in the Matter of M. R. L.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00636-CV In the Matter of M. R. L. FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-17,024, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING M.R.L., a juvenile, was charged with delinquency for possessing more than one gram and less than four grams of cocaine. See Tex. Fam. Code Ann. § 51.03 (West Supp. 2000); Tex. Health & Safety Code Ann. § 481.115(c) (West Supp. 2000). He filed in juvenile court a motion to suppress evidence, challenging the search that yielded the cocaine. After a hearing, the court denied the motion. Appellant then pleaded guilty to the offense and was placed on probation for one year. On appeal, appellant challenges the denial of his motion to suppress. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND M.R.L. was a back-seat passenger in a car stopped for failing to use a turn signal. Austin Police Officer Jason Bryant testified that after stopping the car he asked the driver and his two passengers to step out of the car. The three were frisked by Bryant or his partner, and no weapons were found. Questioning the driver, Bryant found him to be "extremely nervous and apparently lying" and so placed him under arrest. Incident to the arrest, Bryant commenced a search of the car and found a pistol under the front passenger seat. Bryant testified that finding the gun caused him to fear for his safety, and so he told his partner that they should search the occupants again to make certain they were not carrying weapons. He then searched appellant more thoroughly and found a lump "in his underwear between the area of his genitals and the rectum on the bottom side by his underwear." Bryant said he immediately identified the lump as narcotics. Appellant was then arrested for possession of a controlled substance. A further search of the car revealed a lotion bottle containing cocaine under the driver's seat. The vehicle's driver and other passenger were also arrested. Based on the cocaine found on appellant during Bryant's search, the State filed a petition charging appellant with delinquency for possessing more than one gram but less than four grams of cocaine. Appellant filed a motion to suppress, alleging that the cocaine found was the product of an unconstitutional search. A hearing was held on the motion, and Bryant was the only witness who testified. Following denial of his motion to suppress, appellant pleaded guilty pursuant to a negotiated plea agreement. He was adjudicated delinquent and received a sentence of one year's probation. DISCUSSION Reviewing the denial of this motion to suppress, we look to the standard articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Although we give "almost total deference to a trial court's determination of the historical facts," we review de novo a determination of reasonable suspicion or probable cause. Id. Because the trial court made no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). Thus, we will assume that the trial court made "implicit findings of fact supported in the record that buttress its conclusion." Id. Because the trial court did not specify the reason for its denial of the motion to suppress, its ruling will be upheld if it is correct under any applicable theory of law. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). In his third issue on appeal, appellant complains that the search that uncovered the weapon in the vehicle was unconstitutional. He claims that the driver was arrested only after refusing to consent to a search of his vehicle, and that arresting him for failing to use his turn signal--a traffic offense punishable only by a fine (1)--was constitutionally unreasonable. Because the arrest violated the driver's Fourth Amendment rights against an unreasonable search and seizure, appellant argues, the search of the car conducted incident to that arrest was unconstitutional as well. While appellant raises questions about the validity of the arrest of the driver and subsequent search of his car, (2) the law is clear that he is not in a position to assert the driver's Fourth Amendment rights. In Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court held that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134. The Court specifically rejected appellant's argument that the "victim" of an illegal search and seizure should have the right to assert a violation of the Fourth Amendment rights of a third party. See id. at 136-37. Here, although the gun found in the allegedly unconstitutional search of the car led to appellant's arrest, we do not believe he had such a "legitimate expectation of privacy" in the area underneath the seat of a car in which he was merely a passenger as to give him standing to challenge the legality of the search of that area. We dismiss issue three. In his second issue on appeal, M.R.L. argues that the motion to suppress evidence uncovered in the search of his person should have been granted because the officers lacked probable cause to believe he had committed an offense. Like adults, juveniles are protected from unreasonable searches by the Fourth Amendment of the United States Constitution and by article I, section 9 of the Texas Constitution. See In re A.D.D., 974 S.W.2d 299, 306 (Tex. App.