          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00367-CR



                                      Andrew Ramirez, Appellant

                                                    v.

                                     The State of Texas, Appellee


        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
            NO. 2012365, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING




                                             OPINION


                Following the district court=s denial of his motion to suppress, appellant Andrew Ramirez

pleaded guilty to felony possession of marihuana. See Tex. Health & Safety Code Ann. ' 481.121(b)(3)

(West Supp. 2003). The district court sentenced appellant to six months in a state-jail facility. Appellant

had moved the court to suppress both an oral statement he made to police and the marihuana obtained

when a police officer searched, without a warrant or consent, a closed ice cooler in the appellant=s garage.

Appellant appeals only the district court=s denial of his motion to suppress. We will reverse and remand.


                                           BACKGROUND
                On the afternoon of November 21, 2001, the Austin Police Department (AAPD@) received

a call from a neighbor of appellant, complaining that she was Atired of [appellant] selling mari[h]uana out of

his garage.@ APD Officer Chris Sobieszczyk responded to the call. Sobieszczyk first approached the

neighbor=s house, speaking with the neighbor for approximately ten to fifteen minutes. Then Sobieszczyk

knocked on the front door of appellant=s residence, and a young boy answered. Sobieszczyk asked

whether an adult was present, and the boy directed him to the garage. When Sobieszczyk reached the

garage, he knocked on the garage=s closed door. From inside, individuals shouted profanities at

Sobieszczyk. The officer then identified himself as AAustin police.@ Sobieszczyk heard shuffling, and a few

moments later, appellant came to the garage door and stepped outside, closing the door behind him. While

the door was open, Sobieszczyk noticed a scale with marihuana residue and seeds on it, a set of finger

scales, and a large green pipe on a table approximately two feet inside the garage. Sobieszczyk detected a

strong odor of fresh marihuana and noticed plastic baggies and rolling papers on the floor. Outside of the

garage, in a garbage can, he saw a brick-sized cellophane wrapper containing marihuana residue.

                Sobieszczyk talked with appellant and learned that appellant owned the property. During

the discussion, a second individual, Pedro Reynosa, left the garage, leaving the door partially open behind

him. Sobieszczyk had been at the scene of an aggravated assault involving a shooting the prior week. He

knew Reynosa Ahad been handled for weapons before,@ and believed that either Reynosa or one of

Reynosa=s brothers had been involved in the shooting. Sobieszczyk was concerned that Reynosa or

appellant might possess weapons.




                                                      2
                Both appellant and Reynosa acted nervously, hiding their hands either behind their backs or

inside their clothing. Appellant, who wore a gray sweatshirt with a large front pocket, held his hands inside

the pocket. Because it was dark behind the garage and because he believed Reynosa might possess

weapons, Sobieszczyk called for a backup officer before conducting a safety pat down of appellant and

Reynosa. Sobieszczyk continued to talk with the two men until Officer Kenneth Murphy arrived.

                Murphy approached Reynosa and requested his permission to pat down Reynosa for

weapons. Reynosa told Murphy that he had a knife. During his pat down of Reynosa, Murphy found a

double-edged stiletto and a small plastic bag of marihuana in a pocket of Reynosa=s pants. Reynosa was

immediately placed under arrest and moved away from the garage doorway.




                                                     3
                After Murphy secured Reynosa, Sobieszczyk patted down appellant. As he began the pat

down, Sobieszczyk told appellant, A[Y]ou are being detained,@ and placed him in handcuffs.1 Sobieszczyk

also told appellant that he could see drug paraphernalia and drug residue in the garage. Sobieszczyk then

asked appellant, AIs there anything else I=m going to find in there that=s illegal, any more mari[h]uana?@

Appellant hesitated, and Sobieszczyk moved appellant closer to Murphy and Reynosa and stepped into the

garage. Appellant then stated that he Aguess[ed] there=s some pot in the red cooler.@ Sobieszczyk testified

that his main intent for entering the garage was to seize the paraphernalia and to ensure that no other

individuals remained inside the garage. He seized the pipe and the cooler. Although the record is not clear

as to the precise sequence of events, at the suppression hearing, the State suggested that, based on

appellant=s admission, Sobieszczyk searched the cooler, seized the marihuana inside the cooler, and then

applied for a search warrant. The record does not contain the warrant. In its closing argument at the

suppression hearing, the State argued that


        we have no idea if the judge would have signed a search warrant had there not been any
        mari[h]uana seized. If that search warrant didn=t contain the language that officers at the
        scene found a red cooler containing X amount of mari[h]uana, it is unknown at this time if



