                                                                                   ACCEPTED
                                                                              13-15-00292-CR
                                                              THIRTEENTH COURT OF APPEALS
                                                                     CORPUS CHRISTI, TEXAS
                                                                        9/16/2015 11:00:39 AM
                                                                             Dorian E. Ramirez
                                                                                        CLERK



                      #13-15-00292-CR
                                                        FILED IN
                                                13th COURT OF APPEALS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
      Thirteenth Court of Appeals, Corpus       9/16/2015
                                            Christi       11:00:39 AM
                                                    & Edinburg
                                                  DORIAN E. RAMIREZ
                                                         Clerk


                   THE STATE OF TEXAS,
                            Appellant

                               v.

                     JOSHUA LINDSEY,
                            Appellee



    ON STATE’S APPEAL FROM THE 105TH DISTRICT COURT
         OF NUECES COUNTY, CAUSE #13-CR-4068-D


                     STATE’S BRIEF
                                A. Cliff Gordon
                                Tex. Bar #00793838
                                Asst. Dist. Atty., 105th Jud. 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


ORAL ARGUMENT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

Appellant:   The State of Texas, District Attorney for the 105th Judicial
             District, represented by

             Appellate counsel:

                  A. Cliff Gordon, Asst. Dist. Atty.
                  Nueces County Courthouse
                  901 Leopard St., Rm. 206
                  Corpus Christi, TX 78401

             Trial and appellate counsel:

                   Mark Skurka, District Attorney
                   Jordan Brown, Asst. Dist. Atty.
                   Nueces County Courthouse
                   901 Leopard St., Rm. 206
                   Corpus Christi, TX 78401

Appellee:    Joshua Lindsey, represented by

             Trial and Appellate Counsel:

                   Celina Lopez Leon
                   Law Office of Scott Ellison, PLLC
                   410 Peoples St.
                   Corpus Christi, TX 78401-2318
                   361.887.7600 phone
                   361.882.4728 fax
                   celinamarielopez@gmail.com




                                   ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................ ii
INDEX OF AUTHORITIES ................................................................................... v
STATEMENT OF THE CASE ............................................................................. vii
ISSUE PRESENTED ............................................................................................ viii
     After explicitly finding that the investigating officer smelled the
        ‘strong odor’ of marihuana emanating from Defendant’s
        vehicle, did the trial court err by suppressing the cocaine
        found in the trunk of Defendant’s vehicle for want of probable
        cause? ........................................................................................................ viii
STATEMENT OF FACTS .......................................................................................1
     Indictment for possessing 4 to 200 grams of cocaine ..................................1
     Hearing on Lindsey’s motion to suppress all contraband found in
       his vehicle, including the passenger area and trunk .............................1
     The trial court finds that Officer Ortiz smelled the ‘strong odor’ of
        marihuana emanating from Lindsey’s vehicle .......................................2
     The trial court suppresses over 40 grams of cocaine found in the
        trunk but not the .61 grams of cocaine found in the passenger
        area ................................................................................................................3
SUMMARY OF THE ARGUMENT ......................................................................3
ARGUMENT ............................................................................................................4
     The trial court erred by granting, in part, Defendant Lindsey’s
        motion to suppress .....................................................................................4
          1. General Suppression Standards .........................................................4
                1.a Review ..............................................................................................4
                1.b Evidentiary Burdens ......................................................................5
                1.c Probable Cause ...............................................................................6
                                                             iii
           2. The controlling legal standards recognize that, when an
              officer detects the odor of marihuana emanating from a
              vehicle, probable cause exists to search any part of the
              vehicle where marihuana could be secreted, such as the
              trunk .......................................................................................................8
                 2.a The odor of marihuana emanating from a vehicle
                     provides probable cause to search it ...........................................8
                 2.b Probable to search a vehicle for marihuana provides
                     probable cause to search its trunk ...............................................9
           3. The trial court ignored controlling Texas law by
              concluding that the ‘strong odor’ of marihuana failed to
              provide probable cause to search the trunk of Lindsey’s
              vehicle...................................................................................................11
PRAYER ..................................................................................................................12
CERTIFICATE OF COMPLIANCE ....................................................................12
CERTIFICATE OF SERVICE ...............................................................................13




