Summary
holding the automobile exception did not justify the warrantless search of defendant's car because police lacked probable cause
Summary of this case from Edmond v. StateOpinion
NO. PD-0931-16
12-20-2017
Andreas MARCOPOULOS, Appellant v. The STATE of Texas
Carmen Roe, Carmen Roe Law Firm, Robert Fickman, Houston, TX, for Appellant. Kimberly Aperauch Stelter, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for the State.
Carmen Roe, Carmen Roe Law Firm, Robert Fickman, Houston, TX, for Appellant.
Kimberly Aperauch Stelter, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for the State.
OPINION
Keasler, J., delivered the opinion of the Court, in which Hervey, Alcala, Richardson, Newell, and Walker, JJ., joined.
Andreas Marcopoulos walked into a bar known for narcotics activity, stayed for three to five minutes, and then left. A Houston police officer subsequently pulled up behind Marcopoulos's vehicle and saw Marcopoulos make "furtive gestures" around the center console. When Marcopoulos committed a traffic violation, the officer stopped him, searched his vehicle, and found cocaine. The court of appeals concluded that this search was justified under the automobile exception. We disagree and will reverse.
I. FACTS AND PROCEDURAL POSTURE
On September 10, 2014, undercover Houston Police Officer J. Oliver was surveilling Diddy's Sports Bar ("Diddy's"), an establishment in Houston, Texas with a well-documented history of narcotics sales. Officer Oliver saw Marcopoulos enter the bar, leave within three to five minutes, and drive away. As Marcopoulos left, the officer followed him and observed him change lanes without signaling. Hoping to maintain his undercover status, Officer Oliver radioed for a uniformed officer to perform a traffic stop.
Officer T. Villa received this request and, upon stopping his marked police car behind Marcopoulos, noticed him make "furtive gestures" around the center console of his vehicle. Officer Oliver, driving next to Marcopoulos in an unmarked car, also observed these gestures. Officer Villa then activated his emergency lights, stopped Marcopoulos, and immediately arrested him. Villa searched Marcopoulos's vehicle and found two "baggies" of cocaine: one inside the center console and another between the center console and the passenger seat. Villa subsequently searched Marcopoulos's personal effects and found a third "baggie" of cocaine in his wallet.
Marcopoulos filed a pre-trial motion to suppress the evidence uncovered by the search, but his motion was denied. He pleaded guilty, reserving his right to appeal the trial court's ruling, and was placed on three years' deferred adjudication probation.
Before the First Court of Appeals, Marcopoulos claimed that the trial court abused its discretion by denying his motion to suppress. Marcopoulos argued that the search of his vehicle was unreasonable because it did not qualify as an inventory search and it exceeded the scope of his arrest. The State conversely argued that an inventory search was appropriate once Marcopoulos had been arrested and that the "search incident to arrest" issue was irrelevant.
Marcopoulos v. State , 492 S.W.3d 773, 775 (Tex. App.—Houston [1st Dist.] 2016, pet. granted).
Id. at 777.
State's Appellate Brief at 3–4, Marcopoulos v. State , 492 S.W.3d 773 (Tex. App.—Houston [1st Dist.] 2016, pet. granted).
A one-justice plurality of the court of appeals declined to reach the merits of these claims, instead upholding the search under the automobile exception to the Fourth Amendment warrant requirement. The court held that, pursuant to this exception, Officer Villa had probable cause to search the vehicle due to Marcopoulos's "repeated history of going to a place ... known for selling narcotics, his uncommonly short time spent at a bar, and his furtive gestures when he noticed a patrol car behind him." In dissent, Justice Keyes reasoned that the facts did not support a probable cause finding because the search was based on "furtive gestures[ ] alone," without any corroborating evidence.
Marcopoulos , 492 S.W.3d at 777.
Id. at 778.
Id. at 786–87 (Keyes, J., dissenting).
We granted Marcopoulos's petition for discretionary review solely to address the following question: Did probable cause exist, on these facts, to search Marcopoulos's vehicle under the automobile exception to the warrant requirement?
II. LAW
Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within a warrant exception. The automobile exception allows for the warrantless search of an automobile "if it is readily mobile and there is probable cause to believe that it contains contraband." As the court of appeals noted, there is no question in this case that Marcopoulos's vehicle was readily mobile. "Accordingly, the only ... inquiry" relevant to this petition "is whether the officers had probable cause to believe the truck contained contraband."
Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ; McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
Keehn v. State , 279 S.W.3d 330, 335 (Tex. Crim. App. 2009).
Marcopoulos , 492 S.W.3d at 778.
Probable cause exists where the facts and circumstances known to law enforcement officers are "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." For probable cause to exist, there must be "a ‘fair probability’ of finding inculpatory evidence at the location being searched." A reviewing court should measure this "probabilit [y]" by "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." And it must take into account "the totality of the circumstances" known to the officer, eschewing a "divide-and-conquer" or "piecemeal" approach.
Brinegar v. United States , 338 U.S. 160, 175–76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (some internal quotation marks omitted) (quoting Carroll v. United States , 267 U.S. 132, 161–62, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ).
Neal v. State , 256 S.W.3d 264, 282 (Tex. Crim. App. 2008).
Brinegar , 338 U.S. at 175, 69 S.Ct. 1302.
Wiede v. State , 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
When reviewing a trial judge's ruling on a motion to suppress, we "must view the evidence in the light most favorable to the trial court's ruling." We will afford "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.
State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
See, e.g. , Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (internal quotation marks omitted) (quoting Guzman v. State , 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997) ).
III. ANALYSIS
We have repeatedly held that furtive gestures alone are not a sufficient basis for probable cause. While "[f]urtive movements are valid indicia of mens rea ," they must be "coupled with reliable information or other suspicious circumstances relating the suspect to the evidence of crime" to constitute probable cause. Consequently, the focus of our analysis is whether Marcopoulos's furtive gestures, when considered alongside his brief appearance at a known narcotics establishment, give rise to probable cause. For the following reasons, we conclude that they do not.
See, e.g. , Smith v. State , 542 S.W.2d 420, 421–22 (Tex. Crim. App. 1976) ; Beck v. State , 547 S.W.2d 266, 268–69 (Tex. Crim. App. 1976) ; Wilson v. State , 511 S.W.2d 531, 534–35 (Tex. Crim. App. 1974).
Smith , 542 S.W.2d at 421–22.
A good starting point for this discussion is Sibron v. New York , a United States Supreme Court case which explored reasonable searches in the drug context. In Sibron , a police officer surveilled the defendant for eight hours, observing conversations between him and several other people—all of whom the officer knew to be narcotics addicts. The officer did not overhear the contents of these conversations; observe any transactions; or see, smell, or otherwise detect the presence of drugs. The uniformed officer eventually approached Sibron, said, "You know what I'm after," and reached into Sibron's pocket, confiscating several envelopes of heroin.
See generally 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
Id. at 45, 88 S.Ct. 1889.
Id.
Id.
The court ruled the search unreasonable because, inter alia , Sibron's observed behavior did not give rise to probable cause to conduct an arrest for a drug offense. The court emphasized that, although Sibron had affiliated with known addicts, "[t]he inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security." The court opined that probable cause required something more—perhaps knowledge of the contents of Sibron's conversations or the observation of a transaction. When the officer approached Sibron, however, "[n]othing resembling probable cause existed."
See id. at 62–63, 88 S.Ct. 1889.
Sibron , 392 U.S. at 62, 88 S.Ct. 1889.
Id.
Id.
We recognize that Sibron involved probable cause to arrest, rather than probable cause to conduct a search. Sibron also did not implicate the automobile exception; at the time he was searched, Sibron was standing just outside of a restaurant. Nevertheless, the fact that Marcopoulos was searched in connection with, rather than outright arrested for, a drug offense does not lessen the requirements of probable cause. The same goes for the fact that his vehicle, rather than his person, was searched, as the automobile exception neither reduces nor eliminates the probable cause standard.
Id. at 62–63, 88 S.Ct. 1889.
Id.
See, e.g. , Brown v. State , 481 S.W.2d 106, 109–110 (Tex. Crim. App. 1972) ("[P]robable cause to arrest, probable cause to search, and probable cause to investigate ... are not mutually exclusive. For example, the facts supplying probable cause to arrest might also furnish probable cause to search.").
See, e.g. , Nastu v. State , 589 S.W.2d 434, 438 (Tex. Crim. App. 1979) ("[T]he expectation of privacy, and hence the protection afforded ... is lower in automobiles than it is in houses or offices. But automobiles are still protected by the Fourth Amendment and there must be probable cause to search[.]"); see also Coolidge v. New Hampshire , 403 U.S. 443, 461, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ("The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.").
