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FILED IN COURT OF APPEALS
No. 05-11-0~334-CR
IN THE COURT OF APPEALS
NOV 0 9 zo1fOR THE FIFTH DISTRICT OF TEXAS AT DALLAS
LISA MATZ C I.E R K, 5lllJliSI~~"l==========================================
THE STATE OF TEXAS, RECEIVED IN COURT Of APPEALS, 5th DIST.
v. NOV 0 8 20"
KENNETH CASHION, APPELLEE. USA MATZ CLERK, 5th DISTRICT
On the State's appeal from the 195th Judicial District Court of Dallas County, Texas
Granting of Defendant-Appellee's Motion To Suppress Evidence
Cause No. F09-30848-N
APPELLEE'S BRIEF
====================================================
Counsel of Record:
Joshua M. Webber, Attorney At Law Comerica Bank Bldg.
6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248
(214) 526-6777 Ofc. (214) 526-6778 Fax
THE APPELLEE REQUESTS ORAL ARGUMENT.
I. IDENTITY OF PARTIES AND COUNSEL
APPELLANT: THE STATE OF TEXAS
Trial Counsel:
Appellate Counsel:
APPELLEE: KENNETH CASHION
Trial Counsel:
Appellate Counsel:
TRIAL COURT
District Attorney Craig Watkins Assistant District Attorney Danielle Uher
District Attorney Craig Watkins Assistant District Attorney Buford H. Robertson Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, TX 75207
Joshua M. Webber Comerica Bank Bldg. 6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248
Joshua M. Webber Comerica Bank Bldg. 6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248
195TH Judicial District Court of Dallas County, in Drug Court on 5th floor, with the Honorable Andrew J. Kupper, Presiding Judge (by assignment).
Page 2 of 22
II. TABLE OF CONTENTS
I. IDENTITIES OF PARTIES AND COUNSEL .......................................... 2
II. TABLE OF CONTENTS ..•..•...•................................................ 3
III. INDEX OF AUTHORITIES .....•.•...•.....•...................................... 4
IV. STATEMENT OF THE CASE ..•.........•......................................... 5
V. STATEMENT OF FACTS .•...•...•..•........•...............................•.. 6-7
VI. STATEMENT OF THE ISSUES ...•.••.........•....••..•.•................•.....••. 7
VII. SUMMARY OF THE ARGUMENT .••••.•••••.•••..........•..............•..•.••..•. 7
VIII. ARGUMENT:
THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO SUPPRESS EVIDENCE ....•.............................. 8-21
IX. PRAYER. . . . . . . . . • . . . • • . . • . . • • • • . . • . • • • . • . . . . . . . • . . . . . . . . . . . . . . . ...........•. 22
X. CERTIFICATE OF SERVICE •...••••....•.•..•.•...•......................•......• 22
Page 3 of 22
III. INDEX OF AUTHORITIES
Federa~ Cases PAGE
Arizona v. Gant, 129 S.Ct.l710(10-7-08) ....................... ...... 7,17,20,21 Florida v. Wells, 495 U.S. 1 (1990) ....................................... . 11 South Dakota v. Opperman, 428 U.S. 364 (1976) ............................. . 10
State Cases
Autran v. State, 887 S.W.2d 31. ............................................. .
Balentine v. State, 71 S.W.3d 763 (Tex.Cr.App. 2002) ...................... . 10
Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App. 1980) ..................... . 10
Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App. 2000) ...................... . 10
Daniels v. State, 600 S.W.2d 813(Tex.Cr.App.) ............................. . 10
Delgado v. State, 718 S.W.2d 718 (Tex.Cr.App. 1986) ........................ . 11
Evers v. State, 576 S.W.2d 46 (Tex.Cr.App. 1978) .......................... . 11
Garza v. State, 137 S.W.3d 878, (Tex.App.-Hou. [1st Dist.]2004 ........... . 10,11
Gords v. State, 824 S.W.2d 785(Tex.App.-Dal.l992) ............. .............. 11
Gualdin v. State, 683 S.W.2d 411, (Tex.Cr.App.1984) ....................... . 11
Heitman v. State, 815 S.W.2d 681, (Tex.Cr.App.1991) ....................... . 11
Joseph v. State, 3 S.W.3d 627(Tex.App.-Hou. [14th Dist.]l999 ................ 10
Kelley v. State, 677 S.W.2d 34 ............................................ . 11
Knisley v. State, 81 S.W.3d 478, 483(Tex.App.-Dal. 2002 ................... . 10
Meachum v. State, No. 09-10-00077-CR(Tex.C.App.-Beau.) (4-19-11) ............ .
