NO. 07-03-0266-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B OCTOBER 15, 2004

______________________________ ANGELIA G. STONE,

Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-437,926; HON. JIM BOB DARNELL, PRESIDING

_______________________________ Before JOHNSON, C.J. and QUINN and CAMPBELL, JJ. Appella nt, Angelia G. Stone, was convicted upon her plea of guilty for possessing
a controlled substance (methamphetamine) in an amou nt of less than one gram. She contends on appeal that the trial court erred in failing to grant her motion to s uppress as the result of her purportedly illegal detention and the search of her purse. We affirm the judgment of the tria l court. Background On August 31, 2001, Officer Jeff Ashburn stopped a vehicle in which appellant was
a passenge r f

or failure to have an inspection certificate. Ashburn asked Jodi Wynn, the1 The Fo urth Am en dm en t to th e fe de ral c on stitu tion an d a rticle I, § 9 of the Texa s Consti tut ion are the sa me in m ateria l aspe cts bu t are to b e co nstru ed in dep end ently. Richar dson v. State, 865 S.W.2d 944, 948 (Tex . Crim . App . 199 3); Ure sti v. Sta te, 98 S .W .3d 3 21, 3 29 (T ex. A pp.--H ous ton [1 st Dist.] 2003 , no pet.) 2 driver , to have a seat in his car while he wrote out a ticket. He then asked Wynn for permission to search her vehicle, which s he grante d. Beforeinitiat ing the s earch, however, he asked appellant

to step out

of the ve hicle, a nd asked both Wyn n and ap pellant to empty their pockets. Appellant complied. Thereafter, the officer began to observe her and saw needle tracks, marks, and scars on b oth of appellant’s arms from the wrist to the elbow. Appellant

was then asked if

she used methamph eta mine, and she replied that she had used some three days earlier. Ashburn then observed appellan t’s purse lying open on the passenger

side of the car and saw a purple C rown Royal bag in the pur se. Based on having found narcotics and drug paraphernalia in C rown Royal bags on many occasions in the past, he removed the bag and searched it. Th erein, he found a device with a spoon and a white powdery substance on it that he “bel ieved” was methamph etamine. Appellant was then arrested. Motion to Suppress Appellant

argues in two issues that the search of her purse was an illegal search and seizurein violation of the federal and state constitutions. 1 We review the trial court’s ruling
on a motion to suppress under the standard announced in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). In doing so, we gi ve almosttotal deference to the trial court’s findings of historical fact and review de novoits applicatio n of the law to the fac ts. Id. at 89.3

Standing We first address the issue of appellant’s standin g to conte st the sea rch. The State suggests that she had none. We disagree. To have standing to contesta search, a defendant must show not only that he had
a subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question, but also that the expectation was one that society was or is pr epared to recogn ize as re asonabl e. Jackson v . State, 745 S.W.2d 4, 7-8 (Tex. Crim

. App. 1988), cert. deni ed, 487 U.S. 1241, 108 S.Ct. 291 6, 101 L. Ed.2d 94 7 (1988); Pennywell

v. State, 84 S.W.3d 841, 844 (Tex. App.–Houston [ 1 s tDist.] 20 02), remanded
on other gro unds, 125 S.W.3d 472 (Tex . Crim. Ap p. 2003). Next, a passenger in a vehicle generallyhas no s tanding to contes t the sear c h of a vehicle

. See Hugh es v. Stat e, 24 S.W.3d 833, 838(Tex. Crim. App.), cert. deni ed, 531 U.S. 980, 121 S.Ct. 430, 148 L.Ed.2d 438 ( 2000) (holding that the defendant had no possessory i nterest in the vehicle itself or the items seized from it and th erefore h ad no sta nding to challen ge the se arch). However , he can chal lenge th e search if it r esulted from an i nfringeme nt of hisrights. Henson v. State, 915 S.W.2 d 186, 19 3 (Tex. A pp.–Corp us Chris ti 1996, no pet.). In this instance, appellant testified that the purse belong ed to her, and the office r testified that he r

e cognized tha t the purs e was ap pellant’ s. Thus, she had apossesso ry interestin it an d its con tents. See May v. S tate, 582 S.W.2d 848, 852 (Tex. Crim. App. 1979) (holding that cons ent of thepasseng er to sear ch the ve hicle w hich bel onged tohis parents did not extend to a lunch box which the officer knew belonged to the defendant). Moreover, a general expectation of privacy in a purse is reasonable because it is intended
as a reposi tory of pe rsonal effects. W ilson v. St

ate, 99 S.W.3d 767, 770(Tex. Ap p.–4

Houston [14 th Dist.] 20 03, pet. r ef’d); see also Coronado v. St ate, 835 S. W.2d 636, 640 (Tex. Crim. App. 1992) (holding that students have a hig h expectation o f p rivacy in a purse); Dawson v

. State, 868 S.W.2d 363, 370 (Tex. App.–Dallas 1993, pet. ref’d) (holding thata purse is an item in which most women carry personal items and cash and the fact thatthe defendant stored her purse in her locker and p lac ed a lock on the locker is evidence she intended to exclude others from the locker). Thus, while we agree with the State that appellant had no privacy interest in thevehicle, she not only had one in her purse but also had standing to challenge its search. Legality of Search Nowwe turn to the legitim acy of thesearch i tself. Appellant argued that the officer acted illegitimately because the purpose for the original stop had ended and no other basis warranted continuation of the detention or the ensuing sea rch of the purse. We disagree. Once the purp ose of a t r affic st op has been effectuated, the officer may ask the driver if he possesses illegal contraband and soli cit vo luntary consent to search the vehic le. Strauss v

