                                                                                     ACCEPTED
                                                                                 13-14-00680-CR
                                                                 THIRTEENTH COURT OF APPEALS
                                                                        CORPUS CHRISTI, TEXAS
                                                                            4/27/2015 1:14:50 PM
                                                                               DORIAN RAMIREZ
                                                                                          CLERK



                      #13-14-00680-CR
                                                        FILED IN
                                                13th COURT OF APPEALS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
      Thirteenth Court of Appeals, Corpus        4/27/2015
                                            Christi        1:14:50 PM
                                                    & Edinburg
                                                  DORIAN E. RAMIREZ
                                                         Clerk


                   THE STATE OF TEXAS,
                            Appellant

                               v.

                     ISRAEL RAMIREZ,
                            Appellee



    ON STATE’S APPEAL FROM THE 94TH DISTRICT COURT
         OF NUECES COUNTY, CAUSE #13-CR-2209-D


                     STATE’S BRIEF
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Dist.
                                Nueces County Courthouse
                                901 Leopard St., Rm. 206
                                Corpus Christi, TX 78401
                                361.888.0410 phone
                                361.888.0399 fax
                                cliff.gordon@nuecesco.com


ORAL ARGUMENT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

Appellant:   The State of Texas, District Attorney for the 105th Judicial
             District, represented by

             Appellate counsel:

                  A. Cliff Gordon, Asst. Dist. Atty.
                  Nueces County Courthouse
                  901 Leopard St., Rm. 206
                  Corpus Christi, TX 78401

             Trial and appellate counsel:

                   Mark Skurka, District Attorney
                   Elizabeth Schmidt, Asst. Dist. Atty.
                   Nueces County Courthouse
                   901 Leopard St., Rm. 206
                   Corpus Christi, TX 78401

Appellee:    Israel Ramirez, represented by

             Trial and Appellate Counsel:

                   Todd Robinson
                   Batek & Robinson, LLP
                   102 N. Staples St.
                   Corpus Christi, TX 78401




                                   ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES .................................................................................. iv
STATEMENT OF THE CASE .............................................................................. vi
ISSUE PRESENTED ............................................................................................. vii
     Whether probable cause existed for Officer Garcia to search the
       capsule attached to Defendant Ramirez’s keychain ........................... vii
STATEMENT OF FACTS .......................................................................................1
SUMMARY OF THE ARGUMENT ......................................................................3
ARGUMENT ............................................................................................................5
     Officer Garcia had probable cause to search the heroin-containing
        capsule ..........................................................................................................5
           A. Legal standards .....................................................................................5
           B. The totality of the circumstances facing Officer Garcia and
              found by the trial court would have led a person of
              reasonable prudence to believe that heroin would be found
              in the capsule attached to Defendant Ramirez’s keychain ............8
PRAYER ..................................................................................................................13
CERTIFICATE OF COMPLIANCE ....................................................................14
CERTIFICATE OF SERVICE ...............................................................................14




                                                            iii
                                       INDEX OF AUTHORITIES


Cases
Allen v. State, 13-13-00188-CR, 2014 WL 4402135 (Tex. App.—Corpus
      Christi Sept. 4, 2014, no pet.) .......................................................................9
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) .................................7
Angulo v. State, 727 S.W.2d 276 (Tex. Crim. App. 1987) ..................................7
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) .................................7
Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) .......................9
Dixon v. State, 206 S.W.3d 613 (Tex. Crim. App. 2006) ...............................5, 10
Elardo v. State, 163 S.W.3d 760 (Tex. App.—Texarkana 2005, pet.
     ref’d) ................................................................................................................9
Florida v. Harris, 133 S. Ct. 1050 (2013) ...........................................................6, 7
Furr v. State, 13-14-00287-CR, 2015 WL 307757 (Tex. App.—Corpus
     Christi Jan. 22, 2015, pet. filed) ...................................................................9
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ................................11
Illinois v. Gates, 462 U.S. 213 (1983) ...............................................................7, 10
Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014) ..............................9
Miller v. State, 458 S.W.2d 680 (Tex. Crim. App. 1970) ...................................11
Navarette v. California, 134 S.Ct. 1683 (2014) .....................................................9
Rodriguez v. State, 13-12-00233-CR, 2014 WL 1514061 (Tex. App.—
     Corpus Christi Apr. 17, 2014, no pet.) .....................................................10
Rojas v. State, 797 S.W.2d 41 (Tex. Crim. App. 1990) ......................................10
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................5
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................5
Sullivan v. State, 626 S.W.2d 58 (Tex. Crim. App. 1981) .................................13

