                                                                                ACCEPTED
                                                                            13-14-00680-CR
                                                            THIRTEENTH COURT OF APPEALS
                                                                   CORPUS CHRISTI, TEXAS
                                                                       7/16/2015 2:34:00 PM
                                                                     CECILE FOY GSANGER
                                                                                     CLERK




                 #13-14-00680-CR                   FILED IN
                                           13th COURT OF APPEALS
                                       CORPUS CHRISTI/EDINBURG, TEXAS
                                            7/16/2015 2:34:00 PM

 Thirteenth Court of Appeals, Corpus   ChristiCECILE FOY GSANGER
                                               & Edinburg
                                                    Clerk




              THE STATE OF TEXAS,
                       Appellant

                          v.

                ISRAEL RAMIREZ,
                       Appellee



ON STATE’S APPEAL FROM THE 94TH DISTRICT COURT
     OF NUECES COUNTY, CAUSE #13-CR-2209-D


           STATE’S REPLY BRIEF
                           A. Cliff Gordon
                           Tex. Bar #00793838
                           Asst. Dist. Atty., 105th Dist.
                           Nueces County Courthouse
                           901 Leopard St., Rm. 206
                           Corpus Christi, TX 78401
                           361.888.0410 phone
                           361.888.0399 fax
                           cliff.gordon@nuecesco.com
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................... ii
ARGUMENT ............................................................................................................1
     An officer may properly search a person without a warrant—
       outside his home—upon probable cause that the person
       possesses illegal drugs on his person ......................................................1
           a. Probable cause to search a person, on the basis that he
              likely has illegal drugs on his person, is no different from
              probable cause to arrest .......................................................................2
           b. Probable cause to search a person for illegal drugs outside
              his home justifies a search incident to arrest even before
              formal arrest ..........................................................................................3
PRAYER ....................................................................................................................5
CERTIFICATE OF COMPLIANCE ......................................................................6
CERTIFICATE OF SERVICE .................................................................................6




                                                             i
                               INDEX OF AUTHORITIES


Cases
Esquivel v. State, No. 13-13-00339-CR, 2014 WL 3049520 (Tex. App.—
     Corpus Christi July 3, 2014, no pet.) ..........................................................4
Parker v. State, 206 S.W.3d 593 (Tex. Crim. App. 2006) ................................2, 3
Rawlings v. Kentucky, 448 U.S. 98 (1980)............................................................4
State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999) ...................................5




                                                  ii
                              ARGUMENT

      The crux of Appellee Israel Ramirez’s argument is that probable

cause “is irrelevant.” Ramirez’s Brief at 8. Regardless of probable cause—

Ramirez contends—the State proved no exception to the warrant

requirement, which renders the search unlawful. Ibid.

      The trial court’s conclusions included nothing about this type of

rationale.   Supp. CR 20.    And, quite frankly, the State is somewhat

surprised by Ramirez’s argument that an officer with probable cause to

believe that a suspect, not in his home, possesses heroin on his person

cannot search his person and the containers on his person for it. But the

State acknowledges its burden to justify a warrantless search, even if that

burden in this case amounts to an academic exercise.

An officer may properly search a person without a warrant—outside his
home—upon probable cause that the person possesses illegal drugs on
his person.

      Ramirez cites no case for his proposition that an officer cannot—

without a warrant—search a suspect found in a public place even when the

officer is armed with probable cause to believe that the suspect possesses

heroin on his person. Such a case would defy logic, reason, and the law.
                                     1
      As a matter of logic, it makes little sense to require a warrant when

an officer simultaneously encounters both a probable drug offender and

the probable location of his illegal drugs (the offender himself) beyond the

threshold of the offender’s home.

      As a matter of reason, it is simpler and quicker—for both the officer

and offender—for the officer to immediately search the offender to confirm

or refute the officer’s probable cause.

      a.    Probable cause to search a person, on the basis that he likely
            has illegal drugs on his person, is no different from probable
            cause to arrest.

