                                             OPINION
                                        No. 04-09-00446-CR

                                      Philip Andrew GARCIA,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the 216th Judicial District Court, Kerr County, Texas
                                      Trial Court No. A08-550
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 7, 2010

AFFIRMED

           Phillip Andrew Garcia appeals the trial court’s denial of his motion to suppress. We

affirm.

                                            BACKGROUND

           Garcia was charged with possession of marijuana in a drug free zone in an amount more

than two ounces but less than four ounces. At the hearing on his motion to suppress, only Mike
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Baker, an investigator with the Kerrville Police Department assigned to the special crimes unit,

testified.

        According to Investigator Baker, on October 7, 2008, at 11:30 p.m., he received a phone

call from Sergeant Kenneth Cleghorn, who informed him that Christian Gonzales had been

arrested for possession of marijuana and wanted to speak to investigators. In response to the call,

Investigator Baker went to the scene and interviewed Gonzales. Gonzales offered to purchase

marijuana from a man known as Kermit Compton. Investigator Baker knew Gonzales and had

used him before as a cooperating individual. According to Investigator Baker, Gonzales had

proven to be credible and reliable in the past. Investigator Baker was also familiar with Kermit

Compton; in January 2008, using Gonzales, Baker “had done a controlled delivery from Kermit

Compton.”

        According to Investigator Baker, Gonzales called Kermit Compton on his cell phone.

After finishing the phone call, Gonzales told Investigator Baker that Compton had agreed to sell

him marijuana, but first needed to get some marijuana from Jesus “Chuy” Gonzales. Investigator

Baker testified that the department had “received prior information that Mr. Compton and Mr.

[Jesus ‘Chuy’] Gonzales were in partnership together selling drugs.” Thus, Investigator Baker

decided to attempt a “controlled delivery.”

        Investigator Baker then testified that Gonzales received a phone call from Compton, who

said that he had the marijuana available and wanted to meet Gonzales at Gonzales’s house.

Investigator Baker testified, “[Compton] just said to meet him there at the residence. There was

no actual time frame given. So we loaded up into our vehicles and we headed to the location.”

While they were headed to Gonzales’s house, Gonzales received another phone call from

Compton. According to Investigator Baker, Gonzales told Compton that because Gonzales was



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riding a bicycle, it would take him about fifteen minutes to get home. Investigator Baker testified

that the officers were hoping to get to Gonzales’s home in time to set up surveillance before

Compton’s arrival.

       However, when Investigator Baker and Sergeant Cleghorn arrived at Gonzales’s home,

they saw a white Ford pickup and a blue Chevy two-door parked on the right-hand side of the

curb. So, they drove past the home. When they turned around and came back, their headlights

illuminated the inside of the Chevy. Investigator Baker testified that he saw the driver, whom he

did not recognize, and a passenger whom he did recognize as Kermit Compton. The driver was

later identified as Appellant Garcia.

       Investigator Baker testified that he radioed Investigator Dagenhart, who was with

Gonzales in another vehicle, and informed him that Compton was already at the house,

Investigators Baker and Dagenhart then tried to decide how they “were going to deploy the

confidential informant,” Gonzales. Dagenhart was with Gonzales in another vehicle. As

Investigator Baker and Sergeant Cleghorn were driving past the house, considering what to do,

they saw the headlights of the Chevy turn on. The Chevy, driven by Garcia, turned into a

driveway, backed up, and started to leave. According to Investigator Baker, he knew Compton

was supposed to sell marijuana to Gonzales at that location, the vehicle was there, and he had

seen Compton in the vehicle. So, Investigator Baker decided to stop the Chevy. The Chevy had

three occupants: Compton was in the front passenger seat, Garcia was in the driver’s seat, and a

male juvenile was in the back seat.

       Investigator Baker testified that he made all three occupants get out of the car.

Investigator Baker then conducted a pat-down search of the men, but did not find anything.

According to Investigator Baker, Sergeant Cleghorn then went into the vehicle and saw a three-



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pound Folgers coffee can on the passenger side floorboard. Investigator Baker testified that due

to their training and experience, both he and Sergeant Cleghorn knew that people who traffic

narcotics like to use items like coffee and mustard to mask the odor of marijuana. Investigator

Baker testified that Gonzales had ordered a half-ounce of marijuana, worth about $60, which

would fit perfectly in a three-pound coffee can.

       Sergeant Cleghorn opened the can, which had a plastic lid on it but did not have a seal.

Sergeant Cleghorn then pushed his finger down into the coffee, felt a plastic bag, and pulled it

out. The plastic bag contained marijuana. Garcia was then advised of his Miranda rights and was

taken to the police station where he spoke with officers. Garcia was later indicted for possession

of marijuana in a drug free zone.

