Bartholf, Jill Aleene v. State

Opinion issued June 5, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00588-CR JILL ALEENE BARTHOLF, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 880308 MEMORANDUM OPINION Jill Aleene Bartholf, appellant, pleaded guilty to possession of heroin. The trial court deferred adjudication and placed appellant on two years community supervision. In two points of error, appellant argues that the trial court erred in not granting her motion to suppress evidence because (1) her detention was an illegal Terry stop and (2) the search of her purse was illegal. We affirm. Facts On June 21, 2001, Harris County Sheriff’s deputies were watching a convenience store at 330 West Gulf Bank in Houston because of a tip that drug transactions were taking place at the store. Appellant drove into the parking lot of the convenience store and parked her car. A man, Jerry Cruz, walked up to the driver’s side of her car and spoke with her. Appellant never got out of her car. Cruz went inside the convenience store, came out of the store with nothing in his hands, went to the side of the convenience store, came back from the side of the convenience store holding a plastic grocery bag, and then walked to appellant’s car. Cruz got into the passenger side of appellant’s car. When Cruz got into the car, the officers watching the convenience store pulled their surveillance van up behind the car, preventing appellant from backing out of her parking spot. Five officers got out of the van and approached the car. Cruz was asked to get out of the car and identify himself, and he was arrested for narcotics possession. Appellant was also asked to get out of the car. Deputy Palermo testified that appellant consented orally to a search of her car. He testified that appellant got out of the car with her purse and that he saw “track marks” on the top of her hands. He asked her to roll up her sleeves and show him her arms. Palermo searched appellant’s car, and did not find any evidence of a crime. He testified that appellant consented to a search of her purse; and he further testified that, prior to his asking for consent to search her purse, appellant admitted that she had used heroin in the past and had needles in her purse. Palermo searched appellant’s purse and found three syringes and a bottle cap with a dark colored residue. Appellant testified that when she parked at the convenience store, she got out of her car and saw Cruz. She hugged Cruz and said hello. Cruz asked her if she could give him a ride around the corner. She told him that she could and went into the convenience store to buy cigarettes. She came out of the convenience store after buying her cigarettes and got into her car. Cruz had gone around the corner of the building to get “whatever he needed to take home.” Cruz got into appellant’s car, and as she was pulling out of the parking spot, a van blocked her in. The officers who got out of the van asked Cruz and appellant to get out of the car. Cruz was handcuffed immediately, and appellant was taken 10 feet away from her car. Appellant was asked not to face the car and she was asked questions about drugs. Appellant testified that she was not read her Miranda rights, and she did not feel that she was free to go. She turned around to face her car and noticed that officers were searching it. She was asked to remove her jewelry, roll up her sleeves, and take off her shoes. She was asked if she had ever used drugs, and she said she had in the past. Appellant admitted that she had track marks on her hands. Appellant testified that she did not get out of her car with her purse and did not give the deputies permission to search her car or her purse. Motion to SuppressIn two points of error, appellant argues that the trial court erred in denying her motion to suppress evidence because her detention was an illegal Terry stop and the search of her purse was illegal. Appellant specifically contends that the Terry stop was illegal because the officers did not possess specific, articulable facts which, when coupled with rational inferences from those facts, would lead to the conclusion that she was engaging in criminal activity. She also contends that the search of her purse was illegal because the police officers did not have any specific facts that she was armed and dangerous or, in the alternative, that the State proved by clear and convincing evidence that she freely and voluntarily consented to the search. Standard of Review We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The Court will afford almost total deference to a trial court’s determination of historical facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The fact finder is the sole judge of the witnesses’ credibility and may accept or reject any or all of the witnesses’ testimony. Taylor, 945 S.W.2d at 297. However, when, as here, we are reviewing a mixed question of law and fact, we conduct a de novo review. Guzman, 955 S.W.2d at 89. Terry Stop A police officer may briefly stop a suspicious individual to determine his identity or to maintain the status quo momentarily while obtaining more information. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). Investigative detentions must be reasonably related in scope to the circumstances that justified the interference in the first place. State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). To justify an intrusion, the officer must have specific, articulable facts which, in light of his experience and personal knowledge, together with reasonable inferences from those facts, reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Martinez v. State, 29 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). The information provoking the officer’s suspicions falls into four general categories: information gleaned from first-hand observation by the officer; information obtained from a confidential informant; information provided by a concerned citizen reporting a possible crime in progress or of recent origin; or information provided by an anonymous tipster. Blevins v. State, 74 S.W.3d 125, 130-31 (Tex. App.—Fort Worth 2002, pet. ref’d). Information observed first-hand by a police officer is highly reliable, and, consequently, the investigative stop Fourth Amendment analysis in cases involving first-hand police observation focuses not on reliability, but on whether the information gives rise to a reasonable articulable suspicion. Id. However, anonymous tips fall at the opposite end of the reliability spectrum. Id. A tip by an anonymous informant of undisclosed reliability standing alone rarely will establish the requisite level of suspicion necessary to justify an investigative stop. Id. There must be some further indicia of reliability or some additional facts from which a police officer may reasonably conclude that an investigative stop is justified. Id. Therefore, we must balance the quality of the information against the quantity of information when the information provoking an officer’s suspicion is from an anonymous tipster. Id. Here, the officers were at the convenience store because of an anonymous tip that drug transactions were taking place. The officers saw appellant acting peculiarly by parking at the store, not going into the store, and talking to Cruz through the driver’s side window. Furthermore, Cruz was seen walking into the store after talking to appellant, walking to the side of the store, retrieving a plastic bag, and then getting into appellant’s car. Palermo testified that, based on his training and experience, this chain of events was consistent with a drug transaction. Based on these facts, the officers had reliable information and articulable facts, coupled with their experience and inferences based on the facts, to reasonably suspect criminal activity, justifying the initial Terry stop. We overrule appellant’s first point of error. Purse Search One of the well-established exceptions to the warrant and probable cause requirements of the Fourth Amendment is a search conducted pursuant to consent. Spight v. State, 76 S.W.3d 761, 768 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Constitutional proscriptions against warrantless searches and seizures do not come into play when a person gives free and voluntary consent to a search. Id. Voluntary consent to a warrantless search violates neither the United States or Texas Constitutions, nor the laws of Texas. Id. In order to be valid, consent must “not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S. Ct. 2041, 2048 (1973). Although the United States Constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. Spight, 76 S.W.3d at 768. If the record supports a finding by clear and convincing evidence that consent to search was free and voluntary, we may not disturb that finding. Id. Based upon the testimony, the trial court could have believed that Palermo asked appellant for consent to search her car and purse. The trial court could also have believed that appellant consented to the search. Appellant gave contrary testimony; but the trial court, as the fact-finder, was free to disbelieve her. See Johnson v. State, 68 S.W.3d 644, 652-54 (Tex. Crim. App. 2002) (holding that Johnson consented to the search even though no Miranda warnings were given and no consent to search form was signed). Given these presuppositions, we consider whether the consent was voluntary. In determining whether an accused’s consent to search was voluntary, we look to the totality of the circumstances. Id. at 653. The record shows that Palermo saw track marks on appellant’s hands, appellant told Palermo that she used heroin, and appellant told Palermo that she had needles in her purse. The record further shows that Palermo asked appellant for consent to search her purse and that there was conflicting testimony that she consented orally to that search. No one testified that threats of any kind were made. In reviewing a motion to suppress, we give almost total deference to the trial court’s determination of historical facts. Guzman, 955 S.W.2d at 89. This evidence is sufficient to support the trial court’s determination that appellant’s consent was voluntary. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000). We overrule appellant’s second point of error.Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Hedges, Nuchia, and Keyes. Do not publish. Tex. R. App. P. 47.2(b).