No. 01-04-00723-CR
Opinion issued October 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 945479.
Panel consists of Justices TAFT, KEYES, and HANKS.
TIM TAFT, Justice.
Appellant, Hugo Rodriguez, appeals from a judgment following a pre-trial ruling denying his motion to suppress, after which he entered his plea of guilty, pursuant to a plea-bargain agreement, to the charge of possession of cocaine weighing at least 400 grams. See Tex. Health Safety Code Ann. § 481.112 (Vernon 2003). The trial court assessed appellant's punishment at 10 years in prison and a $5,000 fine. We address (1) whether appellant had standing to complain of the unlawful search and seizure of a vehicle that he was driving and (2) whether the trial court erred in overruling appellant's motion to suppress based upon the traffic stop and subsequent impoundment and inventory of the vehicle. We affirm.
Factual Background
While conducting surveillance at 4215 Oneida on April 11, 2003, Pasadena Police Department Officer Will Kelly observed Tomas Ruiz place a blue container in the trunk of an Acura. Appellant arrived at the residence and drove away in the Acura. Sergeant Greg Dalton, a narcotics officer who was also part of the surveillance, followed appellant and witnessed him "exceeding the speed limit." Sergeant Dalton radioed Officer Cesar Brosas to "contact the driver, identify the driver, [and] make him aware of the violations." After having witnessed appellant hit the curb on the right side of the outside lane at least twice, cross the left line into the on-coming lane of traffic, and swerve back into his lane, Officer Brosas pulled appellant over for failure to maintain a single lane. Appellant, who was the vehicle's sole occupant, came to a stop in a private business parking lot, taking up several parking spaces. Officer Brosas arrested appellant for having no driver's license or insurance. Officer Brosas did not ask appellant whether someone else could take care of the vehicle, nor did he consider leaving the vehicle in the parking lot. Appellant never requested that Officer Brosas let him call someone to get the car. Officer Earl Morrison, who was a Deer Park police officer assigned to the Pasadena Narcotics Task Force, arrived at the scene, drove the vehicle to the impound lot, and inventoried it. Officer Isaac Villareal interviewed appellant after his arrest. Appellant told him that on this occasion, as on 14 prior occasions, he had gone to 4215 Oneida to pick up a car containing cocaine and to deliver the vehicle according to instructions that he had received by cell phone. Appellant did not identify the owner of the car or the person with whom he had this arrangement. Appellant filed motions to suppress his statement to Officer Villareal and the physical evidence collected after the stop. He alleged in his motion to suppress that the traffic stop and the subsequent impoundment and inventory of the vehicle did not meet the requirements of a valid inventory exception to the warrant requirement. Appellant did not testify at the pre-trial motion-to-suppress hearing. The trial court granted appellant's motion to suppress his statement to Officer Villareal and denied appellant's motion to suppress evidence from the search and seizure of the vehicle. The trial court did not enter findings of fact or conclusions of law. Standing
Appellant's sole point of error challenges the denial of his motion to suppress the evidence from the search and seizure of the Acura. Appellant claims that the traffic stop and subsequent impoundment and inventory search of the Acura were illegal because Officer Brosas lacked either reasonable suspicion or probable cause to stop the vehicle and because the subsequent search did not meet the requirements of a valid inventory exception to the warrant requirement under the Fourth Amendment of the United States Constitution and Article I, Section 9 of the Texas Constitution. See U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005); Garza v. State, 137 S.W.3d 878, 882 (Tex. App — Houston [1st Dist.] 2004, pet. ref'd). On appeal, the State challenges appellant's standing to raise a suppression issue regarding a vehicle in which he had no reasonable expectation of privacy. A. Timeliness
Failure to prove standing may be raised at any time, including for the first time on appeal. State v. Klima, 934 S.W.2d 109, 110-11 (Tex.Crim.App. 1996). The rationale underlying this principle is that the State is not raising a new issue, but is merely challenging whether a defendant has met his obligation of alleging and proving standing, which is an element of a Fourth Amendment claim. Id. at 111. B. Judicial Estoppel
