No. 4-05-00810-CR
Delivered and Filed: September 27, 2006. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-1406, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Steven Jimenez appeals the trial court's order denying his motion to suppress the cocaine found in a truck near where Jimenez was standing shortly before he was arrested. Jimenez argues the plain view doctrine does not save the warrantless search of his truck from being unconstitutional because the officer who found the cocaine during a "protective sweep" was not authorized to conduct a sweep of a truck he knew to be unoccupied. The State responds that Jimenez does not have standing to challenge the search because he failed to establish that he had a reasonable expectation of privacy in the driveway, the place the officer "invaded" and the officer's location when he saw the cocaine on the console through the truck's open passenger door. We agree.
Applicable Law and Standard of Review
The Texas Court of Criminal Appeals set out the framework for our analysis in Granados v. State, 85 S.W.3d 217 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 927 (2003): Several factors are relevant to determining whether a given claim of privacy is objectively reasonable: (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. This list of factors is not exhaustive, however, and none is dispositive of a particular assertion of privacy; rather, we examine the circumstances surrounding the search in their totality.
Id. at 223. On appeal, we review the trial court's ruling under the abuse of discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005), petition for cert. filed, — U.S.L.W. — . (U.S. Apr. 25, 2006) (No. 05-11514). Therefore, "[w]e review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported in the record." Id. "We will sustain the trial judge's decision if it is correct on any theory of law applicable to the case." Id. Factual and Procedural Background
At approximately 7:00 p.m. on January 7, 2004, Officer Robert Tamez and his partner Officer David Larios, while assigned to directed patrol to target high crime areas, observed a maroon Honda signal and make a quick right turn into a driveway. Because the Honda had an after-market white rear blinker light, which is a violation of the Texas Transportation Code, the officers activated their emergency lights. Instead of immediately stopping or pulling over, the Honda continued down the long driveway twenty or thirty yards until stopping at the rear of the property. When the officers followed the Honda, they noticed Jimenez, standing at the rear of a truck, the passenger side door of which was open. Upon seeing another individual at the end of the long driveway, Officer Tamez's first thought was that they were being set up for an ambush. When Jimenez saw the officers' car, he shook his head, ran to the passenger side door, and threw an object inside. He then returned to his position at the rear of the truck. At the time, it was dark and the light was very poor because the officer's car, although it had its headlights and spotlight on, was approximately ten or fifteen feet away; and Officer Tamez believed Jimenez was trying to conceal a gun. While Officer Larios contacted the driver of the maroon Honda, Tiffany Sue Paniagua, Officer Tamez contacted Jimenez. When Jimenez lunged toward the open passenger side door of the truck and tried to get inside the truck, Officer Tamez grabbed him and prevented him from doing so. Not knowing whether Jimenez had a gun, Officer Tamez was concerned for his and his partner's safety. As Officer Tamez began to pat Jimenez down, Jimenez put his left hand inside his pocket. Since Officer Tamez had not checked that pocket and thus did not know if Jimenez was reaching for a weapon, he threw Jimenez to the ground. Deciding to investigate, Officer Tamez returned Jimenez to the rear of the truck and asked if Jimenez had anything illegal in the truck. Although Jimenez said he did not, he began shaking, putting his hands on his head and his head on the truck as Officer Tamez approached the open passenger side door. Officer Tamez then shined his flashlight into the truck's interior and saw a yellow Glad wrap box on the closed console. As he continued his search for weapons, Officer Tamez saw sticking out of the yellow box in plain view a small Ziplock bag containing white power. Based on his training and experience, Officer Tamez believed the baggie contained cocaine. He therefore handcuffed Jimenez and placed him under arrest. A subsequent field test confirmed Officer Tamez's belief that the baggie contained cocaine. Later, when Jimenez was in the officers' car, he said "[h]e couldn't believe he did something so stupid." Jimenez claimed the house belonged to his brother; but the lights were off, the doorbell went unanswered, and officers were unable to contact anyone inside. At the conclusion of the hearing, Jimenez's attorney stated that: "I guess initially I would like to take issue with the fact that they were legally in a position to view what was viewed, [but] given the testimony that we have thus far, I think I'm not in a position to really challenge that at this point." He therefore argued that "the scope of the exploratory search conducted of the cab of the vehicle, and specifically going into the — into the box that had to be opened and searched . . . to retrieve the controlled substance, would exceed the scope of any permissible sweep in this case, and would have required a warrant." The trial court denied Jimenez's motion to suppress. Jimenez subsequently pleaded no contest, received a $1200 fine and ten years deferred adjudication, 500 hours of community service, and various substance abuse treatment conditions. Discussion
As evidenced by the foregoing, there is no evidence of any of the Granados factors. See Granados, 85 S.W.3d at 223. Nor is there any other evidence that would render Jimenez's claim of privacy objectively reasonable. We therefore hold the trial court did not abuse its discretion in denying Jimenez's motion to suppress and affirm the trial court's judgment.