                                                                   ACCEPTED
                                                              13-15-00292-CR
                                              THIRTEENTH COURT OF APPEALS
                                                     CORPUS CHRISTI, TEXAS
                                                        11/18/2015 2:53:32 PM
                                                             Dorian E. Ramirez
                                                                        CLERK



      DOCKET NO. 13-15-00292-CR
                                      FILED IN
                              13th COURT OF APPEALS
                          CORPUS CHRISTI/EDINBURG, TEXAS
                              11/18/2015 2:53:32 PM
     IN THE COURT OF APPEALS FORDORIAN E. RAMIREZ
             TH                        Clerk
      THE 13 DISTRICT OF TEXAS
       AT CORPUS CHRISTI, TEXAS



         THE STATE OF TEXAS,
                         APPELLANT
                 vs.

           JOSHUA LINDSEY,
                        APPELLEE


 APPEAL FROM CAUSE NO. 13-CR-4068-D
     IN 105TH JUDICIAL DISTRICT
     OF NUECES COUNTY, TEXAS



     AMENDED APPELLEE’S BRIEF



         CELINA LOPEZ LEON
LAW OFFICE OF SCOTT M. ELLISON, P.L.L.C.
           410 PEOPLES ST.
      CORPUS CHRISTI, TX 78401
      TELEPHONE: (361) 887-7600
       FACSIMILE: (361) 882-4728

      ATTORNEY FOR APPELLEE

        Oral Argument is Requested.
                                     TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

ISSUES PRESENTED...............................................................................................1

    I.      THE TRIAL COURT DID NOT ERR IN FINDING THE SEARCH
            OF LINDSEY'S TRUNK WAS UNLAWFUL AND GRANTING
            APPELLEE’S MOTION TO SUPPRESS THE ILLEGALLY
            SEIZED EVIDENCE IN PART

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT AND AUTHORITIES ........................................................................ 5

    I.      THE TRIAL COURT DID NOT ERR IN FINDING THE SEARCH
            OF LINDSEY'S TRUNK WAS UNLAWFUL AND GRANTING
            APPELLEE’S MOTION TO SUPPRESS THE ILLEGALLY
            SEIZED EVIDENCE IN PART ..........................................................5

CONCLUSION AND PRAYER FOR RELIEF ......................................................11

CERTIFICATE OF SERVICE ................................................................................12

RULE 9.4(i) CERTIFICATION ..............................................................................12




                                                       ii
                                   INDEX OF AUTHORITIES


CASES

Amador v. State, 221 S.W.3d 666 (Tex.Crim.App. 2007)......................................... 6

Chimel v. California, 395 U.S. 752, (1969).............................................................11

Delgado v. State, 718 S.W.2d 718 (Tex.Crim.App. 1986) ..................................9, 10

Florida v. Wells, 495 U.S. 1, 4 (1990) ....................................................................... 9

Katz v. United States, 389 U.S. 347, 357 (1967). ...................................................... 7

Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App. 2007) ..................................... 6

Manns v. State, 122 S.W.3d 171, 178 (Tex.Crim.App. 2003)................................... 6

Moskey v. State, 333 S.W.3d 696, 700 (Tex.App. – Houston [1st Dist.] 2010) ......... 9

Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App. 1994) .................................. 7

Sieffert v. State, 290 S.W.3d 478, 482 (Tex.App. – Amarillo 2009)......................... 6

St. George v. State, 197 S.W.3d 806, 815 (Tex.App. – Fort Worth 2006)............... 6

State v. Cashion, 2012 WL 5278509 (Tex.App. – Dallas [5th Dist.])......................10

State v. Cook, 389 S.W.3d 376, 380 (Tex.App. – Texarkana 2012) ......................... 8

State v. Stauder, 264 S.W.3d 360, 364 (Tex.App. – Eastland 2008) ................10, 11

United States v. Castro, 129 F.3d 752, 755 (1997) .................................................. 9

United States v. Ross, 456 U.S. 798 (1982) ...........................................................7, 8




                                                      iii
                          DOCKET NO. 13-15-00292-CR



                        IN THE COURT OF APPEALS FOR
                         THE 13TH DISTRICT OF TEXAS
                          AT CORPUS CHRISTI, TEXAS



                             THE STATE OF TEXAS,
                                             APPELLANT
                                     vs.

