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The State of Texas v. David Pena, III
Case Number: 03-18-00765-CR
Judge: Thomas J. Baker
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: The Honorable Jennifer A. Tharp
Mr. Sammy M. McCrary
The Honorable Stacey M. Soule
Mr. Joshua D. Presley
Defendant's Attorney: Mr. David A. Schulman
Mr. John G. Jasuta
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Pena filed a motion to suppress evidence pertaining to a statement that he made
and to items that were seized from his trunk after he was arrested. During the suppression
hearing, the arresting officer, Officer Christopher Koepp, was the only witness to testify.
Officer Koepp testified that he observed Pena driving a car with an old and faded
license plate and that he initiated a traffic stop for driving with an obscured license plate. See
Tex. Transp. Code § 504.945(a). According to Officer Koepp, Pena admitted that the writing on
the plates was faded. Officer Koepp performed a warrant check and discovered a warrant for
Pena’s arrest for the offense of theft by check. Officer Koepp asked dispatch to confirm that
the warrant was still active by contacting “the original agency that the warrant [wa]s out of.”
Dispatch later confirmed that the warrant was active. Officer Koepp then arrested Pena and
discovered “a meth pipe in” Pena’s pocket while arresting him. After finding the pipe, Officer
Koepp searched the car. While searching the trunk, Officer Koepp and other officers found a
handgun, “approximately 3.7 grams” of what appeared to be methamphetamine, multiple clear
baggies, two digital scales, and another glass pipe “with pink residue inside the pipe.” After the
officers completed the search of the trunk and the remainder of the car, they released the car to
Pena’s son who had been a passenger in the car.
During the suppression hearing, a recording from Officer Koepp’s dashboard
camera was admitted into evidence. The district court reviewed the recording after the suppression
hearing concluded. The recording is generally consistent with Officer Koepp’s testimony regarding
the reason that he initiated the traffic stop, regarding Pena’s admission about the license plate’s
condition, regarding Officer Koepp’s learning about a warrant for Pena’s arrest, and regarding
Officer Koepp’s asking dispatch to confirm the warrant’s status. On the recording, Officer Koepp
informed Pena that he will have to go to jail if the warrant is confirmed to be active. After
dispatch verified that the warrant was active, Officer Koepp told Pena that he was being arrested,
placed him in handcuffs, performed a search of his person, and discovered a glass pipe in his
pocket. Officer Koepp then asked Pena if there was anything illegal in the car, and Pena stated
that there is “maybe a couple of grams” and a weapon in a black bag in the trunk. Officer Koepp
then placed Pena in the back of his patrol car. Officer Koepp and two other officers searched
the trunk and found a handgun and several baggies containing a white crystalline substance.
Shortly thereafter, Officer Koepp read Pena his Miranda rights, and Pena stated that he
understood those rights.
After viewing the recording, the district court issued an order granting Pena’s
motion to suppress and issued the following findings of fact and conclusions of law relevant to
the issue on appeal:
Findings of Fact
1. Comal County Sheriff’s Deputy Koepp has proven himself believable, and his testimony is credible.
2. Deputy Koepp articulated facts to justify the initial stop of the Defendant.
3. After the initial stop, Deputy Koepp conducted a warrant check and verified the existence of a non-drug-related warrant (theft by check) for the arrest of the Defendant.
4. During the pendency of verification of the warrant, Deputy Koepp indicated that upon verification of the warrant the Defendant would be arrested but Defendant’s son would be allowed to drive the vehicle from the scene of the traffic stop.
. . .
9. At or near this time, two additional police officers arrived as back-up to assist Deputy Koepp.
. . .
11. After the warrant was verified, Defendant was arrested, handcuffed and taken into custody.
12. After the custodial arrest, the Defendant’s person and clothing were searched.
13. During the search of the Defendant’s person, a pipe commonly associated with illicit drug use was found in a pants pocket of the Defendant.
. . .
22. Without reciting the Miranda and Texas Code of Criminal Procedure article 38.22 admonitions or receiving waivers thereto, Deputy Koepp asked Defendant if there was anything in the vehicle.
. . .
24. The Defendant replied that there was something in the trunk.
. . .
26. Thereafter, the trunk was searched where alleged illicit narcotics were found inside a backpack along with a handgun.
. . .
30. At no time after the search did Deputy Koepp express, on the video—SX #1 or during the hearing on the motion to suppress, a reason, cause or other articulable fact to justify a search of any portion of the vehicle, specifically including its trunk, for the offense of arrest (theft by check) or any other probable cause arrest arising thereafter—other than receipt of Defendant’s statement that there was something in the trunk.
. . .
Conclusions of Law
A. Comal County Sheriff’s Deputy Koepp conducted a lawful stop of Defendant’s vehicle based upon probable cause of a traffic violation.
. . .
C. Deputy Koepp lawfully arrested the Defendant for an outstanding warrant alleging a non-drug-related offense and conducted a lawful pat-down and search incident to the arrest of the Defendant’s person.
D. Deputy Koepp lawfully seized a pipe commonly associated with illicit drug use from the Defendant’s pant pocket, yet the Defendant was never charged with possession of drug paraphernalia.
