Benjamin v. State

Full title: KENDRICK BENJAMIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Mar 31, 2011

No. 01-10-00066-CR (Tex. App. Mar. 31, 2011)

Opinion

No. 01-10-00066-CR

Opinion issued March 31, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 182nd District Court Harris County, Texas, Trial Court Case No. 1202897.

Panel consists of Justices JENNINGS, HIGLEY, and BROWN.

MEMORANDUM OPINION

LAURA CARTER HIGLEY, Justice.

After the trial court denied his motion to suppress evidence, appellant, Kendrick Benjamin, pleaded guilty to the offense of possession with intent to deliver a controlled substance, namely, cocaine weighing more than 4 grams and less than 200 grams.¹ Pursuant to the State's punishment recommendation, the trial court sentenced appellant to 25 years in prison. In three issues, appellant challenges the trial court's denial of his motion to suppress evidence. We affirm.

1 See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(d) (Vernon Supp. 2010).

Background

Officer J. Aguirre, a narcotics officer with the Houston Police Department, received information that a black man was trafficking crack and powder cocaine. The officer learned that the man lived at a motel, the Red Carpet Inn, and was using a cream-colored PT Cruiser to deliver the narcotics. Officer Aguirre went to the motel and noticed the cream-colored PT Cruiser in the motel parking lot. Later that day, Officer Aguirre observed the driver of the PT Cruiser turn into the parking lot of the Houston Inn and Suites without signaling his intent to turn, which is a traffic violation. Officer Aguirre then notified marked patrol units of the traffic violation and the location of the vehicle. Houston Police Officers J. Morin, A. Gonzales, and Leija, uniformed patrol officers, responded to the call and initiated the traffic stop. Officer Morin approached the passenger side of the vehicle and Officer Gonzales approached the driver's side. As he approached, Officer Morin observed the driver, later identified as appellant, shove something into the right pocket of his shorts. Because he was concerned for officer safety, Officer Morin informed Officer Gonzales that he had seen appellant shove something into his pocket. Officer Gonzales removed appellant from the car. For officer safety, Officer Gonzales conducted a pat-down of appellant. The officer felt a bulge in appellant's right front pocket. The officer asked appellant what was in his pocket. Appellant responded, "You got me officer; it's crack." Officer Gonzales removed a plastic bag from appellant's pocket. The bag contained what appeared to the officers to be crack cocaine. Two passengers were also in the car with appellant. They were his wife, Kimberly Sue Mays, and his three-year-old son. Officer Aguirre spoke to Mays and learned that she and appellant were staying in room number 171 of the Red Carpet Inn. Mays said that the room was registered in her name. Mays gave Officer Aguirre her written consent to search the room. When Officer Aguirre informed appellant that Mays had consented to the search, appellant told the officer that there was more cocaine in the room. Appellant told Officer Aguirre where to look in the room to find the narcotics. Appellant also stated that the cocaine in the room was his and that Mays had no involvement with the drugs. Mays accompanied Officer Aguirre to the motel room and provided the officer with the room key. Officer Aguirre entered the room and recovered a perfume bottle from the pocket of a fleece jacket hanging in the closet. The perfume bottle contained two plastic bags. One bag contained crack cocaine, and the other contained powder cocaine. Officer Aguirre conducted field tests on the substances recovered from appellant's pocket and from the motel room. It was determined that the substance recovered from appellant's pocket was 8.3 grams of crack cocaine. The substances recovered from the motel room were 10.8 grams of crack cocaine and 24 grams of powder cocaine. Appellant was indicted for the offense of possession with intent to deliver a controlled substance, namely, cocaine weighing more than 4 grams and less than 200 grams. See TEX. HEALTH SAFETY CODE ANN. §§ 481.102(3)(D), 481.112(d) (Vernon Supp. 2010). Appellant filed a written motion to suppress the cocaine recovered from his pocket and from his motel room. In his opening brief, appellant summarizes the basis of his motion to suppress as follows:

[Appellant] argued there was not probable cause to stop the appellant's motor vehicle and search his person. [Appellant] also argued that the subsequent discovery of cocaine in his motel room was unlawful because evidence was found as a result of custodial statements made by appellant and his wife without the benefit of their Miranda warnings.

