APPELLANT'S REPLY BRIEF - courtstuff.com

IN THE COURT OF APPEALS FXLED J:N
FOR THE FIFTH APPELLATE DISTRICT OF TEXAS
Court of Appeals
DALLAS, TEXAS
JUN 1 4 2012

lisa Matz
Clerk, 5th District

MICAH JERRELL §
v. §
THE STATE OF TEXAS § NO. 05-11-00859-CR
§
§

ON APPEAL FROM THE
COUNTY COURT ATLAW2
OF COLLIN COUNTY, TEXAS

NO. 002-84703-10

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APPELLANT'S REPLY BRIEF

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TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES the Appellant, MICAH JERRELL, in the above styled and
numbered cause, by and through his attorney Mark Lassiter, and files this his Reply
Brief, pursuant to Rule 38.3 of the Texas Rules of Appellate Procedure, and in support
thereof would show the Court the following:

ORAL ARGUMENT REQUESTED

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In his brief, Appellant contended the trial court erred in not granting Defendant's
Motion to Suppress because neither "exigent" nor "administrative" exceptions existed to
justify a search of Mr. Jerrell's vehicle. The State answered by first claiming the
officer's had probable cause to search the vehicle to find evidence of intoxication and
second the officer acted in accordance with the community caretaking function. (State's
Brief 4).

These are interesting arguments as neither theory addresses the Appellants
arguments in his appeal. Moreover, the State in its brief never addressed the actual
holdings of the trial court. This is peculiar as the State drafted the findings of fact and
conclusions of law. The State in its brief promulgates other theories and justification for
the search that has no relationship with the actual holding trial court gave. One of the
theories was never raised by the State in the motion to suppress hearing. Moreover, both
State arguments are contrary to the evidence and testimony elicited by the State at the
hearing.

Additionally, the State cannot have it both ways. One argument precludes the
other, as the community caretaking function MUST be the primary reason for the search
in order to apply. In arguing first that the search was conducted for probable cause
reasons, the State effectively precludes itself from asserting the community caretaking
provision. These exceptions are mutually exclusive of each other.

Thus, the community caretaking argument proffered by the State would be
unlawful under this particular case scenario.

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The State's Probable Cause argument:

The first assertion made by the State is there was probable cause to search Mr.

Jerrell's vehicle. This assertion is seriously flawed on two separate counts, as the

findings of the court specifically found no probable cause and no evidence was presented

to support this theory.

1. Trial Courts Findings of Fact and Conclusions of Law

In the trial court's conclusions of law section (n), the court recites "[t]he searches

conducted by Trooper Anderson and Officer Dixon were pursuant to the exigent

circumstances present at the scene of the accident." (See Exhibit 1, the trial courts

findings). At no point does the trial court maintain the officer had probable cause to

search the vehicle. The court specifically states what exception the officers used to

search the vehicle and it was not due to having probable cause.

The trial court listened to this probable cause argument proffered by the State and

affirmatively rejected this theory holding a search based on probable cause at the time of

the search would be an exploratory search and unlawful under the circumstances

described in this case.

COURT: ...What gives him the right to go in the car?

STATE: The fact that he had the fair probability, that fair probability that
contraband would exist.

COURT: Did he have a right to go search for evidence before you arrest
somebody? Take the marijuana example. Marijuana coming out
of the window, smells it, takes him back, questions him, still hasn't
arrested him. Now he wants to go look for the marijuana and finds
it and then arrests him. Does that matter?

STATE: I believe it's the same thing.

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COURT: Well, can't do that. That's exploratory search. So I'm asking
what pigeon hole theory does the State have as to why you can get
in there without arresting him.
(RR 33, 13).

The court unequivocally, as shown above, rejected the State's probable cause

argument. The court only held probable cause existed AFTER the search and seizure of

the items. (See exhibit 1 section (o)). This was due to the officer's testimony regarding

when probable cause was formed. (See discussion in the following point).

The trial court went on to definitively held why the search was conducted and it

was not for having probable cause.

COURT: The court finds the officer went in the vehicle looking for
ownership evidence of the vehicle. (RR 39, 14-15).

