                                     ACCEPTED
                                 13-14-00680-CR
                 THIRTEENTH COURT OF APPEALS
                        CORPUS CHRISTI, TEXAS
                            6/26/2015 3:52:03 PM
                          CECILE FOY GSANGER
                                          CLERK




           FILED IN
   13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
    6/26/2015 3:52:03 PM
     CECILE FOY GSANGER
            Clerk
                                                 Table of Contents

Table of Contents ........................................................................................... 2

Table of Authorities ....................................................................................... 3

Statement of the Issue Presented for Review .................................... 4

         Did Officer Garcia conduct an unlawful search when he opened a container
         attached to Israel Ramirez's key chain?

Course of Proceedings ................................................................................... 4

Statement of Facts ......................................................................................... 4

Summary of the argument ............................................................................ 6

         Officer Garcia did not have a warrant and there was not an exception to the
         warrant requirement. The evidence was properly suppressed because it was
         found in an unlawful search.

Argument ........................................................................................................ 6

   Probable cause, alone is not an exception to the warrant requirement ................... 8

   Israel Ramirez did not consent to Officer Garcia's search ....................................... 9

Prayer ........................................................................................................... 11

Certificate of Compliance ........................................................................... 12

Certificate of Service ................................................................................... 12




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                                                Table of Authorities

Cases

Dixon v. State 206 S.W.3d 613 (Tex. Crim.App. 2006) ................................. 9

Katz v. United States 390 U.S. 347, 360 (1967) ............................................. 7

McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003) ........................ 7

Miller v. State, 393 S.W.3d 255 262 (Tex.Crim.App.2012) ........................... 7

Mincey v. Arizona 437 U.S. 385, 390(1978) ................................................... 7

State v. Ibarra, 953 S.W.2d 242 (Tex. Crim.App. 1997) .............................. 10

State v. Rhonda Rombs, 2015 WL 3634579 (Tex.App.- Corpus Christi
2015) .............................................................................................................. 11

US. v. Mendoza-Gonzalez, 318 F.3d 663,667 (5th Cir.2003) ...................... 10


Statutes

Tex. Code Crim. Proc. Ann. art. 38.23 ............................................. 7




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                  Statement of the Issue Presented for Review

      Did Officer Garcia conduct an unlawful search when he opened a container

attached to Israel Ramirez's keychain?



                             Course of Proceedings

      On June 30, 2013 Israel Ramirez was arrested for Possession of a Controlled

Substance. On January 17, 2014 a Grand Jury indicted Mr. Ramirez for state jail

possession of less than one gram of heroin. Defense counsel for Mr. Ramirez filed

a motion to suppress on June 11, 2014. The 94th District Court heard the motion

to suppress on September 24, 2014. On November 3, 2014 the motion to suppress

was granted by the court.



                               Statement of Facts

      On June 30, 2013, Robstown Police officers Ernest Mendoza and John

Garcia were dispatched to a verbal disturbance. Finding of Fact #5. When the

officers arrived there were three to four people in the roadway arguing. Finding of

Fact #6. Lori Ramirez, one ofthe individuals arguing in the roadway told Officer

Mendoza that Israel Ramirez, the Defendant was in possession of heroin. Finding

of Fact #10. Officer Mendoza had no knowledge to the truthfulness or veracity of

that statement. Finding of Fact #13. Officer Mendoza did not know Lori Ramirez,

did not know her full name or criminal history, and only spoke with her for five to


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eight seconds prior to this incident. Finding ofFact # 11 and # 12. Officers then

contacted Mr. Ramirez but did not have any evidence that he committed a crime.

