Cop’s “Weapons Frisk” of Locked Vehicle Deemed Improper and an Unreasonable Search

Defendant was parked and approached by an officer.  The officer asked Defendant to step out of the vehicle. Defendant stepped out of the vehicle and locked it.  Defendant was evasive in the officer’s questioning.  The officer believed that Defendant was intoxicated. The officer unlocked Defendant’s vehicle and searched it, finding a bag of pills.  The officer testified that he was looking for either a weapon or evidence of intoxication.

The Court of Appeals for the Fifth District of Texas rule that the officer’s search of the vehicle was a “weapons frisk” and deemed unreasonable.  Since the vehicle was locked, the officer’s safety argument was not sufficient basis to search the vehicle.

If you believe you were subjected to an improper search, call the experienced criminal defense lawyers at Zendeh Del & Associates, PLLC today to discuss your options.  Evidence gathered from an improper search is inadmissible in court.  Know your rights; call today.  (409) 740-1111.






No. 05-10-00551-CR.
Court of Appeals of Texas, Fifth District, Dallas.
Opinion Filed July 12, 2012.

Before Justices Moseley, Richter and Lang-Miers.
Opinion by Justice Moseley.



Appellant Brett Robert Dowell pleaded guilty to possessing under twenty-eight grams of diazepam, a Class A misdemeanor (TEX. HEALTH & SAFETY CODE ANN. §§ 481.104(a), 481.117(b) (West 2009)), and was sentenced to twenty days’ confinement in the county jail. Before entering his plea, Dowell filed a pretrial motion to suppress evidence—the diazepam—that was found during a warrantless search of a locked automobile. Following a hearing, the trial court denied Dowell’s motion, entered findings of fact and conclusions of law, and certified Dowell’s right to appeal.
In Dowell’s first issue on appeal, he asserts the trial court erred by denying his motion to suppress because, contrary to the trial court’s finding, the officer lacked reasonable suspicion to search the locked vehicle. We agree. Therefore, we reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.
When reviewing a trial court’s ruling on a motion to suppress, the appellate court gives the trial judge’s factual findings “almost total deference” if the record supports those findings and views the evidence in the light most favorable to the trial judge’s ruling. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). However, when a party appeals a mixed question of law and fact and issues of credibility and demeanor are not relevant, the court conducts a de novo review. See id. (citing Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004)); see also Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
The only witness to testify at the hearing on Dowell’s motion to suppress was Officer Michael Best, a police officer with the City of McKinney, Texas. The trial judge determined Best was a credible witness and his credibility is not an issue in this appeal. Because the only issues before us are mixed questions of law and fact that do not depend on credibility determinations, we review the record de novo.
When considering a motion to suppress, a court assumes proper police conduct. The defendant bears the burden of overcoming that presumption, which may be accomplished by establishing the search occurred without a warrant. See Woodard, 341 S.W.3d at 412; Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). If the defendant meets his burden, the burden shifts to the State to show the search either was conducted pursuant to a warrant or was reasonable. See Woodard, 341 S.W.3d at 412; Ford, 158 S.W.3d at 492. In the case before us, no party contended below or on appeal that a warrant authorized the search. Therefore, the State bore the burden to show the search was reasonable. The State argues the search was reasonable because the officer possessed a reasonable suspicion to believe Dowell was dangerous and might gain control of a weapon; the State relies on Michigan v. Long, 463 U.S. 1032 (1983), to support its argument. Whether the State met its burden is the sole issue before us.
The Supreme Court in Long stated that an officer may conduct a limited, warrantless search of the passenger compartment of an automobile “if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, 463 U.S. at 1049 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)); see also Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (officer must “point to specific and articulable facts”); Horton v. State, 16 S.W.3d 848, 852 (Tex. App.-Austin 2000, no pet.) (“Under some circumstances, this right to conduct a protective frisk may also extend to the passenger compartment of the detainee’s automobile.”). The specific and articulable facts must be within the officer’s personal knowledge and based on his personal experience. See Carmouche, 10 S.W.3d at 328. The facts must be more than an inchoate suspicion or hunch. See United States v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry, 392 U.S. at 27).
The type of search permitted by Long is a limited exception to the Fourth Amendment’s warrant requirement. See O’Hara v. State, 27 S.W.3d 548, 550 (Tex. 2000). This limited exception does not give an officer the right to perform a warrantless vehicle search whenever he conducts an investigative stop. See Long, 463 U.S. at 1049 n.14 (“We stress that our decision does not mean that the police may conduct automobile searches whenever they conduct an investigative stop. . . .”). “The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry, 392 U.S. at 29; see also Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992) (purpose of limited frisk is to allow officer to pursue investigation without fear of violence, not to discover evidence of a crime).
Because Officer Best did not have a search warrant, the sole issue before us is whether Best’s search fell within the limited exception to the Fourth Amendment’s warrant requirement. We conclude it did not because the State failed to show Best possessed a reasonable belief that Dowell was dangerous and might gain immediate control of weapons in the locked vehicle. See Long, 463 U.S. at 1049; Terry, 392 U.S. at 21; Carmouche, 10 S.W.3d at 329; Horton, 16 S.W.3d at 854.