The trial court held a hearing on the motion to suppress. The trial court did not hear oral testimony; rather the trial court determined the motion to suppress based on opposing affidavits and the argument of counsel. See TEX. CRIM. PROC. CODE ANN. art. 28.01, § 1(6) (Vernon 2006) (providing that, "[w]hen a hearing on the motion to suppress evidence is granted, the court may determine the merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court"). In support of his motion, appellant offered his affidavit and the affidavit of his wife, Kimberly Sue Mays. The State submitted the affidavits of Officers Aguirre, Morin, and Gonzales. At the hearing, appellant asserted that the police officers stopped appellant based on an anonymous tip. He argued that such tip was inadequate to supply the reasonable suspicion required to initiate the stop. Appellant also asserted that the officers should have advised appellant of his legal rights before questioning him because the questioning constituted custodial interrogation. The trial court denied appellant's motion to suppress. In support of the ruling, the trial court made the following oral findings:

[I]t's pretty clear from the affidavits that there was an ongoing — they were watching Mr. Benjamin from a tip; but I also believe that the affidavits indicate that there was a traffic stop, which I think allows them to legally stop him and, in fact, arrest him for that traffic violation. And, so, whether or not there was an interrogation or not at that point in time, I'm not making any findings with regard to that because I think they could arrest him and search him incident to the arrest and find the contraband that was in his pocket at that time.

So, in addition to that, I think that the consent to search given by the wife appears to be lawful and the room was in her name. So, I'm going to admit that and deny the Motion to Suppress with regard to that, too.

After the trial court denied the motion to suppress, appellant pleaded guilty to the offense of possession with intent to deliver a controlled substance, namely, cocaine weighing more than 4 grams and less than 200 grams. As recommended by the State, the trial court sentence appellant to 25 years in prison. In three issues, appellant challenges the trial court's denial of his motion to suppress.

A. Standard and Scope of Review

We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We reverse the trial court's ruling only if it is outside the zone of reasonable disagreement. See id. In conducting our analysis, we must view all of the evidence in the light most favorable to the trial court's ruling. See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. See id. When, as here, the trial court determines the motion to suppress based solely on competing affidavits, we defer to the trial court's determination of historical facts. See Manzi v. State, 88 S.W.3d 240, 243-44 (Tex. Crim. App. 2002). We, however, review de novo the court's application of the law to the facts. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case, regardless of whether the trial court gave the wrong reason for its ruling. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

B. Stop and Temporary Detention for Traffic Violation

In his first two points of error, appellant specifically focuses on the trial court's decision not to suppress the eight grams of cocaine recovered from appellant's pocket following the traffic stop. Appellant asserts in his first issue, "[T]he trial court abused its discretion in denying his motion to suppress 8 grams of cocaine found on his person for the reason the anonymous tip received by Officer Aguirre did not provide sufficient probable cause for the appellant's detention." To make an investigatory stop of a vehicle, an officer must have reasonable suspicion; that is, specific, articulable facts that, when combined with rational inferences from those facts and the officer's training, would lead an officer to believe that a person in the vehicle was engaging in, or is about to engage in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005); see also Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80 (1968). Temporary detention is lawful if based on reasonable suspicion that an individual is violating the law. Ford, 158 S.W.3d at 492. The reasonable suspicion determination disregards the subjective intent of the officer making the stop and instead looks solely to whether there was an objective basis for the stop. Id. When a police officer makes a stop without a warrant or consent, the State has the burden at a suppression hearing of proving the reasonableness of the stop. Id. Appellant contends that the State did not meet its burden to show the reasonableness of the initial stop of appellant's car. Appellant does not dispute that when a traffic violation is committed within a police officer's view, the officer may lawfully stop and detain the person for the traffic violation. See Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); see also TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 2005) (providing that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view"). Indeed, under such circumstances, no additional probable cause or reasonable suspicion is required. See Walter, 28 S.W.3d at 542. Appellant also does not dispute that a driver's failure to signal a turn is a traffic violation. See TEX. TRANSP. CODE ANN. § 545.104 (Vernon 1999). Instead, appellant asserts that the stop was not reasonable because it was based on "information received from an unknown source whose prior use and reliability was never established." Appellant points to Officer Aguirre's affidavit testimony in which the officer stated that he "received information that a black male suspect was living in the Red Carpet Inn and was involved in the trafficking of crack and powder cocaine." Officer Aguirre further stated that he was "advised that this black male suspect was using a cream colored PT Cruiser to make his deliveries." On appeal, appellant asserts that "[w]hile an anonymous tip may justify an investigation, it will rarely alone establish the level of suspicion required to justify a detention." Appellant contends that Officer Aguirre's affidavit testimony lacks sufficient detail about the informant and about the source of the informant's knowledge to show "the tip [was] reliable and detention warranted." We agree with the State that appellant's argument misses the mark. As found by the trial court, although Officer Aguirre was at the scene conducting a narcotics investigation based on a tip, the tip was not the reason for the stop. The State showed through affidavit testimony that the stop was based on Officer Aguirre's independent observation of appellant committing a traffic offense. In his affidavit, Officer Aguirre testified, "I observed the same cream colored PT Cruiser turn into the Houston Inn and Suites parking lot without signaling his intent to turn. I then advised marked units, Officer Morin, Officer Gonzales, and Officer Leija, of the traffic violation, car description and location." Officers Gonzales and Morin also each testified in his respective affidavit, "I was informed by Officer Aguirre that a cream colored PT Cruiser had turned into the Houston Inn and Suites without signaling their intent to turn." Based on the information received from Officer Aguirre, Officers Morin and Gonzales initiated the traffic stop. In sum, the record shows that the officers stopped appellant's car based on Officer Aguirre's observation of appellant committing a traffic violation, namely, making a turn without signaling his intent to turn. This observation was independent of the information received by Officer Aguirre regarding appellant's alleged involvement with narcotics. We conclude that the record does not support appellant's argument that the stop of appellant's car was not reasonable because it was based on an anonymous tip. For this reason, we further conclude that the trial court did not abuse its discretion when it denied appellant's motion to suppress the cocaine recovered from his person. We overrule appellant's first point of error.

