            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1037-16



                                  THE STATE OF TEXAS

                                                 v.

                             REINALDO SANCHEZ, Appellee

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                            HIDALGO COUNTY

               K ELLER, P.J., delivered the opinion for a unanimous Court.

       During a traffic stop, Appellee was arrested for outstanding warrants. During that arrest, the

officer searched Appellee’s person and discovered illegal drugs. The officer then searched

Appellee’s Jeep and discovered more illegal drugs. The courts below held that the search of the Jeep

was not a valid search incident to arrest because there was no reason to believe that the Jeep

contained evidence relating to the outstanding warrants for which Appellee had been arrested. The

court of appeals further held that the discovery of the illegal drugs on Appellee’s person could not

supply a new basis for arrest, for the purpose of conducting a search incident to arrest, that would
                                                                                    SANCHEZ — 2

justify the search of the Jeep. We disagree and hold that discovery of drugs on a suspect’s person,

after an arrest on traffic warrants but before the search of the suspect’s vehicle, can supply a new

basis for arrest that would justify search of the vehicle as a search incident to arrest. Consequently,

we reverse the judgment of the court of appeals.

                                        I. BACKGROUND

                                          A. The Incident

          At the motion to suppress hearing, Officer Mariel Martinez testified to the following:1 At

5:12 in the morning, she observed a Jeep parked on a grassy area next to a bar, with the driver’s door

open and the engine turned off. As she approached the Jeep, she saw Appellee asleep in the driver’s

seat. Officer Martinez woke Appellee up by calling out to him and began asking questions. During

a check of Appellee’s identity with dispatch, she discovered that Appellee had several local traffic

warrants for his arrest. Officer Martinez then told Appellee that he was under arrest for the traffic

warrants. She then searched Appellee’s person and found a cigarette box containing two small

baggies of a white powdery substance that, in the officer’s experience, appeared to be cocaine.

During the search of his person, Appellee kept staring at his own vehicle. After discovering the

baggies on Appellee’s person, Officer Martinez searched Appellee’s Jeep. During this search,

Officer Martinez picked up a shirt from the passenger seat, and a dark-colored pouch fell out. The

pouch contained a baggie of what appeared to be cocaine. A field test for cocaine returned a positive

result.

                                       B. Trial Proceedings



          1
          Another officer assisted as backup, but we do not detail that officer’s actions because they
are not relevant to the issue before us.
                                                                                        SANCHEZ — 3

        Appellee filed a motion to suppress. The trial court denied the motion as to the evidence

found on Appellee’s person but granted the motion as to the evidence found in the Jeep. The trial

court’s findings of fact relate only to the portion of the motion that was granted and do not refer to

what evidence was discovered in the search of Appellee’s person.2

        In its conclusions of law, the trial court stated, among other things:

        3. The officer did not have probable cause to believe that the vehicle contained
        evidence of a crime before the search of the Defendant’s vehicle.

                                                  ***

        6. There existed no reason to believe that evidence of the traffic violations for which
        there was a warrant authorizing the Defendant’s arrest by the police officer, might be
        found in the vehicle.

        7. The search of the Defendant’s vehicle was not justified as a search incident to his
        traffic warrants arrest.

        8. The search of the Defendant’s vehicle was not justified by law and constituted a
        violation of the warrant clause of the Fourth Amendment to the United States
        Constitution.

                                               C. Appeal

        On appeal, the State contended that the search of Appellee’s Jeep was a valid search incident

to arrest.3 In the alternative, the State contended that the trial court’s findings did not fully set out

the basis for its ruling. As part of its factual recitation, the court of appeals stated that the search of




        2
          In findings 12 and 13, the trial court stated, “Officer M. Martinez testified that the
Defendant kept staring at his own vehicle while his person was being searched,” and “Officer M.
Martinez then walked towards the Defendant’s vehicle and searched it.”
        3
         Although the search was of a vehicle, the State did not contend that the search should have
been upheld under the “automobile exception” to the warrant requirement. See United States v.
Ross, 456 U.S. 798, 825 (1982).
                                                                                    SANCHEZ — 4

Appellee’s person “disclosed two small baggies of cocaine hidden inside a package of cigarettes.”4

The appellate court then recited the trial court’s findings regarding Appellee staring at his vehicle

and Officer Martinez searching it.5

       The court of appeals recognized that a search of a vehicle incident to arrest is valid 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.”6 The court observed that the State was not contesting the trial court’s finding that

the vehicle was out of Appellee’s reach at the time of the search.7 Instead, the State contended that,

once the cocaine in the cigarette package was discovered during the search of Appellee’s person, he

was effectively arrested for that offense, and it was reasonable to believe that evidence relevant to

the drug possession offense would be found in Appellee’s Jeep.8

       The court agreed with the State that the trial court had impliedly held that the search of