      Not surprisingly, the law agrees with logic and reason and does not

support any Fourth Amendment violation here. Probable cause to search

requires evidence that a crime has been committed or is being committed

in some particular place, while probable cause to arrest requires evidence

that a crime has been committed or is being committed by a particular

person. See Parker v. State, 206 S.W.3d 593, 596-97 (Tex. Crim. App. 2006).

Thus the first portion of a probable cause analysis, whether there is

evidence that a crime has been or is being committed, is identical for both


                                          2
probable cause to search and probable cause to arrest. See id. at 596. Only in

the second portion of the probable cause analysis—whether the probable

cause points to a particular place (permitting a search) or to a particular

person (permitting an arrest)—do probable cause to search and probable

cause to arrest differ. Ibid.

      Thus, where probable exists to search a person for possessing heroin,

probable cause also exists to arrest that person.       This is because the

probable place of the heroin and the person probably possessing it align,

eclipsing the legal difference between probable cause to search and

probable cause to arrest. See Parker, at 596.

      In this case, therefore, Officer Garcia’s probable cause to search

Ramirez’s keychain for heroin—as discussed in the State’s Brief—equates

to probable cause to arrest Ramirez.

      b.    Probable cause to search a person for illegal drugs outside his
            home justifies a search incident to arrest even before formal
            arrest.

      The State concedes that Officer Garcia did not arrest Ramirez before

searching the containing, as the trial court found (Supp. CR 26 [Finding


                                       3
#35; Conclusion #2], and, thus, that Officer Garcia’s search was not incident

to his arrest, at least factually.

      Legally, however, Officer Garcia did not have to arrest Ramirez

before conducting a search incident to arrest, which Ramirez agrees is an

exception to the warrant requirement. Ramirez’s Brief at 6. Legally, an

officer may search incident to arrest after obtaining probable cause to

arrest—

      It is irrelevant whether the arrest occurs immediately before or
      after the search, as long as probable cause to arrest precedes the
      search. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556,
      65 L.Ed.2d 633 (1980); see also State v. Ballard, 987 S.W.2d 889,
      892 (Tex. Crim. App. 1999).
                                      ***
      Appellant was not under arrest when the officers searched him,
      but the law only requires that probable cause to arrest precede
      a search incident to arrest.

Esquivel v. State, No. 13-13-00339-CR, 2014 WL 3049520, at *2-3 (Tex. App.—

Corpus Christi July 3, 2014, no pet.) (not designated for publication);

Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (“Where the formal arrest

followed quickly on the heels of the challenged search of petitioner’s

person, we do not believe it particularly important that the search preceded


                                      4
the arrest rather than vice versa.”), cited with approval in State v. Ballard, 987

S.W.2d 889, 892 (Tex. Crim. App. 1999).

      In sum, probable cause to search Ramirez also establishes probable

cause to arrest him, authorizing the search of the keychain immediately

prior to his arrest without a warrant.

                                   PRAYER

      For these reasons, the State requests that the Court reverse the trial

court’s order granting Defendant’s motion to suppress, remand for further

proceedings, and grant the State all other proper relief.

                                         Respectfully Submitted,

                                         /s/ A. Cliff Gordon
                                         A. Cliff Gordon
                                         Tex. Bar #00793838
                                         Asst. Dist. Atty., 105th Dist.
                                         Nueces County Courthouse
                                         901 Leopard St., Rm. 206
                                         Corpus Christi, TX 78401
                                         361.888.0410 phone
                                         361.888.0399 fax
                                         cliff.gordon@nuecesco.com




                                         5
                   CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 1168 words.



                      CERTIFICATE OF SERVICE

      On July 16, 2015, a true copy of the foregoing was served via EServe
on the following:

     Mr. Todd Robinson
     Batek & Robinson, LLP
     102 N. Staples St.
     Corpus Christi, TX 78401
     trob4225@aol.com
     Counsel for Appellee

                                  /s/ A. Cliff Gordon_______________
                                  A. Cliff Gordon




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