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FILED IN COURT OF APPEALS

No. 05-11-0~334-CR

IN THE COURT OF APPEALS

NOV 0 9 zo1fOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

LISA MATZ C I.E R K, 5lllJliSI~~"l==========================================

THE STATE OF TEXAS, RECEIVED IN COURT Of APPEALS, 5th DIST.

v. NOV 0 8 20"

KENNETH CASHION, APPELLEE. USA MATZ CLERK, 5th DISTRICT

On the State's appeal from the 195th Judicial District Court of Dallas County, Texas

Granting of Defendant-Appellee's Motion To Suppress Evidence

Cause No. F09-30848-N

APPELLEE'S BRIEF

====================================================

Counsel of Record:

Joshua M. Webber, Attorney At Law Comerica Bank Bldg.

6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248

(214) 526-6777 Ofc. (214) 526-6778 Fax

THE APPELLEE REQUESTS ORAL ARGUMENT.

I. IDENTITY OF PARTIES AND COUNSEL

APPELLANT: THE STATE OF TEXAS

Trial Counsel:

Appellate Counsel:

APPELLEE: KENNETH CASHION

Trial Counsel:

Appellate Counsel:

TRIAL COURT

District Attorney Craig Watkins Assistant District Attorney Danielle Uher

District Attorney Craig Watkins Assistant District Attorney Buford H. Robertson Dallas County District Attorney's Office Frank Crowley Courts Building 133 N. Industrial Blvd., LB-19 Dallas, TX 75207

Joshua M. Webber Comerica Bank Bldg. 6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248

Joshua M. Webber Comerica Bank Bldg. 6510 Abrams Rd., Ste 260 Dallas, TX 75231-7248

195TH Judicial District Court of Dallas County, in Drug Court on 5th floor, with the Honorable Andrew J. Kupper, Presiding Judge (by assignment).

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II. TABLE OF CONTENTS

I. IDENTITIES OF PARTIES AND COUNSEL .......................................... 2

II. TABLE OF CONTENTS ..•..•...•................................................ 3

III. INDEX OF AUTHORITIES .....•.•...•.....•...................................... 4

IV. STATEMENT OF THE CASE ..•.........•......................................... 5

V. STATEMENT OF FACTS .•...•...•..•........•...............................•.. 6-7

VI. STATEMENT OF THE ISSUES ...•.••.........•....••..•.•................•.....••. 7

VII. SUMMARY OF THE ARGUMENT .••••.•••••.•••..........•..............•..•.••..•. 7

VIII. ARGUMENT:

THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO SUPPRESS EVIDENCE ....•.............................. 8-21

IX. PRAYER. . . . . . . . . • . . . • • . . • . . • • • • . . • . • • • . • . . . . . . . • . . . . . . . . . . . . . . . ...........•. 22

X. CERTIFICATE OF SERVICE •...••••....•.•..•.•...•......................•......• 22

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III. INDEX OF AUTHORITIES

Federa~ Cases PAGE

Arizona v. Gant, 129 S.Ct.l710(10-7-08) ....................... ...... 7,17,20,21 Florida v. Wells, 495 U.S. 1 (1990) ....................................... . 11 South Dakota v. Opperman, 428 U.S. 364 (1976) ............................. . 10

State Cases

Autran v. State, 887 S.W.2d 31. ............................................. .

Balentine v. State, 71 S.W.3d 763 (Tex.Cr.App. 2002) ...................... . 10

Benavides v. State, 600 S.W.2d 809 (Tex.Cr.App. 1980) ..................... . 10

Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App. 2000) ...................... . 10

Daniels v. State, 600 S.W.2d 813(Tex.Cr.App.) ............................. . 10

Delgado v. State, 718 S.W.2d 718 (Tex.Cr.App. 1986) ........................ . 11

Evers v. State, 576 S.W.2d 46 (Tex.Cr.App. 1978) .......................... . 11

Garza v. State, 137 S.W.3d 878, (Tex.App.-Hou. [1st Dist.]2004 ........... . 10,11

Gords v. State, 824 S.W.2d 785(Tex.App.-Dal.l992) ............. .............. 11

Gualdin v. State, 683 S.W.2d 411, (Tex.Cr.App.1984) ....................... . 11

Heitman v. State, 815 S.W.2d 681, (Tex.Cr.App.1991) ....................... . 11

Joseph v. State, 3 S.W.3d 627(Tex.App.-Hou. [14th Dist.]l999 ................ 10

Kelley v. State, 677 S.W.2d 34 ............................................ . 11

Knisley v. State, 81 S.W.3d 478, 483(Tex.App.-Dal. 2002 ................... . 10

Meachum v. State, No. 09-10-00077-CR(Tex.C.App.-Beau.) (4-19-11) ............ .

