                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00290-CR


NATHAN THOMAS DANIEL                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                     TRIAL COURT NO. CR14-0063

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                        MEMORANDUM OPINION 1

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      Appellant brings a single issue challenging the trial court’s denial of his

motion to suppress evidence seized as a result of an officer’s inventory search of

his car pursuant to an impoundment. Appellant does not challenge the officer’s

credibility or any of the facts adduced at the suppression hearing; instead, he




      1
       See Tex. R. App. P. 47.4.
contends that the law does not allow an inventory search of an impounded

vehicle unless the driver has first been validly placed under arrest. We affirm.

                                   Background

      Springtown police officer Shawn Owens stopped appellant after observing

appellant commit several traffic violations. Appellant showed Officer Owens an

expired insurance card, and his car’s registration had expired. Officer Owens

decided to impound the car and perform an inventory search. As a result of the

inventory search, Officer Owens found a baggy containing methamphetamine

residue on the floor of the car and a syringe containing methamphetamine in a

backpack in the trunk of the car; 2 he arrested appellant upon finding the syringe.

                                     Analysis

      In the motion to suppress context, we review a trial court’s decision on

application-of-law-to-fact questions that do not turn on credibility and demeanor

de novo.     Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).

Appellant’s sole argument on appeal––which comports with his argument before

the trial court––is that

             [a]n Appellant must be under arrest to have his vehicle
      inventoried. This ensures that the degree of probable cause
      necessary to inventory (i.e. search) the vehicle has been met. By
      failing or refusing to place Appellant under arrest before the
      inventory, it amounted to an unlawful search that yielded further
      evidence beyond the scope of the initial stop and purpose of

      2
       Appellant did not and has not challenged the scope of the inventory
search. Instead, he contends that the inventory search, being improper, was
beyond the scope of the initial stop.


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      citations for vehicle license and insurance. This was precisely what
      the second prong of Terry v. Ohio is designed to prevent.

[Emphasis added.] Thus, appellant contends that an officer cannot perform an

inventory search of an impounded vehicle without first placing the occupant of

the vehicle under arrest.

      In Roberts v. State, this court held that an inventory search pursuant to an

impoundment was legal under the totality of the circumstances, not because the

driver had been arrested before the search, but because the search was an

inventory search pursuant to a reasonable impoundment of the vehicle. 444

S.W.3d 770, 777–780 (Tex. App.––Fort Worth 2014, pet. ref’d); see South

Dakota v. Opperman, 428 U.S. 364, 365–66, 376, 96 S. Ct. 3092, 3095, 3100

(1976) (holding reasonable inventory search of vehicle towed for parking violation

with no owner or driver present). The court of criminal appeals has held that

“[o]ne of the instances in which an automobile may be validly impounded and

inventoried is where the driver is removed from his automobile and placed under

custodial arrest and no other alternatives are available other than impoundment

to insure the protection of the vehicle.“ Delgado v. State, 718 S.W.2d 718, 721

(Tex. Crim. App. 1986) (emphasis added). But appellant has not cited, nor have

we found, any cases holding that the only way an officer may legally impound

and inventory a vehicle is when the officer has first arrested the vehicle’s

occupant. See Benavides v. State, 600 S.W.2d 809, 811 (Tex. Crim. App. [Panel

Op.] 1980) (noting several circumstances other than arrest of a vehicle occupant



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in which police may lawfully impound vehicles, including if the police have a

reasonable belief that the vehicle is stolen, if the vehicle is abandoned or a

hazard, or if a statute authorizes impoundment under the circumstances); cf.

Daniels v. State, 600 S.W.2d 813, 815 (Tex. Crim. App. [Panel Op.]1980) (noting

that even if arrest of occupants of vehicle before inventory search had been

pretextual, none of them had valid licenses and, thus, officer could not have let

any of them drive vehicle away).

      For an impoundment of a vehicle to be lawful, it must be reasonable under

the Fourth Amendment. Benavides, 600 at 811; Roberts, 444 S.W.3d at 774. A

subsequent inventory search is proper when the vehicle’s impoundment is

proper. Benavides, 600 S.W.2d at 810; Roberts, 444 S.W.3d at 774.

      Officer Owens saw a large propane torch, Q-tips, razor blades, and cotton

balls in plain view when he approached the vehicle after stopping it––and he

believed those items to be drug paraphernalia used to make methamphetamine.

Nevertheless, on cross-examination Officer Owens agreed with appellant’s

counsel’s assertion that Officer Owens did not believe he had probable cause to

search the car based on those observations. 3 Appellant admitted in response to

Officer Owens’s questioning before the search that if Officer Owens had stopped

him the day or two before, he might have had methamphetamine in the car.

Officer Owens thought he had probable cause based on appellant’s admission,

      3
       Later, Officer Owens did state that he thought he had reasonable
suspicion to investigate.


                                       4
coupled with his observation of the items in plain view, but he decided not to

arrest appellant at that time. Instead, he asked appellant to get out of the car;

searched appellant for weapons; talked to appellant while the dispatcher ran

computer searches for warrants, proof of financial responsibility, and driver’s

license validity; and issued citations to appellant for the expired insurance and

registration and at least one of the observed traffic violations. After issuing the

citations, Officer Owens began filling out a report listing the car’s inventory for

impoundment purposes.

       Appellant could not legally drive the vehicle because he did not have proof

of financial responsibility, i.e., current insurance, and because the vehicle’s

registration had expired. See Tex. Transp. Code Ann. §§ 502.040–.041, .471–

.472, 601.051(1), .053, .191 (West 2013 & Supp. 2014); Roberts, 444 S.W.3d at

777.   Officer Owens testified that the Springtown police department’s policy

allowed officers to impound vehicles when a driver could not show proof of

financial responsibility and that he should not allow a vehicle without valid

insurance and registration on the streets without a “very good reason,” such as in

an emergency situation, which he did not think applied here.

       Based on the foregoing, we conclude and hold that the trial court did not

err by determining that Officer Owens’s inventory search of the car was

conducted pursuant to a reasonable impoundment considering the totality of the

circumstances. See Roberts, 444 S.W.3d at 777.




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                                   Conclusion

      We overrule appellant’s sole issue and affirm the trial court’s judgment.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

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

DAUPHINOT, J., filed a concurring opinion.

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

DELIVERED: April 23, 2015




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