                             Fourth Court of Appeals
                                    San Antonio, Texas

                                MEMORANDUM OPINION
                                       No. 04-12-00235-CR

                                       The STATE of Texas,
                                            Appellant

                                                 v.

                                    Kimberly Crystal STORY,
                                            Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 11-0950-CR
                           Honorable Dwight E. Peschel, Judge Presiding

Opinion by:      Karen Angelini, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: April 17, 2013

AFFIRMED

           Kimberly Crystal Story was indicted for the offense of forgery. See TEX. PENAL CODE

ANN. § 32.21 (West 2011). Story filed a motion to suppress, alleging (1) she was arrested

without a warrant, probable cause, or other lawful authority, and (2) the evidence against her was

seized without a warrant, probable cause, or other lawful authority. The trial court granted the

motion to suppress and made findings of fact and conclusions of law. The State appealed. We

affirm.
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                                          THE EVIDENCE

           The evidence presented at the suppression hearing showed that sheriff’s deputies were

dispatched to a location on River Road near Kingsbury Street in Guadalupe County, Texas, after

an anonymous caller told a dispatcher that a man was being chased by a vehicle in a field. When

the deputies arrived at the location, they saw a vehicle, a green Ford Explorer, parked in an open

field approximately fifteen feet from the road. No one was present at the scene.

           The deputies encountered a man, walking alone on nearby Kingsbury Street. The man

was identified as James Kuykendall. The deputies also encountered Story, who lived across the

street from the field where the vehicle was located. Story appeared at the scene, but how or when

she appeared was unclear. When deputies asked Kuykendall and Story about the vehicle in the

field, they told the deputies they had been in the vehicle, they had had an argument, Kuykendall

had exited the vehicle, and Story had followed behind Kuykendall in the vehicle, trying to get

him to get back into the vehicle. Story was arrested, without a warrant, for a misdemeanor

assault.

           One of the deputies went into the field where the vehicle was located, looked in the

window, and saw what he believed to be marijuana on the passenger floorboard. When asked

about the suspected marijuana, Kuykendall admitted it belonged to him and was arrested at the

scene. The deputies then entered the vehicle and seized the suspected marijuana. The deputies

searched the entire passenger compartment of the vehicle. During this search, deputies found

numerous checks spread out on the back seat of the vehicle. The checks were for the Guadalupe

County Youth Livestock Show. Some of the checks were made out to Story; other checks were

blank. The deputies seized the checks. The checks found in the vehicle led to Story’s indictment

for the offense of forgery.



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                              FINDINGS OF FACT AND CONCLUSIONS OF LAW

         The trial court made the following findings of fact: (1) on November 7, 2010, the

sheriff’s department received an anonymous call that “there was a vehicle in the field that was

chasing a male as if [it was] trying to run him over;” (2) when the deputies arrived on the scene

no one was present; (3) Kuykendall was located elsewhere and brought back to the scene by a

deputy; (4) Story was at the scene; (5) Kuykendall and Story told the deputies that nothing had

happened and they were only having some kind of argument; (6) Kuykendall and Story resumed

their argument because the deputy brought Kuykendall back to the scene; (7) there was no

emergency; no one was in danger; the community did not need any caretaking; (8) a deputy went

into the field where the Explorer was located and looked inside the vehicle; (10) the deputy did

not ask anyone for permission to enter the field or to look into the vehicle; (11) the deputy had

no reason to look into the vehicle; (12) Story was in custody for assault-family violence; and (13)

Story owned the vehicle. 1

         The trial court made the following conclusions of law: (1) Story was arrested for assault

without probable cause; (2) the deputy trespassed when he went into the field and looked into the

window of the vehicle; (3) the seizure of the marijuana and the checks was illegal; and (4) the

seizure of the checks without a warrant was illegal.

                                             STANDARD OF REVIEW

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

v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). A trial court abuses its discretion when its

ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.

2005). We review a suppression ruling under a bifurcated standard of review. Valtierra v. State,


1
 This is a partial listing of the trial court’s findings of fact. The trial court’s remaining findings of fact have been
omitted because they are not necessary to the issues presented in this appeal.