        1
          Murphy testified that Sobieszczyk did not handcuff appellant until after he admitted that the red
cooler in the garage contained marihuana. However, when asked about the conversation between
Sobieszczyk and appellant, Murphy testified that he was Aa ways away from them and [he] didn=t hear allof
the conversation.@ Murphy also testified that, when Sobieszczyk asked [appellant] whether the garage
contained marihuana, Aat first from the report, [appellant] stated that there was no mari[h]uana. Then
[appellant] said that there was, a short time after that, in the red and white cooler, which was inside the
garage.@ Sobieszczyk=s testimony makes no mention of the first comment by appellant. Murphy testified
that he was approximately eight to ten feet from Sobieszczyk and appellant during the exchange.


                                                    4
        an officer would have signed a search warrant to search the remainder of the residence to
        find it.


The State=s closing argument leads this Court to conclude that the search of the cooler occurred before

Sobieszczyk applied for the search warrant. Sobieszczyk testified that, after the seizure of the marihuana,

appellant was Aplaced under arrest for possession of that mari[h]uana.@2 Sobieszczyk further testified that,

after the search warrant arrived, it was executed by narcotics detectives, who proceeded to search the

remainder of appellant=s residence. The only usable quantity of marihuana obtained from appellant=s

residence was that found inside the cooler.




        2
         The arrest warrant specifies that Sobieszczyk arrested appellant for possession of approximately
244.7 ounces of marihuana, a state-jail felony. See Tex. Health & Safety Code Ann. ' 481.121(b)(3)
(West Supp. 2003).




                                                     5
                Appellant filed a motion to suppress both his oral statement to Sobieszczyk and the

marihuana obtained from the cooler, contending that both were obtained illegally. See Tex. Code Crim.

Proc. Ann. art. 38.23(a) (West Supp. 2003) (evidence obtained unlawfully must be suppressed); Dowthitt

v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (discussing general situations that may give rise to

protections of article 38.23(a)). Specifically, appellant argued that the admission regarding the cooler was

the product of a custodial interrogation. Because he had not been read his Miranda rights, appellant argued

that the statement was inadmissible. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding that,

before questioning, person in police custody must be warned that he has right to remain silent, that any

statement he makes may be used as evidence against him, and that he has right to presence of retained or

appointed attorney).3 Further, appellant argued that no exigent circumstances justified the warrantless

search of his garage. See McNairy v. State, 835 S.W.2d 101, 106-07 (Tex. Crim. App. 1991)

(explaining that to justify warrantless search, police must show existence of probable cause at time of search

and exigent circumstances that made procuring warrant impracticable). Finally, appellant argued that,

because Texas does not recognize the inevitable-discovery doctrine, the marihuana obtained as a result of

his statement and search should be suppressed. See State v. Daugherty, 931 S.W.2d 268, 270-71 (Tex.

Crim. App. 1996) (holding that plain language of article 38.23(a) of Texas Code of Criminal Procedure



        3
          Appellant=s argument is that the marihuana seized from the cooler is fruit of the Miranda violation.
Although the Supreme Court has declared that Miranda articulated a constitutional rule rather than merely
a prophylactic one, Dickerson v. United States, 530 U.S. 428, 444 (2000), the Court has recently
decided to review the same circumstances presented here, United States v. Patane, 304 F.3d 1013 (10th
Cir. 2002), cert. granted, 2003 U.S. LEXIS 2948, at *1 (U.S., Apr. 21, 2003) (No. 02-1183).


                                                      6
does not allow for Aan inquiry into the potential legal acquisition of evidence once it has been established that

it was actually >obtained in violation of= law@).

                 The district court denied appellant=s motion, ruling that appellant was temporarily detained

and not under arrest at the time and admitted his statement because it was not the product of custodial

interrogation. Further, the court ruled the marihuana and paraphernalia admissible, finding that exigent

circumstances permitted the warrantless search.


                                               DISCUSSION

                 On appeal, appellant presents two points of error. By his first point of error, appellant

argues that the district court erred in finding that appellant was merely detained rather than formally arrested.