E. The existence of the pipe on the Defendant’s person did not constitute probable cause to believe additional evidence of the offense of arrest (theft by check) would be found in [the] vehicle.
F. The existence of the pipe on the Defendant’s person did not, in and of itself, constitute probable cause to believe additional evidence of the offense of possession of drug paraphernalia would be found in the vehicle.
. . .
K. Accordingly, there was not probable cause to believe the vehicle contained evidence, if at all, relevant to offenses other than the offense of arrest, and a broader scope of a warrantless search, i.e., search of the trunk pursuant to the automobile exception, was also not objectively and legally authorized by the dictates found in United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) as cited in [Arizona v.] Gant, [556 U.S. 332,] 347 .
. . .
M. Further—at this point in time, the Defendant was legally in custody.
N. By asking Defendant if there was anything in the vehicle, Deputy Koepp interrogated the Defendant.
O. Defendant had not been properly informed of his Miranda and Texas Code of Criminal Procedure article 38.22 admonitions before being interrogated, nor did the Defendant legally acknowledge or waive those admonitions and rights before being interrogated.
P. The Defendant’s response to the custodial interrogation was obtained in violation of his constitutional rights and statutory protections—although with no mal-intent by Deputy Koepp.
Q. Although Deputy Koepp expressed no ill will nor malice toward the Defendant, the credible evidence objectively indicates that the only reason expressed or acted upon by Deputy Koepp to conduct a search of the trunk of the vehicle was based upon the Defendant’s illegally obtained statement.
R. Pursuant to both the U.S. and Texas Constitutions, our Bill of Rights and Texas Code of Criminal Procedure article 38.23, the Defendant’s statement that there was something in the trunk should be, as a matter of law, suppressed as well as any evidence seized as a product of that unlawfully obtained statement.
. . .
X. Accordingly, the search of the trunk of the Defendant’s vehicle was unlawful.
Y. Moreover, the evidence found in the trunk of the Defendant’s vehicle, including but not limited to the alleged controlled substance and a handgun, was unlawfully and illegally seized.
After the district court issued its findings of fact and conclusions of law, it issued
an addendum explaining that Pena was not given his statutory warnings under article 38.22 and
did not waive his rights before Officer Koepp questioned Pena about whether there was anything
illegal in the car. For that reason, the district court concluded that Pena’s statement was obtained
in violation of article 38.22, that the evidence seized from the car was discovered because of
the improper questioning of Pena, and that the evidence should be excluded under the Texas
“exclusionary rule contained in Article 38.23.”
The State appeals the district court’s ruling granting Pena’s motion to suppress.
STANDARD OF REVIEW
Appellate courts review a trial court’s ruling on a motion to suppress for an abuse
of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that
standard, the record is “viewed in the light most favorable to the trial court’s determination, and
the judgment will be reversed only if it is arbitrary, unreasonable, or ‘outside the zone of
reasonable disagreement.’” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). In general, appellate courts apply
“a bifurcated standard, giving almost total deference to the historical facts found by the trial
court and analyzing de novo the trial court’s application of the law.” See State v. Cuong Phu Le,
463 S.W.3d 872, 876 (Tex. Crim. App. 2015); see also Arguellez, 409 S.W.3d at 662 (explaining
that appellate courts afford “almost complete deference . . . to [a trial court’s] determination of
historical facts, especially if those are based on an assessment of credibility and demeanor”).
“The same deference is afforded the trial court with respect to its rulings on application of the
law to questions of fact and to mixed questions of law and fact, if resolution of those questions
depends on an evaluation of credibility and demeanor.” Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010); see State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (stating that
trial court is sole trier of fact and judge of credibility of witnesses and weight to be given to their
testimonies). If the trial court makes a finding of fact that is derived from video evidence
admitted at a suppression hearing, that finding “is still reviewed under a deferential standard.”
Carter v. State, 309 S.W.3d 31, 40 & n.47 (Tex. Crim. App. 2010); see Montanez v. State,
195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006). In addition, a trial court’s ruling on the motion
will be upheld if it is correct under any theory of law applicable to the case regardless of whether
the trial court based its ruling on that theory, but “a trial court’s ruling will not be reversed based
on a legal theory that the complaining party did not present to it.” Story, 445 S.W.3d at 732.
In one issue, the State presents several related arguments contesting the district
court’s ruling on Pena’s motion to suppress. First, the State argues that the district court erred by
suppressing Pena’s statement to the police and the evidence pertaining to the items seized from
his trunk. More specifically, the State asserts that the district court erred by concluding that the
police improperly questioned Pena and seized various items located in the trunk without first
providing Pena with the warnings set out in article 38.22 of the Code of Criminal Procedure and
in Miranda. See Tex. Code Crim. Proc. art. 38.22; Miranda v. Arizona, 384 U.S. 436 (1966).1
1 Although the focus of the majority of the State’s brief is on the suppression of the evidence related to the items found in Pena’s trunk, the State also asserted in its brief that the district court erred when it determined that Pena’s statement was obtained in violation of his constitutional rights and various statutory protections, that the district court erred by suppressing his statement, and that the statement was admissible under article 38.22 of the Code of Criminal Procedure. Accordingly, we will construe the State’s briefing as challenging the suppression of both Pena’s statement and the evidence pertaining to the items found in the trunk.
