Affirmed and Memorandum Opinion filed April 19, 2012.




                                       In The

                     Fourteenth Court of Appeals

                                NO. 14-11-00850-CR
                                NO. 14-11-00851-CR


                        THE STATE OF TEXAS, Appellant

                                          V.

                         MIRIAL CLEVELAND, Appellee


                      On Appeal from the 185th District Court
                               Harris County, Texas
                      Trial Court Cause Nos. 1292215, 1292216


                  MEMORANDUM OPINION

      The State of Texas appeals from the trial court’s grant of appellee Mirial
Cleveland’s motions to suppress. We affirm.

                                  BACKGROUND

      In January 2011, Officer Ivan Jones, a nineteen-year veteran with the Houston
Police Department (―HPD‖) assigned to the Narcotics Division, observed appellee
participating in what he believed to be a ―pill crew‖ operation.1 Jones, who was
undercover and in an unmarked vehicle, observed appellee in the driver’s seat of a Dodge
pick-up truck at the Cullen Care Pharmacy in Houston. He saw several individuals get
out of the pick-up truck, go into the pharmacy, return to the truck, and then go back into
the pharmacy, as if they were waiting for prescriptions to be filled. He saw appellee take
pills from one of the individuals and hand them to the front seat passenger. Based on his
training and experience, he believed that appellee was running a pill crew.

        Jones continued to follow appellee for approximately two hours as she travelled to
several destinations. He followed her to a gas station where she dropped off two of the
individuals. Jones believed that appellee’s actions in dropping these individuals off was
consistent with someone’s running a pill crew. After appellee left the gas station, he
observed her committing several traffic offenses. He radioed dispatch for a marked HPD
patrol unit to perform a traffic stop on appellee’s vehicle. By the time the patrol unit
arrived, Jones had followed appellee to a small fast food restaurant. Appellee had exited
the vehicle and entered the restaurant when the patrol unit arrived at the location. Jones
directed the patrol officers to the restaurant; uniformed patrol officer Robert Caballero
requested that appellee exit the restaurant. When she exited the restaurant, officers
detained her. Jones walked over to appellee’s truck, looked in the front window, and
observed a brown paper bag with pill bottles in it. He entered the vehicle and retrieved
the bag containing the pill bottles.

        Appellee was arrested for one count of possession of a controlled substance and
one count of possession with intent to deliver a controlled substance. She filed motions to
suppress in both cases. The trial court granted her motions to suppress, finding the above-
described facts, as well as making the following additional findings:


        1
          According to Jones, who had been in the Narcotics Division of the HPD for five years and had
undergone specialized training in the division, a pill crew generally consists of a driver and a handler. The
crew members pick up homeless people or people with whom they have no relationship, transport these
people to a doctor’s office, pay for their doctor’s visits, take them to the pharmacy, pay for their
prescriptions, and then take possession of the pills to sell illegally.

                                                     2
          Appellee had standing to complain about the search of the truck.
          Appellee did not consent to the search of the truck, and no warrant was
          obtained by officers prior to the search.
          The truck was parked in the parking lot of a business accessible to the public.
          Jones had lawful access to the public parking lot where the truck was parked
          when he looked inside the truck and saw the pill bottles in plain view on the
          front seat of the truck.
          The truck was readily mobile.
          Jones’s testimony was true, and he was a credible witness.
Based on these findings, the trial court made the following conclusions of law:

       1. Jones did not have probable cause to search the defendant’s truck.
       2. Jones was lawfully in a place the object could be plainly [seen].
       3. Based on the circumstances viewed by Jones, the incriminating character of the
          object was immediately apparent.
After the trial court granted appellee’s motions to suppress, the State timely filed this
appeal.

                                        ANALYSIS

A.     Standard of Review

       In a single issue, the State asserts that the trial court erred in granting appellee’s
motion to suppress because both the plain-view and automobile exceptions to warrantless
searches apply to Jones’s seizure of the contraband in this case. We review a trial court’s
suppression ruling under an abuse-of-discretion standard. Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is the sole
fact-finder. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). We give almost
total deference to a trial court’s rulings on questions of historical fact and application-of-
law-to-fact questions that turn on an evaluation of credibility and demeanor, but we
review de novo application-of-law-to-fact questions that do not turn on credibility and
demeanor. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).


                                              3
B.      Search and Seizure Challenge

        The Fourth Amendment protects against unreasonable searches and seizures by
government officials.2 U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007). Here, the parties agree that the search and seizure at issue occurred
without a warrant. In such a situation, the burden of proof shifts to the State to establish
that the search was reasonable. See Amador v. State, 221 S.W.3d 666, 672–73 (Tex.
Crim. App. 2007). Whether a search and seizure is reasonable is a question of law that we
review de novo by examining the totality of the circumstances. Kothe v. State, 152
S.W.3d 54, 62–63 (Tex. Crim. App. 2004). A search conducted without a warrant is per
se unreasonable unless it falls within one of the ―specifically defined and well
established‖ exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615
(Tex. Crim. App. 2003).

