Opinion
No. 05-10-00521-CR
Opinion Filed November 3, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F09-52538-H.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
After the trial court denied his motion to suppress evidence, Guadalupe Garcia pleaded guilty to possession of less than one gram of cocaine. Pursuant to Garcia's agreement with the State, the trial court deferred adjudication of guilt, placed Garcia on community supervision for three years, and assessed a $1500 fine. In one issue on appeal, Garcia contends the trial court erred by denying the motion to suppress because the search of his vehicle was neither a lawful inventory search nor a valid search incident to arrest. We affirm the trial court's judgment.
Background
At 11:45 p.m. on March 12, 2009, Dallas police officer Joseph Reagey was on patrol with his partner when they saw a car with no brake lights. Based on this violation of the traffic laws, Officer Reagey and his partner initiated a stop of the car. As the car slowly came to a stop, Officer Reagey observed the driver moving around in the car. After the car came to a complete stop, Officer Reagey saw the driver "put his hands up towards the sun visor." Officer Reagey's partner approached the driver side of the car, and Officer Reagey approached the passenger side. Officer Reagey used his flashlight to confirm the driver was the only occupant of the vehicle. Garcia, the driver of the car, told Officer Reagey's partner that he did not have a driver's license or liability insurance covering operation of his vehicle. Garcia stated he was moving around in the car because he was trying to turn down the volume on the radio and was looking for his driver's license. Officer Reagey's partner arrested Garcia for no insurance, no driver's license, and defective equipment and placed Garcia into handcuffs. Officer Reagey admitted that Garcia's car was legally parked following the stop. However, there was no one else in the car with Garcia and no one available to drive the car following Garcia's arrest. Officer Reagey also admitted there was no reason to believe there was any evidence in the car to substantiate the traffic offenses. Officer Reagey testified the Dallas Police Department (DPD) has a policy that any vehicle not covered by insurance must be towed to the pound. This policy applies regardless of whether the driver of the vehicle is arrested. According to Officer Reagey, he has no discretion about whether a vehicle that is not insured must be towed. However, based on extenuating circumstances, a supervisor can determine an uninsured vehicle is not required to be towed. Officer Reagey testified that DPD also has a policy that requires an officer to inventory the contents of all vehicles that are towed to the pound. This policy states the officer can search the passenger compartment and trunk of a car and the glove box, if it is unlocked. The officer cannot tear apart door panels or rip the upholstery during the inventory search. Officer Reagey stated the purpose of the search is to locate big items in plain view to protect against a claim of loss. Officer Reagey also noted that "anything illegal can't go to the pound." Officer Reagey testified this policy authorized him to search Garcia's car. Although the arrest report prepared by Officer Reagey's partner stated the car was searched incident to arrest, Officer Reagey indicated the report should have stated the search was an inventory search. Officer Reagey stated that a record sheet is prepared as part of the inventory search and is sent to the pound. Officer Reagey did not attach an inventory search sheet to the police report. Officer Reagey first searched the area by the sun visor that Garcia had reached toward and found a clear plastic baggie containing crack cocaine. The baggie was in the headliner where the upholstery contacts the window. Officer Reagey testified the upholstery in this area of a car was a common place to hide narcotics and was often loose. After finding the cocaine, Officer Reagey notified his supervisor, who then came to the location of the stop. The State charged Garcia with possession of the cocaine. Garcia filed a motion to suppress all evidence of the cocaine because the search of the car was neither a valid inventory search nor a valid search incident to arrest. The trial court denied Garcia's motion to suppress evidence and did not make findings of fact and conclusions of law.Standard of Review
We review the trial court's ruling on a motion to suppress under a bifurcated standard of review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to the trial court's rulings on (1) questions of historical fact that the record supports, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor, and (2) "application of law to fact questions" that turn on an evaluation of credibility and demeanor. Valtierra, 310 S.W.3d at 447; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We apply a de novo review to the trial court's application of the law to the facts. Hubert, 312 S.W.3d at 559; Amador, 221 S.W.3d at 673. The trial court is the sole trier of fact and the judge of witness credibility and the weight to be given to witness testimony. Valtierra, 310 S.W.3d at 447. When, as here, the trial court does not make explicit findings of fact, the appellate court must view the evidence in the light most favorable to the trial court's ruling and assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert, 312 S.W.3d at 560. We must uphold the trial court's ruling if it is "reasonably supported by the record and is correct on any theory of law applicable to the case." Valtierra, 310 S.W.3d at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).Discussion