Miller v. State, 736 S.W.2d.643(Tex.Cr.App.l987) ........................... . 21

Moberg v. State, 810 S.W.2d 190, (Tex.Cr.App.1990) ......................... . 11

Ogeda v. State, No. 05-09-0567 (Tex.Cr.App.-Dal.) (6-22-10) ................. . 21

Richards v. State, 150 S.W.3d 762, 771(Tex.App.-Hou. [14th Dist.]2004 ...... . 11

Villareal v. State, 935 S.W.2d 134, 138 (Tex.Cr.App. 1996) .................. . 10

State v. Giles, 867 S.W.2d 105(Tex.App.-El Paso 1983) ..................... . 11

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·TO THE HONORABLE COURT OF APPEALS:

The Appellee submits its brief in the above numbered and referenced cause,

wherein the trial court heard the Motion to Suppress Evidence and granted the

Motion to Suppress Evidence. The State has appealed the granting of the Motion to

Suppress Evidence.

IV. STATEMENT OF THE CASE

Appellee Kenneth Cashion was charged with indictment with possession of a

controlled substance with intent to deliver. Appellee filed a motion to suppress

evidence found during the search of his vehicle incident to his arrest based on

ticket warrants. On December 10, 2010, the trial court conducted a hearing on the

Motion To Suppress Evidence. The trial court heard the evidence, reset the case

for research, and ultimately granted the Motion to Suppress and entered an order

granting the motion to suppress evidence. The trial court filed its findings of

fact and conclusions of law. The State then appealed the trial court's order

granting Defendant's Motion to Suppress Evidence.

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V. STATEMENT OF FACTS

On July 28, 2009, Appellee Kenneth Cashion was pulled over for failing to stop

at a stop sign. Upon determining that there were two misdemeanor ticket warrants

for Appellee's arrest, the police officer arrested Appellee for the outstanding

misdemeanor ticket warrants, the officer handcuffed Appellee, and put Appellee in

the squad car, then had to "wait a long time.u (R.R.,p.14). The officer then agreed

to release the vehicle to Appellee's son, Tim Lilly, instead of inventorying the

vehicle and impounding the vehicle. The officer had not performed the warrantless

search of the vehicle and had not found anything illegal in the vehicle prior to

Mr. Lilly's arrival. The officer testified at this point (prior to his search of

the vehicle), that there were no furtive gestures, (p.46 and 48); nothing was wrong

with the vehicle (p. 4 7); it was parked on private property and not blocking

anything, nor in a fire zone (p.47); no weapons or contraband in plain view (p.48),

and no marijuana or drug odor (p.48). The officer factually did not conduct the

warrantless search of the vehicle, nor find the narcotics before Appellee's son-Tim

Lilly arrived (p.50). As a result, it was indisputed that the officer did not

find the narcotics until after he agreed to let Mr. Lilly have the car. The officer

agreed to release the vehicle to Mr. Lilly, but decided to do a quick search of the

vehicle incidental to Appellee's arrest, even though this search was warrantless

and non-consensual, and was done without any chance of Appellee reaching for a

weapon or destroying contraband or evidence of the arrestable crime; (p. 59-60); the

search was clearly not looking for evidence of the arrested offense; and the search

was not necessary to safeguard the vehicle or its contents (p.62). The officer

performed this exploratory search for weapons or evidence incidental to Appellee's

arrest even after agreeing to release the vehicle to Mr. Lilly, as shown by his

request and receipt for Mr. Lilly's driver license. (R.R.,p.18,26,46-66,74-88).

The Grand Prairie police department inventory policy was introduced and is

attached to the Court Reporter's Statement of Facts (Reporters Record) of the

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Motion to Suppress Evidence. At the Motion to Suppress hearing the State was unable

to introduce any evidence of an actual inventory search being done, such as

inventory sheet, call history, wrecker request, or tow truck driver form. (p.65).

After this subsequent, non-consensual search, the officer found the narcotics

forming this charge. This evidence was challenged by the Appellee's Gant Motion

to Suppress Evidence, which was granted by the trial court after hearing, argument

and consideration. The State has appealed the granting of the Motion to Suppress

Evidence.

VI. STATEMENT OF THE ISSUE

The State's Sole Issue On Appeal:

Whether the trial court erred in granting the Defendant's Gant Motion to

Suppress Evidence found in the vehicle following the officer's search incident to

Defendant's arrest?

