Chester Ray Garrett v. State

Chester Ray Garrett v. State \ IN THE TENTH COURT OF APPEALS No. 10-98-347-CR CHESTER RAY GARRETT, Appellant v. THE STATE OF TEXAS, Appellee From the County Court Navarro County, Texas Trial Court # 44856 O P I N I O N Chester Ray Garrett pled nolo contendere to possession of marihuana then appealed the court’s pretrial denial of his motion to suppress illegally seized evidence. Tex. R. App. P. 25.2(b)(3)(B). Finding no error, we will affirm the judgment. FACTS On November 2, 1997, Captain Jimmy Spencer and Deputy Brad Gannon of the Navarro County Sheriff’s Department were contacted by an informant that they each had relied on in the past. The informant told them that Garrett went to Dallas to buy drugs that he intended to sell in the Kerens and Goodlow communities. The informant also told the officers that Garrett would be returning between 8:00 and 9:00 p.m. At 9:08 p.m. the officers saw Garrett in the passenger seat of a car coming into Goodlow. Believing this to corroborate the tip received earlier, they decided to do an investigatory stop. After Garrett pulled over, the officers approached the vehicle, one on the driver’s side and the other on the passenger’s side. Spencer saw Garrett reach under his seat and, being familiar with Garrett’s criminal history, became concerned for his and Gannon’s safety. Spencer then asked Garrett to step out of the car so he could do a weapons search. During the “pat down,” Spencer felt a knife and what he believed to be marihuana. He pulled the suspected marihuana out of Garrett’s pocket and confirmed his suspicions. Garrett was then arrested. MOTION TO SUPPRESS In two issues, Garrett challenges the court’s denial of his motion to suppress, alleging: 1) the State failed to meet its burden to show the validity of the arrest, and 2) the scope of the search exceeded a reasonable search for weapons. standard of review In the review of a ruling on a motion to suppress evidence, we afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the court's rulings on application of law to fact questions, known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact not falling into this category. Id. When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex. Crim. App. 1970). After a defendant has established that a search or seizure occurred without a warrant, the burden of proof shifts to the State to produce either evidence of a warrant or to prove the reasonableness of the search or seizure pursuant to one of the recognized exceptions to the warrant requirement. Telshow v. State, 964 S.W.2d 303, 307 (Tex. App.—Houston 1998, no pet.). Legitimacy Of The Stop Garrett’s first issue argues that the State failed to show that the tip relied upon to detain him was trustworthy because both officers refused to identify the informant or to reveal the nature of their relationship with the informant. Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Tarvin v. State, 972 S.W.2d 910, 912 (Tex. App.—Waco 1998, pet. ref’d) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Sailo, 910 S.W.2d 184, 187 (Tex. App.—Fort Worth 1995, pet. ref'd)). To justify the intrusion, the officer must have specific articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Id. (citing Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1983)). The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime. Id. Each officer testified that he knew the informant, had used him multiple times in the past, and always found his information to be reliable. On this occasion, the informant told the officers when Garrett would be returning from Dallas, and the officers saw Garrett riding as a passenger in a car traveling from the direction of Dallas around the time given by the informant. Garrett does not dispute that, assuming reliability, this evidence would justify an investigatory stop. Rather, he suggests that the information was not proven reliable because the officers refused to reveal the informant’s identity. The State has a privilege to refuse to disclose the identity of a confidential informant. Tex. R. Evid. 508(a). Three exceptions to the privilege exist: (1) the informer voluntarily discloses his identity or appears as a witness for the State; (2) the informer may be able to give testimony necessary to a fair determination of guilt or innocence; or (3) evidence from the informer is relied upon to establish the legality of obtaining evidence and the court is not satisfied that the information was received from a reliable or credible source. Id. 508(c); Howard v. State, 1999 WL 427877, *2 (Tex. App.—Corpus Christi June 24, 1999, no pet. h.). During the suppression hearing, Garrett made no showing that any of these exceptions applied. Issue one is overruled. Search for Officer’s Safety Garrett’s second issue asserts that the court erred in denying his motion to suppress because the search exceeded the scope of a reasonable search for weapons. Terry v. Ohio authorizes an officer, without probable cause for arrest, to conduct a limited search of the detainee's outer clothing for weapons when specific and articulable facts lead him to reasonably conclude that the person with whom he is dealing is armed and dangerous. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-81. The purpose of a limited search for weapons following an investigative stop is not to discover evidence of a crime, but to allow the officer to pursue the investigation without fear of violence. Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1993) (quoting Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974)). We recognize a "plain-feel" exception to the warrant requirement of the Fourth Amendment by analogizing it to the plain-view doctrine. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Campbell v. State, 864 S.W.2d 223, 225-26 (Tex. App.—Waco 1993, pet. ref’d). "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context." Dickerson, 508 U.S. at 376, 113 S.Ct. at 2137. Spencer testified that he feared for his and Gannon’s safety based on the circumstances surrounding the investigatory stop and his knowledge of Garrett’s criminal history. Thus, the pat-down search was justified. Spencer further testified that it was immediately apparent that a baggie which he felt in Garrett’s coat pocket contained illegal drugs. Thus, the seizure of the marihuana was likewise justified. Matter of L.R., 975 S.W.2d 656, 658-59 (Tex. App.—San Antonio 1998, no pet.) (applied to juveniles); Garcia v. State, 967 S.W.2d 902, 907 (Tex. App.—Austin 1998, no pet.). Issue two is overruled. The judgment is affirmed. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed August 11, 1999 Do not publish