Soto, Ricardo

PD-1356-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/20/2015 9:45:15 AM Accepted 10/20/2015 4:54:10 PM ABEL ACOSTA CLERK NO. PI)-1356-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

RICARDO SOTO Appellant V.

STATE OF TEXAS Appellee

APPELLANTOS PETITION FOR DISCRETIONARY REVIEW

Petition from the 66th Judicial District Court of Hill County, Texas Trial Court Cause Number 39,173 and Cause Number l0-15-00029-CR in the Tenth Court of Appeals of Texas

Chelsea Tijerina State Bar No. 24076733 E-mail : attorneychelsea@gmail. com

L.q.w Orr,rcn oF SIMEn &TnrnNs 3706 Bellmead Drive Waco, Texas 76705 (2s4) 412_2300 (888) 3 17 -7 610-Facsimite October 20, 2015

IDENTITY OF PARTIES AND COUNSEL

Appellant, pursuant to Rule of Appellate Procedure 38.1(a), provides the following list of all parties to the trial court's judgment and the names and addresses of all trial and appellate counsel.

Appellant: Ricardo Soto 21040 West Lincoln Avenue New Berlin, Wisconsin 53146

Trial Court Judge: Hon. F.B. (Bob) McGregor Jr. 66th Judicial District Court Judge Post Office Box 284 Hillsboro, Texas 76645 Telephon e: 25 4-582-40 45

Trial Counsel for Appellant: Josh Tetens Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephon e: 25 4-4lZ-23 00

Appellate counsel for Appellant: chelsea Tijerina Simer & Tetens 3706 Bellmead Drive Waco, Texas 76705 Telephon e: 25 4-412-2300

: Mark pratt Hill County District Attorney's Office P.O. Box 400 Hillsboro, Texas 76645 Telephon e: 25 4- 5 82- 407 0

Soto v. Stat+-Appellant's Petition for Disdetionarv Review Page 1

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COLINSEL ......... I INDEX OF AUTHORITIES. ............4 STATEMENT REGARDING ORAL ARGUMENT..... ...... 6

STATEMENT OF THE CASE/ STATEMENT OF PROCEDURAL HISTORY

ISSUE

The Tenth Court of Appeals erred in finding the search of Appellant valid under Teruyv. Ohio. ....... ......7 REASON FOR REVIEW

The Tenth Court of Appeals disregarded established case law from the United states supreme court, this Honorable court, and sisters courts of appeal to find the search of Appellant's person constitutionally justified and within the scope of Terry v. Ohio.. ...... g ARGUMENT

I. Factual Basis.

il. Case Law

A Teryy search is appropriate where the officer has reasonable" articulable facts that a person is armed and dangerous, and the officerstrictlytailorshissearchtoapatdownforweapons................. l0

il. Conclusion ......l7 PRAYER FOR RELIEF.... 18

CERTIFICATE OF SERVICE. 18 CERTIFICATE OF COMPLIANCE T9 Soto v. Stata-Appellant's Petition for Disqetionary Review

APPENDX: ,soto v. state,2Ol5 Tex. App. LE)ils g524 (Tex. App.-waco August 13, 2015, no pet. h.).

Soto v. State-4ppellant's Petition for Discr€tionary Review Page 3

INDEX OF AUTHORITIES Texas Cases: Page No.

Carmouche v. State,l0 S.W.3d 323 (Tex. Crim. App. 2000) ....... 9, ll,12,16 Grffinv. State,215 S.W.3d 403 (Tex. Crim. App.2007) ........ t2 Lippert v. State,664 S.W.2d 712 (Tex. Crim. App. 1934) ........ t2 Del Carmen Moreno v. State,7g7 S.W .2d 2Zg (Tex. App.-Corpus Christi 1990, no pet.).. .... 12,16 Guevarsv. state,6 S.w.3d 75g (Tex. App.-Houston [lst Dist.] rggg). 11. 16 O'Hara v. Stote,27 S.W.3d 54g (Tex. Crim. App. 2000) .. .. .. .. .. I I Ramirezv. State,672s.W.2d4g0 (Tex. Crim. App. 19g4) ....... 16

state v' Phillips, 752 s.w.2d r94 (Tex. App.-Amarillo 19gg, no writ.).. ....... 12, 16 state v. williams,312 s.w.3d 276 (Tex.App.-Houston [l4th Dist.] 20l0,no pet.). 13,16