VII. SUMMARY OF THE ARGUMENT

The trial court did not err in granting the Motion to Suppress Evidence

because under the Standard of Review and the objective facts, the vehicle search

was clearly incidental to Appellee's arrest. This case is a warrantless search of

his vehicle incidental to Appellee's arrest for 2 tickets and is illegal under

Gant. As the trial court held, this was not a proper inventory search because the

facts showed it was objectively not done pursuant to an inventory search, it was

factually not done to safeguard the vehicle or its contents, and it objectively

violated the Grand Prairie Police Department specific inventory policy.

Consequently, the trial court did not err in granting the Motion to Suppress

Evidence.

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VII I . ARGUMENT

THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE'S MOTION TO SUPPRESS

(A) KEY FACTS:

Mr. Akins, an Officer with the Grand Prairie Police Department, testified at

the Motion to Suppress Evidence hearing that on July 28, 2009, he was parked in his

patrol car, and observed Appellee fail to fully stop at a stop sign, saw him safely

pull into a gas station and then park legally. (RR:8-9). Officer Akins pulled in

behind Appellee's vehicle and activated the patrol car's emergency lights. (RR: 9).

Officer Akins walked up to the Appellee's vehicle and requested Appellee to produce

a driver's license and proof of insurance. (RR:9). Appellee provided his driver's

license, but did not provide the officer proof of insurance. (RR: 9). At this

point, Officer Akins returned to his patrol car and he accessed the dispatch

computer in his patrol car, which revealed that there were 2 outstanding ticket

warrants for Appellee's arrest for fictitious driver license and no insurance.

(RR:lO). During this time, Appellee's son (Tim Lilly) had already arrived and the

officer agreed to release the vehicle to Mr. Lilly, instead of inventory and

towing and impoundment. (RR:p.50, 51, 76). Officer Akins then arrested him for

the ticket warrants. (RR: 10) .

Officer Akins placed Appellee in custody, handcuffed him, and placed him in

the backseat of the patrol car. (RR:ll). Officer Akins then specifically asked

Appellee if he wanted to release the vehicle to his son, to which Appellee clearly

responded "yeah." (RR:l8). Mr. Lilly produced a driver's license and stated he

had insurance, which the officer was not sure if he remembered, but Mr. Lilly

testified he did and the Judge ruled that he agreed and the testimony was credible.

(R.R., p.26,62, 74-88). This was uncontradicted, as Officer Akins admitted Mr.

Lilly had the driver license, but could not remember if he produced the insurance

physically to him, although Mr. Lilly testified that he had the insurance and

license.

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The Grand Prairie Police Department vehicle impoundment policy was admitted

into evidence as Defendant's Exhibit "1" at the Motion To Suppress Evidence

hearing. The Grand Prairie vehicle impoundment policy covers vehicles that were

abandoned, junked, inoperable, or seized; none of which occurred prior to the

officer's search of the Defendant's vehicle. Specifically, this Grand Prairie

impounding policy only authorizes officers to impound vehicles under these

circumstances:

I. 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 available to take control of the vehicle.

1. Prior to releasing a vehicle to a person in lieu of impoundment, the arresting officer will verify the person taking possession of the vehicle is a licensed driver and narrate that the arrested person voluntarily released the vehicle and include the person's identity, address, phone number, and driver license. (5.11.04)

(Defense Exhibit No. 1, at 2-3). This was provided to Officer Akins by Mr.

Lilly.

Further, Section 5.11.04 of the impoundment policy requires officers if they

are doing an inventory search and impoundment to complete the impound slip (not

done here) , document the inventory of personal property (not done here) , and retain

the white copy for Court purposes. (not done here).

(Defense Exhibit, #1, 1-3). In fact, the State was never able to provide any

document showing the inventory slip, the inventory for.m, the tow truck sign for.m

or any document showing an inventory was done. The trial court granted the motion

to suppress evidence and issued findings of fact and conclusions of law explaining

its decision. (CR: 14-15). The trial court found each witness testified

truthfully. (CR:14). The trial court concluded that the search of Appellee's

vehicle was an illegal search incident to arrest on the tickets, and not a proper

inventory search.

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(B) . STANDARD OF REVIEW

This Court reviews a trial court's ruling on a motion to suppress evidence for

abuse of discretion, giving deference to the trial court's determination of key

facts, but reviewing the application of the law de novo. Ba~entine v. State, 71

S. W.3d 763, 768(Tex.Cr.App.2002); Carmouche v. State, 10 S.W.3d 323,

327(Tex.Cr.App.2000). If the Motion to Suppress Evidence issue involves

credibility of a witness, making the determination of that witness's demeanor

important, this Court must defer to the trial court's determination of the facts.

