Opinion
No. 05-06-01543-CR
Opinion issued August 17, 2007. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 050725.
OPINION
Appellant Linda Gail Smith was charged with possession of less than one (1) gram of methamphetamine. She timely filed a written pretrial motion to suppress evidence. The trial court heard and denied appellant's motion to suppress before trial. Thereafter, appellant waived a jury and pleaded guilty to the allegations contained in the indictment. Pursuant to a negotiated plea bargain agreement, appellant's punishment was assessed at two (2) years' confinement in a state jail under community supervision for four years. Appellant's motion for new trial was overruled by operation of law. This appeal of the trial court's order denying her motion to suppress ensued. Appellant contends on appeal the trial court erred in denying her motion to suppress. Pretrial, appellant filed a motion in which she claimed the search was unreasonable and illegal in that it was the product of an illegal detention because the police were "without a reasonable suspicion to approach, question, detain and/or request a consent to search." Appellant makes the same contention on appeal. The State responds the trial court did not so err because the seizure was not the result of an illegal detention. The State argues that because the initial contact between appellant and the police was an encounter which, appellant concedes, needs no justification, and the temporary detention took place only after the police had developed specific articulable facts that appellant was involved in criminal activity, the detention and resulting search were lawful. We affirm.
Suppression Hearing
Detective Robby Duane Carney, a veteran Denison police officer was the State's first witness. Carney testified he was working patrol for the Denison Police Department on April 27, 2003. On that date he was in uniform and in a marked patrol vehicle when he responded to a reported disturbance at the Holiday Inn around eleven o'clock. While en route to that location, Carney was advised by dispatch that the parties involved had left that location and were in the parking lot of a Phillips 66 directly south of that business. The parties were a white male and a white female on a motorcycle. Both Carney and Officer Danny Paul Neumann responded to the dispatch. Carney radioed Neumann that he would attempt to locate the parties involved; Neumann went to the Holiday Inn. When Carney arrived at the Phillips 66, he saw people fitting the description given. He saw a "newer model Harley Davidson parked" which also fit the description given. Carney activated his in-car camera and made contact with the two people. Carney described the man and woman. At trial, Carney identified appellant as the woman at the Phillips 66 station. Carney approached the two individuals, asked for their identification, and advised them why he had made contact with them. Carney told them he was talking to them in reference to a possible disturbance. Carney identified the two people from Texas driver's licenses. The male, Fred Pitts, said, "[y]es, we just left the motel and we did have issues over there." Appellant told Carney her address on her driver's license was incorrect. Carney then "started gathering telephone numbers." When Pitts opened his wallet to show his driver's license, Carney saw a check that was kind of "hanging out in there." Carney testified there is a lot of identity theft and forgery scams in Denison. When Carney saw the check, he actually took custody of it or inquired about it. Pitts said, "sure," and handed it to Carney. Carney "more or less started [his] investigation with a possible forgery with him in possession of a forged check versus anything else." While questioning Pitts, it became clear to Carney the check in Pitts's possession was, in fact, not Pitts's check. Nor was it made out to Pitts. Carney went back to his patrol car to try to determine the owner of the check. The check was issued by a church to a propane company. Pitts told Carney he and appellant had been gambling at Choctaw and that someone had given him that check because they needed money to keep gambling. Carney testified it is standard operating procedure to secure the scene when questioning someone. One way to do that is to ask the person if they are carrying anything that might be dangerous to the officer. Carney asked Pitts whether he had any guns, knives, bombs or weapons. Pitts said he had some syringes. For health reasons, that was a concern to Carney for his own safety. It also indicated the person was probably using controlled substances. Carney inquired of Pitts about that. Pitts did not respond, but appellant said Pitts's wife was a diabetic. Appellant was not Pitts's wife. By that time, Neumann had arrived on the scene. Carney then changed his focus from suspicion of a forgery to suspicion of possession of drugs. Carney asked appellant to go sit on the curb a few feet away from Neumann. Carney confirmed, through Neumann, that drugs had been found in room 210 of the Holiday Inn that day. Carney also confirmed that Pitts was the last person to check out of room 210. After Carney learned this information, he asked for