                                                            iv
                                      INDEX OF AUTHORITIES


Cases
Amador v. State, 275 S.W.3d 872 (Tex. Crim. App. 2009) .................................8
Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009) .................................7
Chambers v. Maroney, 399 U.S. 42 (1970) ...........................................................6
Dixon v. State, 206 S.W.3d 613 (Tex. Crim. App. 2006) .....................................5
Estrada v. State, 154 S.W.3d 604 (Tex. Crim. App. 2005) ..................................7
Florida v. Harris, 133 S. Ct. 1050 (2013) ...........................................................7, 8
Garza v. State, No. 13-05-374-CR, 2006 WL 3375333 (Tex. App.—
     Corpus Christi Nov. 22, 2006, pet. ref’d) .................................................10
Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991) ................................9
Herring v. State, 758 S.W.2d 849 (Tex. App.—Corpus Christi 1988,
     pet. ref’d) ......................................................................................................10
Jordan v. State, 394 S.W.3d 58 (Tex. App.—Houston [1st Dist.] 2012,
     pet. ref’d) ........................................................................................................9
Levine v. State, 794 S.W.2d 451 (Tex. App.—Amarillo 1990, pet. ref’d) .......11
Marsh v. State, 684 S.W.2d 676 (Tex. Crim. App. 1984) ....................................8
Neal v. State, 256 S.W.3d 264 (Tex. Crim. App. 2008), cert. denied, 555
     U.S. 1154 (2009) .............................................................................................6
Osban v. State, 726 S.W.2d 107 (Tex. Crim. App. 1986) ....................................9
Parker v. State, 206 S.W.3d 593 (Tex. Crim. App. 2006) ....................................8
Rocha v. State, 464 S.W.3d 410 (Tex. App.—Houston [1st Dist.] 2015,
     pet ref’d) .......................................................................................................11
State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006) ......................................5
State v. Kerwick, 393 S.W.3d 270 (Tex. Crim. App. 2013) .................................5


                                                            v
State v. Montes de Oca, No. 13-14-00289-CR, 2015 WL 4504927 (Tex.
      App.—Corpus Christi July 23, 2015, no. pet. h.) ......................................6
United States v. Ross, 456 U.S. 798 (1982) ...........................................................9
Villarreal v. State, 703 S.W.2d 301 (Tex. App.—Corpus Christi 1985,
      no pet.) ..........................................................................................................10
Wiede v. State, 214 S.W.3d 17 (Tex. Crim. App. 2007) ......................................8




                                                            vi
                        STATEMENT OF THE CASE

Nature of the Case         On February 6, 2015, a grand jury indicted
                           Defendant-Appellee Joshua Lindsey for
                           possession of 4 grams or more but less than 200
                           grams of cocaine. CR 5.

Course of Proceedings      On February 16, 2015, Lindsey moved to
                           suppress. CR 25. On June 5, the trial court
                           heard Lindsey’s motion to suppress. RR 1; CR
                           47.



Trial Court’s Disposition On June 18, 2015, the trial court granted, in part,
                          Lindsey’s motion and suppressed the cocaine
                          found in his vehicle’s trunk but not the
                          passenger area of the car. CR 47. On August 5,
                          the trial court signed findings of fact and
                          conclusions of law. CR 70.




                                     vii
                           ISSUE PRESENTED

After explicitly finding that the investigating officer smelled the “strong
odor” of marihuana emanating from Defendant’s vehicle, did the trial
court err by suppressing the cocaine found in the trunk of Defendant’s
vehicle for want of probable cause?




                                    viii
                        STATEMENT OF FACTS

     Indictment for possessing 4 to 200 grams of cocaine.

     On February 6, 2015, a grand jury indicted Defendant-Appellee

Joshua Lindsey for possession of 4 grams or more but less than 200 grams

of cocaine, a second degree felony punishable as a first degree due to his

prior murder conviction.    CR 5.   On February 16, Lindsey moved to

suppress and alleged that the police could not properly detain him because

he smelled of marihuana and could not use his keys to unlock his vehicle

and search it. CR 25.

     Hearing on Lindsey’s motion to suppress all contraband found in
     his vehicle, including the passenger area and trunk.

     On June 5, 2015, the trial court heard Lindsey’s motion to suppress.