                                JOSHUA LINDSEY,
                                             APPELLEE


                    APPEAL FROM CAUSE NO. 13-CR-4068-D
                        IN 105TH JUDICIAL DISTRICT
                        OF NUECES COUNTY, TEXAS



                         AMENDED APPELLEE’S BRIEF



         Appellee, Joshua Lindsey, submits this Response Brief pursuant to Tex. R.

App. Proc. 38.

                               ISSUES PRESENTED

   II.      THE TRIAL COURT DID NOT ERR IN FINDING THE SEARCH
            OF LINDSEY'S TRUNK WAS UNLAWFUL AND GRANTING
            APPELLEE’S MOTION TO SUPPRESS THE ILLEGALLY
            SEIZED EVIDENCE IN PART




                                          1
                           STATEMENT OF FACTS

      Defendant’s Motion to Suppress Illegally Seized Evidence was heard in this

Court on June 5, 2015. Reporter’s Record, page 1 (hereinafter “RR” followed by

the page number and line number if applicable). Appellee Lindsey challenged the

detention, arrest, and search of his vehicle in his motion and at the suppression

hearing. Lindsey argued that the officers were unlawful in detaining him based on

an “odor of marijuana,” unlawfully prolonged his detention by keeping him for

thirty minutes before opening the trunk to find narcotics, and that the impound and

inventory of his vehicle was improper.

      Corpus Christi Police Department Officer Vicente Ortiz testified at the

hearing as the State’s only witness. RR p. 9. According to his testimony, Officer

Ortiz and Officer Gonzalez were dispatched to the Stripes convenience store in

reference to a “beer run.” RR p. 10, Ln. 8-10, 18. The officers approached two

vehicles parked in front of the store, and Ortiz could smell a strong odor of

marijuana emitting from the vehicles. RR p. 11, Ln. 21-23. Officer Ortiz advised

dispatch to hold the “beer run” call to further investigate the two vehicles. RR p.

12, Ln. 2-3. After approaching the vehicle that did not belong to Lindsey, Officer

Ortiz released them despite the car “reeking of weed.” RR p. 30, Ln. 9-20.

      Officer Ortiz then turned the focus on Lindsey, approached him when he

was outside his vehicle, immediately detained him, and handcuffed Lindsey to his

                                         2
unit. RR p. 16, Ln. 5-13; p. 25, Ln. 24-25 – p. 26, Ln. 1. Officer Ortiz did not see

Lindsey smoking, commit any drug transactions, or physically possess any

marijuana. RR p. 25, Ln. 19-23. Officer Ortiz then did a pat-down search of

Lindsey for officer safety, despite not having any reason to believe that Mr.

Lindsey had any weapons on him. RR p. 24, Ln. 11-22. According to Officer

Ortiz’ testimony, the odor was “freshly burnt marijuana,” and that the smell

became stronger when the door was opened. R.R. p. 15, Ln, 1-3, 19-21; p. 14, Ln,

13-15.

      Officer Ortiz asked Lindsey to search his vehicle several times, and Lindsey

denied permission to search. RR p. 29, Ln. 3-5, 12-13; Def. Ex. 1 (Video). Officer

Ortiz testified that he was going to check the immediate area of the vehicle due to

the smell coming from Mr. Lindsey’s person and his vehicle. R.R. p. 26, Ln. 7-9.

Both Officer Ortiz and Officer Gonzalez then did a search of the car. RR p. 33, Ln.

6-8. Despite Officer Ortiz’ testimony that he found marijuana residue, a white

substance on the floor, and a scale when he opened the door to Lindsey’s vehicle

(RR p. 17, Ln. 15-18), the video of the incident contradicted this testimony. See

Def. Ex. 1 (Video); see also p. 37, Ln. 8-11; p. 40, Ln. 11-17. The search went on

for 11 minutes when Officer Ortiz asked Officer Gonzalez if he had found

anything, and Officer Gonzalez said “nada,” or nothing. RR p. 33, Ln. 9-25; p. 35,

Ln. 7-16; p. 51, Ln. 10-20; Def. Ex. 1 at Back camera 10:54. Officer Gonzalez



                                         3
then asked Officer Ortiz if he was going to “double check,” and the officers kept

searching for another twenty minutes. RR p. 34, Ln. 1-9, 12-17. Def. Ex. 1

(Video).   Despite the video footage, Officer Ortiz testified that he did find

marijuana residue and a crack rock inside the vehicle, and that he qualified Lindsey

as being under arrest at that point. R.R. p. 42, Ln. 23-24.