We interpret Sibron to severely limit the probative value of Marcopoulos's presence at Diddy's. As in Sibron , the officer in this case was not privy to Marcopoulos's business within the bar. Though Officer Oliver knew Diddy's to be a hotbed of narcotics activity, this activity was never even remotely linked to Marcopoulos. Oliver did not witness Marcopoulos initiate a transaction; engage anyone in the pursuit of drugs; or possess any containers, cash, or other paraphernalia which would suggest that he intended to buy or had recently bought contraband. Oliver testified that officers had "seen [Marcopoulos] at the location before," and the parties spend much of their briefing arguing whether the trial court could reasonably infer from this testimony that Marcopoulos had "been there multiple times," or only "one prior occasion." But even assuming Marcopoulos had been seen at Diddy's "multiple times," this hardly leads to the conclusion that, as suggested by the State, Oliver knew Marcopoulos to be a repeat narcotics customer.
State's Reply to Appellant's Brief on the Merits at 11 n.1.
Appellant's Merits Brief at 16–17.
See State's Reply to Appellant's Brief on the Merits at 11 & n.1.
While we do not discount the suspiciousness of Marcopoulos's unusually brief appearance within the bar, this behavior does not "warrant a man of reasonable caution in the belief that an offense has been or is being committed." There remains, then, a discernible gap between the reasonable suspicion aroused by Marcopoulos's brief presence at Diddy's and the proof necessary to establish probable cause. We also hold, for the following reasons and by the slightest of margins, that this gap was not bridged by Marcopoulos's furtive gestures.
Brinegar , 338 U.S. at 175–76, 69 S.Ct. 1302.
See Derichsweiler v. State , 348 S.W.3d 906, 917 (Tex. Crim. App. 2011) ("A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a warrantless investigative detention may be deemed ‘reasonable’ for Fourth Amendment purposes on the basis of a lesser quantum or quality of information[.]").
We have repeatedly held that furtive gestures must be coupled with "reliable information or other suspicious circumstances relating the suspect to the evidence of crime" to establish probable cause. Determining the nature of "reliable information" or "other suspicious circumstances" is a fact-driven inquiry that does not lend itself to bright-line rules. We look to prior, analogous cases for guidance.
See, e.g. , Smith , 542 S.W.2d at 421–22.
Id. ;see also McGee , 105 S.W.3d at 616 ("Each [probable cause] analysis will turn on the particular facts and circumstances of the underlying case. No one factor is determinative.").
We have held twice before that furtive gestures, coupled with some concrete indicator of drug activity, may establish probable cause. In Wiede v. State , we held that a police officer had probable cause to search a vehicle for drugs when the driver was observed reaching over, removing a plastic bag from his pocket, and placing it in the console area. Our holding was based squarely on the sighting of a plastic bag, as we reasoned that the officer's training and experience indicated to him that "drugs are commonly packaged, carried, or transported in plastic bags." Similarly, we held in Turner v. State that a police officer had probable cause to search a vehicle for drugs when the driver conspicuously dropped a matchbox to the floor as he exited the vehicle. We concluded that the presence of the matchbox, and the driver's attempt to hide it, established probable cause as those facts "could warrant a man of reasonable caution in believing that the box contained contraband that appellant wanted to conceal from the officers."
See Wiede v. State , 214 S.W.3d 17, 27–28 (Tex. Crim. App. 2007) ; Turner v. State , 550 S.W.2d 686, 688 (Tex. Crim. App. 1977).
Wiede , 214 S.W.3d at 20–21, 28.
Id. at 27.
Turner , 550 S.W.2d at 688.
Id.
We have conversely held that furtive gestures, absent some concrete evidence of drug activity and informed only by an officer's "vague suspicion," do not give rise to probable cause. In Brown v. State , a uniformed police officer in an unmarked car followed a vehicle thought to be occupied by armed-robbery suspects. The officer "observed the two men in the back seat ... turn and look toward him," then saw "their shoulders move and concluded that they were concealing firearms in the back seat." The officer searched the vehicle and discovered marijuana, but this Court found the search unreasonable:
See Brown , 481 S.W.2d at 111.
Id. at 108–09.
Id. at 108.