                                                             iv
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) ................................7, 12




                                            v
                        STATEMENT OF THE CASE

Nature of the Case         On January 17, 2014, a Grand Jury indicted
                           Ramirez for possession of less than one gram of
                           heroin, a state jail felony. CR 4.

Course of Proceedings      On June 11, 2014, Ramirez filed a boilerplate
                           Motion to Suppress (CR 15), which the court
                           heard on September 24 (RR 1).

Trial Court’s Disposition On November 3, 2014, the court granted the
                          motion to suppress. CR 29.




                                    vi
                         ISSUE PRESENTED

Whether probable cause existed for Officer Garcia to search the capsule
attached to Defendant Ramirez’s keychain.




                                  vii
                            STATEMENT OF FACTS

      On June 30, 2014, Robstown Police Department officers Ernest

Mendoza and John Garcia were dispatched to a disturbance between males

and females yelling and screaming. Finding of Fact #51. Upon arrival,

Officer Mendoza saw 3-4 persons in the road arguing, and he exited his

vehicle and separated them. #6. Lori Ramirez, sister of Defendant-Appellee

Israel Ramirez, was one of the persons present. #8.

      Lori told Officer Mendoza that her brother “[Israel]’s got heroin on

him.” #10. At that point, Officer Garcia saw Defendant Ramirez begin

walking away from the scene towards his home. #8. Officer Garcia, who

arrived immediately after Officer Mendoza, also observed Ramirez

walking away from the scene. ##7, 9. As Officer Mendoza attempted to

make contact with Ramirez, he relayed Lori’s statement to Officer Garcia

about Ramirez possessing heroin. #14.




1
       For brevity in citing to the Findings of Fact, numbers followed by the number
sign (#) refer to the Finding of Fact number. All of the trial court’s findings of fact,
which were made and entered on remand from this Court, are located at Supp. CR 17-
20.
                                           1
     Ramirez was nervous and trying to avoid the officers.        #20.   As

Officer Garcia continued try to make contact with Ramirez, Ramirez

walked away from him and behind an SUV. #18. Officer Mendoza walked

around the other side of the SUV, and the officers made contact with

Ramirez there. #19.

     Ramirez kept reaching into his right pocket, which forced Officer

Garcia to order him to keep his hands on the SUV. #21. Officer Garcia

asked Ramirez if he had any weapons, and he responded that he had a

pocket knife. #22. Garcia then placed Ramirez in handcuffs and asked if he

could remove the knife and the contents of Ramirez’s pocket. ##22, 23.

Ramirez answered “okay” or “yes.” #24.

     Officer Garcia retrieved a knife and keychain from Ramirez’s right

pocket, attached to the keychain was a silver, capsule-shaped container.

#25. The knife was legal, and Ramirez was not yet under arrest. ##27, 28.

Ramirez had not consented to a search of the capsule. #34.

     Garcia’s experience as a peace officer includes investigating close to

150 illegal drug cases and training to recognize illegal drugs. #17. Officer


                                     2
Garcia had also previously found drugs in containers like the one attached

to Ramirez’s keychain. #30. Looking for narcotics, Officer Garcia opened

the capsule and discovered what he believed to be black tar heroin. #33.

     On January 17, 2014, a Grand Jury indicted Ramirez for possession of

less than one gram of heroin, a state jail felony. CR 4; TEX. HEALTH &

SAFETY CODE § 481.115(b). On June 11, Ramirez filed a boilerplate Motion

to Suppress. CR 15. On September 24, the trial court heard the motion. RR

1.

     At the hearing on the motion to suppress, Ramirez limited his attack

to the propriety of Officer Garcia search of the capsule. Supp. CR 17 (#2).