      After Lindsey had been sitting in the unit for twenty-one minutes, multiple

members of Lindsey’s family began approaching the officers. Def. Ex. 1 at Back

camera 21:01-27:27. Officer Ortiz did not ask any of Lindsey’s family members if

they had a valid license or insurance or if they were able to drive the vehicle home.

RR p. 36, Ln. 3-7.

      Officer Ortiz opened the trunk of Lindsey’s vehicle after Lindsey had been

in the unit for thirty minutes, pursuant to an inventory search after he decided to

impound the car because of what he stated he found inside of it. RR p. 35, Ln. 24-

25; p. 36, Ln. 1-2, 8-11; Def. Ex. 1 at Back camera 30:45; R.R. p. 36, Ln. 8-11;

R.R. p. 37, Ln. 2-3 (“due to what was found in the vehicle, that’s why it was

inventoried and impounded”). Officer Ortiz found crack cocaine rocks in the trunk

of Lindsey’s vehicle. RR p. 19, Ln. 9-14. Officer Ortiz conceded in his testimony

that Corpus Christi Police Department does not have any policies and procedures

regarding the impoundment of vehicles and no inventory sheet was provided on




                                           4
this case; they do an inventory at the officer’s discretion when there is an arrest.

RR p. 36, Ln. 12-22; p. 50, Ln. 14-23.

      When Lieutenant Bauer arrived at the scene after the trunk was opened,

Officer Ortiz told Officer Bauer that all he had was a “strong odor of marijuana.

That’s all I have.” RR p. 38; Def. Ex. 1 at Back camera 31:00. One officer asked

Officer Ortiz, “where was it,” to which Officer Ortiz responded, “in the back.” RR

p. 39, Ln. 9-20; Def. Ex. 1 at Back camera 31:44. Officer Ortiz never mentioned

to Lieutenant Bauer that anything was found inside the vehicle. RR. P. 41, 17-20;

see Def. Ex. 1.

      Based on the above findings, the trial court concluded that probable cause

did not exist to search the trunk of Defendant’s vehicle, thus suppressing the

cocaine found only in the trunk of the car.

                      SUMMARY OF THE ARGUMENT

      Appellee submits in this response that the 105th District Court was correct in

ruling the search of Lindsey’s trunk was improper. Pursuant to an inventory

                  ARGUMENT AND AUTHORITIES
          IN RESPONSE TO APPELLANT’S ISSUES PRESENTED

   III.   THE TRIAL COURT DID NOT ERR IN FINDING THE SEARCH
          OF LINDSEY'S TRUNK WAS UNLAWFUL AND GRANTING
          APPELLEE’S MOTION TO SUPPRESS THE ILLEGALLY
          SEIZED EVIDENCE IN PART




                                          5
       Trial court properly granted Lindsey’s Motion to Suppress based on the

unlawful inventory and impound of his vehicle.

   A. STANDARD OF REVIEW

       A trial court’s ruling on a motion to suppress is reviewed under a

bifurcated standard for abuse of discretion. Sieffert v. State, 290 S.W.3d 478, 482

(Tex.App. – Amarillo 2009). If the parties are not in dispute as to the facts of the

case and have conflicting views on the issues of reasonable suspicion and probably

cause, the reviewing court conducts a de novo review. See Manns v. State, 122

S.W.3d 171, 178 (Tex.Crim.App. 2003). Whether an officer’s reasonable suspicion is

sufficiently supported by the totality of the circumstances is a legal question that is

reviewed de novo. Sieffert, 290 S.W.3d at 482; see Madden v. State, 242 S.W.3d 504,

517 (Tex.Crim.App. 2007). In other words, a de novo review is conducted to

determine whether a specific search and/or seizure were “reasonable” as an

ultimate question of Fourth Amendment law. St. George v. State, 197 S.W.3d 806,

815 (Tex.App. – Fort Worth 2006) (hereinafter “St. George II”).