Woodv. Stote,sls S.W.2d 300 (Tex. Crim. App.1974)...... .... t3 Worthey v. State,805 S.W.2d 435 (Tex. Crim. App. 1991) ......... t6

Soto v. State--Appellant,s petition for Discretionary Review Page 4

X'ederal Cases: Page No.

Coolidge v. New Hampshire,4O3 U.S. 443 (1971) ........ 16

Katzv. UnitedStates,3gg U.S.347 (1967). ........ ll Marylandv. Buie,494 U.S.325 (1990)...... ................ ll Minnesotav. Carter,525 U.S. g3, gg (199g).. ......... lt Sibronv. New York,392 U.S. 40 (196S)... . 9, 10, 12,13,15, 16

Terry v. Ohio.392 U.S. I (1968). . 2, g,9, 10, tl,l2, 14, 15, 16

Ybarrav. Illinois,444 U.S. 35 (1979).. I l, 16

Federal Statutes: U.S. Cotisr. Amend. IV

State Statutes: Page No.

Soto v. StatFApp€llant s petition for Discrotionary Review Page 5

TO THE HONORABLE JUDGES OF TI{E COURT OF CRIMINAL APPEALS:

Oral argument would not benefit this Honorable Court as the issues in this case are quite straightforward.

ST

This is a criminal case in which Ricardo Soto was convicted of possessing less than one gram of cocaine.l In Cause Number 38,173, Mr. Soto was indicted

as follows:

"RfCARI)O SOTO hereinafter styled Defendant, on or about the 27rH day of FEBRUARY, 2014 and before the presentment of this indictment, in the County of Hill and State aforesaid, did then and there intentionally or knowingly possess a controlled substance, namely, cocaine of less than I gram, including any adulterants or dilutants.,'2

Appellant moved to suppress evidence obtained during law enforcement,s

illegal search of his person.' The district court denied Appellant,s Motion to Suppress.a

The case was tried to the bench on December 5, 2014 in the 66th Judicial

O c.n. at2o-2t). "] (I C.R. at 4). 'n (I C.R. 5-6). 1t c.R. at z;.

Soto v. State-Appellant's petition for Discletionarv Review Page 6

District Court before the Honorable Judge F.B. (Bob) McGregor.5 During the bench trial, Appellant re-urged his motion to suppress evidence and the district

court again denied said motion.u Th. district court found Appellant guilty of possession of a controlled substance in penalty group one in the amount of one gram or less and assessed punishment as follows: 20 months jail probated for state

4.5 years and a fine of $2,000.00.7

Appellant timely filed a Notice of Appeal on December 5,2014.r on appeal, the Tenth Court of Appeals upheld the legality of the search and denied

Appellant's sole issue.e Thereafter, the Tenth Court denied Appellant,s Motion for Rehearing on September 3,2015. The Court granted one motion for an extension of time in which to file the Petition for Discretionary Review; therefore, the

Petition for Discretionary Review is due by November 4,2015.

ISSUE

The Tenth Court of Appeals erred in upholding the unconstitutional search

of Appellant.

s 1t c.R. at20). o 1t R.R. at t7). ' 1t c.R. at20-2.1\. 8 c.R. at27). e 1tsoto v. state:,2015 *r0 (Tex. App.-waco August 13,20r5)(mem. Tex. App. LEXIS g524 at

Soto v. StatFAppellant's petition for Discretionary Review Page 7

The Tenth Court of Appeals has blatantly disregarded the Fourth Amendment's guarantee against uffeasonable searches. In Mr. Soto,s case, the Tenth Court of Appeals held that the reasonable suspicion necessary to warrant a

Terry frisk need not be particularized to the person searched.l0 The Tenth court of