On November 3, the court granted the motion to suppress. CR 29. This

State’s appeal ensued. CR 30.

                   SUMMARY OF THE ARGUMENT

     Under the totality of the circumstances facing Officer Garcia and

found by the trial court, probable cause existed to search the capsule

attached to Defendant Ramirez’s keychain. A witness present at the scene,

Ramirez’s sister, told another officer that Ramirez had heroin on his


                                     3
person. When Officer Garcia received this information, he saw Ramirez

trying to walk away from the scene of the disturbance to which the officers

had been dispatched. Ramirez was nervous, trying to avoid the officers,

and kept reaching into his right pocket.

     When Ramirez consented to Officer Garcia’s request to empty the

contents of that pocket, he retrieved a keychain to which was attached a

silver, capsule-shaped contained.          In Officer Ramirez’s experience

investigating close to 150 drug cases, he has found drugs in similar

containers. Thus, upon removing and viewing the capsule, a person of

reasonable caution would have believed that heroin would probably be

found in the capsule.

     In sum, Officer Garcia had probable cause to search and open the

capsule, which allegedly contained heroin.          The trial court’s legal

conclusion to the contrary was erroneous, is reviewed de no novo, is

entitled to no deference, and should be reversed by this Court.




                                     4
                               ARGUMENT

Officer Garcia had probable cause to search the heroin-containing
capsule.

A.   Legal standards.

     In reviewing a trial court’s ruling on a motion to suppress, appellate

courts employ a bifurcated standard, giving almost total deference to a trial

court’s determination of historic facts and mixed questions of law and fact

that rely upon the credibility of a witness, but applying a de novo standard

of review to pure questions of law and mixed questions that do not depend

on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273

(Tex. Crim. App. 2013).

     When a trial court makes explicit fact findings, the appellate court

determines whether the evidence (viewed in the light most favorable to the

trial court’s ruling) supports these fact findings. State v. Kelly, 204 S.W.3d

808, 818 (Tex. Crim. App. 2006). Whether a specific search or seizure is

reasonable or supported by probable cause under the Fourth Amendment

is subject to de novo review. E.g., Dixon v. State, 206 S.W.3d 613, 616 (Tex.

Crim. App. 2006).
                                      5
      A police officer has probable cause to conduct a search when “the

facts available to him would warrant a person of reasonable caution in the

belief that contraband or evidence of a crime is present.” Florida v. Harris,

133 S. Ct. 1050, 1055 (2013) (quotation omitted); see also Estrada v. State, 154

S.W.3d 604, 609 (Tex. Crim. App. 2005) (“Probable cause to search exists

when reasonably trustworthy facts and circumstances within the

knowledge of the officer on the scene would lead a man of reasonable

prudence to believe that the instrumentality of a crime or evidence of a

crime will be found.”).     Summarizing the core principles pertaining to

probable cause, the Court of Criminal Appeals has written,

      Probable cause is a “fluid concept” that cannot be “readily, or
      even usefully, reduced to a neat set of legal rules.” Though the
      concept evades precise definition, it involves “a reasonable
      ground for belief of guilt” that is “particularized with respect to
      the person to be searched or seized.” “Probable cause” is a
      greater level of suspicion than “reasonable suspicion” and
      requires information that is more substantial in quality or
      content and a greater reliability with respect to the source of
      information. At least in the context of searches, probable cause
      involves “a fair probability that contraband or evidence of a
      crime will be found.” Probable cause is a relatively high level of
      suspicion, though it falls far short of a preponderance of the
      evidence standard.


                                       6
Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (footnotes and

citations omitted).    The test for probable cause is an objective one,

unrelated to the subjective beliefs of the arresting officer. E.g., Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

      When determining probable cause, courts look to the totality of the

circumstances. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see

also Florida v. Harris, at 1055 (describing “all-things-considered approach”).

