Ngai Williams v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00179-CR ______________________________ NGAI WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 04F0290-008 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION A Bowie County jury found Ngai Williams guilty of manufacture of a controlled substance. After determining that Williams had been previously convicted of two felony offenses, which enhanced the range of punishment to twenty-five to ninety-nine years or life imprisonment and a fine not to exceed $100,000.00, the jury assessed punishment at sixty years' imprisonment and a fine of $100,000.00. Williams contends the trial court erred in two respects: (1) failing to suppress the evidence recovered from a search of the vehicle he was operating and (2) failing to instruct the jury concerning the legality of the search. We affirm the judgment of the trial court. Background Facts At a pretrial suppression hearing, Mike Jones, a police officer with the Texarkana, Texas Police Department, testified he received information that a black male had some type of chemical in a jar and was using a microwave oven in the lobby of a motel on North State Line Avenue in Texarkana, Texas, to heat objects and test the color of litmus paper strips. Based on his experience, Jones believed such activity was consistent with manufacturing drugs. The motel clerk verified the information and gave Jones a partial license plate number and a vehicle description. While Jones was at the motel parking lot, an automobile arrived which had a license plate partially matching the description. Jones stopped the vehicle and asked the driver to step out of the vehicle. The driver's license identified the driver of the vehicle as Williams. After asking if Williams had any weapons or narcotics on his person, Williams consented to a search of his person, which did not reveal any illegal substances or weapons. However, Williams refused to consent to a search of his vehicle. Jones then checked to determine if any outstanding warrants existed for Williams and discovered that two warrants existed, one for a parole violation and another for forgery. Jones arrested Williams, handcuffed him, and placed him in custody in his patrol car. Jones testified that he and Officer Price then conducted an inventory search of the vehicle in accordance with departmental policy. Jones gained entry into the trunk by folding down the back seat, and he observed a microwave oven and was "overwhelmed" by a chemical odor that he associated with the manufacture of methamphetamine. Jones and Price opened the trunk of the vehicle with the key and found a clear jar containing a bi-layer liquid and a white jug marked "muratic [sic] acid." Jones testified that, in his experience, these substances are used in methamphetamine laboratories. At that point, Jones notified his supervisor to send someone with knowledge of the proper handling of such chemical substances. Officer Coy Murray arrived to assist. On cross-examination, Jones admitted that he did not have probable cause to arrest Williams immediately when he stopped him. It took an additional five or ten minutes to complete the warrant search. According to Jones, it is police department policy to conduct an inventory search if a person is arrested and removed from the vehicle and there is no other person available to take possession of the vehicle. Jones further testified that the police department policy did not allow opening a locked container during an inventory search. Also in the trunk were some tools and a large, locked duffel bag. Murray took possession of the duffel bag and opened it, as he felt he had probable cause to do so. Murray testified that he talked with Jones. Murray then saw the muriatic acid, the bi-layer liquid, and the microwave oven and testified these are commonly used in the manufacture of methamphetamine. He also detected an odor consistent with drug manufacturing. Also in the trunk were some pots and pans that had some residue consistent with a methamphetamine laboratory. He then opened the duffel bag by forcing the lock on one side. Inside the duffel bag, he found bottles, duct tape, and what appeared to be ephedrine, iodine crystals, and red phosphorus. Murray then called the Drug Enforcement Administration and Summit Environmental to get a cleanup team on site. The hazardous materials were taken away by the cleanup team and destroyed. Murray testified he did not seek a search warrant for the duffel bag because it was part of the inventory, it could be hazardous, and it is departmental policy to open the bag to inventory it. At trial, a chemist testified the bottle containing a clear liquid, two jars containing clear liquids, and coffee filters found in the duffel bag tested positive for methamphetamine. At the conclusion of the suppression hearing, both the State and Williams argued that the issue was the legality of the search as an inventory of the vehicle. After the parties submitted briefs, the trial court overruled the motion to suppress. At trial, the same evidence was also admitted before the jury. Additionally, Williams introduced the written policy of the Texarkana, Texas Police Department concerning an inventory search. The policy is a multi-page document setting forth the procedures required of police officers in executing an inventory search. Among other things, the policy states: "Any closed container found in the vehicle will be searched only after permission from the owner or if probable cause exists or search warrant is obtained." Williams argues the search of the locked duffel bag was improper as he did not consent, no search warrant was obtained, and no probable cause existed. The State counters that, when the locked