No. 04-07-00045-CR
Delivered and Filed: April 30, 2008. DO NOT PUBLISH.
Appeal From the 216th Judicial District Court, Kendall County, Texas, Trial Court No. 4514, Honorable Stephen B. Ables, Judge Presiding.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
REBECCA SIMMONS, Justice.
Appellee Ernesto Guzman was indicted for the felony offense of possession of cocaine. The trial court granted Guzman's motion to suppress. On appeal, the State alleges that the trial court erred in granting Guzman's motion to suppress because the officer had reasonable suspicion to stop Guzman's vehicle and the officer's search of Guzman was incident to arrest. Because the State failed to meet the limited exceptions of a warrantless search, we affirm the order of the trial court granting the motion to suppress.
FACTUAL BACKGROUND
While stopped at a red light, Officer Micah Binkley ran a computer check on the license plate of what appeared to be a 1986 or 1987 Jeep Cherokee. The computer check revealed the license plates were assigned to an "American LL" and registered to Leonardo Guzman. Binkley initiated a traffic stop based on the computer return because he believed the plates properly belonged to an American LL, rather than a Jeep Cherokee. The driver of the vehicle, Appellant Ernesto Guzman, indicated that the vehicle was owned by his father, Leonardo Guzman, and that he did not know whether the license plates were correct. Binkley further determined that Guzman was seventeen years old and did not possess a driver's license. During his conversation with Guzman, Binkley smelled tobacco emanating from the vehicle and asked Guzman to exit the vehicle. Guzman confirmed that he had been smoking cigarettes, but denied having any cigarettes on his person or in the vehicle. Guzman refused Binkley's request to show him what was in his pockets. Finally, on Binkley's fourth request, Guzman complied and pulled out a box of cigarettes which was ultimately found to contain a small baggie of cocaine. Guzman was handcuffed and put in the back of Binkley's patrol car. Sometime after Guzman was restrained, Sergeant Mark Busbee informed Binkley that "American LL" was actually the proper return on a Jeep Cherokee and directed Binkley to release Guzman. Guzman was subsequently charged and indicted for possession of a controlled substance. A hearing was held on Guzman's motion to suppress based on both the initial stop and the subsequent search. The trial court granted the motion to suppress all evidence and this appeal followed. MOTION TO SUPPRESS
A. Standard of Review We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). When the trial court makes explicit fact findings, an appellate court determines whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings of fact. Martinez v. State, 236 S.W.3d 361, 366-67 (Tex.App.-Fort Worth 2007, pet. dism'd). As long as the trial court's ruling is within the zone of reasonable disagreement, we will not interfere with the ruling. Id.; Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex.Crim.App. 1990). Importantly, an appellate court must uphold the trial court's ruling "if it is reasonably supported by the record and is correct under any theory of law applicable to the case." State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002). B. Analysis
The state complains that the court erred in granting the motion to suppress in two ways: (1) the officer had a reasonable suspicion to stop the car and (2) the search of Guzman was incident to arrest. Pursuant to the Fourth Amendment, a warrantless search of either a person or property is considered per se unreasonable subject to a "few specifically defined and well established exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (internal quotation omitted). A lawful search incident to arrest is among these exceptions. United States v. Edwards, 415 U.S. 800, 802 (1974); TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 2005) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."). The State bears the burden to show that, absent a warrant, the search falls within one of these exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). Incident to such an arrest, a peace officer may lawfully search the person, the passenger compartment of the vehicle and the containers therein. State v. Gray, 158 S.W.3d 465, 470 (Tex.Crim.App. 2005). Furthermore, a search incident to arrest may occur pre-arrest as long as the officer has probable cause to arrest before the search begins and the arrest follows quickly after the search. Williams v. State, 726 S.W.2d 99, 101 (Tex.Crim.App. 1986). The authority for a search incident to arrest, however, rests first on whether there was a valid custodial arrest. Pettigrew v. State, 908 S.W.2d 563, 570 (Tex.App. — Fort Worth 1995, pet. ref'd); Washington v. State, 663 S.W.2d 506, 508 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd). Here, although the State argues that the search was a search incident to arrest, the record does not support this contention. The trial court made detailed findings of fact and conclusions of law, based primarily on Binkley's testimony. In such, the trial court made the following findings: (1) No traffic violations or infractions of the law by the Defendant were witnessed by the officer nor was there a report to the officer by a third party against the Defendant; (2) The traffic stop was done without an arrest and/or search warrant; (3) The contraband was not in plain view; (4) Binkley did not request consent to search the Defendant nor did the Defendant give consent; (5) At the time of the search of the Defendant's person, he was not under arrest; (6) At the time of the search of the Defendant's person, Officer Binkley was not concerned that the Defendant would flee the scene; (7) At the time of the search of the Defendant's person, Officer Binkley was not concerned that his safety was in jeopardy; (8) At the time of the search of the Defendant's person, Officer Binkley was not operating any caretaking function; (9) The search of the Defendant's person was not a pat-down search; (10) Officer Binkley would not have discovered the cigarettes in the Defendant's pocket, but for his instruction at four different times to the Defendant to empty out his pockets; and (11) Officer Binkley then placed the Defendant in hand restraints and secured him in his police vehicle. Upon viewing the evidence in the light most favorable to the trial court's ruling, we hold that the trial court's conclusions that Guzman was not under arrest and that the search was not incident to arrest was not outside the zone of reasonable disagreement or unsupported by the evidence. Accordingly, we affirm the trial court's order granting the motion to suppress. Because our findings with regard to the search incident to arrest are dispositive of this appeal, we need not address the State's issue regarding the legality of the stop of Guzman's vehicle. See TEX. R. APP. P. 47.1 (encouraging concise opinions addressing only those issues "necessary to final disposition of the appeal").