                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-140-CR


THE STATE OF TEXAS                                                              STATE

                                            V.

ISSIAH BOW MAN                                                             APPELLEE

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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. Introduction

      The State appeals from the trial court’s written order granting Appellee Issiah

Bowman’s motion to suppress evidence. The State concedes that the search of

Appellee’s car incident to his arrest on a traffic warrant is not valid under Arizona v.

Gant, 129 S. Ct. 1710 (2009), but the State contends that the trial court should have

nevertheless denied the motion to suppress because the officers on the scene had



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           See Tex. R. App. P. 47.4.
independent probable cause to search Appellee’s car under the automobile

exception to the warrant requirement. W e affirm the trial court’s order.

                      II. Procedural and Factual Background

      Appellee was indicted on September 12, 2008, for possessing more than four

but less than two hundred grams of a controlled substance. On April 27, 2009, the

trial court conducted a hearing on Appellee’s motion to suppress the evidence

seized during the warrantless search of his vehicle, and the trial court granted the

motion. The State thereafter filed this interlocutory appeal. 2

      Detective Tracey Crow, a Fort W orth Police Department narcotics officer,

testified at the suppression hearing that she received information from a confidential

informant in January 2008 that Appellee was a methamphetamine dealer. On March

24, 2008, Detective Crow learned from the same confidential informant that Appellee

would be at the Albertson’s parking lot near Ridgmar Mall in Fort W orth at a

specified time, that he would be driving a maroon Cadillac, that he would be meeting

with his supplier, and that he would be in possession of a substantial amount of

methamphetamine.

      Officer Harold Cussnick, a dog handler with the narcotics division, and Officer

James Fields, a patrol officer, assisted Detective Crow on the day of Appellee’s

anticipated meeting with his supplier. Officer Cussnick sat in a separate, unmarked


      2
           See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2009).

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patrol unit in another part of the Albertson’s parking lot to conduct surveillance and

communicated by radio with Detective Crow. Officer Fields waited in his patrol car

behind an adjacent business until he received instructions to initiate a traffic stop of

Appellee’s vehicle.

      Detective Crow testified that she had already parked in the Albertson’s parking

lot before Appellee arrived. She watched Appellee exit his vehicle, go inside the

Albertson’s, and return to his vehicle approximately fifteen minutes later. After

Appellee returned to his vehicle, he waited for his alleged supplier to arrive, and

once the alleged supplier arrived, Appellee exited his vehicle and walked toward the

alleged supplier’s vehicle. Appellee then walked back to his vehicle carrying a black

plastic bag.   Detective Crow testified that, based on her observation and the

information she had received from the confidential informant, she believed Appellee

had obtained a bag of methamphetamine from his supplier.

      Officer Fields testified that he initiated a traffic stop of Appellee’s vehicle after

Appellee drove away from the Albertson’s parking lot. Officer Fields said that Officer

Cussnick had witnessed Appellee drive without a seatbelt and that he had personally

seen Appellee turn left without using his signal. Officer Fields testified that the

seatbelt and turn-signal violations were the sole reasons he stopped Appellee’s




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vehicle. After confirming that Appellee had an outstanding warrant, 3 Officer Fields

arrested Appellee, handcuffed him, placed him in the patrol car, and conducted a

search of Appellee’s car incident to his arrest. W hile searching Appellee’s vehicle,

Officer Fields found a black plastic bag in the front passenger seat containing what

he believed to be methamphetamine.

                             III. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim.

App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give

almost total deference to a trial court’s rulings on questions of historical fact and

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor, but we review de novo application-of-law-to-fact questions that do not

turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,

652–53 (Tex. Crim. App. 2002).

      When the trial court grants a motion to suppress without filing findings of fact

or any other explanation, and the only evidence presented in the suppression

hearing is the testimony of the arresting officer—which, if believed, clearly



      3
        Detective Crow testified that she knew before the anticipated meeting that
Appellee had an outstanding warrant.

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constitutes probable cause—there is not a “concrete” set of facts that can be

implied from such a ruling. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App.

2000). In those cases, there is a mixed question of law and fact that turns on an

evaluation of the credibility and demeanor of the sole witness whom the trial court

obviously chose not to believe. Id.; Guzman, 955 S.W.2d at 89. In such cases, we

view the evidence in the light most favorable to the trial court’s ruling, giving it

almost total deference. Estrada, 154 S.W.3d at 607; Ross, 32 S.W.3d at 856;

Guzman, 955 S.W.2d at 89.