Joseph v. State, 3 S.W.3d 627, 633(Tex.App.-Hou. [14~ Dist.]1999). Reviewing a

trial court's ruling on a motion to suppress evidence, this court must review the

record and all reasonable inferences in the light most favorable to the ruling, and

sustain the ruling if it is reasonably supported by the record and is correct under

any theory of law applicable to the case. Vi~~area~ v. State, 935 S.W.2d 134,

138(Tex.Cr.App. 1996); Knis~ev v. State, 81 S.W.3d 478, 483(Tex.App.-Da~~as 2002,

pet re£'d).

(C) . THE SEARCH WAS NOT PURSUANT TO PROPER INVENTORY SEARCH UNDER THESE RULES

A police officer's inventory of the contents of an automobile is only

permissible if the warrantless search is pursuant to a lawful arrest and

impoundment of the vehicle and the inventory policy is followed. Danie~s v. State,

600 S.W.2d 813(Tex.Cr.App.)., South Dakota v. Opper.man, 428 U.S. 364, (1976);

Benavides v. State, 600 S.W.2d 809, (Tex.Cr.App.1980); Garza v. State, 137 S.W.3d

878(Tex.App.-Hous.[1st Dist.}2004). The State bears this burden of proving that

an impoundment of the vehicle is lawful and can only satisfy this burden by

demonstrating that:

(1) the driver was arrested;

(2) no alternatives other than impoundment were available to ensure the

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-vehicle's protection; and

(3) the impounding agency had an inventory policy, and (4) the inventory

policy was followed. De2gado v. State, 718 S.W.2d 718, (Tex.Cr.App.1986). The

purpose of allowing an inventory search therefore is:

(1) to protect the owner's property while the vehicle is in custody;

(2) to protect the police against claims over lost or stolen property; and

(3) protect the police from potential danger. Ke22ev v. State, 677 S. W. 2d 34;

Garza 137 S.W.3d 882. The inventory search must therefore be conducted pursuant

to a reasonable standardized police procedure and cannot be used for general or

exploratory evidence searches. Garza, 137 S.W.3d 882. As a result, the inventory

search must produce an inventory of the vehicle's contents and must be done to

safeguard property, and must not be just a "ruse for a general rummaging in order

to discover incriminating evidence." F2orida v. We22s, 495 U.S. 1, 4 (1990);

Richards v. State, 150 S. W. 3d 762, 771 (Tex.App. -Hou. [14th Dist. ]2004; State v.

Gi2es, 867 S.W.2d 105(Tex.App.-E2 Paso,1993).

The State clearly bears the burden of establishing that the police conducted

a lawful inventory search. See, Gua2din v. State, 683 S.W.2d 411,

(Tex.Cr.App.1984); De2gado v. State, 718 S.W.2d 718(Tex.Cr.App.1986); Heitman v.

State, 815 S.W.2d 681, (Tex.Cr.App.1991); and Evers v. State, 576 S.W.2d 46

(Tex.Cr.App.1978). The State can only satisfy this burden by demonstrating that:

(1) an inventory policy exists and (2) the officers followed the policy, and

(3) no reasonable alternative to towing existed. Moberg v. State, 810 S. W. 2d 190,

195(Tex.Cr.App.1991), and other cases cited in Index. As a result, the State must

refute any claims that show a reasonable alternative to impoundment existed. Gords

v. State, 824 S.W.2d 785.

As the aforementioned case law, the elicited facts and testimony and the Grand

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.Prairie inventory policy show, the above search of Appellee's vehicle was

warrantless, non-consensual and illegal. The Judge, as the decider of facts, made

the decision that the vehicle search was not a proper inventory search. The

Judge's decision, based on the objective evidence and the elicited facts, including

the testimony of the officer and the defense witness (Mr. Lilly) (both held to be

credible), and the unfollowed Grand Prairie police inventory policy, all establish

factual and legal support to sustain the trial court's ruling granting the motion

to suppress evidence.

The facts, the record and the law, clearly show that this search of the

Appellee's vehicle was not done as a proper inventory search. Judge Kupper clearly

applied the applicable law and objective standard to the facts to make a correct

decision. This record does not show an abuse of discretion.