       After hearing Investigator Baker’s testimony and arguments of counsel, the trial court

denied Garcia’s motion to suppress. In accordance with a plea-bargain agreement, Garcia then

pled guilty to possession of marijuana in a drug-free zone and was placed on deferred

adjudication for one year and fined $500.00. He now appeals the trial court’s denial of his

motion to suppress.

                                     STANDARD OF REVIEW

       In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard

of review. Wilson v. State, No. PD-0307-09, 2010 WL 715253, at *3 (Tex. Crim. App. Mar. 3,

2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give

almost total deference to the trial court’s determination of historical facts, we conduct a de novo

review of the trial court’s application of the law to those facts. Wilson, 2010 WL 715253, at *3;

Carmouche, 10 S.W.3d at 327. As the sole trier of fact during a suppression hearing, the trial

court may believe or disbelieve all or any part of a witness’s testimony. Wilson, 2010 WL



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715253, at *3; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Furthermore, we

examine the evidence in the light most favorable to the trial court’s ruling. Wilson, 2010 WL

715253, at *3; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

                                             DISCUSSION

        In his first issue, Garcia argues that the trial court erred in overruling his hearsay

objection to Investigator Baker’s testimony about Gonzales’s phone conversation with Compton.

Assuming but not deciding whether the testimony at issue was hearsay, we note that a trial court

is permitted to rely on hearsay testimony in determining preliminary questions concerning the

admissibility of evidence. See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002)

(explaining that because suppression hearings involve the determination of preliminary questions

concerning the admissibility of evidence, the language of the current rules indicates that the rules

of evidence (except privileges) no longer apply to suppression hearings); see also Ford v. State,

305 S.W.3d 530, 538, 539 (Tex. Crim. App. 2009) (explaining that a suppression hearing is an

“informal hearing in which the trial judge, in his discretion, may use different types of

information, conveyed in different ways, to resolve the contested factual or legal issues”; “[a]

trial judge may use his discretion in deciding what type of information he considers appropriate

and reliable in making his pre-trial ruling”; and a trial judge does “not abuse his discretion in

relying upon an unsworn hearsay document”). Therefore, even if the testimony at issue was

hearsay, the trial court did not abuse its discretion in relying on it.

        In his second issue, Garcia argues that Baker did not have reasonable suspicion to justify

detaining him, because he was merely the driver of the car in which Kermit Compton, the

suspect, was a passenger. In response, the State emphasizes that Garcia would have an officer




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turn a blind eye to the fact that Garcia was driving his vehicle to a location where the information

received indicated a drug deal was about to occur.

       Pursuant to Terry v. Ohio, 392 U.S. 1, 21 (1968), an officer has the right to briefly detain

and investigate a person when the officer has a reasonable suspicion supported by facts that the

person is, has been, or will be engaged in criminal activity. See State v. Sheppard, 271 S.W.3d

281, 287 (Tex. Crim. App. 2008); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997).

The reasonableness of an investigative detention turns on the totality of the circumstances in

each case. Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).

       Here, the officers knew Compton would be arriving at a specific location within

approximately fifteen minutes to sell marijuana to Gonzales. When the officers arrived at that

location, they saw a parked car. As they drove past, Investigator Baker recognized one of the

passengers in the parked car as Compton. Considering the totality of the circumstances, the

officers had reasonable suspicion to stop the vehicle and detain the occupants of the vehicle for

purposes of conducting a Terry stop.

       In his third issue, Garcia argues that there was no probable cause to justify the search of

his vehicle. In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court established

the automobile exception to the Fourth Amendment’s warrant requirement, holding that officers,

without violating the Fourth Amendment, could conduct a warrantless search of a vehicle if they

had probable cause to believe the vehicle contained contraband. Probable cause requires that the

facts available to the officer would “warrant a man of reasonable caution in the belief” that

certain items may be contraband or stolen property or useful as evidence of a crime. Id. at 162.

That there may be an innocent explanation for the set of facts does not defeat a finding of

probable cause:



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       [P]robable cause requires only a probability or substantial chance of criminal
       activity, not an actual showing of such activity. By hypothesis, therefore, innocent
       behavior frequently will provide the basis for a showing of probable cause; to
       require otherwise would be to sub silentio impose a drastically more rigorous
       definition of probable cause than the security of our citizens demands ... In
       making a determination of probable cause the relevant inquiry is not whether
       particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
       attaches to particular types of non-criminal acts.

Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex. Crim. App. 1984) (quoting Illinois v. Gates, 462

U.S. 213, 243 n. 13 (1983)) (alteration in original), overruled on other grounds by Heitman v.

State, 815 S.W.2d 681 (Tex. Crim. App. 1991).