C. Amount of Detail Required to Support Reasonableness of Stop

In his second point of error, appellant contends, "[T]he trial court abused its discretion in denying his motion to suppress the 8 grams of cocaine found on his person for the reason there was not probable cause to stop [his] motor vehicle for a traffic offense." Appellant contends that the State did not demonstrate that Officer Aguirre had a reasonable suspicion to believe that appellant was committing the traffic violation of failing to signal his turn. Appellant asserts that Officer Aguirre's affidavit testimony was conclusory and failed to articulate specific, detailed information regarding his observations. Appellant points out that Officer Aguirre's testimony did not show (1) whether appellant was turning right or turning left, (2) where the Houston Inn and Suites' parking lot is located in relation to the Red Carpet Inn, (3) where Officer Aguirre was located when he saw the traffic violation, (4) what the traffic conditions were, and (5) what Officer Aguirre did while waiting for Officers Morin and Gonzales to arrive. In Castro v. State, the Court of Criminal Appeals explained that the amount of specific and subjective detail that an officer must give to demonstrate that a detention is reasonable depends on the nature of the offense. See 227 S.W.3d 737, 742 (Tex. Crim. App. 2007). When the determination of whether an offense has been committed requires an officer to make a subjective determination, then the officer must provide a detailed account of his observations to support that determination. See id. The Castro court discussed in detail its earlier decision in Ford v. State. Id. at 742-43. In Ford, the police officer testified, without elaborating, that he stopped the defendant's vehicle because the defendant was following another vehicle too closely. 158 S.W.3d 488, 491 (Tex. Crim. App. 2005). The Ford court held that the officer's conclusory testimony was not sufficient to support a finding of reasonable suspicion because the offense of following another vehicle too closely requires an officer to make a subjective determination based on a number of statutory factors. See id. at 493-94; see also TEX. TRANSP. CODE ANN. § 545.062(a) (Vernon 1999). In contrast, the offense involved in Castro was one requiring the officer to make an objective determination. See 227 S.W.3d at 742. There, the officer testified that the defendant's vehicle was stopped because the defendant failed to signal a lane change, which is a traffic offense. Id. at 739-40. In distinguishing Ford, the Castro court explained that "in cases involving offenses such as failure to signal a lane change, a court can determine whether an officer's determination that a driver committed a traffic violation was objectively reasonable without being presented with a detailed account of the officer's observations." Id. at 742. In short, it explained that "[t]he determination of whether a driver signaled a lane change is a simple one." Id. The court further explained,

The only two possibilities in this case are: either the trial judge believed Deputy Bailey's testimony that another officer observed the driver change lanes without signaling, or the trial judge did not believe that the driver was observed changing lanes without signaling. Based on the denial of the motion to suppress the evidence, it is clear that the judge believed the testimony that was presented. The trial judge was in the best position to observe the credibility and demeanor of the witness, and it was not unreasonable for the trial judge to credit Deputy Bailey's testimony and conclude that the driver was stopped for a traffic violation.

Id. at 742-43. With respect to our discussion, the traffic offense of failure to signal a turn is more similar to the offense of failure to signal a lane change discussed in Castro than the offense of following too closely discussed in Ford. ² As in Castro, the determination of whether a driver committed the traffic violation involved here is a simple one. A trial court can decide whether an officer's determination that a driver committed a traffic violation by failing to signal a turn was objectively reasonable without being presented with a detailed account of the officer's observations. See id. at 742. The nature of failure to signal a turn does not require an officer to make a subjective determination. See id. The trial court's denial of the motion to suppress indicates that it chose to believe Officer's Aguirre's testimony that he observed appellant commit a traffic violation by failing to signal his intent to turn. See id. at 743. The trial court was entitled to credit the officer's affidavit testimony. See id. Such testimony supports a determination that the stop was reasonable. We conclude that the trial court did not abuse its discretion in denying appellant's request to suppress the cocaine recovered in the motel room on the ground that Officer Aguirre's testimony was not sufficiently detailed and specific to show that the traffic stop was objectively reasonable. We overrule appellant's second point of error.

