                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                              Nos. 04-18-00802-CR & 04-18-00803-CR

                                       Kenton Lance LIGHT,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                    Trial Court Nos. 6330 & 6328
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: November 6, 2019

AFFIRMED

           After Kenton Lance Light’s pretrial motion to suppress was denied, he was convicted by a

jury of possession of the controlled substance lorazepam and possession with intent to deliver

methamphetamine. Light appeals the trial court’s judgments asserting the trial court erred in

denying his motion to suppress. We affirm the trial court’s judgments.

                                            BACKGROUND

           At the hearing on Light’s motion to suppress, three officers testified: (1) Deputy Chad

Loth; (2) Sergeant Nick Moellering; and (3) Deputy Wayne Hudson.
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       Deputy Loth testified he was traveling eastbound on a highway around 1:00 a.m. when he

observed a westbound pickup truck which appeared to be missing a front passenger tire causing

sparks to fly from the front end as it was being driven down the highway. Deputy Loth turned

around and stopped the truck to check the welfare of the occupants because the vehicle appeared

to have been in an accident. When Deputy Loth exited his patrol vehicle, he confirmed the truck

was missing the front passenger wheel and also observed damage to the passenger side of the truck.

Light was driving the truck, and Phillip Gressett, later identified as the truck’s owner, was in the

front passenger seat. As soon as the truck stopped, Light quickly exited the truck and told Deputy

Loth he believed he had hit a guardrail. Deputy Loth testified there were intermittent storms that

night with heavy rain, so hydroplaning was a plausible explanation. Gressett also exited the truck

through the driver’s side door because the front passenger door would not open. Light did not

have his driver’s license, so Deputy Loth asked dispatch to run a check on the status of his driver’s

license. Deputy Loth stated he knew Light from prior encounters with him. Dispatch informed

Deputy Loth that Light had three active suspensions. As a result, Deputy Loth testified Light could

not legally drive. Deputy Loth testified the suspended license gave him probable cause to arrest

Light, but he did not arrest him at that time.

       As Deputy Loth was talking to Light and Gressett, another vehicle pulled up, and the

passenger in that vehicle told Deputy Loth that his vehicle was struck by the truck Light was

driving and was disabled approximately a half of a mile down the highway. The passenger further

informed Deputy Loth that the wheel of the truck Light was driving was in the middle of the

highway at the location of the accident. Deputy Loth instructed the driver to park on the side of

the road, and the two men remained at the scene. Deputy Loth sent Deputy Billy Hull back to the

scene of the accident to check the condition of the highway and ensure the wheel was not blocking

it. Deputy Loth believed Light struck the other vehicle and failed to stop at the scene of the


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accident. Around that time, Sergeant Moellering arrived. As Sergeant Moellering was assessing

the damage to the truck, he noticed a gold-colored metal tin and black hide-a-key box laying on

the ground less than a few feet from where the front tire should have been. Although there had

been intermittent storms with heavy rain that night, both the hide-a-key box and the metal tin were

relatively dry and did not have any grass or mud on them. Neither Light nor Gressett claimed

ownership of the hide-a-key box which contained a small baggy of methamphetamine. Light stated

the metal tin contained his medicine, and he believed the metal tin must have fallen out of the

passenger side of the vehicle. In later observing the dash cam recording of the stop, Deputy Loth

noticed the front passenger door was never opened; however, during the stop, Deputy Loth testified

Light can be seen walking around to the front passenger side, removing something from his pocket,

and trying to kick the object underneath the truck. Based on the contents of the hide-a-key box

and metal tin, Sergeant Moellering and Deputy Hudson searched the truck. Some glass pipes,

small baggies, and a large amount of methamphetamine was found. In response to Sergeant

Moellering’s question about who owned the methamphetamine, Light admitted the

methamphetamine was his. Light and Gressett were then placed under arrest. After the arrests,

the truck was inventoried and towed. Deputy Loth testified he intended to impound and tow the

truck after the initial stop based on the absence of the front wheel.

       Sergeant Nick Moellering testified he went to assist Deputy Loth with traffic control and

conducting the crash investigation due to the heavy storms in the area. When Sergeant Moellering

arrived at the scene, he observed Deputy Loth speaking with Light and Gressett and also observed

the front passenger wheel was off the vehicle. As he was assessing the damage to the truck, he

observed a hide-a-key box and gold metal tin on the ground within a foot of where the front tire

should have been. Sergeant Moellering opened the gold metal tin and saw that it contained pills.

