AFFI RM; Opinion issued October 26, 2012

in The .!tmtrt nf Appral!a f’ift1! Jiitrtrt uf rxzt at Jat1a No. 05-1 1-00334-CR

THE STATE OF TEXAS, Appellant V. KENNETH CASHION, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-30848-N

MEMORANDUM OPINION Before Justices Bridges, O’Neill, and Fillmore Opinion By Justice Bridges The State of Texas appeals from the trial court’s order granting appellee Kenneth Cashion’s motion to suppress. In a single issue, the State challenges the trial court’s conclusion that the police did not conduct a valid inventory search. We affirm.

Background During the suppression hearing. Officer Akins of the Grand Prairie Police Department testified that he came into contact with appellee on July 28, 2009. while observing appellee roll through a stop sign and pull into a gas station. Akins pulled in behind appellee and activated his emergency lights. When Akins requested a driver’s license and insurance, appellee provided his license but not proof of insurance. Akins returned to his patrol car to write appellee a ticket.

While in his car. Akins accessed the mobile data computer and found that there were warrants for appel lee’s arrest. Upon confirming the warrants were valid. Akins returned to appellee’s car and informed appellee that he was under arrest. Akins placed appellee in custody. handcuffed him, and placed him in the back of the patrol car. Because appellee had been alone, Akins determined appellee’s vehicle needed to be impounded and began to inventory the contents ofthe car.

Timothy Lilly then approached Akins and identified himselfas appellee’s son. Akins asked appellee if he wanted to release the vehicle to his son, to which appellee replied, “Yeah.” Akins testified he requested Lilly’s driver’s license and proof of insurance. Lilly testified Akins did not request proof of insurance. The record shows Lilly produced a driver’s license. Akmns concluded he needed to document the contents ofappellee’s vehicle so he was not later blamed ifsomething came up missing. Akins testified that because Lilly did not produce proof of insurance, Akins decided he could not release the vehicle to Lilly.

Akins then resumed inventory and came across a black plastic bag inside a smalljewelry box.

The plastic bag contained narcotics. Akins had appellee’s vehicle towed to the city impound lot and transported appellee to the Grand Prairie Police Department.

The trial courtheldahearingonappellee’smotionto suppress and grantedthe motion. The State filed this appeal ofthe trial court’s ruling and requested the trial court make findings of fact and conclusions of law. The trial court made the requested findings and conclusions. Appellee subsequently filed his motion to file supplemental findings and conclusions of law, which has been denied by this Court.

Analysis Wereviewatialjudge’srullngonamotiwosuppressbyviewingalloftheevidencein

—2— the light most lavorable to the trial judge’s ruling. Sate v. Garcia—Canto, 253 S.W.3d 236, 241 (Tex. (‘rim. App. 2008) (citing (hdieriez s’. State. 221 S.W.3d 680. 687 (Tex. (‘rim. App. 2007); Slate v. Kelly. 704 S.W.3d 808. $18 (Tex. (‘rim. App. 2006); Stale v. Ross. 32 S.W.Sd 853. 855 (Tex. (‘rim. App. 2000)). When the trial judge makes explicit findings of flict, we afford those findings almost total deference as long as the record supports them. regardless of whether the motion to suppress was granted or denied. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Garcia-( ‘an/u. 253 S.W.3d at 241. Therefore. the prevailing party is entitled to ‘the strongest legitimate view of the evidence and all reasonable in Ièrences that may be drawn from that evidence.’

Garcia-Canlu, 253 S.W.3d at 241. We afford the same amount of deference to the trial judge’s rulings on mixed questions of law and ftict, if those rulings turned on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. Other mixed questions of law and fact are reviewed de novo. Kothe v. State. 1 52 S.W.3d 54. 62-63 (Tex. (‘rim. App. 2004).

In a single issue, the State challenges the trial court’s conclusion that the police did not conduct a valid inventory search. A peace officer’s inventory of the contents of an automobile is permissible under both the Fourth Amendment of the United States Constitution and Article I. section 9 of the Texas Constitution if conducted pursuant to a lawful impoundment. Garza v. State, 137 S.W.3d 878. 882 (Tex. App.—1-Jouston [1st Dist.1 2004, pet. ref d) (citing South Dakota v. Opperman, 42$ U.S. 364, 375-76 (1976)). Inventories serve to protect: (1) the owner’s property while it is in custody. (2) the police against claims or disputes over lost or stolen property, and (3) the police from potential danger. Kelley v. State. 677 S.W.2d 34. 37 (Tex. Crim. App. 1984) (en bane); Garza, 137 S.W.3d at 882. These inventories must be conducted in good faith pursuant to reasonable standardized police procedures. See Garza, 137 S.W.3d at 882. However, the Fourth Amendment protection against seizures cannot be whittled away by standard police procedures. See Benavules v taic. 600 S.W.2d 809. 812 (Tex. Crim. i\pp. 1980).

