Hernandez, Steve v. State

Affirmed and Memorandum Opinion filed August 31, 2004 Affirmed and Memorandum Opinion filed August 31, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00520-CR ____________ STEVE HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 920,852 M E M O R A N D U M   O P I N I O N After the trial court denied his motion to suppress, appellant Steve Hernandez pleaded guilty to possession with intent to deliver at least 400 grams of cocaine. Under a plea agreement, the trial court sentenced appellant to 25 years= imprisonment in the Texas Department of Criminal Justice, Institutional Division and assessed a one-dollar fine. On appeal, appellant contends that the trial court erred in denying his motion to suppress. We affirm. I. Factual and Procedural Background During a drug interdiction, Houston Police Department narcotics officers D. Green and T.R. Walker found two kilograms of cocaine in the car of Angela Cochran and her male companion. The couple told the officers that they had obtained the cocaine from an individual at 1730 Saxon Street. They described the individual as a young, chubby Hispanic male, named ATony,@ who had a Abuzz@ haircut and a Aunibrow,@ that is, a single eyebrow that crossed above both eyes. The couple also told the officers that the individual would be waiting at the Saxon address for them to return with the money for the two kilograms of cocaine seized by the officers. Cochran and her companion also told the officers that it was possible that additional cocaine might be located at the Saxon address. Based on this information, the officers decided to conduct a surveillance that same day of the residence at 1730 Saxon. Numerous officers set up surveillance of the house located at that address. Officer Green drove by the house and saw about eight people in the front yard. He also saw a man later identified as Antonio Mireles standing in the driveway, talking on a cell phone and watching cars drive by. Mireles matched the description provided by Cochran and her companion. Officer Green noted that Mireles was the only male in the yard who had a Aunibrow.@ Officer Walker set up surveillance from a school located about fifty yards from the residence. He noticed several people near the garage and saw appellant sitting on a bench in front of the garage. Officer Walker also saw Mireles walk down the driveway to the street and look around. Mireles looked in the direction of Officer Walker. Mireles then got in a car and circled the block, and when he returned, he parked his car in the driveway of one of his neighbors. Another young man from the house at 1730 Saxon drove by Officer Walker, slowed down, and looked out as he passed. The officers suspected Mireles and his companions were looking out for someone, which would be consistent with what the informants had stated about their waiting for payment for the cocaine. Officer Walker testified that, when he first set up surveillance, the people in the yard were just Amilling around,@ but that, after they appeared to notice him, they started moving about and checking out Officer Walker. Suspecting that these people were aware of the police presence, the officers decided to do a Aknock and talk.@ As the police officers approached the residence in full raid gear, the people in the yard of the house took notice. Walker saw Mireles grab a cardboard box, and it appeared that he was going to take it inside the house, but then he stopped and handed the box off to appellant, who started walking around the side of the house into the backyard. Sergeant W. Rios, the supervising police narcotics officer on the scene, was not initially in a position where he could see the house at 1730 Saxon. But, when he heard Officer Walker state over the radio that the persons at the residence appeared to be aware of the police presence, Sergeant Rios proceeded to the Saxon address to participate in the investigation. Sergeant Rios then heard Officer Walker say that someone at the location was running with a cardboard box. When Officer Walker radioed this information in, Sergeant Rios decided to move in to prevent destruction of the contents of the box, which the officers believed contained cocaine. Sergeant Rios entered the neighboring yard, and, through an open gate in the wooden fence, saw appellant running with the box in the backyard of the house at 1730 Saxon. When Sergeant Rios ordered appellant to stop, appellant stopped, dropped the box, and turned around. The box had an open top without a lid and Sergeant Rios could see cigarette cartons, which appeared to contain cocaine. A field test confirmed that the substance was cocaine, which was later determined to weigh seven kilograms. Appellant was arrested and charged by indictment with the offense of possessing at least 400 grams of cocaine with intent to deliver. Following a joint hearing on appellant=s motion to suppress and Mireles=s motion to suppress, the trial court denied appellant=s motion to suppress. Under a plea agreement, the trial court sentenced appellant to 25 years= imprisonment in the Texas Department of Criminal Justice, Institutional Division and assessed a one-dollar fine. II. Issues Presented On appeal, in two issues, appellant asserts (1) the trial court erred in denying his motion to suppress evidence based on his