       Here, the officers had probable cause to search the vehicle. Investigator Baker witnessed

a known, credible informant make arrangements for a drug delivery at the informant’s home in

approximately fifteen minutes. When the officers arrived at the informant’s home, Investigator

Baker saw a parked vehicle and recognized Compton, the person whom the informant had called

to purchase the illegal drugs, as one of the occupants of the parked car. Garcia, the driver of the

parked car, then turned on the headlights and attempted to drive away, prompting the officers to

stop the vehicle. Given the totality of circumstances, the officers could reasonably believe that

the marijuana was located either on the person of Compton, on the person of one of the other

occupants, or in the vehicle itself. Investigator Baker first conducted a pat-down search of all

three occupants, but did not feel evidence of illegal drugs. He then searched the car and noticed

the three-pound coffee can. See Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (reiterating that

“[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” officers

may without a warrant search “any area of the vehicle in which the evidence might be found”);

Wyoming v. Houghton, 526 U.S. 295, 302 (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”).

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         In his fourth issue, Garcia argues that the manner of the search of the coffee can was

unreasonable and violated the Fourth Amendment because the officer destroyed the coffee by

placing his bare finger in the coffee grounds. According to Garcia, “[e]ven if the search of

[Garcia]’s car was reasonable, when the officer placed his hand into the coffee, the search

became unreasonable.” Garcia argues that merely having goods “in an automobile does not give

the police carte blanche to search [the goods] by probing them with their fingers. That concept

itself is unreasonable.” 1

         Without commenting on whether the coffee was, in fact, “destroyed,” we note that while

the destruction of property in carrying out a search is not favored, destroying property does not

necessarily violate one’s constitutional rights. Instead the standard is whether the destruction of

property was reasonably necessary to effectively execute the search. See Dalia v. United States,

441 U.S. 238, 258 (1979) (recognizing that “officers executing search warrants on occasion must

damage property in order to perform their duty”); Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir.

1982) (“The touchstone, however, is reasonableness; destruction of property that is not

reasonably necessary to effectively execute a search warrant may violate the Fourth

Amendment.”). As noted, the officer had probable cause to believe that the vehicle contained

marijuana, and the coffee can was the right size for the amount of marijuana ordered. Placing his

finger inside an inexpensive can of coffee grounds to see whether marijuana was indeed inside

the can was not unreasonable and did not violate Garcia’s constitutional rights. See United States

v. Santana-Aguirre, 537 F.3d 929, 933 (8th Cir. 2008) (holding that destruction of large, plain,

and inexpensive candles was not unreasonable because the officer had probable cause to believe

the candles contained contraband), cert. denied, 129 S. Ct. 2051 (2009); United States v. Alverez,

1
 We note that Garcia cites no legal support for this proposition. Garcia does point to the officer’s testimony that he
would not drink coffee that had been tainted by someone placing his finger in the coffee grounds.


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235 F.3d 1086, 1089 (8th Cir. 2000) (holding that because officers had probable cause to believe

the spare tire contained contraband, “they could lawfully complete a full and thorough search of

the tire, including dismantling or damaging it”).

        In his final issue, Garcia argues that “[b]y placing his bare hand in the coffee, the police

officer destroyed consumable property” in violation of the Takings Clause of the Fifth

Amendment to the Constitution.2 However, “[w]hen property has been seized pursuant to the

criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’

for which the owner is entitled to compensation.” Acadia Tech., Inc. v. United States, 458 F.3d

1327, 1331 (Fed. Cir. 2006); see also Amerisource Corp. v. United States, 525 F.3d 1149, 1153

(Fed. Cir. 2008) (explaining that under its inherent police power, a state had the ability to seize

and retain property to be used as evidence in a criminal prosecution, and property seized and

retained pursuant to this police power is not taken for a public use in the context of the Takings

Clause), cert. denied, 129 S. Ct. 1611 (2009); Rhaburn v. United States, 88 Fed. Cl. 310, 313

(2009) (same). “The same rule applies even if the property is seized as evidence in a criminal

investigation or as the suspected instrumentality of a crime, but is ultimately returned to the

owner either because the government does not pursue forfeiture proceedings or because the

owner prevails in a forfeiture action.” Arcadia, 458 F.3d at 1331-32; see also Amerisource, 525

F.3d at 1154 (holding that government’s decision to hold pharmaceutical drugs past their

expiration date did not result in a compensable taking under the Constitution because “[o]nce the

government has lawfully seized property to be used as evidence in a criminal prosecution, it has




2
  We note that Garcia also cites Article I, section 19 of the Texas Constitution, but does not explain how the Texas
Constitution provides more protection than the United States Constitution. Therefore, to the extent that the Texas
Constitution might provide more protection than the United States Constitution, Garcia has inadequately briefed the
issue. See TEX. R. APP. P. 38.1(i).

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wide latitude to retain it so long as the investigation continues, regardless of the effect on that

property”).

                                          CONCLUSION

       We affirm the judgment of the trial court.



                                                  Karen Angelini, Justice

PUBLISH




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