                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                   §
  JOHN DAVISON NIES, II,                                           No. 08-16-00011-CR
                                                   §
                          Appellant,                                    Appeal from
                                                   §
  v.                                                                207th District Court
                                                   §
  THE STATE OF TEXAS,                                            of Comal County, Texas
                                                   §
                          Appellee.                                 (TC # CR2014-543)
                                                   §

                                           OPINION

       Appellant, John Davison Nies II, appeals his conviction of possession of less than one gram

of methamphetamine, enhanced by two prior felony convictions. The case proceeded to trial

before a jury, but after the trial court denied Appellant’s motion to suppress evidence, Appellant

waived his right to a jury and entered a negotiated plea of guilty. The trial court found Appellant

guilty, found the enhancement paragraphs true, and assessed Appellant’s punishment in

accordance with the plea bargain at imprisonment for a term of five years. We reverse and remand.

                                       FACTUAL SUMMARY

       The indictment charged Appellant with possession of less than one gram of

methamphetamine. Nies filed a written motion to suppress asserting that evidence was unlawfully

seized from his vehicle without a warrant, but he did not obtain a ruling before trial. Shortly after

the trial began, the parties and the trial court had a discussion outside of the jury panel’s presence
regarding the suppression motion. The parties stipulated to the facts as set forth in the arresting

officer’s offense report. The report showed that Deputy Matthew Moczygemba initially stopped

Nies for speeding, but he discovered that Appellant’s license was suspended. Consequently,

Moczygemba arrested Appellant for driving while license suspended, and Appellant instructed to

Moczygemba to have his vehicle towed. Moczygemba put Appellant in the back of his patrol car,

and he and another deputy inventoried Appellant’s vehicle before the wrecker arrived. During the

search, Moczygemba slid the shade for the sunroof back and he found a small clear container

which had a crystal-like substance inside of it.              The substance tested positive for

methamphetamine. The trial court denied the motion to suppress and Nies waived his right to a

jury trial and entered a negotiated guilty plea.

                                   WARRANTLESS SEARCH

       In his first issue, Appellant contends that the trial court abused its discretion by denying

the motion to suppress the evidence seized during the warrantless search of the vehicle.

                              Standard of Review and Applicable Law

       The denial of a motion to suppress evidence is analyzed under a bifurcated standard of

review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We review the trial

court’s determination of historical facts for an abuse of discretion, but the trial court’s application

of law to the facts is reviewed de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.

2013). When reviewing the trial court’s determination of historical findings, we are required to

give those findings almost total deference if they are supported by the evidence. Tucker v. State,

369 S.W.3d 179, 184 (Tex.Crim.App. 2012). When the trial court makes findings of fact and

conclusions of law finding the officers to be credible and accepting the State’s version of events,

as in this case, the only question before the appellate court is whether the trial court properly



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applied the law to the facts it found. State v. Alderete, 314 S.W.3d 469, 472 (Tex.App.--El Paso

2010, pet. ref’d).

        The Fourth Amendment protects against unreasonable searches and seizures by

government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.

2007). It is undisputed that the methamphetamine was discovered in Appellant’s car as the result

of a warrantless search. As a general rule, a warrantless search is per se unreasonable unless the

State shows that the search falls within one of the well-established exceptions to the warrant

requirement. See McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). Three such

exceptions are at issue in this case: (1) search incident to arrest; (2) the automobile exception; and

(3) an inventory search.

                                      Search Incident to Arrest

        Under the Fourth Amendment, police officers may search an arrestee incident to a lawful

arrest. State v. Granville, 423 S.W.3d 399, 410 (Tex.Crim.App. 2014). The rationale for

permitting such a warrantless search is (1) the need for officers to seize weapons or other things

which might be used to assault on officer or effect an escape, and (2) the need to prevent the loss

or destruction of evidence. Id. Under Arizona v. Gant, this exception to the warrant requirement

does not justify a search of a vehicle after the occupants of the vehicle have been handcuffed or

otherwise secured. Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009).

The stipulated evidence established that Appellant had been handcuffed and placed in the back of

Deputy Moczygemba’s patrol car before the deputies began searching the vehicle. Consequently,

the search is not justified by the search incident to arrest exception.

