        IN THE COURT OF CRIMINAL APPEALS
                    OF TEXAS

                                    NO. PD–0931–16



                        ANDREAS MARCOPOULOS, Appellant

                                            v.

                               THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE FIRST COURT OF APPEALS
                         HARRIS COUNTY

              K EEL, J., filed a dissenting opinion in which K ELLER, P.J., joined.

                                DISSENTING OPINION

       We should either dismiss this petition as improvidently granted or uphold the

finding of probable cause to search Appellant’s truck. Since the majority does neither, I

respectfully dissent.

                            Dismiss as Improvidently Granted

       A trial court’s ruling on a motion to suppress must be upheld on appeal if any

applicable legal theory supports it. State v. Copeland, 501 S.W.3d 610, 612-13 (Tex.
                                                                 Marcopoulos dissent–Page 2

Crim. App. 2016).

       Police officers may search persons whom they lawfully arrest. United States v.

Robinson, 414 U.S. 218, 236 (1973).

       Appellant has never challenged the lawfulness of his arrest for traffic offenses.

After that arrest, police found cocaine in his truck and on his person. The cocaine found

on his person was admissible because it was found in a search incident to his arrest. See

Robinson, 414 U.S. at 236. The trial court’s ruling was correct on that theory and must be

upheld on appeal. See Copeland, 501 S.W.3d at 612-13. Since Appellant was indicted

for and pled guilty to possession of less than a gram of cocaine, the cocaine on his person

supported his prosecution regardless of the cocaine found in his truck, and we need not

address the legitimacy of the search of his truck.

       We should dismiss the petition for discretionary review as improvidently granted.

                            Probable Cause to Search the Truck

       Police may search a vehicle if they have probable cause to believe it contains

evidence of a crime. United States v. Ross, 456 U.S. 798, 825 (1982). In such a case “a

search is not unreasonable if based on facts that would justify the issuance of a warrant,

even though a warrant has not actually been obtained.” Id. at 809. Due to the lower

expectation of privacy attendant to automobiles, however, the warrant requirements for

searching them are less rigorous than those for other types of searches. Wiede v. State,

214 S.W.3d 17, 24 (Tex. Crim. App. 2007), quoting South Dakota v. Opperman, 428 U.S.
                                                                   Marcopoulos dissent–Page 3

364, 367 (1976).

       Probable cause exists when “the facts and circumstances within the knowledge of

the arresting officer and of which he has reasonably trustworthy information would

warrant a reasonable and prudent man in believing that a particular person has committed

or is committing a crime.” Brown v. State, 481 S.W.2d 106, 110 (Tex. Crim. App. 1972).

“Probable cause requires an evaluation of probabilities, and probabilities ‘are the factual

and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.’” Wiede, 214 S.W.3d at 24, quoting Brinegar v. United States, 338

U.S. 160, 175 (1949). If the totality of the circumstances demonstrates a “fair

probability” of finding evidence at the location being searched, then the probable cause

standard is met. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).

       Appellate courts must review a trial court’s probable cause finding in the light

most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.

App. 2006).

       Viewed in the light most favorable to the trial court’s ruling, the evidence here

showed that undercover narcotics officer Joseph Oliver had been making cases out of

Diddy’s Sports Bar throughout his six-year tenure in the narcotics division. Diddy’s was

“set up like a sports bar but they don’t sell anything other than narcotics out of there.”

Two weeks before Appellant’s arrest, Oliver had made an undercover buy at Diddy’s

after which his team had executed a search warrant.
                                                                     Marcopoulos dissent–Page 4

       On the day of Appellant’s arrest, they were “continuing the investigation by

knocking cases out, proving that they were still” selling drugs, trying “to pick off

customers who’d just in and buy.” The prevalence of drug deals at Diddy’s was

corroborated by the defense witness, an attorney who testified that he had “had a case

from Diddy’s” and had “heard about these other cases in which the police stop somebody

who has bought dope there and pulled them over and indeed found dope there.”

       That day, Oliver and his partner were watching Diddy’s from a nearby parking lot.

They saw appellant park in Diddy’s lot, go into the bar for about three minutes and then

return to his car and leave. His brief stay meant that he did not have time for a drink, and

his actions conformed to a pattern of behavior exhibited by other Diddy’s narcotics

buyers. Oliver had seen Appellant at Diddy’s before but had been unable to stop him on

those prior occasions.1

       After Oliver and his partner saw Appellant commit traffic offenses, they called for

a marked patrol unit to stop him. The patrol officer, Tony Villa, pulled behind Appellant

in such a way that, according to the defense witness, it was obvious whom he was after

even without lights and sirens.

       With Villa behind him, Appellant began making furtive gestures toward the center

console and watching Villa in his rearview mirror. According to Oliver, Appellant



       1
         “We’d seen him at the location before, we couldn’t get him to stop quick enough and
get him out of there due to traffic or we couldn’t enter in there. At this time when we seen him
come back which we did, it was another customer we’ve seen at the location before.”
                                                                   Marcopoulos dissent–Page 5

reached toward the passenger side of his truck as if “trying to hide something.” After

Villa activated his emergency equipment, Appellant pulled into a gas station. As Villa

was approaching the truck on foot, Appellant was still moving his hands around toward

the center console area.

