No. 05-11-00334-CR
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
AT DALLAS
THE STATE OF TEXAS,
v.
KENNETH CASHION, Appellee.
On appeal from the 195th Judicial District Court
of Dallas County, Texas
Cause No. F09-30848-N
STATE’S BRIEF
Counsel of Record:
Craig Watkins
Criminal District Attorney
Dallas County, Texas
Buford H. Robertson, Jr.
Assistant District Attorney
State Bar No. 24010351
Frank Crowley Courts Building
133 N. Industrial Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3625/(214) 653-3643 Fax
Attorneys for the State of Texas
5th Court of Appeals
FILED: 9/15/11
14:00
Lisa Matz, Clerk
The State Requests Oral Argument
IDENTITIES OF PARTIES AND COUNSEL
APPELLANT: THE STATE OF TEXAS
Trial Counsel:
District Attorney Craig Watkins
Assistant District Attorney Danielle Uher
Appellate Counsel:
District Attorney Craig Watkins
Assistant District Attorney Michael R. Casillas
Assistant District Attorney Buford H. Robertson
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Industrial Blvd., LB-19
Dallas, Texas 75207-4399
APPELLEE: KENNETH CASHION
Trial Counsel:
Josh Webber
6510 Abrams Road, Suite 260
Dallas, Texas 75231
Appellate Counsel:
Same
TRIAL COURT
194th Judicial District Court of Dallas County, The Honorable Andrew J.
Kupper, Presiding Judge (by assignment)
ii
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ............................................... ii
TABLE OF AUTHORITIES ....................................................................... iv
STATEMENT OF THE CASE .................................................................... 1
STATEMENT OF FACTS .......................................................................... 1
STATEMENT OF THE ISSUES ................................................................. 2
SUMMARY OF THE ARGUMENT .............................................................2
ARGUMENT .............................................................................................2
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
MOTION TO SUPPRESS .........................................................................2
PRAYER................................................................................................. 14
CERTIFICATE OF SERVICE................................................................... 15
iii
TABLE OF AUTHORITIES
Federal Cases
Colorado v. Bertine,
479 U.S. 367 (1987) ....................................................................... 9, 10
Florida v. Wells,
495 U.S. 1 (1990) .................................................................................9
Illinois v. Lafayette,
462 U.S. 640 (1983) .........................................................................8, 9
Maryland v. Macon,
472 U.S. 463 (1985) ........................................................................... 11
Scott v. United States,
436 U.S. 128 (1978) ........................................................................... 11
South Dakota v. Opperman,
428 U.S. 364 (1976) ....................................................................... 8, 10
Terry v. Ohio,
392 U.S. 1 (1968) ...............................................................................11
Whren v. United States,
517 U.S. 806 (1996) ........................................................................... 11
State Cases
Balentine v. State,
71 S.W.3d 763 (Tex. Crim. App. 2002) .................................................7
Benavides v. State,
600 S.W.2d 809 (Tex. Crim. App. 1980) ...............................................8
Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000) .................................................7
Delgado v. State,
718 S.W.2d 718 (Tex. Crim. App. 1986) ...............................................8
Evers v. State,
576 S.W.2d 46 (Tex. Crim. App. 1978) .................................................9
iv
Garza v. State,
137 S.W.3d 878 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd)......8, 9
Gauldin v. State,
683 S.W.2d 411 (Tex. Crim. App. 1984) ...............................................9
Guillett v. State,
677 S.W.2d 46 (Tex. Crim. App. 1984) ...............................................10
Joseph v. State,
3 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 1999, no pet.) ..............7
Knisley v. State,
81 S.W.3d 478 (Tex. App.—Dallas 2002, pet ref’d)................................7
Mayberry v. State,
830 S.W.2d 176 (Tex. App.--Dallas 1992, pet. ref'd) ...........................10
Moberg v. State,
810 S.W.2d 190 (Tex. Crim. App. 1991) ...............................................9
Moskey v. State,
333 S.W.3d 696 (Tex. App.—Houston [1st Dist.] 2010, no pet.) ........... 13
O’Hara v. State,
27 S.W.3d 548 (Tex. Crim. App. 2000) ...............................................11
Richards v. State,
150 S.W.3d 762 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) . 9, 13
Rothenberg v. State,
176 S.W.3d 53 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd)...... 9, 10
Villarreal v. State,
935 S.W.2d 134 (Tex. Crim. App. 1996) ...............................................7
Statutes
TEX. TRANSP. CODE ANN. §§ 601.051, 601.053 (Vernon 2011) .................13
v
TO THE HONORABLE COURT OF APPEALS:
The State of Texas respectfully submits its opening brief in the
above numbered and referenced cause.