He then asked Gressett and Light if they recognized the tin, and Light said it belonged to him. In


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response to Sergeant Moellering’s question about whether Light had a prescription for the

lorazepam contained in the metal tin, Light admitted he did not have a prescription for it. Sergeant

Moellering stated the absence of a prescription for the lorazepam gave him probable cause to arrest

Light, but he was not arrested at that time. Both Gressett and Light denied any knowledge about

the hide-a-key box. Sergeant Moellering testified he asked Gressett and Light about both items

because they were dry even though it had been raining. The hide-a-key box contained a bag of

methamphetamine; however, Light and Gressett were not told about the discovery.               After

discovering the methamphetamine, Sergeant Moellering and Deputy Hudson began searching the

vehicle. Sergeant Moellering testified he recovered a Styrofoam cup containing three glass pipes

used to smoke methamphetamine and numerous plastic baggies which are commonly used to

package controlled substances from the front console cup holder. Deputy Hudson recovered a

black bag or pouch in the back passenger seat area that contained six plastic bags of

methamphetamine. When they located the black pouch, Sergeant Moellering testified Light began

nodding his head. When he asked Light if they found his stash, Light responded it was all his.

Sergeant Moellering further testified Gressett stated it was not his. Prior to discovering the

methamphetamine in the black bag, neither Light nor Gressett had been placed under arrest,

handcuffed, or restricted in their movements. After the methamphetamine was found, both men

were placed under arrest.

       Sergeant Moellering testified the truck was not completely off the highway but was “[s]till

a little bit in it.” Photographs taken of the truck at the scene were admitted into evidence which

also shows the truck was slightly on the highway. Sergeant Moellering further testified the truck

could not legally be driven from the scene because it was missing a wheel and tire. As a result,

the truck was towed.




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        Deputy Wayne Hudson testified he went to assist Deputy Loth. When Deputy Hudson

arrived at the scene after observing the second vehicle and the wheel and tire to the truck a half of

a mile away, Sergeant Moellering informed him about the methamphetamine found in the hide-a-

key box. He then assisted Sergeant Moellering in searching the truck and found a black pouch

under the rear passenger seat containing several plastic bags of methamphetamine.

        Deputy Loth was recalled as a witness. He testified he did not see either the hide-a-key

box or the gold metal tin when he initially went to the passenger side of the truck to observe the

damage upon arriving at the scene.

        The dash cam video shows that while Deputy Loth was speaking to Gressett and the driver

and passenger of the other vehicle, Light entered the back passenger seat of the truck and closed

the door. After he exited the truck, he went around the front of the truck to the front passenger

side where the gold metal tin and hide-a-key box were recovered. Light then returned to the driver

side of the truck.

        The trial court denied the motions to suppress, and Light appeals.

                                      STANDARD OF REVIEW

        “When reviewing a trial judge’s ruling on a motion to suppress, we must view the evidence

in the light most favorable to the trial court’s ruling.” Marcopoulos v. State, 538 S.W.3d 596, 600

(Tex. Crim. App. 2017) (internal quotation omitted). “We will afford almost total deference to a

trial court’s express or implied determination of historical facts and review de novo the court’s

application of the law of search and seizure to those facts.” Id. (internal quotation omitted).

                                            LORAZEPAM

        In his first issue, Light contends the trial court erred in denying his motion to suppress the

lorazepam because it was in a closed container that belonged to Light, and the container was

searched without a warrant and without obtaining Light’s consent.


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       “When police take possession of property abandoned independent of police misconduct,

there is no seizure under the Fourth Amendment.” State v. Martinez, 570 S.W.3d 278, 286 (Tex.

Crim. App. 2019). When “contraband is thrown, dropped or placed away from the person of the

accused in a public place, the recovery thereof does not involve a search and the evidence is

admissible.” Gomez v. State, 486 S.W.2d 338, 339 (Tex. Crim. App. 1972); Haley v. State, 04-

03-00793-CR, 2004 WL 2168632, at *4 (Tex. App.—San Antonio Sept. 29, 2004, no pet.) (mem.

op.; not designated for publication). Here, the trial court could have believed Light abandoned the

gold metal tin containing the lorazepam based on Light’s actions in the dash cam video and the

condition and location of the metal tin. Accordingly, the trial court did not abuse its discretion in

denying Light’s motion as to the lorazepam.

                                        SEARCH OF TRUCK

       In his second issue, Light contends the trial court erred in denying his motion to suppress

the methamphetamine recovered during the search of the truck because the officers lacked

probable cause to search the truck. Light further contends the automobile exception to the warrant

requirement did not apply because the truck was inoperable and the officers made an immediate

decision to impound the truck obviating the basis for the automobile exception.

       “The automobile exception allows for the warrantless search of an automobile if it is

readily mobile and there is probable cause to believe that it contains contraband.” Marcopoulos,

538 S.W.3d at 599 (internal quotation omitted). “Probable cause exists where the facts and

circumstances known to law enforcement officers are sufficient in themselves to warrant a man of

reasonable caution in the belief that an offense has been or is being committed.” Id. at 599-600.