As a result, he argues that the marihuana in the cooler and his statement were erroneously admitted into

evidence. By his second point of error, appellant argues that the district court abused her discretion by

ruling that exigent circumstances justified the warrantless search of the cooler.


Standard of Review

                 A trial court=s ruling on a motion to suppress will be set aside only on a showing of an abuse

of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). This Court affords

almost total deference to a trial court=s determination of the historical facts supported by the record,

especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Guzman

v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Reviewing courts will afford the same amount of

deference to trial court rulings on Amixed questions of law and fact,@ if the resolution of those questions turns


                                                       7
on an evaluation of credibility and demeanor. Id. For mixed questions of law and fact that require more

than an evaluation of credibility and demeanor, such as determinations of probable cause and

reasonable suspicion, de novo review is appropriate. Id. at 87.

Custody

                Appellant=s first point of error asserts that the district court erred in ruling that appellant was

merely detained, rather than formally arrested. He argues that, because he had been formally arrested at the

time his statement was made, the district court erroneously admitted the admission into evidence. Neither

the Fourth Amendment nor article 38.22 of the Texas Code of Criminal Procedure preclude the admission

of noncustodial statements. See, e.g., Miranda, 384 U.S. at 444; Dowthitt, 931 S.W.2d at 263. Thus, in

order to determine whether appellant=s comments to Sobieszczyk are admissible, we must first determine

the point at which officers placed appellant in custody.

                A determination of custody must be made on an ad hoc basis, in consideration of all

of the objective circumstances of the detention. Dowthitt, 931 S.W.2d at 255; Shiflet v. State, 732

S.W.2d 622, 629 (Tex. Crim. App. 1985). A person is Ain custody@ only if, under the circumstances, a

reasonable person would believe that his freedom of movement was restrained to the degree associated

with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994). The Areasonable person@

standard presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438 (1991). In determining

whether custody exists, the subjective intent of law-enforcement officials to arrest is irrelevant, unless the

intent is communicated or manifested to the suspect in some way. Stansbury, 511 U.S. at 322; see also

Dowthitt, 931 S.W.2d at 254; Dancy v. State, 728 S.W.2d 772, 778 (Tex. Crim. App. 1987).


                                                       8
                On the other hand, a person held for investigative detention is not in Acustody.@ Dowthitt,

931 S.W.2d at 255. An investigative detention involves detaining a person reasonably suspected of criminal

activity in order to determine his identity or to momentarily maintain the status quo in order to garner more

information. Terry v. Ohio, 392 U.S. 1, 20-21 (1968). This sort of ATerry stop@ must be a temporary

detention, must last no longer than necessary to effectuate the purpose of the stop, must involve actual

investigation, and must use the least intrusive means possible. See State v. Davis, 947 S.W.2d 240, 244-

45 (Tex. Crim. App. 1997) (holding that detention may continue only so long as Aarticulable facts@ support

reasonable suspicion that suspect was engaged in criminal activity). The duration of the detention alone is

not determinative. See Smith v. State, 945 S.W.2d 343, 346-47 (Tex. App.CHouston [1st Dist.] 1997,

pet. ref=d) (explaining that passage of time must be considered along with law-enforcement purposes to be

furthered by detention, and amount of time reasonably necessary to carry out such purposes).

                The need for Miranda warnings arises when a person being questioned by law-

enforcement officials has been Ataken into custody or otherwise deprived of his freedom of action

in any significant way.@ Miranda, 384 U.S. at 444. An initial determination of custody Adepends

on the objective circumstances of the interrogation.@ Stansbury, 511 U.S. at 323. The following

situations may constitute custody: (1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law-enforcement officer tells the subject he cannot leave,

(3) when law-enforcement officers create a situation that would lead a reasonable person to

believe that his freedom of movement has been significantly restricted, or (4) when there is

probable cause to arrest and law-enforcement officers do not tell the suspect he is free to leave.



                                                     9
Id. at 323-25; Shiflet, 732 S.W.2d at 629. For the first three situations, the Stansbury decision

suggests that the restriction of freedom must elevate to the level of arrest, not merely

investigative detention. Dowthitt, 931 S.W.2d at 255. Regarding the fourth situation, the

officer=s knowledge of probable cause must be manifested to the suspect. Id. This manifestation

could occur Aif information substantiating probable cause is related by the officers to the suspect

or by the suspect to the officers.@ Id. Probable cause to arrest cannot alone constitute custody;

custody is established only if a manifestation of probable cause, paired with other circumstances,

would encourage a reasonable person to believe officers were restricting him to the degree

associated with arrest. Id.