Next, the State argues that the district court erred by concluding that the search of his trunk and
the seizure of the items inside were not supported by probable cause and by suppressing the
evidence pertaining to those items.2
Pena’s Statement to the Police
In resolving the State’s issue on appeal, we will first address whether the district
court erred by suppressing his statement to the police for the alleged failures by the police to
provide Miranda warnings and the statutory warnings set out in article 38.22 of the Code of
Criminal Procedure before questioning Pena.
The Supreme Court has explained that a person who is questioned by the police
after he is “taken into custody or otherwise deprived of his freedom of action in any significant
way” must first “be warned that he has a right to remain silent, that any statement he does make
may be used as evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed.” See Miranda, 384 U.S. at 444. “Statements elicited in noncompliance
with this rule may not be admitted for certain purposes in a criminal trial.” Akins v. State,
202 S.W.3d 879, 890 (Tex. App.—Fort Worth 2006, pet. ref’d). This rule is “a judicially imposed
rule of evidence: questioning in violation of Miranda is not itself illegal; the answers to such
questioning are simply inadmissible in court.” Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim.
App. 1997). “[T]he Miranda requirements embody an exclusionary rule or remedy rather than
2 In its brief, the State also asserts that many of the district court’s findings of fact and conclusions of law incorrectly considered the subjective intent of Officer Koepp rather than performing “an objective assessment of [his] actions in light of the facts and circumstances then known to him.” See Scott v. United States, 436 U.S. 128, 137 (1978). Although we agree that “the subjective intent of the officer conducting the stop is irrelevant,” see Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001), given our ultimate resolution that the seizure in this case was supported by probable cause, we need not address the State’s specific challenges to those findings and conclusions, see Tex. R. App. P. 47.1.
a substantive right or entitlement. Statements taken in violation of Miranda are not obtained
in violation of the law; they are simply statements that are subject to a judicially imposed
prophylactic rule of exclusion.” Id.
An individual is considered to be in custody and must be given his Miranda
warnings in the following four general situations:
(1) the suspect is physically deprived of his freedom of action in any significant way; (2) a law enforcement officer tells the suspect he is not free to leave; (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave.
Ervin v. State, 333 S.W.3d 187, 205 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
Accordingly, “for the Miranda safeguards to apply, there must be two showings: (1) the suspect
must have been ‘in custody,’ and (2) the police must have ‘interrogated’ the suspect either by
express questioning or its functional equivalent.” Henson v. State, 440 S.W.3d 732, 742 (Tex.
App.—Austin 2013, no pet.).
Similar to the Miranda warnings listed above, article 38.22 of the Code of
Criminal Procedure sets out warnings that must be provided before custodial interrogation begins
as well as other requirements, see Tex. Code Crim. Proc. art. 38.22, and “precludes the use of
statements that result from custodial interrogation absent compliance with [those] additional
procedural safeguards.” Henson, 440 S.W.3d at 742. For oral statements given by an accused,
those safeguards include the following:
(1) an accurate and unaltered electronic recording of the statement, (2) admonishment of Miranda and statutory warnings to the accused before the statement was made, (3) the accused’s knowing, intelligent, and voluntary waiver
of Miranda and statutory warnings, (4) use of an accurate recording device by a competent operator, and (5) positive identification of all voices on the recording.
Id. (citing Tex. Code Crim. Proc. art. 38.22, § 3).
As set out previously, the district court found that Officer Koepp informed Pena
that an initial warrant check indicated that there was a warrant out for his arrest, that he would be
arrested if the warrant was confirmed by dispatch, that dispatch confirmed that the warrant was
valid, that Officer Koepp placed him in handcuffs, that Officer Koepp took him into custody, and
that Officer Koepp questioned him about whether there were any drugs in the car without
reciting the Miranda warnings or the statutory warnings under article 38.22. Those findings are
supported by the testimony from Officer Koepp and by the recording from Officer Koepp’s
dashboard camera. Cf. State v. Ortiz, 382 S.W.3d 367, 373 (Tex. Crim. App. 2012) (concluding
that defendant was in custody when he made statement to police regarding drugs because, among
other reasons, police placed defendant in handcuffs and communicated their belief to defendant
that he had been involved in illegal activity); Bates v. State, 494 S.W.3d 256, 271 (Tex. App.—
Texarkana 2015, pet. ref’d) (determining that defendant was in custody because he “was
deprived of his freedom in a significant way by being handcuffed and isolated in a police
cruiser,” because officers had probable cause to arrest defendant, and because officers did not tell
defendant that he was free to leave); Brooks v. State, 76 S.W.3d 426, 434 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (explaining that because defendant had outstanding warrants, officers
had probable cause to arrest him).
Moreover, the fact that Pena was initially taken into custody due to the existence
of a valid arrest warrant for a separate offense does not affect the admissibility of the statement.