duffel bag was found, the police officers had probable cause to reasonably believe the duffel bag contained evidence pertaining to a crime. Therefore, the search of the duffel bag was proper based on the existence of probable cause. Additionally, the existence of probable cause allows the police officers to open locked containers when conducting an inventory, according to a written departmental policy. Admissibility of Evidence Found in Locked Bag At the suppression hearing, the State, Williams, and the trial court focused their attention on whether the search was authorized as an inventory. There was some conflicting testimony on that issue from the police officers. The trial court requested briefs from the parties. Williams' brief pointed out that Jones testified that it was the policy of the Texarkana, Texas Police Department not to open closed containers while conducting an inventory search, that the duffel bag was locked, and therefore, the opening of the bag violated departmental policy and could not be justified as an inventory. The trial court upheld the search as a proper inventory search and also found that opening the duffel bag was necessary for the environmental team to properly dispose of the dangerous chemicals. At trial, and particularly after the written departmental policy was introduced, the parties argued the issue of probable cause. We believe the issue of probable cause is dispositive. In reviewing a trial court's decision concerning a motion to suppress, we generally consider only evidence adduced at the suppression hearing, since the ruling was based on that evidence, rather than evidence introduced later in the trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Clark v. State, No. 06-03-00262-CR, 2004 WL 2290262 (Tex. App.—Texarkana Oct. 13, 2004, pet. ref'd) (mem. op.) (not designated for publication); Green v. State, 78 S.W.3d 604, 608 (Tex. App.—Fort Worth 2002, no pet.); Westfall v. State, 10 S.W.3d 85, 89 n.1 (Tex. App.—Waco 1999, no pet.). However, when the legality of the seizure is relitigated at trial, consideration of relevant trial testimony is appropriate in our review. Rachal, 917 S.W.2d at 809. In this case, the evidence concerning the facts of the search introduced at the suppression hearing and that evidence presented at trial were almost identical. The primary difference was the arguments advanced based on those facts—at the suppression hearing, Williams attacked the search as being an improper inventory, the State defended the search on that basis, and the trial court ruled on the basis of an inventory. At trial, the State presented the same factual scenario, but also advanced the theory that the search of the locked duffel bag was justified because, at the time of the search, the police officers had developed probable cause to reasonably believe evidence pertaining to a crime was in the duffel bag. The admissibility of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). Even when the trial court gives the wrong reason for the decision, if the decision is correct on any theory of law applicable to the case, it will be sustained. Osbourn v.State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). Under the Carroll doctrine, if probable cause has been developed, an officer may, without a warrant, stop and search a moving vehicle. There is now only one rule to govern automobile searches based on probable cause—the police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. California v. Acevedo, 500 U.S. 565, 580 (1991). Probable cause exists when the facts within the knowledge of the officer on the scene and those of which the officer had reasonably trustworthy information would lead a person of reasonable caution and prudence to believe that evidence pertaining to a crime would be found. See Delgado v. State, 718 S.W.2d 718, 722 (Tex. Crim. App. 1986) (citing United States v. Ross, 456 U.S. 798 (1982); Craddock v. State, 553 S.W.2d 765 (Tex. Crim. App. 1977)). When a peace officer possesses probable cause that a motor vehicle contains contraband or instrumentalities of a crime, a valid search can be conducted in the area of the vehicle where facts justify the officer's belief that such evidence is there concealed. Delgado, 718 S.W.2d at 722. The test for determining probable cause is an objective one. A search could be upheld even if the officer subjectively thought probable cause was lacking, if it in fact existed. See Esco v. State, 668 S.W.2d 358, 366 (Tex. Crim. App. [Panel Op.] 1984) (op. on reh'g). Williams does not contend the initial stop was improper. His argument is that the search of the duffel bag was an improper inventory search and lacked probable cause. When the duffel bag was opened, the officers had the following information: (1) a report that a male was using a microwave oven at a motel to test litmus paper strips and to heat objects, (2) a description of the vehicle the man occupied and a partial license plate number, (3) a person so described drove onto the motel parking lot in an automobile matching the partial number of the license plate, (4) the driver, Williams, was found to have two outstanding warrants, (5) after arresting Williams on the outstanding warrants and during an inventory of the interior portion of the automobile, officers discovered a microwave oven and the "overwhelming" odor that the officers, from their experience, associated with the manufacture of illicit drugs, (6) after opening the trunk of the vehicle with the key, the officers found a bottle consisting of a bi-layer liquid and another bottle marked as "muratic [sic] acid," and (7) the officers testified that, in their experience, these substances were used in the manufacture of methamphetamine. At this point, the officers