               Curiously, the use of handcuffs does not necessarily constitute arrest or custody.

See, e.g., Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997) (re fusing to adopt bright-

line test providing that Amere handcuffing is always the equivalent of an arrest@); Mays v. State,

726 S.W.2d 937, 944 (Tex. Crim. App. 1986) (holding that officer=s conduct in handcuffing two

men did not constitute arrest and was reasonable under circumstances as investigative detention).

Although an interrogation may begin as noncustodial, police conduct during the encounter may

transform a consensual exchange into a custodial interrogation. Dowthitt, 931 S.W.2d at 255;

Ussery v. State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983).

               In the present case, Sobieszczyk appeared at appellant=s residence in response to a

disturbance call placed by a neighbor. The neighbor complained that she and appellant had

argued because she was Atired of [appellant] selling mari[h]uana out of his garage.@ Sobieszczyk



                                                10
approached appellant=s residence after speaking a few minutes with the neighbor. Initially,

appellant voluntarily left his garage and engaged in small talk with Sobieszczyk. Sobieszczyk asked

appellant general questions pertaining to the disturbance call. Although the officer testified that, even at the

time he was speaking with appellant and Reynosa before the arrival of Murphy, neither suspect was free to

leave, the officer=s conduct did not elevate the situation beyond an investigative detention. See Terry, 392

U.S. at 30-31. Even when Murphy patted down Reynosa for possible weapons, the situation did not

exceed a permissible Terry frisk because Reynosa=s behavior suggested he might be concealing a weapon.

See id.

                 The key moment comes when Sobieszczyk frisked appellant. The officer handcuffed

appellant behind his back either before or during the pat down. At this point, Reynosa was already

handcuffed and under formal arrest. The officer testified that, during the pat down, he told appellant, A[Y]ou

are being detained. I can see the mari[h]uana in there. I can see residue, the drug paraphernalia.@ At the

time of this statement, Sobieszczyk had probable cause to arrest appellant, had handcuffed him, and did not

tell him that he was free to leave. Sobieszczyk then asked appellant, AIs there anything else I=m going to find

in there that=s illegal, any more mari[h]uana?@ When appellant hesitated, Sobieszczyk moved the handcuffed

appellant to where Murphy detained Reynosa. Then Sobieszczyk moved to enter the garage. After a

couple of seconds, appellant responded, AWell, I guess there=s some pot in the red cooler.@

                 Applying the Stansbury test to these facts, we determine that appellant was in custody at

the time Sobieszczyk asked him whether he would find any additional illegal items or marihuana in the

garage. First, Sobieszczyk physically deprived appellant of his freedom of action in a significant way when



                                                      11
he handcuffed him and began patting him down. Second, he told appellant he was being detained, indicating

the suspect could not leave. Third, Sobieszczyk=s actions in handcuffing appellant and stating that appellant

was detained created a situation that would lead a reasonable person in appellant=s position to believe that

his freedom of movement was significantly restricted. Finally, the officer told appellant he saw drug

paraphernalia and drug residue in his garage. He indicated that he knew the items were contraband by

asking appellant whether he would find anything else Aillegal@ in the garage and whether he would find Aany

more mari[h]uana.@ These factors, paired with the fact that Sobieszczyk never told appellant he was free to

leave, satisfy the Stansbury standards defining custody. See 511 U.S. at 323. We hold that appellant was

in custody at the time he made the statement concerning the presence of marihuana in the cooler.


Interrogation

                In Miranda, the Supreme Court established that custodial interrogation means

Aquestioning initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.@ 384 U.S. at 444; see also

Rhode Island v. Innis, 446 U.S. 291, 298 (1980). The Supreme Court clearly distinguishes

between volunteered custodial statements and those made in response to interrogation. Innis,

446 U.S. at 299-300.

                The need for Miranda safeguards arises when a person in custody Ais subjected to

either express questioning or its functional equivalent.@ Id. at 300-01. AInterrogation,@ for

Miranda purposes, refers both to express questioning and to any words or actions by the

policeCother than those normally attendant to arrest and custodyCthat police Ashould know are


                                                     12
reasonably likely to elicit an incriminating response.@ Id. at 301. AIncriminating response@ refers

to both inculpatory and exculpatory responses that prosecutors may seek to introduce at trial. Id.

at 302 & n.5. The likelihood of eliciting a response focuses on the perception of the suspect, not

the intent of the police. Id. at 301. The Court noted that any practice the police should know is

Areasonably likely to evoke an incriminating response from a suspect@ constitutes interrogation.