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310 S.W.3d 442, 447 (Tex. Crim. App. 2010). First, we afford almost total deference to the trial

court’s determination of historical facts. Id. The trial court is the sole trier of fact and the

credibility of the witnesses and the weight to be given their testimony. Id. Because the trial court

has the opportunity to observe the witness’s demeanor and appearance, it is entitled to disbelieve

all or part of the witness’s testimony—even if that testimony is uncontroverted. Id. When, as

here, the trial court makes express findings of fact, we view the evidence in the light most

favorable to its ruling and determine whether the evidence supports these factual findings. Id.

“The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence.” State v. Weaver, 349 S.W.3d 521, 525 (Tex.

Crim. App. 2011). Second, we review the trial court’s application of the law of search and

seizure to the facts de novo. Valtierra, 310 S.W.3d at 447. We sustain the trial court’s ruling if it

is reasonably supported by the record and is correct on any theory of law applicable to the case.

Id. at 447–48.

                                      MOTION TO SUPPRESS

       The Fourth Amendment protects individuals against unreasonable searches and seizures.

Id. at 448. Warrantless searches and seizures are per se unreasonable under the Fourth

Amendment, subject to only a few specifically established and well-delineated exceptions.

Arizona v. Gant, 556 U.S. 332, 338 (2009).

       In Texas, warrantless arrests are authorized only in limited circumstances. Swain v. State,

181 S.W.3d 359, 366 (Tex. Crim. App. 2005). The three most common circumstances include

(1) when an offense is committed in the officer’s presence; (2) when a person is found in a

suspicious place and under circumstances which reasonably show that the person is guilty of

some felony; and (3) when it is shown that a felony has been committed and the offender is about

to escape. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991); see TEX. CODE CRIM.
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PROC. ANN. art. 14.01(b) (West 2005); TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1) (West

Supp. 2012); see TEX. CODE CRIM. PROC. ANN. art. 14.04 (West 2005). These circumstances

require the legal equivalent of constitutional probable cause. Amores, 816 S.W.2d at 413. The

burden of proof is on the State to prove the existence of probable cause to justify a warrantless

arrest. Id.

        Probable cause for an arrest exists where, at that moment, facts and circumstances within

the knowledge of the officer, and of which he has reasonably trustworthy information, would

warrant a reasonably prudent person in believing that a particular person has committed or is

committing an offense. State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999). Once an

officer has probable cause to arrest, he may search the passenger compartment of a vehicle as a

search incident to that arrest. Id.; see also Gant, 556 U.S. at 338 (“Among the exceptions to the

warrant requirement is a search incident to a lawful arrest.”) (emphasis added). It is irrelevant

that the arrest occurs immediately before or after the search, as long as sufficient probable cause

exists for the officer to arrest before the search. Ballard, 987 S.W.2d at 892.

        The fruit of the poisonous tree doctrine prevents the use of direct and indirect evidence

obtained by the government pursuant to an unlawful arrest. State v. Iduarte, 268 S.W.3d 544,

550 (Tex. Crim. App. 2008). Evidence does not require exclusion, however, merely because it

would not have been discovered “but for” the primary violation. Id. (citing Wong Sun v. United

States, 371 U.S. 471, 487–88 (1963)). Rather, the question in such a case is whether the evidence

has been obtained by exploitation of that illegality, or by means sufficiently distinguishable to be

purged of the primary taint. Id. at 550–51 (citing Wong Sun, 371 U.S. at 488).

        In its first issue, the State argues the trial court abused its discretion in granting Story’s

motion to suppress because the deputies validly seized evidence of a crime in plain view while

they were engaged in a valid vehicle search incident to arrest. The State focuses on the search of
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the passenger compartment of the vehicle without addressing the legality of Story’s arrest for a

misdemeanor assault. The trial court, however, concluded that Story’s arrest was unlawful

because it was made without probable cause. The trial court further concluded that the seizure of

the marijuana and the checks in the vehicle was illegal because it was the fruit of a search

undertaken pursuant to an unlawful arrest. The State does not directly challenge these legal

conclusions on appeal.

       We conclude the trial court’s suppression ruling is reasonably supported by the record

and is correct on a theory of law applicable to this case. See Valtierra, 310 S.W.3d at 447–48.