B.      Exceptions to the Warrant Requirement

        On appeal, the State asserts that either of two well-established exceptions to the
warrant requirement—the plain-view exception and the automobile exception—support
reversing the trial court’s orders. Our review of the record, however, indicates that the
automobile exception to the warrant requirement was not argued to the trial court. Rather,
the record reflects that the State relied on the following grounds to support the
reasonableness of the search: (1) search incident to arrest based on Jones’s testimony that
he believed that appellee was under arrest when he seized the pills3 and (2) plain-view
doctrine based on the pills being in plain view in the front seat of the vehicle. Grounds
not presented to the trial court cannot support reversal of a trial court’s order on a motion

        2
          The search and seizure provisions of the Texas constitution warrant an analysis distinct from the
federal constitutional analysis. See Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
However, because appellee makes no distinction between the constitutions with regard to this matter, and
absent authority to the contrary, our discussion applies to both. See Metoyer v. State, 860 S.W.2d 673,
676 n. 4 (Tex. App.—Fort Worth 1993, pet. ref’d) (noting that a violation of the Texas constitution is also
determined by a reasonableness standard under the circumstances).
        3
          The State has not argued this ground on appeal because Jones stated during cross-examination
that he did not actually observe appellee being placed under arrest and Caballero testified that he did not
arrest appellee.

                                                    4
to suppress. Martinez v. State, 91 S.W.3d 331, 335 (Tex. Crim. App. 2002). Because the
automobile exception was not presented to the trial court, we may not reverse the trial
court’s orders granting the motions to suppress on this ground. See id. We thus overrule
this portion of the State’s first issue.

       Turning to the plain-view exception, a seizure of an object is lawful under this
exception if: (1) law enforcement officials are lawfully where the object can be ―plainly
viewed,‖ (2) the incriminating character of the object in plain view is immediately
apparent to the officials, and (3) the officials have the right to access the object. Keehn v.
State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). However, ―[p]lain view, in the
absence of exigent circumstances, can never justify a search and seizure without a
warrant when law enforcement officials have no lawful right to access an object.‖ Id. at
335.

       The situation in Keehn bears many similarities to this case. In Keehn, officers
investigating a theft went to appellant’s house to talk to him. Id. at 332. One of the
deputies saw a van in the driveway of appellant’s residence. Id. As he walked past the
van, he looked inside and saw a propane tank that, based on his experience, he believed
was being used in the manufacture of methamphetamine. Id. After no one at the residence
answered the door, the deputy called for back-up, including the local drug task force. Id.
Once the back-up officers arrived, the appellant answered the door and permitted them
inside the house. Id. The local drug task force officer arrived after the other officers had
entered the house. Id. He spoke with the other officers and then looked inside the
windows of the van. Id. He observed the propane tank and, based on his training and
experience, also believed that the tank was being used in the manufacture of
methamphetamine. Id. The officer entered the van and seized the tank; it tested positive
for anhydrous ammonia, which is used in the manufacture of methamphetamine. Id. The
officer arrested the appellant for possession of anhydrous ammonia with intent to
manufacture methamphetamine. Id. The appellant filed a motion to suppress, which was
denied by the trial court. Id.

                                              5
       The Fort Worth Court of Appeals upheld the trial court’s denial of the motion to
suppress under the plain-view and automobile exceptions for warrantless searches. Id. at
333. The Court of Criminal Appeals disagreed that the plain-view exception applied
because the officers had no lawful right to access the object in the appellant’s van and no
exigent circumstances existed.4 Id. at 335.

C.     Application

       Likewise, here, the plain-view exception does not apply because, as in Keehn, the
officers had no lawful right to access the object in appellee’s truck absent exigent
circumstances. See id. Our review of the record reveals no exigent circumstance capable
of supporting Jones’s seizure of the pills. Jones stated that at the time he entered the
vehicle to seize the pills, ―everyone was secured‖ and in police custody. Thus, there was
no opportunity for any of the people at the scene to drive the vehicle away or dispose of
any evidence while the officers were securing a search warrant. The State asserts that the
―exigent circumstance‖ present here was the automobile exception. But as discussed
above, this ground was not raised in the trial court. Thus, we may not consider it for the
first time on appeal as a basis to reverse the trial court’s orders. See Martinez, 91 S.W.3d
331. Under these circumstances, we overrule the State’s sole issue on appeal.

                                     CONCLUSION

       Having overruled the State’s issue, we affirm the trial court’s orders.




                                   /s/    Adele Hedges
                                          Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

       4
         The Keehn Court however, concluded the search and seizure was permissible under the
automobile exception to the warrant requirement. Id.

                                              6
