Caseflicks

Court of Criminal Appeals of Texas • 2000

Carmouche v. State

10 S.W.3d 323 | 2000 Tex. Crim. App. LEXIS 8 | 2000 WL 60020

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Takeaway

In short, Carmouche confirms that reliable informant information can justify a stop and a drug-trafficking suspicion can support a protective frisk, but apparent consent is invalid when a recording shows submission to an overwhelming police display of authority rather than a genuinely voluntary choice.

Background

A known police informant told DPS Sergeant Ricky Allen that she would be traveling with Carmouche from Houston to Nacogdoches and that Carmouche would carry about ten ounces of cocaine. The informant had previously provided accurate information about at least eight people in a federal drug-conspiracy investigation. At Allen's direction, she and Carmouche stopped at a designated Corrigan gas station, allowing officers to identify their green Toyota Camry and follow it.

Trooper Kervin Largent stopped the Camry after observing a traffic violation. Officers separated Carmouche and the informant, obtained consent to search the car, and frisked Carmouche after the informant indicated that drugs were on his person. Largent removed about $1,971 from Carmouche's pocket but found no drugs. After the informant again told officers that Carmouche had put cocaine in his pants, Ranger Dwayne Williams approached Carmouche. Williams ultimately reached into Carmouche's crotch area and recovered approximately 253 grams of cocaine.

The trial court denied Carmouche's motions to suppress the money and cocaine, and a jury convicted him of possessing a controlled substance. The Beaumont Court of Appeals affirmed, holding that the stop and initial frisk were justified and that Carmouche consented to the second search. The Court of Criminal Appeals granted review of the Fourth Amendment and Texas constitutional search-and-seizure issues.

Issues

Issue #1

Whether the warrantless stop of Carmouche's vehicle was supported by reasonable suspicion.

Holding

Yes. The informant's reliable tip, corroborated by the officers' observations, gave police reasonable suspicion to stop the Camry; the observed traffic violation independently justified the stop as well.

Reasoning

A Terry stop requires specific, articulable facts that, under the totality of the circumstances, reasonably suggest criminal activity. Police may rely on an informant's information if the tip carries sufficient indicia of reliability.

The informant was known to Sergeant Allen and had previously supplied accurate information about multiple suspects in a federal drug investigation. Her prediction that she and Carmouche would travel together, coupled with her arrival at the specified gas station with a man matching her description, corroborated the tip sufficiently to justify an investigative stop.

The informant's physical description and vehicle information were not precise in isolation, but reasonable suspicion depends on the whole picture rather than any single fact. In addition, Trooper Largent observed a traffic violation, which independently authorized the vehicle stop regardless of the officers' underlying investigative purpose.

Issue #2

Whether Trooper Largent's initial pat-down of Carmouche was a lawful Terry frisk and whether removing the cash exceeded the frisk's permissible scope.

Holding

No constitutional violation occurred. The frisk was justified by a reasonable concern that a suspected cocaine trafficker could be armed, and seizure of the cash was permitted under the plain-feel doctrine.

Reasoning

The court distinguished the justification for a detention from the separate justification for a frisk. Reasonable suspicion of criminal activity permits a stop, but a protective pat-down additionally requires specific, articulable grounds to believe the person may be armed and dangerous.

Although Largent admitted that he also hoped to find narcotics, the record supported a finding that he was concerned for his safety. The roadside setting was hazardous, and officers reasonably could infer that a person suspected of transporting cocaine might be armed because weapons and violence are frequently associated with drug trafficking.

A valid frisk ordinarily must remain limited to discovering weapons. But under Minnesota v. Dickerson, an officer may seize an item whose identity is immediately apparent through touch during a lawful pat-down. Largent testified that he immediately recognized the pocket bulge as money, so removing it did not invade any privacy interest beyond the lawful frisk.

Issue #3

Whether Carmouche freely and voluntarily consented to Ranger Williams's second search, which uncovered the cocaine.

Holding

No. The record did not establish by clear and convincing evidence that Carmouche voluntarily consented to the second search.

Reasoning

Consent is an exception to the warrant and probable-cause requirements only when it is voluntary rather than the product of coercion, threats, or mere acquiescence to asserted police authority. Under Texas law, the State had to prove voluntary consent by clear and convincing evidence.

The patrol-car videotape materially contradicted Ranger Williams's account that Carmouche raised his hands and turned around in response to a request for permission to search. Instead, the tape showed that officers ordered Carmouche to turn around and put his hands on the car before Williams asked whether he minded another pat-down, and Williams made that request while reaching toward Carmouche's pants.

The court ordinarily defers almost completely to trial-court findings of historical fact, especially credibility findings. But the videotape provided indisputable visual evidence that contradicted essential aspects of Williams's testimony, and the trial court appeared to rely on probable cause rather than a consent finding. The court therefore could independently account for what the recording showed.

Carmouche was stopped on a dark highway, surrounded closely by four officers, backed against his car, ordered into a search position, and had already been subjected to an involuntary frisk. He was not advised that he could refuse. In those circumstances, a reasonable person would not believe that the second search was optional; any apparent compliance was submission to police authority, not free consent.