RR 1; CR 47. Corpus Christi Police Department Officer Vicente Ortiz to the

encounter involving him, fellow CCPD Officer Gonzalez and Lindsey. CR

70 (## 3, 4). That encounter resulted in a search of Lindsey’s vehicle that

produced four baggies of cocaine—one from the passenger area (.61 grams

of residue from the front passenger seat) and three from the trunk




                                     1
(containing crushed cocaine and several rocks of cocaine totaling over 40

grams). RR 45-49; CR 47.

      The trial court finds that Officer Ortiz smelled the “strong odor” of
      marihuana emanating from Lindsey’s vehicle.

      Based ostensibly on Officer Ortiz’s testimony, the trial court made the

following pertinent findings1:

      As Officers Ortiz and Gonzalez approached a convenience store to
      investigate a theft, they passed “two vehicles parked in front of the
      store, and Ortiz could smell a strong odor of marijuana emitting from
      the vehicles.” ## 4, 5.

      “Officer Ortiz opened the trunk of Lindsey’s vehicle after Lindsey
      had been in the unit for thirty minutes, pursuant to an inventory
      search after he decided to impound the car.” #19.

      “Officer Ortiz found crack cocaine rocks in the trunk of the vehicle.”
      #19.

      “When Lieutenant Bauer arrived at the scene after the trunk was
      opened, Officer Ortiz told Officer Bauer that all he had was a ‘strong
      odor of marijuana. That’s all I have.’” #21.




1
        The trial judge initially signed the State’s proposed findings without
modification (CR 62), then it vacated that order (CR 78) and signed the Defendant’s
proposed findings without modification (CR 74). Citations to a number following “#”
refer to the number of the finding of fact found at CR 70-73.
                                        2
From these findings, the trial court concluded that “probable cause did not

exist to search the trunk of Defendant’s vehicle.” CR 73 (Conclusion of

Law #1).

     The trial court suppresses over 40 grams of cocaine found in the
     trunk but not the .61 grams of cocaine found in the passenger area.

     The trial court granted, in part, Lindsey’s motion to suppress. It

entered an order suppressing only the evidence found in the trunk of

Lindsey’s vehicle and not the passenger compartment. CR 47 (suppressing

“[a]ny contraband found as a result of the inventory search conducted . . .

in the trunk of Joshua Lindsey’s vehicle.”). Thus, the trial court refused to

suppress the cocaine residue found in the passenger area while

suppressing over 40 grams of cocaine found in the trunk. Ibid.; RR 45-49.

                    SUMMARY OF THE ARGUMENT

     Based on its finding that the officer smelled the “strong odor” of

marihuana emanating from Lindsey’s vehicle, the trial court properly

refused to suppress the cocaine found in the passenger area. But, having

implicitly and properly found reasonable suspicion to detain Linsey and




                                      3
probable cause to search the vehicle, the trial court erred by suppressing

the cocaine found in the trunk of Lindsey’s vehicle.

     Probable cause to search based on the odor of marihuana emanating

from a vehicle extends to any part of the vehicle where marihuana may be

found, such as the trunk. The trial court’s attempt to “split the baby”—

implicitly finding probable cause to search the passenger area based on the

odor of marihuana but expressly finding no probable cause to search the

trunk—contradicts with established Texas law and should be reversed.

                               ARGUMENT

The trial court erred by granting, in part, Defendant Lindsey’s motion to
suppress.

1.   General Suppression Standards

     1.a   Review

     In reviewing a trial court’s ruling on a motion to suppress, appellate

courts employ a bifurcated standard, giving almost total deference to a trial

court’s determination of historic facts and mixed questions of law and fact

that rely upon the credibility of a witness, but applying a de novo standard

of review to pure questions of law and mixed questions that do not depend



                                      4
on credibility determinations. E.g., State v. Kerwick, 393 S.W.3d 270, 273

(Tex. Crim. App. 2013).

     When a trial court makes explicit fact findings, the appellate court

determines whether the evidence—viewed in the light most favorable to

the trial court’s ruling—supports these fact findings. State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006).      Whether a specific search or

seizure is reasonable or supported by probable cause under the Fourth

Amendment is subject to de novo review. E.g., Dixon v. State, 206 S.W.3d

613, 616 (Tex. Crim. App. 2006).