Id.

               We hold that appellant was Ainterrogated@ within the meaning of Miranda. Before

appellant made any incriminating statements, he was in custody. By asking appellant whether

there was Aanything else [he was] going to find in [the garage] that=s illegal, any more

mari[h]uana,@ Sobieszczyk engaged in express questioning of appellant. The officer did not first

provide Miranda warnings to appellant.

               At a minimum, Sobieszczyk=s inquiries were the Afunctional equivalent@ of

questioning. When Sobieszczyk asked appellant whether he would find more marihuana in

appellant=s garage, he had just informed appellant that he had seen marihuana paraphernalia and

residue in the garage. Further, according to his own testimony, Sobieszczyk already had placed

appellant in handcuffs and told him that he was being detained. No officer had administered the

warnings required by Miranda.

               A police officer Ashould know@ that asking appellant whether he would find more

narcotics in the garage was Areasonably likely to evoke an incriminating response@ from

appellant. Innis, 446 U.S. at 301. Further, a police officer should know that, if appellant



                                                13
responded in the affirmative, the response would be of the sort prosecutors would seek to

introduce at trial. Appellant saw Sobieszczyk begin to enter the garage. He likely believed the

officer would find the drugs. Sobieszczyk should have known that the combination of his entry

into the garage and his questioning of appellant would encourage the suspect to provide an

incriminating response. See id.

               The State argues that, even if Sobieszczyk Ainterrogated@ appellant, appellant=s

statement about marihuana being located in the closed cooler constituted a voluntary statement,

rather than an incriminating response to an impermissible interrogation. The State emphasizes

the fact that appellant paused and Arefused to answer@ after the officer asked the question.

According to the State, this pause effectively ended the conversation between the officer and

appellant. Thus, appellant=s admission served as a voluntary statement, making it admissible.

The record, however, does not support the State=s assertion. Sobieszczyk testified that the pause

lasted but Aa few seconds @Conly enough time for him to take Ajust a couple of steps.@

               Voluntary statements generally do not occur in response to a direct question from a

police officer. That the suspect was neither expressly nor implicitly questioned by police officers

at the time the statement was made often determines the voluntariness of a statement. See

Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984) (holding admissible as voluntary

defendant=s statement made when in custody but not in response to interrogation); Sanchez v.

State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979) (defendant=s statement after arrest that

officers were lucky they caught him and his inquiries about whether someone Ahad squealed on



                                                14
him@ admissible as voluntary statements because they were not products of interrogation or

responses to inquiry by officers); Earnhart v. State, 582 S.W.2d 444, 448 (Tex. Crim. App. 1979)

(statement of arrested defendant who said, AIt=s got blood on it. I want to get a clean one,@ when

grabbing shirt to wear was admissible because it was voluntary and not made in response to

inquiry or as result of interrogation); Davis v. State, 780 S.W.2d 945, 947 (Tex. App.CFort Worth

1989, pet. ref=d) (finding that suspect=s statement, AIt=s cool. You got me,@ upon apprehension by

police was admissible as res gestae or voluntary statement before interrogation).

                Here, appellant=s incriminating statement directly responded to an inquiry from

Sobieszczyk. Under these facts, we cannot say that the statement was voluntary. We hold that

appellant=s statement was made pursuant to a custodial interrogation and was thus inadmissible in

evidence.

Warrantless Search of Garage and Cooler

     1. Protective Sweep

                By his second issue, appellant argues that the district court erred in finding that exigent

circumstances supported Sobieszczyk=s warrantless search of appellant=s garage. Specifically, he argues

that the district court=s finding that such circumstances permitted Sobieszczyk to search the closed cooler

without a warrant was error.

                The State rejoins that Sobieszczyk=s entry into appellant=s garage constituted a

Aprotective sweep.@ A protective sweep is a Aquick and limited search of premises, incident to an

arrest and conducted to protect the safety of police officers or others.@ Maryland v. Buie, 494



                                                    15
U.S. 325, 328 (1990). In Buie, the United States Supreme Court noted that Athe Fourth

Amendment bars only unreasonable searches and seizures.@ Id. at 331. To determine whether a

search is reasonable, courts should balance an individual=s privacy interest with the promotion of

legitimate government interests. Reasor v. State, 12 S.W.3d 813, 816 (Tex. Crim. App. 2000).