       Furthermore, when reviewing a trial court’s ruling on a motion to suppress,

an appeals court gives almost total deference to the trial court’s findings which are

supported by the record and any questions of mixed law and fact that turn on the

credibility and demeanor of witnesses. Amador v. State, 221 S.W.3d 666, 673

(Tex.Crim.App. 2007). The reviewing court must uphold the trial court’s ruling if



                                              6
it is right for any reason. Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App.

1994).

   B. IF THE TRIAL COURT FOUND PROBABLE CAUSE TO SEARCH THE VEHICLE
      BASED ON THE SMELL OF MARIJUANA, THAT STILL DOES NOT JUSTIFY A
      SEARCH OF THE TRUNK

      Searches and seizures without a warrant are per se unreasonable under the

Fourth Amendment, subject to only a few exceptions. Katz v. United States, 389

U.S. 347, 357 (1967). Here, officers did not have a warrant and do not meet any of

the exceptions to qualify a search of Appellee’s trunk.

      The State relies on probable cause to search the vehicle as a justification to

search the trunk. At the suppression hearing, Appellee argued that probable cause

did not exist to search the vehicle, that Lindsey was unlawfully detained, and that

the search resulted in a prolonged detention of his person. However, even if the

Trial Court had determined probable cause existed to search the interior of the

vehicle, Appellee submits that this does not automatically translate to a permissible

search of the trunk of Lindsey’s car.

      Appellant cites United States v. Ross to argue their point, which held that

officers have the right to search an entire vehicle when they believe there is

contraband somewhere in the vehicle “but do not know where it is located.” United

States v. Ross, 456 U.S. 798 (1982); see Appellant’s Brief, p. 9-10. Ross goes on

to articulate that the existence of probable cause to believe that a container, placed



                                           7
in the trunk of a taxi, has contraband in it does not justify the search of the entire

cab. Id. at 824.

      In this case, Officer Ortiz’ testimony only spoke to a smell of marijuana

emitting from the cab of the vehicle, and testified repeatedly that the smell was

“very strong,” and he could smell it as soon as the door was opened. R.R. p. 15,

Ln, 1-3, 19-21; p. 14, Ln, 13-15. If the trial court relied on this information to

reach the threshold of probable cause to search the vehicle, Appellee submits that

the probable cause did not extend to the trunk. According to Officer Ortiz, he

found marijuana residue on the floor, along with cocaine rocks. RR p. 17, Ln. 15-

18. This testimony, coupled with Ortiz’ statement that he considered Lindsey

under arrest at that time, show that the contraband (marijuana residue) was already

found and seized. Thus the purpose of the trunk search in Ross based on not

knowing “where the contraband was located” was dispelled by that point,

rendering the justification in Ross inapplicable.

      Furthermore, the State failed to present any evidence linking the “smell of

marijuana” supposedly on Lindsey’s person to the trunk of his car.

   C. THE INVENTORY SEARCH WAS IMPROPER

      An inventory search is part of the impoundment process designed to produce

an inventory of an automobile’s contents. State v. Cook, 389 S.W.3d 376, 380

(Tex.App. – Texarkana 2012). The main purposes of an inventory search is to



                                           8
protect the owner’s property, protect police against disputes over stolen or lost

property, and protect police from danger. Moskey v. State, 333 S.W.3d 696, 700

(Tex.App. – Houston [1st Dist.] 2010, no pet.). An inventory search is permissible

under the constitution so long it is not a “ruse for a general rummaging in order to

discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990); see

United States v. Castro, 129 F.3d 752, 755 (1997) (finding an inventory lawful

only if “conducted for purposes of an inventory and not as an investigatory tool to

produce or discover incriminating evidence”).

      The State bears the burden of proving the inventory lawful, and it must be

conducted in good faith pursuant to standardized police procedure. Moskey, at 700.

The State can satisfy their burden by showing that 1) the driver was arrested, 2) no

alternatives to impoundment were available to insure the protection of the

automobile, 3) impounding agency had an inventory policy, and 4) that policy was

followed. Delgado v. State, 718 S.W.2d 718, 721 (Tex.Crim.App. 1986).