found the duffel bag in the trunk and Murray opened it by forcing a zipper. Considering all the facts and circumstances known to the officers at that time, we believe the officers were reasonably justified in concluding that evidence pertaining to a crime could be found in the duffel bag. Once there is probable cause to believe the vehicle contains contraband, a warrantless search may be conducted to the same extent as if a search warrant had issued. Every part of the vehicle and any container in the vehicle that may conceal the object of the search may be examined. Ross, 456 U.S. at 825. The first point of error is overruled. Failure to Instruct Jury Concerning Legality of the Search Williams argues the trial court erred in failing to instruct the jury on how to interpret whether the officers acted illegally. Article 38.23 of the Texas Code of Criminal Procedure provides that evidence obtained in violation of the law shall not be used in a criminal case and a jury shall be instructed that evidence so obtained should be disregarded. Tex. Code Crim. Proc. Ann. art. 38.23. Williams submitted a proposed jury instruction that specifically instructed the jury on the requirements of an inventory search. Among other things, the proposed instruction stated: An inventory search is reasonable and lawful under the Fourth Amendment to the United States Constitution only if it is conducted for the purposes of an inventory and may not be used by police officers as a ruse for general rummaging in order to discover incriminating evidence. Under the Fourth Amendment to the United States Constitution, a peace officer may open a closed container as a part of an inventory of an automobile as long as the inventory is conducted in good faith pursuant to reasonable standardized police procedures. The trial court denied this requested jury instruction, but instructed the jury in accordance with Article 38.23 that evidence obtained in violation of the law should not be admitted and if the jury found, or had a reasonable doubt, that evidence introduced in the case was obtained in violation of the law, the jury should disregard such evidence. It is elementary that it is the duty of the court to determine the law and the duty of the jury to determine the facts. If the only issue involved in determining if certain evidence is admissible is a question of law, the court makes that decision, not the jury. In the event there are disputes about the underlying facts which authorize an officer's search, the jury should be allowed to determine those factual disputes. "[A]n Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained." Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). In this case, there is no factual dispute about how the evidence was obtained. The only "dispute" is the apparent disagreement by two officers about the interpretation of the Texarkana, Texas Police Department's policy on inventory searches—one officer thought the policy allowed opening closed containers while doing an inventory and the other officer did not. Traditionally, the factual dispute allowing an Article 38.23 instruction would involve the facts on the incident in question (Did the defendant run the red light thereby authorizing the arrest?). A disagreement with the conclusion that the grounds for the search were shown as a matter of law is not the same as controverting the facts. The question of whether the search was legal is a question of law if none of the circumstances surrounding the search was controverted. See id. In that event, the court is not required to submit the proposed Article 38.23 instruction. However, we also note that in Garza, the Texas Court of Criminal Appeals implied that the alleged violation of departmental policy might require an Article 38.23 instruction. In Garza, the court found an instruction was not required since the city's policy had not been admitted in evidence. Garza, 126 S.W.3d at 87. Because of that discussion in Garza, we will consider the issue. When there is a dispute in the facts concerning whether evidence was obtained in violation of the law, an instruction to the jury concerning Article 38.23 is required. This Court has held that, when such instruction is necessary, the trial court should provide the jury with both abstract statements of the applicable law and should also apply the law to the evidence in the case. Davis v. State, 905 S.W.2d 655, 663 (Tex. App.—Texarkana 1995, pet. ref'd) (citing Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim. App. 1992)). This requirement applies to defensive issues as well as to the law of the offense. See Beggs v. State, 597 S.W.2d 375, 379–80 (Tex. Crim. App. [Panel Op.] 1980). The instruction proposed by Williams focused on the requisites for an inventory search. The proposed instruction concludes by advising the jury that, "if you find the facts so to be, or you have a reasonable doubt thereof, you will wholly disregard such evidence recovered in the search of the vehicle, and not consider it as any evidence whatsoever." (Emphasis added.) Such a broad instruction would have prevented the jury from considering any evidence found in the vehicle, even though such evidence was admissible independently of the inventory. The instruction was improper because the jury was entitled to consider the evidence gained from the search. Such evidence was properly presented to the jury since the police officers had probable cause to conduct the search. We hold that the proposed jury instruction, as worded, was improper and that the trial court correctly refused to submit it to the jury. The second point of error is overruled. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: July 13, 2006 Date Decided: August 3, 2006 Do Not Publish