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stating that the State's burden is proving the property is subject to forfeiture, which includes proving probable cause
Summary of this case from Jenkins v. StateOpinion
NO. 14–0692
06-10-2016
The State of Texas, Petitioner, v. One (1) 2004 Lincoln Navigator, VIN # 5LMFU27RX4LJ28242, Respondent
Naved Qazi, Jennifer Paige Honey Dorsey, Douglas K. Norman, Nueces County District Attorney's Office, Corpus Christi, Philip A. Lionberger, Assistant Solicitor General, Warren Kenneth Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney General, J. Campbell Barker, Scott A. Keller, Office of the Attorney General of Texas, Austin, for State of Texas. Celina Marie Lopez Leon, Law Office of Scott M. Ellison, P.L.L.C., Corpus Christi, for Respondent.
Naved Qazi, Jennifer Paige Honey Dorsey, Douglas K. Norman, Nueces County District Attorney's Office, Corpus Christi, Philip A. Lionberger, Assistant Solicitor General, Warren Kenneth Paxton, Attorney General of Texas, Charles E. Roy, First Assistant Attorney General, J. Campbell Barker, Scott A. Keller, Office of the Attorney General of Texas, Austin, for State of Texas.
Celina Marie Lopez Leon, Law Office of Scott M. Ellison, P.L.L.C., Corpus Christi, for Respondent.
JUSTICE BROWN delivered the opinion of the Court, in which Justice GREEN, Justice WILLETT, Justice GUZMAN, and Justice BOYD joined, and in which Chief Justice HECHT, Justice JOHNSON, and Justice LEHRMANN joined in all but Part IV.
In this civil-forfeiture case, police officers arrested Miguel Herrera and seized his Lincoln Navigator. After finding drugs during an inventory search of the vehicle, the state filed a notice of seizure and intended forfeiture under Chapter 59 of the Code of Criminal Procedure, claiming that the Navigator was “contraband” under the statute. Herrera argued that the stop leading up to the arrest was unlawful and therefore any evidence obtained pursuant to the subsequent search should be excluded in the civil-forfeiture proceeding. The trial court agreed, finding the vehicle search to be illegal and “denying the seizure.”
Chapter 59 defines “contraband” subject to forfeiture to include any property “used or intended to be used in the commission of ... any felony under [the] Texas Controlled Substances Act.” Tex. Code Crim. Proc.art. 59.01(2)(B)(i).
The court of appeals affirmed, holding that (1) article 59.03(b) precludes the state from initiating a civil-forfeiture proceeding based on an illegal search; (2) the stop leading up to the arrest was unlawful because the officers did not have reasonable suspicion; and (3) Herrera was entitled to relief because, after exclusion of the evidence found in the vehicle, the state was left with no evidence that the Navigator was contraband. State v. One (1) 2004 Lincoln Navigator, No. 13–1300484–CV, 2014 WL 4262636, at *4–8 (Tex.App.–Corpus Christi Aug. 28, 2014) (mem.op.). This Court granted review to decide whether an illegal seizure requires exclusion in a Chapter 59 civil-forfeiture proceeding. We hold that it does not. Accordingly, we reverse and remand.
Code of Criminal Procedure article 59.03(b)(4) provides that “[s]eizure of property subject to forfeiture may be made without warrant if ... seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest.”
I
Texas law permits the state to obtain by seizure and forfeiture certain property qualifying as “contraband.” See CODE CRIM. PROC. art. 59.02(a). To exercise its forfeiture power, the state must commence a forfeiture proceeding under the Code of Criminal Procedure. See id. art. 59.04. Though found in the criminal-procedure code, such forfeiture proceedings are distinctly civil in nature: “parties must comply with the rules of pleading as required in civil suits,” id. art. 59.05(a), cases “proceed to trial in the same manner as in other civil cases,” and “[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture,” id. art. 59.05(b). If the state carries its burden and “the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state.” Id. art. 59.05(e).
Yet while forfeiture proceedings are civil in nature, they frequently arise out of criminal proceedings in which property was seized. At first glance, therefore, they often appear to implicate the constitutional right against unreasonable searches and seizures. See U.S. CONST. amend. IV ; TEX. CONST. art. I, § 9. In the criminal-law context, this right is generally vindicated by the “exclusionary rule,” which provides for suppression of evidence obtained in an unconstitutional search or seizure. But the application of this judge-made rule is usually confined by its rationale to the criminal-law context—“[t]he criminal is to go free because the constable has blundered.” See People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). It does not normally apply in civil cases.
In this case, the court of appeals did not address whether the exclusionary rule applies in civil-forfeiture proceedings, holding only that “the civil[-]forfeiture statute ‘does not authorize illegal police conduct,’ ” and thus that “ ‘[r]egardless of whether the exclusionary rule applies, law enforcement agents cannot seize property if their actions leading up to the seizure are illegal.’ ” Lincoln Navigator, 2014 WL 4262636, at *4 (quoting State v. Thirty Thousand Six Hundred Sixty Dollars & no/100 ($30,660.00), 136 S.W.3d 392, 397 (Tex.App.–Corpus Christi 2004, pet. denied) (en banc)). While illegal actions leading up to a search or seizure generally require exclusion under the exclusionary rule in a criminal proceeding, this Court has “never decided whether the exclusionary rule applies to civil[-]forfeiture proceedings.” $ 217,590.00, 18 S.W.3d at 632 n. 1 ; see also Hardy v. State, 102 S.W.3d 123, 129 n. 3 (Tex.2003) (in the civil-forfeiture context, “we have yet to decide whether, if the State lack[s] probable cause to obtain a search warrant, evidence obtained pursuant to that warrant might be subject to suppression under the exclusionary rule.”).