Searching a home is Agenerally not reasonable without a warrant issued on probable cause.@

Buie, 494 U.S. at 331.

               However, A[t]he Fourth Amendment permits a properly limited protective sweep in

conjunction with an in-home arrest when the searching officer possesses a reasonable belief that

the area to be swept harbors an individual posing a danger to those on the arrest scene.@ Id. at

337 (quoted in Reasor, 12 S.W.3d at 816). The sweep cannot be a Afull search of the premises.@

Id. at 335. Instead, it may only extend Ato a cursory inspection of those spaces where a person

may be found.@ Id. The sweep may only last long enough to Adispel the reasonable suspicion of

danger.@ Id. The protective sweep is permitted only when Ajustified by a reasonable, articulable

suspicion that the house is harboring a person posing a danger to those on the arrest scene.@ Id.

at 336.

               Applying such standard to the case before us, we conclude that the protective

sweep of appellant=s garage, which was connected to appellant=s house, was justified.

Sobieszczyk was reasonably concerned about his safety. He testified that he felt a protective

sweep was necessary, after detaining and securing appellant, to ensure that no other adults

remained in the garage. Murphy=s pat down of Reynosa had revealed a weapon. Sobieszczyk



                                               16
also testified that the lighting in the garage was poor, that the partially open door prevented him

from viewing all portions of the garage from outside, and that he did not know how many people

were in the garage.

                 However, the sweep was permissible only to the extent necessary to ensure that no

dangerous or armed individuals remained in the garage. Sobieszczyk=s testimony established that

the garage was rather smallBonly about Aa 12 [feet] by 12 [feet] section.@ Thus, the officer was

permitted to sweep the room only to the degree necessary to establish that no individuals

remained, and his sweep was limited to those spaces Awhere a person may be found.@ Id. at 337.

Thus, although the protective sweep was legal, it did not allow the officer to search the cooler

inside the garage, because the officer could not reasonably believe that a person might be found

in the cooler.


     2. Exigent Circumstances

                 Because the protective sweep would not permit Sobieszczyk=s search of the cooler, we

now determine whether the search was otherwise permissible. The district court found that exigent

circumstances permitted the warrantless search of the garage and cooler. Appellant contends that the court

erred because no exigent circumstances existed to justify the search of the cooler. We agree.

                 Texas law does not recognize the inevitable-discovery doctrine, which would permit

admission of evidence obtained in an unlawful search if such evidence would later have been

obtained lawfully. In Daugherty, the court of criminal appeals confirmed that, if evidence was




                                                   17
obtained illegally under article 38.23(a) of the code of criminal procedure, it must be excluded. 4

931 S.W.2d at 269. No exception exists for evidence that later might have been obtained lawfully.

 Id. Thus, unless evidence is obtained legally with a search warrant or through one of the

carefully-crafted exceptions to the warrant requirement, the evidence must be excluded.

                  Because the officers had neither a warrant nor appellant=s consent, and had not informed

appellant that he was under arrest when the cooler was seized and searched, the State bears the burden of

proving the reasonableness of the search. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986);

Newhouse v. State, 53 S.W.3d 765, 769 (Tex. App.CHouston [1st Dist.] 2001, no pet.). The State must

show: (1) probable cause existed at the time the officer made the search and (2) that exigent circumstances

existed that made obtaining a warrant impracticable. Taylor v. State, 945 S.W.2d 295, 300 (Tex.

App.CHouston [1st Dist.] 1997, pet. ref=d).



        4
            Article 38.23(a) provides:

            No evidence obtained by an officer or other person in violation of any provisions of the
            Constitution or laws of the State of Texas, or of the Constitution or laws of the United
            States of America, shall be admitted in evidence against the accused on the trial of any
            criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2003).




