OPINION

No. 04-09-00446-CR

Philip Andrew GARCIA,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. A08-550

Honorable N. Keith Williams, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: July 7, 2010

AFFIRMED

Phillip Andrew Garcia appeals the trial court’s denial of his motion to suppress. We 

affirm.

BACKGROUND

Garcia was charged with possession of marijuana in a drug free zone in an amount more 

than two ounces but less than four ounces. At the hearing on his motion to suppress, only Mike 
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Baker, an investigator with the Kerrville Police Department assigned to the special crimes unit, 

testified.

According to Investigator Baker, on October 7, 2008, at 11:30 p.m., he received a phone 

call from Sergeant Kenneth Cleghorn, who informed him that Christian Gonzales had been 

arrested for possession of marijuana and wanted to speak to investigators. In response to the call, 

Investigator Baker went to the scene and interviewed Gonzales. Gonzales offered to purchase 

marijuana from a man known as Kermit Compton. Investigator Baker knew Gonzales and had 

used him before as a cooperating individual. According to Investigator Baker, Gonzales had 

proven to be credible and reliable in the past. Investigator Baker was also familiar with Kermit 

Compton; in January 2008, using Gonzales, Baker “had done a controlled delivery from Kermit 

Compton.” 

According to Investigator Baker, Gonzales called Kermit Compton on his cell phone. 

After finishing the phone call, Gonzales told Investigator Baker that Compton had agreed to sell 

him marijuana, but first needed to get some marijuana from Jesus “Chuy” Gonzales. Investigator 

Baker testified that the department had “received prior information that Mr. Compton and Mr. 

[Jesus ‘Chuy’] Gonzales were in partnership together selling drugs.” Thus, Investigator Baker 

decided to attempt a “controlled delivery.” 

Investigator Baker then testified that Gonzales received a phone call from Compton, who 

said that he had the marijuana available and wanted to meet Gonzales at Gonzales’s house. 

Investigator Baker testified, “[Compton] just said to meet him there at the residence. There was 

no actual time frame given. So we loaded up into our vehicles and we headed to the location.” 

While they were headed to Gonzales’s house, Gonzales received another phone call from 

Compton. According to Investigator Baker, Gonzales told Compton that because Gonzales was 
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riding a bicycle, it would take him about fifteen minutes to get home. Investigator Baker testified 

that the officers were hoping to get to Gonzales’s home in time to set up surveillance before 

Compton’s arrival. 

However, when Investigator Baker and Sergeant Cleghorn arrived at Gonzales’s home, 

they saw a white Ford pickup and a blue Chevy two-door parked on the right-hand side of the 

curb. So, they drove past the home. When they turned around and came back, their headlights 

illuminated the inside of the Chevy. Investigator Baker testified that he saw the driver, whom he 

did not recognize, and a passenger whom he did recognize as Kermit Compton. The driver was 

later identified as Appellant Garcia. 

Investigator Baker testified that he radioed Investigator Dagenhart, who was with 

Gonzales in another vehicle, and informed him that Compton was already at the house, 

Investigators Baker and Dagenhart then tried to decide how they “were going to deploy the 

confidential informant,” Gonzales. Dagenhart was with Gonzales in another vehicle. As 

Investigator Baker and Sergeant Cleghorn were driving past the house, considering what to do, 

they saw the headlights of the Chevy turn on. The Chevy, driven by Garcia, turned into a 

driveway, backed up, and started to leave. According to Investigator Baker, he knew Compton 

was supposed to sell marijuana to Gonzales at that location, the vehicle was there, and he had 

seen Compton in the vehicle. So, Investigator Baker decided to stop the Chevy. The Chevy had 

three occupants: Compton was in the front passenger seat, Garcia was in the driver’s seat, and a 

male juvenile was in the back seat. 

Investigator Baker testified that he made all three occupants get out of the car. 

Investigator Baker then conducted a pat-down search of the men, but did not find anything. 

According to Investigator Baker, Sergeant Cleghorn then went into the vehicle and saw a three-
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pound Folgers coffee can on the passenger side floorboard. Investigator Baker testified that due

to their training and experience, both he and Sergeant Cleghorn knew that people who traffic 

narcotics like to use items like coffee and mustard to mask the odor of marijuana. Investigator 

Baker testified that Gonzales had ordered a half-ounce of marijuana, worth about $60, which 

would fit perfectly in a three-pound coffee can. 

Sergeant Cleghorn opened the can, which had a plastic lid on it but did not have a seal. 

Sergeant Cleghorn then pushed his finger down into the coffee, felt a plastic bag, and pulled it 

out. The plastic bag contained marijuana. Garcia was then advised of his Miranda rights and was 

taken to the police station where he spoke with officers. Garcia was later indicted for possession 

of marijuana in a drug free zone.

