$822.41 IN U.S. CURRENCY AND A 2003 DODGE RAM 1500 TRUCK, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-05-00259-CVCourt of Appeals of Texas, Thirteenth District, Corpus Christi — Edinburg.
Opinion delivered and filed August 9, 2007.

On appeal from the 130th District Court of Matagorda County, Texas.

Before Chief Justice VALDEZ and Justices BENAVIDES and VELA Memorandum Opinion by Chief Justice VALDEZ.

MEMORANDUM OPINION
ROGELIO VALDEZ, Chief Justice.

Kevin Martin appeals the trial court’s seizure order of his vehicle, a 2003 Dodge Ram 1500 truck, and $822.41. Tex. Code Crim. Proc. Ann. art. 59.02 (Vernon 2006). After a warrantless search of Martin’s vehicle revealed cocaine in the console, the money and truck were seized. The trial court found Martin used the vehicle and money in a manner required to be considered contraband. See id. By three issues Martin challenges the (1) legality of the search, (2) evidence connecting the money to the drugs, and (3) chain of custody concerning cocaine found in his vehicle as evidence. We reverse and render judgement in Martin’s favor.

I. BACKGROUND
On February 25, 2004, Officer Armando Galvan responded to a disturbance call. Officer Galvan arrived to discover Martin backing out of a parking spot. Officer Galvan placed his police car behind Martin’s truck to prevent Martin from leaving. Officer Galvan testified that he observed movement by Martin’s right hand near the center console before Martin got out of the truck. As Martin stepped out of the truck, Officer Galvan noticed that Martin was unsteady and seemed intoxicated. Because of Martin’s unsteady nature, Officer Galvan detained Martin in a police car for Martin’s own protection.

While Officer Galvan was detaining Martin, Officer Oliver Green arrived. Officer Galvan informed Officer Green of the observed hand movement by Martin around the center console. Officer Green searched the center console, without Martin’s consent or a warrant, and discovered a bag containing crack cocaine inside the center console. Officer Galvan arrested Martin for possession of cocaine. Subsequently, Martin’s truck and $822.41, found in Martin’s wallet, were seized as contraband in conjunction with the cocaine.

A grand jury did not indict Martin on criminal charges and the record does not show any charges currently pending. Regardless, the State proceeded by filing a nonjury forfeiture action against the $822.41 and the 2003 Dodge Ram 1500. Officer Galvan’s testimony acknowledged that Martin did not consent, nor did Officer Green possess a warrant to search Martin’s truck. Martin’s attorney argued that the State did not have probable cause to conduct the search and seizure of Martin’s truck and money. However, the trial court concluded there was a reasonable belief that a substantial connection existed between the property forfeited and criminal activity based upon the testimony of the officers involved. Martin’s attorney continues to object to the introduction of cocaine into evidence on the grounds of chain of custody. The State even acknowledged in the forfeiture proceeding that it lacked evidence to connect the $822.41 with the cocaine discovered by Officer Green. After the State presented all of its evidence, the trial court rendered a judgment in favor of the State, which allowed the State to retain ownership of both the $822.41 and the 2003 Dodge Ram 1500.

II. DISCUSSIONA. Standard of Review
Where the underlying historical facts are undisputed, we decide whether the trial court properly applied the governing constitutional principles to the facts. See $ 217,590 in U.S. Currency, 18 S.W.3d 631, 634 (Tex. 2000); accord Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997) (explaining that appellate courts review mixed questions of law and fact de novo when no evaluations of credibility and demeanor are involved). Because the parties agree on the relevant facts of this case, we decide the issues of reasonable suspicion and probable cause de novo. See Manns v. State, 122 S.W.3d 171, 178 (Tex.Crim.App. 2003) (following the standard of review articulated in Guzman); $ 217,590 in U.S. Currency, 18 S.W.3d at 634 n. 3 (citing Guzman and noting that its standard of review principles are similarly applied in civil proceedings).