At least one other court has followed the Thirteenth Court of Appeals. See $763.30 U.S. Currency v. State, No. 09–05–437–CV, 2007 WL 474967, at *1 (Tex.App.–Beaumont Feb. 15, 2007, no pet.) (mem.op.). But see State v. One Piece of Prop. Located at 212 Sendero Drive, Garland, No. 05–92–02292–CV, 1993 WL 96398, at *3 (Tex.App.–Dallas Mar. 31, 1993, no writ) (not designated for publication) (holding “that the statute does not require that the State must prove how the seizure was made in order to obtain forfeiture of the property.”). A number of other courts of appeals have assumed, without deciding, that the exclusionary rule applies in civil-forfeiture proceedings. See, e.g., $18,325.00 in U.S. Currency v. State, No. 11-13-00253-CV, 2015 WL 3799296, at *1 (Tex.App.–Eastland June 18, 2015, no pet.) ; State v. Five Thousand Five Hundred Dollars in U.S. Currency, 296 S.W.3d 696, 701 n. 2 (Tex.App.–El Paso 2009, no pet.) ; $13,720.00 in U.S. Currency v. State, No. 05–03–01670–CV, 2004 WL 2294389, at *1 (Tex.App.–Dallas Oct. 13, 2004, no pet.) (mem.op.).
“Evidence obtained as the result of an unreasonable search and seizure is subject to exclusion in a criminal proceeding.” State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 632 n. 1 (Tex.2000). In Texas, the exclusionary rule has been codified and expanded: “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Code Crim. Proc.art. 38.23(a) (emphasis added). Each exclusionary rule generally applies only to criminal proceedings.
Deciding that law enforcement cannot illegally seize property subject to forfeiture is therefore not the end of the analysis. Even assuming that Chapter 59 prohibits unlawful seizure, concluding that an exclusionary rule (or some functional equivalent) applies in civil-forfeiture proceedings remains a necessary prerequisite to exclusion. Cf. Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“The question whether the exclusionary rule's remedy is appropriate in a particular context has long been regarded as an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” (emphasis added)). In other words, merely finding that the law enforcement agents' search (conduct ) was illegal—or otherwise not in compliance with Chapter 59—neither automatically nor inevitably compels the conclusion that exclusion is the proper remedy . Thus, after finding the officers' conduct to be illegal, the court of appeals should have asked whether exclusion was the proper remedy. In declining to do so, the court of appeals prematurely assumed that illegality equates to inadmissibility. See Lincoln Navigator, 2014 WL 4262636, at *4. The question of whether the court of appeals' assumption is nonetheless correct is now squarely before this Court.
II
“Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures and require the exclusion of evidence obtained in violation of that prohibition in criminal trials.” $ 217,590.00, 18 S.W.3d at 636 (Abbott, J., concurring) (emphasis added). The Fourth Amendment prohibition has long been vindicated by the exclusionary rule: “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ; see also Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Texas, an expanded version of that common-law rule has been codified to ensure that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” CODE CRIM. PROC. art. 38.23(a) (emphasis added).
By its express terms, article 38.23 applies only to criminal cases. See id. But less clear is whether the constitutional exclusionary rule—as a common-law, judge-made rule—might have broader application. See Hardy, 102 S.W.3d at 129 n. 3. That rule, of course, appears nowhere in our state constitution, nor is it “a self-executing mandate implicit in the Fourth Amendment itself.” See Davis v. United States, 564 U.S. 229, 237, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). Rather, it is a judge-made “deterrent sanction that bars the prosecution from introducing evidence obtained by way of a [constitutional] violation.” Id. at 231–32, 131 S.Ct. 2419. Although courts have “applied the exclusionary rule primarily to deter constitutional violations,” it has also been held to apply to “exclude[ ] evidence ar[ising] directly out of statutory violations that implicate[ ] important Fourth and Fifth Amendment interests.” Sanchez–Llamas v. Oregon, 548 U.S. 331, 348, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006).
To be sure, “[t]he wrong condemned by the [Fourth] Amendment is ‘fully accomplished’ by the unlawful search or seizure itself,” United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) —“the governments' use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution,” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). Exclusion, therefore, does not protect the defendant against a constitutional violation, and it “is neither intended nor able to ‘cure the invasion of the defendant's rights which he has already suffered.’ ” Leon, 468 U.S. at 906, 104 S.Ct. 3405 (quoting Stone v. Powell, 428 U.S. 465, 540, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (White, J., dissenting)). Instead, “[t]he rule's sole purpose ... is to deter future Fourth Amendment violations.” Davis, 564 U.S. at 236–37, 131 S.Ct. 2419 ; see also Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (“The rule is calculated to prevent, not to repair.”).
“Despite its broad deterrent purpose,” however, “the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Calandra, 414 U.S. at 348, 94 S.Ct. 613 ; see also Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“Suppression of evidence ... has always been [a] last resort, not [a] first impulse.”). Because the rule's “sole purpose” is to deter certain constitutional violations, the United States Supreme Court has carefully “limited the rule's operation to situations in which this purpose is ‘thought most efficaciously served’[—][w]here suppression fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly unwarranted.’ ” Davis, 564 U.S. at 237, 131 S.Ct. 2419 (original alterations and citations omitted). But deterrent value alone, while a “necessary condition for exclusion,” is not a sufficient one. Hudson, 547 U.S. at 596, 126 S.Ct. 2159. Indeed, “the exclusionary rule has never been applied except ‘where its deterrence benefits outweigh its substantial social costs.’ ” Id. at 594, 126 S.Ct. 2159 (citation omitted). And the social costs are indeed substantial:
Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.”
Davis , 564 U.S. at 237, 131 S.Ct. 2419 (citations omitted). While these social costs are most often framed in the criminal context, the underlying rationale extends to the civil context: the application of the exclusionary rule hampers some of the judiciary's essential functions—fact-finding and truth-seeking. See Leon , 468 U.S. at 907, 104 S.Ct. 3405 (“ ‘Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.’ ” (quoting United States v. Payner , 447 U.S. 727, 734, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) )); see also United States v. Janis, 428 U.S. 433, 448–49, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (“Jurists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence.”); United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) (“There is no gainsaying that arriving at the truth is a fundamental goal of our legal system.”).