Finding of Fact #6. Officer Garcia asked Mr. Ramirez if he had any weapons and

Mr. Ramirez replied that he did have a pocket knife. Finding of Fact #22. Officer

Garcia then handcuffed Mr. Ramirez and asked if he could grab the knife and the

contents of his pocket. Finding of Fact #23. Mr. Ramirez replied "okay" or "yes"

to the officer's request.   Finding of Fact #24.   Officer Garcia gave testimony

explaining that the reason he requested and obtained consent to grab the contents

of Mr. Ramirez's pocket was to "take the weapon for our safety." RR 26. Officer

Garcia reached into Mr. Ramirez's pocket, took the knife out, and removed a

keychain that had a capsule shaped container attached to it. Find of Fact #25. The

knife in Israel Ramirez's pocket was not an illegal knife and Israel Ramirez was

not under arrest at this time. Finding ofFact #27 and #28. Officer Garcia testified

that he had experience with similar containers where he found narcotics, but the

court did not believe this part of Officer Garcia's testimony. Finding of Fact #30-

31.

      At this point Israel Ramirez is not under arrest. Finding of Fact #35. Mr.

Ramirez did not provide consent to search the container. Finding of Fact #34 and

#36. Officer Garcia did not have a search warrant to search the container. Finding

of Fact #37.   However, Officer Garcia then opened the container with the sole



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purpose of looking for narcotics. Finding ofFact #32. After opening the container

Officer Garcia found a substance known to him to be black tar heroin. Finding of

Fact #33.



                           Summary of the argument

      The trial court properly suppressed evidence that was found during a

warrantless search of a container.        With only a few specific exceptions, a

warrantless search is per se unreasonable. Those well-defined exceptions include

search incident to lawful arrest, the automobile exception, the plain view

exception, the Terry v. Ohio stop and frisk exception, hot pursuit, exigent

circumstances, and consent. In the case at hand the officer did not have a warrant

and there was not an exception to the warrant requirement. The evidence was

properly suppressed because it was found in an unlawful search.



                                   Argument

      On review, findings of fact made by the trial court are given almost

complete deference, and mixed questions of law and fact are generally upheld if

supported   by   the   record.   Miller     v.   State,   393   S.W.3d   255   262

(Tex.Crim.App.2012).     When determining if a search violated the Fourth

Amendment the guiding principle is reasonableness. Katz v. United States 390

U.S. 347, 360 (1967). A warrantless search is presumed unlawful and the


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prosecution must rebut that presumption.        Mincey v. Arizona 437 U.S. 385,

390(1978). The prosecution has the burden to show that the warrantless search

falls within one of the specific exceptions to the warrant requirement. McGee v.

State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003).         The only exceptions to the

warrant requirement are: search incident to lawful arrest, the automobile exception,

the plain view exception, the Terry v. Ohio stop and frisk exception, hot pursuit,

exigent circumstances, and consent. Id.


             No evidence obtained by an officer or other person in violation

             of any provisions of the Constitution or laws of the State of

             Texas, or of the Constitution or laws of the United States of

             America, shall be admitted in evidence against the accused on

             the trial of any criminal case. Tex. Code Crim. Proc. Ann. art.

             38.23(a)


      When Officer Garcia opened the capsule container on Israel

Ramirez's key chain he conducted an unlawful search. The trial court found

that there was not a warrant, there was no consent to open the container, and

concluded that the evidence should be suppressed.         There are no other

exceptions to the warrant requirement in the trial court' s finding of fact nor




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does the record reflect any evidence of an exception. These findings of fact

should be given total deference on review.


Probable cause, alone is not an exception to the warrant requirement.

       The State's argument that probable cause existed prior to the search is

irrelevant. Whether or not probable cause existed does not create an exception to

the warrant requirement. Although probable cause is used to obtain a warrant, no

warrant was ever obtained or even attempted to be obtained in this case. Probable

cause is also used in the automobile exception to the warrant requirement, but this

case does not involve an automobile. The State's argument even if successful does

not overcome the warrant requirement because none of the specific exceptions

were met.

       The auto exception to the warrant requirement does not apply to this case

because the search was not conducted on an automobile. In Dixon v. State, on

which the Appellant relies, the Court of Criminal Appeals found that the court can

look to the totality of the circumstances to determine if probable cause existed.

Dixon v. State 206 S.W.3d 613 (Tex. Crim.App. 2006). In Dixon, there was a

confidential informant that described the defendant within a specific area,

identified him by name and appearance, and described the car with license plate

number. Id. Police officers then located the defendant in his car and detained him.