We had an arresting officer that searched the vehicle incidental to Appellee's

arrest for ticket warrants. The Judge used the correct standard in this case. The

State, on the other hand, is the one who elicited and argued that the officer's

state of mind and intent controlled at the Motion to Suppress Evidence, but now

argues the objective nature controls during the appeal. (RR, p.12,57,61,62). Even

though the objective facts show the vehicle was being released to Mr. Lilly without

impounding, and thus no inventory, (before the officer's subsequent illegal search

that elicited the dope), the State at the Motion to Suppress hearing focused on the

officer's subjective state of mind multiple times. (R.R.,p.12,57,61,62). Now on

appeal, the State tries to flip it and argue the Judge cannot consider the evidence

it elicited. The evidence however clearly shows it was objectively not an

inventory search.

The fact of the matter is that the officer did not search the vehicle as an

inventory search. The officer did a non-consensual search incident to Appellee's

arrest on tickets to discover any general evidence of drugs, contraband, or

weapons. This was objectively not an inventory search. This was factually not an

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. inventory search. This search was done as search incidental for evidence or

weapons, not an inventory search for the following reasons:

(1). It was not a subjective question as to whether the officer might impound

and thus necessarily inventory the vehicle and its contents. The fact is the

officer objectively released, agreed to release and did release the vehicle to Mr.

Lilly. Mr. Lilly's testimony is uncontradicted. (R.R.,p.74-88). Mr. Lilly had the

driver license, was asked for the driver license and produced the driver license

required to allow him to take possession of the vehicle. Mr. Lilly testified he

had insurance. The Officer Akins could only respond (when all the dust settled)

that he "could not remember" if Mr. Lilly had insurance. (RR.p.26). Even though

511.04 never requires insurance when a vehicle is to be released to a licensed

driver, Mr. Lilly testified he had insurance. (R.R.,p.74-88). The Judge

acknowledged that all witnesses had credibility.

However, the State pretends they did not elicit the subjective state of mind

testimony, then argues against it on appeal. Then though Mr. Lilly testified that

he was insured, the State pretends he did not. The State even asks the officer the

fake question: ... "the son showed up and says "I' 11 take the car and commit an

offense in your presence, okay officer?" The State creates a fake question and

pretends the answer is different than what the witness says. ( RR, p . 2 6 , 6 3 , 7 4- 8 8 ) ;

(2). The officer did release the vehicle to Mr. Lilly, acted as if he was

releasing the vehicle to Mr. Lilly and did release the vehicle to Mr. Lilly. Why

else would the officer request and take Mr. Lilly's driver license? The factual

evidence showed the officer did things that objectively (not just subjectively)

establish that he was releasing and did release the vehicle to Mr. Lilly and thus

did not search the vehicle as an inventory policy to safeguard property antecedent

to towing and impounding said vehicle.

Specifically, the officer ultimately searched the vehicle incidental to

Appellee's arrest (and not as inventory search to protect the vehicle or its

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. contents prior to impoundment) , which the objective facts reveal for several

reasons. First, the officer clearly did not search the vehicle as an inventory

search to protect property before towing it because he agreed to release the

vehicle to Mr. Lilly. That is why he factually asked for Mr. Lilly's driver

license. (R.R.,p.l8,26,45-61). There is no other reason to ask for his driver

license. That is why he ran the driver license. The officer clearly did not do an

inventory search. As the record shows, he did not do an inventory search because

he did not search to inventory the vehicle contents, did not impound the vehicle

before searching and did not even attempt the process of towing or impounding the

vehicle before searching, and never showed proof of ever even calling a wrecker or

a single document showing he even called for a wrecker or ever filled out an

inventory sheet. Not only did the officer have no intent to impound and inventory

the vehicle, but he objectively did not attempt to impound the vehicle. For the

State to claim the subsequent search of the vehicle was due to inventory and search

in order to safeguard property (even though it was going to be released to Mr.

Lilly and not impounded) is not only silly, but objectively false.

In fact, the claim that the officer was going to impound and thus ultimately

inventory the vehicle is not only subjectively untrue, but objectively false under

these facts. The officer actually agreed to release it to Mr. Lilly; he did begin

the process of release, the vehicle search was done prior to releasing the vehicle

to Mr. Lilly, (not the wrecker); and the subsequent search was done before the

wrecker was even called; and even at the Motion to Suppress Evidence one year

later, the officer still could not produce the inventory list or inventory sheet

or any document he even ever called the wrecker;

(3) . The purpose of the inventory search is to safeguard property that is to

be towed and impounded is again totally absent from our facts. Why search a

vehicle to safeguard property from the wrecker or protect contents of a vehicle

that was not going to be towed when searched? Why inventory a vehicle that is being

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released to a third party civilian? Was the officer subjectively concerned that

someone might break into and steal contents of the vehicle within 5 minutes before

Appellee got removed from it and Mr. Lilly took position of it? Again, the State

is asking to overturn a ruling based on factual pretending and subjective fantasy.