The Court of Criminal Appeals was confronted with a similar situation in Nguyen v. State,
292 S.W.3d 671 (Tex. Crim. App. 2009). In that case, Nguyen was arrested for traffic violations
and interrogated without being informed of all of his rights under article 38.22 of the Code of
Criminal Procedure. See id. at 672. One of the statements made by Nguyen “constituted the crime
of hindering apprehension,” which was a separate offense from the one for which he was arrested
and taken into custody. See id. In its opinion, the Court of Criminal Appeals rejected the State’s
argument that the statement should be admitted because Nguyen was in custody for a traffic
violation and not for hindering apprehension when he made the statement. See id. at 677-78.
Further, the court distinguished the circumstances in that case from those in Herrera v. State,
241 S.W.3d 520 (Tex. Crim. App. 2007), in which the court determined that an individual that
is already incarcerated “for one offense is not necessarily ‘in custody’ under Miranda and
Article 38.22 when questioned by law enforcement officers about a separate offense.” See Nguyen,
292 S.W.3d at 674 (citing Herrera, 241 S.W.3d at 531). In particular, the court noted that the
holding from “Herrera was limited to the incarceration setting—where an inmate is in the
custody of the government in a jail, prison, or similar institution but not otherwise under formal
arrest. In that setting, an individual is not ‘in custody’ for purposes of Article 38.22 per se, so the
question turns on . . . the facts and circumstances of the case.” See id. at 678 (internal footnote
omitted). However, the court further clarified that “[a] formal arrest . . . always constitutes
‘custody’ for purposes Article 38.22, regardless of the offense that prompted the arrest.” See id.
Because Nguyen had been formally arrested when he made the statement at issue, the Court of
Criminal Appeals concluded that he was in custody for purposes of article 38.22 and upheld the
decision by the court of appeals deciding that the statement was inadmissible under article 38.22.
See id. at 678, 681. Although that opinion focused on article 38.22, the analysis would compel
the same result under Miranda because “[w]hat constitutes ‘custodial interrogation’ under
Article 38.22 is the same as it is under Miranda,” see Hoff v. State, 516 S.W.3d 137, 139 (Tex.
App.—Amarillo 2017, no pet.), and because “a person is considered to be in custody for
purposes of Miranda” when “the person is formally arrested,” see Sloan v. State, 418 S.W.3d 884,
889 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Cf. Herrera, 241 S.W.3d at 526
(explaining that “construction of ‘custody’ for purposes of Article 38.22 is consistent with the
meaning of ‘custody’ for purposes of Miranda”).
As set out above, the record in this case supports the district court’s findings that
Pena was taken into custody when he was formally arrested for the offense of theft and
subsequently questioned without being provided with the Miranda warnings or the warnings
set out in article 38.23. Accordingly, we conclude that the district court did not err when it
determined that Pena was in custody for purposes of Miranda when Officer Koepp questioned
him about a separate offense and that his statement about the contents of the trunk should be
suppressed because he was not given the Miranda warnings before Officer Koepp questioned
him. See Akins, 202 S.W.3d at 891 (concluding that “[b]ecause Akins did not receive his Miranda
warnings before being questioned by the investigators, his statement regarding his possession of
methamphetamine was inadmissible”).
Regarding article 38.22, the State asserts that even if Pena was in custody and
even if he was not given the required statutory warnings under article 38.22, his statement was
still admissible under article 38.22 because those required warnings are subject to an exception
in article 38.22 for oral statements that contain “assertions of facts or circumstances that are
found to be true and which conduce to establish the guilt of the accused, such as the finding of
secreted or stolen property or the instrument with which he states the offense was committed.”
Tex. Code Crim. Proc. art. 38.22, § 3(c). In light of the fact that contraband was discovered in
Pena’s trunk after he admitted the items were there, the State insists that the exception found in
subsection 3(c) of article 38.22 applies here and that the safeguards identified in article 38.22
were, therefore, not necessary. However, even in circumstances where the exception applies, the
State is still required to provide an accused with the Miranda warnings for an oral statement to
be admissible under article 38.22. See Robertson v. State, 871 S.W.2d 701, 714 (Tex. Crim.
App. 1993); Henson, 440 S.W.3d at 742.
As discussed earlier, the district court found that Officer Koepp questioned Pena
after he was placed into custody without reciting the Miranda warnings, and those findings
are consistent with the evidence presented at the hearing. Accordingly, regardless of whether
the exception under subsection 3(c) applied, we conclude that the district court did not err
by determining that Pena’s statement made after he was placed in custody was not obtained
in compliance with article 38.22 and was, therefore, not admissible. See Tex. Code Crim.
Proc. art. 38.22.
Evidence Pertaining to Items in Trunk
Having determined that the district court did not err by suppressing Pena’s
statement, we now address whether the district court erred by concluding that the evidence
pertaining to the items seized from Pena’s trunk must be suppressed because the evidence was
“seized as a product of that unlawfully obtained statement.”