     1.b   Evidentiary Burdens

     This Court has recently summarized the well-established burdens of

proof placed on the parties at a suppression hearing—

     To suppress evidence on an alleged Fourth Amendment
     violation, the defendant bears the initial burden of producing
     evidence that rebuts the presumption of proper police
     conduct.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
     2005). This burden is satisfied if the defendant establishes that
     the search or seizure occurred without a warrant. Id. In the
     context of a blood draw, the defendant must also produce
     evidence to support a finding that he did not consent. Kelly,
     204 S.W.3d at 819 n.22. Once these facts are established, the
     burden shifts to the State to prove the warrantless search was

                                    5
      reasonable under the totality of the circumstances. Amador v.
      State, 221 S.W.3d 666 672–73 (Tex. Crim. App. 2007). The State
      satisfies this burden if it proves an exception to the warrant
      requirement. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.
      Crim. App. 2007).

State v. Montes de Oca, No. 13-14-00289-CR, 2015 WL 4504927, at *4 (Tex.

App.—Corpus Christi July 23, 2015, no. pet. h.) (not designated for

publication).

      The automobile exception to the warrant requirement allows a police

officer to conduct a warrantless search of a vehicle when the officer has

probable cause to believe that the vehicle contains evidence of a crime. Neal

v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008), cert. denied, 555 U.S.

1154 (2009). The automobile exception does not require exigent

circumstances to justify such a warrantless search. Chambers v. Maroney,

399 U.S. 42, 48 (1970); Neal, 256 S.W.3d at 283.

      1.c   Probable Cause

      A police officer has probable cause to conduct a search when “the

facts available to him would warrant a person of reasonable caution in the

belief that contraband or evidence of a crime is present.” Florida v. Harris,


                                       6
133 S. Ct. 1050, 1055 (2013) (quotation omitted); see also Estrada v. State, 154

S.W.3d 604, 609 (Tex. Crim. App. 2005) (“Probable cause to search exists

when reasonably trustworthy facts and circumstances within the

knowledge of the officer on the scene would lead a man of reasonable

prudence to believe that the instrumentality of a crime or evidence of a

crime will be found.”).

      Summarizing the core principles pertaining to probable cause, the

Court of Criminal Appeals has written,

      Probable cause is a “fluid concept” that cannot be “readily, or
      even usefully, reduced to a neat set of legal rules.” Though the
      concept evades precise definition, it involves “a reasonable
      ground for belief of guilt” that is “particularized with respect to
      the person to be searched or seized.” “Probable cause” is a
      greater level of suspicion than “reasonable suspicion” and
      requires information that is more substantial in quality or
      content and a greater reliability with respect to the source of
      information. At least in the context of searches, probable cause
      involves “a fair probability that contraband or evidence of a
      crime will be found.” Probable cause is a relatively high level of
      suspicion, though it falls far short of a preponderance of the
      evidence standard.

Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009) (footnotes and

citations omitted).


                                       7
     When determining probable cause, courts look to the totality of the

circumstances. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see

also Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (describing “all-things-

considered approach”). The test for probable cause is an objective one,

unrelated to the subjective beliefs of the arresting officer. E.g., Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

2.   The controlling legal standards recognize that, when an officer
     detects the odor of marihuana emanating from a vehicle, probable
     cause exists to search any part of the vehicle where marihuana
     could be secreted, such as the trunk.

     2.a   The odor of marihuana emanating from a vehicle provides
           probable cause to search it.

     [I]f Officer Obie makes a traffic stop and, when the driver rolls
     down his window, the redolent odor of burnt marihuana wafts
     out, he may well have probable cause to believe that the person
     (or persons) inside that small, enclosed area has been or is
     committing the offense of possession of marihuana. See, e.g.
     Moulden v. State, 576 S.W.2d 817, 818–20 (Tex. Crim. App. 1978)
     (police officers who stopped motorist and smelled odor of
     burnt marihuana coming from inside car had probable cause to
     search car).

Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006); see also

Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984) (“Having

determined that the initial stop was proper, we find as a consequence,
                                     8
given that deputy Lee detected the odor of marihuana coming from the

pickup, that the search was also proper.”).

      [T]he odor of marijuana alone is sufficient to constitute
      probable cause to search a defendant's person, vehicle, or objects
      within the vehicle.

Jordan v. State, 394 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d) (quotations omitted; emphasis in original).

      2.b   Probable to search a vehicle for marihuana provides probable
            cause to search its trunk.