The Fourth Amendment to the United States Constitution protects against unreasonable searches by government officials. U.S. Const. amend. IV. Once a defendant establishes a search occurred without a warrant, the burden shifts to the State to prove the search was reasonable under the totality of the circumstances. Amador, 221 S.W.3d at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005). The State concedes the search at issue in this case was conducted without a warrant. Garcia first argues the search was not a valid inventory search; rather, it was a pretext for an investigatory search for which a warrant was required. Law enforcement officials may make a warrantless inventory search of a lawfully impounded vehicle, provided that the property inventory is conducted in good faith and in accordance with standardized criteria or an established routine. Colorado v. Bertine, 479 U.S. 367, 371-74 (1987); South Dakota v. Opperman, 428 U.S. 364, 372 (1976); Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.-Houston [1st Dist.] 2010, no pet.). These searches "serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Bertine, 479 U.S. at 372; see also Delgado v. State, 718 S.W.2d 718, 721 (Tex. Crim. App. 1986). Valid vehicle inventory searches are an exception to the Fourth Amendment's warrant requirement. Bertine, 479 U.S. at 371-72. The inventory search must be designed to produce an inventory of the vehicle's contents and must not be a "ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). A vehicle may be validly impounded and inventoried when the driver is removed from the automobile and placed under custodial arrest, and no other alternatives are available to ensure the protection of the vehicle and the driver's property. Delgado, 718 S.W.2d at 721; Garza v. State, 137 S.W.3d 878, 882 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). The State bears the burden of proving that the impoundment of the vehicle is lawful. Garza, 137 S.W.3d at 882. It may satisfy its burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment were available to ensure the automobile's protection, (3) the impounding agency had an inventory policy, and (4) the policy was followed. Garza, 137 S.W.3d at 882. Garcia does not contest that he was placed under custodial arrest and does not argue on appeal that alternatives other than impoundment were available to ensure the automobile's protection. Rather, Garcia argues the State failed to establish the scope of DPD's policy relating to inventory searches or that Officer Reagey complied with that policy. Officer Reagey testified DPD has a policy of towing, or impounding, any vehicle that is not insured. Although a supervisor could determine, based on extenuating circumstances, that an uninsured car would not be towed, Officer Reagey had no discretion in determining the car would be towed. See United States v. Ballard, No. 10-3180, 2011 WL 3319431, at *3 (6th Cir. 2011) (concluding inventory search was valid based on officer's testimony that he had no discretion as to whether to impound vehicle when driver's license was suspended for lacking insurance or financial responsibility). Officer Reagey testified that DPD also has a formal written policy regarding inventory searches that states the officer can search the passenger compartment and trunk of a car and the glove box, if it is unlocked. The officer cannot tear apart door panels or rip the upholstery during the inventory search. See Wells, 495 U.S. at 4 (in conducting inventory search, officer may permissibly search locked and unlocked containers, including glove compartments, so long as a policy or established procedure allows for such a search and police do not act in bad faith or for sole purpose of investigation). Officer Reagey noticed Garcia reaching toward the area of his sun visor. Garcia's actions reasonably alerted Officer Reagey that Garcia may have placed property in this area. See United States v. Edwards, 577 F.2d 883, 894 (5th Cir. 1978) (en banc) (after seeing defendant reach toward floorboard, officer could reasonably conclude defendant placed property in floorboard and could lift loose flap of carpet to search for property as part of valid inventory search). DPD's inventory policy allowed Officer Reagey to search the passenger compartment of Garcia's car, and Officer Reagey found the cocaine in the area of Garcia's car where Garcia was reaching prior to the stop. There is no evidence Officer Reagey ripped the upholstery of the car in locating the cocaine or acted in bad faith in conducting the search. Giving the appropriate amount of deference to the trial court's determination of historical facts, we conclude the court did not err by determining Officer Reagey conducted the inventory search of Garcia's vehicle in accordance with standardized police procedures. Because the State satisfied its burden to demonstrate that Officer Reagey conducted a valid inventory search, the trial court did not err by denying Garcia's motion to suppress. Relying on Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), Garcia also argues the search did not meet the requirements for a valid search incident to arrest because (1) he was not unsecured and within reaching distance of the passenger compartment at the time of the arrest, and (2) it would not have been reasonable to believe that any evidence of the offense resulting in arrest would be contained in the vehicle. In Gant, the Supreme Court limited the scope of the search incident to arrest doctrine and held that:Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.129 S. Ct. at 1723. The Court also stated, however, that "[w]hen these justifications [for a search incident to arrest] are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies." Id. at 1723-24 (emphasis added). The inventory search is a "well-defined exception" to the Fourth Amendment's warrant requirement. Bertine, 479 U.S. at 371; Moskey, 333 S.W.3d at 702. Because the search at issue in this case satisfies the requirements for a valid inventory search, Gant does not apply. See Moskey, 333 S.W.3d at 702. We resolve Garcia's sole issue against him and affirm the trial court's judgment.