STATEMENT OF THE CASE
Appellee Kenneth Cashion was charged by indictment with
possession of a controlled substance with intent to deliver. (CR:2). On
November 10, 2010, Appellee filed a motion to suppress evidence found
in an inventory of his vehicle. (CR:8). On December 10, 2010, the trial
court conducted a hearing on the motion, and on February 23, 2011, the
trial court entered an order granting the motion. (CR:9). On the State’s
motion, the trial court later filed its findings of fact and conclusions of
law, explaining the basis for its decision. (CR:13-15). The State timely
appealed.
STATEMENT OF FACTS
On July 28, 2009, Appellee was pulled over for rolling through a
stop sign. Upon determining that there were two warrants for Appellee’s
arrest, the police officer took Appellee into custody.
The officer
impounded Appellee’s vehicle and performed a required inventory of the
vehicle’s contents.
narcotics.
During the inventory, the officer discovered illegal
Appellee later was charged with possessing a controlled
substance with intent to deliver.
1
STATEMENT OF THE ISSUE
The State’s Sole Issue: Whether the trial court erred in concluding that
the police did not conduct a valid inventory search?
SUMMARY OF THE ARGUMENT
The trial court erred in applying a subjective, as opposed to
objective, standard in determining whether Officer Akins was authorized
to impound, and therefore inventory, Appellee’s vehicle.
Under the
proper objective reasonableness standard, it is plain that Officer Akins
was
authorized
to
impound
and
inventory
Appellee’s
vehicle.
Consequently, the trial court erred in granting Appellee’s motion to
suppress.
ARGUMENT
THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO SUPPRESS
PERTINENT FACTS
Patrick Akins, an Officer with the Grand Prairie Police Department,
testified at the suppression hearing. Officer Akins testified that, on July
28, 2009, he came in contact with Appellee. (RR:8). While parked in his
patrol car, Officer Akins observed Appellee roll through a stop sign and
pull into a gas station adjoining the intersection. (RR:8-9). Officer Akins
pulled in behind Appellee’s vehicle and activated the patrol car’s
emergency lights. (RR:9). Officer Akins then walked up to the driver’s
2
side of Appellee’s vehicle and requested Appellee to produce a driver’s
license and proof of insurance.
(RR:9).
Appellee provided his driver’s
license, but did not provide the officer proof of insurance. (RR:9). At this
point, Officer Akins returned to his patrol car to write Appellee a ticket.
(RR3:9).
As Officer Akins was writing Appellee a ticket, he accessed the
mobile data computer in his patrol car to determine if Appellee’s driver’s
license was valid.
(RR:9-10).
The information that came up on the
computer screen showed that there were warrants for Appellee’s arrest.1
(RR:10). Officer Akins then called his dispatcher and had the dispatcher
call the agency that obtained the warrants to ensure the warrants were
valid. (RR:10). Upon learning that the warrants were valid, Officer Akins
walked back to Appellee’s vehicle and informed him that he was under
arrest. (RR:10).
Officer Akins placed Appellee in custody, handcuffed him, and
placed him in the backseat of the patrol car. (RR:11). Because no one
was available to whom Officer Akins could release the vehicle, he
determined the vehicle needed to be impounded, and then began to
One warrant was for lacking insurance and the other was for displaying a fictitious
operator’s license. (State’s Exhibit No. 2; RR:11).
1
3
inventory the contents of the vehicle. (RR:14, 61-62).2 At some point, a
man came up to Officer Akins and identified himself as Appellee’s son.
(RR:18). Officer Akins walked to his patrol car and asked Appellee if he
wanted to release the vehicle to his son, to which Appellee responded,
“Yeah.”
(RR:18).
Officer Akins decided that he needed to determine
whether the son, Timothy Lilly, had a valid driver’s license and proof of
insurance.
(RR:18).
Officer Akins also concluded that he needed to
document, to some degree, the contents of Appellee’s vehicle to prevent
being blamed if something in the vehicle later went missing.
(RR:18).
Lilly produced a driver’s license, but did not produce any proof of
insurance.
