        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00120-CR




                                  The State of Texas, Appellant

                                                 v.

                                    Pamela McAlpin, Appellee



               FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
       NO. 695,636, HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The State appeals orders granting appellee Pamela McAlpin’s motions to

suppress evidence and statements as the fruit of an unlawful warrantless search.                 See

Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2006); see also U.S. Const. amends. IV,

XIV.1 We conclude that the trial court incorrectly applied the law to the facts, and we reverse the

suppression orders.

                The trial court was not asked to make formal findings of fact and conclusions of law.

See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (holding that trial court must state

its essential findings upon request of losing party on motion to suppress). However, in response to

the prosecutor’s inquiry at the conclusion of the hearing, the court did state for the record that it



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       McAlpin did not rely on the Texas Constitution as an independent basis for suppression.
found the State’s witness—the only witness to testify—to be credible. In our review of the trial

court’s ruling, we must defer to this factual determination. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). We review de novo the court’s application of the law to the facts. Id. We

will sustain the trial court’s ruling if it is reasonably supported by the record and correct on any

theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

                  The witness was Austin Police Officer Michael Larosa. He testified that he was

dispatched to an Austin apartment complex at 1200 Treadwell to investigate a report of a person

leaving the scene of an accident. He arrived at the complex at 4:30 a.m., four minutes after receiving

the report. There, he met Bill Carter, a resident at the complex. Larosa described what he was

told by Carter:


               He said that he was—he heard a crash and he went to his balcony, and then
       when he went out to the balcony, he saw this car hit another car or another two cars
       and then pull into a parking spot, a female get out, start walking around the parking
       lot and then she disappeared.


Carter showed Larosa the vehicle the woman had been driving, a Buick, and the vehicles that she

had hit. The Buick had a flat tire and scratches on a quarter panel. The other vehicles also bore

marks consistent with Carter’s description of the incident. The driver of the Buick was no longer

at the scene; Carter told Larosa that she had walked away with her dog. Larosa found no notes on

the other vehicles.

                  Carter told Larosa that he had seen the driver of the Buick “around the apartment

complex” but did not know her name or where she lived. The Buick had Mississippi license plates.

A check on the plates showed that the car was registered to Pamela McAlpin at an out-of-state

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address. Hoping to learn the identity of the driver and her local address, Larosa tried the Buick’s

door and found that it was unlocked. A purse was sitting in the Buick’s front seat, and inside the

purse Larosa discovered a postcard addressed to Pamela McAlpin at 1200 Treadwell apartment 118.

               Larosa went to apartment 118, arriving at 4:50 a.m. Appellee Pamela McAlpin

answered his knock. Larosa did not testify regarding her state of dress, but he did say that

she appeared to be sleepy and that her eyes were bloodshot. According to Larosa, McAlpin smelled

strongly of alcoholic beverages and seemed disoriented as to the time. She acknowledged

hitting cars in the parking lot but said she had not noticed any damage. She also admitted drinking

vodka and taking three prescription medications during the course of the evening. Larosa testified

that he administered the standard field sobriety tests, which were videotaped, and that McAlpin

failed them all.

               McAlpin filed motions to suppress evidence and her statements as the fruit of an

unlawful search. The question presented is whether the circumstances justified Larosa searching

McAlpin’s automobile for identifying evidence without first obtaining a warrant.

               One of the recognized exceptions to the Fourth Amendment warrant requirement is

the automobile exception. Under this exception, a police officer may search a vehicle without a

warrant if he has probable cause to believe that it contains evidence of a crime. Carroll v. United

States, 267 U.S. 132, 149 (1925). The application of this exception does not require a showing of

exigent circumstances. Maryland v. Dyson, 527 U.S. 465, 466-67 (1999); State v. Guzman, 959

S.W.3d 631, 634 (Tex. Crim. App. 1998) (citing United States v. Johns, 469 U.S. 478, 484 (1985));

see also Dixon v. State, 206 S.W.3d 613, 619 n.25 (Tex. Crim. App. 2006). If probable cause



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justifies the search of a vehicle, it justifies the search of every part of the vehicle and its contents that

may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982).

                The operator of a vehicle that collides with and damages an unattended vehicle must

immediately stop and locate the operator or owner of the unattended vehicle and give that person her

name and address, or she must leave a note giving this information. Tex. Transp. Code Ann.

§ 550.024(a) (West 1999). A violation of this statute is a misdemeanor. Id. § 550.024(b).

                Section 550.024 applies when the collision occurs on a highway or other public place,

but it does not apply if the collision occurs on private residential property. Id. § 550.001. The

transportation code does not define “public place,” but this Court has applied the penal code

definition in another case arising under section 550.024. See In re W.T.O., No. 03-01-00630-CV,

2002 Tex. App. LEXIS 8214, at *6-7 (Tex. App.—Austin Nov. 21, 2002, no pet.) (not designated

for publication). Under the penal code, a “public place” means any place to which the public or a

substantial group of the public has access and expressly includes the common areas of apartment

houses. Tex. Penal Code Ann. § 1.07(a)(40) (West Supp. 2006). In W.T.O., this Court held that a

juvenile was operating his automobile in a public place when he collided with an unattended vehicle

in the parking lot of an apartment complex. 2002 Tex. App. LEXIS 8214, at *7. McAlpin argues

that W.T.O. is distinguishable, pointing out that the apartment complex in that case was large and

ungated while the instant record is silent as to both of these facts. Nevertheless, the conclusion that

the parking lot was a common area of an apartment building did not turn on the size of the complex

or whether the lot was gated. We conclude that section 550.024 was applicable to the collisions

between McAlpin’s Buick and the unattended vehicles in the apartment complex parking lot.