consent to search. Carney first asked Pitts if his wife was diabetic. Pitts said no. This inconsistent response made Carney more suspicious. He was "thinking drugs." Carney returned to his patrol unit and got a written consent to search form. Carney returned to Pitts and explained the form to him. After a "long pause" Pitts "hem-hawed around" and said "I really don't know if I want to sign it[.]" Carney told Pitts he had already told him he had syringes and that if he did not have anything to hide, it was not a big deal. Pitts replied, "I do have something to hide." Pitts then told Carney he had some methamphetamine in there. Pitts "went ahead and signed the consent form" for Carney. Pitts took Carney to the back of the motorcycle to the back saddle bags. Pitts thought he knew where the methamphetamine was, but after "digging through the property" he could not find it. They then went to the saddle bag on the opposite side of the motorcycle and inside some leather gear Carney located a pouch containing drug paraphernalia and drugs. Carney approached appellant as "part of a routine investigation," and spoke to her. Carney also observed appellant had taken her fanny pack and the long-sleeve shirt off and set them beside her. Carney verbally asked appellant if he could search the fanny pack. Appellant stated "yes" and handed it to Carney. Carney searched the fanny pack and found a "similar small baggy with an off-white powdery substance, mostly residue, on the sides of the bag." Carney said it was "inside of a Camel pack of cigarettes." Neumann had to leave to go to a priority call because they were short-handed. For his safety, Carney then secured appellant in the backseat of his patrol unit unhandcuffed. He did not search her person because she was a female. Carney explained how it was routine procedure to search the back seat of the squad car every day to determine it was free of drugs. Carney told appellant if he found drugs in the back seat once she got out he would charge her with those drugs. Carney then returned to Pitts. Pitts was "forthcoming" about his possession of drugs. Appellant denied the drugs were hers. Appellant said the fanny pack belonged to Pitts's wife. Carney asked appellant to see her arms. Without telling her why, appellant said "[s]ee, I've got a new puppy. These are scratch marks. This is a mole. This is a bump." Carney interpreted that to be telling him she did not shoot drugs. But his suspicions were raised anyway. While appellant was in the patrol car, she eventually did admit to Carney she had previously used methamphetamine, had been to "rehab" with it, and that she only uses it occasionally now, not all the time. The in-car videotape was marked, identified, and offered into evidence. The film was "received" by the court. We have reviewed the videotape. The State next called Briana Lee Frith. Frith stated she lived in Sherman but had previously lived in Denison for nine years. She worked at the Holiday Inn in Denison and was working there on April 27, 2003. On that date, Frith remembered she was cleaning room 210 and found some baggies inside a drawer of a bedside table between two beds. The baggies were not hidden in anything. Frith took the baggies to her manager. Frith believed they were narcotics by the way they were packaged. It was Frith's understanding the manager was going to call the police. Frith finished cleaning the room and then went to another room. While she was cleaning the next room, the occupants of room 210 returned. A man and woman came up to her. The man stated his name, and said they had rented 210 and had left some sunglasses in there and they really needed to go back in. Frith identified the man as Freddie Pitts. Frith told them she had already cleaned the room for the day and had not found any sunglasses. The couple said they were expensive sunglasses and they really needed to find them. When they persisted, Frith let them go back in the room. Both of them went back into the room. Once inside, they looked around frantically behind the dressers, inside the dressers, under the dressers, and in between the bed and wall. Frith thought this was unusual to be looking in those places for sunglasses. She told them again the sunglasses were not there, that she needed to leave and clean another room. She asked them to leave; they did not leave. They said they would really like to find the sunglasses and they wanted to continue to look. Then Frith said, "I know what you're looking for. We've already found it, and the police are on their way. And they ran out the door." They never asked Frith what she was talking about. When she said that, they just ran out the door and got on the elevator. On cross-examination, Frith testified the above events occurred around 10:00 a.m. right after the people checked out. The police talked to the manager. They later talked to Frith and asked her where she found the drugs, the room number, the people's name on her chart, and what had happened when they had come in and looked through the room. Frith did not tell the police a crime had been committed. She told the police just what she told the trial judge. She gave the police a description of the man and woman. Frith