 204
S.W.3d 808, 818 (Tex. Crim. App. 2006). Whether a specific search or
seizure is reasonable or supported by probable cause under the Fourth
Amendment is subject to de novo review. E.g., Dixon v. State, 206 S.W.3d
613, 616 (Tex. Crim. App. 2006).
1.b Evidentiary Burdens
This Court has recently summarized the well-established burdens of
proof placed on the parties at a suppression hearing—
To suppress evidence on an alleged Fourth Amendment
violation, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police
conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005). This burden is satisfied if the defendant establishes that
the search or seizure occurred without a warrant. Id. In the
context of a blood draw, the defendant must also produce
evidence to support a finding that he did not consent. Kelly,
204 S.W.3d at 819 n.22. Once these facts are established, the
burden shifts to the State to prove the warrantless search was
5
reasonable under the totality of the circumstances. Amador v.
State, 221 S.W.3d 666 672–73 (Tex. Crim. App. 2007). The State
satisfies this burden if it proves an exception to the warrant
requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.
Crim. App. 2007).
State v. Montes de Oca, No. 13-14-00289-CR, 2015 WL 4504927, at *4 (Tex.
App.—Corpus Christi July 23, 2015, no. pet. h.) (not designated for
publication).
The automobile exception to the warrant requirement allows a police
officer to conduct a warrantless search of a vehicle when the officer has
probable cause to believe that the vehicle contains evidence of a crime. Neal
v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. denied, 555 U.S.
1154 (2009). The automobile exception does not require exigent
circumstances to justify such a warrantless search. Chambers v. Maroney,
399 U.S. 42, 48 (1970); Neal, 256 S.W.3d at 283.
1.c Probable Cause
A police officer has probable cause to conduct a search when “the
facts available to him would warrant a person of reasonable caution in the
belief that contraband or evidence of a crime is present.” Florida v. Harris,
6
133 S. Ct. 1050, 1055 (2013) (quotation omitted); see also Estrada v. State, 154
S.W.3d 604, 609 (Tex. Crim. App. 2005) (“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.”).
Summarizing the core principles pertaining to probable cause, the
Court of Criminal Appeals has written,
Probable cause is a “fluid concept” that cannot be “readily, or
even usefully, reduced to a neat set of legal rules.” Though the
concept evades precise definition, it involves “a reasonable
ground for belief of guilt” that is “particularized with respect to
the person to be searched or seized.” “Probable cause” is a
greater level of suspicion than “reasonable suspicion” and
requires information that is more substantial in quality or
content and a greater reliability with respect to the source of
information. At least in the context of searches, probable cause
involves “a fair probability that contraband or evidence of a
crime will be found.” Probable cause is a relatively high level of
suspicion, though it falls far short of a preponderance of the
evidence standard.
Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (footnotes and
citations omitted).
7
When determining probable cause, courts look to the totality of the
circumstances. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see
also Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (describing “all-things-
considered approach”). The test for probable cause is an objective one,
unrelated to the subjective beliefs of the arresting officer. E.g., Amador v.
State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
2. The controlling legal standards recognize that, when an officer
detects the odor of marihuana emanating from a vehicle, probable
cause exists to search any part of the vehicle where marihuana
could be secreted, such as the trunk.
2.a The odor of marihuana emanating from a vehicle provides
probable cause to search it.
[I]f Officer Obie makes a traffic stop and, when the driver rolls
down his window, the redolent odor of burnt marihuana wafts
out, he may well have probable cause to believe that the person
(or persons) inside that small, enclosed area has been or is
committing the offense of possession of marihuana. See, e.g.
Moulden v. State, 576 S.W.2d 817, 818–20 (Tex. Crim. App. 1978)
(police officers who stopped motorist and smelled odor of
burnt marihuana coming from inside car had probable cause to
search car).
Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006); see also
Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984) (“Having
determined that the initial stop was proper, we find as a consequence,
8
given that deputy Lee detected the odor of marihuana coming from the
pickup, that the search was also proper.”).
[T]he odor of marijuana alone is sufficient to constitute
probable cause to search a defendant's person, vehicle, or objects
within the vehicle.
Jordan v. State, 394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d) (quotations omitted; emphasis in original).
2.b Probable to search a vehicle for marihuana provides probable
cause to search its trunk.
