NO. 01- 15

- 00130

- CR

IN THE COURT OF APPEALS

FOR THE FIRST SUPREME JUDICIAL DISTRICT

HOUSTON, TEXAS

....................................................................................................................................

MICHAEL W. PETERS * APPELLANT

VS. *

THE STATE OF TEXAS * APPELLEE

....................................................................................................................................

TRIAL COURT NO. 1413407

IN THE 176TH DISTRICT COURT

OF HARRIS COUNTY, TEXAS

.................................................................................................................................

BRIEF FOR APPELLANT

...............................................................................................................................

Charles Hinton

P.O. Box 53719

Houston, Texas 77052- 3719

832

- 603

- 1330

chashinton@sbcglobal.net

SBOT #09709800

Attorney for Appellant ACCEPTED

01-15-00130-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/22/2015 7:27:36 PM

CHRISTOPHER PRINE

CLERKTABLE OF CONTENTS

Page:

Identity of Parties and Counsel i

List of Authorities ii

Statement of the Case 1

Point for Review Number One 1

THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

TO SUPPRESS EVIDENCE (RR 2:61).

Statement of the Facts 1

Summary of the Argument 4

Argument 5

Prayer for Relief 15

Certificate of Service 15

Certificate of Compliance 16IDENTITY OF PARTIES AND COUNSEL

Judge: Honorable Stac e y W. Bond

Complainant: The State of T exas

Trial Prosecutors: Ms. Courtney Chester

TBA #24077335

Ms. Mia Magness

TBA # 00787363

1201 Franklin

Houston, Texas 77002

713

- 755

- 6908

Defense Counsel: Mr. William B. Portis, Jr.

TBA # 16161000

8561 Long Point Road, Suite 205

Houston, Texas 77055

713

- 224

- 6473

Appellant: Mr. Michael W. Peters

Appellant's Counsel: Mr. Charles Hinton

TBA #09709800

P.O. Box 3719

Houston, Texas 77052

- 3719

832

- 603

- 1330

Appe llee's Counsel: Ms. Devon Anderson

Harris County District Attorney

1201 Franklin

Houston, Texas 77002

713

- 755

- 5800

iLIST OF AUTHORITIES

Cases: Page:

Colorado v. Bertine

, 479 U.S. 367 (1987) 8

Delgado v. State

, 718 S.W.2d 718 (Tex. Crim. App. 1986, reh. den.) 7

Florida v. Wells

, 495 U.S. 1 (1990) 4, 8

Garza v. State

, 137 S.W.3d 878 (Tex. App.

-- Houston [1st Dist.] 2004) 4, 8

Moskey v. State

, 333 S.W.3d 696 (Tex. App.

-- Housto n [1st Dist.] 2010) 9 , 14

Rothenberg v. State

, 176 S.W.3d 53 (Tex. App.

-- Houston [1st dist.] 2004, PDRR) 8

Shepherd v. State

, 273 S.W.3d 681 (Tex. Crim. App. 2008) 5

South Dakota v. Opperman

, 428 U.S. 364 (1976) 7

Constitutions:

U.S. CO NST. amendment IV 5

TEX. CONST. art. I, sec. 9 5

iiTO THE HONORABLE JUSTICES OF THE COURT OF APPEAL

FOR THE FIRST SUPREME JUDICIAL DISTRICT:

Comes now, appellant Michael W. Peters, and submits this brief pursuant

to TEX. R. APP. PROC. 38.1.

STATEMENT OF THE CASE

On January 8, 2015, the trial court denied appellant's motion to suppress

evidence but also stated that appellant had permission to appeal her decision (RR

2: 61). On January 9, 2015, appellant pled guilty, without waiving his right to

appeal the motion to suppress evidence ruling, to the first degree felony offense

of possession with intent to deliver methamphetamine between 4 and 200 grams

(RR 2: 63). The trial court found that there was sufficient evidence to find him

guilty (RR 2: 65) . On February 9, 2015, the trial court found appellant guilty and

sentenc ed him to 10 years in prison. (CR I : 82). Appellant gave notice of appeal as

to the trial court's den ial of his motion to suppress (CR I : 84).

POINT FOR REVIEW NUMBER ONE

THE TRI AL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS EVIDENCE (RR 2: 61).