To find the appellants' conduct in the instant case sufficient to constitute probable cause ... would be to assume: (1) that they recognized [the officer]'s unmarked car as a police car; (2) that these gestures were in response to that awareness; and (3) that they were purposely made to avoid apprehension.
Id. at 112.
Finding this "chain of inferences" to be "too tenuous," we concluded that the "fact that the officer observed [the appellants'] shoulders moving is an insufficient basis for inferring that they were concealing firearms," despite the suspicious circumstances under which their conduct occurred.
Id.
We gather several important conclusions from these cases. First, the legal significance of furtive gestures, like any other component of probable cause, is fact-dependent. Second, and perhaps more importantly, furtive gestures must be supported by evidence that directly, not just "vague[ly]," connects the suspect to criminal activity.
E.g., Brown , 481 S.W.2d at 111 ; see also Wiede , 214 S.W.3d at 27 ; Parker v. State , 206 S.W.3d 593, 597 (Tex. Crim. App. 2006) (stating that probable cause must "point like a beacon" to a particular person or location); Faulk v. State , 574 S.W.2d 764, 766–67 (Tex. Crim. App. 1979) ; Turner , 550 S.W.2d at 688.
As discussed above, Marcopoulos's short visit to Diddy's, unsupported by any details concerning the nature of his visit there, did not sufficiently "relat [e]" him to any "evidence of crime." Furthermore, as in Brown , Marcopoulos did not exhibit furtive gestures in response to police action (e.g. , wailing sirens or flashing lights), but rather mere police presence. He was situated in front of a marked police car that had not yet indicated an intention to stop him, and beside an unmarked police car driven by an undercover officer. Finally, Marcopoulos's movements, unlike those in Wiede or Turner , were not connected to a known or suspected instrumentality of crime—e.g. , a baggie or matchbox. Under these circumstances, Officer Oliver's notions about Marcopoulos, though certainly providing reasonable suspicion justifying a temporary investigative detention, did not rise to the level of probable cause justifying a full-blown search. Although Oliver's suspicion was ultimately vindicated, "a search cannot be justified by what it uncovers."
Smith , 542 S.W.2d at 421–22.
See Derichsweiler , 348 S.W.3d at 917 (Tex. Crim. App. 2011) (emphasis in original) ("It is enough to satisfy the lesser standard of reasonable suspicion that the information is sufficiently detailed and reliable—i.e. , it supports more than an inarticulate hunch or intuition—to suggest that something of an apparently criminal nature is brewing."); see also Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("Thus, it is argued, the police should be allowed to ‘stop’ a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity.... If the ‘stop’ and the ‘frisk’ give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal ‘arrest,’ and a full incident ‘search’ of the person.").
Brown , 481 S.W.2d at 112.
We reiterate that, although we have discussed the facts of this case sequentially, we have analyzed them holistically. While considering the totality of the circumstances makes this a closer call than it might otherwise have been, we conclude that the automobile exception cannot be stretched so far as to justify an all-out warrantless search on these facts.
See supra Part II; Wiede , 214 S.W.3d at 25 ("When determining probable cause, an appellate court considers the totality of the circumstances. This means that a ‘divide-and-conquer’ or piecemeal approach is prohibited.").
See, e.g. , Almeida-Sanchez v. United States , 413 U.S. 266, 269, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) (discussing Carroll v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ) ("Automobile or no automobile, there must be probable cause for the search."); Chambers v. Maroney , 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ("In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution."); see also United States v. Ervin , 907 F.2d 1534 (5th Cir. 1990) (citing California v. Carney , 471 U.S. 386, 393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) ) ("[T]he automobile exception is applicable only if ‘the overriding standard of probable cause is met.’ ").
IV. CONCLUSION
We wish to stress three aspects of our decision today. First, as with any probable cause determination, it is fact-driven. We do not hold that observations akin to Officer Oliver's will never meet the standard of probable cause; we simply conclude that Marcopoulos's observed behavior was insufficient in this case. Second, it was only barely insufficient. We do not hesitate to say that, had Oliver observed any additional indicators of drug activity, either at Diddy's or within Marcopoulos's car, the scale would tip in favor of a finding of probable cause. Finally, although probable cause to search the vehicle was lacking on these particular facts, we do not conclude that the Fourth Amendment was necessarily violated—we decide only that the automobile exception is unavailing. Nevertheless, the trial court's ruling must be upheld on any valid theory applicable to the case. Accordingly, we reverse the judgment of the court appeals and remand the cause for that court to render an opinion addressing the remaining contentions of the parties.