After hearing Investigator Baker’s testimony and arguments of counsel, the trial court 

denied Garcia’s motion to suppress. In accordance with a plea-bargain agreement, Garcia then 

pled guilty to possession of marijuana in a drug-free zone and was placed on deferred 

adjudication for one year and fined $500.00. He now appeals the trial court’s denial of his 

motion to suppress. 

STANDARD OF REVIEW

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard 

of review. Wilson v. State, No. PD-0307-09, 2010 WL 715253, at *3 (Tex. Crim. App. Mar. 3, 

2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give 

almost total deference to the trial court’s determination of historical facts, we conduct a de novo 

review of the trial court’s application of the law to those facts. Wilson, 2010 WL 715253, at *3; 

Carmouche, 10 S.W.3d at 327. As the sole trier of fact during a suppression hearing, the trial 

court may believe or disbelieve all or any part of a witness’s testimony. Wilson, 2010 WL 
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715253, at *3; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Furthermore, we 

examine the evidence in the light most favorable to the trial court’s ruling. Wilson, 2010 WL 

715253, at *3; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). 

DISCUSSION

In his first issue, Garcia argues that the trial court erred in overruling his hearsay 

objection to Investigator Baker’s testimony about Gonzales’s phone conversation with Compton. 

Assuming but not deciding whether the testimony at issue was hearsay, we note that a trial court 

is permitted to rely on hearsay testimony in determining preliminary questions concerning the 

admissibility of evidence. See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002) 

(explaining that because suppression hearings involve the determination of preliminary questions 

concerning the admissibility of evidence, the language of the current rules indicates that the rules 

of evidence (except privileges) no longer apply to suppression hearings); see also Ford v. State, 

305 S.W.3d 530, 538, 539 (Tex. Crim. App. 2009) (explaining that a suppression hearing is an 

“informal hearing in which the trial judge, in his discretion, may use different types of 

information, conveyed in different ways, to resolve the contested factual or legal issues”; “[a] 

trial judge may use his discretion in deciding what type of information he considers appropriate 

and reliable in making his pre-trial ruling”; and a trial judge does “not abuse his discretion in 

relying upon an unsworn hearsay document”). Therefore, even if the testimony at issue was 

hearsay, the trial court did not abuse its discretion in relying on it.

In his second issue, Garcia argues that Baker did not have reasonable suspicion to justify 

detaining him, because he was merely the driver of the car in which Kermit Compton, the 

suspect, was a passenger. In response, the State emphasizes that Garcia would have an officer 
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turn a blind eye to the fact that Garcia was driving his vehicle to a location where the information

received indicated a drug deal was about to occur. 

Pursuant to Terry v. Ohio, 392 U.S. 1, 21 (1968), an officer has the right to briefly detain 

and investigate a person when the officer has a reasonable suspicion supported by facts that the 

person is, has been, or will be engaged in criminal activity. See State v. Sheppard, 271 S.W.3d 

281, 287 (Tex. Crim. App. 2008); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). 

The reasonableness of an investigative detention turns on the totality of the circumstances in 

each case. Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007).

Here, the officers knew Compton would be arriving at a specific location within 

approximately fifteen minutes to sell marijuana to Gonzales. When the officers arrived at that 

location, they saw a parked car. As they drove past, Investigator Baker recognized one of the 

passengers in the parked car as Compton. Considering the totality of the circumstances, the 

officers had reasonable suspicion to stop the vehicle and detain the occupants of the vehicle for 

purposes of conducting a Terry stop.

In his third issue, Garcia argues that there was no probable cause to justify the search of 

his vehicle. In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court established 

the automobile exception to the Fourth Amendment’s warrant requirement, holding that officers, 

without violating the Fourth Amendment, could conduct a warrantless search of a vehicle if they 

had probable cause to believe the vehicle contained contraband. Probable cause requires that the 

facts available to the officer would “warrant a man of reasonable caution in the belief” that 

certain items may be contraband or stolen property or useful as evidence of a crime. Id. at 162. 

That there may be an innocent explanation for the set of facts does not defeat a finding of 

probable cause:
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[P]robable cause requires only a probability or substantial chance of criminal 

activity, not an actual showing of such activity. By hypothesis, therefore, innocent 

behavior frequently will provide the basis for a showing of probable cause; to 

require otherwise would be to sub silentio impose a drastically more rigorous 

definition of probable cause than the security of our citizens demands ... In 

making a determination of probable cause the relevant inquiry is not whether 

particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that 

attaches to particular types of non-criminal acts.

Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex. Crim. App. 1984) (quoting Illinois v. Gates, 462 

U.S. 213, 243 n. 13 (1983)) (alteration in original), overruled on other grounds by Heitman v. 

State, 815 S.W.2d 681 (Tex. Crim. App. 1991).