                                   IV. Analysis

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). A search conducted without a warrant is per

se unreasonable unless it falls within one of the “specifically defined and well-

established” exceptions to the warrant requirement. McGee v. State, 105 S.W.3d

609, 615 (Tex. Crim. App.), cert. denied, 540 U.S. 1004 (2003); see Best v. State,

118 S.W.3d 857, 862 (Tex. App.—Fort Worth 2003, no pet.). One such exception

is the automobile exception, which provides that “a warrantless search of a vehicle

is reasonable if law enforcement officials have probable cause to believe that the

vehicle contains contraband.” Wiede, 214 S.W.3d at 24. Another exception is a

search incident to arrest. See Gant, 129 S. Ct. at 1723–24. But “[p]olice may


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search a vehicle incident to a recent occupant’s arrest only if the arrestee is within

reaching distance of the passenger compartment at the time of the search or it is

reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at

1723.

        The State correctly concedes that the search of Appellee’s car incident to his

arrest was unreasonable under Arizona v. Gant because Appellee had been arrested

for a traffic warrant and was handcuffed and sitting in a patrol car at the time Officer

Fields searched his car. See id. at 1719, 1723–24. However, despite the invalidity

of the search as one incident to Appellee’s arrest, the State points to language in

Gant that affirmed the viability of the automobile exception and contends that the

officers on the scene had independent probable cause to search Appellee’s car

based on their collective knowledge and observations of the drug transaction in the

Albertson’s parking lot. See id. at 1721 (stating that exceptions other than search

incident to arrest, including automobile exception, “authorize a vehicle search under

additional circumstances when safety or evidentiary concerns demand”); see also

Woodward v. State, 668 S.W .2d 337, 344 (Tex. Crim. App. 1982) (holding sum of

information known to cooperating officers to be considered in determining whether

there is probable cause when there has been some cooperation between the

officers).




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      The State’s reading of Gant is correct, but the mere existence of the

automobile exception does not compel reversal of the trial court’s suppression ruling.

The only witnesses at the suppression hearing were the investigating and arresting

officers, and although their testimony clearly constitutes probable cause if believed,

there are suggestions in the record that the trial court questioned whether Appellee

actually committed traffic violations and whether there was independent probable

cause to search Appellee’s car.        For example, the trial court stated at the

suppression hearing that when the officers saw the bag being exchanged, they

“should have swooped in on [Appellee] at that time and arrested him for that. Not

to stop him on a traffic violation, you know, which could or could not have been

trumped up.” Further, we note that Detective Crow testified that her initial report

never specifically mentions a confidential informant and is written as if the search of

Appellee’s car was solely a search incident to arrest. If the trial court doubted the

veracity of Detective Crow’s testimony concerning the existence or corroboration of

the confidential informant, the State’s remaining evidence in support of probable

cause is the officers’ collective observation of Appellee exchanging a black plastic

bag with a person in another vehicle in a parking lot, and that evidence does not

establish probable cause. Moreover, the trial court stated on the record: “The

problem is, of course, they stopped him just on a traffic arrest. And that falls in line

with Gant.” See 129 S. Ct. at 1723–24.



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      In light of the trial court’s statements, we cannot imply a concrete set of

historical facts or presume the trial court found the officers’ testimony to be entirely

credible. See Ross, 32 S.W .3d at 856. Thus, because we are prevented by the

applicable standard of review from conducting our own factual review, are required

to defer to the trial court’s determinations of credibility and demeanor, and must view

the evidence in the light most favorable to the trial court’s ruling by giving it almost

total deference, we hold that the trial court did not err by granting Appellee’s motion

to suppress. See Estrada, 154 S.W .3d at 607; Ross, 32 S.W .3d at 856; Guzman,

955 S.W .2d at 89; Romero v. State, 800 S.W .2d 539, 543 (Tex. Crim. App. 1990).

W e therefore overrule the State’s sole issue.

                                   V. Conclusion

      Having overruled the State’s sole issue, we affirm the trial court’s order.




                                               ANNE GARDNER
                                               JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 15, 2010




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