                                     The Automobile Exception

        Under the automobile exception, law enforcement officials may conduct a warrantless



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search of a vehicle if it is readily mobile and there is probable cause to believe that it contains

contraband or evidence of a crime. See Keehn v. State, 279 S.W.3d 330, 335 (Tex.Crim.App.

2009); Powell v. State, 898 S.W.2d 821, 827 (Tex.Crim.App. 1994). Probable cause to search

exists when reasonably trustworthy facts and circumstances within the knowledge of the officers

on the scene would lead persons of reasonable prudence to believe that an instrumentality of a

crime or evidence pertaining to a crime will be found. Gutierrez v. State, 221 S.W.3d 680, 685

(Tex.Crim.App. 2007).      The record does not demonstrate the existence of any facts and

circumstances which could have led the deputy sheriffs to believe that Appellant’s vehicle

contained contraband or evidence of a crime. Appellant was initially stopped for speeding and he

was arrested for driving while license suspended after Deputy Moczygemba ran his driver’s

license. Appellant’s possession of a large amount of cash, standing alone, does not establish

probable cause to believe the vehicle contained evidence of a crime or contraband. Thus, the State

failed to show that the automobile exception is applicable.

                                         Inventory Search

       An inventory search is a recognized exception to the warrant requirement. See Colorado

v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987); Jackson v. State, 468

S.W.3d 189, 194 (Tex.App.--Houston [14th Dist.] 2015, no pet.). An inventory search protects

(1) the owner’s property while the vehicle is in police custody, (2) the police against claims or

disputes over lost, stolen, or vandalized property, and (3) the police from possible danger. Bertine,

479 U.S. at 372, 107 S.Ct. at 741; Jackson, 468 S.W.3d at 195. To satisfy the inventory search

exception, the inventory must be conducted in good faith and pursuant to a reasonable standardized

police procedure. Jackson, 468 S.W.3d at 195. The State bears the burden to establish that the

police conducted a lawful inventory search. Id., citing Gauldin v. State, 683 S.W.2d 411, 415



                                                -4-
(Tex.Crim.App. 1984), overruled on other grounds by Heitman v. State, 815 S.W.2d 681

(Tex.Crim.App. 1991). This burden is met if the State demonstrates that an inventory policy exists

and the officers followed the policy. Jackson, 468 S.W.3d at 195. The State typically satisfies its

burden regarding the propriety of an inventory search through a police officer's testimony that (1)

an inventory policy existed, and (2) that policy was followed. See Harris v. State, 468 S.W.3d

248, 255 (Tex.App.--Texarkana 2015, no pet.). Opening closed containers while conducting an

inventory search is lawful when there is evidence of a policy or established procedure that allows

for such. Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990); State v.

Molder, 337 S.W.3d 403, 409 (Tex.App.--Fort Worth 2011, no pet.).

        The State did not introduce any evidence at the hearing on the motion to suppress related

to the existence of an inventory policy. Likewise, it did not present evidence that the deputy

sheriffs who conducted the search of the vehicle and the closed container followed the inventory

policy. The State asserts in its brief that “it is apparent from the record that the trial court was

taking judicial notice of the Comal County Sheriff’s Office inventory policy when it recited this

was an inventory search and then explained the reasoning behind such a policy.” We disagree

with the State’s interpretation of the record. The State did not ask the trial court to judicially notice

the existence of an inventory policy and there is nothing to show that the trial court judicially

noticed the inventory policy. The mere reference to an inventory search does not establish that an

inventory policy existed or that the deputies followed it when conducting the search at issue here.

        After the briefs were filed, the State filed a motion asking the Court to take judicial notice

of the inventory policy of Comal County Sheriff’s Office. We denied the motion because the

evidence that the State asked us to judicially notice pertained directly to the merits of the issue on

appeal. In the absence of properly admitted evidence showing that the Comal County Sheriff’s



                                                  -5-
Office has an inventory policy and the deputy sheriffs followed that inventory policy in this case,

we conclude that the State failed to establish that the inventory search exception is applicable.

Because the State failed to show that the warrantless search was conducted pursuant to a well-

established exception to the warrant requirement, we conclude that the trial court erred by denying

the motion to suppress. Issue One is sustained. Due to our resolution of Issue One, it is

unnecessary to address Issue Two which seeks reformation of the judgment. The judgment of the

trial court is reversed and the cause is remanded to the trial court.


July 31, 2017
                                       ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., not participating




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