The evidence supports the trial court’s conclusion that Story’s arrest for misdemeanor assault

was unlawful because it was made without probable cause. At the time of Story’s arrest, the facts

and circumstances within the deputies’ knowledge and of which they had reasonably trustworthy

information were not sufficient to warrant the belief that Story had committed or was committing

an offense. When viewed in the light most favorable to the trial court’s ruling, the evidence

shows that Story and Kuykendall were only having an argument. The report from an anonymous

caller asserting that “a vehicle in the field [] was chasing a male as if [it was] trying to run him

over” was not sufficient to supply the required probable cause. See Amores, 816 S.W.2d at 414–

15 (concluding information from an anonymous caller combined with other information did not

rise to the level of probable cause required for a warrantless arrest).

       The evidence further shows that Story’s arrest did not fall under any of the most common

circumstances authorizing a warrantless arrest: the offense was not committed in the presence of

a deputy; Story was not found in a suspicious place and under circumstances which reasonably

show she was guilty of some felony; and Story did not commit a felony and was not in danger of

escaping. See id. at 413 (identifying the three most common circumstances authorizing a

warrantless arrest). In fact, the State does not even argue that Story’s warrantless arrest was
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lawful. We conclude the trial court did not abuse its discretion in concluding that Story’s arrest

was unlawful.

       Instead of addressing the matter of Story’s unlawful arrest, the State argues the deputies

obtained the checks lawfully in a search incident to Kuykendall’s arrest. We find this argument

unconvincing. The evidence supports the conclusion that the checks were obtained by exploiting

Story’s unlawful arrest. Because the checks were obtained by exploiting Story’s unlawful arrest,

the fruit of the poisonous tree doctrine precluded their use at trial. See Wong Sun, 371 U.S. at

487–88; Iduarte, 268 S.W.3d at 550–51. The State’s first issue is overruled.

                       STANDING TO CHALLENGE THE VEHICLE SEARCH

       In its second issue, the State argues Story lacked standing to challenge the search of the

vehicle. Generally, a defendant seeking to suppress evidence obtained in violation of the Fourth

Amendment must first show that he personally had a reasonable expectation of privacy that the

government invaded. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004). To carry this

burden, a defendant must usually prove an actual subjective expectation of privacy and

circumstances under which society was prepared to recognize his subjective expectation as

objectively reasonable. Villarreal v. State, 935 S.W.3d 134, 138 (Tex. Crim. App. 1996). These

factors are relevant to a court’s determination of whether the subjective expectation was one that

society was prepared to recognize as objectively reasonable: (1) whether the accused had a

property or possessory interest in the place invaded; (2) whether he was legitimately in the place

invaded; (3) whether he had complete dominion or control and the right to exclude others; (4)

whether, before the intrusion, he took normal precautions customarily taken by those seeking

privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is

consistent with historical notions of privacy. Id. Although we defer to the trial court’s factual



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findings and view them in the light most favorable to the trial court’s ruling, we review the legal

issue of standing de novo. Kothe, 152 S.W.3d at 59.

       At the suppression hearing, Story presented no witnesses. The State, however, presented

two witnesses: deputies who were present during Story’s arrest and the search of the vehicle.

During cross-examination by Story’s counsel, one deputy was asked if police reports reflected

that Story was the owner of the vehicle. The deputy replied, “I’m sure it probably does because

we have to put it in the report…” The State did not attempt to correct this testimony on re-direct

examination. Nor did the State offer evidence to contradict the deputy’s testimony. In addition,

the undisputed evidence showed Story had been driving the vehicle recently, and the vehicle was

parked across the street from Story’s residence in a private field. We conclude this evidence was

sufficient to show Story’s property or possessory right to the vehicle and to establish her

standing to challenge the legality of the search.

       But even if the evidence was not sufficient to show Story’s property or possessory right

to the vehicle, we would still overrule this issue. The question of Story’s standing was

transcended by her unlawful arrest. See Kothe, 152 S.W.3d at 60–61 (concluding that even when

a defendant had no standing to complain about a search and seizure conducted against a third

party, the issue was transcended by the defendant’s earlier illegal detention). In other words, all

of the evidence seized by the deputies, including the checks, was tainted because it was obtained

during Story’s unlawful arrest. See id. The State’s second issue is overruled.

                                           CONCLUSION

       The trial court’s order granting the motion to suppress is affirmed.


                                                      Karen Angelini, Justice

Do not publish


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