Id.   Through the auto exception to the warrant requirement, the officers found


                                                                                  8
probable cause and conducted a lawful search of the automobile without a warrant.

!d.

        The search of Israel Ramirez has important distinctions from the Dixon case.

Most importantly that the search of Israel Ramirez was not in an automobile and

had nothing to with an automobile, therefore the automobile exception does not

apply. The confidential informant in Dixon had several articulable facts that were

corroborated by the police officers unlike the brief five to eight second

conversation Officer Mendoza had with the informant in this case. Find of Fact

#11 .


Israel Ramirez did not consent to Officer Garcia's search.

        Although consent is an exception to the warrant requirement, it did not

provide an exception in this case. When obtaining consent from an individual to

search his or her person or property, there must be clear and convincing evidence

that consent was given. State v. Ibarra, 953 S.W.2d 242 (Tex. Crim.App. 1997).

Additionally the scope of the consent can be limited and is determined by the

factual circumstances surrounding the consent. State v. Rhonda Rombs, 2015 WL

3634579 (Tex.App.- Corpus Christi 2015), citing US. v. Mendoza-Gonzalez, 318

F.3d 663, 667 (5th Cir.2003). In this case, Officer Garcia asked Mr. Ramirez for

consent to empty the contents from his pocket for officer safety. RR 24. Officer

Garcia repeatedly testified that the purpose of any search and retrieval of the knife


                                                                                   9
was for safety reasons. RR 24-27. Officer Garcia never used the word search when

obtaining permission from Mr. Ramirez and only asked him if he could empty the

contents of his pocket in order to secure the knife. RR 24-27. The trial court found

that any consent to empty Mr. Ramirez's pocket was limited and made two specific

findings of fact that Mr. Ramirez at no time ever consented to Officer Garcia

searching the container that was attached to the keychain. Finding of Fact #34 and

#36.

       This is unlike the issue in State v. Rhonda Rombs. In Rombs, the defendant

gave an officer general consent to search her purse. State v. Rhonda Rombs, 2015

WL 3634579 (Tex.App.- Corpus Christi 2015). With general consent, an officer

may search all readily opened containers. ld. Unlike Rombs, Israel Ramirez did

not give general consent, and instead only gave Officer Garcia permission to

remove the contents of his pocket so that a knife could be secured. RR 24. A

reasonable person would not believe that would include consent to search a

container attached to keychain so small that Officer Garcia testified that it was not

a weapon and did not contain a weapon. RR 27-28.

       In conclusion, the trial court properly suppressed evidence found in an

unlawful search. In making this determination it was first found that there was a

search but there was not a warrant. After it was concluded that there was not a

warrant then we look to the exceptions to the warrant requirement. The State did



                                                                                  10
not raise that any of the exceptions existed in this case. Upon reviewing the record

and the trial court's finding of fact it is apparent that an exception to the warrant

requirement did not exist when Officer Garcia opened and searched the container

attached to Israel Ramirez's key chain.     Officer Garcia conducted an unlawful

search when he searched, without a warrant, and without an exception to the

warrant requirement and that evidence was properly suppressed.



                                        Prayer

      For the reasons stated above, the Appellee requests the Court affirm the trial

court's order granting Defendant, Israel Ramirez's motion to suppress and grant

the Appellee all other proper relief.



                                             Respectfully Submitted,




                                             Todd A. Robinson
                                             SBN: 24007931
                                             102 N. Staples
                                             Corpus Christi, Texas 78401
                                             Tel: (361) 883-2200
                                             Fax: (361) 883-4538
                                             Email: trob4225@aol.com
                                             Attorney for Appellee




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                            Certificate of Compliance

      This document has 2,072 words according to the computer program used to

prepare this document.




                              Certificate of Service

      On June 26, 2015, a true copy of the foregoing was served via hand delivery

on the following:

      Cliff Gordon, Asst. Dist. Atty.
      Nueces County Courthouse
      901 Leopard St., Room 206
      Corpus Christi, Texas 78401

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




                                             Todd A. Robinson




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