B. Applicable Law
Chapter 59 of the Texas Code of Criminal Procedure specifies the circumstances in which property subject to forfeiture may be seized. See
Tex. Crim. Proc. Code Ann. art. 59.03 (Vernon 2006). Seizure of property is proper if made under authority of a search warrant. Id. art. 59.03(a). Without a warrant, seizure is proper if:

(1) the owner, operator, or agent in charge of the property knowingly consents;

(2) the seizure is incident to a search to which the owner, operator, or agent in charge of the property knowingly consents;

(3) the property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding under this chapter; or

(4) the seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest.

Id. art. 59.03(b).

In a forfeiture proceeding, the State must prove by a preponderance of the evidence that the property seized is contraband and, therefore, the property is subject to forfeiture. State v. $11,014, 820 S.W.2d 783, 784
(Tex. 1991); 1985 Cadillac Limousine v. State, 835 S.W.2d 822, 825
(Tex.App.-Houston [1st Dist.] 1992, writ denied). In forfeiture proceedings, the State must show probable cause for seizing a person’s property; probable cause is a reasonable belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute. State v. $11,014, 820 S.W.2d at 784 $56,700 in U.S. Currency v. State, 730 S.W.2d 659, 661 (Tex. 1987); 1985 Cadillac, 835 S.W.2d at 825.

C. Analysis
By his first issue, Martin contests the legality of the search. Officer Galvan acknowledged the search of Martin’s truck was warrantless, and without consent. Without consent from Martin, or a warrant, the State is required to prove the search was lawful. See State v. Thirty Thousand Six Hundred Sixty Dollars, 136 S.W.3d 392, 397 (Tex.App.-Corpus Christi 2004, pet. denied) (concluding that the civil forfeiture statute does not authorize illegal police conduct).

The test for determining the legality of a stop that warrants further investigation is whether the officer can point to specific articulable facts, which in light of the officer’s personal knowledge and experience, together with other inferences from those facts, would warrant such an intrusion. Vannatta v. State, 773 S.W.2d 771, 773
(Tex.App.-Corpus Christi 1989, writ dism’d) (citing Schwartz v. State, 635 S.W.2d 545, 547 (Tex.Crim.App. 1982)). The rules applicable i Terry-type searches also apply to searches of a suspect’s vehicle Michigan v. Long, 463 U.S. 1032, 1049 (1983) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).

On appeal, the State argues Martin’s warrantless arrest was lawful based upon the alleged assumption that the officers believed the search was necessary to protect themselves against Martin gaining immediate access to a weapon. See Michigan v. Long, 463 U.S. 1032, 1050-1051
(1983). In Long, the police observed a vehicle swerve into a ditch after having witnessed it traveling erratically and at excessive speeds. Id. at 1035. The police stopped to investigate, and upon approaching the vehicle they saw a large hunting knife in plain sight on the floorboard of the car. Id. at 1036. The officers detained Long, subjected him to a Terry
protective patdown, and looked into the Long’s vehicle for more weapons Id. They observed something “protruding” from the armrest on the front seat, searched the armrest, and discovered marihuana. Id. The United States Supreme Court held that it was constitutionally permissible for “police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.” Id. at 1051.

Martin’s situation, however, is distinguishable from Long. In Long, a weapon was initially noticed on the vehicle’s floorboard. Id. at 1036. Officer Green’s only observation before he searched Martin’s truck was hand movement around the center console. One of the elements articulated by Long is that an officer must have an objectively reasonable belief that the suspect is potentially dangerous. Long, 463 U.S. at 1051. Officer Galvan failed to articulate facts that would lead to any such reasonable belief that Martin was potentially dangerous. Officer Galvan did not perform a Terry-type search when he first encountered Martin and stated he detained Martin in a police car for Martin’s protection — not his own. While the judge interprets the facts, the law-as applied in this case-requires more than a fear that Martin might fall on the ground to justify a vehicle search. See id. The mere suspicion that Martin used an intoxicant cannot stand alone as an articulable reason for a search of Martin’s truck. See Thirty Thousand Six Hundred Sixty Dollars, 136 S.W.3d at 402.

