By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Vehicle passenger was lawfully arrested for
possession of a firearm but has no standing to challenge its seizure (00-3-05)
On June 15, 2000, the Austin Court of Appeals held that a back seat
passenger in a vehicle stopped for a traffic violation could be arrested for
possession of a firearm under the front passenger’s seat. However, the
passenger lacked standing to challenge the lawfulness of either the stop or the
search of the vehicle.
00-3-05. In the Matter of M.R.L., UNPUBLISHED, No. 03-99-00636-CV, 2000 WL
766277, 2000 Tex.App.Lexis ___ (Tex.App.-Austin 6/15/00)[Texas Juvenile Law 295
(4th Edition 1996)].
Facts: M.R.L., a juvenile, was charged with delinquency for possessing more than
one gram and less than four grams of cocaine. See Tex. Fam.Code Ann. § 51.03
(West Supp.2000); Tex.Health & Safety Code Ann. § 481.115(c) (West
Supp.2000). He filed in juvenile court a motion to suppress evidence,
challenging the search that yielded the cocaine. After a hearing, the court
denied the motion. Appellant then pleaded guilty to the offense and was placed
on probation for one year. On appeal, appellant challenges the denial of his
motion to suppress. We will affirm.
M.R.L. was a back-seat passenger in a car stopped for failing to use a turn
signal. Austin Police Officer Jason Bryant testified that after stopping the car
he asked the driver and his two passengers to step out of the car. The three
were frisked by Bryant or his partner, and no weapons were found. Questioning
the driver, Bryant found him to be "extremely nervous and apparently
lying" and so placed him under arrest. Incident to the arrest, Bryant
commenced a search of the car and found a pistol under the front passenger seat.
Bryant testified that finding the gun caused him to fear for his safety, and so
he told his partner that they should search the occupants again to make certain
they were not carrying weapons. He then searched appellant more thoroughly and
found a lump "in his underwear between the area of his genitals and the
rectum on the bottom side by his underwear." Bryant said he immediately
identified the lump as narcotics. Appellant was then arrested for possession of
a controlled substance. A further search of the car revealed a lotion bottle
containing cocaine under the driver's seat. The vehicle's driver and other
passenger were also arrested.
Based on the cocaine found on appellant during Bryant's search, the State filed
a petition charging appellant with delinquency for possessing more than one gram
but less than four grams of cocaine. Appellant filed a motion to suppress,
alleging that the cocaine found was the product of an unconstitutional search. A
hearing was held on the motion, and Bryant was the only witness who testified.
Following denial of his motion to suppress, appellant pleaded guilty pursuant to
a negotiated plea agreement. He was adjudicated delinquent and received a
sentence of one year's probation.
Held: Affirmed.
Opinion Text: Reviewing the denial of this motion to suppress, we look to the
standard articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).
Although we give "almost total deference to a trial court's determination
of the historical facts," we review de novo a determination of reasonable
suspicion or probable cause. Id. Because the trial court made no explicit
findings of historical fact, we review the evidence in the light most favorable
to the trial court's ruling. See Carmouche v. State, 10 S.W.3d 323, 327-28
(Tex.Crim.App.2000). Thus, we will assume that the trial court made
"implicit findings of fact supported in the record that buttress its
conclusion." Id. Because the trial court did not specify the reason for its
denial of the motion to suppress, its ruling will be upheld if it is correct
under any applicable theory of law. See Romero v. State, 800 S.W.2d 539, 543
(Tex.Crim.App.1990).
In his third issue on appeal, appellant complains that the search that uncovered
the weapon in the vehicle was unconstitutional. He claims that the driver was
arrested only after refusing to consent to a search of his vehicle, and that
arresting him for failing to use his turn signal--a traffic offense punishable
only by a fine [FN1]--was constitutionally unreasonable. Because the arrest
violated the driver's Fourth Amendment rights against an unreasonable search and
seizure, appellant argues, the search of the car conducted incident to that
arrest was unconstitutional as well. While appellant raises questions about the
validity of the arrest of the driver and subsequent search of his car, [FN2] the
law is clear that he is not in a position to assert the driver's Fourth
Amendment rights.
FN1. See Tex.Transp.Code Ann. §§ 542.401, 545.104 (West 1999).
FN2. Bryant testified that he placed the driver under arrest because "he
was extremely nervous and apparently lying to me" and because he stuttered
in responding to some of the officer's questions. It is not at all clear that
nervousness alone gives rise to probable cause to arrest a suspect. See
generally Montano v. State, 843 S.W.2d 579, 582 (Tex.Crim.App.1992); Crockett v.
State, 803 S.W.2d 308, 312-13 (Tex.Crim.App.1991). But see Woods v. State, 956
S.W.2d 33, 38 (Tex.Crim.App.1997) (holding that "as consistent with
innocent activity as with criminal activity" test is no longer viable for
determining reasonable suspicion, and overruling Montano and other cases to
extent that they contradict that holding). While the court of criminal appeals
has upheld an arrest for failing to use a turn signal, that court went on to
hold that the officers lacked probable cause to search the car incident to that
arrest. See Beck v. State, 547 S.W.2d 266, 268 (Tex.Crim.App.1976). In Beck, the
court relied heavily on the fact that appellant could not have reached the glove
compartment where marihuana was found from where he was standing, and so
officers could not claim the search of that area was necessary to protect them
from bodily injury during their detention of appellant. See id.
In Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court held that "[a]
person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person's
premises or property has not had any of his Fourth Amendment rights
infringed." Id. at 134. The Court specifically rejected appellant's
argument that the "victim" of an illegal search and seizure should
have the right to assert a violation of the Fourth Amendment rights of a third
party. See id . at 136-37. Here, although the gun found in the allegedly
unconstitutional search of the car led to appellant's arrest, we do not believe
he had such a "legitimate expectation of privacy" in the area
underneath the seat of a car in which he was merely a passenger as to give him
standing to challenge the legality of the search of that area. We dismiss issue
three.
In his second issue on appeal, M.R.L. argues that the motion to suppress
evidence uncovered in the search of his person should have been granted because
the officers lacked probable cause to believe he had committed an offense. Like
adults, juveniles are protected from unreasonable searches by the Fourth
Amendment of the United States Constitution and by article I, section 9 of the
Texas Constitution. See In re A.D.D., 974 S.W.2d 299, 306 (Tex.App.--San Antonio
1998, no pet.). In order for a warrantless arrest or search to be justified, the
State must show the existence of probable cause at the time the arrest or search
was made and the existence of circumstances that made procuring a warrant
impracticable. See Crane v. State, 786 S.W.2d 338, 346 (Tex.Crim.App.1990).
Probable cause to arrest exists where the facts and circumstances within the
arresting officer's knowledge are sufficient to warrant a person of reasonable
caution to believe an offense has been or is being committed. See Guzman, 955
S.W.2d at 87; Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991); Leday v.
State, 3 S.W.3d 667, 671 (Tex.App.--Beaumont 1999, pet. ref'd). An officer may
make a warrantless arrest for any offense committed in his presence or within
his view. See Tex.Code Crim.Proc. art. 14.01(b) (West 1977). In the present
case, Bryant testified that while searching the vehicle incident to the arrest
of its driver, he uncovered a weapon concealed under the front passenger seat of
the car. When asked whether that gun was readily accessible to appellant, who
was riding in the back seat, Bryant acknowledged that while the gun was not as
accessible to the back seat passenger as it was to the person sitting in front,
appellant could have reached the gun under the passenger seat from the back of
the car. When specifically asked whether appellant "could have been in
control of the gun where it was positioned in the car," Bryant answered
that he could. In light of this testimony, we conclude that Bryant had probable
cause to believe that appellant had committed the crime of unlawful possession
of a weapon. See Tex.Penal Code Ann. § 46.05 (West 1994).
Appellant argues that probable cause must be particularized to the specific
individual and that, lacking some "affirmative link" connecting the
gun to appellant, there was no probable cause for the arrest and search. Under
the "affirmative links" doctrine, when an accused is not in exclusive
possession of the place where contraband is found, it cannot be concluded that
the accused had knowledge or control over the contraband absent additional
independent facts and circumstances that affirmatively link the accused to the
contraband. See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986); Britton v.
State, 793 S.W.2d 768, 770 (Tex.App.--Fort Worth 1990, pet. ref'd). Mere
presence at a place where contraband is found will not support a conviction for
possession. See Britton, 794 S.W.2d at 770. Appellant's reliance on the
"affirmative links" doctrine is misplaced, however, because that
requirement speaks to the State's burden of proof in securing a conviction. Far
less evidence is required to establish probable cause than is needed to support
a conviction. See Guzman, 955 S.W.2d at 87; Woodward v. State, 668 S.W.2d 337,
345 (Tex.Crim.App.1982) (opinion on reh'g). To the extent that the
"affirmative links" doctrine applies at all in the context of
determining probable cause to arrest, it is merely part of the standard for
gauging whether the known and reasonably trustworthy information available to
the police would warrant a reasonable person to believe that a particular person
had committed or was committing an offense.
In further arguing that the officers had no probable cause for the search that
yielded the drugs, appellant relies on two cases--Leday, 3 S.W.3d 667 and United
States v. Di Re, 332 U .S. 581 (1948)--for the proposition that a person's mere
proximity to others independently suspected of criminal activity does not,
without more, give rise to probable cause. We believe both cases are
distinguishable on their facts. In Di Re, appellant was a passenger in a car
with two other men. See 332 U.S. at 583. In the back seat was a police informant
who was holding counterfeit gasoline ration coupons. See id. He told officers
that he had received the coupons from the driver. See id. Police then took all
three men into custody and searched them, and an envelope containing a hundred
gasoline ration coupons was found concealed on Di Re. See id. The Court held
that Di Re's mere presence in the car was insufficient to give officers probable
cause to arrest and search him. See id. at 594.
In Leday, appellant was a passenger in a vehicle stopped for speeding. See 3
S.W.3d at 670. When approached by police, the driver voluntarily relinquished a
bag containing about 124 grams of crack cocaine, whereupon both the driver and
Leday were arrested and taken to the constable's office. See id. A search of
Leday's shoes revealed about 28 more grams of crack cocaine. See id. The court
held that the State lacked probable cause to arrest Leday merely because the
driver possessed a large amount of crack cocaine and that the warrantless search
was therefore unjustified. See id . at 673.