No mention of probable cause was made. As for the State's cases, cited in its

brief, the Wiede v. State case is distinguishable because in that case furtive gestures were

observed and a plastic baggie indicating illegal drugs were present. 214 S.W.3d 17

(Tex.Crim.App.2007). Here, no medication was observed when Mr. Jerrell was pulled

from the vehicle and no furtive gestures were seen. In the next case cited by the State,

the defendant was in front of a known drug house and was nervous along with another

individual going from the defendant's truck to the known drug house. Here, we don't

have any known drug house, or any nervousness on the Appellant's part. The case has no

similarity to Mr. Jerrell's case facts, and has no apparent applicability to this case.

The trial court, in hearing the testimony, determined there was a lack of probable

cause at the time Officer Dixon made his search of Mr. Jerrell's car and thus asked the

State to present a different justification. The court was extremely clear holding a search

based on probable cause would be exploratory and unlawful. (RR 33, 13).

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Thus, based on the trial court's specific findings, a search using probable cause as
justification would be contrary to the trial courts holding, making the search under this
exception unjustified and unlawful.

2. The Testimony Presented Proves the Search was Not Conducted
Pursuant to having Probable Cause.

First it is important to note that Trooper Anderson did not conduct the search; he
never even got into the vehicle or instructed anyone else to do so. Officer Dixon
performed the search and he did not testicy. Thus, no evidence was introduced as to the
reasons for officer Dixon's search. The State never presented any testimony that anyone
knew why he conducted the search, but rather the State is asking for this Court to play a
guessing game as to why he searched. To ask this Court to make these inferences would
be unreasonable and contrary to the trial courts holding. The State presented no evidence
or proof as to why the search occurred, which is why it is asking this Court to make
inferences.

Additionally, the State actually introduced evidence to the contrary of probable
cause when it attempted to use Trooper Anderson to give us insight into the purpose for
Dixon's search.

A: Officer Dixon got into the vehicle -- trying to find insurance,

you know, he said he didn't know who the vehicle belonged to.
Registration, paperwork, anything of that nature. (RR 23, 19-
21).
Here, Trooper Anderson never mentioned the search was due to believing he
would find some sort of intoxicant. When the issue of probable cause was discussed
again, the Trooper testified exactly when he formed the probable cause. This is important

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because the Trooper testified he formed probable cause AFTER seeing the results of the
search, not before.

STATE: At this point, had you decided to arrest him for driving while
intoxicated? When you were looking through his car.
A:
With everything I saw, both in dealing with the defendant and
what we found with the drugs in the vehicle, I believed he was
intoxicated.

(RR 24, 9-14).

Thus, it is clear by use of the word AND that the Trooper relied on what was

found to form his opinion of intoxication. It was not formed prior to discovering the

medication. It was the discovery of the medication that led to the Trooper's probable

cause to arrest. Without the discovery, no probable cause was formed. Therefore,

because the Trooper formed probable cause AFTER the search, this demonstrates a

search based on probable cause would be unjustified in this case.

Moreover, Trooper Anderson had no idea what he might find in searching the car.

In fact he thought he was dealing with an escaped patient. (RR 18, 18-21). He testified:

"I believed that I would probably find something," in reference to a question regarding

what the car might contain. (RR 25, 23 - 26, 2). However, this shows the Trooper's

theory of finding "something" before the search was merely a hunch. A mere hunch does

not constitute probable cause.

Therefore, because probable cause was formed AFTER the search, the evidence

presented showed the search was to find insurance or ownership paperwork, no evidence

for officer Dixon's search was presented, and the trial court specifically held the search

was not due to probable cause, the search at time it was conducted was not justified on

this basis. The State's argument to this effect is not based on any fact in the record but is

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actually contrary to the evidence presented. Thus, a search based on probable cause
would be unlawful.

The State's Community Caretaking Argument:
In order for the State to meet its burden in showing this exception applies it must

measure up to the standards set forth in the Court of Criminal Appeals decisions in
Wright and Corbin. Wright v. State, 7 S.W.3d 148 (Tex.Crim.App.1999); Corbin v.
State, 85 S.W.3d 272, 277 (Tex.Crim.App.2002). There, the Court set out 4 factors that
must be looked at. However, before examining the four factors, first the State must
establish the "primary" motivation for the search was the community caretaking
prOVISIOn.

