Kinchen, Phillip Randall v. State

Affirmed and Memorandum Opinion filed June 15, 2004 Affirmed and Memorandum Opinion filed June 15, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-00859-CR ____________ PHILLIP RANDALL KINCHEN Appellant V. THE STATE OF TEXAS, Appellee _______________________________________________________ On Appeal from the 253rd District Court Chambers County, Texas Trial Court Cause No. 11,842 _______________________________________________________ M E M O R A N D U M   O P I N I O N Appellant pleaded guilty to possession of a controlled substance. In accordance with the terms of a plea agreement, the trial court deferred adjudication of guilt and placed appellant on community supervision for six years. In a single issue, appellant contends the trial court erred in denying his pretrial motion to suppress. We affirm. I. Factual Background Appellant was a passenger in a vehicle stopped by State Trooper James B. Crone on April 18, 2001. Crone observed the vehicle traveling approximately ten miles per hour below the posted speed limit on Interstate 10 and conducted a traffic stop. During the stop, Crone learned the car had been rented and the driver did not have a license.[1] Crone then asked all of the occupants, including appellant, to exit the vehicle. As appellant stepped out of the car, Crone saw a brown vanilla extract bottle stuffed in the side of appellant=s shoe. Crone testified that, from his experience, liquid narcotics are transported in vanilla extract bottles. Crone removed the bottle from appellant=s shoe, opened it, and detected a strong odor of phenycyclidine (APCP@). Crone arrested appellant for possession of a controlled substance. Prior to his guilty plea, appellant filed a motion to suppress the PCP, alleging Crone did not have probable cause to search inside the bottle. The trial court denied appellant=s pretrial motion to suppress, prompting this appeal. II. Standard of Review In reviewing a trial court=s ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to the trial court=s determination of historical facts, and reviewing de novo of the trial court=s application of the law to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). III. Analysis Appellant contends the evidence of the PCP contained in the vanilla extract bottle should be suppressed because Crone lacked reasonable suspicion that the bottle contained a weapon or probable cause to search the contents of the bottle. Appellant=s argument regarding reasonable suspicion pertains to Terry v. Ohio, 392 U.S. 1 (1968), which established the authority of an officer to conduct a limited warrantless search of a detainee=s outer clothing to determine if he is armed and dangerous. Id. at 321. Appellant argues that the search of the bottle exceeded the scope of a search for weapons because it was unreasonable for Crone to fear a weapon would be contained in the bottle. However, there are several exceptions to the prohibition of unreasonable searches and seizures under both the Fourth Amendment[2] and Article I, section 9,[3] one of which is the plain view doctrine. See Brimage v. State, 918 S.W.2d 466, 500 (Tex. 1994); Best v. State, 118 S.W.3d 857, 862 (Tex. App.CFort Worth, 2003, no pet.). For the plain view exception to apply, the officer must be in a proper position to view the item or lawfully be on the premises, and the fact that the officer has discovered evidence must be immediately apparent. Zarychta v. State, 44 S.W.3d 155, 166B67 (Tex. App.CHouston [14th Dist.] pet. ref=d), cert. denied, 535 U.S. 1105 (2002). The requirement that the nature of the evidence be immediately apparent means that the officer have probable cause to associate the property with criminal activity. See Texas v. Brown, 460 U.S. 730 (1983); 460 U.S. at 741B42. Assuming there is probable cause, the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. Id. at 741B42. Probable cause exists where the facts and circumstances within the officer=s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Probable cause is a flexible, common‑sense standard and a practical probability that incriminating evidence is involved is all that is required. Miller v. State, 667 S.W.2d 773, 777 (Tex. Crim. App. 1984). In determining whether probable cause for a warrantless search and seizure exists, Courts look to the totality of the circumstances. Amores, 816 S.W.2d at 413. In this case, Crone was in a proper position to view the bottle because he made a valid traffic stop. See Zarychta, 44 S.W.3d at 166B67. The nature of the evidence was immediately apparent and Crone had probable cause to associate the bottle with criminal activity. Crone testified that based upon his training and experience, he knew liquid narcotics were transported in vanilla extract bottles. He stated that on other occasions he had seen narcotics transported in vanilla extract bottles and he believed there was possibly a controlled substance in the bottle. Importantly, because Crone saw the bottle in appellant=s shoe, as an unlikely place for vanilla extract, the facts and circumstances led Crone to believe the bottle contained narcotics. Considering the totality of the circumstances, Crone had probable cause to believe the vanilla extract bottle contained narcotics. Therefore, the search of its contents was proper. See Brown, 460 U.S. at 741B42. To support his contention that Crone lacked probable cause to search the contents of the vanilla extract bottle, appellant relies on several cases in which the courts concluded that the search exceeded the Terry frisk. See, e.g., Davis v. State, 829 S.W.2d 218 (Tex. Crim. App. 1992) (involving evidence found in matchbox); Cardwell v. State, 890 S.W.2d 563 (El Paso 1994, pet. ref=d.) (involving evidence found in food stamp coupon); Campbell v. State, 864 S.W.2d 223 (Waco 1993, pet. ref=d.) (involving evidence found in film cannister); Carey v. State, 855 S.W.2d 85 (14th 1993, pet. ref=d.) (finding evidence in matchbox). These cases, however, are inapposite. Here, the search is distinguishable because Crone was not frisking appellant for weapons when he discovered the vanilla extract bottle. The bottle was in plain view and, under the circumstances, Crone had probable cause to open the bottle. See Brown, 460 U.S. 730.[4] Based on this, we find the trial court did not err in denying appellant=s motion to suppress, and appellant=s sole issue is overruled. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed June 15, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The driver informed Crone that appellant was listed on the rental contract. [2] U.S. Const. Amend. IV. [3] Tex. Const. art. I, ' 9. [4] In Brown, an officer at a routine driver=s license checkpoint stopped a vehicle and observed in plain view an opaque green balloon in the driver=s hand that subsequently fell to the seat. Id. at 733. The officer testified that based upon his experience in arrests for drug offenses, he was aware that narcotics frequently were packaged in balloons. Id. at 734. Therefore, the officer arrested Brown and seized the balloon and other contraband from his vehicle. Id. The Supreme Court held that the officer properly seized the balloon and reversed the Texas Court of Criminal Appeals which held otherwise. Id. at 744.