D. Tangible Evidence Obtained as a Result of Alleged Miranda Violation

In his third point of error, appellant contends, "The trial court abused its discretion in denying [appellant's] motion to suppress the cocaine that was later found in his motel room for reason [sic] that this evidence was discovered as a result of custodial statements made by the appellant without the benefit of his Miranda warnings."³ Appellant points out that it is not disputed that neither he nor his wife had been informed of his or her Miranda rights before the officers obtained information from appellant or his wife "through subsequent unwarned questions." Although he argues on appeal that the cocaine found in the motel room should have been suppressed because his wife was not informed of her Miranda rights, appellant did not make this argument in the trial court. Thus, appellant has waived this argument for appeal. See TEX R. APP. PROC. 33(1)(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). As a result, we consider only the effect of appellant not being informed of his Miranda rights. A defendant's statements made during a "custodial interrogation" must be suppressed if the defendant was not informed of his Miranda rights prior to making the statements. See Williams v. State, 270 S.W.3d 112, 136 (Tex. Crim. App. 2008); see also TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005). A custodial interrogation occurs when a defendant is in custody and is exposed to words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Roquemore v. State, 60 S.W.3d 862, 868 (Tex. Crim. App. 2001). In contrast, physical evidence discovered as a result of a statement made in violation of Miranda, or "fruit of the poisonous tree," see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963), need only be suppressed if the statement was made through actual police coercion. See Baker v. State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997) (citing Michigan v. Tucker, 417 U.S. 433, 452, 94 S. Ct. 2357, 2368 (1974); Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 1296 (1985)). Thus, even assuming that appellant's statements resulted from custodial interrogation, the cocaine found in the motel room would need to be suppressed only if appellant's statements were obtained through police coercion.⁴ See id. Appellant and his wife each stated in his and her affidavit that when the traffic stop was initiated, the officers approached appellant's car with their guns drawn. They also each testified that appellant was initially thrown to the ground and handcuffed. However, the record also shows that Officer Morin saw appellant shoving something in his shorts pocket as the officers approached the vehicle. Officer Morin's testimony indicates that, because of what he observed, the officers were concerned for their safety. In addition, neither appellant nor his wife testified that the officers still had their guns drawn at the time appellant gave his statement regarding the location of the cocaine in the motel room. Appellant stated in his affidavit that one of the officers told him "to tell them where the drugs were in the room, so that they would not have to tear the room up." Appellant also stated, "I feared for the safety of my wife and child. As a result of this fear for my family, and not believing I had a choice, I felt compelled to give the officers additional information. I then told the officers where the drugs were in the room. I learned later that my wife signed a consent to search." Appellant does not, however, detail any objective facts that would support his alleged subjective belief that his family's safety was in jeopardy at the point he gave the statement to Officer Aguirre regarding the location of the cocaine in the motel room. Furthermore, appellant's statement in his affidavit is contradicted by Officer Aguirre's testimony in his affidavit. Specifically, Officer Aguirre testified that appellant told him where to find the narcotics in the motel room after the he told appellant that appellant's wife had given her consent to search the room. Appellant also told Officer Aguirre that the narcotics belonged to him and that his wife "had nothing to do with it." In other words, Officer Aguirre's testimony supports an inference that appellant provided the information regarding the cocaine in an effort to protect his wife, not as a result of coercion. Given the record, the trial court could have reasonably concluded that appellant's statement did not result from police coercion. The United States Supreme Court and the Texas Court of Criminal Appeals have held that the fruit of the poisonous tree doctrine does not apply to mere violations of the prophylactic requirements in Miranda. See Baker, 956 S.W.2d at 22; see also Tucker, 417 U.S. at 452; 94 S. Ct. at 2368; Elstad, 470 U.S. at 314, 105 S. Ct. at 1296. While a statement taken in violation of Miranda must be suppressed, other evidence subsequently obtained as a result of the statement, i.e. the "fruits" of the statement, need not be suppressed. See Baker, 956 S.W.2d at 22; see also Tucker, 417 U.S. at 452; 94 S. Ct. at 2368; Elstad, 470 U.S. at 314, 105 S. Ct. at 1296. Accordingly, we conclude that the trial court did not abuse its discretion in denying appellant's request to suppress the cocaine recovered in the motel room on the ground that appellant was not informed of his Miranda rights. We overrule appellant's third point of error.

Conclusion

We affirm the judgment of the trial court.