Although statements “taken in violation of Miranda must be suppressed, other
evidence subsequently obtained as a result of that statement . . . need not be suppressed.” Akins,
202 S.W.3d at 891. In other words, “[t]he ‘fruit of the poisonous tree doctrine’ . . . does not apply
to mere violations of the prophylactic requirements in Miranda.” Marsh v. State, 115 S.W.3d 709,
715 (Tex. App.—Austin 2003, pet. ref’d) (quoting Baker, 956 S.W.2d at 22). Instead, “the fruits
of a defendant’s statement” need to be suppressed “only when the statement was obtained
through actual coercion.” Akins, 202 S.W.3d at 891; see Baker, 956 S.W.2d at 23 (explaining
that “[i]n the absence of actual coercion, the fruits of a statement taken in violation of Miranda
need not be suppressed under the ‘fruits’ doctrine”).
During the suppression hearing and in his suppression motion, Pena did not argue
that he made the statement because of coercive police questioning practices, and the district court
did not determine that Officer Koepp’s questioning was coercive or that the statement was
involuntary. Moreover, the evidence presented during the hearing established that none of the
officers present on the scene engaged in any improperly coercive conduct. In particular, the
evidence showed that Officer Koepp asked about the possibility of drugs being in the car
shortly after finding the pipe in Pena’s pocket, that Officer Koepp spoke in a calm tone of voice,
that he did not threaten Pena, and that Pena answered the question quickly. Cf. Nuttall v. State,
87 S.W.3d 219, 223 (Tex. App.—Amarillo 2002, no pet.) (determining that officer did not engage
in coercive questioning when asking defendant about possibility of there being drugs in car when
officer “spoke in a calm, formal tone” and when defendant quickly “admitted that he possessed
For these reasons, we conclude that the district court erred by suppressing the
evidence pertaining to the items seized from the trunk on the ground that the evidence was only
obtained after Pena was questioned about the contents of his car without being given his
When making its suppression ruling, the district court concluded that the evidence
pertaining to the items seized from the trunk should also be suppressed because the police failed
to comply with the requirements of article 38.22. See Tex. Code Crim. Proc. art. 38.22. More
specifically, the district court explained in its order and in its addendum that the failure to
comply with article 38.22 when obtaining the statement from Pena regarding the contents of the
trunk compels a conclusion that evidence pertaining to the items subsequently found in the trunk
must also be suppressed. When explaining its decision, the district court reasoned that a failure
to comply with the article 38.22 directives is different from the failure to provide Miranda
warnings in that article 38.22 is a legislatively enacted law rather than a judicially adopted
prophylactic rule. Building on the concept that article 38.22 requirements are different from the
Miranda ones because article 38.22 directives are statutorily imposed, the district court noted
that article 38.23 of the Code of Criminal Procedure specifically states that “[n]o evidence obtained
by an officer or other person in violation of any provisions of the Constitution or laws of the
State of Texas . . . shall be admitted in evidence against the accused on the trial of any criminal
case.” Id. art. 38.23(a) (emphasis added). In light of the preceding, the district court determined
that the evidence regarding the contents of the trunk was inadmissible under article 38.23
because that evidence was discovered when the police violated the directives of article 38.22
by obtaining a statement from Pena without first complying with the governing procedural
safeguards. In his appellee’s brief, Pena agrees with the district court’s interpretation of articles
38.22 and 38.23, suggests that the language of article 38.22 is mandatory, and urges that the
evidence found in the car was not admissible under article 38.22.
We disagree with the district court’s and Pena’s constructions of these two statutes.
“Article 38.22 [i]s a procedural evidentiary rule that governs admissibility; it is different from
Texas’s exclusionary rule, Article 38.23,” which “is a substantive rule that ‘mandates exclusion
of evidence when it has been obtained in contravention of legal or constitutional rights.’”
Nguyen, 292 S.W.3d at 676 (quoting Davidson v. State, 25 S.W.3d 183, 186 n.4 (Tex. Crim.
App. 2000)). Article 38.22 “prescribes the various requirements that must be satisfied before a
statement made by an accused as a result of custodial interrogation will be admitted against
him/her at trial. That such requirements are not met does not mean that the statement was
necessarily obtained as a result of any legal or constitutional violation.” Davidson, 25 S.W.3d at
186 n.4. Additionally, article “38.22 mandates exclusion of such statements by its own terms
and without reference to art[icle] 38.23.” Id. Accordingly, article 38.22 “more closely resembles”
the Rules of Evidence governing the admission of evidence of “writings, recordings, and
photographs” and is “a procedural evidentiary rule.” Id.
Although not specifically addressing the interaction between articles 38.22 and
38.23, the Court of Criminal Appeals discussed the relationship between Miranda and article
38.23 in Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010). When discussing that
relationship, the Court of Criminal Appeals explained as follows:
[T]he Miranda rule is an exclusionary rule in the same way that article 38.23 is an exclusionary rule. Miranda does not set forth substantive constitutional rights with regard to interrogations; rather, that decision and its progeny set up rules for the admission of certain statements by the accused—excluding a statement under certain conditions when it is determined that law enforcement failed to observe certain practices during a custodial interrogation. The failure to observe those practices—give warnings, honor warnings, etc.—is not itself a constitutional violation, but the admission, in certain circumstances, of a statement that was taken without observing those practices is. Miranda is not violated until the statement is admitted into evidence in a criminal proceeding, and then only if an “exception” to Miranda does not apply.