Miller v. State, 736 S.W.2d.643(Tex.Cr.App.l987) ........................... . 21
Moberg v. State, 810 S.W.2d 190, (Tex.Cr.App.1990) ......................... . 11
Ogeda v. State, No. 05-09-0567 (Tex.Cr.App.-Dal.) (6-22-10) ................. . 21
Richards v. State, 150 S.W.3d 762, 771(Tex.App.-Hou. [14th Dist.]2004 ...... . 11
Villareal v. State, 935 S.W.2d 134, 138 (Tex.Cr.App. 1996) .................. . 10
State v. Giles, 867 S.W.2d 105(Tex.App.-El Paso 1983) ..................... . 11
Page 4 of 22
·TO THE HONORABLE COURT OF APPEALS:
The Appellee submits its brief in the above numbered and referenced cause,
wherein the trial court heard the Motion to Suppress Evidence and granted the
Motion to Suppress Evidence. The State has appealed the granting of the Motion to
Suppress Evidence.
IV. STATEMENT OF THE CASE
Appellee Kenneth Cashion was charged with indictment with possession of a
controlled substance with intent to deliver. Appellee filed a motion to suppress
evidence found during the search of his vehicle incident to his arrest based on
ticket warrants. On December 10, 2010, the trial court conducted a hearing on the
Motion To Suppress Evidence. The trial court heard the evidence, reset the case
for research, and ultimately granted the Motion to Suppress and entered an order
granting the motion to suppress evidence. The trial court filed its findings of
fact and conclusions of law. The State then appealed the trial court's order
granting Defendant's Motion to Suppress Evidence.
Page 5 of 22
V. STATEMENT OF FACTS
On July 28, 2009, Appellee Kenneth Cashion was pulled over for failing to stop
at a stop sign. Upon determining that there were two misdemeanor ticket warrants
for Appellee's arrest, the police officer arrested Appellee for the outstanding
misdemeanor ticket warrants, the officer handcuffed Appellee, and put Appellee in
the squad car, then had to "wait a long time.u (R.R.,p.14). The officer then agreed
to release the vehicle to Appellee's son, Tim Lilly, instead of inventorying the
vehicle and impounding the vehicle. The officer had not performed the warrantless
search of the vehicle and had not found anything illegal in the vehicle prior to
Mr. Lilly's arrival. The officer testified at this point (prior to his search of
the vehicle), that there were no furtive gestures, (p.46 and 48); nothing was wrong
with the vehicle (p. 4 7); it was parked on private property and not blocking
anything, nor in a fire zone (p.47); no weapons or contraband in plain view (p.48),
and no marijuana or drug odor (p.48). The officer factually did not conduct the
warrantless search of the vehicle, nor find the narcotics before Appellee's son-Tim
Lilly arrived (p.50). As a result, it was indisputed that the officer did not
find the narcotics until after he agreed to let Mr. Lilly have the car. The officer
agreed to release the vehicle to Mr. Lilly, but decided to do a quick search of the
vehicle incidental to Appellee's arrest, even though this search was warrantless
and non-consensual, and was done without any chance of Appellee reaching for a
weapon or destroying contraband or evidence of the arrestable crime; (p. 59-60); the
search was clearly not looking for evidence of the arrested offense; and the search
was not necessary to safeguard the vehicle or its contents (p.62). The officer
performed this exploratory search for weapons or evidence incidental to Appellee's
arrest even after agreeing to release the vehicle to Mr. Lilly, as shown by his
request and receipt for Mr. Lilly's driver license. (R.R.,p.18,26,46-66,74-88).
The Grand Prairie police department inventory policy was introduced and is
attached to the Court Reporter's Statement of Facts (Reporters Record) of the
Page 6 of 22
Motion to Suppress Evidence. At the Motion to Suppress hearing the State was unable
to introduce any evidence of an actual inventory search being done, such as
inventory sheet, call history, wrecker request, or tow truck driver form. (p.65).
After this subsequent, non-consensual search, the officer found the narcotics
forming this charge. This evidence was challenged by the Appellee's Gant Motion
to Suppress Evidence, which was granted by the trial court after hearing, argument
and consideration. The State has appealed the granting of the Motion to Suppress
Evidence.
VI. STATEMENT OF THE ISSUE
The State's Sole Issue On Appeal:
Whether the trial court erred in granting the Defendant's Gant Motion to
Suppress Evidence found in the vehicle following the officer's search incident to
Defendant's arrest?
