State v. Molder

¶1concurring.

¶2I concur in the result reached by the majority opinion, but I write separately to voice my belief that the trial court’s ruling to suppress the evidence found during the inventory of Molder’s truck was correct for the additional reason that the track should not have been impounded in the first place. The majority holds that because the State did not offer evidence of any particular standardized criteria concerning the scope of inventory searches that would lead to a conclusion regarding DPS’s policy as to opening closed.containers, the State failed to meet its burden to show the legality of the inventory of a closed container found in Molder’s vehicle. I join in the majority’s analysis and ruling concerning closed containers under the facts of this case.

¶3I write separately, however, to express my view and opinion that regardless of what DPS’s policy is toward closed containers, an inventory of Molder’s vehicle should have never occurred. And that is what the trial court specifically found.

¶4An inventory search is permissible under the federal and state constitutions if it is conducted pursuant to a lawful impoundment. South Dakota v. Opperman, 428 U.S. 364, 375-76, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976); Benavides v. State, 600 S.W.2d 809, 810 (Tex.Crim.App. [Panel Op.] 1980). For an impoundment to be lawful, the seizure of the vehicle must be reasonable under the Fourth Amendment. Benavides, 600 S.W.2d at 811. Courts have identified a number of circumstances in which law enforcement may reasonably impound an automobile; principal among these circumstances is whether there is some reasonable connection between the arrest and the vehicle. Id.; Delgado v. State, 718 S.W.2d 718, 721 (Tex.Crim.App.1986); Daniels v. State, 600 S.W.2d 813, 815 (Tex.Crim.App. [Panel Op.] 1980). But to be sure, an inventory cannot simply be a “ruse for a general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990).

¶5According to the. trial court's findings of facts, Molder’s truck was parked and locked approximately 175 feet from Molder’s hotel room in front of a nearby business — as the trial court phrased it, “a private parking lot and not the street.” Molder’s truck faced the street, but otherwise was not impeding the flow of traffic nor was it a danger to public safety. The trial court found that the distance between where Molder was detained and eventually arrested was approximately 100 feet from his truck. The trial court further found that there was no reasonable connection between the arrest and Molder’s truck; that Molder had not consented to the search of his truck; that the truck was not blocking traffic; • that no exigent circumstances existed to authorize the search of Molder’s truck; and that there was “no likely evidence of ‘assault by threat’ to be found”, in the truck and that there was no evidence that “Molder’s track had been used in the commission of this or any other crimes.” Furthermore, the trial court determined that Molder “was not in the proximity of his truck such that he could gain access to the passenger compartment.” Regarding its legal determination of whether a valid inventory of Molder’s truck occurred, the trial court specifically concluded that as a matter of law Molder’s *412truck “never validly came into the possession or responsibility of the DPS and therefore should not have been impounded.”

¶6This conclusion by the trial court regarding the impoundment and inventory of Molder’s truck is supported by the court of criminal appeals’s decision in Benavides. 600 S.W.2d at 810. In Benavides, the police discovered the defendant and his wife in their home; both had been shot, and the defendant’s wife was dead. Id.The police discovered the type of car the defendant drove and began looking for it. The car was found locked and legally parked about two blocks away from where the defendant and his wife were found. The police impounded the car for “protective custody” and “safekeeping.” Before towing the car, the police inventoried its contents- and discovered a suicide note incriminating the defendant. Id. at 810-11.

¶7• The court of criminal appeals held the car was unlawfully impounded because (1) there was no evidence that the car was impeding the flow of traffic or a danger to public safety; (2) the vehicle was legally parked in a residential area and locked; (3) while the appellant may not have been able to retrieve the car, there may have been someone else who could have done so for him, and (4) there was no reasonable connection between the arrest and the vehicle. Id. at 812. In so holding, the court stated, “The mere arrest of a defendant cannot be construed to authorize the seizure of his automobile when the arrest took place two or more blocks away from the automobile.” Id.'9

¶8This case is similar to Benavides. Molder was detained and arrested approximately 100 feet from his truck. His truck was legally parked. The trial court specifically found that there was no evidence Molder’s truck was impeding the flow of traffic. The trial court, which listened to the arresting officer’s testimony and reviewed the photographs depicting where Molder was in relationship to his truck when he was arrested, found that there was no reasonable connection between Molder’s arrest and his truck. I conclude that there is no reasonable distinction that the distance in Benavideswas two blocks and in this case approximately 100 feet. The gravamen of Benavides, like in this case, is that the defendant’s mere arrest does not automatically give the State the authority to conduct an inventory. Id.I would hold that the mere arrest of Molder did not authorize the seizure of his truck and that, given the record evidence and the applicable federal and state law, the trial court could have reasonably granted Molder’s motion to suppress upon this additional ground. See Amrendariz v. State, 123 S.W.3d 401, 403 (Tex.Crim.App.2003) (We must “uphold the trial court’s ruling on appellant’s motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case.”), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004). Because I would affirm the trial court’s judgment granting the motion to suppress on this basis, I concur with the majority’s opinion.