Griffin v. State

Full title: ADAM TROY GRIFFIN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Apr 13, 2005

No. 10-04-00069-CR (Tex. App. Apr. 13, 2005)

Opinion

No. 10-04-00069-CR

Opinion delivered and filed April 13, 2005. DO NOT PUBLISH.

Appeal from the 82nd District Court, Falls County, Texas, Trial Court # 7910.

Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

Adam Griffin was charged by indictment with possession of a controlled substance (cocaine) with intent to deliver (over 4 grams but under 200 grams). Griffin moved to suppress evidence of the search of his person. After a hearing, the trial court denied Griffin's motion to suppress. Griffin then pled guilty, and punishment of 35 years' imprisonment was assessed. The trial court gave Griffin permission to appeal the suppression ruling. In one issue, Griffin asserts that the trial court erred in failing to grant his motion to suppress. We will overrule the issue and affirm the trial court's judgment.

EVIDENCE

The following evidence was adduced at the suppression hearing from the testimony of Marlin Police Officer Wesley Kingsley, Falls County District Attorney Investigator Rick Eskelin, and Marlin Police Chief Jerry Blakemore:

On the evening of November 3, 2003, Eskelin, who sometimes assists Marlin police narcotics investigations, and Marlin Police Sergeant Kay initially met with a confidential informant about another suspect, but the informant also told them that Griffin was at the corner of Rose and Island streets in Marlin in possession of and selling crack cocaine. Rose and Island streets are located in an area referred to as Wood Street and is known for a high volume in drug trafficking. Eskelin had used this confidential informant on seven prior occasions, each of which resulted in credible and reliable information being provided. The confidential informant left to get additional information and later called Kingsley; then they all met again.

Kingsley, a narcotics investigator, testified that he received a phone call from the confidential informant, who told him that Griffin was standing on the corner of Rose and Island streets in Marlin and was actively selling crack cocaine and that Griffin kept the crack cocaine in two plastic vials. On numerous previous occasions, Kingsley had used the confidential informant, who had provided true and correct information that had led to arrests and who Kingsley believed to be credible. Kingsley and Eskelin were also aware that, the day before, Marlin Police Chief Jerry Blakemore had arrested Griffin with possession of two plastic vials containing cocaine residue and a large amount of cash in the range of $1,200 to $1,300. After receiving the information from the confidential informant, Kingsley, Eskelin, and Marlin Police Lieutenant Tom Hamilton immediately drove to the Rose and Island streets area, parked their vehicles, and approached Griffin, who was exactly where the confidential informant said he was — on the corner of Rose and Island streets — sitting on a bench with several other people around. To Eskelin and Kingsley, Griffin's presence corroborated the confidential information. Because it was dark and because of the location, Eskelin said that it would have been very difficult and time-consuming to conceal themselves and watch Griffin in an attempt to personally observe criminal activity. Eskelin said that in Wood Street, the drug dealers employ lookouts who, when they see police coming, notify the dealers. Also, Eskelin did not know how long Griffin would be there, as drug dealers can sell out of their drugs and leave the scene. As the officers approached him, Griffin looked at them and then looked away from them until they got to him, which meant to Eskelin that Griffin was nervous. Griffin did not appear to Kingsley or Eskelin to be engaging in any illegal activity, but Griffin was suspicious because of his arrest the day before, the confidential information, and Griffin's presence in an area known for drug dealing. At that time, based solely on the confidential information and the corroboration of Griffin's presence, Kingsley and Eskelin did not think that they had probable cause to arrest Griffin, but they testified that as police officers, they had a duty to follow up on the reliable information they had received about Griffin committing the felony offense of dealing narcotics. Eskelin said that, based on his reasonable suspicion, his intent was to perform an investigative detention of Griffin, not to make an arrest. Eskelin and Hamilton took a different approach to Griffin than did Kingsley to block an escape route in case Griffin tried to run. It was Eskelin's experience in making drug arrests in Wood Street that persons commonly attempt to flee. As he walked up to Griffin, Eskelin asked Griffin to stand up and place his hands on the wall. Griffin asked why, and Eskelin said that Griffin had been observed engaging in activity believed to be the sale of drugs. Griffin complied but was very tense. Kingsley said that Griffin was not under arrest at that time and that the officers were only investigating the confidential information. Eskelin then began a pat-down of Griffin for "officer safety" during the investigative detention. Eskelin had known Griffin for several years and did not know him to carry a weapon, nor did he have information that Griffin was armed or dangerous, but he said that he commonly performs such pat-downs for officer safety when making narcotics arrests because, in drug-dealing areas, there is a possibility that the suspect may be carrying a weapon or may try to flee, which would result in a struggle. As Eskelin began a pat-down on Griffin's left side, Griffin took his left hand off the wall and tried to turn around, but Eskelin placed it back on the wall, and Hamilton took Griffin's right hand and held it behind Griffin's back. Eskelin continued his pat-down and felt two long cylindrical objects in Griffin's left front pocket, which Eskelin believed were containers of illegal narcotics, rather than a weapon. Eskelin then told Hamilton to handcuff Griffin, which he did. According to Eskelin, at that time, Griffin was in custody and was not free to leave. Eskelin retrieved from Griffin's pocket the two plastic tubes containing about twenty rocks of crack cocaine and a small bag of powdered cocaine and about $900 in cash. On the same evening, Blakemore had been patrolling the south side of Marlin, which included Wood Street, in his unmarked car, had parked his vehicle to talk to Officer Garza, a patrolman in a marked car, for about ten minutes, and while talking to Garza, observed a person standing on the corner of Rose and Island streets who he later learned was Griffin. Although Blakemore had arrested Griffin the day before, he did not recognize him because it was dark, nor did he see or know of any illegal or suspicious activity occurring, including alleged drug dealing by Griffin. Blakemore said that it was not common for drug dealers to deal while a marked police car was there because the dealing would stop when police approached. Blakemore was not in contact with the officers involved with Griffin that evening.