(RR:26, 62).
Because Lilly did not produce proof of
insurance, Officer Akins concluded that he could not release the vehicle
to him. (RR:26, 54).3
Officer Akins resumed the inventory of Appellee’s vehicle and came
across “an unusually large amount of illegal narcotics.”
(RR:18). The
drugs were in a black plastic bag inside of a small jewelry box. (RR:27).
Officer Akins asked Appellee if the drugs were his, and Appellee stated
that he was delivering the drugs for someone.
(RR:28).
Officer Akins
Officer Akins testified that he completed the two-part impoundment slip and the
personal property inventory document, as required by the impoundment policy. (RR:55-56).
2
Officer Akins determined that he could not release the vehicle to Lilly prior to finding
the illegal drugs during the inventory search. (RR:50-51).
3
4
inquired whether Appellee wanted to speak with a detective, and Appellee
responded that he would. (RR:28). Officer Akins had Appellee’s vehicle
towed to the city impound lot and transported Appellee to the Grand
Prairie Police Department. (RR:28).
The Grand Prairie Police Department vehicle impoundment policy
was admitted into evidence at the hearing. The policy, in relevant part,
states:
IMPOUNDING VEHICLES
I.
Police Officers will cause vehicles to be impounded
under the following circumstances:
A.
The driver of the vehicle is arrested and there is no
one available to take control of the vehicle.
1.
Prior to releasing a vehicle to a person in lieu
of impoundment, the arresting officer will
verify the person taking possession of the
vehicle is a licensed driver. . . .
(Defense Exhibit (“D/E”) No. 1, at 2-3). Officer Akins testified that, in
addition to the language above, he had received e-mails from supervising
officers stating that “the spirit of the [impoundment] policy” forbids
releasing a vehicle to an individual who does not have proof of insurance.
(RR:62-63).
Further, section 5.11.07 of the impoundment policy states as
follows:
5
INVENTORY OF PROPERTY WHEN IMPOUNDING VEHICLES
I.
It is the responsibility of officers impounding vehicles to:
A.
Thoroughly inspect and inventory the affected
vehicle’s exterior and interior which includes the
passenger and trunk areas of automobiles and the
passenger and bed areas of trucks (whether the
bed is enclosed or open) for:
1.
II.
All property, personal and otherwise, in an
effort to properly provide for the safekeeping
of all impounded property and to assure the
liability of damaged and/or lost property to
the responsible party.
When inspecting and inventorying vehicles, it is the
officer’s responsibility to open and inventory the
contents of articles such as briefcases, boxes and other
containers that are not secured by locks or by other
devices that would cause damage if opened.
(D/E No. 1, at 6).
The trial court granted the motion to suppress and issued findings
of fact and conclusions of law explaining its decision.
(CR:14-15).
Importantly, the trial court found that “the officers testified truthfully”
and that their credibility was “not in question.”4 (CR:14). The trial court
found that whether Appellee’s son had proof of insurance was irrelevant,
“because Officer Akins was going to perform the ‘inventory search’”
irrespective whether Appellee’s son produced such proof. (CR:15). The
4
In addition to Officer Akins, two other police officers testified at the hearing.
6
trial court concluded that the search of Appellee’s vehicle was an illegal
search. (CR:15).
STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a motion to suppress for
abuse of discretion, giving almost total deference to the trial court’s
determination of historical facts, but reviewing the application of the law
de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002);
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Thus, if
the issue involves the credibility of a witness, making the evaluation of
that witness’s demeanor important, this Court must defer to the trial
court’s determination of the facts. Joseph v. State, 3 S.W.3d 627, 633
(Tex. App.—Houston [14th Dist.] 1999, no pet.); see also Carmouche, 10
S.W.3d at 327. Reviewing a trial court’s ruling on a motion to suppress,
this Court must review the record and all reasonable inferences in the
light most favorable to the ruling, and sustain the ruling if it is
reasonably supported by the record and is correct under any theory of
law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.
Crim. App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex. App.—
Dallas 2002, pet ref’d).
7
INVENTORY SEARCHES
A police officer’s inventory of the contents of an automobile is
permissible under the Fourth Amendment if conducted pursuant to a
lawful impoundment of the vehicle. South Dakota v. Opperman, 428 U.S.
364, 375-76 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim.