Best testified that on June 13, 2009, at around 2:42 a.m., he was patrolling a residential street in McKinney, Texas. While on patrol, Best noticed a white Volvo sedan parked facing the wrong way on the street in violation of the Texas Transportation Code. The driver’s door to the car was open, the dome light was not illuminated, and Best did not observe anyone inside the vehicle. Best stopped behind the Volvo and illuminated the car with his spotlight, which allowed him to observe Dowell, who was sitting in the driver’s seat, “lean forward like he was doing something up underneath the seat, and then shift back, kind of shift slightly to his right, and appeared, with both hands, to be going through the middle console or in between the middle — in between the two seats.”
Best exited his car and approached the Volvo. At about the same time, Dowell stepped out of the Volvo and locked the car. Best called Dowell to come to him, and Dowell complied; the men met at the back of the locked Volvo. In response to Best’s questioning, Dowell gave inconsistent answers about who owned the Volvo; initially he said he owned the vehicle, then he said it belonged to his girlfriend, and finally he said it belonged to his girlfriend’s father.
Best detected the odor of alcoholic beverages on Dowell’s breath and noted Dowell’s pupils were large, his eyes were glassy and bloodshot, his speech was slurred, and he was sweating profusely. Based on his training and experience, which included arresting other people for public intoxication, Best believed Dowell was intoxicated or under the influence of narcotics. However, Best was not certified in any standard field sobriety tests and did not conduct any field tests. The record does not show why Best did not arrest Dowell for public intoxication.
Best testified that during their encounter, Dowell’s demeanor was “hot to cold. One minute he was — one minute he was agreeable and cordial, and the next minute almost confrontational. . . . it was just mood swings.” Best thought he needed to pat-down Dowell “[t]o make sure he didn’t have any weapons due to — due to his aggressive behavior and the hot-to-cold, not knowing what — what his mental state was at that moment.” Best performed a pat-down search of Dowell’s person and did not find any weapons or contraband. Dowell does not challenge Best’s decision to stop and frisk his person; he only challenges Best’s search of the Volvo.
Best then entered the Volvo and searched under the driver’s seat and inside the center console—the areas where he had seen Dowell “making furtive movements” before Dowell exited and locked the Volvo. Best did not find any weapons, but he did locate a baggie with pills in the console of the Volvo. After Best found the pills, he arrested Dowell for possession of a controlled substance.
Best testified he conducted the vehicle search because “I was looking for either, one, a weapon or evidence of his level of intox.” When asked by the State why he was concerned about a weapon, Best replied, “Just with his demeanor. . . . like I said, one minute he was confrontational, borderline aggressive. And then within two questions he was calm and collect[ed].” When asked on cross-examination “[w]hat evidence did you have to give you a reasonable suspicion that [Dowell] had a weapon?” Best responded that he had none. Additionally, Best was asked, “There was nothing specific that led you to believe that [Dowell] had a weapon. The only reason you patted him down is because of his agitation, correct?” Best responded these statements were correct.
Although the trial court’s findings of fact state Dowell locked the Volvo when he exited the car, Dowell or Best subsequently must have unlocked the Volvo because Best searched the inside of the car. However, the record is silent as to who controlled the keys to the Volvo during the encounter, who unlocked the Volvo for Best’s search, and whether the keys allowed the Volvo to be unlocked remotely (without physically putting the key into the lock on the car door). Additionally, the record does not show that Dowell attempted to reenter the car (or gain access to anything inside the car) at any time during the encounter.
To meet its burden to demonstrate the legality of the warrantless search of the locked Volvo, the State needed to present evidence showing Best possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted him in believing that Dowell was dangerous and might gain immediate control of weapons inside the locked Volvo. See Long, 463 U.S. at 1049; Terry, 392 U.S. at 21; Carmouche, 10 S.W.3d at 329; Horton, 16 S.W.3d at 854. Best’s testimony (the only evidence relevant to the search that the State presented at the motion to suppress hearing) falls short of providing such evidence.
The only specific and articulable facts relevant to the issue of whether Dowell was dangerous and might gain immediate control over weapons were from Best’s testimony. Best testified: (1) at 2:42 a.m. he spotted the Volvo parked facing the wrong direction in a residential neighborhood; (2) Dowell was seated in the driver’s seat and reached under the seat and toward the center console when Best illuminated the vehicle (Dowell made “furtive movements”); (3) Dowell exited the Volvo, locked the car, and followed Best’s instructions; (4) Dowell and Best stood behind the locked Volvo while they talked; (5) Dowell provided inconsistent answers to the question of who owned the vehicle; (6) Dowell’s demeanor alternated between calm and “confrontational, borderline aggressive,” which caused Best to believe “there was a possibility” Dowell had a weapon; and (7) Dowell exhibited symptoms consistent with intoxication or drug use, which led Best to search the car for “evidence of [Dowell’s] level of intox.” Best agreed there “was nothing specific that led [him] to believe that [Dowell] had a weapon,” and he did not provide facts showing a reasonable belief that Dowell was dangerous.