“Recognizing these costs, [the Supreme Court] ha[s] repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.” See Scott, 524 U.S. at 363, 118 S.Ct. 2014 (declining to apply rule in parole-revocation hearing); INS v. Lopez–Mendoza, 468 U.S. 1032, 1050, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (declining to apply rule in civil-deportation proceeding); Janis, 428 U.S. at 454, 96 S.Ct. 3021 (declining to apply rule in civil-tax proceeding); Calandra, 414 U.S. at 351–52, 94 S.Ct. 613 (declining to apply rule in grand-jury proceeding). In this case, as in those, the exclusion of admittedly relevant evidence imposes a substantial social cost. Here, the vehicle and the evidence found within it are indisputably relevant—if the state shows by a preponderance of the evidence that the vehicle was “used or intended to be used in the commission of” a felony under the Controlled Substances Act, then it is “contraband.” See CODE CRIM. PROC . arts. 59.01(2)(B)(i) & 59.05(b). If it qualifies as contraband under Chapter 59, then it “is subject to seizure and forfeiture.” See id. art. 59.02(a). Here, therefore, the “evidence sought to be excluded is ... reliable and ... the most probative information bearing” on the case; it “in no way [has] been rendered untrustworthy by the means of its seizure.” See Powell, 428 U.S. at 490, 96 S.Ct. 3037 (citation and internal quotation marks omitted). Accordingly, application of the exclusionary rule in this context would result in exclusion of evidence central to “the truth-finding functions of judge and jury.” See Payner, 447 U.S. at 734, 100 S.Ct. 2439.
Additionally, applying the exclusionary rule here ostensibly results in returning a vehicle “used or intended to be used” in the commission of drug crimes to its owner. See Code Crim. Proc.art. 59.01(2)(B)(i). Applying the rule to Chapter 59, therefore, would likely have the undesirable effect of politely handing such vehicles—or computers, money, weapons, or whatever else—back to those who might put them to criminal use. Cf. Hudson, 547 U.S. at 591, 126 S.Ct. 2159 (noting that one of the substantial social costs of the rule that cautions against its expansion is “setting the guilty free and the dangerous at large”); Lopez–Mendoza, 468 U.S. at 1047, 104 S.Ct. 3479 (“The constable's blunder may allow the criminal to go free, but we have never suggested that it allows the criminal to continue in the commission of an ongoing crime.”).
And the deterrence rationale—at least as it relates to civil forfeiture in Texas—is marginal at best. Most importantly, the Fourth Amendment and state exclusionary rule together apply to broadly exclude illegally obtained evidence in the criminal-law context. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (applying U.S. CONST. amend. IV ); CODE CRIM. PROC. art. 38.23. Thus, “local law enforcement official[s][are] already ‘punished’ by the exclusion of [illegally obtained] evidence in [both] state ... [and] federal criminal trial[s], ... so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated.” See Janis, 428 U.S. at 448, 96 S.Ct. 3021. “If the exclusionary rule is the ‘strong medicine’ that its proponents claim it to be, then its use in [the criminal-law context] must be assumed to be a substantial and efficient deterrent.” Id. at 453, 96 S.Ct. 3021. Given this “substantial and efficient deterrent,” any additional deterrence provided by also applying the rule in the civil-forfeiture context is marginal and “surely does not outweigh the cost to society of extending the rule to that [context].” See id. at 453–54, 96 S.Ct. 3021.
Moreover, under article 59.05(d), dismissal or acquittal in an underlying criminal case creates a presumption of nonforfeitability, which indirectly imports some of the exclusionary rule's deterrent effect. See Code Crim. Proc.art. 59.05(d) ; see also $ 30,660.00, 136 S.W.3d at 413 (Castillo, J., dissenting).
To be sure, there are other effective deterrents to police misconduct. Potential “civil liability [under § 1983] is an effective deterrent here,” as is the “increasing professionalism of police forces, including a new emphasis on internal police discipline.” See Hudson, 547 U.S. at 598, 126 S.Ct. 2159. Indeed, under § 1983, courts may award punitive damages (in addition to compensatory damages) “when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (emphasis added); see also Williams v. Kaufman Cty ., 352 F.3d 994, 1015 (5th Cir.2003) (concluding that “ignoring the limited scope of search authorized by [a] warrant, and disregarding the Fourth Amendment rights of plaintiffs as long-established by the Supreme Court and recognized by this Court, constitutes reckless indifference to such rights” and thus holding punitive damages were appropriate). Such “punitive damages not only punish [the officer] for his conduct; they serve as instructive warnings to [others]”—they deter. See Williams, 352 F.3d at 1016.
Herrera argues that the Supreme Court's decision in One 1958 Plymouth Sedan v. Pennsylvania, where the Court held that the exclusionary rule applied to a civil-forfeiture statute that was “criminal in nature,” compels a different conclusion. See 380 U.S. 693, 697–98, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). We disagree. The forfeiture provision in Plymouth Sedan “requir [ed] the determination that the criminal law ha[d] been violated.” See id. at 701, 85 S.Ct. 1246. This, in addition to the fact that the forfeiture could “result in even greater punishment than the criminal prosecution,” led the Court to find that “the forfeiture [was] clearly a penalty for the criminal offense.” See id. at 700–01, 85 S.Ct. 1246. The Court thus considered that civil-forfeiture provision “criminal,” id. —even noting 10 years later that it “never has applied [the exclusionary rule] to exclude evidence from a civil proceeding, federal or state,” Janis, 428 U.S. at 447, 96 S.Ct. 3021. In Janis, the Court confirmed a narrow reading of Plymouth Sedan, explaining that it had “expressly relied on the fact that ‘forfeiture is clearly a penalty for the criminal offense.’ ” See id. at 447 n. 17, 96 S.Ct. 3021 (quoting Plymouth Sedan, 380 U.S. at 701, 85 S.Ct. 1246 ). And “[a]lthough there is language in [the Court's] cases to the contrary,” it has made clear that “civil in rem forfeiture is not punishment of the wrongdoer for his criminal offense.” See United States v. Ursery, 518 U.S. 267, 293, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (Kennedy, J., concurring) (citing Plymouth Sedan, 380 U.S. at 700, 85 S.Ct. 1246 ).
Indeed, the Plymouth Sedan Court “consider[ed] the important question of whether the constitutional exclusionary rule ... applies to forfeiture proceedings of the character involved here . Id. at 696, 85 S.Ct. 1246 (emphasis added). It did not decide whether the exclusionary rule applied to all civil-forfeiture proceedings.