The question becomes would a reasonably cautious person believe the action taken by Officer Green was necessary. See O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App. 2000). Mere movement by an occupant in a vehicle being stopped by a law enforcement officer, not coupled with reliable information nor suspicious circumstances, does not give rise to probable cause to search the vehicle. Wilson v. State, 511 S.W.2d 531, 535
(Tex.Crim.App. 1974); Jenkins v. State, 76 S.W.3d 709, 718
(Tex.App.-Corpus Christi 2002, pet. ref’d). The State did not produce any evidence to demonstrate exigencies that justified an investigative detention. See Thirty Thousand Six Hundred Sixty Dollars, 136 S.W.3d at 401. Once the reason for the stop is satisfied, the stop cannot permit a “fishing expedition” for unrelated criminal activity Id.

The original reason Officer Galvan stopped the truck from backing out of the parking lot was a disturbance call, and Officer Galvan proceeded to detain Martin after he noticed characteristics that suggested Martin was intoxicated. However, Officer Green immediately searched the truck when he arrived, which was beyond the reason for the stop. Officer Green’s personal knowledge and experience did not reasonably justify the search of Martin’s truck, as required by law. See O’Hara, 27 S.W.3d at 551.

III. CONCLUSION
The State did not conduct a lawful search of Martin’s truck as required by Chapter 59 of the Texas Code of Criminal Procedure for a proper seizure. See Tex. Code Crim. Proc. Ann. art. 59.03 (Vernon Supp. 2007). Additionally, the State did not satisfy any of the exceptions to the warrant requirement for a legal seizure. Martin’s first issue is sustained. Because Martin’s second and third issues would not further affect the outcome of this appeal, we do not need to address them. Tex. R. App. P. 47.1. We reverse the trial court’s judgment and render judgement returning the $822.41 and truck to Martin.

Dissenting Memorandum Opinion by Justice Vela

DISSENTING MEMORANDUM OPINION
Because I do not believe that the warrantless search of Martin’s automobile violated the Fourth Amendment, I respectfully dissent.

I. Background
On February 25, 2004, Officer Armando Galvan,[1] a Bay City police officer, was dispatched to an apartment complex at 3006 1st Street, No. 12 in response to a disturbance call. The dispatcher named Martin as the suspect and gave a description of Martin’s vehicle as a silver Dodge pickup. Officer Galvan arrived at the complex just as Martin was backing the pickup from its parking spot. Officer Galvan parked his patrol car behind Martin, blocking Martin’s path. Upon approaching the vehicle, Galvan perceived that Martin spoke with slurred speech and saw that Martin’s right hand was either near the pickup’s center console or coming from it. Officer Galvan could not see what was in the console, but testified that it was a “pretty big armrest area” with a fold-down lid that lifted from the front and opened toward the rear of the pickup.

Officer Galvan asked Martin to step out of his pickup. As he did so, Officer Galvan saw that Martin’s right hand was in the console. When Martin was out of the pickup, Officer Galvan saw that the console was closed. He witnessed that Martin was unsteady on his feet and incomprehensible due to his slurred speech. He further noticed that Martin appeared extremely nervous, and he was shaking to the point that he had to hold onto the pickup to maintain his balance.

Officer Galvan concluded that Martin may have been under the influence of some substance. Accordingly, he detained Martin in the back of his patrol car. Officer Galvan testified that he placed Martin in the cruiser for Martin’s safety and that he was concerned that Martin might fall. Officer Galvan further stated that there was no longer a threat once Martin was out of his pickup. He determined that, because of Martin’s demeanor, it was necessary to discover what was in the pickup’s console.

Officer Oliver Green[2] arrived at the scene when Martin was already inside Officer Galvan’s patrol car. Officer Green testified that Officer Galvan told him that it appeared that Martin “was hiding something in the center console.” Officer Green also testified that as a former detention officer for the Matagorda County Sheriff’s Department, he had previously observed Martin while Martin was in custody at the jail. On the date in question, Officer Green witnessed that Martin was extremely jittery, unable to walk, speaking very fast, and significantly slurring his speech. Based on Martin’s change in condition between the time Officer Green observed him in jail and on the date in question, Officer Green concluded that Martin was intoxicated. He believed that Martin’s condition was induced by narcotics. Without either a warrant or consent, Officer Green opened the pickup’s console and found a plastic bag containing a substance that he field tested to be cocaine. At that point, he arrested Martin. After Martin’s arrest, police seized Martin’s pickup, along with $822.41.