. . .
Police officers may fail to follow guidelines set forth in Miranda, but they cannot, properly speaking, violate Miranda. Only a court, by admitting evidence that Miranda proscribes, can violate Miranda.
. . .
Since the failure of police officers to honor the invocation of rights under Miranda is not itself a violation of the United States Constitution, it cannot be a basis for invoking article 38.23.
. . .
To hold otherwise would require that article 38.23 somehow retroactively render evidence inadmissible after it is admitted, since it is the admission itself that violates the constitution. This absurdity results because an attempt to invoke Miranda through article 38.23 is really the stacking of one exclusionary rule on top of another.
. . .
Under Supreme Court precedent, for example, the “fruits” of a non-Mirandacompliant statement are admissible. But if article 38.23 were held to apply to a non-Miranda-compliant statement, then the fruits of the statement would also be inadmissible under article 38.23. Miranda or article 38.22, not article 38.23, is the vehicle for excluding statements obtained in violation of the Miranda guidelines. . . . Miranda claims do not fall within the ambit of article 38.23 . . . .
Id. at 582-83 (internal footnotes omitted).
We believe that the analysis from Contreras applies with equal force to article
38.22. In other words, a law-enforcement official’s failure to comply with the requirements of
article 38.22 does not in itself violate article 38.22; on the contrary, article 38.22 is violated if
a statement obtained without complying with the procedural requirements is later admitted
into evidence at trial. Cf. id. at 583 (explaining that “Miranda or article 38.22, not article 38.23,
is the vehicle for excluding statements obtained in violation of the Miranda guidelines”).
Accordingly, Officer Koepp’s failure to comply with the procedures listed in article 38.22
resulted in the statement being inadmissible under article 38.22 as correctly determined by the
district court but did not compel a conclusion that the evidence discovered from that statement
should be excluded under the Texas exclusionary rule found in article 38.23. Moreover, as set
out above, governing case law explains that evidence obtained as a result of a statement from an
individual who was not properly given his Miranda warnings does not need to be suppressed
as fruit of the poisonous tree. In light of the similarity between article 38.22 and the Miranda
protections, we conclude that the evidence pertaining to the contents of the trunk did not need to
be suppressed under the circumstances present here even though Officer Koepp did not comply
with the requirements of article 38.22 before questioning Pena about whether there was any
contraband in his car.
For these reasons, we conclude that the district court erred by determining that the
evidence regarding the items in the trunk was obtained in violation of article 38.22 and should be
suppressed under article 38.23.
In addition to concluding that the evidence pertaining to the contents of the trunk
should be suppressed for the reasons set out earlier, the district court also determined that the
evidence should be suppressed because the discovery of the drugs and the gun in the trunk was
the result of a warrantless search and seizure that were not supported by probable cause.
Under the Fourth Amendment, “a warrantless search of either a person or property
is considered per se unreasonable subject to a ‘few specifically defined and well established
exceptions.’” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (internal quotations
omitted). Reasonableness is the touchstone of the Fourth Amendment, and the reasonableness of
a search or seizure “is measured in objective terms by examining the totality of the circumstances.”
Ohio v. Robinette, 519 U.S. 33, 39 (1996). “When a search has been conducted without a
warrant, the State carries the burden in a motion to suppress to establish the application of the
exception for the requirement to obtain a warrant.” Marcopoulos v. State, 548 S.W.3d 697, 703
(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). One exception to the warrant requirement
before a search is performed is the automobile exception. Dwinal v. State, No. 03-17-00012-CR,
2017 WL 5077980, at *4 (Tex. App.—Austin Nov. 3, 2017, no pet.) (mem. op., not designated
for publication). “Under the automobile exception, law enforcement officials may conduct a
warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it
contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); see also id.
(explaining that automobile exception is premised on justifications that ready mobility of
vehicles creates exigency and that individuals have “a reduced expectation of privacy in a
vehicle because it is subject to” extensive regulation by government). Probable cause “exists
when facts and circumstances within the officer’s knowledge or about which he has reasonably
trustworthy information are sufficient to warrant a person of reasonable caution to believe that an
offense was or is being committed.” Lopez v. State, 223 S.W.3d 408, 414 (Tex. App.—Amarillo
2006, no pet.); see Boyett v. State, 485 S.W.3d 581, 595 (Tex. App.—Texarkana 2016, pet.
ref’d). “The subjective intent or motivations of law enforcement officials is not taken into account
when considering the totality of the circumstances.” Wiede v. State, 214 S.W.3d 17, 25 (Tex.
Crim. App. 2007).
Although Pena acknowledges the automobile exception in his brief, he asserts that
controlling case law limits the scope of the search to the area within an arrestee’s immediate
control and does not authorize a search of the entire vehicle once the arrestee has been secured.