Importantly, moreover, the legal and jurisprudential landscapes have changed significantly since Plymouth Sedan was decided in 1965, weakening some of the opinion's underpinnings. For one thing, Plymouth Sedan was decided at “a time when [the Supreme Court's] exclusionary-rule cases were not nearly so discriminating in their approach to the doctrine,” yet more recently the Court has “abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” See Davis, 564 U.S. at 237, 238, 131 S.Ct. 2419. Thus, the Court's more recent jurisprudence, and its now well-established cost-benefit analysis, controls our analysis. And, as discussed, the “deterrences against [illegal searches] are substantial—incomparably greater than the factors deterring warrantless entries when Mapp [and Plymouth Sedan ] [were] decided.” See Hudson, 547 U.S. at 599, 126 S.Ct. 2159.
Finally, in Plymouth Sedan, the forfeiture proceeding's “object, like a criminal proceeding, [was] to penalize for the commission of an offense against the law.” See 380 U.S. at 700, 85 S.Ct. 1246. Chapter 59 forfeitures, on the other hand, are expressly civil and non-punitive; indeed, “[i]t is the intention of the legislature that asset forfeiture is remedial in nature and not a form of punishment.” See CODE CRIM. PROC. art. 59.05(e) (emphasis added). Article 59.01(2)(B) defines as contraband items “used or intended to be used in the commission of” specific crimes. While this provision certainly relates to criminal activity, it does not require any proof that a person committed a crime—it only requires that the state prove by a preponderance of the evidence that the property is contraband. See id. arts. 59.01(2), 59.02(a), 59.05(b). In other words, “[a] [Chapter 59] civil[-]forfeiture action is an in rem proceeding against contraband, ” not a quasi-criminal proceeding against a person. See State v. Silver Chevrolet Pickup, 140 S.W.3d 691, 692 (Tex.2004) (per curiam) (emphasis added); CODE CRIM. PROC. art. 59.05(d) (“A final conviction for an underlying offense is not a requirement for forfeiture under this chapter.”). In light of the Court's more recent jurisprudence narrowly confining the exclusionary rule to those criminal cases where it has actual deterrent value, therefore, we hold that the exclusionary rule does not apply to Chapter 59 proceedings. In this context, because “suppression [of illegally-seized evidence under Chapter 59] fails to yield ‘appreciable deterrence,’ ” constitutional exclusion is unwarranted. See Davis, 564 U.S. at 237, 131 S.Ct. 2419.
III
In addition, Chapter 59 does not effectively import an exclusionary rule. Chapter 59 provides that “[i]f the court finds that all or any part of the property is subject to forfeiture, the judge shall forfeit the property to the state.” CODE CRIM. PROC. art. 59.05(e) (emphasis added). As already noted, “contraband” is “subject to ... forfeiture,” id. art. 59.02(a), and includes any property “used or intended to be used in the commission of ... any felony under [the] Texas Controlled Substances Act,” id. art. 59.01(2)(B)(i). A forfeiture proceeding “proceed[s] to trial in the same manner as in other civil cases,” and “[t]he state has the burden of proving by a preponderance of the evidence that property is subject to forfeiture.” Id. art. 59.05(b). While article 59.04 contains various notification and procedural requirements with which the state must comply before a judge allows the forfeiture proceeding to move forward, id. arts. 59.04(a)–(l ), for forfeiture to be proper, the statute requires only that the state prove by a preponderance of the evidence that the property at issue is contraband.
As part of this burden, the state must show “probable cause for seizing a person's property,” which we have defined as “a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.” Fifty–Six Thousand Seven Hundred Dollars in U.S. Currency v. State ($56,700), 730 S.W.2d 659, 661 (Tex.1987) (internal quotation marks omitted). This “means that the State must prove, considering all the evidence, that it was more reasonably probable than not that the seized money was either intended for use in, or derived from, a violation of the offenses enumerated in the forfeiture statute.” See $9,050.00 in U.S. Currency v. State, 874 S.W.2d 158, 161 (Tex.App.–Houston [14th Dist.] 1994, writ denied) ; see also State v. $11,014.00, 820 S.W.2d 783, 784–85 (Tex.1991) (per curiam). “Once the State has established probable cause to initiate a forfeiture proceeding, the State has met its burden....” Hardy, 102 S.W.3d at 129. While a property owner may seek summary judgment on the ground that the state does not have probable cause, to prevail he must “conclusively prove[ ] that none of the officers had [a reasonable] belief [that a substantial connection exists between the property and criminal activity].” See State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 293 (Tex.2013). Only then does “the burden shift to the State to respond and raise a material fact question about whether they did.” See id.
But, as Herrera points out, the statute also appears to limit how the state may seize the property to be forfeited. As is relevant here, article 59.03(b) provides that “[s]eizure of property subject to forfeiture may be made without warrant if ... the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest.” Id. art. 59.03(b)(4). The state argues that article 59.03 is “a grant of authority to peace officers, ensuring they are statutorily authorized to seize contraband in addition to their other powers.” Therefore, it contends, article 59.03 does not speak at all to the elements of forfeitability. Herrera, on the other hand, argues that article 59.03 must be read to limit the officers' authority and “[t]he state is therefore required to show that the taking of property meets [article 59.03's] requirements to be labeled a ‘seizure’ for forfeiture purposes.”
As a preliminary point, we note a fundamental error in the court of appeals' analysis and holding. The court of appeals held that “[o]nce the trial court granted the motion to suppress, the State could not present any evidence regarding the sole matter that was at issue in the proceeding: whether the property was subject to forfeiture.” Lincoln Navigator, 2014 WL 4262636, at *8. Thus, because the court of appeals held the stop leading up to the arrest was unlawful, it also found that the evidence found in the subsequent inventory search had to be excluded. See id. The court of appeals reads article 59.03(b) too broadly. Article 59.03(b) only concerns itself with the “[s]eizure of property subject to forfeiture”; it does not purport to limit officer conduct as to evidence obtained for the purpose of proving that property is subject to forfeiture. Therefore, regardless of article 59.03(b)'s potential limiting effect, it does not preclude the state's use of evidence—whether seized lawfully or not—to prove that property is subject to forfeiture.