never saw either the man or the woman in possession of the baggies. On re-direct examination, Frith testified she called her manager and reported to her about the couple returning to look for the sunglasses and what had transpired during that search. The State next called Danny Paul Neumann. Neumann testified he had worked for the Denison Police Department for seven years, was a certified peace officer, and worked in patrol. Neumann was working for the Denison Police Department on April 27, 2003, in uniform, and in a marked patrol vehicle. On that date, Neumann responded to a disturbance call at the Holiday Inn. Upon his arrival at the Holiday Inn, Neumann made contact with a cleaning lady, Ms. Frith, who provided him with a small plastic baggy she said she found in room 210. Based on his training and experience, Neumann believed drugs were in the small baggies. Neumann took custody of the baggies. Neumann also learned who was staying in room 210. He determined from the registration card it was Fred Pitts with a Garland address. Carney had advised Neumann he would go to the Phillips 66 where the couple were located. After Neumann took possession of the baggies and talked to the clerk and cleaning lady, he went to Carney's location. Neumann asked the male there if he had rented room 210. Pitts confirmed he had. Neumann asked him why he went back to the room. Pitts said he had left some sunglasses in there. Neumann asked him if there was a chance he had left something other than sunglasses. Pitts replied, "no." Neumann displayed the small plastic bag and asked if it belonged to Pitts. Pitts replied, "no." Pitts stated he was at a Choctaw casino and had allowed another white female and a white male, whose last name he did not know, to use the room that night. He gave no further information. Neumann then "covered" Carney as he investigated. On cross-examination, defense counsel asked Neumann specifically what the radio dispatch was and approximately what time it came in. Neumann replied he arrived at the Holiday Inn approximately 11:12 so the dispatch would have come in prior to that. The dispatch came out as a disturbance in reference to some people who had come back to the room to look for some property. Neumann confirmed it was a dispatch operator talking to him over his police radio. Neumann said the operator would have identified him as "222" in report of a "signal 14" (police version of disturbance) at Holiday Inn Express and the address. Although Neumann could not remember specifically what was said, he testified he was confident the operator would not have mentioned the word "narcotics" or "dope" over the radio. Neumann heard Carney being dispatched over the radio and testified Carney would have heard him being dispatched. While en route, Neumann got the information from the operator about a white male and a white female on a motorcycle. He could not remember the specific words of that dispatch. Again, however, he was fairly confident the words "narcotics" or "dope" would not have been said. His best guess was that the operator would have said that the individuals regarding this incident were currently located at the Phillips 66 in the parking lot. She would not have mentioned anything further. Neumann testified the operator would have learned that from employees of the Holiday Inn. Carney communicated with Neumann by radio he was going to the Phillips 66. Neumann got to the Holiday Inn within a few minutes. During that time he had no further conversations with Carney. When Neumann arrived at the Holiday Inn, he parked at the main entrance, walked inside, and was contacted by Ms. Frith, the housekeeping lady. They were in the main lobby where the registration desk was. Frith contacted him and presented him with a little small plastic baggy. Upon learning that, Neumann determined from the registration card Fred Pitts was registered to room 210. Neumann did not get the white female's name. Neumann took possession of the plastic baggy, got the registered person's name and had no reason to speak to anyone else. Frith had already cleaned the room. A short time before then she was contacted by Pitts in reference to missing some sunglasses and needing to go check the room for them. Neumann then went to Carney's location. At the Phillips 66, Neumann made contact with Pitts because he needed his date of birth for his report. Neumann asked Pitts whether he had gone back to the hotel to look for property. Pitt confirmed he went back to look for sunglasses. Pitt also told Neumann while they were at Choctaw they let another couple use the room. Neumann did not remember seeing a check-out time on the registration card; however, he believed they told him they checked out at about 6:00 a. m. Neumann was the back-up officer at the scene. And other than being linked to the room where the little plastic bag was found, Neumann did not know of any other crime that would have been committed prior to making contact with them. The link was provided by Frith and the registration record. After the videotape was displayed to the trial judge, defense counsel cross-examined Carney, the State's first witness. Carney was on his way to the Holiday Inn when a second