The scope of a warrantless search of an automobile thus is not
defined by the nature of the container in which the contraband
is secreted. Rather, it is defined by the object of the search and
the places in which there is probable cause to believe that it
may be found.
United States v. Ross, 456 U.S. 798, 824 (1982), cited with approval in Osban v.
State, 726 S.W.2d 107, 110-11 (Tex. Crim. App. 1986) (en banc), overruled on
other grounds by Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App.
1991).
Police officers have the right to search an entire vehicle when
they have probable cause to believe there is contraband in the
vehicle but do not know where it is located. The knowledge of
the contraband constitutes an “exigent circumstance” under the
“automobile exception” to the warrant requirement. United
9
States v. Ross, 456 U.S. 798, 804–826, 102 S. Ct. 2157, 2162–2173,
72 L. Ed. 2d 572 (1982); Harper v. State, 704 S.W.2d 546, 548 (Tex.
App.—Houston [14th Dist.] 1986, pet. ref’d).
Herring v. State, 758 S.W.2d 849, 853 (Tex. App.—Corpus Christi 1988, pet.
ref’d).
Once probable cause exists to believe that contraband is
contained in a vehicle, police are entitled to conduct a
warrantless search of the vehicle as thorough as one authorized
by a warrant issued by a magistrate. Every part of a vehicle
where contraband might be stored can be inspected. United
States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982).
Under Ross, Officer Spencer was justified in searching the
automobile’s trunk and the pillow case therein, and in seizing
the marihuana.
Villarreal v. State, 703 S.W.2d 301, 305 (Tex. App.—Corpus Christi 1985, no
pet.); see also Garza v. State, No. 13-05-374-CR, 2006 WL 3375333, at *6 (Tex.
App.—Corpus Christi Nov. 22, 2006, pet. ref’d) (“If probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part
of the vehicle and its contents that may conceal the object of the search.”;
not designated for publication).
These facts [including the odor of marijuana] accorded the
troopers probable cause to believe that the marihuana offered
would be found in appellant’s vehicle. The probable cause
justified the search of every part of the vehicle that might
10
conceal the marihuana. United States v. Ross, 456 U.S. at 825, 102
S.Ct. at 2173. It is, of course, not uncommon for the search to
reveal marihuana secreted in the trunk of the vehicle. See, e.g.,
United States v. Ogden, 572 F.2d 501, 502 (5th Cir.), cert. denied,
439 U.S. 979, 99 S. Ct. 564, 58 L. Ed. 2d 650 (1978).
Levine v. State, 794 S.W.2d 451, 453-54 (Tex. App.—Amarillo 1990, pet.
ref’d); see also Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—Houston [1st
Dist.] 2015, pet ref’d) (“When Officer Cruz smelled an odor of marijuana,
he had probable cause to search the car and its occupants.”).
3. The trial court ignored controlling Texas law by concluding that
the “strong odor” of marihuana failed to provide probable cause to
search the trunk of Lindsey’s vehicle.
The trial court explicitly found, as Officer Ortiz testified, that “Ortiz
could smell a strong odor of marijuana emitting from the vehicles [one of
which was Lindsey’s].” CR 71 (#5); RR 11, 14-16, 23-26, 41, 43-44, 49-50.
Under this finding of fact and the myriad of controlling authorities cited
immediately above, Officer Ortiz had probable cause to search Lindsey’s
vehicle for marihuana and every part of the vehicle where marihuana
might be found, including the trunk. The trial court’s contrary conclusion
11
conflicts with opinions of this Court and its sister courts of appeals, the
Texas Court of Criminal Appeals, and the United States Supreme Court.
PRAYER
For these reasons, the State requests that the Court reverse the trial
court’s order that granted, in part, Defendant’s motion to suppress, remand
for further proceedings, and grant the State all other proper relief.
Respectfully Submitted,
/s/ A. Cliff Gordon
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to
prepare this document, it contains 3,335 words.
12
CERTIFICATE OF SERVICE
On September 16, 2015, a true copy of the foregoing was served via
eServe on the following:
Ms. Celina Lopez Leon
Law Office of Scott Ellison, PLLC
410 Peoples St.
Corpus Christi, TX 78401-2318
361.887.7600 phone
361.882.4728 fax
celinamarielopez@gmail.com
Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________
A. Cliff Gordon
13