                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-109-CR
                                NO. 2-09-110-CR


THE STATE OF TEXAS                                                            STATE

                                         V.

EARNEST LYNN ROSS                                                         APPELLEE

                                     ------------

           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                     ------------

                         MEMORANDUM OPINION 1

                                     ------------

                                  I. INTRODUCTION

      In a single issue, the State seeks reversal of the trial court’s order partially

granting Earnest Lynn Ross’s motion to suppress evidence. Specifically, despite

holding evidence found in Ross’s vehicle—including evidence found in the

vehicle’s trunk—admissible, the trial court ordered that evidence located in a


      1
           See Tex. R. App. P. 47.4.
locked suitcase found in the trunk be suppressed. We reverse the portion of

the trial court’s order suppressing the evidence found in the locked suitcase and

remand the case to the trial court.

                            II. F ACTUAL B ACKGROUND

      A Denton County Sheriff’s deputy arrested Ross on June 16, 2008,

during an arranged, preemptive takedown of would-be home invaders at a

Wal-Mart parking lot in Denton County, Texas.        Through the services of a

confidential informant, officers learned that Ross and co-conspirators intended

to carry out a series of home invasions. Lieutenant William Scott, with the

cooperation of the Dallas Police Department, arranged for the informant to

record conversations on three separate occasions between Ross and others

concerning their designs to complete these crimes. While the recordings took

place, officers conducted surveillance, noting Ross’s involvement in the

conversations and ascertaining what type of vehicle he drove.

      During their investigation of these inchoate crimes, officers learned that

Ross had outstanding warrants for his arrest for aggravated robbery and the

attempted murder of a Duncanville, Texas, police officer. Officers also learned

that Ross had potentially been involved in previous home invasions. According

to police, Ross routinely used pliers and lighter fluid as instruments of torture

in order to coerce victims “into giving . . . information that was being sought.”

                                        2
Through the recordings provided by the informant, officers learned of one

upcoming home invasion that would require a truck with a hydraulic lift

“because of a very heavy safe that was the target” of the robbery.         Scott

arranged to meet the informant and provide a truck with a hydraulic lift at the

Wal-Mart where the eventual arrest was made. Scott learned that Ross, the

informant, and the co-conspirators were to meet at the Wal-Mart, obtain the

truck, and then leave to commit the home invasion. The officers’ investigation

revealed   that   Ross   and   his   accomplices   would   have   a   number   of

instrumentalities on them designed to aid them in their scheme, including: an

SKS assault rifle, handguns, police officers’ uniforms to be used as disguises,

flex cuffs (large wire ties that are used as temporary handcuffs), lighter fluid,

pliers, a tracking device used by Ross to track potential victims, and possibly

explosives to be used to open the safe.

      At approximately 8:00 p.m. on June 16, 2008, officers executed a

vehicle assault on both Ross’s vehicle and the informant’s vehicle, and placed

four individuals under arrest—Ross, his two co-conspirators, and the informant,

who was later released. When the officers arrested Ross, he was wearing a

bodysuit and a bulletproof vest underneath his shirt and pants, but the

bulletproof vest was without its ballistic panels.    After arresting Ross and

without a warrant, the officers searched Ross’s vehicle. Inside the interior of

                                         3
Ross’s vehicle, officers found a handgun, a black holster, and a black Yukon

night vision bag—a bag consistent with night vision goggles officers believed

Ross used during home invasions. Officers then opened the trunk. There the

officers found several suitcases, one of which was locked. The officers also

found a black bag containing handguns, ammunition, pliers, and other personal

effects. Also in the trunk, the officers found other personal effects, rubber

gloves, a tracking device, and a black hard case containing tools. Officers then

removed Ross’s keys from the ignition, and on the key ring they found a key

that opened the locked suitcase. Inside the suitcase, officers found two-way

radios, batteries, a charger, keys, zip-ties (flex cuffs), two “SWAT” vests,

lighter fluid, a black lighter, a handgun and gun belt, a crowbar, ammunition,

a listening device, black gloves, another pair of pliers, and a bag containing an

SKS assault rifle with a folding stock and magazine of ammunition.