Again, the objective facts show no objective inventory search because of no

impounding because the vehicle was being released to Mr. Lilly. The impoundment

act, inventory sheet or even phone call to the wrecker objectively did not occur

prior to the vehicle search. However, the act of releasing the car by personal

appearance of Mr. Lilly and driver license production by Mr. Lilly did occur prior

to the subsequent inventory search.

There was not any document introduced at the Motion to Suppress Evidence

hearing that the wrecker was ever called before the vehicle search. The vehicle

was objective1y not being impounded. Thus, the State had no evidence that the

wrecker was called. No towing was implemented before the vehicle search. The

vehicle was objective1y being released to Mr. Lilly. As a result, there was no

objective fact showing any concern that someone might break into or steal the

vehicle (or it's contents) before Mr. Lilly took possession of it. Remember, Mr.

Lilly had the driver license, was physically on the scene, and the officer even

asked Appellee if he could release the vehicle to him.

This was not a routine care taking, administrative search to protect property

of a vehicle while in police custody from theft (or claim of theft), especially

when the vehicle is not going into police custody after all. How can the police

be concerned of theft of contents or a vehicle itself while in police custody if

it's not going into police custody? How are you concerned of safeguarding property

in police custody that is objective1y being released to the arrestee's son, a

licensed driver? Was the officer subjectively concerned someone might break into

the car during the brief time Appellee is handcuffed and the 5 minutes it will take

for Mr. Lilly to assume custody of the vehicle? Since Appellee agreed to release

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. the car to Mr. Lilly, did the officer think Mr. Lilly might steal something? This

care taking claim and safeguarding responsibility is not objective under our facts.

Instead, the State's subjective argument is factually false and ultimately silly;

(4) There also was objectively no impoundment prior to the vehicle search that

elicited the dope and thus no inventory search because the vehicle was legally

parked, not abandoned, not junked, not inoperative, no impediment to traffic, no

danger or hazzard to traffic, nothing wrong with the vehicle, nothing defective or

illegal on vehicle or seen in vehicle, and not stolen. There was no prior evidence

the vehicle was ever used in a crime, no risk of vandalism to the vehicle, and no

link between the speeding ticket warrant and the subsequent search of the vehicle

itself. There was simply no probable cause to the car, no contraband in plain

view, no warrant, and no consent. As a result, there was no evidentiary indication

that the contents of the vehicle or vehicle itself needed protection from any

thief, damages, or vandalizer between Appellee's arrest and Appellee's chosen

person to take control of the vehicle (Mr. Lilly) who would have taken possession

of the vehicle within minutes. (R.R., pp.l4-63). In fact, the evidence shows the

vehicle and its contents were safely being released to Mr. Lilly and there was no

safeguarding or property protection issue concerning Mr. Lilly, nor during the time

it took to get the vehicle to Mr. Lilly. As a result, there was no safeguarding

of property issue;

(5) There was no need to do an inventory search because, as the law requires,

there was a reasonable alternative to impoundment. The reasonable alternative is

clearly written into the Grand Prairie police policy. The Grand Prairie policy

only authorizes an inventory search and impoundment by towing if there is no

reasonable alternative to impoundment. The applicable case law cited therefore

indisputably authorizes inventory searching only when there is no alternative to

towing and impounding. Here, there was legally, factually, and objectively a

reasonable alternative to inventory impoundment because Mr. Lilly was already on

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the scene, with his driver's license. (R.R., p.l8,51). Although Officer Akins

could not remember if Mr. Lilly had insurance (R.R. ,p.26), Mr. Lilly clearly

testified he had insurance and the Judge stated in his findings and conclusions he

believed the witness had credibility. (R.R. ,p. 74-88). As a result, there was

legally, factually and objectively a reasonable alternative to inventory and

impoundment of the vehicle. The adult son was licensed, agreed to safeguard and

was available to safeguard, physically present and able to protect Appellee's

vehicle and the vehicle contents;

(6) Finally, the facts established that searching via inventory and

impoundment under the facts actually violated the Grand Prairie police department

inventory policy, as shown by Defense Exhibit "1", which is the policy itself. It

does not allow these searches unless the vehicle is subject to proper inventory

search and impoundment and towing. The inventory search here is not only wrong

legally, but factually by the Grand Prairie police department policy itself because

the police cannot inventory search and tow/impound unless there is no one available

to take control of vehicle. (D.E.#l,S-ll-04). Further, the law requires that the

person "take control of vehicle" and that person be "a licensed driver." As a

result, the person-licensee taking control of the vehicle could drive the vehicle

or merely have it towed from the scene. Either way, Mr. Lilly fits either

description. The vehicle cannot be impounded with a licensed third party under

these facts because it violates the Grand Prairie police inventory policy, as well

as the aforementioned cited applicable controlling authority.