--San Antonio 1998, no pet.). In order for a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances that made procuring a warrant impracticable. See Crane v. State, 786 S.W.2d 338, 346 (Tex. Crim. App. 1990). Probable cause to arrest exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution to believe an offense has been or is being committed. See Guzman, 955 S.W.2d at 87; Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); Leday v. State, 3 S.W.3d 667, 671 (Tex. App.--Beaumont 1999, pet. ref'd). An officer may make a warrantless arrest for any offense committed in his presence or within his view. See Tex. Code Crim. Proc. art. 14.01(b) (West 1977). In the present case, Bryant testified that while searching the vehicle incident to the arrest of its driver, he uncovered a weapon concealed under the front passenger seat of the car. When asked whether that gun was readily accessible to appellant, who was riding in the back seat, Bryant acknowledged that while the gun was not as accessible to the back seat passenger as it was to the person sitting in front, appellant could have reached the gun under the passenger seat from the back of the car. When specifically asked whether appellant "could have been in control of the gun where it was positioned in the car," Bryant answered that he could. In light of this testimony, we conclude that Bryant had probable cause to believe that appellant had committed the crime of unlawful possession of a weapon. See Tex. Penal Code Ann. § 46.05 (West 1994). Appellant argues that probable cause must be particularized to the specific individual and that, lacking some "affirmative link" connecting the gun to appellant, there was no probable cause for the arrest and search. Under the "affirmative links" doctrine, when an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded that the accused had knowledge or control over the contraband absent additional independent facts and circumstances that affirmatively link the accused to the contraband. See Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986); Britton v. State, 793 S.W.2d 768, 770 (Tex. App.--Fort Worth 1990, pet. ref'd). Mere presence at a place where contraband is found will not support a conviction for possession. See Britton, 794 S.W.2d at 770. Appellant's reliance on the "affirmative links" doctrine is misplaced, however, because that requirement speaks to the State's burden of proof in securing a conviction. Far less evidence is required to establish probable cause than is needed to support a conviction. See Guzman, 955 S.W.2d at 87; Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1982) (opinion on reh'g). To the extent that the "affirmative links" doctrine applies at all in the context of determining probable cause to arrest, it is merely part of the standard for gauging whether the known and reasonably trustworthy information available to the police would warrant a reasonable person to believe that a particular person had committed or was committing an offense. In further arguing that the officers had no probable cause for the search that yielded the drugs, appellant relies on two cases--Leday, 3 S.W.3d 667 and United States v. Di Re, 332 U.S. 581 (1948)--for the proposition that a person's mere proximity to others independently suspected of criminal activity does not, without more, give rise to probable cause. We believe both cases are distinguishable on their facts. In Di Re, appellant was a passenger in a car with two other men. See 332 U.S. at 583. In the back seat was a police informant who was holding counterfeit gasoline ration coupons. See id. He told officers that he had received the coupons from the driver. See id. Police then took all three men into custody and searched them, and an envelope containing a hundred gasoline ration coupons was found concealed on Di Re. See id. The Court held that Di Re's mere presence in the car was insufficient to give officers probable cause to arrest and search him. See id. at 594. In Leday, appellant was a passenger in a vehicle stopped for speeding. See 3 S.W.3d at 670. When approached by police, the driver voluntarily relinquished a bag containing about 124 grams of crack cocaine, whereupon both the driver and Leday were arrested and taken to the constable's office. See id. A search of Leday's shoes revealed about 28 more grams of crack cocaine. See id. The court held that the State lacked probable cause to arrest Leday merely because the driver possessed a large amount of crack cocaine and that the warrantless search was therefore unjustified. See id. at 673. Both Leday and Di Re differ from the present case in one significant respect: in each case, police tried to attach probable cause to the defendant by virtue of his proximity to another person found in possession of contraband. In Leday, the driver was in possession of the drugs that the officer claimed gave him probable cause to arrest and search both driver and passenger. See id. at 670. In Di Re, the informant in