

 
 
 
 
 
 
 
 
OPINION
 
No. 04-10-00276-CR
 
Jessica BEECHUM,
Appellant
 
v.
 
The STATE of
Texas,
Appellee
 
From the County Court
at Law No. 1, Bexar County, Texas
Trial Court No. 309989
Honorable Al Alonso,
Judge Presiding
 
Opinion by:   Steven C. Hilbig, Justice
 
Sitting:                     Catherine Stone, Chief Justice
                     Phylis
J. Speedlin, Justice
                     Steven
C. Hilbig, Justice
 
Delivered and
Filed:  February 2, 2011
 
AFFIRMED
 
Jessica Beechum was charged with possession of marijuana.  Beechum filed
a motion to suppress, challenging her arrest and the seizure of the marijuana. 
After a hearing, the trial court denied the motion to suppress.  Beechum
subsequently entered a plea of guilty pursuant to a plea bargain, which the
court followed.  Beechum appeals, complaining the trial court erred in denying her
motion to suppress.  We affirm.
Background
           San Antonio Police Officer Eric Rubio
testified that on November 25, 2009, he was on patrol when he was flagged down
by two individuals who identified themselves as Bexar County Juvenile Probation
Officers.  Officer Rubio testified one of the officers handed him a bag of
marihuana, which the probation officer stated he had obtained from Beechum.[1]  The probation officers told him they
were going to a residence for a probation check and noticed a car with three
people inside parked in front of the residence.  They parked behind the car and
when they got out to approach the residence, they saw smoke and smelled
marihuana coming from inside the car.  As they approached the car, one of the
probation officers saw Beechum holding a bag of marihuana.  Officer Rubio
testified the probation officer saw the bag of marihuana in “plain view.”  The
probation officer told Officer Rubio that he asked Beechum about the marihuana,
and she responded by handing the bag to him.  Officer Rubio testified that
after taking custody of the marihuana, he went to the car where Beechum was
still sitting in the front passenger seat and arrested her.
           Beechum testified she was sitting in a
car with two other people when a vehicle parked behind them and used spotlights
to illuminate them.  She told the court that one of the people in the car was
smoking a cigar, which contained only tobacco.  She testified that two men in
black uniforms, who she believed were police officers, walked up to the car.  One
of them opened the car door, shined a flashlight inside, and told her to give
him what she had in her hand.  Beechum testified that she had her cell phone in
her hand, that she showed it to the officer, but refused to give it to him. 
Beechum testified the officer told her several more times to give him what was
in her hand, and she finally gave him the bag of marihuana she had hidden
between her legs.  Beechum testified the bag of marihuana was not in plain
sight and the officer could not have seen it.  
The trial court denied
the motion to suppress and entered written findings of fact and conclusions of
law.  The court found: the probation officer saw the marihuana in plain view;
he immediately recognized the substance as marihuana; Beechum handed the
marihuana to the probation officer when asked about it; the “search” took place
before any detention; Officer Rubio’s testimony was credible; and Beechum’s
testimony was not credible.  The court concluded that “having drugs in plain
view next to the dwelling of a juvenile on probation is in fact a breach of the
peace,” Beechum was not detained by the probation officers, and Officer Rubio
had probable cause to arrest Beechum, and lawfully arrested her for possession
of marihuana.
           In a single point of error, Beechum asserts the trial court erred in
denying the motion to suppress the marihuana because it “was seized without a
warrant and in violation of the Fourth Amendment.”  Beechum argues the
marihuana was seized pursuant to an illegal arrest because neither the
probation officers nor Officer Rubio had legal authority to arrest her.  She
contends the plain-view doctrine does not apply because the probation officers
were not peace officers, and further argues that the record does not support
the trial court’s fact finding that the marihuana was in plain view.  
Standard of Review
 
We review the trial court’s
ruling on a motion to suppress under an abuse of discretion standard.  State
v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).  We scrutinize the
record in the light most favorable to the trial court’s ruling and we will
reverse the trial court’s ruling only if the ruling is outside the zone of
reasonable disagreement.  Id.  The trial court is the sole arbiter of
the credibility of the witnesses and the weight to be given their testimony.  State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  We afford almost total
deference to the trial court’s determination of historical facts, especially
those based on an evaluation of the witnesses’ credibility and demeanor.  Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  However, we review de
novo mixed questions of law and fact that do not turn on an evaluation of
credibility or disputed facts and the trial court’s application of the law of
search and seizure to the facts.  State v. Iduarte, 268 S.W.3d 544, 549
(Tex. Crim. App. 2008) (mixed questions of law and fact); Wiede v. State,
214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (application of law to the facts).  We
will sustain the trial court’s ruling “if it is reasonably supported by the
record and is correct on any theory of law applicable to the case.”  Dixon,
206 S.W.3d at 590.
Discussion
 