It is interesting the State argues the search conducted in this case somehow meets
those provisions as: (1) it never argued or mentioned this theory in the actual suppression
hearing; (2) it brought no evidence during the hearing to indicate this was the primary
motivation or that any of the 4 factors were met and considered; (3) the evidence
presented clearly demonstrates this was not a community caretaking detention or search;
and (4) by arguing probable cause first, the State eliminates the possibility this was a
lawful community caretaking detention and search.

However, to be thorough I will show in these next paragraphs why this exception
does not apply.

(1) First and foremost it doesn't because the trial court specifically held under
what exception it believed the officer's searched under and that was not the community
caretaking exception.

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(2) The Court held a police officer may not properly invoke his community

caretaking function if he is primarily motivated by a non-community caretaking purpose.

Wright, 7 S.W.3d at 151. The Court has made it clear that the community caretaking

function is "totally divorced from the detection, investigation, or acquisition of evidence

relating to the violation of a criminal statute." Corbin, 85 S.W.3d at 277.

In instant case, it is clear the searching officer was not motivated primarily by

concern for Mr. Jerrell's welfare. This is shown by the States argument he searched

based on probable cause, (State's Brief) and the officer's testimony above that the search

was conducted to find proof of ownership. (RR 23, 19-21). It is also shown by the trial

court's specific holding.

COURT: The court finds the officer went in the vehicle looking for
ownership evidence of the vehicle. (RR 39, 14-15).

The State presented no evidence the primary motivation of Officer Dixon

(because he is the one who searched the vehicle, not the Trooper) was to help Mr. Jerrell,

the trial held this was not the purpose of the search, and the Trooper specifically testified

the search was for ownership. (RR 23, 19-21). Thus, because the search of the vehicle

was not primarily motivated by a community caretaking purpose, but rather to obtain

proof of ownership, the search of Mr. Jerrell's vehicle under a community caretaking

theory would be unlawful.
(3) Even ifthis Court decides the officer was primarily motivated to stop Mr.

Jerrell for community caretaking reasons, the officer's observations did not indicate a

situation where reasonable officer would think his specific help was needed. The factors

set out by the Court in Wright to determine the reasonableness of the officer's

observations are:

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(1) the nature and level of the distress exhibited by the individual;
(2) the location of the individual;
(3) whether or not the individual was alone and/or had access to assistance
independent of that offered by the officer; and
(4) to what extent the individual-if not assisted-presented a danger to himself or
others.

The Court in Corbin, when interpreting these factors, held the first factor is
entitled to the greatest weight because "the purpose of the community caretaking
exception is to allow an officer to 'seize' and assist an individual whom he reasonably
believes is in need of help." The greater the nature and level of distress exhibited; the
more likely the police involvement will be a reasonable exercise of the community
caretaking function. Corbin, 85 S.W.3d at 277.

In this case, no testimony was elicited the officer believed Mr. Jerrell to be in
distress at the time of the search. Mr. Jerrell absolutely needed help once the Trooper
arrived. However, once he was removed from the vehicle, placed in the care of EMT's
and was being tended to by the medical personnel, NOTHING in the record indicates Mr.
Jerrell was in distress at that time. In fact, it would appear quite the contrary as Mr.
Jerrell had all the assistance he needed. It was at this point in time the search was
conducted. And it was conducted to look for who owned the vehicle, not to help Mr.
Jerrell. (RR 23, 19-21). Thus, the first factor is in favor of no community caretaking.

The second factor looks at location. Here, Mr. Jerrell was in the care of more
than one medically trained individual. Although they were on the side of the road, he
was not in a location where no one else was around to assist him. Thus, this factor is in
favor of Mr. Jerrell and does not justify a search for community caretaking.

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The third factor is available assistance. This is essentially the same as the factor
before and thus is in favor of Mr. Jerrell.