Appeals further held that Terry v. ohio permits an officer to remove a person,s outer clothing during a search for weapons if the person's outer clothing is .onot I transparent."l

The Tenth Court of Appeals' decision in this case conflicts with decisions from the United States Supreme Court and this Honorable Courtl2 as well as with

decisions from sister courts of appeal.t' Additionally, the Tenth Court of Appeals

"has so far departed from the accepted and usual course ofjudicial proceedings...

as to call for an exercise of the Court of Criminal Appeals, power of supervision."r4 Left unchecked by this Honorable Court, the Tenth Court of

op., not designated for publication).

i!::^:t:,n,-r^o_r,t}*ltt trTll 8s.24:at *4 (rex. App._waco August r3,20rs,no pet. h.) (mem. op., not designated for publication). " Id.,at*5. 12 Tpx. R. App. P.66.3(c). 13 Trx. R. App. P.66.3(a). 'a TEx. R. App. p.66.3(0.

Soto v. State-Appellant's petition for Discretionary Review Page 8

Appeals' holding in Mr. Soto's case will exponentially expand the justifications

for and the breadth of a Terrv search.

ARGUMENT

An officer may frisk a person for weapons under Terry v. ohio only when the officer has reasonable, articulable facts directed to the person searched that the

person is armed and dangerous.tt Despite the particularity requirement, the Tenth

Court of Appeals found the officer's search of Appellant valid under Terry v. ohio

based solely on the officer's knowledge that Appellant's companion had a criminal

history.r6

Although the search approved by Terry v. Ohio consists solely of a,,limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault,rT the Tenth Court of Appeals found the officer,s removal of Appellant's outer clothing constitutionally sound based on the fact that

Appellant's outer clothing was ,,not transparent.',18

L Fsctual Busis

The Tenth Court of Appeals set forth the following facts in its opinion:

ts Trrry v. ohio.392 u.s. l,2s (196g); sibron v. New york,392u.s. 40, 65 (196s); carmouche v. State,10 S.W.3d 323,329 (Tex. Crim. App. 2000). '6 soto v. state,2015 Tex. App. LEXIS s5t4, at*4 (Tex.App.-waco August 13,20r5,no pet. f;) (mem. op., not designated for publication). " Sibron,392U.S. at65.

Soto v. Stat+-Appellant,s petition for Discretionary Review Page 9

soto was travelling in a vehicle with four other people which was stopped for vehicle equipment violations by Joe Abreu who, at the time, was working for the Hilsboro porice Department. The driver of the vehicle gave his consent for Abreu to search the vehicle. After getting everyone out of the vehicle, Abreu decided to pat-down all the occupants for weapons. Soto was wearing a cap. Abreu attempted to pat-down the cap and removed it from Soio's head. when he removed the cap, a folded dollar bill fell out. The dollar bill contained under an ounce of cocaine...t'

Abreu removed five individuals, including soto, from the vehicle. He had information that at least one of the other individuals had a criminal history of possessing a controlled substance with intent to distribute and was known to traffic large amounts of cocaine...

Abreu testified that Soto was wearing a cap and that the cap was not transparent to be able to see whether there was a weapon in it. Further, Abreu testified that a bladed weapon like a razorbrade inside a cap would not necessarily be felt when a cap is patted against someone's head. Through training at the poii." academ/ and experience, Abreu had learned that the only proper way to search a cap for bladed weapons is to remove the cap fromthe person's head.2O

IL Case Law

To conduct afriskfor weapons, on officer must have reasonable, articulable facts purticularized to the person to be seurched that the person is armed and dangerous.

Law enforcement may not place hands on a citizen 'oin search of anything',

tl Soto,2015 Tex. App. LEXIS g524, at *5. le^ Soto,2015 Tex. App. LEXIS 8524, at *1. 'o Id., at*4.