That said, the question is whether the “may be made” language in article 59.03(b) indeed limits officer conduct. The state argues that “may” as used in the statute is permissive rather than limiting—and so that term truly means “may” rather than “may only.” But reading “may” as not limiting tends to render the provision meaningless. If a peace officer may seize lawfully, but may also seize unlawfully, then articles 59.03(a) and (b) seemingly do nothing—in other words, if an officer may seize unlawfully, the legislature would not need to explicitly provide power for them to seize lawfully. We generally do not read statutory provisions so as to render them without effect. See Houston Belt & Terminal Ry. v. City of Houston, 487 S.W.3d 154, 161–62 (Tex.2016). Looking to Chapter 59's definition of “seizure” casts further doubt upon the state's reading. A “seizure” is defined as a restraint of property under article 59.03(a) or (b). CODE CRIM. PROC. art. 59.01(8). And so, it would seem, a “seizure” under Chapter 59 includes only lawful seizures (i.e., seizures performed in accordance with article 59.03(a) or (b) )—the inclusion of authority to lawfully seize implies the exclusion of authority to unlawfully seize. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Herrera therefore appears to be at least partially correct: the state is not empowered by Chapter 59 to unlawfully seize property subject to forfeiture.
But what then? Even if the state is not statutorily empowered to unlawfully seize contraband, (and it is not), what is the remedy for failure to comply with article 59.03(b) ? Herrera argued in his motion to suppress—and argues now—that the remedy is exclusion. Yet what is the source of this exclusionary remedy? As discussed above, it is not the Fourth Amendment. The constitutional rule applies only when its deterrence benefits outweigh its heavy social costs, and that is not the case here. Nor does Chapter 59 provide for exclusion. To start, article 59.03(b) deals with seizure of the property to be forfeited; it does not concern itself with other evidence that might be used to prove property is subject to forfeiture. Thus, we reject Herrera's argument that evidence found during the seizure should be excluded under article 59.03(b). Moreover, while article 59.03 appears to limit officer conduct as to seizure of property subject to forfeiture, it does not provide a remedy—much less exclusion—for a violation of that apparent limitation. Articles 59.03(a) and (b) provide for how property subject to forfeiture may be seized. Article 59.03(c) requires the peace officer who seized the property to provide the attorney representing the state with a sworn statement including, among other things, “a list of the officer's reasons for the seizure.” In the forfeiture proceeding, that attorney must then “attach to the notice [of seizure and intended forfeiture] the peace officer's sworn statement.” See CODE CRIM. PROC. art. 59.04(b). Yet, despite providing fairly detailed notice requirements such as these, Chapter 59 never mentions excluding or suppressing property subject to forfeiture, even if such property is unlawfully seized (and, indeed, it would be anomalous to suppress the named party in a Chapter 59 proceeding). Nor does it require that the state independently prove compliance with article 59.03. Instead, article 59.05(b) simply requires the state to prove by a preponderance of the evidence that the property is contraband (and thus subject to forfeiture), which includes a showing of “probable cause”—as we have previously defined that term in the civil-forfeiture context—pursuant to our state constitution. See $ 90,235, 390 S.W.3d at 293. In most cases, once the state meets that burden, “the judge shall forfeit the property to the state.” CODE CRIM. PROC. art. 59.05(e). Nowhere in Chapter 59 is the forfeiture proceeding itself predicated on seizure; rather, it is predicated on whether the property is contraband. See id. art. 59.05(b).
An analysis of whether an exclusionary rule should apply in this context would likely look very similar to the analysis under the Fourth Amendment, discussed above. Even if we were to engage in such an analysis, therefore, the analysis would merely mirror that of whether the Fourth Amendment's exclusionary rule applies.
Of course, the Code of Criminal Procedure does contain an exclusionary rule, but that rule only applies in criminal proceedings. See id. art. 38.23(a). Had the legislature intended for an exclusionary rule to apply in civil-forfeiture proceedings, it certainly knew how to effectuate that intent. But Chapter 59 says nothing about exclusion, and “[t]o supply omissions transcends the judicial function.” See Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566 (1926) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012) (“The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it.”). We therefore imply neither rights nor corresponding remedies unless the statute clearly intends “to confer individual rights upon a class of beneficiaries”; indeed, “where the text and structure of a statute provide no indication that [the legislature] intends to create new individual rights, there is no basis for a [remedy].” Cf. Gonzaga Univ. v. Doe, 536 U.S. 273, 285–86, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). While article 59.03(b) appears to limit officer conduct, there is no indication that the legislature intended to import the drastic remedy of exclusion (for either evidence or the property subject to forfeiture) for an act outside of such limitation. Simply put, exclusion is “a matter not covered” in Chapter 59. There is no absurdity without it, and we will not read it in.
Indeed, articles 59.03(a) and (b) simply parrot the constitutional limitations on an officer's general authority to seize property. See Code Crim. Proc.art. 59.03(a) –(b) ; U.S. Const.amend. IV; Tex. Const.art. I, § 9. In this sense, these provisions are unremarkable—the legislature would certainly not grant peace officers authority beyond that allowed by the federal and state constitutions. Moreover, because the state is required to show “probable cause” to prove its case, it is certainly arguable that article 59.03 is partially effectuated through that requirement.
Accordingly, we hold that Chapter 59 neither provides for exclusion of illegally obtained evidence nor requires the state to prove lawful seizure as a prerequisite to commencing a forfeiture proceeding. In addition to complying with the procedural requirements of article 59.04, the state's only burden is proving by a preponderance of the evidence that the property is subject to forfeiture, which includes proving probable cause as we have defined that term in the civil-forfeiture context. See $ 90,235, 390 S.W.3d at 293.