STATEMENT OF THE FACTS

1State's Witnesses

Harris County Deputy Constable Kyle Cornelius conducted a traffic stop on a

vehicle

, with an expired registration

, driven by its sole occupant, appellant

Michael Pete rs

, at 1942 hours on January 5, 2014 at North M a i n and Wallisville

.

Appellant pulled over in the parking lot of a grocery store (RR 2: 2, 7, 9, 11).

Deputy Cornelius identified State's Exhibit #4 as an accurate video and

audio recording of the traffic stop. The exhibit was admitted into evidence an d

published for the trial court. While the video played, Depu ty Cornelius gave a

running comm enta ry on it in response to the prosecutor's questions (RR 2: 14).

Since appellant was on parole, De puty Cornelius had a safety concern and

so he had appellant step out of the vehicle in order to do a Terry search for

weapons

. Whe n informed by Disp atch that appellant had 6 class C traffic warrants

pending , Deputy Cornelius arrested appellant ( RR 2: 15

- 16). At that point, Deputy

Cornelius followed Precinct 3's policy which was to tow the vehicle and conduct

an inventory of the vehicle for any property (RR 2: 16

- 17 ).

Precinct 3's policy concerning the inv entory directed t hat the deputy list

any pertinent or valuable property plus any vehicle damage on the tow slip which

2also contains the vehicle information, case n umber an d app ellant's name. The

policy directed Deputy Cornelius to open any container that was not locked and

De puty Cornelius proceeded accordingly (RR 2: 18

- 19). As he inve ntoried the

vehicle, Deputy Cornelius opened the center console and found a towel at the

top. Inside of the towel, he felt what he believed to be a methamphetamine pipe.

Inside the towel, he found a glass methampheta mine pipe containing what he

believed to be burnt methamphetamine residue (RR 2: 20).

At this point, Deputy Cornelius , besides condu cting the inventory, also

began a probab le cause search for any more illegal substances (RR 2: 20

- 21).

De puty Cornelius located a small flat safe. He opened it and found 5 clear plastic

baggies containing a cry stal like substance that field tested positive for

methamphetamine (RR 2: 21

- 22).

Deputy Cornelius filled out the standard Precinct 3 tow slip and inventory

form (RR 2: 26

- 27). Ap pellant did not give Deputy Cornelius permission to either

impound his vehicle or to search it (RR 2: 28

- 29). Deputy Cornelius testified that it

was correct that, according to his training, he would not have a right to conduct

an inventory search of an impo u nded vehicle if he couldn't see any contraband in

plain view in the vehicle (RR 2: 29

- 30 ).

3Appellant's vehicle was drivable and it didn't create any kind of hazardous

condition . It was no t legally parked and Deputy Cornelius refused appellant's

request to call a friend t o move the vehicle

. Deputy Cornelius didn't see any

contraband in the vehicle until he started the inventory (RR 2:30

- 31). Depu ty

Cornelius ha d to pick up and look under the towel before he saw the pipe. The

pipe was inside the towel (RR 2: 33).

State's exhibit 5 (RR 3: 7) , a copy of the Precinct 3 towing and inventory

poli cy, was identified by Deputy Cornelius and admitted into evi dence (RR 2: 51

-

52). Deputy Cornelius testified that he complied with the policy (RR 2: 53).

SUMMARY OF THE ARGUMENT

Deputy Cornelius used the inventory " as a ruse for general rummaging in

order to discover incr iminating evidence. " Florida v. Wells , 495 U.S. 1, 4 (1990).

Deputy Cornelius' i n ventory of appellant's vehicle "was clearly a pretext for an

investigatory motive." Garza v. State , 137 S.W.3d 878, 883 (Tex. App.

-- Houston

[1st Dist.] 2004.

The trial court erred in denying appellant's motion to suppress the illega lly

sei zed methamphetamine in both the vehicle's center console and in the small

flat safe.

4ARGUMENT

There was no search warr ant in this cause (RR 3: 5).

Appellant's motion to suppress evidence claimed that the search of his

vehicle violated both his Fourth Amendment rights under the U.S. Constitution

an d his right s under the Texas Constitution's Article I, Sec. 9. ( CR I: 21).

