Page 53 - TPA Journal July August 2018
P. 53
SEARCH & SEIZURE. Furtive movement. effects and found a third “baggie” of cocaine in
Andreas Marcopoulos walked into a bar his wallet.
known for narcotics activity, stayed for three to Before the First Court of Appeals,
five minutes, and then left. A Houston police Marcopoulos claimed that the trial court
officer subsequently pulled up behind abused its discretion by denying his motion to
Marcopoulos’s vehicle and saw Marcopoulos suppress. Marcopoulos argued that 1 the
make “furtive gestures” around the center search of his vehicle was unreasonable
console. When Marcopoulos committed a because it did not qualify as an inventory
traffic violation, the officer stopped him, search and it exceeded the scope of his arrest.
searched his vehicle, and found cocaine. The The State conversely argued that an inventory
court of appeals concluded that this search was search was appropriate once Marcopoulos had
justified under the automobile exception. We been arrested and that the “search incident to
disagree and will reverse. arrest” issue was irrelevant. The court held
that, pursuant to this exception, Officer Villa
On September 10, 2014, undercover had probable cause to search the vehicle due
Houston Police Officer J. Oliver was surveilling to Marcopoulos’s “repeated history of going to
Diddy’s Sports Bar (“Diddy’s”), an a place . . . known for selling narcotics, his
establishment in Houston, Texas with a well- uncommonly short time spent at a bar, and his
documented history of narcotics sales. Officer furtive gestures when he noticed a patrol car
Oliver saw Marcopoulos enter the bar, leave behind him.” In dissent, Justice Keyes
within three to five minutes, and drive away. As reasoned that the facts did not support a
Marcopoulos left, the officer followed him and probable cause finding because the search was
observed him change lanes without signaling. based on “furtive gestures[] alone,” without
Hoping to maintain his undercover status, any corroborating evidence.
Officer Oliver radioed for a uniformed officer
to perform a traffic stop. We granted Marcopoulos’s petition for
discretionary review solely to address the
Officer T. Villa received this request and, following question: Did probable cause exist,
upon stopping his marked police car behind on these facts, to search Marcopoulos’s vehicle
Marcopoulos, noticed him make “furtive under the automobile exception to the warrant
gestures” around the center console of his requirement?
vehicle.
The automobile exception allows for the
Officer Oliver, driving next to Marcopoulos warrantless search of an automobile “if it is
in an unmarked car, also observed these readily mobile and there is probable cause to
gestures. Officer Villa then activated his believe that it contains contraband.” As the
emergency lights, stopped Marcopoulos, and court of appeals noted, there is no question in
immediately arrested him. Villa searched this case that Marcopoulos’s vehicle was
Marcopoulos’s vehicle and found two readily mobile. “Accordingly, the only . . .
“baggies” of cocaine: one inside the center inquiry” relevant to this petition “is whether
console and another between the center the officers had probable cause to believe the
console and the passenger seat. Villa truck contained contraband.”
subsequently searched Marcopoulos’s personal For probable cause to exist, there must be
July/August 2018 www.texaspoliceassociation.com • 866-997-8282 49