Accordingly, Pena asserts that the exception did not apply because he had already been removed
from the car and secured before the officers began searching the vehicle. Additionally, Pena
contends that the discovery of the pipe in his shorts did not satisfy the requirements of the
automobile exception or authorize a search of his car, including the trunk.
As support for these arguments, Pena relies on cases like Chimel v. California,
395 U.S. 752 (1969), and Arizona v. Gant, 556 U.S. 332 (2009). In Chimel, three officers
arrived at Chimel’s home with a warrant for his arrest, but the officers did not have a search
warrant. 395 U.S. at 753, 754. After the officers showed Chimel the arrest warrant, they searched
his entire house over his objection and seized various items. Id. at 754. When discussing the
propriety of the search, the Supreme Court explained that “[t]here is ample justification,
therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—
construing that phrase to mean the area from within which he might gain possession of a weapon
or destructible evidence,” id. at 763, but concluded that the search was unreasonable because it
“went far beyond the petitioner’s person and the area from within which he might have obtained
either a weapon or something that could have been used as evidence against him,” id. at 768.
In Gant, the police arrested Gant for a traffic offense, placed him in the back of a
police car after handcuffing him, searched his car, and found drugs in a jacket in the backseat.
556 U.S. at 335. When assessing the propriety of the search, the Supreme Court explained that
after a “recent” occupant of a vehicle is arrested, police may search the vehicle “when the
arrestee is unsecured and within reaching distance of the passenger compartment at the time of
the search.” Id. at 343. The Supreme Court also explained that in “the vehicle context,” police
may also search a vehicle after an occupant has been arrested if “it is ‘reasonable to believe
evidence relevant to the crime of arrest might be found in the vehicle.’” Id. (quoting Thornton v.
United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). Ultimately, the Supreme Court
concluded that “[b]ecause police could not reasonably have believed either that Gant could have
accessed his car at the time of the search or that evidence of the offense for which he was
arrested might have been found therein, the search in this case was unreasonable.” Id. at 344.
Although Pena correctly points out that the Supreme Court described significant
limitations on the scope of searches in Chimel and Gant, neither of those cases involved the
exception to the warrant requirement at issue in this case—the automobile exception. Instead,
both of those cases outlined the limits of another exception to the warrant requirement—the
search incident to arrest. See Gant, 556 U.S. at 338; Chimel, 395 U.S. at 763. The Supreme Court
addressed the scope of a warrantless search under the automobile exception in United States v.
Ross, 456 U.S. 798, 825 (1982). Specifically, the Supreme Court explained that “[t]he scope of a
warrantless search based on probable cause is no narrower—and no broader—than the scope of a
search authorized by a warrant supported by probable cause”; that “[i]f probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search”; and that “[w]hen a legitimate search is under
way, and when its purpose and its limits have been precisely defined, nice distinctions between
. . . glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a
vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.”
Id. at 821, 823, 825. Furthermore, the Court clarified that “[t]he scope of a warrantless search of
an automobile thus is not defined by the nature of the container in which the contraband is
secreted. Rather, it is defined by the object of the search and the places in which there is
probable cause to believe that it may be found.” Id. at 824. When later discussing the scope of
this exception in a subsequent case, the Court summarized the holding from Ross as authorizing
“a search of any area of the vehicle in which the evidence might be found” “[i]f there is probable
cause to believe a vehicle contains evidence of criminal activity” and explained that the analysis
from Ross “allows searches for evidence relevant to offenses other than the offense of arrest.”
Gant, 556 U.S. at 347.
In its order, the district court found that Officer Koepp testified regarding the
appearance of Pena’s license plate and determined that the traffic stop performed by Officer
Koepp was lawful based on reasonable suspicion to believe that Pena committed a traffic
violation by displaying a license plate with obscured writing. See Tex. Transp. Code § 504.945(a).
Similarly, the district court found that Officer Koepp discovered in Pena’s pocket a pipe
commonly used for the consumption of drugs and concluded that Officer Koepp lawfully seized
the pipe from Pena’s pocket during a search incident to Pena’s arrest. The record supports the
district court’s findings, and we conclude that the district court did not err by determining that
there was reasonable suspicion to initiate the traffic stop and that Officer Koepp lawfully seized
the pipe. See Martinez v. State, 500 S.W.3d 456, 467 (Tex. App.—Beaumont 2016, pet. ref’d)
(determining that police officer had reasonable suspicion to believe that defendant committed
offense of displaying obscured license plate and rejecting defendant’s argument that no violation
occurred under terms of statute because State was not “required to prove that an actual violation
. . . occurred to justify an officer’s decision to stop the car to investigate whether a violation had
in fact occurred”); Dew v. State, 214 S.W.3d 459, 460, 462 (Tex. App.—Eastland 2005, no pet.)
(concluding that seizure of defendant’s wallet and plastic bag containing drugs inside wallet was
proper because “the search of appellant and seizure of his wallet were justified as a search
incident to arrest”).