the back seat possessed the contraband and named the driver as the party who had sold the coupons to him. See 332 U.S. at 583. The Supreme Court implicitly acknowledged that there may be an inference that everyone on the scene of a crime is a party to it, holding that any such inference "must disappear if the Government informer singles out the guilty person." Id. at 594. Where, as here, the gun was not in the exclusive possession of any occupant of the vehicle, no circumstances pointed to the guilt of another occupant, and appellant had access to the gun, we hold that the police had probable cause to arrest appellant. (3) When probable cause is present, the inquiry becomes whether exigent circumstances existed to obviate the need for a warrant and justify the warrantless search and arrest of appellant. (4) See McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991). Exigent circumstances include factors pointing to some danger to the officers. See id. (citing Stewart v. State, 681 S.W.2d 774, 777 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd)). At the hearing on the motion to suppress, Bryant testified that in his experience "it's common when someone is carrying one weapon they have more than one weapon. They also teach that if someone has one firearm it's likely they have two firearms . . . ." He also testified that he feared for his safety upon finding the gun in the car, thus prompting him to tell his partner that they should search appellant and the other occupants of the vehicle again. When appellant was initially ordered out of the car, he was frisked for weapons. See Terry v. Ohio, 392 U.S. 1, 27 (1968) (officer may conduct limited search for weapons without warrant or probable cause, where he has reason to believe he is dealing with armed and dangerous person). Appellant suggests that since the officers had already frisked him, found no weapon, and placed him away from the car during the search, the officers had no reasonable basis for believing appellant posed a threat to their safety after finding a gun in the car and therefore no exigent circumstances were present to excuse the warrantless search. He has cited no controlling authority for the proposition that after conducting a Terry frisk, officers may do nothing more to satisfy themselves that a suspect poses no threat to them. (5) Here, Bryant testified that he believed his partner had frisked all three suspects when they first emerged from the car. It was after that frisk that the gun was found in the vehicle. We believe that finding the weapon gave rise to a heightened risk that reasonably justified Bryant's fear that his partner may have missed a weapon on his initial, cursory frisk. We hold that, after finding a weapon in the car, the officers' subsequent fear of further weapons constituted an exigent circumstance that justified the warrantless search and arrest of appellant. Because the officers had probable cause to arrest appellant for unlawful possession of a firearm, and because exigent circumstances were present, we overrule appellant's second issue on appeal. We therefore need not address appellant's first issue on appeal, in which he complains that the search that yielded the cocaine exceeded the scope of a Terry frisk for weapons. CONCLUSION We conclude that the officers had probable cause and exigent circumstances justifying their search and arrest of appellant. We further hold that appellant cannot challenge the validity of the search of the vehicle that uncovered the gun that provided officers with probable cause to arrest him. The juvenile court therefore did not err in denying appellant's motion to suppress, and we affirm its judgment. J. Woodfin Jones, Justice Before Justices Jones, Yeakel and Patterson Affirmed Filed: June 15, 2000 Do Not Publish 1. See Tex. Transp. Code Ann. §§ 542.401, 545.104 (West 1999). 2. Bryant testified that he placed the driver under arrest because "he was extremely nervous and apparently lying to me" and because he stuttered in responding to some of the officer's questions. It is not at all clear that nervousness alone gives rise to probable cause to arrest a suspect. See generally Montano v. State, 843 S.W.2d 579, 582 (Tex. Crim. App. 1992); Crockett v. State, 803 S.W.2d 308, 312-13 (Tex. Crim. App. 1991). But see Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (holding that "as consistent with innocent activity as with criminal activity" test is no longer viable for determining reasonable suspicion, and overruling Montano and other cases to extent that they contradict that holding). While the court of criminal appeals has upheld an arrest for failing to use a turn signal, that court went on to hold that the officers lacked probable cause to search the car incident to that arrest. See Beck v. State, 547 S.W.2d 266, 268 (Tex. Crim. App. 1976). In Beck, the court relied heavily on the fact that appellant could not have reached the glove compartment where marihuana was found from where he was standing, and so officers could not claim the search of that area was necessary to protect them from bodily injury during their detention of appellant. See id. 3. That appellant was ultimately charged with delinquency for possession of cocaine and not with unlawful possession of a firearm does not affect the determination of probable cause to arrest and search at the scene. 