When considering all of the circumstances, the question is not whether

certain conduct is “innocent” or “guilty”—

      [P]robable cause requires only a probability or substantial
      chance of criminal activity, not an actual showing of such
      activity. By hypothesis, therefore, innocent behavior frequently
      will provide the basis for a showing of probable cause; to
      require otherwise would be to sub silentio impose a drastically
      more rigorous definition of probable cause than the security of
      our citizens demands. . . . In making a determination of
      probable cause the relevant inquiry is not whether particular
      conduct is “innocent” or “guilty,” but the degree of suspicion
      that attaches to particular types of non-criminal acts.

Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983), quoted with approval in Angulo

v. State, 727 S.W.2d 276, 279 (Tex. Crim. App. 1987).



                                       7
B.    The totality of the circumstances facing Officer Garcia and found
      by the trial court would have led a person of reasonable prudence
      to believe that heroin would be found in the capsule attached to
      Defendant Ramirez’s keychain.

      The State does not contend that Ramirez explicitly or implicitly

consented to the search of the capsule attached to his keychain. Rather,

Ramirez plainly consented to Officer Garcia removing the keychain and the

capsule attached to it from his pocket. Supp. CR 19 (Findings ##21-24).

Thus, the critical question becomes whether, upon removing and viewing

the capsule, Officer Garcia had probable cause to search and open it. The

answer to this legal question is “Yes.”

      The tip from Ramirez’s sister, Lori, that he possessed heroin. The

sequence of events culminating in probable cause to search began with

Lori’s tip to Officer Mendoza, relayed to Officer Garcia, that Ramirez “had

heroin on him.” Supp. CR 18 (Finding #10). Without that information, a

reasonable officer may not have been able discern the likely reason for

Ramirez’s odd behavior. See id. at 18-19 (nervousness [#20], avoidance of

the officers [##8, 9, 18, 20], and repeatedly reaching into his right pocket

[#21]).
                                      8
      Because Lori was subject to investigation at the scene for the

disturbance call, the State concedes that she is not a citizen-informant

whose tip would be presumed reliable. E.g., Elardo v. State, 163 S.W.3d 760,

768-69 (Tex. App.—Texarkana 2005, pet. ref’d) (“[I]information provided

by private citizens whose only contact with the police was to witness the

crime is presumed to be reliable.”). But Lori was more than an anonymous

tipster; she identified herself to police, was present at the scene, and could

be held to account for the accuracy and veracity of her tip.2 Additional

indicia of reliability enjoyed by Lori’s tip included that it singled out the

specific person at the scene alleged to be in possession of contraband

(Defendant), specified the type of contraband (heroin), specified where it


2
       Cf. Derichsweiler v. State, 348 S.W.3d 906, 914-15 (Tex. Crim. App. 2011)
(“[I]nformation provided to police from a citizen-informant who identifies himself and
may be held to account for the accuracy and veracity of his report may be regarded as
reliable.”); see also Allen v. State, 13-13-00188-CR, 2014 WL 4402135, at *3 (Tex. App.—
Corpus Christi Sept. 4, 2014, no pet.) (citing Derichsweiler; not designated for
publication); Navarette v. California, 134 S.Ct. 1683, 1689 (2014) (finding increased
veracity from anonymous informant’s use of 911 call due to “features that provide for
identifying and tracing callers, and thus provide some safeguards against making false
reports with immunity . . . [a] reasonable officer could conclude that a false tipster
would think twice before using such a system”); Matthews v. State, 431 S.W.3d 596, 600
(Tex. Crim. App. 2014) (citing Navarette); Furr v. State, 13-14-00287-CR, 2015 WL 307757,
at *5-6 (Tex. App.—Corpus Christi Jan. 22, 2015, pet. filed) (discussing and
distinguishing Matthews; not designated for publication).
                                           9
was (“on him”), and a basis therefore (she was present at the scene with

Defendant and is Defendant’s sister). See Illinois v. Gates, 462 U.S. 234

(“[E]ven if we entertain some doubt as to an informant’s motives, his

explicit and detailed description of alleged wrongdoing, along with a

statement that the event was observed first-hand, entitles his tip to greater

weight than might otherwise be the case.”), cited with approval in Dixon v.

State, 206 S.W.3d at 617 n.16. Thus, an officer could reasonably consider

Lori’s tip, while not sufficient in itself to establish probable cause, as

possessing sufficient reliability to support probable cause if corroborated.

