                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-11-00382-CR


                        MARCUS WAYNE BARNES, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
               Trial Court No. 63,158-E, Honorable Douglas Woodburn, Presiding

                                    February 13, 2014

                                        OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant Marcus Wayne Barnes was charged by indictment with unlawful

possession of a firearm.1 After the trial court denied his pre-trial motion to suppress

evidence, appellant entered an open plea of guilty and was sentenced to seven years in

prison and fined $1,000. Having reserved the right of appeal, appellant challenges the

trial court’s ruling on his motion to suppress through five issues. We will affirm the

judgment of the trial court.

       1
           TEX. PENAL CODE ANN. § 46.04(a) (West 2011).
                                          Background


       Standard of Review


       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In so

doing, we give “almost total deference to [the] trial court’s determination of the historical

facts that the record supports especially when the trial court’s fact findings are based on

an evaluation of credibility and demeanor.” Fienen v. State, 390 S.W.3d 328, 335 (Tex.

Crim. App. 2012) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997)). We view the record evidence and all reasonable inferences therefrom in the

light most favorable to the trial court’s ruling. State v. Garcia-Cantu, 253 S.W.3d 236,

241 (Tex. Crim. App. 2008) (party prevailing in trial court is afforded “strongest

legitimate view of the evidence and all reasonable inferences”). We review de novo

questions of law and mixed questions of law and fact that do not depend on evaluation

of credibility and demeanor. Fienen v. State, 390 S.W.3d 328, 335 (citing Montanez v.

State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006)).


       The evidence appellant sought to suppress consisted of a smoking pipe found on

appellant’s person and two pistols, a nine millimeter and a .38 caliber, both found in his

vehicle by Amarillo police officers Clayton and Ogden.


       The trial court made detailed findings of fact and conclusions of law.           The

sufficiency of the evidence supporting its findings of fact is not challenged on appeal.

We quote parts of the court’s findings.




                                              2
          “Richard McClain, a former Pampa police officer and narcotics agent and

concealed gun holder, was left in control of the premises at 210 N. Lamar Amarillo by

one of the residents, Lindsey McNett, after she moved out on February 25, 2011. [2]

McClain was called to the residence by Lindsey’s mother because [appellant] had been

driving around threatening to kill McNett and her mother.        While at the residence,

McClain found drugs and drug paraphernalia. Earlier, McNett told McClain [appellant]

possessed stolen weapons and McClain knew [appellant] was a convicted felon.

Because of his discovery of contraband, his belief [appellant] was a convicted felon in

possession of stolen weapons, and the threats [appellant] made, McClain called the

police.


          “The officers parked several houses away since this was a narcotics call and

walked to the scene where they were met by the citizen-informant, Richard McClain.


          “It was dark when the police arrived. McClain explained to the officers why he

had called and advised them [appellant] was a convicted felon reported to have two

stolen weapons in his car.


          “McClain showed the police what he found in the home: drug paraphernalia and

a hot box where [appellant] was growing marijuana. As the officers and McClain exited

the house, a car pulled up out front on the street with a driver as the sole occupant.

McClain told the officers the vehicle belonged to [appellant].




        The events described in the court’s findings occurred on February 25, 2011.
          2

Testimony showed that before she moved out on that date, McNett and appellant
resided at the house located at 210 N. Lamar.

                                             3
       “Officers Clayton and Ogden went to make contact with [appellant] as soon as

possible for officer safety, since McClain had notified them [appellant] was a convicted

felon with guns in his car and had been making threats to kill people.


       “McClain watched nearby as the officers approached [appellant]. From where

McClain was standing, he could see drugs in the back seat.               McClain observed

[appellant] moving around a bit in the car before he got out; once outside the car,

[appellant] resisted and struggled with the officers as they tried to secure him.


       “Officers Clayton and Ogden asked [appellant] to step out of the car, so he

couldn’t reach for a gun, but [appellant] did not get out when told. For officer safety

reasons, both officers, wanted to do a Terry frisk and detain [appellant] to make sure

there were no weapons. Officers Clayton and Ogden began handcuffing [appellant], but

he moved and pulled his left hand free. The driver’s door was open and they were

concerned [appellant] could reach or lunge into the vehicle for something. After the

officers got control of [appellant], they placed him in handcuffs.