4. When, as here, an offense is committed in the presence or within the view of a peace officer, the officer may arrest the offender without a warrant and, we believe, without the necessity of exigent circumstances. See Tex. Code Crim. Proc. Ann. art. 14.01 (West 1977); Salazar v. State, 788 S.W.2d 681, 682 (Tex. App.--Texarkana 1990, no pet.). Because appellant argues the absence of exigent circumstances, however, and because many appellate court opinions are less than clear on the issue, we will discuss the existence of exigent circumstances in the present case. 5. Appellant cites us to In re A.D.D., 974 S.W.2d 299, 306 (Tex. App.--San Antonio 1998, no pet.), for the proposition that after an initial Terry frisk officers may not search a suspect further. In A.D.D., the court held the subsequent search, which yielded cocaine, impermissible because the officers failed to testify to any fact that would justify a second protective weapons search after the first frisk revealed no weapons. See id. In fact, one officer testified that he had no articulable fear of A.D.D. See id. We find the present case distinguishable, because Bryant did testify to an articulable reason for fearing for his safety after a gun was found while searching the car. Further, the officers at that point had probable cause to arrest appellant for unlawful possession of a firearm, so their subsequent search of appellant did not have to be limited to a Terry frisk. r that his partner may have missed a weapon on his initial, cursory frisk. We hold that, after finding a weapon in the car, the officers' subsequent fear of further weapons constituted an exigent circumstance that justified the warrantless search and arrest of appellant. Because the officers had probable cause to arrest appellant for unlawful possession of a firearm, and because exigent circumstances were present, we overrule appellant's second issue on appeal. We therefore need not address appellant's first issue on appeal, in which he complains that the search that yielded the cocaine exceeded the scope of a Terry frisk for weapons. CONCLUSION We conclude that the officers had probable cause and exigent circumstances justifying their search and arrest of appellant. We further hold that appellant cannot challenge the validity of the search of the vehicle that uncovered the gun that provided officers with probable cause to arrest him. The juvenile court therefore did not err in denying appellant's motion to suppress, and we affirm its judgment. J. Woodfin Jones, Justice Before Justices Jones, Yeakel and Patterson Affirmed Filed: June 15, 2000 Do Not Publish 1. See Tex. Transp. Code Ann. §§ 542.401, 545.104 (West 1999). 2. Bryant testified that he placed the driver under arrest because "he was extremely nervous and apparently lying to me" and because he stuttered in responding to some of the officer's questions. It is not at all clear that nervousness alone gives rise to probable cause to arrest a suspect. See generally Montano v. State, 843 S.W.2d 579, 582 (Tex. Crim. App. 1992); Crockett v. State, 803 S.W.2d 308, 312-13 (Tex. Crim. App. 1991). But see Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (holding that "as consistent with innocent activity as with criminal activity" test is no longer viable for determining reasonable suspicion, and overruling Montano and other cases to extent that they contradict that holding). While the court of criminal appeals has upheld an arrest for failing to use a turn signal, that court went on to hold that the officers lacked probable cause to search the car incident to that arrest. See Beck v. State, 547 S.W.2d 266, 268 (Tex. Crim. App. 1976). In Beck, the court relied heavily on the fact that appellant could not have reached the glove compartment where marihuana was found from where he was standing, and so officers could not claim the search of that area was necessary to protect them from bodily injury during their detention of appellant. See id. 3. That appellant was ultimately charged with delinquency for possession of cocaine and not with unlawful possession of a firearm does not affect the determination of probable cause to arrest and search at the scene. 4. When, as here, an offense is committed in the presence or within the view of a peace officer, the officer may arrest the offender without a warrant and, we believe, without the necessity of exigent circumstances. See Tex. Code Crim. Proc. Ann. art. 14.01 (West 1977); Salazar v. State, 788 S.W.2d 681, 682 (Tex. App.--Texarkana 1990, no pet.). Because appellant argues the absence of exigent circumstances, however, and because many appellate court opinions are less than clear on the issue, we will discuss the existence of exigent circumstances in the present case. 5. Appellant cites us to In re A.D.D., 974 S.W.2d 299, 306 (Tex. App.--San Antonio 1998, no pet.), for the proposition that after an initial Terry frisk officer