dispatch call diverted him to the Phillips 66. The original dispatch was a disturbance, a "signal 14." Normally an address is given when a disturbance call is made. Neumann did not actually have to divert to the Phillips 66 because it was more or less on the way. Carney could not remember how long it took him to get there. When asked what he was investigating when he pulled up to the Phillips 66 and saw one person sitting on a motorcycle, Carney responded he was waiting on Neumann to determine if they had an offense. When Carney first approached the couple, he had no information other than the disturbance call. Carney testified the car who pulled up behind the motorcycle on the videotape was Sergeant Shaw, not Neumann. Carney confirmed that when he approached the individuals and asked for identification he began detaining them because Pitts said he was involved. In response to being asked when he first learned of possible criminal activity, Carney responded:My first response to the possible criminal activity was when I asked Mr. Pitts for his identification and I observed the check. Like I said earlier, that's when I started thinking about forgeries. I didn't learn about any type of narcotic violations or possible narcotic violations — in one of two ways. One when he said he — I asked him if he had anything, you know, illegal, and he brings up the syringe part of it. That in my mind always means drugs usually. Most diabetics don't carry around a bunch of syringes. Some do; some don't, I guess. But that struck me as maybe a violation. The forgery, and then when Officer Neumann arrived on the scene and informed me of the violations which was the recovered narcotics at the scene, you know, then of course that gets me thinking that they possibly have narcotics.The couple responded to Carney rather quickly they had been at the Holiday Inn. They also confirmed they had gone back to the Holiday Inn to look for sunglasses. At that time, Carney did not know about what the maid had told Neumann. When asked at what point in the detention Carney learned from Neumann that the maid found a baggy of something in a drawer in room 210, he replied, "[t]hat would have been after Officer Neumann arrived on the scene while I was still inquiring about the possible forged check." Carney confirmed he spent about fifteen to twenty minutes investigating what he believed to be a forged check. Carney's reasonable suspicion for that was seeing a check in Pitts's wallet that did not belong to him. Carney confirmed that the remaining minutes spent on the investigation of the signal 14 was about eight or nine minutes. When asked when he started his detention at about 11:09, what specific articulable facts he had that the couple were involved at that time, or had been, or would be involved in some criminal activity, Carney responded, "[p]er dispatch per complainant they were involved in some type of disturbance which is a broad spectrum with that type of call." He then confirmed it was, first, a signal 14 call, which to Carney meant a "disturbance in progress." The "number two" fact would have been a call he received from dispatch to state the suspects had left the place of the violation. Carney went to talk to the suspects about the disturbance. After he was investigating the possible forged check, Neumann showed up and explained to Carney what he had learned at the Holiday Inn. When Carney was asked what he was looking for when he asked for consent to search appellant's purse or fanny pack, he replied, "[d]rugs." That was not based on anything he had known when he began the detention, but, rather, was something that came up after the detention. Carney said he based his detention on what dispatch had advised about the couple being involved in a signal 14 at the motel and from there it went to possible forgery, locating narcotics, syringes, and paraphernalia with Pitts. Appellant had direct involvement because she was on the back of the motorcycle with him. He asked appellant for consent and she voluntarily gave it. While Carney had the suspects' driver's licenses, they were not free to leave. When Carney was asked if he had any information when he "got that fanny pack that led" him to believe the woman "was violating the law or had violated the law or would be violating the law in the future in a criminal sort of way" he responded, "I don't really remember other than she was in close proximity to someone who did have it; therefore, I guess the assumption would be made that she could possibly be involved. Therefore, I took the investigation a little further and obtained a consent." Neither the State nor defense presented any further witnesses. After the trial court denied appellant's motion to suppress, appellant pleaded guilty to possession of methamphetamine as charged in the indictment. The trial court honored the plea bargain and sentenced appellant accordingly. Appellant's sole issue on appeal is whether the trial court reversibly erred in denying her motion to suppress because the seizure of methamphetamine from her resulted from an illegal detention in that the police officer acted without reasonable suspicion to detain her or to request her consent to search her person.