allegedly illegal arrest and the allegedly unreasonable search and seizure of the tangible evidence, including the cocaine; and (2) appellant has standing to assert these challenges. III. Standard of Review In reviewing the trial court=s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving Aalmost total deference to a trial court=s determination of historic facts@ and reviewing de novo the trial court=s application of the law of search and seizure. See Guzman v. State, 955 S.W.2d 85, 88B89 (Tex. Crim. App. 1997). If the issue involves the credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court=s ruling on that issue. Id. at 89. The amount of deference that we should give to a trial court=s ruling on a motion to suppress will depend upon whether the trial court is in a better position to decide the issue before it. Id. If the issue is one of application of law to facts, and the ultimate resolution of that issue does not turn on an evaluation of credibility and demeanor of a witness, then we may review that issue de novo. Id. When the trial court does not make explicit findings of historical facts, as in this case, we review the evidence in the light most favorable to the trial court=s ruling. See Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002). IV. Analysis A. Is the allegedly unlawful arrest of appellant a material issue that is before this court? Appellant asserts the trial court erred in not suppressing the tangible evidence both because it was obtained as a result of an unlawful warrantless arrest and because it was obtained as a result of an unreasonable warrantless search and seizure. However, the record does not show that the police officers seized the cocaine as a result of, or incident to, any warrantless arrests made in this case. Although probable cause must be shown to support either a warrantless arrest or a warrantless search and seizure, the two issues are legally distinct and entail different considerations. See Porter v. State, 938 S.W.2d 725, 728 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (recognizing that State has burden to prove existence of probable cause to justify a warrantless arrest or search). Appellant appears to contend that the officers entered the premises at 1730 Saxon for the purpose of making an arrest. However, when it is viewed in the light most favorable to the trial court=s ruling, the evidence presented at the suppression hearing, for example, the officers= testimony, showed that the officers entered the Saxon premises to prevent the destruction of evidence, that is, the cocaine, not to effectuate an arrest. See Effler v. State, 115 S.W.3d 696, 699 (Tex. App.CEastland 2003, pet. ref=d) (differentiating between entry of police officers to prevent destruction of evidence and entry for purpose of making warrantless arrest). Thus, the police officers obtained the tangible evidence in question as the fruit of a warrantless search and seizure, not a warrantless arrest. As a result, the issue we have before us is whether the officers had probable cause to conduct a warrantless search and seizure of the tangible evidence, including the cocaine. B. Does appellant have standing to challenge the allegedly unreasonable search and seizure of the backyard of Mireles=s home? In his second issue, appellant asserts that he has standing to challenge the alleged unreasonable warantless search of the Saxon premises. To show standing, appellant had the burden of proving facts establishing a legitimate expectation of privacy in the Saxon premises. See Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002). Appellant can satisfy this burden by establishing that he had a subjective expectation of privacy in the Saxon premises that society is prepared to recognize as objectively reasonable. See id. Several factors are relevant to determining whether appellant=s claim of privacy is objectively reasonable: (1) whether appellant had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. See id. This list of factors is not exhaustive, however, and none is dispositive of a particular assertion of privacy; rather, we examine the circumstances surrounding the search in their totality. See id. Sergeant Rios and Officer Walker both testified that appellant told them he did not live at 1730 Saxon. No evidence in the record contradicts this testimony. In fact, Jesse Rodriguez, the only witness called by appellant, testified that 1730 Saxon was the Mireles=s home and that appellant had helped Rodriguez in the past to do construction work at this residence. Rodriguez also testified that appellant, by himself, had done other construction jobs at Mireles=s home and that Rodriguez and appellant had access to Mireles=s property with Mireles=s permission. The record shows that appellant had no property or possessory interest in the premises. At most, Rodriguez=s testimony indicates that appellant had done construction work at Mireles=s home in the past and that he might have been doing construction work there on the day in question. There is no evidence in the record that appellant had any of the requisite ties to the premises at 1730 Saxon to support a legitimate expectation of privacy. Specifically, there is nothing to suggest appellant: (1) had complete dominion or control and the right to exclude others, (2) took normal