      Here, Officer Ortiz conceded in his testimony that Corpus Christi Police

Department does not have any policies and procedures regarding the impoundment

of vehicles, no inventory sheet was provided on this case; and they do an inventory

at the officer’s discretion when there is an arrest. RR p. 36, Ln. 12-22; p. 50, Ln.

14-23. This lack of inventory procedure cannot justify a lawful impoundment of




                                          9
any vehicle by the Corpus Christi Police Department. See Delgado v. State, 718

S.W.2d 718, 721 (Tex.Crim.App. 1986).

      In State v. Cashion, the Court of Appeals found the impoundment unlawful

when an alternative to impoundment was available – by means of another

individual present whom could have taken the vehicle – thus ruling the subsequent

inventory of the vehicle impermissible. State v. Cashion, 2012 WL 5278509

(Tex.App. – Dallas [5th Dist.]). Here, multiple members of Lindsey’s family began

approaching the officers at the scene, before the vehicle was inventoried pursuant

to the impoundment. Def. Ex. 1 at Back camera 21:01-27:27. Despite the fact that

multiple people were available, Officer Ortiz did not ask any of Lindsey’s family

members if they had a valid license or insurance or if they were able to drive the

vehicle home. RR p. 36, Ln. 3-7. Just like in Cashion, the impoundment and

inventory was unlawful here.

        i.   THE INVENTORY SEARCH CANNOT BE JUSTIFIED AS A SEARCH
             INCIDENT TO ARREST

      In State v. Stauder, an officer testified that the evidence was found during an

“inventory” search, not a search incident to arrest. State v. Stauder, 264 S.W.3d

360, 364 (Tex.App. – Eastland 2008). The Appellate Court held that the State

failed to satisfy its burden of showing officer compliance with inventory standards

and procedures by not filling out the requisite inventory form, and found the

officers’ actions were a mere “ruse to search” the pickup. Id. at 364. In one last

                                         10
ditch effort, the State proffered that the search was incident to a lawful arrest. Id.

However, the Court of Appeals reasoned that officers may search incident to arrest,

they may search only the person arrested and the “area within his immediate

control.” Id., citing Chimel v. California, 395 U.S. 752, 763 (1969). Because there

was no evidence presented that the items in the bed of the pickup were in the

Appellant’s immediate control in compliance with Chimel, the search of the bed of

the truck incident to arrest was invalid. Such is the case here. The State cannot

qualify the search as lawful incident to arrest because it exceeds the scope of

Chimel. Lindsey had no access to the trunk of his vehicle and the contraband

found in it was not in his immediate reach.

      Because there was no probable cause to search the trunk of the vehicle and

unlawful inventory of the car, the trial court did not err in suppressing the evidence

found in the trunk of Lindsey’s vehicle.

                 CONCLUSION AND PRAYER FOR RELIEF

      Based on the foregoing argument and case law, Appellee submits that he is

entitled to the relief requested in this Amended Appellee Brief. Appellee

respectfully prays that this Honorable Court of Appeals affirm the decision of the

Trial Court.


                                  Respectfully submitted,

                                  /s/Celina Lopez Leon

                                           11
                                 CELINA LOPEZ LEON
                                 State Bar No. 24070170

                                 LAW OFFICE OF SCOTT M. ELLISON, P.L.L.C.
                                 410 Peoples St.
                                 Corpus Christi, TX 78401
                                 Telephone: (361) 887-7600
                                 Telecopier: (361) 882-4728

                                 ATTORNEY FOR APPELLEE,
                                 JOSHUA LINDSEY

                          CERTIFICATE OF SERVICE

       As Attorney of Record for Appellant, I do hereby certify that a copy of the

foregoing Amended Appellee Brief has been hand delivered to Mark Skurka, Esq.,

District Attorney, Nueces County, TX at 901 Leopard St., Room 206, Corpus

Christi, TX 78401 on this 16th day of November, 2015.

                                        /s/Celina Lopez Leon
                                        CELINA LOPEZ LEON


                          RULE 9.4(i) CERTIFICATION

       I certify that the brief contains 2,438 words, excluding those matters listed in

Rule 9.4(i)(1), and is in compliance with Texas Rule of Appellate Procedure

9.4(i)(3).

                                        /s/Celina Lopez Leon
                                        CELINA LOPEZ LEON




                                          12
