Opinion
No. 05-09-01531-CR
Opinion issued September 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 282nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-50262-S.
Before Justices BRIDGES, FRANCIS, and LANG.
MEMORANDUM OPINION
After the trial court denied his motion to suppress, Cameron Leigh Trigg pleaded guilty to unlawful possession of cocaine. In accordance with the negotiated plea agreement, the trial court assessed punishment at two years in a state jail facility, suspended the sentence, and placed appellant on community supervision for five years and fined him $1500. In two points of error, appellant contends the trial court erred in denying his motion to suppress. We affirm. Appellant and a male friend, Lai Thi Bay, went to Sak's Fifth Avenue, where they looked at a $6,000 watch. According to Michael Gravois, the sales associate who assisted the men, Bay acted as the purchaser while appellant advised him and encouraged him to get the watch. The two men left without purchasing the watch but returned about ten to twenty minutes later. During this second encounter, Bay indicated he wanted to buy the watch and gave Gravois a credit card to complete the transaction. The credit card, however, was in the name of a woman. Gravois asked Bay if he was an authorized user on the card, and Bay said he was. Gravois then asked Bay for identification, and Bay provided a driver's license with a different woman's name. Gravois was suspicious and notified store security of a potential stolen credit card. A loss prevention investigator contacted the card holder, who said Bay was not authorized to use the card. Asset protection officers went to the jewelry counter, handcuffed both Bay and appellant, and took them to the security office. Jay Payton, loss prevention investigator, questioned both appellant and Bay. Although appellant denied any involvement in the credit card fraud, Bay told Payton that he and appellant had taken the credit card and intended to purchase a watch and then sell it for money to buy drugs. Payton said the police were first called within thirty minutes of appellant's detention and again two-and-a-half hours later when they had not responded. At 6 p.m., four hours after appellant was initially detained, Dallas police officer Wade Dews arrived at Sak's. Dews said he first checked to see if either appellant or Bays had outstanding warrants and learned appellant did. Dews arrested appellant on the warrant, searched him, and found cocaine in his shirt pocket. Dews testified he did not make any probable cause determination regarding appellant's role in the credit card fraud. In his first point of error, appellant contends the trial court erred in denying his motion to suppress because the arrest warrant was not supported by an adequate affidavit to establish probable cause. He argues the affidavit is conclusory and fails to show the basis of the affiant's knowledge. Appellant did not raise this particular complaint below; therefore, it is waived. See Tex. R. App. P. 33.1. Regardless, the complaint is without merit. The warrant and supporting affidavit were offered as evidence at the suppression hearing. The affidavit provided, in part:
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe based upon information provided to me by Jason Box, a peace officer of the State of Texas, who personally observed such offense, that one Cameron Leigh Trigg, hereinafter referred to as defendant, on or about the 10th day of July, 2005 and before making and filing of this complaint, did:
Unlawfully drive and operate a motor vehicle upon a public street to-wit: 2300 Midway Road within the corporate limits of the City of Carrollton, Dallas County, Texas, said vehicle was registered in the State of Texas, and defendant did fail to display a valid inspection certificate issued in accordance with the rules and regulations of the department of public safety of the State of Texas on said vehicle, and said offense occurred after the fifth day following the expiration of the period designated for the inspection of said vehicle
Against the peace and dignity of the state.The court of criminal appeals has held an affidavit virtually indisinguishable to the one at issue in this case sufficient to support an arrest warrant. See State v. Martin, 833 S.W.2d 129, 132 (Tex. Crim. App. 1992). In Martin, the affiant swore she had good reason to believe and did believe that the defendant operated a motor vehicle without a valid inspection certificate. The affiant based her belief on information provided by a police officer "who personally observed such offense." The court of criminal appeals concluded that a neutral and detached magistrate could find probable cause from the four corners of the affidavit. Id. at 132. As in Martin, the affiant here includes the place and date the offense occurred and that the information was communicated to him by a peace officer who personally observed the violation. Additionally, the affidavit here, unlike in Martin, contains the street name. The affidavit was not conclusory and was sufficient to permit a neutral and detached magistrate to determine probable cause existed to issue the warrant. See id. at 134. We overrule the first point of error. In his second point of error, appellant contends "any probable cause was stale due to the passage of time from the point of the arrest to the time of the search." Within this point, it appears appellant is actually complaining about a prolonged detention of him by the police. In particular, appellant asserts that once police arrived at Saks, they determined there was no probable cause to arrest him but continued to detain him while they ran a warrants check. He contends this "continued detention" violated his rights under the Fourth Amendment. Officer Dews testified at the suppression hearing that he never made a determination of probable cause as to the credit card offense. Rather, once he arrived at the store, he first ran a warrants check on appellant and that check revealed an outstanding warrant for which appellant was arrested. Contrary to appellant's assertion regarding the sequence of events at the store, the record does not show that police determined no probable cause existed, then illegally held appellant to perform a warrants check. In any event, even if appellant was somehow illegally restrained by the police, discovery of the outstanding warrant, which the trial court concluded was valid, broke the connection between the primary taint and the subsequently discovered evidence. See Lewis v. State, 915 S.W.2d 51, 54 (Tex. App.-Dallas 1995, no pet.) (concluding that even if defendant was illegally detained, discovery of outstanding warrants and legal arrest under those warrants were intervening circumstances which attenuated connection between any illegal detention and discovery of drugs); Welcome v. State, 865 S.W.2d 128, 134 (Tex. App.-Dallas 1993, pet. ref'd) (holding that legal arrest of appellant under outstanding warrant purged taint of any illegality of initial arrest). Because appellant was arrested on an outstanding traffic warrant that the trial court determined to be valid and appellant has not shown to be invalid on appeal, any evidence found during a subsequent search incident to the arrest was admissible. The trial court did not err in denying the motion to suppress. We overrule the second point of error. We affirm the trial court's judgment.