       “Officer Clayton did the Terry frisk and asked [appellant] if it was okay to check

pockets, and [appellant] consented. Officer Ogden walked around the vehicle while

Officer Clayton did the Terry frisk and heard [appellant’s] consent.        Officer Clayton

pulled out a marijuana pipe and bullets from [appellant’s] pockets and announced

[appellant] was under arrest for possession of drug paraphernalia.


       “Officer Ogden, when he walked around the vehicle, saw a clear glass Mason jar

with a green leafy substance resting on the back left passenger seat; Ogden believed




                                             4
the substance was marijuana. The marijuana was in plain view, visible from outside of

the vehicle.


         “After [appellant] was arrested for possession of drug paraphernalia, Officer

Clayton secured him in the patrol car while Officer Ogden stayed with [appellant’s]

vehicle. The officers had contacted dispatch and confirmed [appellant] was a convicted

felon.     A decision to impound the vehicle was made by their supervisor, Sergeant

Godfrey.


         “Police procedure, as explained by Officer Ogden, is that if someone is arrested

out of a vehicle like this, they typically inventory and impound it. Officers have an

Amarillo Police Department form they fill out, as Officer Ogden did in this case. This

standard police procedure is designed to protect the owner of the vehicle and to make

sure the vehicle does not lose any property. Officer Ogden begins each inventory the

same regardless of whether he has observed evidence or potential evidence in the

vehicle.


         “Officer Ogden found: (1) a black Hi-Point nine millimeter pistol in the center

console, with a magazine containing nine cartridges, and a bullet in the chamber; (2) a

black .38 caliber Bryco Arms semi-automatic pistol, with serial numbers ground off, in

the glove compartment with a magazine containing seven cartridges, and a bullet in the

chamber; and, (3) several boxes of ammunition for each weapon in the center console

and on the back left passenger seat.”




                                             5
                                         Analysis


       By his first issue, appellant argues he was improperly seized because police did

not have specific and articulable facts from which it could be reasonably inferred that he

was “armed and dangerous.” As a consequence, he concludes, all evidence must be

suppressed as fruit of the poisonous tree.


       Under the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968), a police officer may lawfully stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported by articulable

facts that criminal activity may be afoot, even if the officer lacks evidence rising to the

level of probable cause. State v. Arriaga, 5 S.W.3d 804, 805 (Tex. App.—San Antonio

1999, pet. refused). An officer may also conduct a limited “pat down” of a person

provided the officer reasonably believes the person is armed and dangerous. State v.

Sheppherd, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008) (citing Terry, 392 U.S. at 27-

28). This is an objective determination made on the facts available to the officer at the

time of the frisk. Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006). Facts

giving rise to reasonable suspicion may be supplied by information from another person.

Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005).


       An ordinary citizen who witnesses a crime and reports his observation to police

as a matter of civic duty is sometimes referred to as a citizen-informer. State v. Duarte,

389 S.W.3d 349, 356 (Tex. Crim. App. 2012) (quoting 2 Wayne R. Lafave, Search and

Seizure: A Treatise on the Fourth Amendment § 3.3 at 98 (4th ed. 2004)). Such a

person is presumed to speak with the voice of honesty and accuracy. Id. A tip from a



                                             6
citizen-informer placing himself in a position of accountability for the report deserves

great weight. Pipkin v. State, 114 S.W.3d 649, 655 (Tex. App.—Fort Worth 2003, no

pet.). A detention based on facts supplied by a citizen-informer, which are adequately

corroborated by the detaining officer, does not violate the Fourth Amendment. Brother,

166 S.W.3d at 259. Corroboration does not require the officer personally observe the

conduct giving rise to a reasonable suspicion that a crime is being, has been, or is

about to be committed. Id. at 259 n.5 (citing Adams v. Williams, 407 U.S. 143, 147, 92

S.Ct. 1921, 32 L.Ed.2d 612 (1972); Pipkin, 114 S.W.3d at 654). “Rather, corroboration

refers to whether the police officer, in light of the circumstances, confirms enough facts

to reasonably conclude that the information given to him is reliable and a temporary

detention is thus justified.” Id. (citing Alabama v. White, 496 U.S. 325, 330-31, 110 S.

Ct. 2412, 110 L.Ed.2d 301 (1990); Pipkin, 114 S.W.3d at 654).


       When officers arrived at the McNett house, McClain explained his belief that

appellant was a convicted felon reportedly possessing two stolen weapons in his car.