       The totality of these circumstances viewed in the light most favorable to the trial

court’s ruling – Appellant’s brief, repeat visit to a location notorious for drug sales, his

behavior there mirroring that of other drug buyers, plus his efforts to hide something

when he realized the police were after him – indicated a “fair probability” of finding

contraband in his car. But instead of evaluating the totality of the circumstances, the

majority opinion picks them off one by one, viewing them in a light unfavorable to the

trial court’s ruling and holding each inadequate to support a finding of probable cause.

       First the majority “severely” discounts “the probative value of Marcopoulos’s

presence at Diddy’s” and cites Sibron v. New York, 392 U.S. 40 (1968), in support of that

viewpoint. But the majority’s reliance on Sibron is misplaced.

       Sibron did not involve an automobile search, and automobile searches are subject

to less rigorous warrant requirements because of a lower expectation of privacy in

automobiles. Opperman, 428 U.S. at 367; Wiede, 214 S.W.3d at 24. That does not mean

that the Fourth Amendment does not apply to automobiles; it does mean that equating the

requirements for searching cars with the requirements for searching persons is a false

equivalence.
                                                                    Marcopoulos dissent–Page 6

       Also, Sibron is distinguishable on its facts. The police officer who searched

Sibron’s pocket knew nothing about him; he merely saw him “talking to a number of

known narcotics addicts over a period of eight hours.” Sibron, 392 U.S. at 62. In this

case, by contrast, Oliver recognized Appellant as a repeat visitor to a “bar” that was a

front for narcotics sales and who exhibited behavior consistent with that of known drug

buyers at that establishment. The majority dismisses that testimony because, in its view,

“this hardly leads to the conclusion that . . . Oliver knew Marcopoulos to be a repeat

narcotics customer.” But these facts can fall short of establishing such a conclusion and

still help establish probable cause. Instead of considering them as part of the bigger

picture and looking at them in the light most favorable to the trial court’s ruling, however,

the majority discards them.

       Having dispensed with any incriminating inferences to be drawn from Appellant’s

repeated visits to Diddy’s, the majority acknowledges that his “unusually brief” visit there

on the day of his arrest was suspicious but holds it insufficient to support a probable cause

finding, again isolating a fact instead of viewing it as part of a totality of the

circumstances. The majority then turns its attention to Appellant’s furtive gestures and

finds that they fall short, as well.

       The majority claims that Appellant’s furtive gestures lacked significance because

they were not “in response to police action . . . but rather mere police presence” and cites

Brown, 481 S.W.2d 106, as authority for this supposed distinction. But Brown did not
                                                                 Marcopoulos dissent–Page 7

hold, as the majority seems to, that something like “wailing sirens or flashing lights” must

precede furtive gestures to cast them in an incriminating light. Instead, Brown

acknowledged the lack of evidence in that case to show that (1) the defendants recognized

that the unmarked car following them was a police car, (2) their gestures were in response

to that recognition, and (3) their ambiguous shoulder movements were made for the

purpose of avoiding apprehension. Id. at 112. Here, by contrast, a marked patrol unit

pulled in behind Appellant’s truck, Appellant knew that the patrol car was behind him,

and his gestures, far from ambiguous, looked as if he were hiding something.

Deliberately furtive gestures at the approach of police “are strong indicia of mens rea,”

Sibron, 392 U.S. at 66, and the majority errs to discount them in this case.

       Even if the law required police “action” for furtive gestures to have incriminating

significance, the gestures here would meet that requirement because Appellant continued

them after he pulled over in response to the patrol officer’s activation of his emergency

equipment, a fact ignored by the majority opinion.

       The majority correctly states that furtive gestures alone do not establish probable

cause. But having dismissed the other suspicious circumstances in this case – the nature

of Diddy’s as a front for drug sales, Appellant’s repeated appearances there, his brief

appearance on this occasion – the majority destined Appellant’s furtive gestures to stand

alone and thus be insufficient to support a finding of probable cause.

       The majority cites Turner v. State, 550 S.W.2d 686 (Tex. Crim. App. 1977)
                                                                 Marcopoulos dissent–Page 8

(commissioner opinion), as an example of probable cause based on furtive gestures of

which it approves. In that case, a driver dropped a matchbox to the floor as he exited a

vehicle in response to a police officer’s command. Id. at 688. The Turner opinion held

that sufficed as probable cause. Id. If dropping a matchbox in the presence of a police

officer amounts to probable cause, then the totality of the circumstances here amounts to

probable cause, too.

       We should dismiss this petition as improvidently granted. Alternatively, we should

uphold the trial court’s implicit finding of probable cause to search the truck. Since the

majority does neither, I dissent.




Filed: December 20, 2017

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