Soto v. StatFAppellant's petition for Disqetionary Review

without "constitutionally adequate, reasonable grounds for doing so.,,2t The Fourth Amendment of the united states constitution prohibits unreasonable

searches and seizu."s." "searches conducted without a wartantare unreasonable

per se under the Fourth Amendment, subject only to a few and well-delineated exceptions."23

In the interest of officer safety, the United States Supreme Court created an exception to the general rule prohibiting warrantless searches which allows officers to frisk or "pat down" a person to determine whether the person is carrying a *"apon.'o

o'Terry does not authorize a frisk for weapons in all confrontational

encounters."25 A "weapons frisk" is justified only where the officer can point to

specific, articulable facts which reasonably lead him to conclude that the suspect might possess a weapott. 'u Because every individual is ,oclothed with constitutional protection against an unreasonable search,"27 a Terry search for

weapons must be based on a reasonable suspicion particularized to the person

" Sibronv. New York,392U.S.40,64 (1963). 22 u.s. coNsr. Amend ry; Minnesotav. carter,525u.s. g3, gg (199s). 23 o'Hora v. State,27 S.W.3d 548, 550 (Tex. crim. App. 2000) (citing Katz v. (Jnited states, 389 U.S. 347,3s7 (1967)). ,** v. Ohio.392 U.S. r,24 (rs6|). "|i 26 GLtevqrav. state,6 s.w.3d at764 (citing Marylandv. Buie,4g4 u.s. 325,333-334 (1gg0). Car*ouche v. Siate,10 S.W.3d 323,32g (Tex. Crim. App. 2000).

Soto v. Stats-Appellant,s petition for Discretionarv Review Page I 1

searched.28

A person's mere proximity to others independently suspected of criminal activity does not, without more, justiff a search of that p.rror.r, An officer may not search a person in a vehicle merelv because another occupant of the vehicle is

suspected of criminal activity.3o

The nature of the suspected criminal activity is a relevant consideration in

determining whether a frisk is warranted.3l However, an officer may not o.base a

determination that his safety is in danger solely upon the basis that .the suspect is

a drug dealer."'32

b- The scope of o Terry search must be carefutty timited.

Under Terry v. Ohio, the frisk must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments

for the assault of the police officer."3' Th. search for weapons approved in Terry

consists solely of a limited patting of the outer clothing of the suspect for

2' Ybarra v. Illinois,444 U.S. 94 (lg7g). gS, 28,. Llfyyt v. State,664 S.W.2d 712,717 (Tex. Crim.App. 1934). ,i Dei carmen Moreno 2e v. state,7g7 s.w.2d,22g,n0Jit g"r. App.-corpus christi 1990, no p^et.) (citing Terry v. Ohio,392 U.S. 40 (1963). v. Phillips,752 s.w.2d rg4, 196 (Tex. App.-Amarillo 19gg, ,", Yrt '' no writ.). C'armouche,l0 S.W.3d at 330. stqry,2r5 s.w.3d 403,4r1 (Tex. crim. App.2007)(citing Teffy,392 " !:,fly:. ^^ 392 U.S. at 29. u.s. at 33)).

Soto v. StatFAppellant,s petition for Discretionarv Review Page'12

concealed objects which might be used as instruments of assault.3a A search for

narcotics, rather than weapons, during the frisk is not allowed.35

"The puqpose of a limited search after investigatory stop is not to discover evidence of crime but to allow the peace officer to pursue investigation without fear of violence' So long as the officer... has reason to believe that the suspect is armed and dangerous' the officer may conduct a weapons search limited in scope

to the purpose of enabling the officer to pursue investigation without fear of violence'"36 when conducting a pat-down search, an officer may not employ a more intrusive means of searching the suspect without first patting down the suspect and feeling potential weapons.3T

The officer lacked reasonabre suspicion directed to Appellant that Appellant was armed and dangerous.

