No. 11-05-00403-CR
Opinion filed February 22, 2007 DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 350th District Court Taylor County, Texas Trial Court Cause No. 7313-D.
Panel consists of: WRIGHT, C.J., MCCALL, J., and STRANGE, J.
TERRY McCALL, Justice.
Timothy Scott Lawson pleaded "no contest" to the first-degree felony offense of possession of methamphetamine with intent to deliver. The trial court found appellant guilty of the offense and assessed his punishment at confinement for a term of twelve years in the Institutional Division of the Texas Department of Criminal Justice. Prior to entering his "no contest" plea, appellant filed a written motion to suppress physical evidence seized from him as a result of a warrantless search. Appellant challenges the trial court's denial of the motion to suppress in a single issue on appeal. We affirm.
Background Facts Officer Marc Valentine of the Abilene Police Department testified that the department received a call from a resident of an apartment complex about two men standing in the rear parking lot of the apartments. The resident, who identified himself to the dispatcher, reported that the men possibly had guns and were possibly "doing drug deals." Upon Officer Valentine's arrival at the apartment complex, he observed two men matching the description provided by the caller standing behind a vehicle with the trunk open. Officer Valentine parked his vehicle in front of the apartment complex whereupon he approached the back of the apartments on foot. The two men were no longer standing in the rear parking lot at that time. Officer Valentine subsequently found the men standing in the foyer area of the apartment complex near the rear door.
Officer Valentine instructed appellant and the other subject to show him their hands. Appellant was holding a "fanny pack" in one of his hands. Officer Valentine immediately removed a pocket knife from appellant's pocket that was in view. There were either two or four officers on the scene at the time. Officer Valentine testified that the officers proceeded with conducting a pat down search of the men based upon their concern for officer safety. Officer Valentine conducted the pat down search of appellant. Officer Valentine testified that appellant gave him consent to search his pockets. The search of appellant's pockets did not reveal any weapons or contraband. Officer Valentine then took the fanny pack from appellant whereupon he felt of the contents of it without opening it. Officer Valentine testified that he conducted this examination of the fanny pack out of concern that it might contain a weapon. Officer Valentine testified that he felt a "hard L-shaped object" inside of the fanny pack that he believed to be a handgun. Officer Valentine did not find a handgun in his subsequent search of the contents of the fanny pack. The L-shaped object that he believed to be a handgun turned out to be a digital scale and a cell phone. Officer Valentine also observed drug paraphernalia inside of the fanny pack consisting of a straw containing a white powdery substance and syringes. Officer Valentine subsequently placed handcuffs on appellant and transported him to the police station for further investigation. Appellant also testified at the hearing on the motion to suppress. His account of the events was largely consistent with Officer Valentine's description. Appellant testified that he acted in a cooperative and non-threatening manner with Officer Valentine. The trial court's "Certification of Defendant's Right to Appeal" indicates that the trial court gave appellant permission to appeal. See TEX. R. APP. P. 25.2.
Standard of Review
A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App. 2005); Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Id.; Davila v. State, 4 S.W.3d 844 (Tex.App. Eastland 1999, no pet.). When the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling and assume the trial court made findings that are supported by the record and buttress its conclusion. See Torres, 182 S.W.3d at 902; Carmouche, 10 S.W.3d at 327-28. We are obligated to uphold the trial court's ruling on appellant's motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). Analysis
We begin our analysis by noting that appellant concedes that Officer Valentine was permitted to frisk him for weapons. See Terry v. Ohio, 392 U.S. 1, 38 (1968) (during a lawful investigative detention, an officer may conduct a limited search for weapons where an officer reasonably believes that his safety or that of others is in danger). Appellant's sole issue on appeal is that Officer Valentine exceeded the scope of his authority under Terry when he extended his search for weapons to the fanny pack. Appellant argues in this regard that Officer Valentine was not justified in his belief that the contents of the fanny pack may have posed a danger to the officers at the scene. Appellant premises this argument on several factors, including: (1) he was cooperative with the officers at all times; (2) he did not attempt to flee; (3) he did not make any threatening or furtive gestures; (4) he did not appear to be intoxicated; (5) there were several officers on the scene when the fanny pack was taken from appellant; (6) the officers were not afraid of appellant; and (7) the officers did not have their weapons drawn. If a protective search goes beyond what is necessary to determine whether the detainee is armed, it is no longer valid under Terry. Minnesota v. Dickerson, 508 U.S. 366 (1993). The question of whether Officer Valentine could frisk the outside of appellant's fanny pack is determined under an objective standard. Griffin v. State, No. PD-1036-05, 2006 WL 3733248, at *4 (Tex.Crim.App. Dec. 20, 2006). The applicable inquiry is whether the facts available to Officer Valentine at the time of the frisk would warrant a reasonably cautious person to believe that the action taken was appropriate. Id.; O'Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000). Under this objective standard, Officer Valentine's subjective beliefs regarding the danger posed by appellant is not dispositive. Griffin, 2006 WL 3733248 at *5. We conclude that Officer Valentine was objectively justified in examining the outside of appellant's fanny pack to determine if it may have contained a weapon. Officer Valentine initiated the contact with appellant based upon a report from an informant located at the apartment complex who identified himself to the police. The informant advised the police that appellant possibly possessed a gun and that he was possibly involved in drug activity. Under an objective view of the facts, the informant's report that appellant possibly possessed a firearm was significant. Even without the report of a weapon, the report of appellant's possible drug activity was a fact supporting the belief that he may have been armed. Id. at *5 (participation in drug activity is sufficient to establish the objectively reasonable belief that a suspect is armed). Officer Valentine's initial discovery and removal of the pocket knife did not eliminate the concern that appellant possessed a gun or other type of weapon. See O'Hara, 27 S.W.3d at 554. Since appellant was not handcuffed at the time of the detention, the possibility existed that he could have retrieved a weapon from the fanny pack during his interaction with the officers. Furthermore, we are not persuaded by appellant's contention that the presence of additional officers at the scene extinguished the possibility that he may have obtained a weapon from the fanny pack to use against the officers. Appellant cites Tucker v. State, 135 S.W.3d 920, 923-26 (Tex.App.-Amarillo 2004, no pet.), in support of his contentions on appeal. While Tucker also involved the frisk of a fanny pack, it is distinguishable from the facts in this appeal in several respects. The police stopped the defendant in Tucker for a traffic offense. During the course of the stop, the officer observed a bulge in a fanny pack worn by the defendant. The court concluded that, standing alone, the officer's observation of the bulge did not justify a frisk. Id. at 926. As noted by the court in Tucker, the officer "[had] no prior information from third parties about the presence of a gun." Id. at 925-26. Thus, Tucker is readily distinguishable because Officer Valentine had information from an identified informant that appellant possibly possessed a gun. Appellant's sole issue is overruled. This Court's Ruling
The judgment of the trial court is affirmed.