App. 1980); Garza v. State, 137 S.W.3d 878, 882 (Tex. App.—Houston
[1st Dist.] 2004, pet. ref'd). Inventory searches have long been recognized
as an exception to the warrant requirement of the Fourth Amendment.
See Illinois v. Lafayette, 462 U.S. 640 (1983). The State bears the burden
of proving that an impoundment is lawful, and may satisfy this burden
by demonstrating that (1) the driver was arrested, (2) no alternatives
other than impoundment were available to ensure the vehicle’s
protection, (3) the impounding agency had an inventory policy, and (4)
the policy was followed.
Delgado v. State, 718 S.W.2d 718, 721 (Tex.
Crim. App. 1986).
Inventory searches protect (1) the vehicle owner’s property while
the vehicle is in custody, (2) the police against claims or disputes over
lost or stolen property, and (3) the police from potential danger.
Opperman, 428 U.S. at 369; Garza, 137 S.W.3d at 882. An inventory
search must be conducted in good faith and pursuant to a reasonable
standardized police procedure. Colorado v. Bertine, 479 U.S. 367, 374
8
(1987); Rothenberg v. State, 176 S.W.3d 53, 57 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref'd); Garza, 137 S.W.3d at 882. The inventory search
must be designed to produce an inventory of the vehicle's contents and
must not be just a “ruse for a general rummaging in order to discover
incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990); Richards
v. State, 150 S.W.3d 762, 771 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref'd) (en banc).
The State bears the burden of establishing that the police
conducted a lawful inventory search. See Gauldin v. State, 683 S.W.2d
411, 415 (Tex. Crim. App. 1984), overruled on other grounds by Heitman
v. State, 815 S.W.2d 681, 687 (Tex. Crim. App. 1991); Evers v. State, 576
S.W.2d 46, 50 & n.5 (Tex. Crim. App. 1978).
The State satisfies this
burden by demonstrating that (1) an inventory policy exists and (2) the
officers followed the policy. Moberg v. State, 810 S.W.2d 190, 195 (Tex.
Crim. App. 1991) (citing Evers, 576 S.W.2d at 50 & n.5). The State need
not prove that the impoundment and subsequent inventory was the least
intrusive means of securing the vehicle and keeping it safe, nor must the
State prove that
the officers independently
alternatives to impoundment.
investigated
possible
See Bertine, 479 U.S. at 374 (quoting
Illinois v. Lafayette, 462 U.S. at 647); Garza, 137 S.W.3d at 882 (citing
Mayberry v. State, 830 S.W.2d 176, 180 (Tex. App.—Dallas 1992, pet.
9
ref'd)).
In conducting an inventory search, the police may permissibly
search locked and unlocked containers, including glove compartments.
See Opperman, 428 U.S. at 376 n.10; Bertine, 479 U.S. at 374 n.6;
Guillett v. State, 677 S.W.2d 46, 49 (Tex. Crim. App. 1984) (holding no
distinction exists between unlocked glove compartment in Opperman and
Guillett's locked glove compartment, and therefore inventory search
permissibly conducted); Rothenberg, 176 S.W.3d at 57 (permitting
opening of closed and locked containers if done in good faith pursuant to
standard procedure and not done in bad faith or for solely investigatory
purposes).
THE TRIAL COURT IMPROPERLY EMPLOYED A SUBJECTIVE STANDARD
In ascertaining whether an officer’s conduct was reasonable under
the Fourth Amendment, the United States Supreme Court has stated
that the facts are to be reviewed objectively. In Terry v. Ohio, the Court
stated:
The scheme of the Fourth Amendment becomes meaningful
only when it is assured that at some point the conduct of
those charged with enforcing the laws can be subjected to the
more detached, neutral scrutiny of a judge who must evaluate
the reasonableness of a particular search or seizure in light of
the particular circumstances.
And in making that
assessment it is imperative that the facts be judged against
an objective standard: would the facts available to the officer
at the moment of the seizure or the search “warrant a man of
reasonable caution in the belief” that the action taken was
appropriate?
10
Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (emphasis added). In Maryland v.
Macon, the Court stated:
Whether a Fourth Amendment violation has occurred “turns
on an objective assessment of the officer’s actions in light of
the facts and circumstances confronting him at the time,” and
not on the officer’s actual state of mind at the time the
challenged action was taken.
Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (internal cites omitted);
see also O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). In
particular, the Supreme Court noted in Whren v. United States, 517 U.S.