      The State brought charges against Ross, including engaging in organized

criminal activity and the unlawful possession of a firearm by a felon. Ross filed

a motion to suppress all evidence found in his vehicle. The trial court ruled that

all the evidence found during the search was lawfully obtained except for the

evidence found in the locked suitcase. The State now appeals the trial court’s

order suppressing the evidence found in the locked suitcase.




                                        4
                  III. S TANDARD OF R EVIEW ON M OTION TO S UPPRESS

      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). In reviewing the trial court’s decision, we do not engage in our own

factual review.    Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).             Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor; and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

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

of the witnesses, we review the trial court’s rulings on those questions

                                         5
de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604,

607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819. When the trial court dictates its findings of fact and conclusions of

law into the record, they are treated the same as written findings of fact and

conclusions of law. State v. Bryant, 161 S.W.3d 758, 761 (Tex. App.—Fort

Worth 2005, no pet.).

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court

gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740

(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.

Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).




                                         6
                IV. A UTOMOBILE E XCEPTION TO W ARRANT R EQUIREMENT

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d

at 24.     To suppress evidence because of an alleged Fourth Amendment

violation, the defendant bears the initial burden of producing evidence that

rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672.

A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Id. Once the defendant has made this showing,

the burden of proof shifts to the State, which is then required to establish that

the search or seizure was conducted pursuant to a warrant or was reasonable.

Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005);

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

      Whether a search is reasonable is a question of law that we review

de novo.    Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004).

Reasonableness is measured by examining the totality of the circumstances.

Id. at 63. It requires a balancing of the public interest and the individual’s right

to be free from arbitrary detentions and intrusions. Id. 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




                                         7
requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.), cert.

denied, 540 U.S. 1004 (2003); see Best, 118 S.W.3d at 862.

      One such exception holds that the police may lawfully search an

automobile if they have probable cause to believe that the vehicle contains

evidence of a crime. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App.

2008) (citing Wiede, 214 S.W.3d at 24). Probable cause to search exists when

there is a “fair probability” of finding inculpatory evidence at the location being

searched. Wiede, 214 S.W.3d at 24 n.29 (citing Illinois v. Gates, 462 U.S.

213, 238, 103 S. Ct. 2317, 2332 (1983)). Probable cause also exists when

officers have reasonably trustworthy information sufficient to warrant a

reasonable belief that an offense has been or is being committed. McGee, 105

S.W.3d 609 at 614. In determining whether there was sufficient probable

cause, this court must consider the sum of the information known to the

officers at the time of a search. Fineron v. State, 201 S.W.3d 361, 366–67

(Tex. App.—El Paso 2006, no pet.).

      When this so-called “automobile exception” applies, then the police may

search “every part of the vehicle and its contents that may conceal the object

of the search.” United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157,

2173 (1982). This permits officers to search every part of the vehicle and its

contents that may conceal the object of the search that forms the basis of

                                        8
probable cause, including any containers or packages found inside the car,

without qualification as to ownership. California v. Acevedo, 500 U.S. 565,

571, 111 S. Ct. 1982, 1986 (1991); Wyoming v. Houghton, 526 U.S. 295,

299, 119 S. Ct. 1297, 1300 (1999).

      The scope of a warrantless search of an automobile is not defined by the

nature of the container in which the contraband is secreted. Acevedo, 500

U.S. at 579, 111 S. Ct. at 1991. Rather, it is defined by the object of the

search and the places in which there is probable cause to believe that it may be

found. Id. at 579–80, 111 S. Ct. at 1991. Under this exception, officers may

conduct a search of the vehicle that is as thorough as a magistrate could

authorize in a warrant particularly describing the place to be searched. Id. at

570, 111 S. Ct. at 1986.      For example, probable cause to believe that a

container placed in the trunk of a taxi contains contraband or evidence does not

justify a search of the entire cab. Id. at 571, 111 S. Ct. at 1987. But it does

justify a search of the container. Id. at 574, 111 S. Ct. at 1988 (citing Ross

at 821, 102 S. Ct. at 2171 n.28).