II. The Investigatory Detention
An officer conducts a lawful, temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005); Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him or her to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. A reasonable-suspicion determination is made by considering the totality of the circumstances. Id.; Ramos Meza v. State, 736 S.W.2d 221, 223
(Tex.App.-Corpus Christi 1987, no pet.) (overruled on other gounds).

When evaluating the totality of the circumstances, we use a bifurcated standard of review. Ford, 158 S.W.3d at 493. We give almost total deference to the trial court’s determination of historical facts and review de novo the trial court’s application of law to facts not turning on credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 88-89
(Tex.Crim.App. 1997). The factual basis for stopping a vehicle need not arise from the officer’s personal observation, but may be supplied by information gained from another person. Adams v. Williams, 407 U.S. 143, 147 (1972); Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App. 2005).

Here, Officer Galvan received the following information from the dispatcher: (1) a report of an individual involved in a disturbance; (2) the individual’s name; (3) a description of the individual’s vehicle; and (4) the address of the disturbance. These are specific, articulable facts from which Officer Galvan could reasonably conclude that Martin “has engaged or is (or soon will be) engaging in criminal activity.” Garcia, 43 S.W.3d at 530; see also State v. Fudge, 42 S.W.3d 226, 231-232
(Tex.App.-Austin 2001, no pet.) (upholding detention based solely on cab driver’s unsolicited, in-person report to officer about erratic driving); Glover v. State, 870 S.W.2d 198, 199-200 (Tex.App.-Fort Worth 1994, pet. ref’d) (upholding stop based on general description of possibly intoxicated driver from anonymous EMS technician).

Officer Galvan’s testimony corroborated the information that the informant provided to the police dispatcher. Thus, the trial judge was able to assess the informant’s credibility. Even though the facts show that Martin was not engaged in any disturbance when Officer Galvan stopped Martin’s pickup, the inquiry is not whether Martin actually engaged in a disturbance, but whether Officer Galvan had specific, articulable facts to reasonably conclude that Martin actually is, has been, or soon will be engaged in criminal activity. Therefore, I conclude that the trial court did not abuse its discretion by impliedly determining that the circumstances, taken together, gave Officer Galvan reasonable suspicion to stop Martin’s pickup and conduct an investigative detention. See Mann v. State, 525 S.W.2d 174, 176 (Tex.Crim.App. 1975) (concluding that officers, upon receiving an anonymous call, were justified in initiating an investigation by proceeding to hunt for a car and occupants fitting the description given over the phone); Mabry v. State, 492 S.W.2d 951, 953 (Tex.Crim.App. 1973) (concluding that police had probable cause to stop and arrest a suspect matching a broadcast about two black suspects in a green 1965 Chevrolet with Florida plates) Vannatta v. State, 773 S.W.2d 771, 773 (Tex.App.-Corpus Christi 1989, pet. ref’d) (concluding that an officer who received a radio dispatch about an unnamed person driving a blue and silver Bronco, displaying the license plate ZY709, had reasonable suspicion to stop defendant who was driving a silver and blue Chevy Silverdo pickup); Clifton v. State, 755 S.W.2d 556, 558 (Tex.App.-Fort Worth 1988, no writ) (stating that police officer had probable cause to stop and arrest defendant based on information by police dispatcher that vehicle believed to be stolen might be found at specific address from which police officer had observed defendant driving away).