precautions customarily taken by those seeking privacy, and (3) put the place to some private use. Based on this record, we find no indication that appellant=s claim of privacy is consistent with historical notions of privacy. After examining the circumstances surrounding the search in their totality, we conclude society is not prepared to recognize as objectively reasonable any expectation of privacy in the premises alleged by appellant. Therefore, the trial court did not err in denying appellant=s motion to suppress. See Granados, 85 S.W.3d at 221B26 (holding that overnight guest lacked objectively reasonable expectation of privacy under the facts of that case); Edwards v. State, 850 S.W.2d 731, 735 (Tex. App.CEl Paso 1993, no pet.) (holding, under the facts presented, defendant lacked standing to challenge alleged unreasonable search of house in which he did not live). Accordingly, we overrule appellant=s second issue. C. Was the warrantless search and seizure reasonable? We can affirm the trial court=s judgment based on lack of standing alone. However, in the interest of justice, we address appellant=s first issue challenging the search and seizure. The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution forbid unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, ' 9. When police officers enter a residence without the consent of its residents, that entry constitutes a search. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Federal courts as well as Texas state courts have held that a police search of a home without a warrant is presumptively unreasonable. Beaver v. State, 106 S.W.3d 243, 246 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d). Here, the State concedes that the police officers did not have a search warrant. To justify a warrantless search, the State must show the existence of probable cause at the time the search was made, and the existence of exigent circumstances, which made the procuring of a warrant impracticable. McNairy, 835 S.W.2d at 106; Beaver, 106 S.W.3d at 247. Exigent circumstances justifying a warrantless entry include preventing the destruction of evidence or contraband. McNairy, 835 S.W.2d at 107. Besides arguing that it had the requisite probable cause, the State in this case argued and presented evidence that exigent circumstances C that is, the probable destruction of the cocaine evidence C made obtaining a search warrant impracticable at the time of the search. Appellant asserts that there was no evidence of probable cause or exigent circumstances in this case. Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a person of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. See McNairy, 835 S.W.2d at 106. It exists when the facts are sufficient to justify the conclusion that the property that is to be the object of the search is probably in the area to be searched. See Rojas v. State, 797 S.W.2d 41, 43 (Tex. Crim. App. 1990). The determination of probable cause at the time of the questioned event is viewed from the Atotality of the circumstances.@ See Angulo v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). In this case, Officers Green and Walker as well as Sergeant Rios testified at the suppression hearing that probable cause to obtain a search warrant of the premises at 1730 Saxon did not exist when they went to the location to conduct surveillance. In fact, the officers testified that obtaining probable cause was the purpose of the surveillance. Our review of the record indicates that the officers developed sufficient probable cause after setting up the surveillance. The State presented evidence showing that Officers Green and Walker were told by Angela Cochran and her male companion that they had obtained two kilograms of cocaine at the Saxon premises from a young, chubby, Hispanic male named ATony.@ Officers Walker and Green testified that Cochran and her companion had described ATony@ as having one eyebrow. The officers also testified that the informants had said that there was possibly additional cocaine on the premises and that ATony@ would be waiting for them to return to the location with payment for the two kilograms of cocaine. Texas follows the Atotality of the circumstances@ approach in evaluating informant-based probable cause. Johnston v. State, 99 S.W.3d 269, 272 (Tex. App.CTexarkana 2003, no pet.). Under the totality of the circumstances approach, an informant=s veracity, reliability, and basis of knowledge are all highly relevant in determining the value of a tip. Id. These elements, however, are not entirely separate and independent requirements to be rigidly exacted in every case. Id. Rather, they are closely intertwined issues that may usefully illuminate the common-sense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place. Id. Though information supplied by confidential informants standing alone cannot supply officers with sufficient probable cause, probable cause may arise from information supplied by a confidential informant provided the information is corroborated. Id. First, we note that the informants in this case were not Aconfidential.