      In addition to the ready mobility of an automobile, the automobile

exception is justified because the expectation of privacy with respect to one’s

automobile is significantly less than that relating to one’s home or office.




                                       9
Keehn v. State, 279 S.W.3d 330, 335 (2009) (citing California v. Carney, 471

U.S. 386, 393, 105 S. Ct. 2066, 2081 (1985)).

      For example, in Keehn, while investigating a theft and without a warrant,

police seized a tank from a minivan parked in Keehn’s driveway. Keehn, 279

S.W.3d at 331. Days before the seizure, the victim of the theft reported seeing

a male and female run to the back of a nearby house. Id. at 332. A few

minutes later, a minivan left the house. Id. The victim tried to stop the van but

was unsuccessful. A police officer went to the nearby house several times

looking for the van, but it was not there. Id. Days later, the officer spotted the

van parked in the house’s driveway and decided to talk to the residents about

the theft. As he walked up the driveway to the front door, the officer looked

into the van’s passenger-side windows. The officer saw a five-gallon propane

tank in the back of the van and noticed that the “cutting of the tank” had a

bluish-greenish discoloration.    Id.   Based on his experience, the officer

concluded that the tank contained anhydrous ammonia, which is used to

manufacture methamphetamine. Id. He proceeded to the house and knocked

on the door. He heard “a bunch of rustling around . . . inside of the residence.”

After knocking for “some time,” he returned to his vehicle and called for

assistance. Id. And, because of the propane tank, he requested the additional

assistance of drug task force officers. Id.

                                        10
      After assistance arrived, the officer went back to the house and knocked

again. Id. Keehn answered, and the officer told him that he was investigating

the theft. Multiple officers entered the house and questioned Keehn about the

theft. Id. After speaking with Keehn, one of the task force officers, who had

been trained regarding the investigation and production of methamphetamine,

went to the van and looked in the windows. Id. The task force officer saw the

propane tank in the van and noticed that the valve was discolored and looked

like it had been modified in some way. Based on his training and experience,

the task force officer also believed that the tank contained anhydrous ammonia.

Id. The task force officer entered the van, seized the tank, and tested the tank

for ammonia. The test yielded a positive result, and the officer arrested Keehn.

Keehn did not give the officers permission to enter the van to seize the tank.

Id.

      The court of criminal appeals held that the automobile exception gave the

officers the right to enter the van and seize the propane tank because the van

was readily mobile, subject to “ pervasive [government] regulation,” and based

on their training and investigative experience concerning the production of

methamphetamine, the officers had probable cause to believe that the tank

contained anhydrous ammonia. Id. at 335 (citing Carney, 471 U.S. at 391–92,

105 S. Ct. at 2066).

                                      11
      V. T HE O FFICERS WERE J USTIFIED IN S EARCHING THE L OCKED S UITCASE

      The record from the motion to suppress hearing indicates that the officers

in this case had reasonably trustworthy information that led them to believe

that Ross’s vehicle contained evidence of the crime he was about to commit.

Lieutenant Scott testified that on three occasions the confidential informant

recorded conversations with Ross and other co-conspirators about the planned

home invasion.    Prior to the arrest, Scott and the informant met at the

Wal-Mart—a location where the officers had information, from the informant

and recordings, that led them to believe would be a meeting point en route to

the home invasion involving the safe. Officers had supplied the informant with

a hydraulic-lift truck to be picked up at the Wal-Mart. Officers knew that Ross

and his co-conspirators planned to use the truck to retrieve a safe during the

planned home invasion. The officers verified Ross’s vehicle, having observed

Ross drive it multiple times during their investigation.      The officers then

observed Ross arrive in his vehicle to pick up the truck, as well as other known

co-conspirators, at the Wal-Mart at the time the informant and recordings had

revealed.   In fact, the trial court specifically found that the confidential

informant was reliable, that the officers knew with particularity the place where

Ross and his co-conspirators would meet, and that the officers knew of the

planned home invasion.