III. The Warrantless Search
I also believe that Officer Green acquired probable cause to search the pickup’s center console. A warrantless search of an automobile is reasonable under the Fourth Amendment if law-enforcement officials have probable cause to believe that the vehicle contains contraband. Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App. 2007) (citing Maryland v. Dyson, 527 U.S. 465, 466 (1999)). The justifications for this automobile exception are that vehicles are inherently mobile, and the expectation of privacy with respect to an automobile is relatively low. Wiede, 214 S.W.3d at 24. Furthermore, the justification to conduct a warrantless search does not vanish once the vehicle is immobilized. See Michigan v. Thomas, 458 U.S. 259, 261 (1982); State v. Guzman, 959 S.W.2d 631, 634
n. 3 (Tex.Crim.App. 1998). Accordingly, a law-enforcement officer may search a vehicle on the basis of probable cause to believe that it contains contraband, although exigent circumstances do not exist to justify a warrantless search. Thomas, 458 U.S. at 261-262; Dixon v. State, 206 S.W.3d 613, 619 n. 25 (Tex.Crim.App. 2006) (“A finding of probable cause `alone satisfies the automobile exception to the Fourth Amendment warrant requirement.'”) (citation omitted).

The “totality of the circumstances” approach applies to appellate review of probable cause for warrantless searches. Illinois v. Gates, 462 U.S. 213, 238 (1983); Torres v. State, 182 S.W.3d 899, 902
(Tex.Crim.App. 2005). In Wiede, the court of criminal appeals explained probable cause as follows:

Probable cause requires an evaluation of probabilities, and probabilities “are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” The United States Supreme Court has described probable cause as a “fluid concept”; its “substantive content” is derived from “the particular context in which” it is assessed. Probable cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found[.]” Known facts and circumstances include those personally known to law enforcement officers or those derived from a “reasonably trustworthy” source.

Wiede, 214 S.W.3d at 24 (footnote numbers omitted). Furthermore, the Texas Court of Criminal Appeals has stated:

“[W]hen there has been some cooperation between law enforcement agencies or between members of the same agency, the sum of the information known to the cooperating agencies or officers at the time of an arrest or search by any of the officers involved is to be considered in determining whether there was sufficient probable cause therefor.”

Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App. 1982). Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of criminal activity. Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex.Crim.App. 1984), (quoting Gates, 462 U.S. at 243 n. 13).

Here, the sum of the information known to Officers Galvan and Green showed that at the time of the search: (1) Martin was unsteady on his feet and incomprehensible due to slurred speech; (2) he was extremely jittery, unable to walk, and speaking very fast; (3) Martin appeared extremely nervous, and he was shaking to the point that he had to hold onto the pickup to keep his balance; (4) the pickup Martin was driving had a center console which, according to Officer Galvan, was a “pretty big armrest area” with a fold-down lid that lifted from the front and opened toward the rear of the pickup; (5) as Martin got out of the pickup, Officer Galvan saw that Martin’s right hand was in the console: (6) when Martin was out of the pickup, Officer Galvan saw that the console was closed; (7) Officer Galvan could not see what was in the console; and (8) based on Martin’s change in condition between the time Officer Green saw him in jail and on the date in question, Officer Green concluded that Martin was intoxicated.

Martin’s behavior during the investigatory detention would lead a reasonable, prudent police officer to conclude that his demeanor appeared consistent with recent consumption of drugs. Furthermore, when Martin was getting out of the pickup, Officer Galvan saw his right hand in the center console. These facts would lead a reasonable, prudent police officer to believe that Martin may have tried to hide an illegal substance in the console. Thus, even though Martin was not arrested for the disturbance, the investigation refocused on whether he had violated another law. I find that these facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime would be found in the pickup’s center console. Based upon the totality of the circumstances, I believe Officer Green had probable cause to believe that the console contained contraband. Therefore, the warrantless search thereof was reasonable under the Fourth Amendment. See Wiede, 214 S.W.3d at 24. Based on the totality of the circumstances in this case, I would hold that the trial court did not abuse its discretion in overruling Martin’s motion to suppress. I would overrule issue one.

[1] Officer Galvan is assigned to the patrol division, and he has been a police officer for nine years. In that time he has come into contact with several people who have been intoxicated by alcohol or other substances.
[2] Officer Green, also a patrol officer, has been an officer for approximately seven years, and he formerly worked for the sheriff’s office. Officer Green has similarly dealt with many intoxicated people.