A ppellant claims that Deputy Cornelius did not comply with Precinct 3's

police departme ntal vehicle inventory policy and that the trial court erred in

denying appellant's motion to suppress evidence of the methamphetamine that

was seized as a result of the illegal inventory search

.

An abuse of discretion is the standard of revi ew utilized in the review of a

trial court's denial of a motion to suppress and the facts are viewed in the light

most favorable to the trial court's decision. Almost total deference is given to the

trial court's express or implied determination of historical facts whil e the

application of the law of search and seizure to those facts is reviewed de novo.

Shepherd v. State , 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).

Deputy Cornelius conducted a traffic stop on appellant's vehicle due to an

expired ve h icle registration (RR 2: 11). He arrested appellant after bei ng advised

by dispatch that appellant had 6 traffic w arrants

. Deputy Cornelius testified that

5Precinc t 3's pol icy in such a situation was "To tow the vehicle and make an

inventory of the vehicle for any valuable property (RR 2: 15

- 16 )."

Pursuant to polic y the deputy called a wrecker (RR 2: 17) and began the

inventory o f appellant's vehicle (RR 2: 19) . In performing the inventory, Deputy

Cornelius used a Precinct 3 carbon copy to list pertinent or valuable property. The

inventory is performed to protect the appellant, his property and also to protect

Deputy Cornelius (RR 2: 18).

During the i nventory, De puty Cornelius found what he believed to be a

methamphetamine pipe with some fresh residue wrapped in a towel that he

found in the vehicle's center console (RR 2: 19

- 20). Upon find ing the pipe, Deputy

Cornelius stated that he then began a dual purpose inventory and "prob able

cause search" of the vehicle. The inventory was for valuable property and the

"probable cause search" was "for anymore ille gal substances" (RR 2: 20

- 21).

During the i nventory and search, Deputy Corn elius found a small flat safe

and opened it. Inside, he found 5 clear plastic baggies containi ng a cry stal like

substance which tested positive for methamphetamine (RR 2: 21). Inside the safe,

the deputy also found a digital scale, Xanax bars, assorted pills, stamps, a green

leafy substance and a rolled cigarette that smelled of marijuana (RR 2: 22).

6In denying appellant's motion to suppress evidence of the controlled

substanc es seized by the deputy , the trial court stated, in pertinent part, that:

(RR 2: 61):

" .... I have also read those cases provide d by the State of Texas, Delgad o

versus State, and that cite is 718 S.W.2d 718,, and then Rothenberg versus State,

that's 176 S.W.3d at 53, and based on the testimony of th e officer and my review

of the case law, I will deny your motion to suppress .... "

Concerning an inventory of a veh i cle's contents, the Court of Criminal

Appeals in Delgado v. State , 718 S.W.2d 718, 721 ( Tex. Crim. App. 1986, reh.

den.), cited the United States Supreme Court case of South Dakota v. Opperman

,

428 U.S. 364 (1976) for the holding that inventories conducted pursuant to

standard police procedures are reasonable. The Court of Criminal Appeals further

clarified the vehicle inventory issue by spe cifically stating that "One of the

instances in which an automobile may be validly impounded and inventoried is

where the d river is removed from his automo bile and placed under custodial

arrest and no other alternatives are available other than impoundment to insure

the protection of the vehicle. " Id. at 721.

Also cited and relied upon by the trial court as a basi s for her decision to

7deny appellant's motion to suppress the evi dence of the methamphetamine wa s

Rothenberg v. State , 176 S.W.3d 53 (Tex. App.

-- Ho us ton [1st Dist.]. 2004, PDRR)

.

In Rothenberg , id. at 56, this First Court of Appeals cited Colorado v.

Ber tine

, 479 U.S. 367, 371 (1987) for the proposition that "The inventory has long

been recogn i z ed as falling outside the Fourth Amendment's warrant

requirement. " This Court also stated that "the Fourth Amendment to the

United States Constitution allows police to open closed

-- even locked

--

containers as part of the inventory of an automobile, as long as they do so in

accordance with standardized police proce dures and as long as the police do not

act in bad faith or for the sole purpose of investigation. Id. at 57. Florida v. Wells

,

495 U.S. 1, 4 (1990).

In Garza v. State , 137 S.w.3d 878 , 885 (Tex. App.