Regarding the search of the trunk and seizure of items in the trunk, we note that
Officer Koepp observed Pena driving his car before initiating the stop. Accordingly, the car was
readily mobile. See Rogers v. State, No. 02-15-00160-CR, 2016 WL 299752, at *4 (Tex. App.—
Fort Worth Jan. 14, 2016, pet. ref’d) (mem. op., not designated for publication) (determining that
car was mobile because it was driven immediately prior to search); Liffick v. State, 167 S.W.3d 518,
521 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (observing that “[a]ppellant’s truck was
readily capable of being used on the highways because the agents witnessed appellant driving the
vehicle shortly before he was arrested”); see also United States v. Howard, 489 F.3d 484, 493-94
(2d Cir. 2007) (explaining that phrase “readily mobile” refers more to “inherent mobility of the
vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby
precluding a search,” reasoning that exception applies “[e]ven when there is little practical
likelihood that the vehicle will be driven away,” and rejecting argument that car was not readily
mobile when defendant was in police custody because, among other reasons, there was
possibility that others might drive car away).
Further, Officer Koepp found drug paraphernalia inside Pena’s pocket while
arresting him. See Rogers, 2016 WL 299752, at *1, *4 (noting that during frisk of driver as part
of traffic stop, police officer discovered in driver’s pocket “a glass pipe of the type used to
smoke methamphetamine” and “a bag of methamphetamine” and concluding that probable cause
existed to perform warrantless search of car “[u]nder the totality of the circumstances” because it
was reasonable for police officer to believe that “vehicle also contained contraband” after officer
found “drugs and drug paraphernalia on [driver]’s person”).3 Additionally, although evidence of
3 In his brief, Pena notes that the defendant in Rogers v. State was a passenger, not a driver, that Rogers filed a motion to suppress evidence obtained from her bag that was in the car being driven by someone else, and that our sister court of appeals determined that Rogers did not have “standing to challenge the search of the” driver’s “person as she does not have a reasonable expectation of privacy in the search of a third person.” No. 02-15-00160-CR, 2016 WL 299752, at *1, *2 (Tex. App.—Fort Worth Jan. 14, 2016, pet. ref’d) (mem. op., not designated for
the statement was properly suppressed for trial purposes, Pena admitted during his interaction
with Officer Koepp that there was methamphetamine and a gun in the trunk of his car. See
Garza v. State, 34 S.W.3d 591, 596 (Tex. App.—San Antonio 2000, pet. ref’d) (noting that
probable cause was established when defendant admitted to committing crime); see also Elrod v.
State, 533 S.W.3d 52, 57 (Tex. App.—Texarkana 2017, no pet.) (concluding that there was
probable cause to perform warrantless search of car where officer noticed smell of alcohol and
where driver admitted that there was open container in vehicle and that there was probable cause
to search for marijuana where police officer noticed marijuana pipe and where defendant
admitted that there was marijuana in car).
Considering the totality of the circumstances and information known to Officer
Koepp, there was sufficient information to justify Officer Koepp’s belief that Pena’s car contained
contraband. Accordingly, we must conclude that the district court erred by determining that
there was no probable cause to search Pena’s car, including his trunk, because the requirements
of the automobile exception were satisfied here. See Gallegos v. State, No. 05-95-00772-CR,
1999 WL 463369, at *1, *3 (Tex. App.—Dallas July 9, 1999, no pet.) (not designated for
publication) (concluding that “[o]nce the officer had probable cause to search the car for
publication). Accordingly, in light of these differences from the present case, Pena contends that the analysis from Rogers is inapplicable and further contends that reliance on Rogers would also be improper because the case is unpublished.
Although the opinion from our sister court was not published, we find the analysis from that case instructive here. See Tex. R. App. P. 47.7. While our sister court determined that Rogers had no standing to contest the propriety of the search of the driver, it also concluded that she did have standing to challenge the search of her bag. Rogers, 2016 WL 299752, at *2. Moreover, as set out above, when considering the merits of Rogers’s motion to suppress, the court determined that the discovery of drugs and drug paraphernalia in the driver’s pocket justified the warrantless search of the car. Id. at *4. Further, as set out above, there are other factors in this case beyond Pena’s possession of drug paraphernalia establishing probable cause.
marijuana, he was authorized to search every part of the vehicle, including the trunk and
containers found therein”); Levine v. State, 794 S.W.2d 451, 454 (Tex. App.—Amarillo 1990,
pet. ref’d) (determining that search of trunk was proper because “probable cause justified the
search of every part of the vehicle that might conceal the marihuana,” including trunk, and
because “[a]ny part of the vehicle may be first searched” once probable cause exists).4
For all the reasons previously given, we sustain the portion of the State’s issue
asserting that the district court erred by concluding that the evidence pertaining to the items
seized from Pena’s trunk should be suppressed but overrule the portion of the State’s issue
arguing that the district court erred by determining that the statement that Pena made regarding
the contents of his trunk should be suppressed.
Outcome: Having overruled the State’s subissue pertaining to Pena’s statement, we affirm
the portion of the district court’s order suppressing the statement. Having sustained the State’s
subissue addressing the evidence related to the items seized from Pena’s trunk, we reverse the
portion of the district court’s order suppressing that evidence and remand for further proceedings
consistent with this opinion.