IV
Lastly, in the interest of clarity, we note JUSTICE DEVINE 's approach and explain why we choose a different path. Citing “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more”— JUSTICE DEVINE would reverse solely on the legality of the search. Post, at 706 (citing VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex.2007) ). We agree with JUSTICE DEVINE that judicial restraint counsels against deciding unnecessary issues. But neither our opinion nor JUSTICE DEVINE 's decides issues “not necessary” to resolution–in resolving this case, one could decide either that the legality of the search does not preclude forfeiture or that the search was legal. Only in deciding both when one would be sufficient would we violate “the cardinal principle of judicial restraint.” See Woods, 222 S.W.3d at 433. Neither opinion does so: we decide the former; he would decide the latter.But why do we choose the former? To start, our path to resolution avoids the criminal-law question and analysis that is usually beyond our jurisdictional reach: “[u]nder our Constitution, this Court's appellate jurisdiction ‘extend[s] to all cases except in criminal law matters.’ ” See Heckman v. Williamson Cty., 369 S.W.3d 137, 146 (Tex.2012) (quoting TEX. CONST. art. V, § 3 (a)). Here, of course, we have jurisdiction to consider the legality of the search because it arises in a civil-forfeiture proceeding, which is undoubtedly civil. See CODE CRIM. PROC. art. 59.05(b) (“All cases under this chapter shall proceed to trial in the same manner as in other civil cases.”). Yet the very fact that our jurisdiction does not ordinarily extend to criminal matters—where the “essence of the case” reveals “the issues it entails are more substantively criminal [than] civil”—should guide us to exercise caution in addressing such matters unnecessarily. See Heckman, 369 S.W.3d at 146. Here, resolving the constitutional-criminal-procedure question is unnecessary and would prevent us from answering important questions of civil law that can ultimately be decided only by this Court. Accordingly, we choose to instead resolve the important questions surrounding the interpretation and application of Chapter 59 that were—until now—unresolved (or incorrectly resolved) by lower courts.
Sometimes—as we have done in the civil-forfeiture context, see $ 217,590.00, 18 S.W.3d at 632 n. 1, and as Justice Devinedoes here—we assume a view of the law without endorsing it. In some cases, doing so is the prudent choice. See, e.g., id. (“Because both parties in this case presume the exclusionary rule's application, we will assume without deciding that the rule applies.”). In this case—where the parties have extensively briefed and argued over the exclusionary rule's application—assuming the rule's applicability serves only to avoid the question this case squarely presents.
Our resolution of those questions introduces tension with JUSTICE DEVINE 's approach. Admittedly, he articulates a viable path to resolving this case, and we do not take issue with his constitutional-criminal-procedure analysis. However, that analysis presupposes exclusion might be required if a search were conducted illegally. We hold definitively that it is not. Under our holding, trial courts (and this Court) considering civil-forfeiture proceedings in the future will not need to conduct a Fourth Amendment reasonableness inquiry because Chapter 59 contains neither an exclusionary rule nor a procedural prerequisite requiring the state to show a legal search. Accordingly, although JUSTICE DEVINE 's approach may be a viable path to resolution of this case, it is a path that is ultimately inapposite in light of our holding.
This is a good thing. “Judicial restraint cautions that when a case may be decided on a non-constitutional ground, we should rest our decision on that ground and not wade into ancillary constitutional questions.” Woods, 222 S.W.3d at 432. In this case, of course, either path to resolution requires us to address a constitutional question. That said, our path provides finality as to whether the Fourth Amendment exclusionary rule applies in civil-forfeiture proceedings, ostensibly curtailing future constitutional analyses by Texas courts; Justice Devine's path does not.
* * *
We have twice left open whether an exclusionary rule applies in civil-forfeiture proceedings, and today that question is again before us. We hold that neither the Fourth Amendment nor Chapter 59 provides for exclusion in Chapter 59 civil-forfeiture proceedings. Nor does Chapter 59 require that the state show lawful seizure as a procedural prerequisite to commencing a Chapter 59 proceeding. Because the court of appeals held otherwise, we reverse its judgment and remand this case to the trial court for further proceedings consistent with this opinion.
Justice WILLETT filed a concurring opinion.
Justice DEVINE filed a concurring opinion, in which Chief Justice HECHT, Justice JOHNSON, and Justice LEHRMANN joined.
WILLETT, Justice, concurring.
The Court's opinion and JUSTICE DEVINE 's concurrence offer alternative paths for reaching the same destination. I join the Court's opinion because of its comparative jurisdictional and practical advantages.
The jurisdictional advantage of the Court's approach is that it avoids crossing the constitutional line separating our jurisdiction from the Court of Criminal Appeals' jurisdiction. We and our sister high court fulfill substantively distinct roles: “The Court of Criminal Appeals is the court of last resort for criminal matters, ... while this Court is the court of final review for civil matters[.]” Admittedly, the line between civil and criminal matters is sometimes gauzy, and we have previously wrestled with whether cases, though civil by design, involve matters more substantively criminal than civil and thus outside our bailiwick. Ambiguity often makes this determination a vexing one.
In re Reece, 341 S.W.3d 360, 371 (Tex.2011) (citing TEX. CONST. art. V, §§ 3, 5 ).
See, e.g., Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex.2012) ; Harrell v. State, 286 S.W.3d 315 (Tex. 2009).
But not in today's case. The Court's opinion addresses the availability of an exclusionary rule, constitutional or statutory, in civil-forfeiture proceedings. I think it clear that we have jurisdiction to decide whether such a rule applies in civil proceedings. Any criminal law matters are only “incidental[ ]” to that question. By contrast, JUSTICE DEVINE 's approach cycles through and relies upon numerous Court of Criminal Appeals decisions to determine whether the search in this case was reasonable under the Fourth Amendment. That approach places “criminal law [at] the focus of [the] action.” Indeed, criminal law is not only not incidental to the approach; it is the approach. In my view, when we are presented with two paths that diverge in substance—one more civil, the other more criminal—we ought not take the path less traveled by this Court. I therefore join the Court's opinion because it respects the constitutional (if sometimes confounding) divide between us and the Court of Criminal Appeals.
See Heckman, 369 S.W.3d at 149 (quoting Comm'rs' Court v. Beall, 81 S.W. 526, 528 (1904) ).
Harrell, 286 S.W.3d at 318.
The Court's approach also entails two practical advantages. First, courts need never conduct the inquiry espoused by JUSTICE DEVINE 's approach. That is, even if a search is unreasonable, evidence obtained pursuant to that search is admissible in civil-forfeiture proceedings. This is so because no exclusionary rule exists to prevent the admission of that evidence. By omitting the reasonableness inquiry, the Court's approach thus streamlines the civil-forfeiture proceeding in a way that JUSTICE DEVINE 's approach does not. In addition, the Court's approach resolves an important legal question that JUSTICE DEVINE 's approach would punt. If we decided only that the search in this case was reasonable, we would perpetuate uncertainty in the lower courts as to whether an exclusionary rule applies in civil-forfeiture proceedings. The Court's approach resolves that uncertainty instead of postponing resolution for another day. These practical advantages further commend the Court's approach.