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                McAlpin argues that even if section 550.024 applies, Larosa did not have probable

cause to believe that it had been violated. She points out that leaving the scene of the collision is not

prohibited by section 550.024, and she suggests that it may be necessary to leave in order to locate

the owner of the unattended vehicle. McAlpin also stresses the short amount of time that had

elapsed between the initial report of the collisions and the search of her car. She urges that it would

not be unreasonable for her to have left the scene for a few minutes to locate the owners of the other

cars, or to secure her dog, or to get pen and paper to write notes.

                In dealing with probable cause, we deal with probabilities rather than certainties.

Woodward v. State, 668 S.W.2d 337, 345 (Tex. Crim. App. 1982). Officers often confront

ambiguous circumstances and room must be allowed for some mistakes on their part, although the

mistakes must be those of reasonable persons acting on facts leading sensibly to their conclusions

of probability. Id. (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). Larosa could

reasonably believe that the driver of the Buick was not knocking on doors at 4:30 a.m. seeking the

owners of the damaged cars. Although Larosa could not be certain that the driver would not return

to leave notes on the damaged vehicles, we hold that the facts and circumstances were sufficient to

warrant his belief that section 550.024 had been violated.

                Probable cause to search exists when the totality of the circumstances allows a

conclusion that there is a fair probability of finding evidence at a particular location. Ornelas v.

United States, 517 U.S. 690, 696 (1996). Evidence of the identity of the perpetrator is evidence of

a crime. See Warden v. Hayden, 387 U.S. 294, 307 (1967); Ackenback v. State, 794 S.W.2d 567, 572

(Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). The dispositive issue in this appeal is whether



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Larosa had probable cause to believe that evidence identifying the driver of the Buick would be

found inside the vehicle.

               The record is silent as to whether Larosa saw the purse before opening the door of the

Buick. The State argues that it is reasonable to infer that the officer saw the purse through the car

window because it was sitting in the front seat. Whether or not such an inference would be

reasonable under the circumstances shown here, we must view the evidence in the light most

favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

Thus, we must assume in the absence of testimony to the contrary that Larosa did not see the purse

or the postcard before initiating the search.

               The State asserts that “[i]t is commonly known, and courts have recognized, that

indicia of identity are usually to be found inside cars, especially in wallets, purses, and glove

compartments.” The cases cited by the State in support of this statement are South Dakota v.

Opperman, 428 U.S. 364 (1976), and others involving inventory searches of lawfully impounded

vehicles. These authorities do not directly apply here, as McAlpin’s car had not been impounded

and there is no evidence that Larosa was conducting an inventory of its contents. Nevertheless, we

believe that the State’s broader point is correct: documents identifying the owner or operator of an

automobile, such as a registration receipt or proof of insurance, are commonly kept in the vehicle.

               In Ackenback, a burglar was interrupted by the homeowner and fled, carrying a video

recorder with him. 794 S.W.2d at 568-69. Passing police officers saw the fleeing suspect and

pursued him on foot. Id. at 569. The suspect dropped the video recorder, a glove, and a woman’s

scarf, and he ultimately managed to escape after brandishing a firearm at one of the officers. Id. A



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few minutes later, an automobile was found parked by a vacant building in the area to which the

suspect had been running. Id. The car’s engine was warm and a set of keys could be seen inside.

Id. Officers also saw inside the car a woman’s scarf and a glove matching the one the suspect had

discarded. Id. Believing that this was the burglary suspect’s vehicle, the officers opened the

unlocked car, searched it, and found documents that led them to the defendant. Id. The court of

appeals found that the facts known to the officers gave them probable cause to believe that the car

had been driven by the assailant “and therefore that it might contain evidence that could inform them

of the identity and possible location of the robber.” Id. at 572.

               In the cause now before us, Larosa had probable cause to believe that the operator of

the Buick had violated transportation code section 550.024 by failing to notify the owners of the

damaged vehicles, either in person or by note, of her name and address. It was reasonable for the

officer to believe that the Buick might contain evidence of the driver’s identity and address. Under

the circumstances shown by the officer’s credible testimony, the opening of the unlocked door and

the subsequent discovery of the postcard bearing McAlpin’s name and address did not violate the

Fourth Amendment, and the trial court erred by sustaining the motions to suppress.

               The orders granting McAlpin’s motions to suppress are reversed and the cause is

remanded to the trial court for further proceedings.




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                                           ___________________________________________

                                           Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Reversed and Remanded

Filed: March 7, 2007

Do Not Publish




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