Here, the officers had probable cause to search the vehicle. Investigator Baker witnessed 

a known, credible informant make arrangements for a drug delivery at the informant’s home in 

approximately fifteen minutes. When the officers arrived at the informant’s home, Investigator 

Baker saw a parked vehicle and recognized Compton, the person whom the informant had called 

to purchase the illegal drugs, as one of the occupants of the parked car. Garcia, the driver of the 

parked car, then turned on the headlights and attempted to drive away, prompting the officers to 

stop the vehicle. Given the totality of circumstances, the officers could reasonably believe that 

the marijuana was located either on the person of Compton, on the person of one of the other 

occupants, or in the vehicle itself. Investigator Baker first conducted a pat-down search of all 

three occupants, but did not feel evidence of illegal drugs. He then searched the car and noticed 

the three-pound coffee can. See Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009) (reiterating that 

“[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” officers 

may without a warrant search “any area of the vehicle in which the evidence might be found”);

Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (explaining that when “there is probable cause 

to search for contraband in a car, it is reasonable for police officers . . . to examine packages and 

containers without a showing of individualized probable cause for each one”). 
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In his fourth issue, Garcia argues that the manner of the search of the coffee can was 

unreasonable and violated the Fourth Amendment because the officer destroyed the coffee by 

placing his bare finger in the coffee grounds. According to Garcia, “[e]ven if the search of 

[Garcia]’s car was reasonable, when the officer placed his hand into the coffee, the search 

became unreasonable.” Garcia argues that merely having goods “in an automobile does not give 

the police carte blanche to search [the goods] by probing them with their fingers. That concept 

itself is unreasonable.”1

Without commenting on whether the coffee was, in fact, “destroyed,” we note that while 

the destruction of property in carrying out a search is not favored, destroying property does not 

necessarily violate one’s constitutional rights. Instead the standard is whether the destruction of 

property was reasonably necessary to effectively execute the search. See Dalia v. United States, 

441 U.S. 238, 258 (1979) (recognizing that “officers executing search warrants on occasion must 

damage property in order to perform their duty”); Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 

1982) (“The touchstone, however, is reasonableness; destruction of property that is not 

reasonably necessary to effectively execute a search warrant may violate the Fourth 

Amendment.”). As noted, the officer had probable cause to believe that the vehicle contained 

marijuana, and the coffee can was the right size for the amount of marijuana ordered. Placing his 

finger inside an inexpensive can of coffee grounds to see whether marijuana was indeed inside

the can was not unreasonable and did not violate Garcia’s constitutional rights. See United States 

v. Santana-Aguirre, 537 F.3d 929, 933 (8th Cir. 2008) (holding that destruction of large, plain, 

and inexpensive candles was not unreasonable because the officer had probable cause to believe 

the candles contained contraband), cert. denied, 129 S. Ct. 2051 (2009); United States v. Alverez, 

 1 We note that Garcia cites no legal support for this proposition. Garcia does point to the officer’s testimony that he 

would not drink coffee that had been tainted by someone placing his finger in the coffee grounds.
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235 F.3d 1086, 1089 (8th Cir. 2000) (holding that because officers had probable cause to believe 

the spare tire contained contraband, “they could lawfully complete a full and thorough search of 

the tire, including dismantling or damaging it”).

In his final issue, Garcia argues that “[b]y placing his bare hand in the coffee, the police 

officer destroyed consumable property” in violation of the Takings Clause of the Fifth 

Amendment to the Constitution.2

 2 We note that Garcia also cites Article I, section 19 of the Texas Constitution, but does not explain how the Texas 

Constitution provides more protection than the United States Constitution. Therefore, to the extent that the Texas 

Constitution might provide more protection than the United States Constitution, Garcia has inadequately briefed the 

issue. See TEX. R. APP. P. 38.1(i).

However, “[w]hen property has been seized pursuant to the 

criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’ 

for which the owner is entitled to compensation.” Acadia Tech., Inc. v. United States, 458 F.3d 

1327, 1331 (Fed. Cir. 2006); see also Amerisource Corp. v. United States, 525 F.3d 1149, 1153 

(Fed. Cir. 2008) (explaining that under its inherent police power, a state had the ability to seize 

and retain property to be used as evidence in a criminal prosecution, and property seized and 

retained pursuant to this police power is not taken for a public use in the context of the Takings 

Clause), cert. denied, 129 S. Ct. 1611 (2009); Rhaburn v. United States, 88 Fed. Cl. 310, 313 

(2009) (same). “The same rule applies even if the property is seized as evidence in a criminal 

investigation or as the suspected instrumentality of a crime, but is ultimately returned to the 

owner either because the government does not pursue forfeiture proceedings or because the 

owner prevails in a forfeiture action.” Arcadia, 458 F.3d at 1331-32; see also Amerisource, 525 

F.3d at 1154 (holding that government’s decision to hold pharmaceutical drugs past their 

expiration date did not result in a compensable taking under the Constitution because “[o]nce the 

government has lawfully seized property to be used as evidence in a criminal prosecution, it has 
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wide latitude to retain it so long as the investigation continues, regardless of the effect on that 

property”).

CONCLUSION

We affirm the judgment of the trial court.

 

Karen Angelini, Justice

PUBLISH