VII. SUMMARY OF THE ARGUMENT
The trial court did not err in granting the Motion to Suppress Evidence
because under the Standard of Review and the objective facts, the vehicle search
was clearly incidental to Appellee's arrest. This case is a warrantless search of
his vehicle incidental to Appellee's arrest for 2 tickets and is illegal under
Gant. As the trial court held, this was not a proper inventory search because the
facts showed it was objectively not done pursuant to an inventory search, it was
factually not done to safeguard the vehicle or its contents, and it objectively
violated the Grand Prairie Police Department specific inventory policy.
Consequently, the trial court did not err in granting the Motion to Suppress
Evidence.
Page 7 of 22
VII I . ARGUMENT
THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO SUPPRESS
(A) KEY FACTS:
Mr. Akins, an Officer with the Grand Prairie Police Department, testified at
the Motion to Suppress Evidence hearing that on July 28, 2009, he was parked in his
patrol car, and observed Appellee fail to fully stop at a stop sign, saw him safely
pull into a gas station and then park legally. (RR:8-9). Officer Akins pulled in
behind Appellee's vehicle and activated the patrol car's emergency lights. (RR: 9).
Officer Akins walked up to the Appellee's vehicle and requested Appellee to produce
a driver's license and proof of insurance. (RR:9). Appellee provided his driver's
license, but did not provide the officer proof of insurance. (RR: 9). At this
point, Officer Akins returned to his patrol car and he accessed the dispatch
computer in his patrol car, which revealed that there were 2 outstanding ticket
warrants for Appellee's arrest for fictitious driver license and no insurance.
(RR:lO). During this time, Appellee's son (Tim Lilly) had already arrived and the
officer agreed to release the vehicle to Mr. Lilly, instead of inventory and
towing and impoundment. (RR:p.50, 51, 76). Officer Akins then arrested him for
the ticket warrants. (RR: 10) .
Officer Akins placed Appellee in custody, handcuffed him, and placed him in
the backseat of the patrol car. (RR:ll). Officer Akins then specifically asked
Appellee if he wanted to release the vehicle to his son, to which Appellee clearly
responded "yeah." (RR:l8). Mr. Lilly produced a driver's license and stated he
had insurance, which the officer was not sure if he remembered, but Mr. Lilly
testified he did and the Judge ruled that he agreed and the testimony was credible.
(R.R., p.26,62, 74-88). This was uncontradicted, as Officer Akins admitted Mr.
Lilly had the driver license, but could not remember if he produced the insurance
physically to him, although Mr. Lilly testified that he had the insurance and
license.
Page 8 of 22
The Grand Prairie Police Department vehicle impoundment policy was admitted
into evidence as Defendant's Exhibit "1" at the Motion To Suppress Evidence
hearing. The Grand Prairie vehicle impoundment policy covers vehicles that were
abandoned, junked, inoperable, or seized; none of which occurred prior to the
officer's search of the Defendant's vehicle. Specifically, this Grand Prairie
impounding policy only authorizes officers to impound vehicles under these
circumstances:
I. Police Officers will cause vehicles to be impounded under the following circumstances:
A. The driver of the vehicle is arrested and there is no one available to take control of the vehicle.
1. Prior to releasing a vehicle to a person in lieu of impoundment, the arresting officer will verify the person taking possession of the vehicle is a licensed driver and narrate that the arrested person voluntarily released the vehicle and include the person's identity, address, phone number, and driver license. (5.11.04)
(Defense Exhibit No. 1, at 2-3). This was provided to Officer Akins by Mr.
Lilly.
Further, Section 5.11.04 of the impoundment policy requires officers if they
are doing an inventory search and impoundment to complete the impound slip (not
done here) , document the inventory of personal property (not done here) , and retain
the white copy for Court purposes. (not done here).
(Defense Exhibit, #1, 1-3). In fact, the State was never able to provide any
document showing the inventory slip, the inventory for.m, the tow truck sign for.m
or any document showing an inventory was done. The trial court granted the motion
to suppress evidence and issued findings of fact and conclusions of law explaining
its decision. (CR: 14-15). The trial court found each witness testified
truthfully. (CR:14). The trial court concluded that the search of Appellee's
vehicle was an illegal search incident to arrest on the tickets, and not a proper
inventory search.
Page 9 of 22
(B) . STANDARD OF REVIEW
This Court reviews a trial court's ruling on a motion to suppress evidence for
abuse of discretion, giving deference to the trial court's determination of key
facts, but reviewing the application of the law de novo. Ba~entine v. State, 71
S. W.3d 763, 768(Tex.Cr.App.2002); Carmouche v. State, 10 S.W.3d 323,
327(Tex.Cr.App.2000). If the Motion to Suppress Evidence issue involves
credibility of a witness, making the determination of that witness's demeanor
important, this Court must defer to the trial court's determination of the facts.