The fourth and last factor is whether the defendant was a danger to himself or
others. Here, obviously he was not as he was in the care of the EMT's. He could not
drive anywhere as the car was totaled and he was being taken to the hospital. Therefore,
he was not a danger to anyone else at the scene at the time of the search.

After looking at each factor, it is clear that each factor indicates the officer had no
reason to believe that his assistance was needed at the time of the search. It is important
to understand that for the community caretaking privilege to be used as justification for
the search, at the time of the search the factors must have been present. It is clear
that is not the case.

In addressing the State's position of the factors fulfillment, it appears the State
misunderstands the point in time in which the factors apply. The State applies the factors
throughout the course of events rather than taking a snapshot of the exact moment in time
the search occurred, and seeing if the factors applied at that moment, as is required by
law. Terry v. Ohio, 392 U.S. 1, 21 (1968); Davis, 947 S.W.2d 240, 243
(Tex.Crim.App.l997). This "exact moment in time" is what the Supreme Court and
Court of Criminal Appeals determined should be analyzed in coming to a conclusion of
whether the search was reasonable under the circumstances. The State fails to do this,
but rather asks this Court to jump from time to time to attempt to meet the factors
elements.

The assertions by the State that Trooper and Officer Dixon felt it necessary to
search the car for possible substances to assist the EMT's is wholly unsupported by the

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record. In fact, the record clearly shows otherwise when the Trooper testified the search
was to "find insurance." (RR 23, 19-21 ). Throughout the State's brief it asks this Court
to make findings based on a record silent to the subject matter. It does this because no
evidence was presented regarding its newfound theories of the case. The Court should
not infer facts not in evidence as the State is essentially asking this Court to do.

The fact that no factors were ever even discussed by the State and that by the
State's own admission it was not the primary motivation for the search shows the
community caretaking provision cannot be used in this case.

Appellant's Argument and Trial Courts Holdings:
The State in its brief barely touches on the "exigent" and "administrative"

holdings by the trial court. Appellant in his brief goes into detail as to why these
exceptions do not apply.

The State when discussing the so-called "administrative" exception argues in this
case it would be permissible to discover if the vehicle was stolen. (State's Brief at 9).
No testimony was elicited that the Trooper felt that was the case. Additionally, the State
still does not address the crux of the matter, which is: TO DO AN ADMINISTRATIVE
SEARCH YOU MUST DO SO UNDER THE IMPOUNDMENT AND INVENTORY
SEARCH RULES.

This is the fundamental flaw with doing the search in the manner Officer Dixon
did, which the State never responds to. Appellant agrees that a search may have been
warranted to discover ownership of the vehicle; he is simply saying that in this case,
Officer Dixon and Trooper Anderson did not go about that search in the correct manner.

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To discover who owned the vehicle, as the officers were attempting to do, the proper
exception is found by utilizing the "inventory" procedure done when a vehicle is
impounded. Thus, it becomes an invalid inventory search as specifically held by the trial
court and the search under this "administrative" theory is unjustified.

As for the "exigent circumstances" holding by the trial court; appellant asserts this
is referring to the emergency doctrine and the State argues it means the community
caretaking exception. However, as clearly demonstrated in Appellants brief and the
discussion about community caretaking, neither of these exceptions apply because they
were not the "primary motivation" for the search and "totally divorced" from other
matters. Because of that reason alone, coupled with the others showing these exceptions
do not apply, a search under either ofthose theories would be unjustified.

It was for these reasons stated explicitly above that I as the defense attorney
elected to ask no questions of the officer. I realized the State had not established a
single viable reason for the search, thus, I decided to not ask any questions of the
Trooper. If for one moment I believed the State had offered one reasonable basis for
searching the vehicle I would have explored that basis. However, after listening to the
testimony of the Trooper and looking at the relevant case law, I knew none had been
presented.

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CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Appellant prays this conviction be
reversed and remanded.

Respectfully submitted,

3500 Maple Ave.
Suite 400
Dallas, Texas 75219
214/845-7007
214/845-7006 fax
State Bar of Texas Card No. 24055821

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the foregoing

Appellant's Brief was forwarded to the Collin County Assistant District Attorney, on this

Jthe ~day of V\~{___ , 20 !'L.

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