Cf. Rojas v. State, 797 S.W.2d 41, 44 (Tex. Crim. App. 1990) (“[W]hen an

anonymous tip is relied upon to furnish probable cause, the informer must

assert personal knowledge or there must be additional facts showing

reason to believe that the contraband sought will probably be where the

information indicates it will be.”); Rodriguez v. State, 13-12-00233-CR, 2014

WL 1514061, at *3 (Tex. App.—Corpus Christi Apr. 17, 2014, no pet.)

(“Probable cause may arise from a tip supplied by a confidential informant




                                     10
if it is corroborated. Eisenhauer v. State, 678 S.W.2d 947, 955 (Tex. Crim.

App. 1984)”; not designated for publication).

      Circumstances corroborating Lori’s tip that Defendant possessed

contraband. Upon learning that a witness identified Ramirez as having

heroin     in     his   possession,   Officer   Garcia   faced   the   following

circumstances—

      1.        Ramirez was walking away from the scene of the disturbance
                that prompted the police presence. Supp. CR (Findings ##5, 8,
                9).

      2.        Ramirez was trying to avoid the officers. #20.

      3.        Ramirez was nervous. #20.

      4.        Ramirez kept reaching into his right front pocket. #21.

At this point, a reasonable officer would likely believe that Ramirez had

contraband in that pocket. See, e.g., Miller v. State, 458 S.W.2d 680, 683 (Tex.

Crim. App. 1970) (finding suspect’s nervousness and furtive movements as

factors supporting probable cause); Guzman v. State, 955 S.W.2d 85, 90 (Tex.

Crim. App. 1997) (“[A]voiding officers is a factor to consider when




                                         11
determining probable cause.”). However, Officer Garcia still did not yet

search.

      When Ramirez agreed that Officer Garcia could empty his pocket, the

officer retrieved a closed, silver, capsule-shaped container. Supp. CR 19

(Findings ##24, 25). Officer Garcia recognized the capsule as similar to

containers in which he has found contraband in the past, which involves

investigating close to 150 drug cases and training to recognize illegal drugs

such as heroin. ##17, 30. See, e.g., Wiede v. State, 214 S.W.3d at 25 (“[T]he

training, knowledge, and experience of law enforcement officials is taken

into consideration” when determining probable cause.”). Only then did

Officer Garcia open the capsule to search for narcotics and find heroin

inside. ##32, 33.

      Viewed in isolation, none of the circumstances found by the trial

court would support probable cause to search the capsule. However, when

considered together, as required by the applicable standard of review,

these particulars more than suffice to warrant a person of reasonable

caution to believe that heroin would be present in the capsule. Sullivan v.


                                     12
State, 626 S.W.2d 58, 60 (Tex. Crim. App. 1981) (“[O]bjects which are not

inherently suspicious can become so under certain circumstances. Thus, the

State can show that the seizing officer was aware, at the time of the seizure,

that contraband drugs are commonly packaged in a particular manner.

This specialized knowledge, in combination with suspicious facts and

circumstances, can sustain the State’s burden of proof.”; citations omitted).

                                  PRAYER

      For these reasons, the State requests that the Court reverse the trial

court’s order granting Defendant’s motion to suppress and grant the State

all other proper relief.

                                       Respectfully Submitted,

                                       /s/ A. Cliff Gordon
                                       A. Cliff Gordon
                                       Tex. Bar #00793838
                                       Asst. Dist. Atty., 105th Dist.
                                       Nueces County Courthouse
                                       901 Leopard St., Rm. 206
                                       Corpus Christi, TX 78401
                                       361.888.0410 phone
                                       361.888.0399 fax
                                       cliff.gordon@nuecesco.com



                                      13
                   CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 3122 words.



                      CERTIFICATE OF SERVICE

      On April 27, 2015, a true copy of the foregoing was served via EServe
on the following:

     Mr. Todd Robinson
     Batek & Robinson, LLP
     102 N. Staples St.
     Corpus Christi, TX 78401
     Counsel for Appellee

                                  /s/ A. Cliff Gordon_______________
                                  A. Cliff Gordon




                                    14