                                       12
      In addition, the officers had information that instrumentalities of the home

invasion would be found on or near Ross. The trial court specifically found that

the officers correctly believed that “guns [and] possibly explosives” would be

found during the arrest. The officers clearly expected to find an SKS assault

rifle. Officers had also testified that they expected to find lighter fluid, which

was known to be used by Ross during home invasions to torture victims into

giving information. The officers were also looking for pliers, another of Ross’s

known torturing instruments.      In addition, officers knew that Ross and his

co-conspirators intended to disguise themselves as police officers during the

home invasion; thus, the officers expected to find any number of items—police

vests, police shirts, or sheriff’s gear. Given the totality of the circumstances,

the trial court found that the officers had probable cause to search Ross’s

vehicle, including the trunk.

      But the trial court specifically held that the officers illegally searched the

locked suitcase found in Ross’s trunk. Apparently, the trial court believed that

if the officers “really believed that there might be a bomb [in the locked

suitcase], then prudence would dictate that” they call the “bomb squad.” But

prudence is not the standard for the exception applicable to an automobile




                                        13
search of this type. The standard is probable cause. 2 The officers had probable

cause to believe that any of the evidence described at the motion to suppress

hearing, verified by the informant and the audio recordings, could have been

found in the locked suitcase; thus, under the automobile exception, the officers

were justified in conducting a warrantless search of Ross’s vehicle—including

the locked suitcase. See Blaylock v. State, 125 S.W.3d 702, 704–05 (Tex.

App.—Texarkana 2003, pet. ref’d) (holding that officers had probable cause to

detain defendant and search his vehicle under automobile exception to warrant

requirement when informant arranged meeting with defendant for the sale of

cocaine, informant accurately described defendant’s vehicle, and informant

accurately predicted location and time of arranged meeting); see also Neal, 256

S.W.3d at 282 (holding that when the automobile exception applies, officers

may search “every part of the vehicle and its contents that may conceal the



      2
         Both the State and Ross spent a portion of their briefs explaining
whether exigent circumstances existed to justify the officers’ search of Ross’s
vehicle.    But, in accordance with the United States Supreme Court’s
jurisprudence concerning the automobile exception, the court of criminal
appeals has held that exigency is not a requirement to the automobile
exception. See State v. Guzman, 959 S.W.2d 631, 633–34 (Tex. Crim. App.
1998) (“[A] vehicle lawfully in police custody may be searched on the basis of
probable cause to believe that it contains contraband, and there is no
requirement of exigent circumstances to justify such a warrantless search.”)
(quoting United States v. Johns, 469 U.S. 478, 484, 105 S. Ct. 881, 885
(1985)). In the instant case, the police had reliable information leading them
to believe that explosives would be found in the vehicle.

                                      14
object of the search.”). Given that Ross’s vehicle is subject to regulation, is

readily mobile, and the officers had probable cause to believe that it contained

evidence of a crime, we hold that the trial court erred by suppressing evidence

found in the locked suitcase and sustain the State’s sole issue. See Keehn,

279 S.W.3d at 335.

                                VI. C ONCLUSION

      Having sustained the State’s sole issue, we reverse the trial court’s order

suppressing the evidence found in the locked suitcase and remand the case to

the trial court for further proceedings. See Tex. R. App. P. 43.2(d).


                                            PER CURIAM

PANEL: MEIER, LIVINGSTON, and MCCOY, JJ.

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

DELIVERED: January 7, 2010




                                       15