In his reply brief, appellant argues that the State is estopped from arguing that he lacks standing because the State filed a "Notice of Seizure and Intended Forfeiture" in a proceeding subsequent to the trial, referring to appellant as the owner and possessor of the vehicle. Appellant relies on Matthews v. State for the proposition that "[j]udicial estoppel holds that a party who has made a sworn statement in a pleading, a deposition, oral testimony or affidavits in a judicial proceeding is judicially estopped from maintaining a contrary position in a subsequent proceeding." Matthews v. State, 165 S.W.3d 104, 110 (Tex.App.-Fort Worth 2005, no pet. h.) (holding that State is estopped from arguing standing when State argued in trial court that appellant owned vehicle and consented to search). Appellant contends that the State is not permitted to assert conflicting theories on this issue. However, there is no indication in the record before us that the sworn statements on which appellant bases his claim of judicial estoppel were made in connection with the trial of this case or that they were made during a prior judicial proceeding, as required by the authority on which he relies. See Crowder v. Tri-C Resources Inc., 821 S.W.2d 393, 397 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Thus, we hold that appellant has failed to establish the requisite elements of judicial estoppel. C. The Law and Analysis
Standing is a question of law, which we review de novo. State v. Johnson, 896 S.W.2d 277, 285 (Tex.App.-Houston [1st Dist.] 1995), aff'd, 939 S.W.2d 586 (Tex.Crim.App. 1996). The burden to prove standing rests with the defendant during the motion-to-suppress hearing. Wilson v. State, 692 S.W.2d 661, 671 (Tex.Crim.App. 1984). The appellate court may affirm the trial court's ruling denying the motion to suppress on the ground that the appellant failed to establish standing as a matter of law, even though the issue was not considered during the hearing on the motion. Id. To have standing, or a reasonable expectation of privacy, a defendant must show two things: (1) that he had an actual, subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question, and (2) that the subjective expectation of privacy is one that society is prepared to recognize as reasonable. Jackson v. State, 745 S.W.2d 4, 7-8 (Tex.Crim.App. 1988); see Flores v. State, 871 S.W.2d 714, 720 (Tex.Crim.App. 1993) (holding that appellant did not have standing to contest search because no evidence was offered during hearing that he had any privacy interest or right to use his mother's car); Green v. State, 682 S.W.2d 271, 294 (Tex.Crim.App. 1984) (determining that appellant did not have standing to contest search of his brother's car); Esco v. State, 668 S.W.2d 358, 361 (Tex.Crim.App. 1982) (concluding that defendant lacked standing to contest search of vehicle owned by co-defendant). Appellant relies on dictum in State v. Allen in which this Court observed, "A non-owner driving alone stands in the shoes of the owner. No one else is present to prevent access to any part of the car, or to object to an improper search by the police." State v. Allen, 53 S.W.3d 731, 733 (Tex.App.-Houston [1st Dist.] 2001, no pet.). However, the question presented in Allen was not whether a sole occupant has standing to object to an improper search, but, rather, whether a non-owner driver has standing when the owner is also present. See id. (holding that non-owner drivers have no legitimate expectation of privacy with respect to automobile's trunk when owner is also present). Here, although appellant had the keys to the Acura and was the sole occupant at the time of the stop, no evidence was admitted that he had permission to possess the vehicle or that he had an actual, reasonable, subjective expectation of privacy in the searched premises. The only evidence introduced regarding the vehicle was that, on 14 prior occasions, appellant had gone to 4215 Oneida to pick up a vehicle and had delivered it according to instructions that he had received by cell phone and that this was the car that he had been driving when he was arrested. Appellant did not introduce evidence that the registered owner of the vehicle gave him consent to be in the car or that the person with whom he had had this arrangement was authorized by the owner to give appellant permission to use the vehicle. In the absence of any evidence showing that appellant had a legitimate expectation of privacy in the vehicle, appellant lacks standing to complain of the search. See Flores, 871 S.W.2d at 720; Sutton v. State, 711 S.W.2d 136, 138 (Tex.App.-Houston [14th Dist.] 1986, no pet.). Accordingly, we hold that appellant did not have a reasonable expectation of privacy in the vehicle and its contents so as to have standing to complain of the unlawfulness of any search or seizure of the property in question. Merits of the Motion to Suppress
Even if appellant had had standing to raise his challenges, the record would sufficiently have supported the trial court's overruling of appellant's motion to suppress. In his sole point of error, appellant contends that the trial court erred because (1) the police did not have reasonable suspicion or probable cause to stop him; (2) the search was not pursuant to a valid inventory; (3) the search was not a valid search incident to arrest; and (4) there was no probable cause to search the trunk. A. Standard of Review