Best did not testify that Dowell acted nervous as though he was trying to hide a weapon or that his behavior was otherwise inconsistent with being intoxicated. See Horton, 16 S.W.3d at 853. And although Best characterized Dowell’s demeanor as alternating between calm and “confrontational, borderline aggressive,” he indicated Dowell generally was cooperative and did not try to flee or refuse to answer Best’s queries. See generally Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim. App. 1991); Haston v. State, No. 05-98-01267-CR, 1999 WL 800891, at *2 (Tex. App.-Dallas Oct. 8, 1999, no pet.) (not designated for publication).
We conclude Best’s testimony is insufficient to meet the State’s burden to show Best possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted him in believing Dowell was dangerous and might gain immediate control of weapons in the locked Volvo. See Long, 463 U.S. at 1049; Terry, 392 U.S. at 21; Carmouche, 10 S.W.3d at 329; Horton, 16 S.W.3d at 854.
The State refers to Best’s warrantless search as a “Michigan v. Long protective sweep.” But the facts in the case before us are distinguishable from those in Long. There, the driver exited the vehicle leaving the driver’s door open, and met the law enforcement officers at the rear of the car. See Long,463 U.S. at 1035-36. Upon being asked for his vehicle registration, however, Long did not respond verbally but began walking toward the car’s open door. As the officers followed him, they saw “a large hunting knife on the floorboard of the driver’s side of the car.” Id. at 1036. After seeing the hunting knife, the officers conducted a pat-down search of Long’s person. Id. Long and one of the officers then stood behind the car while the other officer shined his flashlight into the car to look for other weapons. The officer only entered the vehicle when he saw “something was protruding from under the armrest on the front seat”; the officer’s search produced drugs. Id.
Based on the specific and articulable facts that the driver’s door was open, that Long responded to the officers’ questions by making a move toward the car, and that there was a large hunting knife on the driver’s-side floorboard visible to the officers, the officers were reasonably warranted in believing that Long was dangerous and might gain immediate control of weapons in the vehicle. In the case before us, however, the Volvo doors were closed and locked, Dowell made no effort to reenter the vehicle, and there were no visible weapons or other evidence from which Best could have formed a reasonable suspicion that the Volvo contained a weapon. Thus, the facts of the two cases are not similar.
Citing Alexander v. State, the State argues Dowell “acted as if he were hiding something” and, therefore, Best’s warrantless search of the locked Volvo was justified. 879 S.W.2d 338 (Tex. App.-Houston [14th Dist.] 1994, pet. ref’d). However the facts in Alexander that gave the officers concern for their safety differed from those in the case before us. In Alexander, the officers observed two people inside a vehicle, which was in a park in violation of curfew laws. When they illuminated the car, the person in the driver’s seat started scrambling as if he were trying to hide something under the seat. See id. at 340. One officer testified, based on his experience, that he was “immediately concerned that there might be weapon” because the driver scrambled in the car. Id. at 343. The officers removed the driver from the vehicle and searched the auto for weapons, finding a crack pipe under the edge of the driver’s seat at the floor mat. See id. In the case before us, Dowell was the only person in the Volvo. Most importantly, there was no testimony in Alexander that the car was locked, as it was in the case before us.
The State’s only justification for Best’s warrantless search of the Volvo was that the search fit within the exception justified by concerns for officer safety as set forth in Terry and Long. We do not hold that a locked automobile negates the possibility that an officer may possess a reasonable suspicion that a person who previously exited the vehicle is dangerous and might gain immediate control over weapons inside the vehicle. However, searches under Terry and Long are exceptions to the warrant requirement of the Fourth Amendment and cannot become an excuse for general searches of stopped vehicles. Here Best’s own testimony was that “there was a possibility” Dowell had a weapon, but there was nothing specific that led him to believe Dowell was armed or had a weapon inside the Volvo. And there is no evidence that, once Dowell exited and locked the Volvo, he readily could have reached any weapon that might have been in the vehicle.
The dissent observes that Dowell “does not rely on the car being locked to support his argument that the search inside the car was unreasonable.” However, after it was established the search occurred without a warrant, Dowell bore no further burden; rather, the State has the burden of proving the reasonableness of a warrantless search. See Woodard, 341 S.W.3d at 412. The fact that the State could have presented a clearer record about when and how the Volvo was unlocked for Best’s search is not a factor favoring the State. By minimizing the fact that the Volvo was locked, the dissent relieves the State—at least in part—from its burden to justify its warrantless search as reasonable under Long.
Reviewing the evidence in this case in the light most favorable to the trial court’s ruling, we conclude Best’s testimony is insufficient to show he possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted him in believing that Dowell was dangerous and might gain immediate control of weapons in the Volvo. Thus, the State failed to meet its burden of proving that its warrantless search of the Volvo was reasonable as set forth by Terry and Long. Therefore, the trial court erred in denying Dowell’s motion to suppress. We reverse the trial court’s judgment and remand the case to the trial court for further proceedings.
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings.

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