“For probable cause to exist, there must be “a ‘fair probability’ of finding inculpatory evidence at

the location being searched.” Id. In determining whether probable cause exists, a reviewing court

must consider the totality of the circumstances known to the officer. Id.


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       In the instant case, before searching the truck, the officers had recovered the hide-a-key

box by the front passenger side of the truck. Despite the weather conditions, the box was dry,

indicating it was recently discarded; however, both Light and Gressett denied ownership of the

box. From these circumstances, the officers could reasonably have believed a “fair probability”

existed that additional methamphetamine would be located inside the truck. In addition, the trial

court could have reasonably found the truck was readily mobile because Light was driving it

immediately prior to the traffic stop. See Medina v. State, 565 S.W.3d 868, 878 (Tex. App.—

Houston [14th Dist.] 2018, pet. ref’d); Torres v. State, No. 04-16-00717-CR, 2018 WL 521591, at

*2 (Tex. App.—San Antonio Jan. 24, 2018, no pet.) (not designated for publication); see also

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (quoting California v. Carney, 471

U.S. 386, 392-93 (1985)) (“‘When a vehicle is being used on the highways, . . . the two

justifications for the vehicle exception come into play.’”). Therefore, the trial court did not err in

denying Light’s motion as to the methamphetamine recovered during the search of the truck.

                                    ADMISSION OF OWNERSHIP

       In his third issue, Light contends the trial court erred in denying his motion to suppress his

statement that he owned the methamphetamine because he was in custody when the statement was

made but was not read his Miranda rights.

       Statements made by a suspect during a custodial interrogation are inadmissible unless

certain warnings were given to the suspect before he made those statements. Miranda v. Arizona,

384 U.S. 436, 444 (1966). A defendant has the burden to establish he was in custody before the

State bears the burden to show compliance with Miranda. Hines v. State, 383 S.W.3d 615, 621

(Tex. App.—San Antonio 2012, pet. ref’d) (internal quotation omitted).

       “A person is in ‘custody’ only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal arrest.”


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Id. at 621 (internal quotation omitted). The Texas Court of Criminal Appeals has outlined four

situations that may constitute custody: “(1) when the suspect is physically deprived of his freedom

of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot

leave; (3) when law enforcement officers create a situation that would lead a reasonable person to

believe his freedom of movement has been significantly restricted; and (4) when there is probable

cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.”

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). In the first, second, and third

situations, the restrictions upon the suspect’s freedom of movement must rise to the degree

associated with an arrest as opposed to an investigative detention. Id.

       Under the fourth situation, an officer’s knowledge of probable cause must be manifested

to the suspect, and that manifestation could occur “if information substantiating probable cause is

related by the officers to the suspect or by the suspect to the officers.” Id.; Garcia v. State, 237

S.W.3d 833, 837 (Tex. App.—Amarillo 2007, no pet). “However, the manifestation of probable

cause does not automatically establish custody.” Garcia, 237 S.W.3d at 837. “[T]he question turns

on whether, under the facts and circumstances of the case, ‘a reasonable person would have felt

that he or she was not at liberty to terminate the interrogation and leave.’” Ervin v. State, 333

S.W.3d 187, 205 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting Nguyen v. State, 292

S.W.3d 671, 678 (Tex. Crim. App. 2009)). “The ‘reasonable person’ standard presupposes an

innocent person.” Dowthitt, 931 S.W.2d at 254. “[T]he subjective intent of law enforcement

officials to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested

to the suspect.” Id.

       Here, the dash dam video shows Light freely moving around the truck and the scene of the

stop with his movements unrestricted. The video further shows Gressett and the other citizens at

the scene similarly moving around unrestricted. Although Light points to the fact that three


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uniformed officers were on the scene, Sergeant Moellering and Deputy Hudson testified they

initially arrived at the scene to assist with traffic control due to the weather. None of the officers

mentioned the methamphetamine discovered in the hide-a-key box, and Light was never informed

he was not free to leave. “Because no other circumstances are indicative of custody, we decline

to hold that a single incriminating question, directed at multiple individuals who might have had

access to the drugs at issue, is sufficient to establish that a reasonable person would perceive the

detention to be a restraint on his movement comparable to formal arrest.” Estrada v. State, No.

PD-0106-13, 2014 WL 969221, at *6 (Tex. Crim. App. Mar. 12, 2014) (internal quotation omitted)

(not designated for publication).     Accordingly, because Light was not in custody when he

responded to Sergeant Moellering’s question, the trial court did not err in denying his motion to

suppress his response to the question.

                                           CONCLUSION

       The judgments of the trial court are affirmed.

                                                   Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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