                                                      18
                A finding of exigent circumstances usually includes Afactors pointing to some

danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible

destruction of evidence.@ McNairy, 835 S.W.2d at 107. Thus, situations justifying a warrantless

search include: (1) rendering aid or assistance to persons whom the officers reasonably believe

are in need of assistance, (2) preventing the destruction of evidence or contraband, and (3)

protecting the officers from a person whom they reasonably believe to be present and armed and

dangerous. Id. (citing Stewart v. State, 681 S.W.2d 774 (Tex. App.CHouston [14th Dist.] 1984,

pet. ref=d)). To prove exigent circumstances existed, the State must show Athat the police could

have reasonably concluded that evidence would be destroyed or removed before they could obtain

a search warrant.@ Id.

                Deferring to the district court=s findings, we assume that the State established probable

cause to enter the garage. See Newhouse, 53 S.W.3d at 769; see also McNairy, 835 S.W.2d at 106

(holding that probable cause exists when reasonably trustworthy facts and circumstances in officer=s

knowledge would lead reasonably prudent individual to believe that instrumentality of crime or evidence of

crime will be found). However, the State must also show exigent circumstances justified the warrantless

search. Newhouse, 53 S.W.3d at 769; Taylor, 945 S.W.2d at 300.

                The Fourth Amendment prohibits a search of closed containers without a warrant

where no clear exigency exists. United States v. Chadwick, 433 U.S. 1, 15 (1977); State v. Porter,

940 S.W.2d 391, 393 (Tex. App.CAustin 1997, no pet.) (explaining that, although discovery of

marihuana in suspect=s room created probable cause, that alone failed to justify searching



                                                   19
suspect=s luggage without search warrant or exigent circumstances). Sobieszczyk maintained the

authority to seize the cooler. California v. Acevedo, 500 U.S. 565, 575 (1991) (law enforcement

officers may seize container and hold it until they obtain search warrant); Chadwick, 433 U.S. at

13 (initial seizure and detention of suspect=s footlocker from railroad station valid, even before

search warrant received). However, a container=s seizure does not compromise the interest in

preserving the privacy of its contents, because it may only be opened pursuant to either a search

warrant or one of the exceptions to the warrant requirement. Horton v. California, 496 U.S. 128,

142 & n.11 (1990).

               As a general rule, Aindividuals can manifest legitimate expectations of privacy by

placing items in closed, opaque containers that conceal their contents from plain view.@ United

States v. Villarreal, 963 F.2d 770, 773 (5th Cir. 1992). The type of container generally does not

affect Fourth Amendment protection, nor should the analysis focus on whether individuals

typically use the container to transport personal effects. Id. Generally, closed, opaque

containers remain subject to the warrant requirement. Id. at 774. No amount of probable cause

will justify a warrantless search or seizure absent exigent circumstances. Id. at 777 (citing Taylor

v. United States, 286 U.S. 1, 6 (1932)).

               The McNairy court identified five factors relevant to a reasonable determination by

the searching officers that evidence might be destroyed or removed before they obtained a search

warrant: (1) the degree of urgency involved and the amount of time necessary to obtain a warrant;

(2) a reasonable belief that the contraband is about to be removed; (3) the possibility of danger to



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police officers guarding the site of the contraband while a search warrant is sought; (4)

information indicating the possessors of the contraband are aware that police are on their trail;

and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of

narcotics and to escape are characteristic behavior of persons engaged in narcotics trafficking.

McNairy, 835 S.W.2d at 107 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)).

               The State has failed to demonstrate the existence of exigent circumstances. There

not only was ample time to obtain a search warrant, but the State did in fact obtain one. The

warrantless search served no law-enforcement purpose that could not have been served by

waiting for the warrant. The protective sweep established that no individuals remained in the

garage. Sobieszczyk removed the cooler from the garage, placing it in his control and out of

danger of being destroyed. Without appellant=s statement, the officer had no reason to believe

that the cooler contained marihuana. Nothing in Sobieszczyk=s testimony suggests that the officer

maintained such a belief before appellant=s statement. No re asonable threats to the officers =

safety existed, because appellant and Reynosa were handcuffed and within the officers = control.

When objectively considering the facts and circumstances confronting the officers at the time of

the search, the State failed to establish that a reasonable officer would have felt it necessary to

search the cooler or the garage premises without a warrant. Brimage v. State, 918 S.W.2d 466,

501 (Tex. Crim. App. 1994). The State failed to offer a legally justifiable reason why Sobieszczyk

performed the search without a warrant. We cannot correct this oversight after the fact.




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Villarreal, 963 F.2d at 777. We hold that the district court erred by finding that exigent

circumstances existed to justify the warrantless search of the cooler.