Appellee’s person—yielding the cocaine in the cigarette package—was legal.9 But the appellate

court concluded that the legality of the search of Appellee’s person was irrelevant because the

question at issue was “whether there was a reasonable probability that the vehicle contained evidence




       4
           State v. Sanchez, 501 S.W.3d 165, 167 (Tex. App.—Corpus Christi-Edinburg 2016).
       5
           Id. See also supra n.2.
       6
           Sanchez, 501 S.W.3d at 170 (quoting from Arizona v. Gant, 556 U.S. 332, 343 (2009)).
       7
           Id.
       8
           Id.
       9
           Id.
                                                                                 SANCHEZ — 5

relevant to the offense for which he was arrested.”10 The court of appeals viewed the “offense of

arrest” for search-incident-to-arrest purposes to be the traffic offenses for which there were

outstanding warrants.11 Rejecting the notion that an offense based on possession of cocaine could

qualify as the offense of arrest, the appellate court stated, “The State cites no authority where a

search incident to arrest disclosed evidence of a new offense and that offense was retroactively

deemed the reason for the arrest, and we have found none.”12 The court of appeals further stated,

“We have found no support for the State’s argument that Sanchez was under arrest for possession

of cocaine at the time Officer Martinez searched his vehicle. To the contrary, the record before us

supports the trial court’s view that, at the time of the search, Sanchez was arrested only on the

outstanding warrants for traffic violations.”13

       The court of appeals also held that the trial court’s findings and conclusions were adequate

for the purpose of evaluating the court’s ruling.14 Having rejected the State’s two complaints, the

court of appeals affirmed the trial court’s suppression order.15

                                          II. ANALYSIS

       In New York v. Belton, the Supreme Court held that, once the occupant of a vehicle is

lawfully arrested, the Fourth Amendment permits a warrantless search of the vehicle’s passenger


       10
            Id.
       11
            Id. at 171.
       12
            Id.
       13
            Id.
       14
            Id. at 172.
       15
            Id.
                                                                                     SANCHEZ — 6

compartment.16 In Arizona v. Gant, the Supreme Court limited Belton’s authorization to search a

vehicle incident to arrest to two situations: (1) when the arrestee is unsecured and the area of the

vehicle is within his immediate control, or (2) “when it is reasonable to believe that evidence of the

offense of arrest might be found in the vehicle.”17 It is the second situation that concerns us today.

        In recognizing this second situation, Gant adopted Justice Scalia’s concurring opinion in

Thornton v. United States.18 And the Court held that Justice Scalia’s rule applied to the facts in

Thornton: For many offenses, such as traffic violations, the Court indicated that it would not be

reasonable to believe that evidence of the crime of arrest would be found in the vehicle, “[b]ut in

others, including Belton and Thornton, the offense of arrest will supply a basis for searching the

passenger compartment of an arrestee’s vehicle and any containers therein.”19

        In Thornton, a suspiciously-moving car prompted a police officer to run a license check,

which revealed that the license tags did not match the model of the car to which they were attached.20

Stopping the car and telling the driver that his license tags did not match the vehicle he was driving,




        16
             453 U.S. 454, 455, 463 (1981).
        17
             Gant, 556 U.S. at 335. See also id. at 343, 346.
       18
          Id. at 335 (“Consistent with the holding in Thornton v. United States, and following the
suggestion in Justice Scalia’s opinion concurring in the judgment in that case, we also conclude that
circumstances unique to the automobile context justify a search incident to arrest when it is
reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”) (citations
omitted, citing Thornton v. United States, 541 U.S. 615 (2004) and id. at 632 (Scalia, J.,
concurring)).
        19
             Gant, 556 U.S. at 344.
        20
             541 U.S. at 618.
                                                                                    SANCHEZ — 7

the officer noticed that the driver was nervous and sweating.21 After an agreed-to pat down and some

questioning, the driver admitted that he possessed illegal narcotics and pulled three bags of

marijuana and a bag of crack cocaine out of his pocket.22 The officer then arrested him for

possession of illegal drugs and searched the car.23 The search revealed a handgun under the driver’s

seat.24 In his concurrence, Justice Scalia suggested the rule that a search of a vehicle incident to

arrest could be upheld “where it is reasonable to believe evidence relevant to the crime of arrest

might be found in the vehicle.”25 Justice Scalia found the rule to be met in Thornton because the

driver “was lawfully arrested for a drug offense” and “[i]t was reasonable for Officer Nichols to

believe that further contraband or similar evidence relevant to the crime for which he had been

arrested might be found in the vehicle from which he had just alighted and which was still within

his vicinity at the time of arrest.”26

        In determining whether “it is reasonable to believe that evidence of the offense of arrest

might be found in the vehicle,” the court of appeals seems to have taken the position that, once a

law-enforcement officer arrests someone for an offense, the officer is forever limited to that offense

for search-incident-to-arrest purposes—regardless of later events showing that another offense has

been committed. That position is inconsistent with the basic notion that the reasonableness of an