. State, 121 S.W.3 d 486, 49 1 (Tex. A pp.–Amari llo 2003 , pet. r ef’d)

. Merelyrequesting such consent does not amount to an u nlawfu l seizure, and neither probable cause nor reasonable suspicion is required for theofficer to ask. James v. State, 102 S.W.3d 162, 173 (Tex . App.–Fo rt Worth 20 03, pet. r ef’d); Leach v. State, 35 S.W.3d 232, 235 (Tex. App.–Austin 2000, no pet.). Nor doe s the encounter become a furthe r detention simply d ue to therequest f or permis sion to s earch. Vargas v. State, 18 S.W.3d 247, 252-53 (Tex. App.–Waco 2000, pet. ref’d). Further, theofficer is not requ ired to i nform the occup ants that they are f ree to le ave. Id. at 252 n. 1.2 Nothin g of record suggests that but for the requestto empty her pockets, the marks on he r ba r e a r ms would nothave been seen. 5 Atbar, the evidence shows that the officer requested permission from the driver to search the vehicle and that consent to do so wa s voluntarily given. Thus, he was authorized to actupon the consent given him. And, it reasonably falls within the scope of the consent granted by the person in control of the vehi cle to ask those in the car to exit it so the search can be conducted. Next, while the officer did ask both occupants to e mpty their pockets, the conte nts of their respective pockets were not in issue here; in deed, th e record does not even indicatewh at the contents were. Rather, it was what the officer saw on the appellant ’ s forearmsafter she emptied her pockets that caused him to question her further. The garb she wo r e was such that it allowed him to observe scars and red, scabby needle tracks extending from her wrists to her elbows. Being unc overed, red, scabby and perceivable bythe eye, the trial court could have reasonably inferred from theevidence that the y were in plain v iew. See Walter v. State, 28 S.W.3d 538, 541-42 (Tex. Crim. Ap p. 2000), quoting Minnesot

a v. Dickerson, 508 U.S. 366, 113S.Ct. 213 0, 124 L. Ed.2d 33 4 (1993), (defining plain view as contraband left in open view and o bserved by a police officer from a lawful vantage point so that no invasion of a legitimate expectation of privacy has occurred). And, being in plain view, the officer need not have had reasonable suspicion or p robable cause to mentally seize what he saw; that is, being in plain view, neither the federal o r s tate constitu tions required the officer to ignore, or prevented him from testifying about, the marks even if we we re to assume that he had no basis to ask appe llant to empty her pockets. 2 So too could it be said that the marks and what they indicated ( i.e. recent drug3 See Jurd i v. Sta te , 980 S.W .2d 90 4, 9 06 (Te x. A pp .–F ort W orth 19 98 , pe t. ref’d ) (w he rein

methamphetamine and drug parapher nali a was found in a Crow n Ro yal bag ); Ho llis v. Sta te , 971 S. W.2d 653, 655 (Tex. App.–Dall as 1998, pe t. ref’d) (wherei n the of fi cer f ound cocai ne in a Crown Royal bag a nd test if ied that such bags are often u sed to c arry drug s); W ells v. Sta te , 968 S. W.2d 483, 484 ( Tex. App. –Eastl and 1998, pet. ref’d), cert. deni

ed, 526 U.S. 102 1, 119 S. Ct. 125 9, 143 L. Ed.2d 355 (19 99 ) (w he rein dru g p ara ph ern alia was disc overed i n a Crown Royal bag); Rh ode s v. S tate, 913 S.W.2d 242, 249 (Tex. App .–Fort W orth 199 5), aff ’ d, 945 S.W.2d 115 ( Tex. Cri m. App. 1997) (wherei n off icers test if ied t hat i n t hei r e xpe ri enc e, Cro wn Royal bag s are frequ ently u sed to carry drug s);

4 Appell ant contradict ed the of fi cer’ s test imony t hat her purse was open and the Royal Crown bag in pla in vi ew. This testimony, howe ver, created a question of fact for t he trial court to resolve. And, apparently, the tr ial court

resol ved it

agains t appel lant . We defer to t hat f indi ng give n the app li cab le st and ar d of re vi ew. 6 use) created reasonable suspicion that criminal activity wa s afootan d appellant was involved in it. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (defining reasonable suspicion as specific articulable facts when combined with rational inferences from those facts which would lead an officer to reasonably suspect that a particular person has engaged or is or soon will be engaging in criminal activity). Thus, theofficer had lawful basis to temporarily detai n appellant and ask her questions sufficient to either negate or substanti ate t ha t suspici on. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (discuss ing the s cope of th e investi gation th at the off icer may unde rtake if reasonab le suspi cion of c riminal activity exists). Next, in q ue stioning appellant about whether she used methamphetamine , he discovered thatshe did . This, coupled w ith the officer’s belief (based upon his having seen lik e marks on “many occasions”) that the tracks indicated “recent use” of thedrug, th e officer’s observation of the Crown Royal bag in appellant’s open purse, and his knowl edge and experience that drugs are often kept in Crown Royal bags 3 constituted facts sufficient to justify the conclusion that drugs were probably in the bag. 4 See Roj

as v. Stat

e , 797 S.W.2d 41, 43 (Tex. Crim. App. 1990) (stating that probable cause to search “exists when7

the facts are sufficient to justify the conclusion that the property which i s the object of the search is probably in the area to be searched”). So , the totality of the circumstances would permit a trial court to find that the officer had probablecause (under both the federal and state con stitution s) to remove the bag from the p urse and search it for drugs

. Accordingly, we 1) conclud e t hat the trial court did not abuse its discretion by denying the mo tion to suppress, 2) overrule the two issues before us, and 3) affirm the judgment rendered below.

Brian Quinn Justice

Publish.