McClain showed officers drug paraphernalia in the house and a “hot box” where

appellant was growing marijuana. McClain identified a vehicle stopping in front of the

house as appellant’s. As the trial court found, because they were told appellant was a

convicted felon with guns in his car and was threatening to kill people, the officers “went

to make contact with appellant as soon as possible.” McClain stood nearby and

watched the officers approach appellant.


       By meeting the officers at the house, McClain placed himself in a position of

accountability for his report to police. And his report was corroborated by the drug

paraphernalia in the house, and was further corroborated when the man he identified as

                                             7
appellant drove up to the house. Brother, 166 S.W.3d at 258-260. These facts were

sufficient to give the officers a reasonable suspicion that some activity out of the

ordinary was occurring or had occurred, appellant was connected with the unusual

activity, and the unusual activity was related to crime.        In light of the totality of

circumstances, it was rational for the officers to initiate an investigative detention of

appellant when he parked his vehicle in front of the house. We further find the facts

known by the officers at the time of the frisk, “would warrant a reasonably cautious

person to believe that the action taken was appropriate.” Griffin, 215 S.W.3d at 409

(quoting O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)). Thus a frisk of

appellant for weapons was justified. Appellant’s first issue is overruled.


       Relying in part on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d

485 (2009), appellant argues through his second and third issues that the warrantless

search of his vehicle was improper because it did not come within either the automobile

or search-incident-to-arrest exceptions to the Fourth Amendment’s warrant requirement.

Disagreeing with appellant, we resolve this issue under the automobile exception.3


       “The Fourth Amendment proscribes all unreasonable searches and seizures, and

it is a cardinal principle that searches conducted outside the judicial process, without


       3
        We do not further discuss the facts found by the trial court potentially having a
bearing on a search of the vehicle incident to appellant’s arrest. See Gant, 556 U.S. at
343 (holding police may lawfully “search a vehicle incident to a recent occupant’s arrest
only when the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search . . . .” or when it is “reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle”). Nor do we
discuss the possibility that facts known to the officers by the time of their search of the
vehicle were sufficient to give them probable cause to believe it contained the firearms.
See Dixon v. State, 206 S.W.3d 613 (Tex. Crim. App. 2006).

                                             8
prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and well-delineated

exceptions.” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290

(1978) (citing Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967)). Among the exceptions are a search incident to a lawful arrest and the search

of an automobile based on probable cause to believe it contains evidence of a crime.

See McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (noting search-

incident-to-arrest exception) and Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App.

2008); Dahlem II v. State, 322 S.W.3d 685, 689 (Tex. App.—Fort Worth 2010, pet.

refused) (citing Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26

L.Ed.2d 419 (1970)) (noting automobile exception).


      Under the automobile exception, if probable cause to search a vehicle exists, a

showing of exigent circumstances authorizing a warrantless search is not required. See

Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (“Under the automobile

exception, law enforcement officials may conduct a warrantless search of a vehicle if it

is readily mobile and there is probable cause to believe that it contains contraband”);

Dahlem II, 322 S.W.3d at 689 (citing Chambers, 399 U.S. at 48; Powell v. State, 898

S.W.2d 821, 827 (Tex. Crim. App. 1994)).       Probable cause to search exists when

reasonably trustworthy facts and circumstances within the knowledge of the officer on

the scene would lead persons of reasonable prudence to believe that an instrumentality

of a crime or evidence pertaining to a crime will be found. Dahlem II, 322 S.W.3d at 689

(citing Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007)). An officer’s

observation of contraband or evidence of a crime in plain view inside an automobile can


                                           9
be used to establish probable cause to seize the contraband or evidence. Dahlem II,

322 S.W.3d at 689 (citing Colorado v. Bannister, 449 U.S. 1, 4, 101 S.Ct. 42, 66

L.Ed.2d 1 (1980) (per curiam)); cf. United States v. Sparks, 291 F.3d 683, 690-91 (10th

Cir. 2002) (collecting cases applying the plain view doctrine and automobile exception in

combination to uphold warrantless vehicle searches and explaining “if an officer has

lawfully observed an object of incriminating character in plain view in a vehicle, that

observation, either alone or in combination with additional facts, has been held sufficient

to allow the officer to conduct a probable cause search of the vehicle”).