APPLICABLE LAW

Griffin argues that the contraband found on his person was the product of an illegal frisk (search) and thus was "fruit of the poisonous tree."

Burden of Proof

To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, ___ S.W.3d. ___, 2005 WL 544796 at *2 (Tex.Crim.App. Mar. 9, 2005). A defendant satisfies this burden by establishing that a search or seizure occurs without a warrant. Id. Once the defendant makes this showing, the burden shifts to the State, which must establish that the search or seizure was conducted with a warrant or was reasonable. Id.

Standard of Review

We have previously articulated the standard of review of a trial court's denial of a motion to suppress:

A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). There is an abuse of discretion "when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g).

The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex.Crim.App. 1997). However, the application of the relevant law to the facts, including Fourth Amendment search and seizure law, is reviewed de novo. Carmouche, 10 S.W.3d at 327. Also, when the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106. Thus, for example, when the issue to be determined on appeal is whether an officer had probable cause, "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Guzman, 955 S.W.2d at 87. Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause should be reviewed de novo on appeal. Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, a judicial ruling will not be reversed on appeal, even if made for the wrong reason, if the ruling is supported by the record and correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990); Calloway v. State, 743 S.W.2d 645, 652 (Tex.Crim.App. 1988). Similarly, when officers give the wrong reason for why their actions were legal under the Fourth Amendment, the case will not be reversed if the facts support a correct reason. Williams v. State, 726 S.W.2d 99, 100-01 (Tex.Crim.App. 1986); Esco v. State, 668 S.W.2d 358, 366 (Tex.Crim.App. 1982). Davis v. State, 74 S.W.3d 90, 94-95 (Tex.App.-Waco 2002, no pet.).