-- Houston [1st Dist.]

2004) . this Court stated:

"The Supreme Co urt has held that, under the Fourth Amendment, a

peace officer may open a closed container as part of an inventory of

an automobile as long as the inventory is conducted in good faith

pursuant to reasonable standardized police procedures. Bertine

, 479

U.S. at 374, 107 S.Ct. at 742

- 43. We find this Fourth Amendment

8authority to be reasonable, persuasive, and in harmony with Texas'

protection against unreasonable searches and seizures. Accordingly,

we further hold that, under Article I, section 9, this standard applies

in the context of inventories."

Appellant suggest s that this Court 's opinion in Moskey v. State , 333 S.W.3d

696 (Tex. App.

-- Houston [1st Dist.] 2010) is not only one that is factually similar

to appellant's case but also aptly and thoroughly sets forth the law that is

applicable to a proper appellate analysis of appellant's complaint.

Appellant's complaint is that the trial court erred in denying his motio n to

suppress evidence (RR 2: 61). The State's evidence failed to satisfy its burden to

demonstrate that Deputy Cornelius conducted the inventory search of appellant's

vehicle in accordance with Precinct 3's stan dardized police proce dures. T he trial

could not have reason a bly determined that Deputy Cornelius conducted a valid

inventory search and

, therefore

, the trial court abused its discretion in denying

appellant's motion to suppress evidence

.

Based on the law as set forth in Moskey , id., appellant concedes that the

traffic stop of appellant's vehicle and his arrest were lawful. Appellant also admits

that the impoundment of his vehicle was proper and that the deputy had a legal

9right to perform an inventory of appellant's vehicle.

However, appellant contends that the State 's evidence failed t o

demonstrate t hat Deputy Cornelius conducted the inventory search according to

Precinct 3 police departmental policy. Id., at 700.

State's Exhibit #5 (RR 3: 7) , the Precinct 3 inventory policy, was offered an d

admitted into evidence (RR 2: 51). Deputy Cornelius' inventory form is reflected in

the appel late record as Defense No. CX

- 1 (RR 3: 11).

The trial court noted for the record the following:

(RR 2: 62):

" THE COURT: We're on the record in Cause No. 1413407, t he State of Texas

versus Michael Peters. Before we enter into the plea bargain that was part of the

motion to suppress, the dispositive motion to suppress, we wanted to get on the

record at the reque st of Mr. Portis that the State will secure from the officer the

inventory slip that was submitted to his department as a result of the

impoundment of Mr. Peters' car.

MS CHESTER: Yes, your Honor.

THE COURT: That will be included in the record.

MS. CHE STER: Yes, your Honor.

10MR. PORTIS: Is that your stipulation? That was my stipulation.

MS. CHESTER: I will ask him and attempt to get it to the best of my ability.

We will make sure to look everywhere to try to find it.

THE COURT: All right. He seems confident that he filed it with his report.

MR. PORTIS: I think he told me that two or three times.

MS. CHESTER: Shouldn't be a problem.

MR.. PORTIS: Thank you so much."

Deputy Cornelius testified that he had a Precinct 3 carbon copy tow slip

form on which he listed any pertinent or valuable property that he found during

his inventory of appel lant's vehicle ( RR 2: 18). As he was inven torying the vehicle,

Deputy Cornelius opened the center console and found what he believed to be a

methamphetamine pipe containing methamphetamine residue inside of a towel

(RR 2: 20).

Co ntinuing on with his search, the deputy opened a small flat safe in which

he found "five clear plastic bags containing a crystal like substance which late r

field tested positive for methampheta mine", "several new unused small clear

plastic baggi es with pictures of cats on 'em" , "a digit al scale", "baggies with three

X anax bars" , "five Soma type pills", "six unk nown gray and pink pills", "four round

11white pills", "three small round pill s", "a package of some small stamps",

"seventeen brown pills with two blue pills contained within the same bag', "a

baggie containing a green leafy substance that smelled strongly of fresh

marijuana" and "a baggie that contained a rolled cigarette that sme lled strongly

of burnt marijuana (RR 2: 21

- 22). "

Deputy Cornelius testified that

, while he did fill out a standard Precinct 3

tow slip form on which he listed the items found during his inventory of

appellant's vehicle , he did not bring the tow slip form to c ourt (RR 2: 26

- 27 , 32 ).