       In Gant, addressing searches incident to arrest, the Court rejected a reading of

New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), that

permitted a search of the entire passenger compartment of a vehicle regardless

whether the compartment was actually accessible to the arrestee at the time of the

search.   556 U.S. at 343.     But Gant did not diminish the reach of the automobile

exception.   556 U.S. at 346-47 (discussing circumstances authorizing valid vehicle

searches). Thus an officer’s observation of contraband or evidence of a crime in plain

view inside an automobile can establish probable cause to conduct a warrantless

search of the vehicle. See Dahlem II, 322 S.W.3d at 689 (citing Bannister, 449 U.S. 1,

4) (items in plain view in vehicle matching description of stolen items and occupants

fitting description of suspects provided probable cause to arrest and seize incriminating

items without a warrant). If probable cause justifies the search of a lawfully stopped

vehicle, it justifies the search of every part of the vehicle and its contents that may

conceal the object of the search. Dahlem II, 322 S.W.3d at 698 (citing United States v.

Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)). See also Gant, 556


                                            10
U.S. at 347 (stating “If there is probable cause to believe a vehicle contains evidence of

criminal activity,” Ross, 456 U.S. at 820-21, “authorizes a search of any area of the

vehicle in which the evidence might be found”); Wyoming v. Houghton, 526 U.S. 295,

302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (explaining that when “there is probable

cause to search for contraband in a car, it is reasonable for police officers . . . to

examine packages and containers without a showing of individualized probable cause

for each one”).


      Officer Ogden saw a clear glass jar containing a green leafy substance resting on

the back seat of appellant’s vehicle. The trial court found the substance was in plain

view. Once the officer observed the marijuana in plain view probable cause attached to

search the interior of the vehicle including compartments, such as the glove

compartment and center console, where other contraband might have been stashed.

See United States v. Hall, No. 09-4779, 397 Fed. Appx. 860, 2010 U.S. App. Lexis

21050, at *3-4 (4th Cir. Oct. 12, 2010) (per curiam, not designated for publication)

(Gant’s limitation on search-incident-to-arrest exception inapplicable because officers’

observation of marijuana in plain view in convicted felon’s vehicle gave them probable

cause to search entire vehicle; accordingly, resulting discovery of unlawfully possessed

firearm under seat was not Forth Amendment violation); cf. Keehn, 279 S.W.3d at 336

(holding once officers observed contraband in plain view inside vehicle automobile

exception authorized their entry and seizure of item).




                                            11
       The search of the interior of appellant’s vehicle properly came within the

automobile exception to the Fourth Amendment’s warrant requirement. 4 The trial court

did not abuse its discretion by denying appellant’s motion to suppress the firearms.

Appellant’s second and third issues are overruled.


       By his fourth issue, appellant asserts officers improperly impounded and

inventoried his vehicle. See Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93

L.Ed.2d 739 (1987) (inventory of lawfully seized vehicle as exception to Fourth

Amendment warrant requirement). Consideration of the issue is not necessary to our

disposition of the appeal, so we do not address it. See TEX. R. APP. P. 47.1 (requiring

court of appeals to address every issue raised and necessary to final disposition of the

appeal). Because we have determined the officers’ search of the vehicle was permitted

under the automobile exception, the correctness of the trial court’s ruling on the motion

to suppress does not rest on a proper impoundment and inventory of the vehicle. See

Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (reviewing court will sustain

the ruling of the trial court if it is correct under any theory of law applicable to the case).


       By his fifth issue, appellant complains he was denied due process of law when

the trial court failed to make findings of fact and conclusions of law supporting its order

on his motion to suppress, as he had requested. After appellant filed his brief in this

court, we abated the appeal on the State’s motion and remanded for entry of findings of

fact and conclusions of law.        This was done and a supplemental clerk’s record

       4
        At the conclusion of the suppression hearing, in its rendition denying appellant’s
motion to suppress, the trial court explained, “I’m most persuaded by the testimony that
the marijuana was seen in the back seat, which I think would authorize the search.” We
agree with the trial court.


                                               12
containing the findings and conclusions was filed.       Appellant was granted the

opportunity to file an amended or supplemental brief after reviewing the findings and

conclusions, but chose not to do so. Because the complaint appellant raises by this

issue was cured before submission of the case, we dismiss the issue as moot.


                                     Conclusion


       Having addressed every issue necessary to disposition of the appeal, we affirm

the judgment of the trial court.




                                       James T. Campbell
                                          Justice



Publish.




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