In reviewing the trial court's decision to deny a motion to suppress, the reviewing court applies a bifurcated standard of review, affording almost total deference to the trial court's determination of facts supported by the record, while conducting a de novo review of the trial court's application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). If the trial court does not make explicit findings of fact, the appellate court reviews the evidence in the light most favorable to the trial court's ruling. Id. at 327-28. The appellate court assumes that the trial court made implied findings of fact supported in the record that buttress its conclusion. Id. at 328. B. Reasonableness of Traffic Stop
In his sole point of error, appellant first argues that the stop was illegal because the evidence failed to establish reasonable suspicion or probable cause to believe that appellant committed a traffic offense. Section 545.060(a) of the Texas Transportation Code provides, "An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely." Tex. Transp. Code Ann. § 545.060(a) (Vernon 1999). A routine traffic stop is a detention and must be reasonable under both the United States and Texas Constitutions. See Davis v. State, 947 S.W.2d 240, 242-45 (Tex.Crim.App. 1997); Garza, 137 S.W.3d at 882-83. To be reasonable, an investigative traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, (1983); Davis v. State, 947 S.W.2d 240, 243-45 (Tex.Crim.App. 1997). During an investigative traffic stop, it is reasonable for an officer to check for outstanding warrants and to demand identification, a valid driver's license, and proof of insurance from the driver. See Davis, 947 S.W.2d at 245 n. 6. To make a reasonable-suspicion determination, the court must look at the "totality of the circumstances" of the case to see whether the detaining offer had a "particularized and objective basis" for suspecting legal wrongdoing. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750 (2002). Additionally, a police officer's decision to stop a vehicle is reasonable if the officer has probable cause to believe that the driver has committed a traffic violation. Whren v. U.S., 517 U.S. 806, 810, 116 S. Ct. 1769, 1772-73 (1996); Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000). When several officers are cooperating, their cumulative information should be considered in determining whether probable cause exists. Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App. 1982). Appellant contends that his swerving into other lanes was not proven to be unsafe, as required by section 545.060(a) of the Texas Transportation Code, and that Officer Brosas's decision to stop him was unreasonable because he did not have reasonable suspicion or probable cause to believe that appellant had committed a traffic violation. However, Officer Brosas saw appellant swerve out of his lane, cross over the line into the on-coming traffic lane, and strike a curb at least twice, all in what he described as an unsafe manner. Officer Brosas testified that there were one or two other cars driving in the immediate area on the street where appellant was driving. Officer Dalton also witnessed appellant driving in excess of the speed limit and communicated this by radio to Officer Brosas. Because of the collective knowledge of the cooperating officers, Officer Brosas had not only reasonable suspicion, but also probable cause to stop appellant. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App. 2003); Astran v. State, 799 S.W.2d 761, 764 (Tex.Crim.App. 1990); see also Martinez v. State, 29 S.W.3d 609, 611-12 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (holding that defendant's failure to maintain single lane by swerving onto shoulder allowed trooper to pull over driver of vehicle). We hold that the record sufficiently supports the trial court's implied conclusions that the traffic stop was reasonable. C. Search Pursuant to Valid Inventory
Appellant also argues that the search and seizure of evidence from his vehicle was unlawful because (1) the seizure of the vehicle was not a proper impoundment, given that reasonable alternatives to impoundment were available; (2) the police officers did not follow departmental inventory procedures; (3) the inventory search was a pretext for an investigative search; and (4) the combination of pretext and failure to follow procedures rendered the search invalid. Reasonable cause for impoundment of an automobile may exist when the driver is removed from his automobile and placed under custodial arrest and his property cannot be protected by any means other than impoundment. Lagaite v. State, 995 S.W.2d 860, 865 (Tex.App.-Houston [1st Dist.]1999, pet. ref'd); Garza, 137 S.W.3d at 882-83. The State bears the burden of proving that an impoundment is lawful and may satisfy its burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment were available to ensure the automobile's protection, (3) the impounding agency had an inventory policy, and (4) the policy was followed. Garza, 137 S.W.3d at 882. Inventories serve to protect (1) the owner's property while it is in custody, (2) the police against claims or disputes over lost or stolen property, and (3) the police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S. Ct. 3092, 3097 (1976); Garza, 137 S.W.3d at 882. 1. Proper Impoundment