806, 813 (1996), that “subjective intent alone . . . does not make
otherwise lawful conduct illegal or unconstitutional.” Id. at 813 (quoting
Scott v. United States, 436 U.S. 128, 138 (1978)).
In concluding that the inventory search conducted by Officer Akins
was unlawful, the trial court relied primarily on its finding that Officer
Akins would have conducted the inventory regardless whether Lilly
produced proof of insurance.
In so doing, the trial court focused on
Officer Akins’s subjective intent, as opposed to objectively assessing
Officer Akins’s actions in light of the facts and circumstances he faced at
the time.
In essence, the trial court concluded that Officer Akins’s
subjective
intent,
alone,
made
unconstitutional.
11
an
otherwise
lawful
inventory
Instead of relying on Officer Akins’s subjective intent, the trial court
should have determined whether his actions were objectively reasonable
under the totality of the circumstances, i.e., whether the impoundment,
and thus inventory, of the vehicle was reasonable because Appellee’s son
did not produce proof of insurance. Because it failed to apply the proper
objective standard, the trial court erred in concluding the inventory was
improper.
THE POLICE CONDUCTED A VALID INVENTORY SEARCH
In the trial court, Appellee did not contest the scope of the
inventory. Nor did he contest that an officer who impounds a vehicle is
required to conduct an inventory. The crux of this case is whether the
impoundment of the Appellee’s vehicle was proper. The State contends
that section 5.11.04 permitted Officer Akins to impound Appellee’s
vehicle.
Appellee contested that Officer Akins could impound the vehicle
pursuant to section 5.11.04, claiming that Akins could have released the
vehicle to Appellee’s son.
Noting that the policy states that “[p]rior to
releasing a vehicle to a person in lieu of impoundment, the arresting
officer will verify the person taking possession of the vehicle is a licensed
driver,” Appellee argued in the trial court that Officer Akins acted outside
the policy in requiring more from Appellee’s son, in the form of proof of
12
insurance.
However, that the policy requires only one thing does not
necessarily mean that an officer cannot require proof of another. Indeed,
driving without proof of insurance is against the laws of the State of
Texas. See TEX. TRANSP. CODE ANN. §§ 601.051, 601.053 (Vernon 2011).
Further, Officer Akins testified that he had received e-mails from
supervising officers stating that “the spirit of the policy” forbids releasing
a vehicle to an individual who does not have proof of insurance. (RR:6263). Indeed, neither Appellee nor his son provided proof of insurance,
and Officer Akins was aware that Appellee previously had been cited for
lacking proof of insurance.
(RR:9, 11, 26, 62).
Accordingly, section
5.11.04 of the policy authorized Officer Akins to impound Appellee’s
vehicle.
Moreover, Officer Akins’s refusal to release the vehicle to Appellee’s
son was reasonable independent of the impoundment policy. Because
neither Appellee nor Appellee’s son could produce proof of insurance,
Appellee’s vehicle could not be legally driven from the scene.
See
Richards v. State, 150 S.W.3d 762, 769 (Tex. App.—Houston [14th Dist.]
2004, pet. ref’d) (concluding that vehicle could not be released to
passengers who were juveniles, because it was after curfew); Moskey v.
State, 333 S.W.3d 696, 701-02 (Tex. App.—Houston [1st Dist.] 2010, no
pet.) (noting testimony that the police would not have released vehicle
13
because its expired registration, expired inspection sticker, and lack of
proof of insurance rendered the vehicle legally unable to be driven from
the scene).
Because Officer Akins acted reasonably and complied with the
impoundment policy, the trial court erred in granting Appellee’s motion
to suppress.
Accordingly, this Court should reverse the trial court’s
ruling.
PRAYER
The State prays that this Honorable Court will reverse the trial
court’s order granting Appellee’s motion to suppress and remand this
cause for trial on the merits.
Respectfully submitted,
Craig Watkins
Criminal District Attorney
Dallas County, Texas
Buford H. Robertson, Jr.
Assistant District Attorney
State Bar No. 24010351
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 Fax
14
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief will be served
on Appellant’s last counsel of record, Mr. Josh Webber, 6510 Abrams
Road, Suite 260, Dallas, Texas 75231, by electronic mail on September
14, 2011, and by depositing the same in the United States Mail, postage
prepaid, on September 15, 2011.
Buford H. Robertson, Jr.
15