Search Incident
to Arrest
 
Beechum initially
contends the trial court erred in denying her motion to suppress the marihuana
because it was obtained in a search incident to an illegal arrest.  She argues
the probation officers could not legally arrest her because they are not peace
officers and did not observe her commit a felony or breach of the peace.  See
Tex. Code Crim. Proc. Ann. art.
2.12 (West Supp. 2010) (identifying individuals who are peace officers); Tex. Hum. Res. Code Ann. § 141.065
(West Supp. 2010) (peace officer or other person employed by law enforcement or
prosecution official may not act as juvenile probation officer); Tex. Code Crim. Proc. Ann. art.
14.01(a) (West 2005) (person who is not a peace officer may, without warrant,
arrest one who commits a felony or breach of the peace in his presence or
within his view).  She argues Officer Rubio could not make a warrantless arrest
based solely on the word of the juvenile probation officers.
The premise of Beechum’s
argument — that the marihuana was obtained in a search incident to arrest — is
contrary to the trial court’s finding that Beechum gave the bag of marihuana to
the probation officer before any detention or arrest occurred.  We hold the
trial court’s finding is supported by the law and the record.
“‘A
person has been “seized” within the meaning of the Fourth Amendment only if, in
view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.’”  California v. Hodari D., 499 U.S. 621, 627-628 (1991) (quoting
U.S. v. Mendenhall, 446 U.S. 544, 554 (1980)). 
Beechum was seated in the vehicle when the probation officers first approached,
and the officers did not take any action to restrict Beechum’s movements. 
Although Beechum testified that the probation officers appeared to have been
wearing some type of uniform, even police officers may approach citizens in
public areas without implicating the Fourth Amendment.  Florida v. Bostick,
501 U.S. 429, 434-35 (1991) (stating that “even when officers have no basis for
suspecting a particular individual, they may generally ask questions of that
individual,” “ask to examine the individual’s identification,” and “request
consent to search his or her luggage” “as long as the police do not convey a
message that compliance with their requests is required”).  The probation
officer saw the marihuana as soon as he approached the car.  According to
Officer Rubio, the probation officer simply “asked [Beechum] about the
marijuana and he told me that she just – handed it to him.”  This was the first
interaction between the probation officer and Beechum.  Viewing the
record in the light most favorable to the trial court’s ruling, we hold Beechum
had not been detained when she gave the marihuana to the probation officer. 
Accordingly, the marihuana was not obtained as a result of an illegal arrest.
Plain-View Doctrine
Beechum next contends the
seizure of the marihuana cannot be supported by the plain-view doctrine.  We
disagree. 
The Fourth Amendment is
implicated when property is seized by government agents, even though the agents
are not peace officers.  “Although the Fourth
Amendment does not apply to a search or seizure, even an arbitrary one,
effected by a private party on his own initiative, the Amendment protects
against such intrusions if the private party acted as an instrument or agent of
the Government.”  Skinner v. Ry. Labor
Executives’ Ass’n, 489 U.S. 602, 614 (1989);
see also O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (holding “[s]earches and seizures by government employers or
supervisors of the private property of their employees . . . are subject to the
restraints of the Fourth
Amendment”); New Jersey v. T.L.O., 469 U.S. 325, 337 (1985)
(holding that search of student by school authorities must comport with the
Fourth Amendment).
The
plain-view doctrine is an exception to the warrant requirement of the Fourth
Amendment.  Horton v. California, 496 U.S. 128, 133 (1990).  In
general terms, the doctrine permits the warrantless seizure of evidence or
contraband if the police officer is justified in being at the location where
the evidence is observed, the contraband or evidence is in plain view, and its
nature as contraband or evidence is immediately apparent.  See id. at 136; State v. Dobbs, 323 S.W.3d 184, 187
(Tex. Crim. App. 2010).  As long as the officer has
not violated the Fourth Amendment to be in the physical position to view the
evidence, “neither its observation nor its seizure would involve any invasion
of privacy.”  Horton, 496 U.S. at 133.  Beechum asserts the
probation officers could not seize the marihuana pursuant to the plain-view
doctrine because they are not peace officers.  However, she does not cite any
authority or provide any argument as to why the probation officers’ seizure of
the marihuana, which was required to be reasonable under the Fourth Amendment, was
not subject to the plain-view exception to the Fourth Amendment.  We hold that the plain-view doctrine is properly
considered in an analysis of whether a government agent’s search and seizure
was reasonable under the Fourth Amendment.  We therefore review the
trial court’s ruling that the probation officers lawfully seized the marihuana
pursuant to the plain-view doctrine. 
Officer Rubio testified the probation officers approached the car after seeing smoke
coming from the interior and smelling the odor of marihuana.  The car was
parked on a public street.  No Fourth Amendment right was implicated by the
probation officers walking up to the car and speaking to Beechum.  See
Bostick, 501 U.S. at 434-35.  He also testified the probation officers saw,
in plain view, a bag of marihuana in Beechum’s hand.  Beechum contends the
record does not support the trial court’s finding that the marihuana was in the
officers’ plain view because she testified she had the marihuana hidden between
her legs.  However, Officer Rubio’s testimony clearly supports the trial
court’s finding, and as the sole arbiter of the credibility of the witnesses,
the court was free to believe Officer Rubio’s testimony and to discredit
Beechum’s. See Ross, 32 S.W.3d at 855.  We hold the trial court did not
err in denying the motion to suppress the marihuana because it was in plain
view of the government agents who were in a place they had a right to be and
the nature of the contraband was immediately apparent.  See Horton,
496 U.S. at 136.[2]


 
Conclusion
The
trial court did not abuse its discretion in denying Beechum’s motion to
suppress, and the judgment of the trial court is affirmed.
 
Steven C. Hilbig, Justice
 
 
Publish
 
 
 




 
 




[1]Neither of the probation officers
testified at trial. The State’s only witness was Officer Rubio, who related
what he had been told by the probation officers.
 


[2]The record also supports the trial court’s implied
finding that the seizure of the marihuana was consensual.  See Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is . . . well settled that one
of the specifically established exceptions to the requirements of both a
warrant and probable cause is a search that is conducted pursuant to
consent.”).