In Mr. Soto's case, the officer not only testified that he did not fear for his

3o_ Sibronv. New York,392U.S.40,65 (196g) 3s Id. at 64. 36 wood v. state,s15 S.W.2d 300, 306 (Tex. crim. App. lg7|)(holding the search appropriate where "limited to a 'pat down"'). 37 stat, v. williams, itz s.w.: d276,283 (Tex. App.-Houston Il4th Dist.] 20T0,no pet.) (an offtcer's requesting the suspect to move her bra rtrup du. to fear she might huu. u knife in her bra went beyond the bounds of a Teffy frisk); Sibroi v. New york,392U.S. 40, 65 (196g) (holding that the officer exceeded the permissible scope of a pat down search for weapons by making oono attempt at aninitial limited exploration for arms" and instead .lhrust[ing] his hand into [Appellant's] pocket").

Soto v. State-Appellant's petition for Discretionarv Review Page 13

safety when he detained Mr. Soto and his companions on the side of the highway3s but also that Appellant and his companions "seemed to be very cooperative.,'3e

The officer further stated that neither Appellant nor any of the other occupants of the vehicle made "any threatening gestures or comments."40 The officer stated that

at the time of the detention, he had no knowledge that Appellant had any criminal history.ar

Despite Appellant's compliance during his encounter with the officer, the officer decided to frisk Appellant for weapons. The Tenth Court of Appeals held that the officer was justified in searching Appellant because the officer had "removed five individuals [from the vehicle], including Appellant," one of whom "had a criminal history of possessing a controlled substance with intent to distribute and was known to traffic large amounts of cocaine."a2

By holding that the search of Appellant's person was justified under Terry v. Ohio based solely on law enforcement's knowledge that Appellant's associate

had a criminal history, the Tenth Court of Appeals stands in gross contravention of this Court's and the Supreme Court's rulings. As such, this Court should grant the

"3e 1l R.R. at2o). 11 n.R. at 18); (1 R.R. at2t). oo (1 R.R. at2o-21\. ot R.R. at24). o' 11 soto v. state,2015 Tex. App. LEXIS 8524, at *4 (Tex. App.-waco August 13,20r5,no pet.

Soto v. StatFAppellant's Petition for Discretionary Review Page 14

Petition for Review.

d- The ofJicer exceeded the scope of rerry by removing Appellant's outer garment.

In this case' the officer's frisk of Appellant was not confined in scope to a "limited patting of the outer clothing" as authorized by Tnry v. ohio.a3 Rather than patting down Appellant's outer clothing, the officer opted to remove it.aa By

removing Appellant's outer clothing, the officer employed a more intrusive means

of searching the suspect without first patting down the suspect and feeling

potential weapons.ot

The officer testified to the following regarding his search of Appellant: Defense counsel: o'you didn't pat down [Appellant],s hat prior to removing it, did you?,'

Officer: "No, sir.,'

Defense Counsel: 'oAnd once you did pat down the hat after you removed it, there wasn't anything that you felt by touch or contraband that you felt by touch in the hat, was there?"

Officer: 'No, sir."46

The Tenth Court of Appeals' bizarre reasoning for why the officer did not

h.). o3 Sibronv. New York,392U.S.40,65 (196g). o.a. Soto,2015 Tex. App. LEXIS g5i4, at *5. ot see state v. williams,312 s.w.3d 276,283 (Tex. App.-Houston a6 [14th Dist.] 20r0,no pet.). 1t R.R. at2r\.

Soto v. StatFAppellant's petition for Djscretionarv Review Page 15

exceed the scope of Terry by removing Appellant's cap was as follows: 66the cap

was part of his outer clothing, like a jacket or overcoattt and .6was not transparent to be able to see whether there was a weapon in it... [A] bladed weapon like a razotblade inside a cap would not necessarily be felt when a cap is

patted against someone,s head.,,a7

e' The Tenth Court of Appeals'ruling conflicts with decisions from the united states supreme court,lhi, Honorable court and Sister Courts of Appeal

The Tenth Court of Appeals' decision in this case conflicts with decisions from the United States Supreme Court,as this Honorable Court,ae and sister courts

of appeal.50 With the exception of Mr. Soto's case, there is no court-created

exception to the general rule that a wartantless search is unreason able per se5r

enabling law enforcement to remove a suspect's outer cloth in order to conduct a

weapons search.

