Opinion
NUMBER 13-14-00182-CR
03-03-2016
MORRIS ALEXANDER WISE, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 359th District Court of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellant Morris Alexander Wise was arrested for possession of a controlled substance after police officers found cocaine inside his backpack during a drug interdiction at a bus stop. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2015 R.S.). Wise moved to suppress the cocaine under the Fourth Amendment, but the trial court denied his motion to suppress. Thereafter, Wise pleaded no contest to possessing cocaine, and the trial court placed him on deferred adjudication community supervision for ten years. By three issues, which we treat as one, Wise contends that the trial court erred in denying his motion to suppress under the Fourth Amendment. We affirm.
This case is before the Court on transfer from the Ninth Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.) --------
I. BACKGROUND
The evidence at the suppression hearing showed that on September 15, 2011, two police officers boarded a Greyhound bus at a pit stop to conduct a drug interdiction while other officers stayed outside. The two officers inside the bus were not wearing police uniform and did not display a police badge or a weapon. One officer approached Wise and asked in a conversational tone if a black backpack located in the overhead luggage compartment in his vicinity belonged to him; twice, Wise responded that the backpack did not belong to him. When nobody else on the bus claimed ownership of the backpack, the officer brought it outside where a trained canine sniffed it for drugs. The backpack was equipped with a locking mechanism that required a key to open. When the canine alerted to the presence of drugs, officers decided to break the lock off the backpack with bolt cutters and look inside. Officers found cocaine inside the backpack. Following this discovery, Wise was detained and arrested for possessing cocaine when the police investigation revealed, among other things, that he was carrying the key to unlock the backpack in his right front pocket.
After considering the evidence admitted at the suppression hearing, the trial court denied Wise's motion to suppress. Specifically, the trial court found that Wise had no reasonable expectation of privacy in the contents of the backpack because he abandoned it. The trial court further found that Wise's decision to abandon his backpack was not due to any police misconduct. This appeal followed.
II. DISCUSSION
Wise contends that the trial court erred in denying his motion to suppress because the police officers seized and then searched his backpack in violation of his Fourth Amendment rights.
A. Standard of Review and Applicable Law
We review a trial court's ruling on a motion to suppress using a bifurcated standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We give almost total deference to the trial court's findings of historical fact that are supported by the record and to its resolution of mixed questions of law and fact that turn on an evaluation of witness credibility and demeanor. Id. However, when questions of law or mixed questions of law and fact do not depend on witness credibility and demeanor, we review the trial judge's ruling de novo. Id.
Subject to certain exceptions that are not applicable here, the Fourth Amendment protects a person against a warrantless government search of property in which he reasonably expects privacy. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). A person has no reasonable expectation of privacy in property that he voluntarily abandons. Abel v. United States, 362 U.S. 217, 241 (1960); McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Voluntary abandonment of property occurs if: (1) the person intended to abandon the property, and (2) his decision to abandon the property was not due to police misconduct. Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1996); Tankoy v. State, 738 S.W.2d 63, 67 (Tex. App.—Houston [1st Dist.] 1987, no pet.).
B. Analysis
The dispositive question on appeal is whether the trial court erred in finding: (1) that Wise intended to abandon his backpack on the bus; and (2) that his decision to do so was free of police misconduct. We address each finding immediately below.
1. Intent to Abandon
Concerning the first finding, the uncontroverted evidence at the suppression hearing showed that Wise twice expressly denied ownership of his backpack when asked by the officer who he encountered on the bus, and he voiced no objection to the officer removing the unclaimed backpack from the bus. Based on Wise's spoken words and subsequent inaction, the trial court could have reasonably found that he intended to abandon his backpack. See Armstrong v. State, 966 S.W.2d 150, 153 (Tex. App.—Austin 1998, no pet.) (observing that whether a person has abandoned or disclaimed property may be inferred from his words, acts, or other facts); see also State v. Velasquez, 994 S.W.2d 676 (Tex. Crim. App. 1999) (holding that the defendant effectively abandoned his bag during an encounter with a police officer aboard a bus when he at least twice denied ownership of the bag and failed to voice any objection when it was searched).
2. Police Misconduct
Our analysis now turns to the trial court's second finding—i.e., that Wise's decision to abandon his backpack was free of police misconduct. Wise concedes that if he was not "seized" for Fourth Amendment purposes when he denied ownership of his backpack, then his decision to abandon it could not have been the result of any police misconduct. We review de novo the question of whether a seizure occurred under the Fourth Amendment. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Statev. Woodard, 314 S.W.3d 86, 93 (Tex. App.—Fort Worth 2010), aff'd, 341 S.W.3d 404 (Tex. Crim. App. 2011).
The United States Supreme Court has held that the Fourth Amendment tolerates drug interdictions on buses as long as the officer-passenger encounter remains consensual in nature. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding that bus passengers are not per se "seized" during drug interdictions). As such, police officers conducting drug interdictions may ask passengers questions, ask for identification, and request consent to search their luggage—"as long as the police do not convey a message that compliance with their requests is required." Id. at 435. The relevant question in any case is whether "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Id. at 436-37. Circumstances that might indicate a reasonable person is not free to decline the officers' requests or otherwise terminate the encounter include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. See United States v. Mendenhall, 446 U.S. 544, 554 (1980); Garcia-Cantu, 253 S.W.3d at 243 (observing that "[a]t bottom, the issue is whether the surroundings and the words or actions of the officer and his associates communicate the message of 'We Who Must Be Obeyed'").
Here, there was an absence of evidence indicating that the officers' presence aboard the bus was of a threatening nature. The evidence showed that two plain-clothed police officers boarded Wise's bus without displaying a police badge or a weapon and did not block the aisle or otherwise prevent Wise or other passengers from getting off the bus. See Mendenhall, 446 U.S. at 554. The evidence further showed that only one officer engaged Wise on the bus in a conversational tone without touching him. See id.; Bostick, 501 U.S. at 435. Under these circumstances, we find no evidence that would have indicated to Wise that his continued communication or cooperation with the officer was required when he expressly disclaimed ownership of his backpack. See Velasquez, 994 S.W.2d at 679 (holding that the defendant's encounter with two police officers aboard a bus was consensual where the officers were not armed or in police uniform and did not block the aisle or otherwise prevent the defendant's departure). We hold that Wise's decision to abandon his backpack was free of police misconduct. See Bostick, 501 U.S. at 435; see also McDuff, 939 S.W.2d at 616.
3. Summary
The trial court did not err in finding that Wise intended to, and did, abandon his backpack and that his decision to do so was free of police misconduct. See Bostick, 501 U.S. at 435; see also McDuff, 939 S.W.2d at 616. Because Wise had no reasonable expectation of privacy in the backpack that he abandoned on the bus, the trial court did not err in denying his motion to suppress. See Abel, 362 U.S. at 241.
III. CONCLUSION
We affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed this the 3rd day of March, 2016.