The Plain-View Doctrine

                Sobieszczyk=s testimony establishes that the garage was small, and he did not believe at the

time of the seizure that any entrance to the garage from the house existed. The garage door was open. The

officer was within his authority to perform a protective sweep to ensure that no other individuals remained in

the garage. Because the drug paraphernalia was in the officer=s plain view, he was within his authority to

seize those objects. Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000). Based on the

information available to Sobieszczyk at the time, once he swept the garage and removed the evidence, the

evidence was secure.

                The plain-view-seizure doctrine requires both of the following: (1) that an officer see an

item in plain view at a vantage point where he has the right to be, and (2) that the officer immediately

recognize the seized item constitutes evidence. Id. at 685; Ramos v. State, 934 S.W.2d 358, 365 (Tex.

Crim. App. 1996). The seizing officer must also have probable cause to associate the item seized with

criminal activity. Martinez, 17 S.W.2d at 685. Discovery of the seized item need not be inadvertent.

Horton, 496 U.S. at 141-42; Ramos, 934 S.W.2d at 365; State v. Haley, 811 S.W.2d 597, 599 (Tex.

Crim. App. 1991).

                Application of the plain-view doctrine to the facts of the present case establishes that the

test only justifies some of the evidence seized by Sobieszczyk without a warrant. The neighbor=s call

provided the officer with sufficient reason to visit appellant=s residence. When appellant opened the door to


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the garage, he offered the officer a view into the garage, which included that area in the officer=s permissible

vantage point. Because appellant=s companion Reynosa left the door open after joining appellant and

Sobieszczyk outside, he offered the officer a continuing view inside the garage. The open garage door

provided Sobieszczyk a clear view of the marihuana pipe and the scales covered with marihuana seeds.

Because Sobieszczyk was justified in conducting the protective sweep, his seizure of these items falls within

the plain-view doctrine. Martinez, 17 S.W.3d at 685.

                 The cooler, however, does not fall within the doctrine. The plain-view exception to the

warrant requirement allows police officers to seize incriminating items that they discover in their legitimate

law-enforcement activities. The exception does not justify warrantless, exploratory searches of closed

containers that purport to contain innocuous materials. Villarreal, 963 F.2d at 776. The open garage

door provided Sobieszczyk with a plain view of the cooler. However, without appellant=s

statements, Sobieszczyk did not immediately recognize a connection between the cooler and

marihuana, nor would it have been reasonable for him to do so. Under these facts, we hold that

Sobieszczyk had probable cause to apply for a warrant and, in the meantime, to secure the

premises and to seize the cooler, but not to search the cooler.


Harm Analysis

                 Having determined that constitutional error occurred, we must now determine

whether the error was harmless beyond a reasonable doubt. Tex. R. App. P. 44.2(a). To decide

harmless error, we consider: (1) the source of the error; (2) the nature of the error; (3) whether

or to what extent the State emphasized the e rror; (4) the error=s probable collateral implications;


                                                      23
(5) how much weight a juror would probably place on the error; and (6) whether declaring the error

harmless would encourage the State to repeat it with impunity. See Harris v. State, 790 S.W.2d

568, 587 (Tex. Crim. App. 1989); Taylor, 945 S.W.2d at 299.

               Here, the State used evidence seized after an impermissible custodial interrogation

and an improper search that violated appellant=s constitutional rights. The State=s case rested

upon the evidence seized from the cooler. Not only did the seized evidence cause appellant to

plead guilty, but a jury would probably place great weight on the evidence for the same reasonCit

is the only direct evidence of the crime charged. Finally, declaring the officer=s warrantless

search and custodial interrogation without Miranda protections to be harmless error could

substantially undermine the protection afforded individuals from unreasonable searches and

seizures and erode the protections afforded by Miranda. Based on the facts of this case, we

believe that the district court=s error contributed to appellant=s conviction. In any event, we

cannot say beyond a reasonable doubt that it did not. We hold that the error caused appellant

harm.


                                        CONCLUSION

               We hold that the district court erred by overruling Ramirez=s motion to suppress

(1) his statement regarding marihuana in the cooler and (2) the marihuana obtained from the

cooler. Therefore, we reverse the district-court judgment and remand the case for further

proceedings consistent with this opinion.




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                                             Lee Yeakel, Justice

Before Justices Kidd, Yeakel and Patterson

Reversed and Remanded

Filed: May 1, 2003

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