Joseph v. State, 3 S.W.3d 627, 633(Tex.App.-Hou. [14~ Dist.]1999). Reviewing a
trial court's ruling on a motion to suppress evidence, this court must review the
record and all reasonable inferences in the light most favorable to the ruling, and
sustain the ruling if it is reasonably supported by the record and is correct under
any theory of law applicable to the case. Vi~~area~ v. State, 935 S.W.2d 134,
138(Tex.Cr.App. 1996); Knis~ev v. State, 81 S.W.3d 478, 483(Tex.App.-Da~~as 2002,
pet re£'d).
(C) . THE SEARCH WAS NOT PURSUANT TO PROPER INVENTORY SEARCH UNDER THESE RULES
A police officer's inventory of the contents of an automobile is only
permissible if the warrantless search is pursuant to a lawful arrest and
impoundment of the vehicle and the inventory policy is followed. Danie~s v. State,
600 S.W.2d 813(Tex.Cr.App.)., South Dakota v. Opper.man, 428 U.S. 364, (1976);
Benavides v. State, 600 S.W.2d 809, (Tex.Cr.App.1980); Garza v. State, 137 S.W.3d
878(Tex.App.-Hous.[1st Dist.}2004). The State bears this burden of proving that
an impoundment of the vehicle is lawful and can only satisfy this burden by
demonstrating that:
(1) the driver was arrested;
(2) no alternatives other than impoundment were available to ensure the
Page 10 of 22
-vehicle's protection; and
(3) the impounding agency had an inventory policy, and (4) the inventory
policy was followed. De2gado v. State, 718 S.W.2d 718, (Tex.Cr.App.1986). The
purpose of allowing an inventory search therefore is:
(1) to protect the owner's property while the vehicle is in custody;
(2) to protect the police against claims over lost or stolen property; and
(3) protect the police from potential danger. Ke22ev v. State, 677 S. W. 2d 34;
Garza 137 S.W.3d 882. The inventory search must therefore be conducted pursuant
to a reasonable standardized police procedure and cannot be used for general or
exploratory evidence searches. Garza, 137 S.W.3d 882. As a result, the inventory
search must produce an inventory of the vehicle's contents and must be done to
safeguard property, and must not be just a "ruse for a general rummaging in order
to discover incriminating evidence." F2orida v. We22s, 495 U.S. 1, 4 (1990);
Richards v. State, 150 S. W. 3d 762, 771 (Tex.App. -Hou. [14th Dist. ]2004; State v.
Gi2es, 867 S.W.2d 105(Tex.App.-E2 Paso,1993).
The State clearly bears the burden of establishing that the police conducted
a lawful inventory search. See, Gua2din v. State, 683 S.W.2d 411,
(Tex.Cr.App.1984); De2gado v. State, 718 S.W.2d 718(Tex.Cr.App.1986); Heitman v.
State, 815 S.W.2d 681, (Tex.Cr.App.1991); and Evers v. State, 576 S.W.2d 46
(Tex.Cr.App.1978). The State can only satisfy this burden by demonstrating that:
(1) an inventory policy exists and (2) the officers followed the policy, and
(3) no reasonable alternative to towing existed. Moberg v. State, 810 S. W. 2d 190,
195(Tex.Cr.App.1991), and other cases cited in Index. As a result, the State must
refute any claims that show a reasonable alternative to impoundment existed. Gords
v. State, 824 S.W.2d 785.
As the aforementioned case law, the elicited facts and testimony and the Grand
Page 11 of 22
.Prairie inventory policy show, the above search of Appellee's vehicle was
warrantless, non-consensual and illegal. The Judge, as the decider of facts, made
the decision that the vehicle search was not a proper inventory search. The
Judge's decision, based on the objective evidence and the elicited facts, including
the testimony of the officer and the defense witness (Mr. Lilly) (both held to be
credible), and the unfollowed Grand Prairie police inventory policy, all establish
factual and legal support to sustain the trial court's ruling granting the motion
to suppress evidence.
The facts, the record and the law, clearly show that this search of the
Appellee's vehicle was not done as a proper inventory search. Judge Kupper clearly
applied the applicable law and objective standard to the facts to make a correct
decision. This record does not show an abuse of discretion.