On both jurisdiction and practicality, however, I offer two additional caveats. As to jurisdiction, I have long championed a jurisdictional reboot—trading in our entire Rube Goldberg-designed judicial “system” for a revamped structure, including a unified high court. “[T]he sources of Lone Star pride are innumerable,” but “the juris-imprudent design of the Texas judiciary does not make the list.” As to practicality, I have written before that the modern civil-forfeiture regime—its “prevalence, procedures, and profitability” —implicates solemn fundamental principles and “deserves attentive constitutional reconsideration, if not recalibration.”
In re Reece, 341 S.W.3d at 378 (Willett, J., dissenting).
Id.
El–Ali v. State, 428 S.W.3d 824, 825 (Tex.2014) (Willett, J., joined by Lehrmann and Devine, JJ., dissenting to the denial of the petition for review).
Id. at 826.
That said, until the Legislature (1) initiates the amendment process to modernize our helter-skelter judicial system, and (2) addresses imbalances inherent in our civil-forfeiture regime, we dutifully take existing law as we find it.
Or perhaps the Court will be presented with a clean constitutional challenge.
For these reasons, I join the Court's opinion.
Justice DEVINE, joined by CHIEF JUSTICE HECHT, Justice JOHNSON, and Justice LEHRMANN, concurring.
This case concerns the State's petition for civil forfeiture of Miguel Herrera's Lincoln Navigator, in which officers found cocaine. The trial court and court of appeals denied the State's request. 494 S.W.3d 690, 692 (Tex.App.–Corpus Christi 2014). The court of appeals reasoned that the search of Herrera and his vehicle—leading to the discovery of narcotics—was unlawful, and therefore his vehicle could not lawfully be seized or subject to forfeiture. Id. at 692. Because I conclude the officers had reasonable suspicion to stop Herrera and search the driver's area of his vehicle, I believe the court of appeals' judgment must be reversed. Accordingly, although I do not reach whether illegally obtained evidence should be excluded in civil forfeiture proceedings, I concur in the Court's judgment.
I
On November 3, 2010, Texas Department of Public Safety Agent Stephen West learned of an upcoming drug deal. A confidential informant told Agent West that a Hispanic male would drive a white SUV with shiny rims to Rack Daddy's, a local pool hall. According to the informant—a criminal defendant—the driver would be carrying drugs and was usually armed. Neither Agent West nor his fellow officers had relied on this informant before, and Agent West admitted criminal defendants frequently cooperate to obtain judicial leniency. Agent West testified he believed the informant because he witnessed the informant set up the drug deal:
Q. (By State): And were you listening as this information [about the upcoming drug deal] was relayed to you, when the confidential informant was speaking with the potential drug seller?
A. (By West): Yes, sir, we were.
Q. You were listening to this information?
A. Yes, sir. That's correct.
Q. Via what method?
A. Again, I don't recall at this point if it was made via phone or via text message, but it was confirmed with the cooperating source who was there in our presence.
Later, when asked whether he corroborated what the informant said and why he trusted the informant, Agent West replied:
Nothing was given to suggest otherwise. And when we're witness to them initiating a transaction, we go to the location, wait to see if the information matches up. In this case it did.
....
Being present while the transaction is being discussed, meet here at this location for cocaine, and then I go over there and there this individual is in the vehicle waiting for the transaction to occur, in my mind it's corroborated.
As Agent West explained, the unfolding events all corroborated the informant's statements. Agent West and several other officers promptly drove to Rack Daddy's, taking the informant with them. There, a Hispanic man drove a white Lincoln Navigator with shiny rims into the Rack Daddy's parking lot. According to one officer, “the way that this vehicle parked in the parking lot was not normal with the normal motoring public. It pulled up next to the bar as if it was fixing to do a transaction.” After the informant identified the driver of the Lincoln Navigator as the other party to the drug deal, four of the officers approached the vehicle. Although one officer saw the driver make “a quick motion down towards the floorboard,” another was further behind and said he could not see any furtive movements.
When the officers reached the vehicle, they patted the driver—Miguel Herrera—down and searched the driver's area for weapons. Finding a gun in a compartment under the center console, the officers handcuffed Herrera, searched his criminal history, and arrested him for being a felon in possession of a firearm. They also took his vehicle, performed an inventory search, and discovered cocaine, pills, and a second loaded magazine for the gun.
Pursuant to the Texas civil forfeiture statute—Chapter 59 of the Texas Code of Criminal Procedure—the State filed a petition seeking forfeiture of Herrera's vehicle to the State. In response, Herrera moved to suppress all contraband and other evidence seized from his vehicle. The parties agreed to carry the suppression issue with the trial on the merits of the forfeiture. Accordingly, at a bench trial, the State presented its case-in-chief. But, after the State rested, Herrera asked the Court to rule on its motion to suppress, arguing the evidence clearly established that the officers lacked reasonable suspicion to stop Herrera and search his vehicle.
The trial court granted Herrera's suppression motion and denied the State's forfeiture petition, reasoning that “law enforcement cannot seize property if their actions leading up [to] the seizure are illegal.” The court's written findings emphasized the officers observed only innocent behavior and saw nothing corroborating the informant's predictions of criminal activity. For example, the court concluded the furtive movement seen by one officer “could just have easily been innocent activity.” Although the trial court rejected the officers' interpretation and assessment of the facts, it did not question the credibility of their testimony regarding the facts.
The court of appeals affirmed the trial court's judgment. 494 S.W.3d at 692. It held the officers unlawfully searched Herrera's vehicle because they did not establish the informant's tip was reliable, and that under the Texas civil forfeiture statute, “law enforcement agents cannot seize property if their actions leading up to the seizure are illegal.” Id. at 693 (quoting State v. Thirty Thousand Six Hundred Sixty Dollars & No/100, 136 S.W.3d 392, 397 (Tex.App.–Corpus Christi 2004, pet. denied) (en banc)).