By finding that removing a person's cap falls within the purview of Terrv

47 Id. a8 Terryv. ohio.392 u.s. 1 (196s); sibronv. New york,392u.s.40,65 (196g); ybaffav. Illinois,444 U.S. 85,94 (1979). 4e ca,mouche v. state,lO s.w.3d 323,32g (Tex. crim. App. 2000) ; Balentine v. state,Tl s.w.3d 763,769 (Tex. Crim. App. 2002); worthey v. stati, g05 s.w.2d 435,438(Tex. crim. Ramirez v. state, 672 s.w.2d 480, 4g2(Tex. irim. App. I "" Dellnjtl; Soo^ 984). carmen Morenov. state,797 s.w.2d228,230-231 (Tex. App.-corpus pet'); State v. Phillips,752 S.w.2d rg4, 196 (Tex. App.-Amarillo christi 1gg0, no 19gg, no writ.); Guevara v. state,6 S.W.3d 759,764 (Tex. App.-Houston [lst Dist.] lggg).

Soto v. Stata-Appellant's petitlon for Discrelionarv Review Page 16

due to the opaqueness of the cap, the Tenth Court of Appeals has created an

appalling precedent whereby law enforcement may strip a person of his outer garments based on the officer's inability "to be able to see,,52 through a person,s clothing to determine whether a person possesses a weapon.

III. Conclusion

Upholding the illegal search of Appellant required the Tenth Court of Appeals to wholly disregard law from this Honorable Court and the Supreme Court53 and to so far depart from the accepted and usual course of judicial

proceedings, as to demand an exercise of the Court of Criminal Appeals,power of supervision.ta Therefore, this Honorable court should grant review.

51 See Coolidge v. New Hampshire,403 U.S. 443 (lg7l). 52 Id. 53 TBx. R. App. P.66.3(c). 54 Tnx. R. App. P.66.3(0.

Soto v. StatFAppellant's petition for Dissetionarv Review Page'17

PRAYER FOR RELIEF

Mr' Soto prays that this Court grant his Petition for Discretionary Review.

Respectfully submitted,

Law Or,rrcr or Snnnn & Tnrnxs

/s/ Chelsea Tiierina Chelsea Tijerina 3706 Bellmead Drive Waco, Texas 76705 (2s4) 412_2300 (888) 3 t7 -7 610_Facsimile E-mail : attorneychelsea@gmail. com State Bar No. 24076733 ATTORNEY F'OR APPELLANT

On October 20,2015, a copy of this Petition for Discretionary Review was

delivered to the Hill county District Attorney by email.

/s/ Chelsea Tiierina Chelsea Tijerina

Soto v. Stat+-Appellant,s petition for Discreilonary Review Page 18

CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. g.4 certificate of compliance with Type-volume Limitation, Typeface Requirements, and Type Styre Requirements

Thi: brief complies with the type-volume limitation of Tpx. R. App. 1. p. 9'4(i)(2)(D) because this brief contains 2,2gg words, excluding the parts of the brief exempted by Tnx. R. App. p. 9.4(iX1), and

2. This brief complies rvith the typeface requirements and the type style requirements of TBx. R. App. P. 9.a(e) because this brief has beln produced on a computer in conventional typeface using Microsoft word in Times New Roman 14 point font in the body of the trief and Times New Roman 12 point font in the footnotes.

ls/ Chelsea Tijerina Chelsea Tijerina Attorney for Appellant

Soto v. Stat*Appellant,s petition for Discretionarv Review Page 19

Page I

f Lextsf'tre#s. I of I DOCIIMENT RICARDO SOTO, Appeilantv. THE STATE OF TEXAS, Appeilee

No. 10-15-00029-CR

couRT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO 2015 Tex App. LEXIS BS24

August 13,2015, Opinion delivered August 13,2015, Opinion Fited

NOTICE: PLEASE CONSULT THE TEXAS pat-down all the occupants for weapons. RULES OF APPELLATE PROCEDURE FOR CITA- Soto was wear_ ing a cap. Abreu attempted to pafdown ttre TION OF UNPUBLISHED OPINIONS. cap and re_ moved it from Soto's head. When he removed tir" .up, u folded dollar bill fell out. The dollar bill contained PRIOR HISTORy: [*l] From the 66th District under an ounce of cocaine. prior to tial, Soto filed Court. Hill County, Texas. Trial Court No. 3g,173. a motion to suppress the [*2] cocaine. After a hearing, the trial court denied the motion. It was again den"ied durin! DISPOSITION: Affirmed. Soto's fial.