We had an arresting officer that searched the vehicle incidental to Appellee's
arrest for ticket warrants. The Judge used the correct standard in this case. The
State, on the other hand, is the one who elicited and argued that the officer's
state of mind and intent controlled at the Motion to Suppress Evidence, but now
argues the objective nature controls during the appeal. (RR, p.12,57,61,62). Even
though the objective facts show the vehicle was being released to Mr. Lilly without
impounding, and thus no inventory, (before the officer's subsequent illegal search
that elicited the dope), the State at the Motion to Suppress hearing focused on the
officer's subjective state of mind multiple times. (R.R.,p.12,57,61,62). Now on
appeal, the State tries to flip it and argue the Judge cannot consider the evidence
it elicited. The evidence however clearly shows it was objectively not an
inventory search.
The fact of the matter is that the officer did not search the vehicle as an
inventory search. The officer did a non-consensual search incident to Appellee's
arrest on tickets to discover any general evidence of drugs, contraband, or
weapons. This was objectively not an inventory search. This was factually not an
Page 12 of 22
. inventory search. This search was done as search incidental for evidence or
weapons, not an inventory search for the following reasons:
(1). It was not a subjective question as to whether the officer might impound
and thus necessarily inventory the vehicle and its contents. The fact is the
officer objectively released, agreed to release and did release the vehicle to Mr.
Lilly. Mr. Lilly's testimony is uncontradicted. (R.R.,p.74-88). Mr. Lilly had the
driver license, was asked for the driver license and produced the driver license
required to allow him to take possession of the vehicle. Mr. Lilly testified he
had insurance. The Officer Akins could only respond (when all the dust settled)
that he "could not remember" if Mr. Lilly had insurance. (RR.p.26). Even though
511.04 never requires insurance when a vehicle is to be released to a licensed
driver, Mr. Lilly testified he had insurance. (R.R.,p.74-88). The Judge
acknowledged that all witnesses had credibility.
However, the State pretends they did not elicit the subjective state of mind
testimony, then argues against it on appeal. Then though Mr. Lilly testified that
he was insured, the State pretends he did not. The State even asks the officer the
fake question: ... "the son showed up and says "I' 11 take the car and commit an
offense in your presence, okay officer?" The State creates a fake question and
pretends the answer is different than what the witness says. ( RR, p . 2 6 , 6 3 , 7 4- 8 8 ) ;
(2). The officer did release the vehicle to Mr. Lilly, acted as if he was
releasing the vehicle to Mr. Lilly and did release the vehicle to Mr. Lilly. Why
else would the officer request and take Mr. Lilly's driver license? The factual
evidence showed the officer did things that objectively (not just subjectively)
establish that he was releasing and did release the vehicle to Mr. Lilly and thus
did not search the vehicle as an inventory policy to safeguard property antecedent
to towing and impounding said vehicle.
Specifically, the officer ultimately searched the vehicle incidental to
Appellee's arrest (and not as inventory search to protect the vehicle or its
Page 13 of 22
. contents prior to impoundment) , which the objective facts reveal for several
reasons. First, the officer clearly did not search the vehicle as an inventory
search to protect property before towing it because he agreed to release the
vehicle to Mr. Lilly. That is why he factually asked for Mr. Lilly's driver
license. (R.R.,p.l8,26,45-61). There is no other reason to ask for his driver
license. That is why he ran the driver license. The officer clearly did not do an
inventory search. As the record shows, he did not do an inventory search because
he did not search to inventory the vehicle contents, did not impound the vehicle
before searching and did not even attempt the process of towing or impounding the
vehicle before searching, and never showed proof of ever even calling a wrecker or
a single document showing he even called for a wrecker or ever filled out an
inventory sheet. Not only did the officer have no intent to impound and inventory
the vehicle, but he objectively did not attempt to impound the vehicle. For the
State to claim the subsequent search of the vehicle was due to inventory and search
in order to safeguard property (even though it was going to be released to Mr.
Lilly and not impounded) is not only silly, but objectively false.
In fact, the claim that the officer was going to impound and thus ultimately
inventory the vehicle is not only subjectively untrue, but objectively false under
these facts. The officer actually agreed to release it to Mr. Lilly; he did begin
the process of release, the vehicle search was done prior to releasing the vehicle
to Mr. Lilly, (not the wrecker); and the subsequent search was done before the
wrecker was even called; and even at the Motion to Suppress Evidence one year
later, the officer still could not produce the inventory list or inventory sheet
or any document he even ever called the wrecker;
(3) . The purpose of the inventory search is to safeguard property that is to
be towed and impounded is again totally absent from our facts. Why search a
vehicle to safeguard property from the wrecker or protect contents of a vehicle
that was not going to be towed when searched? Why inventory a vehicle that is being
Page 14 of 22
released to a third party civilian? Was the officer subjectively concerned that
someone might break into and steal contents of the vehicle within 5 minutes before
Appellee got removed from it and Mr. Lilly took position of it? Again, the State
is asking to overturn a ruling based on factual pretending and subjective fantasy.