Appellant argues that the seizure of the vehicle was not a proper impoundment because the police officers had reasonable alternatives besides impoundment to ensure protection of the vehicle. He asserts, "Pasadena's policy of impounding a vehicle each time the police arrest the driver, despite reasonable alternatives, in combination with the fact that, in this case, the vehicle could have been safely left in the parking lot, establish that the impoundment was unlawful, rendering the subsequent inventory unlawful." Appellant complains that, because the vehicle was in a parking lot and was not impeding traffic, Officer Brosas should have asked appellant whether someone else could have removed the vehicle. When impoundment follows custodial arrest, courts consider the following factors to determine the reasonableness of impoundment: (1) whether someone was available at the scene of the arrest to whom the police could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration as to require police to take protective measures; (5) whether there was some reasonable connection between the arrest and the vehicle; and (6) whether the vehicle was used in the commission of another crime. Josey v. State, 981 S.W.2d 831, 842 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). Although there is no evidence that appellant's car was impeding traffic or that it could not be locked, other factors demonstrate that the impoundment of appellant's vehicle was reasonable under the circumstances. First, there was no one available at the scene to whom the officers could have released the car. Officer Brosas testified that he arrested appellant after having learned that he did not have a driver's license or proof of insurance. Appellant was alone in the car; there was no one else at the scene to whom the car could have been given; and appellant failed to identify anyone with the right to possess the vehicle. Second, at the time that Officer Brosas initiated impoundment procedures, appellant was under arrest and being transported to the city jail. Thus, the detention of appellant would likely be of such duration as to require police to take protective measures. Third, there was some reasonable connection between appellant's arrest and the vehicle. Officer Brosas testified that he saw appellant driving the car immediately before he arrested appellant. Officer Brosas initiated the stop because appellant had committed a traffic violation. This demonstrates that a reasonable connection between the arrest and the car existed. See Garza, 137 S.W.3d at 882-83; Josey, 981 S.W.2d at 842. Officer Brosas testified that the vehicle was parked across several parking spaces in a private business parking lot and that appellant was alone and under arrest. See Garza, 137 S.W.3d at 882-83. Peace officers need not independently investigate possible alternatives to impoundment absent some objectively demonstrable evidence that alternatives did, in fact, exist. See id. Thus, it was not incumbent upon the officers to locate the manager of the private business to determine whether the vehicle that appellant was driving could remain in the private parking lot. We hold that the record sufficiently supports the trial court's implied conclusion that no alternatives other than impoundment were available to ensure the automobile's protection. 2. Departmental Inventory Procedures
Appellant next argues that the State failed to prove that there were standardized inventory procedures and that the police officers followed those procedures. Officer Morrison and Sergeant Goodman both testified that the Pasadena Police Department required inventories of all impounded vehicles as a matter of policy and practice. Officer Morrison testified that his department's policy required an inventory of every vehicle impounded and that he had no discretion on that matter. Sergeant Goodman, an instructor at the Pasadena Police Academy, also testified that, when a vehicle is impounded, the officer must inventory the entire vehicle in order to comply with the police department's rules. Pursuant to the Pasadena Police Department's policy, Officer Morrison drove appellant's vehicle to the impoundment lot to inventory the vehicle. While conducting the inventory of the vehicle, Officer Morrison found a cell phone in the passenger compartment and eight kilograms of cocaine in an open container in the trunk. He seized the items and included them in his supplemental offense report. Officer Morrison testified that it is not part of the police department's policy to make a separate inventory list of the items seized. This evidence met the State's burden of establishing standard procedures for inventory searches. See Moberg v. State, 810 S.W.2d 190, 195 (Tex.Crim.App. 1991). We hold that the record sufficiently supports the trial court's implied conclusion that there were standardized inventory procedures and that Officer Morrison followed those procedures. 3. Inventory Search as Pretext