MoTToN To SUPPRESS JUDGES: Before Chief Justice Gray, Justice Davis, and Justice Scoggins. In his sole issue on appeal, Soto asserts that the trial col]rt lrred in denying his motion to suppress. Specifi_ OPINION BY: TOM GRAY cally, Soto contends the pat-down of Soto'was not valid purluant to Terry v. Ohio, 392 U.5.1, gg,S. Ct. Ig6g, 20 OPINION L^1(. 2-d 589 (1965) because l) the officer was not afraid of Soto or the others that were removed from the MEMORANDUM OPINION vehicle; and,2) the officer exceeded the scope of Terry by removing Soto's cap. Ricardo Soto was convicted after a bench trial of possession of less than one gram of cocaine When reviewing a trial court's ruling on a motion and sen_ to tenced to 20 months in a state jail facility. See suppress, we view the evidence in the light most favora_ TEx. HEALTH & SAFETY C)DE ANN. S 48L115 (.West 2010). ble to the trial court's ruling. State vl Robinson, 334 His sentence was suspended, and Soto was placed on S:!r.3! 176: 778 (Tex. frim. App 20r t); State v. Keily, community supervision for four and a half years. Be_ 204 S..W.3d 808, 818 eex. Crim. epp.'1OOO1. The hial cause the trial court did not err in denying Soto,s judge is the sole trier of fact ana judge motion of the credibility to suppress, we affirm the fiial court's judgment. of the witnesses and the weight to bJ given to their tes_ timony. Wiedev. State, 214 S.W.Sa 17,-24_25 (Tex. Crim. BACKGROLT..ID App. 2007). We give almost total deference to a trial express or implied determination of historical :ourt's . Sllo was travelling in a vehicle with four other peo_ ple which was stopped for vehicle equipment violations tacts and review de novo the court's application of the law of search and seizure to those ficts. Hereford ,! Joe Abreu who, at the time, wai working for the Hillsboro Police Deparfinent. The driver of the vehicle State, 339 S.W.3d t I I, t j8 (Tex. Crim. App. 201l; v. State v. Dixon, 206 S.W.3d s!!, S!0 gave his consent for Abreu to search the vehicle. eex. Crim App. 2006); After State v. Ross, 32 S.W.3d gS3, g56 gu. Cii*. getting everyone out of the vehicle, Abreu decided lpp. to 2000).

Page 2 2015 Tex. App. LEXIS 8524. x

Solo complains that Abreu exceeded the TERRYFRISK \*r, of^a Terry frisk for scope weapons because Abreu removed The Fourth Amendment prohibits unreasonable Soto's cap rather than patting it down on Soto,s head. searches and seizures. O,Hara v. State, 2Z S.W.3d 548, Abreu testified that Soto was wearing a 550 (Tex. Crim. App. 2000). Searches conducted cap and that without tfre cap was not transparent to be able to a warrarfi are unreasonable per se under the Fourth see whether