Again, the objective facts show no objective inventory search because of no
impounding because the vehicle was being released to Mr. Lilly. The impoundment
act, inventory sheet or even phone call to the wrecker objectively did not occur
prior to the vehicle search. However, the act of releasing the car by personal
appearance of Mr. Lilly and driver license production by Mr. Lilly did occur prior
to the subsequent inventory search.
There was not any document introduced at the Motion to Suppress Evidence
hearing that the wrecker was ever called before the vehicle search. The vehicle
was objective1y not being impounded. Thus, the State had no evidence that the
wrecker was called. No towing was implemented before the vehicle search. The
vehicle was objective1y being released to Mr. Lilly. As a result, there was no
objective fact showing any concern that someone might break into or steal the
vehicle (or it's contents) before Mr. Lilly took possession of it. Remember, Mr.
Lilly had the driver license, was physically on the scene, and the officer even
asked Appellee if he could release the vehicle to him.
This was not a routine care taking, administrative search to protect property
of a vehicle while in police custody from theft (or claim of theft), especially
when the vehicle is not going into police custody after all. How can the police
be concerned of theft of contents or a vehicle itself while in police custody if
it's not going into police custody? How are you concerned of safeguarding property
in police custody that is objective1y being released to the arrestee's son, a
licensed driver? Was the officer subjectively concerned someone might break into
the car during the brief time Appellee is handcuffed and the 5 minutes it will take
for Mr. Lilly to assume custody of the vehicle? Since Appellee agreed to release
Page 15 of 22
. the car to Mr. Lilly, did the officer think Mr. Lilly might steal something? This
care taking claim and safeguarding responsibility is not objective under our facts.
Instead, the State's subjective argument is factually false and ultimately silly;
(4) There also was objectively no impoundment prior to the vehicle search that
elicited the dope and thus no inventory search because the vehicle was legally
parked, not abandoned, not junked, not inoperative, no impediment to traffic, no
danger or hazzard to traffic, nothing wrong with the vehicle, nothing defective or
illegal on vehicle or seen in vehicle, and not stolen. There was no prior evidence
the vehicle was ever used in a crime, no risk of vandalism to the vehicle, and no
link between the speeding ticket warrant and the subsequent search of the vehicle
itself. There was simply no probable cause to the car, no contraband in plain
view, no warrant, and no consent. As a result, there was no evidentiary indication
that the contents of the vehicle or vehicle itself needed protection from any
thief, damages, or vandalizer between Appellee's arrest and Appellee's chosen
person to take control of the vehicle (Mr. Lilly) who would have taken possession
of the vehicle within minutes. (R.R., pp.l4-63). In fact, the evidence shows the
vehicle and its contents were safely being released to Mr. Lilly and there was no
safeguarding or property protection issue concerning Mr. Lilly, nor during the time
it took to get the vehicle to Mr. Lilly. As a result, there was no safeguarding
of property issue;
(5) There was no need to do an inventory search because, as the law requires,
there was a reasonable alternative to impoundment. The reasonable alternative is
clearly written into the Grand Prairie police policy. The Grand Prairie policy
only authorizes an inventory search and impoundment by towing if there is no
reasonable alternative to impoundment. The applicable case law cited therefore
indisputably authorizes inventory searching only when there is no alternative to
towing and impounding. Here, there was legally, factually, and objectively a
reasonable alternative to inventory impoundment because Mr. Lilly was already on
Page 16 of 22
the scene, with his driver's license. (R.R., p.l8,51). Although Officer Akins
could not remember if Mr. Lilly had insurance (R.R. ,p.26), Mr. Lilly clearly
testified he had insurance and the Judge stated in his findings and conclusions he
believed the witness had credibility. (R.R. ,p. 74-88). As a result, there was
legally, factually and objectively a reasonable alternative to inventory and
impoundment of the vehicle. The adult son was licensed, agreed to safeguard and
was available to safeguard, physically present and able to protect Appellee's
vehicle and the vehicle contents;
(6) Finally, the facts established that searching via inventory and
impoundment under the facts actually violated the Grand Prairie police department
inventory policy, as shown by Defense Exhibit "1", which is the policy itself. It
does not allow these searches unless the vehicle is subject to proper inventory
search and impoundment and towing. The inventory search here is not only wrong
legally, but factually by the Grand Prairie police department policy itself because
the police cannot inventory search and tow/impound unless there is no one available
to take control of vehicle. (D.E.#l,S-ll-04). Further, the law requires that the
person "take control of vehicle" and that person be "a licensed driver." As a
result, the person-licensee taking control of the vehicle could drive the vehicle
or merely have it towed from the scene. Either way, Mr. Lilly fits either
description. The vehicle cannot be impounded with a licensed third party under
these facts because it violates the Grand Prairie police inventory policy, as well
as the aforementioned cited applicable controlling authority.