Deputy Cornelius said that he couldn't recall what valuables were in the

appellant's vehicle without looking at his tow slip. However, he did recall some

speakers in the back of the vehicle (RR 2: 37).

The Precinct 3 inventory policy contained in State's Exhibit #5 (RR 3: 7)

states the following in reg ard to a prisoner's property and vehicle :

"3. Prisoner's Proper ty

Each deputy, upon assuming custody of a prisoner, has the primary

responsibility to protect and safeguard all property which the prisoner

has in his possession at the time of arrest:

a. Deputies who arrest or transport or otherwise take custody of

12a prisoner shall inventory the prisoner's property and maintain detailed

notes as to the type, amount, and disposition of the property. ....

4. Prisoner's Vehicles

When nece ssary will be towed and stored by an authorized wrecker

service.

....

All prisoners vehicles towed by this Department will be inventoried

including the trunk and glove compartment if accessible. ...."

The inventory form listed in the appellate re cord as "CX

- 1" (RR 3: 11 ) clearly

shows that Deputy Cornelius did not conduct his inventory of appellant's vehicle

pursuant to established Precinct 3 police department guidelines. The "Inventory

Of Vehicle Contents" reflects the following:

"C ell Phone . Center Console

Misc Tools

- Back Seat / Bag Of Change

- Back Seat

Misc Clothes

- Cargo Area"

The deputy did not maintain detailed notes of the type and amount of the

property in appellant's vehicle. While there is mention of a cell phone there is no

description of the cell phone as to type. His inventory contains no mention at all

13of a towel with a methamphetamine pipe found in the center console of the

vehicle. His inventory does not even mention t he flat saf e in which he testified

that he found 5 baggies of methamphetamine, digital scales, assorted pi lls,

stamps and marijuana (RR 2: 21

- 22)

. Nor does his in ventory list the contents of

the fla t safe. His inventory mentions miscellaneous clothes and miscellaneous

tools without stating their type or number which is apparently required by

Precinct 3's inventory policy as set forth in State's Exhibit # 5 (RR 3: 11). His

inventory does mention a bag of change but not the amount of money. There is

no mention of the two speakers that Deputy Cornelius testified that he sa w in the

back of appellant's' vehicle (RR 2: 37).

As this Court state d in Moskey , supra, at 700, "The state bears the burden

of establishing that the police conducted a lawful i nventory search. ... The State

satisfies this burden by demonstrating that (1) an inventory policy exists and (2)

the officers followed the policy." State's Exhibit #5 (RR 3: 7) showed that an

inventory policy did exist. The inventory form listed as "CX

- 1" (RR 3: 11) clear ly

demonstrates that Deputy Cornel ius did not follow the policy.

S ince Deputy Cornelius did not follow Precinct 3's established police

14department policy for inventory of the vehicle's contents, his inventory search

amounted to a "ruse for a general rummaging in order to discover incriminating

evidence." Moskey , supra, at 700. Therefore, the search for and seizure of the

methamphetamine was illegal.

The trial court erred in denying appellant's motion to suppress (CR I: 24; RR

3: 61).

PRAYER FOR RELIE F

Appellant prays that this Court reverse the judgment of the court below

and remand the case for further proceedings. TEX. R. APP. PROC. 43.2(d).

Respectfully submitted,

/s/Charles Hinton_____

Charles Hinton

P.O. Box 53719

Houston, Texas 77052

- 3719

832

- 603

- 1330

chashinton@sbcglobal.net

SBOT #09709800

Attorney for Appellant

CERTIFICATE OF SERVICE

I certify that a copy of appellant's brief has been served by e

- filing upon the

15appellate attorney for the State, Mr. Alan Curry, Chief Prosecutor, Appellate

Division, Harris County District Attorney's Office , 6th Floor, 1201 Franklin,

Houston, Texas 77002 on June 22, 2015.

/s/ Charles Hinton__________

Charles Hinton

CERTIFICATE OF COMPLIANCE

Appellant's counsel certifies that the wor d count of this document is 3,347

.

/s/Charles Hinton

__________ Charles Hinton

16