Appellant further asserts that the search and seizure violated the Fourth Amendment because "the actual inventory was a pretext for an evidentiary search without probable cause." Appellant asserts that an inventory is reasonable and lawful under the Fourth Amendment only if conducted for the purposes of an inventory and that it may not be used by police officers as a ruse for general rummaging in order to discover incriminating evidence. See Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635 (1990). Appellant argues that the police officers in this case were not interested in safeguarding valuables because Officer Morrison's inventory of the vehicle omitted "items of value," clothing, and a description of scratches and dents, which were subsequently included in an inventory later done by a non-officer city employee. Appellant thus concludes that the inventory of his vehicle was a pretext for an investigative search. In support of his argument, appellant presented evidence that Rene Arredondo, a City of Pasadena employee assigned to the impoundment lot, also inventoried the vehicle, noting "items of value," clothing, and a description of scratches and dents that had been omitted from Officer Morrison's inventory. However, Arredondo also testified that his primary responsibility was to conduct a visual inspection of the interior of the vehicle, without entering the vehicle, and primarily to document the outside condition to the vehicle, i.e., any body damage. According to Arredondo, if a vehicle is driven to the lot by an officer, the officer performs the inventory of the contents of the vehicle on the lot; afterwards, the lot attendant fills out a form listing items of value apparent from the visual inventory and body damage to the vehicle. Additionally, the police officers' testimony at trial specifically negated appellant's contention that the inventory search was a pretext to cover up the officers' actual intent to search for drugs. Officer Brosas testified that it was the Pasadena Police Department's policy to arrest a motorist who had committed a traffic violation and did not have identification and insurance. Officer Morrison testified that appellant's vehicle was impounded pursuant to Pasadena Police Department policy, which provided that, when a motorist was taken into custody, the vehicle that he was operating would be impounded and inventoried to protect the department from liability. Sergeant Kelly also testified that the inventory of appellant's vehicle was not conducted so that police officers could search for the container placed in the trunk, but, rather, because "[Pasadena Police Department's] rules say we must do [an inventory]. It protects us down the road." The trial court is the sole trier of fact at a hearing on a motion to suppress, and, as such, it may choose to believe or to disbelieve any or all of a witness's testimony. Taylor v. State, 604 S.W.2d 175, 177-78 (Tex.Crim.App. 1980). The record supports an implied finding by the trial court that the inventory was not a ruse. Considering the evidence, we hold that the inventory was not a pretext for an investigative motive. 4. Validity of Search
Appellant argues that the combination of the pretextual inventory and the officers' failure to follow procedures rendered the search invalid. Appellant asserts that, because inventory procedures were not followed, Officer Morrison's cursory inspection could have no purpose other than to search for evidence. However, as discussed above, the record supports implied findings of fact by the trial court that an inventory policy existed and was followed by Officer Morrison and an implied conclusion that the inventory was not a pretext for an evidentiary search. Accordingly, we hold that the trial court did not err in implicitly concluding that the search was valid. D. Conclusion
Having concluded that the there was reasonable suspicion and probable cause to stop appellant, and that the search was conducted pursuant to a valid inventory, we decline to address appellant's contentions that the search was not a valid search incident to arrest and that there was no probable cause to search the trunk. See Laney v. State, 117 S.W.3d 854, 863 (Tex.Crim.App. 2003) (allowing appellate court to uphold trial court's ruling if ruling is reasonably supported by record and correct on any theory of law applicable to case). Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress physical evidence. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.