Reasonable cause for impoundment of an automobile may exist when the driver is removed from his car and placed under custodial arrest. and his property cannot be protected by any other means. See Benavidcs. 600 S.W.2d at 811; (Jarza. 137 S.W.3d at 882 (citing Lagatte v. S’iaie 995 S.W.2d 860. 865 (Tex. /\pp.—HouStOn [1st Dist.) 1999. pet. reEd)). The Grand Prairie Police Department has established a written policy for its officers to follow when the driver is taken into custody. as was the case here. That policy provides as follows: 5.11.04 IMPOUNDING VEHICLES L 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 araikthle to take control a/the vehicle.

1. Prior to releasing a vehicle to a person in lieu of impoundment. the arresting officer will veri/j’ the person taking possession of the vehicle is a licensed driver. The arresting officer will narrate in the arrest report that the arrested person voluntarily released the vehicle and will also include the person’s identity. correct address, telephone number and driver ‘s license number with the state of issuance. (Emphasis added). The State bears the burden of proving that an impoundment is lawful and may satisfy its burden by showing that (1) the driver was arrested, (2) no alternatives other than impoundment were available to insure the automobile’s protection. (3) the impounding agency had an inventory policy, and (4) the policy was followed. Garza. 137 S.W.3d at 882 (citing Delgado v. Slate, 718 S.W.2d 718, 721 (Tex. Crirn. App. 1986)).

The State failed to satisfy its burden here, because an alternative, other than impoundment, was available to Akins. Appellee’s son, Lilly, was available to take the vehicle, and when Akins asked whether Lilly had permission to take the vehicle. appellee responded. “Yeah.” Akins failed

—4-- to Ibliow the Grund Pnurie impoundment policy. Although Akins yen lied Lilly was a licensed driver, in accordance with the policy, Akins chose not to release the vehicle to Lilly because he did not remember seeing Lilly’s proot of insurance.’ Lilly testified Akins never asked him lbr proof of insurance. However, Lilly testitied he had insurance on the vehicle at the time of impoundment as follows: Q: Did you have insurance for driving that vehicle?

A: I was on my mother’s policy which was Cull coverage. Covered me on any vehicle I drive. I’m on her policy.

Q: You were able to drive the vehicle by license and by’ insurance.

A: Yes.

Because the trial court was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing, we give the trial court’s decision deference. See Guzman, 955 S.W.2d at 89.

We further note the Grand Prairie policy does not require proof of insurance and agree with the trial court’s finding that “[wjhether or not Timothy Lilly had appropriate proof of insurance is irrelevant in that Officer Akins was going to perform the ‘inventory search’ which was not provided for in the impoundment procedures.” See (hizman, 955 S.W.2d at 89. Here, the State failed to meet its burden, and we conclude the impoundment of appellee’s vehicle and the subsequent search,

Akins testified: “I don’t remember seeing insurance on the truck in question at all.”

Akins testified that the ‘sptnt” ofthe poltcs was to require proof of insurance: howcer. the law requires the Grand Prairie Police Department follow the policy, not the spirit of the polic See Gara, 137 S.W.3d at 882.

—5 denoted as an nventorv.” were unlawful The trial court did not err by granting appel lee’s motion to suppress. ee (arcia—( tn!u, 253 S.W.3d at 241.

We overrule the State’s sole issue on appeal and affirm the judgment olthe trial court.

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DAVID L. BRIDGES JUSTICE Do Not Publish TF.x. R. App. P. 47 10334F.U05

Akins acknowledged he had no other lawful means to search the vehicle as tollows: Q: So the records clear, before you cnt back the second time to look in the vehicle, von had no search warrant, right A: No sir.

Q: You had not consent?

A: No. sir.

Q: You had no probable cause?

No sir. nf Apprat’5 nittt fift{i Jitrirt nf rxai it Ozt11w JUDGMENT TI IF STATE OF TEXAS. Appellant Appeal from the 195th Judicial District Court ot Dallas County, Texas. (Tr.Ct.No. F09— No. 05-1 1-00334-CR V. 30838-N).

Opinion delivered by Justice Bridges, KENNETFI CASIHON, Appellee Justices O’Neill and Fillmore.

I3ased on the Courts opinion of this date. the judgment of the trial court is AFFIRMED.

Judgment entered October 26, 2012.

DAVID L. BRIDGES ‘ JUSTICE