D. THE SEARCH OF APPELLEE'S VEHICLE WAS SEARCH INCIDENT TO ARREST AND ILLEGAL UNDER ARIZONA V. GANT

Under the actual facts and applicable law, the search of Appellee's vehicle

was an illegal search incident to his arrest. Arizona v. Gant, 129 S.Ct.1710 (10-

7-08). Here, the Appellee was clearly arrested based on arrest warrants for Irving

tickets. (R.R.,p.ll). The key facts from the Motion to Suppress Evidence record

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.clearly show the following:

(1) Appellee was arrested on 2 ticket warrants;

(2) Appellee's son, Mr. Lilly, a licensed driver immediately arrives;

(3) Appellee handcuffed and put into squad car;

(4) the officer waited "a long time" for back up;

(5) Officer asks Appellee if he wants vehicle released to Mr. Lilly, who

agrees;

(6) Officer admits Mr. Lilly agreed to take the vehicle and had driver license

but does not remember if Mr. Lilly had insurance or not, although Mr. Lilly

indisputably and without contradiction states that he had insurance; (R.R.,p.74-

8 8) •

(7) Prior to search, the officer agreed to release the vehicle to Mr. Lilly;

saw no furtives before or after stopping, nothing wrong with vehicle, parked

legally on private property, not in fire zone, not blocking any vehicle, no plain

view weapons or contraband, no marijuana odor, and the officer did not find the

drugs until well after Mr. Lilly had arrived and agreed to accept the vehicle when

offered to by Officer Akins. The officer also violated his Grand Prairie inventory

and impoundment policy by claiming an inventory search and searching the vehicle

(without warrant or consent) because the vehicle was not abandoned or inoperable,

and there was a licensed driver to take control of vehicle. Even though Appellee

was arrested for ticket warrants, handcuffed and placed in squad car and the

officer agreed to release the car (and manifested this agreement by taking Mr.

Lilly's driver license), the officer then did a warrantless search of the vehicle

prior to letting Mr. Lilly have it-probably to make sure no guns, drugs, or

contraband was in it before releasing it to Mr. Lilly. Finally, the officer had

no evidence or a single document showing he had done an inventory sheet, called for

a wrecker, or even had a wrecker sign in sheet prior to searching the vehicle.

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(R.R.,pp.12-14,18-19,26,45-66,74-88).

Here the factual evidence and applicable law is clear: the officer searched

Appellee's vehicle incident to his arrest on ticket warrants before he let Mr.

Lilly have the vehicle. This fact is clear from the record. When the officer

searched Appellee's vehicle he was searching incidental to arrest because:

(1) that is what the objective facts show;

(2) that is what the officer stated;

(3) that is what the officer did. It is clear from the facts adduced from the

record that when the officer's searched Appellee's vehicle, he was not towing, or

in the process of towing, or even calling for a tow truck or wrecker. In fact,

when the officer searched the vehicle, he had already agreed to release the vehicle

to Mr. Lilly. He was already in the process of releasing the vehicle to Mr. Lilly.

In fact, he had already asked for Mr. Lilly's driver license, instead of calling

a wrecker. He had already taken and verified Mr. Lilly's driver license, instead

of calling for a tow truck. It is not a question of state of mind. It is a

statement of fact. It is an objective fact. He was releasing the vehicle, he was

not impounding it. He was releasing the vehicle, he was not calling for a wrecker.

He wanted Mr. Lilly's driver license to verify it, not as a condition to impound

or tow the vehicle. The Judge saw these objective facts and held the officer to

a standard of objective facts and his decision is supported by the record. It was

not an abuse of discretion.

The State argued at the hearing multiple times about subjective intent

(R.R.,p.12,57,61,62), and now falsely claims the Judge employed the wrong

subjective standard. The facts, however, show that the Judge applied the correct

standard, analyzed the officer's actions (not just intent), along with the

objective facts, Mr. Lilly's credible testimony, and objectively concluded the

search was done incidental to Appellee's arrest, not as inventory search. This is

especially since the officer violated basic Grand Prairie inventory rules.