      The scope of a warrantless search of an automobile thus is not
      defined by the nature of the container in which the contraband
      is secreted. Rather, it is defined by the object of the search and
      the places in which there is probable cause to believe that it
      may be found.

United States v. Ross, 456 U.S. 798, 824 (1982), cited with approval in Osban v.

State, 726 S.W.2d 107, 110-11 (Tex. Crim. App. 1986) (en banc), overruled on

other grounds by Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App.

1991).

      Police officers have the right to search an entire vehicle when
      they have probable cause to believe there is contraband in the
      vehicle but do not know where it is located. The knowledge of
      the contraband constitutes an “exigent circumstance” under the
      “automobile exception” to the warrant requirement. United

                                       9
      States v. Ross, 456 U.S. 798, 804–826, 102 S.Ct. 2157, 2162–2173,
      72 L.Ed.2d 572 (1982); Harper v. State, 704 S.W.2d 546, 548 (Tex.
      App.—Houston [14th Dist.] 1986, pet. ref’d).

Herring v. State, 758 S.W.2d 849, 853 (Tex. App.—Corpus Christi 1988, pet.

ref’d).

      Once probable cause exists to believe that contraband is
      contained in a vehicle, police are entitled to conduct a
      warrantless search of the vehicle as thorough as one authorized
      by a warrant issued by a magistrate. Every part of a vehicle
      where contraband might be stored can be inspected. United
      States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
      Under Ross, Officer Spencer was justified in searching the
      automobile’s trunk and the pillow case therein, and in seizing
      the marihuana.

Villarreal v. State, 703 S.W.2d 301, 305 (Tex. App.—Corpus Christi 1985, no

pet.); see also Garza v. State, No. 13-05-374-CR, 2006 WL 3375333, at *6 (Tex.

App.—Corpus Christi Nov. 22, 2006, pet. ref’d) (“If probable cause justifies

the search of a lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of the search.”;

not designated for publication).

      These facts [including the odor of marijuana] accorded the
      troopers probable cause to believe that the marihuana offered
      would be found in appellant’s vehicle. The probable cause
      justified the search of every part of the vehicle that might
                                      10
     conceal the marihuana. United States v. Ross, 456 U.S. at 825, 102
     S.Ct. at 2173. It is, of course, not uncommon for the search to
     reveal marihuana secreted in the trunk of the vehicle. See, e.g.,
     United States v. Ogden, 572 F.2d 501, 502 (5th Cir.), cert. denied,
     439 U.S. 979, 99 S.Ct. 564, 58 L.Ed.2d 650 (1978).

Levine v. State, 794 S.W.2d 451, 453-54 (Tex. App.—Amarillo 1990, pet.

ref’d); see also Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—Houston [1st

Dist.] 2015, pet ref’d) (“When Officer Cruz smelled an odor of marijuana,

he had probable cause to search the car and its occupants.”).

3.   The trial court ignored controlling Texas law by concluding that
     the “strong odor” of marihuana failed to provide probable cause to
     search the trunk of Lindsey’s vehicle.

     The trial court explicitly found, as Officer Ortiz testified, that “Ortiz

could smell a strong odor of marijuana emitting from the vehicles [one of

which was Lindsey’s].” CR 71 (#5); RR 11, 14-16, 23-26, 41, 43-44, 49-50.

Under this finding of fact and the myriad of controlling authorities cited

immediately above, Officer Ortiz had probable cause to search Lindsey’s

vehicle for marihuana and every part of the vehicle where marihuana

might be found, including the trunk. The trial court’s contrary conclusion




                                     11
conflicts with opinions of this Court and its sister courts of appeals, the

Texas Court of Criminal Appeals, and the United States Supreme Court.

                                  PRAYER

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

court’s order that granted, in part, 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



                    CERTIFICATE OF COMPLIANCE

     According to the word count of the computer program used to
prepare this document, it contains 3,335 words.




                                      12
                     CERTIFICATE OF SERVICE

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

     Ms. Celina Lopez Leon
     Law Office of Scott Ellison, PLLC
     410 Peoples St.
     Corpus Christi, TX 78401-2318
     361.887.7600 phone
     361.882.4728 fax
     celinamarielopez@gmail.com
     Appellate Counsel for Appellee

                                 /s/ A. Cliff Gordon_______________
                                 A. Cliff Gordon




                                   13