E.g. , State v. Steelman , 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
Marcopoulos , 492 S.W.3d at 777 ("Appellant's four issues challenge ... whether the search of his truck fit within the inventory-search exception to obtaining a search warrant.").
Yeary, J., dissented.
Keel, J., filed a dissenting opinion, in which Keller, P.J., joined.
Keel, J., filed a dissenting opinion in which Keller, P.J., joined.
We should either dismiss this petition as improvidently granted or uphold the finding of probable cause to search Appellant's truck. Since the majority does neither, I respectfully dissent.
Dismiss as Improvidently Granted
A trial court's ruling on a motion to suppress must be upheld on appeal if any applicable legal theory supports it. State v. Copeland , 501 S.W.3d 610, 612-13 (Tex. Crim. App. 2016).
Police officers may search persons whom they lawfully arrest. United States v. Robinson , 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
Appellant has never challenged the lawfulness of his arrest for traffic offenses. After that arrest, police found cocaine in his truck and on his person. The cocaine found on his person was admissible because it was found in a search incident to his arrest. See Robinson , 414 U.S. at 236, 94 S.Ct. 467. The trial court's ruling was correct on that theory and must be upheld on appeal. See Copeland , 501 S.W.3d at 612-13. Since Appellant was indicted for and pled guilty to possession of less than a gram of cocaine, the cocaine on his person supported his prosecution regardless of the cocaine found in his truck, and we need not address the legitimacy of the search of his truck.
We should dismiss the petition for discretionary review as improvidently granted.
Probable Cause to Search the Truck
Police may search a vehicle if they have probable cause to believe it contains evidence of a crime. United States v. Ross , 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In such a case "a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained." Id. at 809, 102 S.Ct. 2157. Due to the lower expectation of privacy attendant to automobiles, however, the warrant requirements for searching them are less rigorous than those for other types of searches. Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007), quoting South Dakota v. Opperman , 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).
Probable cause exists when "the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime." Brown v. State , 481 S.W.2d 106, 110 (Tex. Crim. App. 1972). "Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ " Wiede , 214 S.W.3d at 24, quoting Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). If the totality of the circumstances demonstrates a "fair probability" of finding evidence at the location being searched, then the probable cause standard is met. Dixon v. State , 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).
Appellate courts must review a trial court's probable cause finding in the light most favorable to the trial court's ruling. State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
Viewed in the light most favorable to the trial court's ruling, the evidence here showed that undercover narcotics officer Joseph Oliver had been making cases out of Diddy's Sports Bar throughout his six-year tenure in the narcotics division. Diddy's was "set up like a sports bar but they don't sell anything other than narcotics out of there." Two weeks before Appellant's arrest, Oliver had made an undercover buy at Diddy's after which his team had executed a search warrant.
On the day of Appellant's arrest, they were "continuing the investigation by knocking cases out, proving that they were still" selling drugs, trying "to pick off customers who'd just in and buy." The prevalence of drug deals at Diddy's was corroborated by the defense witness, an attorney who testified that he had "had a case from Diddy's" and had "heard about these other cases in which the police stop somebody who has bought dope there and pulled them over and indeed found dope there."
That day, Oliver and his partner were watching Diddy's from a nearby parking lot. They saw appellant park in Diddy's lot, go into the bar for about three minutes and then return to his car and leave. His brief stay meant that he did not have time for a drink, and his actions conformed to a pattern of behavior exhibited by other Diddy's narcotics buyers. Oliver had seen Appellant at Diddy's before but had been unable to stop him on those prior occasions.
"We'd seen him at the location before, we couldn't get him to stop quick enough and get him out of there due to traffic or we couldn't enter in there. At this time when we seen him come back which we did, it was another customer we've seen at the location before."
--------
After Oliver and his partner saw Appellant commit traffic offenses, they called for a marked patrol unit to stop him. The patrol officer, Tony Villa, pulled behind Appellant in such a way that, according to the defense witness, it was obvious whom he was after even without lights and sirens.
With Villa behind him, Appellant began making furtive gestures toward the center console and watching Villa in his rearview mirror. According to Oliver, Appellant reached toward the passenger side of his truck as if "trying to hide something." After Villa activated his emergency equipment, Appellant pulled into a gas station. As Villa was approaching the truck on foot, Appellant was still moving his hands around toward the center console area.