lryenlmeyt, subject only to a few specifically estab_ 1r... yur a weapon in it. Further, Abreu iestified that a bladed weapon like a razorblade inside lished and well-delineated exceptions. ia. a cap would not On" exception necessarily be felt when a cap is patted occurs when an officer- [*3] is justified in believing against someone,s that head. Through training at the police u.ui*y an individual is armed and presently dangerous. and expe_ 1d. In rience, Abreu [*5] had learned that the only that situation, the officer may conduct u pui_do*n p.op". way search to search a cap for bladed weapons is to remove^the to determine whether the person is carrying aweapon. cap Id. from the person's head. B".fo1" conducting a pat-down ,"*.h, ai officir need only-be able to ',point to specific and articulable Police officers may conduct a limited facts, search for which, taken together with rational inferences from yeapols_ of the suspect's outer clothing. See Balentine v. those facts, reasonably warrant State, 7t S.I4/.3d 763,_7_6-9 (Tex. CrimlApp. [the] intrusion.,, Terry v. Ohio, 2002); Car_ 392 U.S. I, 21, 88 S. Ct. 1868, 1B80, 20 L. Ed. mouche v. State, t0 S.try.3d 323, 32g 2d B8g elx. Crim. App (1968); O'Hara, 27 S.W.3d at 550_551. The officer need 2.290)r::" alg rerry v. ohio, 3s2 u.i. t, 27, 88 s. ct. 19!_b" absolutely certain rhat the individual is armed. 1868, 20 L. Ed. 2d SS9 e96g). Soto cites to no authority O'Hara, 27 S.W.3d at S5I. The issue is whether that prohibits the removal of a cap that is a rea_ being worn sonably prudent person would justifiably believe prior to a pat-down of the cap. He only safety or that of others was in danger. ierry, 392 that his .it., from Houston where it was held that an off"icer,s ,o u ,ur" U.S. at request 27. for a suspect to move her bra strap due to f.* that she Tight !?y. a weapon in her bra exceeded the scope of a JustiJication Terry frisk. See Stqte v. Williams, 312 S.lry.3d ZiO, ZAS (Tex. App.-Houston Il4th Dist.J 2010, no pet.). frisk Soto pursuant to Terry because AbrJu testified Iililliams is distinguishable because the frisk that in_ he was not in fear of his safety. The Court of v9ly9d urdergarments. Soto's cap was part Criminal of his outer Appeals has made it clear that an officer,s failure to tes_ clothing, like a jacket or overcoat, not his undergar_ tify that he was afraid of the suspect does not automati_ ments.' When it was removed from Soto,s head to-be cally invalidate a frisk for weapons. O,Hara v. Stqte, 27 :h::k:d for weapons according to the officer,s training, a S:Y_34 548, 551 (Tex. Crim. App. 2000); Jones folded dollar bill fell out. When abreu retrieved v. State, the dol_ 69 S.W.3d 225, 278 (Tex. App._-lustin i002, pet. lar, he noticed a white substance in it refd). that he believed to Regardless of whether Abreu stated he was be cocaine. Soto confirmed the substanaa imia, tt. *u, cocaine, as validity of the search.must be analyzed by determining did a lab test. Accordingly, because tfr. .up was outer whether the facts available to Abreu at ttre tlme of the clothing, Abreu did not exceed the scope of T"rry, and, search would warrant a reasonably cautious person the trial court did not err denying Sotob motion to to sup_ believe that the action taken, l*41 i.e. a frisk io, press under this theory. *.up_ ons, was appropriate.

Abreu removed five individuals, including Soto, I We note the distinction [*61 between un_ dergarments, clothing, and outer ciothing from the vehicle. He had information that at least and be_ one of lieve the distinction is critical to the manner the other individuals had a_criminal history of possessing in a controlled substance with intent to distribute and yhich_ a Terry pat_down can be properly admin_ was istered. h9* to traffic large amounts of cocaine. Coupled to_ gether, these facts made Abreu feel that his safety would CONCLUSION be in danger if he did not pat down the individuals, in_ cluding Soto, before Abreu turned his back on them Soto's sole issue is ovemrled, and the trial and court,s conducted a search of the vehicle. Based on these facts, judgment is affirmed. Abreu was justified in conductin g a Terry frisk for TOM GRAY weapons. Thus, under this theory, the trial court did not en in denying Soto's motion to suppress. Chief Justice Before Chief Justice Grav. Scope Justice Davis, and

Page 3 2015 Tex. App. LEXIS 8524,*

Justice Scoggins Opinion delivered and frled August 13, 2015 Affrmed Do not publish