JONATHAN EUGENE REDMOND v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

JONATHAN EUGENE REDMOND, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–09–01461–CR

Decided: March 30, 2011

Before Justices Morris, Francis, and Murphy

OPINION

Opinion By Justice Morris

The trial court in this case denied Jonathan Eugene Redmond's motion to suppress evidence.   Then the court accepted his plea of guilty and placed him on deferred-adjudication probation for nine months, with a $200 fine, for the offense of possession of marijuana.   Appellant now complains the trial court erred in failing to grant his motion to suppress.   We affirm the trial court's judgment.

Factual Background

At approximately 2:00 a.m., a police officer with the canine unit of the McKinney Police Department noticed appellant's car legally parked with its lights on in the public parking lot of a business area.   The officer stated that, although she patrolled the area regularly, she had never seen a car parked there at that hour before, so it aroused her suspicions.   In addition, the weather was foggy, and in the officer's experience, burglaries were more common in foggy weather.   When she approached appellant in the car, he told her he was trying to get home from the House of Blues.   She noticed that he appeared intoxicated, so she asked a back-up officer to conduct field sobriety tests on appellant.   After the tests revealed that appellant was intoxicated, he was arrested for public intoxication.   At that point, the officer chose to have appellant's car impounded to protect it and the McKinney Police Department for any liability for damage that might occur if the abandoned car were burglarized or vandalized while appellant was in jail.   The officer commented, “ ․ I would not have felt comfortable leaving anyone's vehicle that I had any responsibility in dealing with in a parking lot after 2:00 a.m., a very nice car that can be full of lots of valuables, to give anybody the opportunity behind me to come and break into that vehicle.”   She said she did not have any other alternative other than impoundment to ensure that the car would be safe.   During the inventory search that preceded the impoundment, the two officers discovered marijuana in a CD case inside appellant's car.

The McKinney police department has a policy regarding impoundment.   It states, in relevant part,

It is the policy of the McKinney Police Department to impound vehicles for the security of property, or safety of the public.   Vehicles may be impounded:  if involved in a traffic accident and the vehicle impairs or hinders a pubic passageway, for the security of property, when the operator is arrested, when its [sic] evidence of a crime its [sic] recovered stolen property or is considered abandoned property.

The policy goes on to state that if an operator of a motor vehicle is arrested and the vehicle is not impounded, “a Release and Hold Harmless Agreement form, MKP 130, will be completed and signed by the operator and owner.”   The officer stated that the purpose of the policy is to protect “the driver of the vehicle, the McKinney Police Department, and the tow company.”

Discussion

In his sole issue, appellant complains the trial court erred in denying his motion to suppress because the marijuana was seized as the result of an unlawful impoundment of his car.   He particularly contends the impoundment was unlawful because simply leaving the car where it was parked constituted a reasonable alternative to impoundment.   We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence.   We give total deference to the trial court's determination of historical facts;  we review de novo the trial court's application of the law to those facts.   See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   When, as here, a trial judge does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court's ruling.  Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App.2000).   Under the federal and state constitutions, an inventory search is permissible if it is conducted pursuant to a lawful impoundment.  South Dakota v. Opperman, 428 U.S. 364, 375–76 (1976);  Benavides v. State, 600 S.W.2d 809, 810 (Tex.Crim.App. [Panel Op.] 1980).   An inventory search is valid when a vehicle is impounded by police and its contents are inventoried using a standardized procedure for the purposes of protecting (1) the owner's property while it remains in police custody, (2) the police against claims or disputes over lost or stolen property, and (3) the police or the public from potential danger.  Opperman, 428 U.S. at 369.   The State bears the burden of proving that an impoundment is lawful.   It may satisfy its burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment were available to ensure the vehicle's protection, (3) the impounding agency had an inventory policy, and (4) the policy was followed.   Garza v. State, 137 S.W.3d 878, 882 (Tex.App.—Houston [1st Dist.] 2004, pet. ref'd).

We note that peace officers need not independently investigate possible alternatives to impoundment absent objectively demonstrable evidence that alternatives do, in fact, exist.   See Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.—Dallas 1992, pet. ref'd).   When impoundment follows custodial arrest, appellate courts have considered several factors in determining the reasonableness of the impoundment, including:  (1) the availability of someone at the scene of the arrest to whom the police could have given possession of the vehicle, (2) whether the vehicle was impeding the flow of traffic or was a danger to public safety, (3) whether the vehicle was locked, (4) whether the detention of the arrestee would likely be of such duration to require the police to take protective measures, (5) whether there was some reasonable connection between the arrest and the vehicle, and (6) whether the vehicle was used in the commission of a crime.   See id. at 179–80.   Here, the arresting officer chose to impound appellant's car after finding him alone and intoxicated in his parked car at 2:00 in the morning.   The evidence in the record does not show how long the officer anticipated appellant would remain in custody, but the offense of public intoxication is a Class C misdemeanor.   See Tex. Penal Code Ann. §§ 12.23 & 49.02(c) (West 2003).   Also, there was no evidence showing that the area in which the car was parked was especially vulnerable to crimes against motor vehicles.   But the officer did testify that the foggy weather that night made burglaries more likely, and no evidence showed appellant's car was locked or equipped with a security alarm.   See Gords v. State, 824 S.W.2d 785, 788 (Tex.App.—Dallas 1992, pet. ref'd).   And there was no evidence showing that appellant requested to leave his car in the parking lot.   See State v. Kibler, 874 S.W.2d 330, 332–33 (Tex.App.—Fort Worth 1994, no pet.).   The officer admitted she did not ask appellant if he wanted to sign a waiver to permit the car to remain in the lot until he got out of jail.   She specifically testified, however, that she was concerned about leaving appellant's “nice car” sitting by itself in a parking lot at that time of the morning.   The officer testified that she had no alternative to impoundment that would ensure appellant's car was protected.

Giving the appropriate amount of deference to the trial court's determination of historical facts, we conclude the court did not abuse its discretion in denying the motion to suppress.   We resolve appellant's sole issue against him.

JOSEPH B. MORRIS JUSTICE

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