The totality of these circumstances viewed in the light most favorable to the trial court's ruling—Appellant's brief, repeat visit to a location notorious for drug sales, his behavior there mirroring that of other drug buyers, plus his efforts to hide something when he realized the police were after him—indicated a "fair probability" of finding contraband in his car. But instead of evaluating the totality of the circumstances, the majority opinion picks them off one by one, viewing them in a light unfavorable to the trial court's ruling and holding each inadequate to support a finding of probable cause.
First the majority "severely" discounts "the probative value of Marcopoulos's presence at Diddy's" and cites Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), in support of that viewpoint. But the majority's reliance on Sibron is misplaced.
Sibron did not involve an automobile search, and automobile searches are subject to less rigorous warrant requirements because of a lower expectation of privacy in automobiles. Opperman , 428 U.S. at 367, 96 S.Ct. 3092 ; Wiede , 214 S.W.3d at 24. That does not mean that the Fourth Amendment does not apply to automobiles; it does mean that equating the requirements for searching cars with the requirements for searching persons is a false equivalence.
Also, Sibron is distinguishable on its facts. The police officer who searched Sibron's pocket knew nothing about him; he merely saw him "talking to a number of known narcotics addicts over a period of eight hours." Sibron , 392 U.S. at 62, 88 S.Ct. 1889. In this case, by contrast, Oliver recognized Appellant as a repeat visitor to a "bar" that was a front for narcotics sales and who exhibited behavior consistent with that of known drug buyers at that establishment. The majority dismisses that testimony because, in its view, "this hardly leads to the conclusion that ... Oliver knew Marcopoulos to be a repeat narcotics customer." But these facts can fall short of establishing such a conclusion and still help establish probable cause. Instead of considering them as part of the bigger picture and looking at them in the light most favorable to the trial court's ruling, however, the majority discards them.
Having dispensed with any incriminating inferences to be drawn from Appellant's repeated visits to Diddy's, the majority acknowledges that his "unusually brief" visit there on the day of his arrest was suspicious but holds it insufficient to support a probable cause finding, again isolating a fact instead of viewing it as part of a totality of the circumstances. The majority then turns its attention to Appellant's furtive gestures and finds that they fall short, as well.
The majority claims that Appellant's furtive gestures lacked significance because they were not "in response to police action ... but rather mere police presence" and cites Brown, 481 S.W.2d 106, as authority for this supposed distinction. But Brown did not hold, as the majority seems to, that something like "wailing sirens or flashing lights" must precede furtive gestures to cast them in an incriminating light. Instead, Brown acknowledged the lack of evidence in that case to show that (1) the defendants recognized that the unmarked car following them was a police car, (2) their gestures were in response to that recognition, and (3) their ambiguous shoulder movements were made for the purpose of avoiding apprehension. Id. at 112. Here, by contrast, a marked patrol unit pulled in behind Appellant's truck, Appellant knew that the patrol car was behind him, and his gestures, far from ambiguous, looked as if he were hiding something. Deliberately furtive gestures at the approach of police "are strong indicia of mens rea," Sibron , 392 U.S. at 66, 88 S.Ct. 1889, and the majority errs to discount them in this case.
Even if the law required police "action" for furtive gestures to have incriminating significance, the gestures here would meet that requirement because Appellant continued them after he pulled over in response to the patrol officer's activation of his emergency equipment, a fact ignored by the majority opinion.
The majority correctly states that furtive gestures alone do not establish probable cause. But having dismissed the other suspicious circumstances in this case—the nature of Diddy's as a front for drug sales, Appellant's repeated appearances there, his brief appearance on this occasion—the majority destined Appellant's furtive gestures to stand alone and thus be insufficient to support a finding of probable cause.
The majority cites Turner v. State , 550 S.W.2d 686 (Tex. Crim. App. 1977) (commissioner opinion), as an example of probable cause based on furtive gestures of which it approves. In that case, a driver dropped a matchbox to the floor as he exited a vehicle in response to a police officer's command. Id. at 688. The Turner opinion held that sufficed as probable cause. Id. If dropping a matchbox in the presence of a police officer amounts to probable cause, then the totality of the circumstances here amounts to probable cause, too.
We should dismiss this petition as improvidently granted. Alternatively, we should uphold the trial court's implicit finding of probable cause to search the truck. Since the majority does neither, I dissent.