Both Leday and Di Re differ from the present case in one significant respect: in
each case, police tried to attach probable cause to the defendant by virtue of
his proximity to another person found in possession of contraband. In Leday, the
driver was in possession of the drugs that the officer claimed gave him probable
cause to arrest and search both driver and passenger. See id. at 670. In Di Re,
the informant in the back seat possessed the contraband and named the driver as
the party who had sold the coupons to him. See 332 U.S. at 583. The Supreme
Court implicitly acknowledged that there may be an inference that everyone on
the scene of a crime is a party to it, holding that any such inference
"must disappear if the Government informer singles out the guilty
person." Id. at 594. Where, as here, the gun was not in the exclusive
possession of any occupant of the vehicle, no circumstances pointed to the guilt
of another occupant, and appellant had access to the gun, we hold that the
police had probable cause to arrest appellant. [FN3]
FN3. That appellant was ultimately charged with delinquency for possession of
cocaine and not with unlawful possession of a firearm does not affect the
determination of probable cause to arrest and search at the scene.
When probable cause is present, the inquiry becomes whether exigent
circumstances existed to obviate the need for a warrant and justify the
warrantless search and arrest of appellant. [FN4] See McNairy v. State, 835
S.W.2d 101, 107 (Tex.Crim.App.1991). Exigent circumstances include factors
pointing to some danger to the officers. See id. (citing Stewart v. State, 681
S.W.2d 774, 777 (Tex.App.--Houston [14th Dist.] 1984, pet. ref'd)). At the
hearing on the motion to suppress, Bryant testified that in his experience
"it's common when someone is carrying one weapon they have more than one
weapon. They also teach that if someone has one firearm it's likely they have
two firearms...." He also testified that he feared for his safety upon
finding the gun in the car, thus prompting him to tell his partner that they
should search appellant and the other occupants of the vehicle again.
FN4. When, as here, an offense is committed in the presence or within the view
of a peace officer, the officer may arrest the offender without a warrant and,
we believe, without the necessity of exigent circumstances. See Tex.Code
Crim.Proc.Ann. art. 14.01 (West 1977); Salazar v. State, 788 S.W.2d 681, 682 (Tex.App.--Texarkana
1990, no pet.). Because appellant argues the absence of exigent circumstances,
however, and because many appellate court opinions are less than clear on the
issue, we will discuss the existence of exigent circumstances in the present
case.
When appellant was initially ordered out of the car, he was frisked for weapons.
See Terry v. Ohio, 392 U.S. 1, 27 (1968) (officer may conduct limited search for
weapons without warrant or probable cause, where he has reason to believe he is
dealing with armed and dangerous person). Appellant suggests that since the
officers had already frisked him, found no weapon, and placed him away from the
car during the search, the officers had no reasonable basis for believing
appellant posed a threat to their safety after finding a gun in the car and
therefore no exigent circumstances were present to excuse the warrantless
search. He has cited no controlling authority for the proposition that after
conducting a Terry frisk, officers may do nothing more to satisfy themselves
that a suspect poses no threat to them. [FN5] Here, Bryant testified that he
believed his partner had frisked all three suspects when they first emerged from
the car. It was after that frisk that the gun was found in the vehicle. We
believe that finding the weapon gave rise to a heightened risk that reasonably
justified Bryant's fear that his partner may have missed a weapon on his
initial, cursory frisk. We hold that, after finding a weapon in the car, the
officers' subsequent fear of further weapons constituted an exigent circumstance
that justified the warrantless search and arrest of appellant.
FN5. Appellant cites us to In re A.D.D., 974 S.W.2d 299, 306 (Tex.App.--San
Antonio 1998, no pet.), for the proposition that after an initial Terry frisk
officers may not search a suspect further. In A.D.D., the court held the
subsequent search, which yielded cocaine, impermissible because the officers
failed to testify to any fact that would justify a second protective weapons
search after the first frisk revealed no weapons. See id. In fact, one officer
testified that he had no articulable fear of A .D.D. See id. We find the present
case distinguishable, because Bryant did testify to an articulable reason for
fearing for his safety after a gun was found while searching the car. Further,
the officers at that point had probable cause to arrest appellant for unlawful
possession of a firearm, so their subsequent search of appellant did not have to
be limited to a Terry frisk.
Because the officers had probable cause to arrest appellant for unlawful
possession of a firearm, and because exigent circumstances were present, we
overrule appellant's second issue on appeal. We therefore need not address
appellant's first issue on appeal, in which he complains that the search that
yielded the cocaine exceeded the scope of a Terry frisk for weapons.
We conclude that the officers had probable cause and exigent circumstances
justifying their search and arrest of appellant. We further hold that appellant
cannot challenge the validity of the search of the vehicle that uncovered the
gun that provided officers with probable cause to arrest him. The juvenile court
therefore did not err in denying appellant's motion to suppress, and we affirm
its judgment.