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I believe the officer did a fake inventory search prior to releasing the

vehicle to Mr. Lilly. He did this not to safeguard the vehicle or its property

from Mr. Lilly, but to confirm there was no drugs or contraband before releasing

the vehicle to Mr. Lilly. There is no other way to explain why he would even ask

for Mr. Lilly's driver license. There is no other way to explain why he would be

unable to produce his inventory sheet or wrecker call-in/sign-in form at the later

Motion to Suppress Evidence.

The facts are clear this is a search incidental to Appellee's arrest over

ticket warrants. Under Arizona v. Gant, this is a clearly illegal search. It is

a search incident to Appellee's ticket arrest. It is illegal under Arizona v.

Gant, 129 S.Ct.1710(10-7-08). The State actually pretends Gant does not exist.

The State does not even acknowledge Gant exists. Shockingly, the State does not

even cite Gant once.

following:

Here Gant controls. The analytical construct shows the

In Gant, the Supreme Court recognized that officers cannot search a

defendant's vehicle incidental to his arrest unless there was reasonable suspicion

or probable cause that evidence relevant to the arrestable offense would be

located, or it was possible the Defendant could reach into the vehicle and destroy

evidence or obtain a weapon. This evidentiary preservation or weapon retention

rationale simply does not fit our facts.

Specifically, the following is true:

(1) At the time of the warrantless search, the officer had arrested Appellee

for tickets, but agreed to release the car to Mr. Lilly (as shown by obtaining Mr.

Lilly's driver license and not filling out inventory sheet);

(2) The officer then searched the vehicle incident to Appellee's arrest;

(3) The officer's search objectively had absolutely nothing to do with

obtaining evidence of the underlying ticket arrest;

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(4) The search was done while Appellee was handcuffed, double-locked and

placed in the squad car;

(5) There was zero chance of Appellee reaching into his vehicle and obtaining

a weapon or destroying contraband or any illegal. There was no indicia of a weapon

or contraband or probable cause to any evidence of the arrested offense at the time

of the search. The record shows there was simply no factual or objective reason

to justify this search of Appellee's vehicle. Again the Judge's decision is based

on the objective facts, adduced at the Motion to Suppress Evidence. Under these

objective facts and the objective evidence, the subsequent vehicle search was

patently and plainly objectively illegal under Gant. As a result, the record shows

the search was an illegal search incidental to Appellee's arrest under Gant, the

record shows the decision was not an abuse of discretion, and the trial court's

decision to grant the Motion to Suppress Evidence was supported by the record.

Arizona v. Gant, 129 S.Ct.1710(10-7-08); Ogeda v. State, No. 05-09-0567(Tex.App.

Da~, 6-22-10).

E. THE ARREST VIOLATED MILLER V. STATE

The law under Mi~~er v. State, 736 S.W.2d 643, (Tex.Cr.App.1987) is very

clear. When the State legitimizes a search based upon warrant for arrest, then the

State must produce the arrest warrant and warrant affidavit (complaint or citation)

for inspection of the trial Court. Here the Appellee was arrested based on a

ticket arrest warrant, which ultimately authorized the incidental search of

Appellee's vehicle (R.R.,p.11-12). However, the State failed to produce a copy of

the arrest warrant affidavit in Court that actually authorized Appellee's arrest.

As a result, the Mi~~er rule was violated and the arrest should be characterized

as a warrantless arrest. Consequently, the search of the vehicle is illegal under

Mi~~er v. State, (R.R. ,p.11-12, 19-20, 31-44).

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IX. PRAYER

The Appellee prays that this Honorable Court will uphold the trial court's

order granting Appellee's Motion to Suppress Evidence .

. Weob r, Attorney for Appellee Comer· a Bank Building 6510 rams Rd., Ste. 260 Dallas, Texas 75231-7248 Bar Card No. 00788635 Office: (214) 526-6777 Fax: (214) 526-6778

X. CERTIFICATE OF SERVICE

I, Joshua M. Webber, attorney for the Appellee herein, state that I have sent a true and correct copy of the attached and forego· g Appellee's Brief to opposing counsel, Buford H. Robertson Jr., Assistant Distr· t Attor ey, at 133 N. ~verfront Blvd~ L~9, Dallas, TX 75207-4399, by US ul M , on this L_ day of ':f}oil€~(, 2011.

ua M. Webber, orney at Law

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