        21
             Id.
        22
             Id.
        23
             Id.
        24
             Id.
        25
             Id. at 632 (Scalia, J., concurring).
        26
             Id.
                                                                                        SANCHEZ — 8

officer’s conduct is judged by all the information known to the officer at the time he acts.27

        The court of appeals’s position also seems to be at odds with the facts in Thornton and with

the law associated with searches incident to arrest. As in the present case, Thornton involved three

offenses (or groups of offenses): (1) the traffic offense or offenses that resulted in the defendant’s

seizure, (2) another offense or group of offenses discovered as a result of evidence found on the

defendant’s person, and (3) a third offense or group of offenses discovered in a search of the

defendant’s vehicle incident to arrest. In both cases, the first offenses involved traffic violations, and

the second offenses involved illegal drugs. Given that both cases involved the discovery of illegal

drugs on the defendant’s person before the search of his vehicle, it would seem to follow that Justice

Scalia’s observation in Thornton applies to the present case: it was reasonable for the officer to

believe that “further contraband or similar evidence relevant to the crime . . . might be found in the

vehicle from which he had just alighted.”

        The differences between these cases seem to be on the formalities associated with arrest:

when the arrest was formally made and what the arrest was formally for. But in both cases, probable

cause to believe that the defendant committed the crime that justifies the search incident to arrest

arose prior to the search incident to arrest. If an officer has probable cause to arrest, a search incident

to arrest is valid if it is conducted before a formal arrest—at least if it is immediately before the




        27
            See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“In conformity with the rule at
common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where
there is probable cause to believe that a criminal offense has been or is being committed. Whether
probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to
the arresting officer at the time of the arrest.”); Florida v. J.L., 529 U.S. 266, 271 (2000) (“The
reasonableness of official suspicion must be measured by what the officers knew before they
conducted their search.”).
                                                                                      SANCHEZ — 9

arrest.28 The formalities associated with arrest do not seem to matter to the Supreme Court in the

search-incident-to-arrest context as long as the arrest was close in time to the search and the requisite

probable cause to arrest (that justifies the arrest and search) arose before the search.

        And notwithstanding the court of appeals’s failure to find authority, there are cases agreeing

with our conclusion. In Owens v. Commonwealth, the Supreme Court of Kentucky concluded that

a fact situation like the one before us would permit a search of the defendant’s vehicle incident to

arrest under Gant:

        Although Thornton was initially stopped and arrested because of his suspended
        driver’s license, the search of Thornton incident to that arrest revealed the presence
        of a suspected crack pipe. His possession of the suspected crack pipe gave rise to
        another reason for Thornton to be arrested. It was then reasonable for the arresting
        officer to believe that the vehicle Thornton was driving contained evidence of the
        offense of the de facto second offense giving rise to the arrest (i.e., possession or
        trafficking in drugs). The search of the vehicle, therefore, was permissible, both
        before and after Gant.29

In United States v. Randolph, the Eighth Circuit found no violation of Gant even though the

defendant was first arrested for an offense different from the one that ultimately justified the search

incident to arrest:

        Randolph contends that Bryant did not know that Randolph was a felon when he
        reached into the Monte Carlo, unlocked and opened the door, and inspected the gun.
        According to Randolph’s argument, he was under arrest only for failing to signal and
        for public consumption of alcohol.

                                                 ***



        28
          Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); State v. Ballard, 987 S.W.2d 889, 892
(Tex. Crim. App. 1999).
        29
          291 S.W.3d 704, 708 (Ky. 2009). The reference to “Thornton” in Owens is to Chris
Thornton, the driver of the vehicle in that case, not to be confused with the defendant in the Thornton
case, whose name was Marcus Thornton.
                                                                                   SANCHEZ — 10

        After Bryant observed the gun and Miller confirmed that Randolph was a felon, the
        officers had probable cause to arrest and did arrest Randolph for possessing a
        firearm. Having observed a gun on the driver’s side floorboard, Bryant completed
        a lawful search incident to arrest.30

        We conclude that the court of appeals erred in holding that a search incident to arrest could

not be justified by discovery of a different offense after arrest. As long as there is probable cause

to arrest for the newly-discovered offense, and the search occurs close in time to the defendant’s

formal arrest, an officer may conduct a search incident to arrest on the basis of an offense discovered

after formal arrest for a different crime.

        We reverse the judgment of the court of appeals and remand the case to that court for further

proceedings consistent with this opinion.



Delivered:       September 27, 2017

Publish




        30
             628 F.3d 1022, 1025-26 (8th Cir. 2011).