@ Officers Green and Walker identified one of the informants (Angela Cochran) at the suppression hearing. The officers could not remember the name of Cochran=s companion but said that his name was readily available in the report filed in conjunction with the seizure of the two kilograms of cocaine. Moreover, the State presented evidence showing the basis of the informants= knowledge and the reliability of the tip. Specifically, the informants= information regarding the presence of cocaine at the Saxon premises was based on personal, first-hand knowledge, not rumor or hearsay. See Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.CAustin 1996, pet. ref=d, untimely filed). The informants had personally obtained the two kilograms of cocaine found in their car from an individual on the premises. Additionally, the State presented evidence establishing the veracity and reliability of the information supplied by the informants. Particularly, the State=s evidence showed that the surveillance conducted by the officers corroborated the information supplied by Cochran and her companion. Officers Green and Walker testified that, when they saw Mireles on the Saxon premises, he matched the physical description given by the informants of the man from whom the two informants had obtained the cocaine. The officers also testified that Mireles=s behavior was consistent with the information that they had received from the informants C that the narcotics supplier at the residence would be waiting for them to return with payment for the two kilograms of cocaine. Specifically, the officers testified that Mireles was standing in front of the residence, talking on a cell phone, and watching passing traffic. Although the informants only gave information to the police after two kilograms of cocaine had been found in their car, the informants= statements that they had obtained the two kilograms at Mireles=s residence was a statement against their penal interests that bolstered their veracity in establishing probable cause. See Hackelman, 919 S.W.2d at 447; Lowery v. State, 843 S.W.2d 136, 140 (Tex. App.CDallas 1992, pet. ref=d). The officers also testified that the persons on the Saxon premises appeared to notice Officer Walker=s presence. At that point, the group started moving around more and were making an obvious effort to observe Officer Walker. Testimony was presented that Mireles got in his car and drove around the block. Another man from the residence drove past Officer Walker and slowed down to look at the officer. Officer Walker observed Mireles hand appellant a box that appellant took to the backyard of the premises. When Sergeant Rios entered the neighboring yard, he saw appellant running with the box in the backyard of the premises. Furtive movements, and certainly flight, are strong indicia of mens rea. See Smith v. State, 542 S.W.2d 420, 421 (Tex. Crim. App. 1976); Simpson v. State, 668 S.W.2d 915, 918 (Tex. App.CHouston [1st Dist.] 1984, no pet.) (involving probable cause for making warrantless arrest when suspects fled after seeing police). Thus, if a significant degree of suspicion concerning a particular person already exists, the flight and furtive movement of that person on the approach of police officers may be taken into account, and may elevate the pre-existing suspicion to the requisite constitutional level of probable cause. See Smith, 542 S.W.2d at 421; Simpson, 668 S.W.2d at 918. Considering the totality of the circumstances in this case, we conclude that probable cause existed for the police officers to make a warrantless entry onto the Saxon premises to seize the cocaine. In addition to the detailed and corroborated information supplied by the two informants, appellant, Mireles, and others on the premises conducted counter-surveillance and made furtive movements when they suspected police presence. Once the police made their presence known, Mireles picked up a box and then gave it to appellant, who immediately ran into the backyard carrying the box. Considered as a whole, these facts were sufficient to supply the officers with the requisite probable cause to enter the yard and seize the cocaine. As to the issue of exigent circumstances, we note that Sergeant Rios reasonably could have believed that appellant was heading into the backyard to dispose of the cocaine. It follows that the officer was faced with a real possibility that the cocaine could be immediately disposed of before a warrant could be secured, and, thus, he was justified in seizing the cocaine without a warrant. See McNairy, 835 S.W.2d at 107. Accordingly, even if appellant had standing to challenge this warrantless search, it was justified under the circumstances because the officers had probable cause at the time of the search and exigent circumstances existed which made the procurement of a warrant impracticable. See Mireles v. State, No. 01-03-00407-CR, 2004 WL 1172100, at *1B*5 (Tex. App.CHouston [1st Dist.] May 27, 2004, pet. filed) (holding that trial court did not err in denying Mireles=s motion to suppress, which was heard at the same time and based on the same evidence as appellant=s motion to suppress in this case) (not designated for publication). We hold that the trial court=s denial of appellant=s motion to suppress is supported by the evidence in the record. Accordingly, we overrule appellant=s two issues and affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed August 31, 2004. Panel consists of Chief Justice Hedges and Justices Hudson and Frost. Do Not Publish C Tex. R. App. P. 47.2(b).