No. 4-05-00019-CR
Delivered and Filed: August 23, 2006. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-7975, Honorable Sid Harle, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: KAREN ANGELINI, Justice.
Reginald Collins was convicted of aggravated robbery with a deadly weapon and sentenced to ten years imprisonment. On appeal, he argues that the trial court erred in denying his motion to suppress evidence found during a search of his pockets in violation of the Fourth Amendment to the United States Constitution. We affirm the judgment of the trial court.
Background
About half past midnight on June 4, 2003, Officer Brian Onofre observed the vehicle driven by Reginald Collins swerve from the northbound to southbound lanes of traffic and almost collide with another vehicle traveling in the opposite direction. Onofre decided to stop Collins for a traffic violation: the failure to travel in a single marked lane. However, because there were many passengers riding in the vehicle, Onofre radioed for backup. Officer Morris arrived simultaneous to Onofre's stop of Collins's vehicle. Onofre walked up to the driver's side of the vehicle, explained the reason for the stop, and requested Collins's drivers license and insurance. Upon approaching the vehicle, Onofre "detected a strong odor of burnt marijuana." Onofre noticed that a number of the occupants had red, glassy eyes which, according to the officer, indicates intoxication from smoking marijuana. Onofre asked the occupants if they had any marijuana in the car. Collins and the other passengers responded that they did not have any marijuana with them. Onofre then asked Collins to exit the vehicle. Onofre conducted a "pat-down" search of Collins's outer clothing in order to inspect for weapons and ensure the safety of those present. Everyone exited the vehicle, and the officers frisked each passenger. While Collins and the passengers were sitting in the parking lot, the officers searched the vehicle, and Onofre found a gun "underneath the driver's dashboard." Onofre left the gun inside the vehicle, told Collins to stand up, handcuffed him, and placed him in the patrol car. According to Onofre's testimony, he placed Collins in custody because Collins was the driver of the car and was therefore legally in "care, custody and control of the vehicle and anything that's inside the vehicle." The other occupants were also handcuffed and remained seated in the parking lot. Then, Onofre secured the weapon and continued to search the vehicle for other contraband based on his earlier detection of the marijuana odor. When Onofre did not find any other contraband in the vehicle, he returned to the patrol car and read Collins his Miranda rights. One of the passengers, McLeod, explained to the officers that he, not Collins, was the owner of the vehicle and claimed responsibility for the weapon. Onofre told Collins that McLeod had accepted responsibility for the gun and that Collins would be released pending further investigation. After Collins exited the patrol car but before the handcuffs were removed, Onofre again searched Collins. Onofre testified that he searched Collins because he still had probable cause to do so: "[Collins] had a strong odor of marijuana emanating from his person and the vehicle. His eyes were red and glassy. It would lead a reasonable person to believe that he might have or is currently in possession of marijuana." Onofre found several cards inside Collins's pockets: a Security Service Federal Credit Union MasterCard/debit card, a James Madison High School identification card, a Just for Feet card, and a FootAction card. All these cards were issued to "Andres Garcia," not to Reginald Collins. Onofre "found it highly suspicious that [Collins] was in possession of such documents" and arrested Collins again. At trial, Andres Garcia testified that around 10:30 p.m. on June 3, 2003, he drove to a gas station near Madison High School. While he was fueling his car, he turned around and saw a gun pointed at him. He recognized Reginald Collins, someone with whom he had played basketball, as the person pointing the gun at him. According to Garcia, Collins had not covered his face or head. Garcia gave Collins his wallet, containing about $180 in cash, his debit card, his identifications cards, and his discount cards for Just for Feet "and places like that." He also gave Collins his cell phone. Collins then told Garcia to drive away. Collins also testified at trial. According to Collins, he and Garcia had arranged a meeting so that he could buy an ounce and a half of marijuana from Garcia. He got into Garcia's car, and Garcia placed the marijuana into his hands. However, instead of paying Garcia, Collins told Garcia that he had to get the money from his car. Collins then took the marijuana and, without Garcia's noticing, took Garcia's cards lying on the dashboard. Collins got into his car and drove off. However, although Collins admitted to having stolen the marijuana and the cards, he denied that he had a gun or that he pointed a gun at Garcia. He was then found guilty by the jury of aggravated robbery with a deadly weapon. Collins brings the following two issues on appeal: 1. The trial court erred in admitting in evidence cards found in Collins's pocket because the officer's search of Collins violated the Fourth Amendment; and
2. The trial court erred in admitting in evidence cards found in Collins's pocket because "they were seized without probable cause to associate them with criminal activity, in violation of the Fourth Amendment."
Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Id. When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Id. Search Incident to Arrest
In order to arrest an individual, an officer must have probable cause. State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App. 1999). Probable cause for an arrest exists where, at that moment, facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonably prudent person in believing that a particular person has committed or is committing a crime. Id. An officer's subjective reasons for the detention or arrest are not considered. Garcia v. State, 827 S.W.2d 937, 942 (Tex.Crim.App. 1992); see Walter v. State, 28 S.W.3d 538, 543 (Tex.Crim.App. 2000) (explaining that although appellant would like the court of criminal appeals to consider the officer's subjective reasoning, "in particular, his reasons for being at the scene and looking into the vehicle," the Supreme Court has held that a court must allow "subjective intentions [to] play no role in . . . [our] analysis") (citations omitted) (alteration in original). Here, Onofre had probable cause to arrest Collins because he witnessed Collins commit a traffic violation. Article 14.01(b) of the Texas Code of Criminal Procedure allows a peace officer to arrest "an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). And, section 543.001 of the Texas Transportation Code allows any peace officer to arrest without a warrant a person found committing a traffic violation. Tex. Transp. Code Ann. § 543.001 (Vernon 1999). And, an arrest for a minor traffic violation is not an unreasonable seizure under the Fourth Amendment. Atwater v. City of Lago Vista, 532 U.S. 318, 340, 354 (2001); State v. Gray, 158 S.W.3d 465, 469 (Tex.Crim.App. 2005). Under the Texas Transportation Code, "[a]n operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely." Tex. Trans. Code Ann. § 545.060(a) (Vernon 1999). Here, Onofre witnessed Collins swerve in and out of the lanes of traffic and almost hit an oncoming vehicle. Thus, Onofre stopping, detaining, and arresting Collins for this traffic violation was not in violation of the Fourth Amendment. We must now consider whether Onofre's search of Collins's pockets incident to his arrest was permissible under the Fourth Amendment. Although searches without a warrant are typically unreasonable under the Fourth Amendment, an exception to this rule is when a search is performed incident to an arrest. United States v. Edwards, 415 U.S. 800, 808-09 (1974); McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). A search incident to arrest permits officers to search a defendant, or areas within the defendant's immediate control, to prevent the concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 762-63 (1969); McGee, 105 S.W.3d at 615. Likewise, the Supreme Court has held that the officer may conduct "a full search of the person" pursuant to a search incident to arrest. United States v. Robinson, 414 U.S. 218, 236 (1973); see McGee, 105 S.W.3d at 616-18 (holding that under facts of case, officer retrieving crack cocaine between the defendant's buttocks during a visual body cavity inspection was a reasonable search incident to arrest). Because Onofre witnessed Collins commit a traffic violation, he was authorized to arrest him and conduct a search incident to the arrest. That is, Onofre was authorized to fully search Collins's person as well as the area within his immediate control. See Chimel, 395 U.S. at 762-63. Collins, however, argues that the search of his person occurred after he was placed under arrest for unlawfully possessing a weapon and that Onofre had decided to release him because one of the other passengers claimed ownership of the gun. Pursuant to article 15.22 of the Texas Code of Criminal Procedure, a person is arrested when he has been "actually placed under restraint or taken into custody." Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). The Texas Court of Criminal Appeals has held that an arrest occurs when a person's liberty of movement is restricted or restrained. Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App. 1991). Here, Collins was still physically restrained by the handcuffs and thus under arrest when Officer Onofre searched his pockets. Moreover, a police officer's subjective motive does not invalidate objectively justifiable behavior under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 812 (1996) ("Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary."). Because Onofre's search appears objectively reasonable, his decision to release Collins based on the weapon violation does not invalidate his actions. Accordingly, we hold that the search of Collins's pockets was reasonable under the Fourth Amendment. Association of Evidence with Criminal Activity
In his second point of error, Collins contends that no probable cause existed to associate the cards with criminal activity. Collins, however, has failed to preserve this complaint for appellate review. He did not raise this objection in his motion to suppress or during the suppression hearing. Nor did he object on these grounds when the State moved to admit the cards in evidence at trial. Therefore, Collins has failed to preserve any error. See Tex.R.App.P. 33.1(a) (requiring as prerequisite for appellate review, that the complaining party "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context"). Harmless Error
Additionally, even if the cards had been improperly admitted at trial, any error would be harmless. At trial, Andres Garcia positively identified Collins as the man who pointed a gun at him and demanded his wallet, money, and phone. And, Garcia explained that before the robbery, he knew Collins, having previously played a few basketball games with him. Further, during his own testimony, Collins confirmed that he and Garcia had played basketball together. He also admitted that he had taken the cards from Garcia. Indeed, he did not dispute that he stole the cards from Garcia; instead, he disputed that he used a gun while doing so. Therefore, this case turned on whether the jury believed that Collins had used a gun; it was undisputed that Collins had stolen the cards. As such, any error in admitting the cards was harmless. See Tex.R.App.P. 44.2(a). Conclusion
Because the trial court did not err in denying Collins's motion to suppress, we affirm the judgment of the trial court.