D. THE SEARCH OF APPELLEE'S VEHICLE WAS SEARCH INCIDENT TO ARREST AND ILLEGAL UNDER ARIZONA V. GANT
Under the actual facts and applicable law, the search of Appellee's vehicle
was an illegal search incident to his arrest. Arizona v. Gant, 129 S.Ct.1710 (10-
7-08). Here, the Appellee was clearly arrested based on arrest warrants for Irving
tickets. (R.R.,p.ll). The key facts from the Motion to Suppress Evidence record
Page 17 of 22
.clearly show the following:
(1) Appellee was arrested on 2 ticket warrants;
(2) Appellee's son, Mr. Lilly, a licensed driver immediately arrives;
(3) Appellee handcuffed and put into squad car;
(4) the officer waited "a long time" for back up;
(5) Officer asks Appellee if he wants vehicle released to Mr. Lilly, who
agrees;
(6) Officer admits Mr. Lilly agreed to take the vehicle and had driver license
but does not remember if Mr. Lilly had insurance or not, although Mr. Lilly
indisputably and without contradiction states that he had insurance; (R.R.,p.74-
8 8) •
(7) Prior to search, the officer agreed to release the vehicle to Mr. Lilly;
saw no furtives before or after stopping, nothing wrong with vehicle, parked
legally on private property, not in fire zone, not blocking any vehicle, no plain
view weapons or contraband, no marijuana odor, and the officer did not find the
drugs until well after Mr. Lilly had arrived and agreed to accept the vehicle when
offered to by Officer Akins. The officer also violated his Grand Prairie inventory
and impoundment policy by claiming an inventory search and searching the vehicle
(without warrant or consent) because the vehicle was not abandoned or inoperable,
and there was a licensed driver to take control of vehicle. Even though Appellee
was arrested for ticket warrants, handcuffed and placed in squad car and the
officer agreed to release the car (and manifested this agreement by taking Mr.
Lilly's driver license), the officer then did a warrantless search of the vehicle
prior to letting Mr. Lilly have it-probably to make sure no guns, drugs, or
contraband was in it before releasing it to Mr. Lilly. Finally, the officer had
no evidence or a single document showing he had done an inventory sheet, called for
a wrecker, or even had a wrecker sign in sheet prior to searching the vehicle.
Page 18 of 22
(R.R.,pp.12-14,18-19,26,45-66,74-88).
Here the factual evidence and applicable law is clear: the officer searched
Appellee's vehicle incident to his arrest on ticket warrants before he let Mr.
Lilly have the vehicle. This fact is clear from the record. When the officer
searched Appellee's vehicle he was searching incidental to arrest because:
(1) that is what the objective facts show;
(2) that is what the officer stated;
(3) that is what the officer did. It is clear from the facts adduced from the
record that when the officer's searched Appellee's vehicle, he was not towing, or
in the process of towing, or even calling for a tow truck or wrecker. In fact,
when the officer searched the vehicle, he had already agreed to release the vehicle
to Mr. Lilly. He was already in the process of releasing the vehicle to Mr. Lilly.
In fact, he had already asked for Mr. Lilly's driver license, instead of calling
a wrecker. He had already taken and verified Mr. Lilly's driver license, instead
of calling for a tow truck. It is not a question of state of mind. It is a
statement of fact. It is an objective fact. He was releasing the vehicle, he was
not impounding it. He was releasing the vehicle, he was not calling for a wrecker.
He wanted Mr. Lilly's driver license to verify it, not as a condition to impound
or tow the vehicle. The Judge saw these objective facts and held the officer to
a standard of objective facts and his decision is supported by the record. It was
not an abuse of discretion.
The State argued at the hearing multiple times about subjective intent
(R.R.,p.12,57,61,62), and now falsely claims the Judge employed the wrong
subjective standard. The facts, however, show that the Judge applied the correct
standard, analyzed the officer's actions (not just intent), along with the
objective facts, Mr. Lilly's credible testimony, and objectively concluded the
search was done incidental to Appellee's arrest, not as inventory search. This is
especially since the officer violated basic Grand Prairie inventory rules.