II
Chapter 59 of the Texas Code of Criminal Procedure subjects contraband to seizure and civil forfeiture. TEX. CODE CRIM. PROC. art. 59.02(a). “Contraband” broadly encompasses “property of any nature” that is “used or intended to be used in the commission of ... any felony under” (among other statutes) the Texas Controlled Substances Act. Id. art. 59.01(2)(B)(i). A peace officer may seize contraband subject to forfeiture without a warrant in certain circumstances, such as when “the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest.” Id. art. 59.03(b)(4). The State and Herrera dispute whether the officers' search of Herrera's vehicle was lawful. They also question (1) whether Herrera's vehicle would be subject to civil forfeiture if the officers' search of the vehicle was unlawful, and (2) whether the Fourth Amendment exclusionary rule requires illegally obtained evidence to be suppressed in a civil forfeiture proceeding.
I believe the search was lawful, and accordingly I need not address whether contraband that is illegally seized is subject to forfeiture, or whether illegally obtained evidence must be suppressed in a civil forfeiture proceeding. See VanDevender v. Woods, 222 S.W.3d 430, 433 (Tex.2007) ( “[T]he cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more–counsels us to go no further.”) (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring)). Importantly, the question of whether the officers' search of Herrera's vehicle was lawful is a civil question, even though it requires reference to authority routinely cited in the criminal context. See TEX. CODE CRIM. PROC. art. 59.05(a), (b), (e) (confirming forfeiture proceedings are civil in nature); see also In re H.V., 252 S.W.3d 319, 323–30 (Tex.2008) (discussing Miranda and other authorities routinely cited in the criminal context in a juvenile case).
The trial court's decision to exclude evidence obtained as a result of a search is reviewed for an abuse of discretion. State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633 (Tex.2000). We defer to the trial court's fact findings if evidence supports them. Id. at 633–34. If so, then we must decide whether the court correctly applied the law to the facts. Id. at 634.
The Fourth Amendment requires that officers possess reasonable suspicion before temporarily detaining someone without a warrant. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex.Crim.App.2011). The officer need not have probable cause, which requires the officer to “be able to pinpoint a particular penal infraction.” Id. at 916. Reasonable suspicion instead only requires that an officer have “specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Id. at 914. This is an objective determination, which disregards the officers' subjective motives and requires an examination of the totality of the circumstances. Id. Thus, even actions that are innocent in and of themselves may create reasonable suspicion: “there may be instances when a person's conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion.” Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997).
Just as an officer may detain a person based on reasonable suspicion that “criminal activity may be afoot,” so too may the officer frisk the person for weapons based on a reasonable belief that the person “may be armed and presently dangerous.” Terry v. Ohio, 392 U.S. 1, 30 (1968). Such a search protects officers and those nearby, id. at 29, and may extend to the passenger area of a vehicle, Michigan v. Long, 463 U.S. 1032, 1049–50 (1983).
On the record before us, the totality of the circumstances supports the officers' reasonable suspicion to frisk Herrera and search the passenger area of his vehicle for weapons. The informant accurately stated that a white SUV with shiny rims, driven by a Hispanic male, would arrive at Rack Daddy's that night, and that the driver would be carrying drugs and was usually armed. While a criminal defendant, like the informant, who is making a quid pro quo trade does not enjoy a presumption of honesty and accuracy, a “tip” from the criminal defendant may nonetheless be coupled with other facts to conclude the “informant is credible or that his information is reliable.” State v. Duarte, 389 S.W.3d 349, 356–58 (Tex.Crim.App.2012). These facts need not be known by every officer; it is the cumulative information possessed by the cooperating officers that determines whether reasonable suspicion exists. Derichsweiler, 348 S.W.3d at 914.
Here, the record shows the officers possessed such facts. Agent West trusted the informant because the informant set up the drug deal in Agent West's presence. Although the court of appeals concluded Agent West merely testified “the source gave the officers information about Herrera when the source was in the presence of the police officers,” 494 S.W.3d at 700 n.10, the record—as discussed above—clearly shows the source set up the transaction in Agent West's presence. Even the trial court understood that Agent West was present, stating orally (though not in its written findings) that:
The evidence the Court heard from West was that he was there when there were some conversations happening between the confidential source and the person who was going to show up.
....
... I don't know what you're talking about, monitoring phone calls and text messages and all that. I mean, if there was a mention of text messages, it must have been brief. But the gist of what the Court received was West was present when conversations occurred. I don't recall whether it was by phone or text.
Agent West's presence as the deal was set up, regardless of the level of detail Agent West observed, made it reasonable for him to credit the informant's statements.
Indeed, the unfolding events all corroborated the informant's statements. That night, the officers watched a Hispanic male drive a white SUV with shiny rims into the Rack Daddy's parking lot, and the informant identified the driver as the person who was to show up with drugs. The driver parked in an area known for drug sales, and one officer saw him make a furtive movement toward the floorboard as they approached. Accordingly, the officers reasonably concluded that Herrera was, had been, or soon would be “engaged in criminal activity.” Derichsweiler, 348 S.W.3d at 914. The officers had reasonable suspicion to temporarily detain Herrera.Furthermore, the informant apprised the officers that Herrera would probably be armed. Because “weapons and violence are frequently associated with drug transactions, the officers reasonably believed that the individual [ ] with whom they were dealing [was] armed and dangerous.” Carmouche v. State, 10 S.W.3d 323, 330 (Tex.Crim.App.2000) (alterations in original) (quoting United States v. Brown, 913 F.2d 570, 572 (8th Cir.1990) ). For their own safety, they were justified in frisking Herrera and searching the passenger area of the vehicle for weapons.
The parties do not dispute that if the officers' search of the passenger area of Herrera's vehicle for his gun was lawful, then the subsequent arrest of Herrera and inventory search of his vehicle were also lawful. Based on the record before us, the contraband and evidence found in Herrera's Lincoln Navigator were lawfully obtained.
* * *
The trial court abused its discretion by granting Herrera's motion to suppress the contraband and other evidence found in his vehicle and denying the State's forfeiture petition. The contraband and other evidence were legally obtained. Accordingly, I concur in the Court's judgment remanding the case to the trial court for further proceedings.