Reasonable Suspicion and Investigatory Detention

A law enforcement officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law.¹ Ford, at ___, 2005 WL 544796 at *3 (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002)). "Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity."² Id. (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001)). The information provoking the officer's suspicions need not be based on the officer's personal observations, but may be based on an informant's tip that bears sufficient "indicia of reliability" to justify a detention.³ Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). The standard applies to both pedestrians and vehicle occupants. Id. This standard is objective and disregards any subjective intent of the officer making the detention and looks solely to whether an objective basis for the detention exists. Ford, at ___, 2005 WL 544796 at *3. The court makes the reasonable-suspicion determination by considering the totality of the circumstances. Id. A law enforcement officer may conduct a limited search of a suspect's outer clothing for weapons, even in the absence of probable cause, when the officer reasonably believes that the suspect is armed and dangerous. Carmouche, 10 S.W.3d at 329 (citing Terry v. Ohio, 329 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Davis v. State, 829 S.W.2d 218, 220 (Tex.Crim.App. 1992)). The purpose of this limited search is to allow the officer to pursue investigation without fear of violence, not to discover evidence. Id. The officer need not be absolutely certain that an individual is armed; the issue is whether a reasonably prudent person would justifiably believe that he or others were in danger. O'Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000). A frisk is justified when the officer can point to specific and articulable facts that reasonably lead him to conclude that the suspect might possess a weapon. Carmouche, 10 S.W.3d at 329. If a protective frisk goes beyond what is necessary to determine if the suspect is armed, the frisk is no longer valid under Terry and its fruits will be suppressed. Carmouche, 10 S.W.3d at 330 (quoting Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993)). But under what is called the "plain-feel" exception to the Fourth Amendment's warrant requirement, "[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy, beyond that already authorized by the officer's search for weapons." Id. at 330-31 (quoting Dickerson, 508 U.S. at 375, 113 S.Ct. at 2137).

ANALYSIS

Griffin argues that the site at which he was allegedly selling drugs had been under surveillance by Blakemore, who testified that he saw no illegal activity occurring and thus, Griffin asserts, discredits the confidential informant. But the evidence does not support Griffin's assertion. Blakemore testified that he was in view of the corner where Griffin was for about ten minutes, during which Blakemore was not conducting surveillance, but was talking to another officer. Also, Blakemore said that drug dealing usually stops when police are around. The totality of the circumstances — the officers' knowledge of Griffin's arrest the day before, the tip from a reliable confidential informant, and Griffin's corroborating presence in an area known for drug dealing — leads us to find that the trial court did not abuse its discretion in implicitly finding that the officers had reasonable suspicion to detain Griffin, and we hold that the detention was constitutionally justified. See id.; Johnston v. State, 99 S.W.3d 269, 273 (Tex.App.-Texarkana 2003, no pet.). Griffin argues that the pat-down was a search for narcotics, not weapons. Eskelin testified that the pat-down was for officer safety. Under this evidence and the circumstances, we find that the trial court did not abuse its discretion in implicitly finding that the pat-down that revealed the cocaine in Griffin's possession was for officer safety and was not unreasonable. We hold that the pat-down was constitutionally justified.⁴ See Carmouche, 10 S.W.3d at 329-30. It is undisputed that the officers did not have a warrant to arrest Griffin. Within his brief Griffin argues that his warrantless arrest occurred without probable cause. An officer may arrest a person without a warrant if (a) there is probable case with respect to that person, and (b) the arrest falls within Chapter 14 of Texas Code of Criminal Procedure. Chapter 14 governs when a warrantless arrest may be made. TEX. CODE CRIM. PROC. ANN. arts. 14.01-.06 (Vernon 1977 and Supp. 2002). Article 14.01 provides that an officer may arrest a person for any offense committed in the officer's presence, and Article 14.04 provides that an officer may arrest a person on the representation of a credible person that a felony has been committed and the offender is about to escape so that there is no time to procure a warrant. Id. arts. 14.01, 14.04. The Fourth Amendment requires probable cause before an arrest without a warrant can be made. U.S. CONST. amend. IV; State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App. 1999). The test for probable cause for a warrantless arrest is whether, at that moment, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (arrested) person had committed or was committing an offense. Ballard, 987 S.W.2d at 892; Rhoads v. State, 84 S.W.3d 10, 14 (Tex.App.-Texarkana 2002, no pet.); State v. Crisp, 74 S.W.3d 474, 483 (Tex.App.-Waco 2002, no pet.). Based on the above evidence and holdings regarding the detention and pat-down, we find that the trial court did not abuse its discretion in implicitly finding that articles 14.01 or 14.04 were met and that probable cause to arrest Griffin existed as a result of the confidential informant's tip, the detention, the officers' prior knowledge of Griffin's arrest the day before with plastic tubes containing cocaine residue, and the pat-down and its result.⁵ We hold that Griffin's arrest was constitutionally justified. See, e.g., Johnson v. State, 32 S.W.3d 294, 297-98 (Tex.App.-San Antonio 2000, pet. ref'd).

CONCLUSION

Having overruled Griffin's sole issue, we affirm the judgment.