Page 19 of 22
I believe the officer did a fake inventory search prior to releasing the
vehicle to Mr. Lilly. He did this not to safeguard the vehicle or its property
from Mr. Lilly, but to confirm there was no drugs or contraband before releasing
the vehicle to Mr. Lilly. There is no other way to explain why he would even ask
for Mr. Lilly's driver license. There is no other way to explain why he would be
unable to produce his inventory sheet or wrecker call-in/sign-in form at the later
Motion to Suppress Evidence.
The facts are clear this is a search incidental to Appellee's arrest over
ticket warrants. Under Arizona v. Gant, this is a clearly illegal search. It is
a search incident to Appellee's ticket arrest. It is illegal under Arizona v.
Gant, 129 S.Ct.1710(10-7-08). The State actually pretends Gant does not exist.
The State does not even acknowledge Gant exists. Shockingly, the State does not
even cite Gant once.
following:
Here Gant controls. The analytical construct shows the
In Gant, the Supreme Court recognized that officers cannot search a
defendant's vehicle incidental to his arrest unless there was reasonable suspicion
or probable cause that evidence relevant to the arrestable offense would be
located, or it was possible the Defendant could reach into the vehicle and destroy
evidence or obtain a weapon. This evidentiary preservation or weapon retention
rationale simply does not fit our facts.
Specifically, the following is true:
(1) At the time of the warrantless search, the officer had arrested Appellee
for tickets, but agreed to release the car to Mr. Lilly (as shown by obtaining Mr.
Lilly's driver license and not filling out inventory sheet);
(2) The officer then searched the vehicle incident to Appellee's arrest;
(3) The officer's search objectively had absolutely nothing to do with
obtaining evidence of the underlying ticket arrest;
Page 20 of 22
(4) The search was done while Appellee was handcuffed, double-locked and
placed in the squad car;
(5) There was zero chance of Appellee reaching into his vehicle and obtaining
a weapon or destroying contraband or any illegal. There was no indicia of a weapon
or contraband or probable cause to any evidence of the arrested offense at the time
of the search. The record shows there was simply no factual or objective reason
to justify this search of Appellee's vehicle. Again the Judge's decision is based
on the objective facts, adduced at the Motion to Suppress Evidence. Under these
objective facts and the objective evidence, the subsequent vehicle search was
patently and plainly objectively illegal under Gant. As a result, the record shows
the search was an illegal search incidental to Appellee's arrest under Gant, the
record shows the decision was not an abuse of discretion, and the trial court's
decision to grant the Motion to Suppress Evidence was supported by the record.
Arizona v. Gant, 129 S.Ct.1710(10-7-08); Ogeda v. State, No. 05-09-0567(Tex.App.
Da~, 6-22-10).
E. THE ARREST VIOLATED MILLER V. STATE
The law under Mi~~er v. State, 736 S.W.2d 643, (Tex.Cr.App.1987) is very
clear. When the State legitimizes a search based upon warrant for arrest, then the
State must produce the arrest warrant and warrant affidavit (complaint or citation)
for inspection of the trial Court. Here the Appellee was arrested based on a
ticket arrest warrant, which ultimately authorized the incidental search of
Appellee's vehicle (R.R.,p.11-12). However, the State failed to produce a copy of
the arrest warrant affidavit in Court that actually authorized Appellee's arrest.
As a result, the Mi~~er rule was violated and the arrest should be characterized
as a warrantless arrest. Consequently, the search of the vehicle is illegal under
Mi~~er v. State, (R.R. ,p.11-12, 19-20, 31-44).
Page 21 of 22
IX. PRAYER
The Appellee prays that this Honorable Court will uphold the trial court's
order granting Appellee's Motion to Suppress Evidence .
. Weob r, Attorney for Appellee Comer· a Bank Building 6510 rams Rd., Ste. 260 Dallas, Texas 75231-7248 Bar Card No. 00788635 Office: (214) 526-6777 Fax: (214) 526-6778
X. CERTIFICATE OF SERVICE
I, Joshua M. Webber, attorney for the Appellee herein, state that I have sent a true and correct copy of the attached and forego· g Appellee's Brief to opposing counsel, Buford H. Robertson Jr., Assistant Distr· t Attor ey, at 133 N. ~verfront Blvd~ L~9, Dallas, TX 75207-4399, by US ul M , on this L_ day of ':f}oil€~(, 2011.
ua M. Webber, orney at Law
Page 22 of 22