This post examines a recent opinion from the Court of Appeals of Texas – Houston: Minassian v. State, 2016 WL 1054719
(2016). The court begins by explaining
that a
grand jury indicted Arkadi Minassian for the offense of fraudulent
possession of identifying information. See TEX. PENAL CODEANN. § 32.51 (West Supp. 2013). Minassian moved to suppress the
evidence that law enforcement seized at the time of his arrest, contesting both
the lawfulness of that arrest and the search of (1) the white Nissan Armada in
which he was traveling at the time of his arrest, and (2) two laptop computers found within the
Nissan. The trial court denied the motion. Minassian then pleaded guilty, and the trial court assessed
his punishment at thirty years' confinement. . . .
Minassian v. State,
supra.
The court went on to outline the facts that led to
Minassian’s being charged with, and convicted of, the offenses outlined above:
The United States Secret Service began
investigating an organized crime ring that placed `skimmers,’ or devices that
capture credit information and permit it to be wirelessly downloaded onto a
nearby laptop computer, on gas pumps at gas stations in the Dallas area.
Investigators suspected that Minassian was a participant in the scheme. A
confidential informant notified officers that Minassian planned to travel from
Dallas to Houston in connection with the scheme. The day before Minassian's
trip, members of the Houston Police Department's regional interagency task
force on fraud received an alert that four skimmers had been found on gas
pumps at a Valero gas station on Beamer Road in Houston. Special Agent Charles
Hutchins, Jr., with the United States Secret Service in its Houston office,
confirmed that the skimmers discovered in Houston matched the description of
ones seized in connection with a Dallas investigation.
On the day that Minassian's plane was
due to arrive in Houston, a Valero technician discovered four additional
skimmers at another Houston-area gas station, on Bay Area Boulevard in Clear
Lake. The technician notified the Secret Service's Houston Field Office of his
finding.
Meanwhile, task force members began
surveillance of Minassian when he arrived at George Bush Intercontinental
Airport. From the airport, Minassian and another man drove to the Valero gas
station on Bay Area Boulevard. Neither he nor the driver attempted to pump gas.
They departed from the gas station a few minutes later. Minassian and the man
then drove to the Valero gas station on Beamer Road. Officers observed the
vehicle stop at a gas station pump, but again, neither Minassian nor the driver
attempted to pump gas.
Officers arrested Minassian and the
driver and searched the vehicle. An open and powered-on laptop sat in the
passenger-seat area. Police seized a second laptop, two GPS devices, six
universal keys for gas pumps, several cell phones, double-sided tape, two thumb
drives, and a USB radio receiver/transmitter device. Minassian possessed two
different California Driver's licenses, one with his name and photo, and a
second one with the name `Ashot Aslanian’ and Minassian's photo. The American
Airlines ticket stubs in Minassian's possession showed a flight ticketed to
Ashot Aslanian.
A Secret Service agent searched the
laptops at the scene. In that search, the agent discovered about 10,000 credit
card numbers and the names associated with them. Six days later, a federal
magistrate issued a warrant for the further search of the laptops. The State
alleged that this further search revealed 38,000 additional names and
identifying information.
Minassian v. State,
supra. As Wikipedia explains, the
U.S. Secret Service has
two distinct areas of responsibility:
- Financial Crimes, covering missions such as
prevention and investigation of counterfeit U.S. currency, U.S.
treasury securities, and investigation of major fraud.
- Protection, which entails ensuring the safety of current and former national leaders and their families, such as the President, past Presidents, Vice Presidents, presidential candidates, visiting heads of state, and foreign embassies.
neither Minassian nor the State
introduced testimony from live witnesses, but the trial court admitted without
objection an affidavit from Special Agent Hutchins as well as a copy of the
federal warrant and color copies of the two different California driver's
licenses. In the affidavit, Hutchins averred in part:
2. This case originated on 03/25/11,
when I was contacted by Special Agent (SA) Troy Saria, United States Secret
Service (USSS), Dallas Field Office, regarding an on-going case in their
district involving gas pump skimmers. Through his investigation, SA Saria
determined Minassian is involved in an organized crime ring responsible for
distributing highly sophisticated gas pump skimmers to several cities and
downloading the credit card numbers, initially thought to be through Bluetooth,
but later determined to be via Zigbee Radio technologies. The device works in
the following manner: The skimmer is installed in a gas pump and the user can
download its contents (credit card name and account number) from a laptop
within a 100 meter range. Bluetooth devices are discoverable on wireless
networks, whereas Zigbee Radio technologies are not. SA Sarria stated he received
information that Minassian would be traveling from Dallas, TX to Houston, TX,
on 03/29/11, and departing on 03/30/11. SA Sarria stated Minassian was
traveling under the alias Ashot Aslanyan.
3. On 03/28/11, Sgt. Gorski, HPD and
Houston Area Fraud Task Force (HAFTF) member, was notified 4 skimmers were
found in 4 different gas pumps at a Valero gas station located at 11499 Beamer
Rd., Houston, TX 77089. Sgt. Gorski, SA Russell Sparks, and I met with Valero
technician James Henderson and observed the gas pump skimmers in 4 different
pumps. The skimmers are described as a black hard plaster square block with
connection cables to the card reader and key pad of the gas pump attached to
the pump with double sided tape. Each skimmer was labeled with a name believed
to be a city. I confirmed with SA Sarria the description of these skimmers
matched the skimmers seized in Dallas throughout their investigation.
4. On 03/29/11, Valero technician James
Henderson notified the USSS Houston Field Office that he conducted an
inspection of another Valero gas station, located at 2404 Bay Area Blvd., Clear
Lake, TX 77058. Henderson discovered 4 additional skimmers at 4 separate gas
pumps at this Valero gas station. All skimmers are in the custody of the USSS.
5. Continuing on 03/29/11, members of
the HAFTF conducted surveillance of Minassian upon his arrival into Bush
Intercontinental Airport. Minassian departed the airport riding in the
passenger seat of a white Nissan Armada, California License Plate (LP) 5GRC174,
registered to Arvin Mehrabian. Minassian and the driver, later determined to be
Arin Mehrabian, drove directly to the Valero gas station, located at 2404 Bay
Blvd. Neither the driver nor the passenger attempted to get gas, and
approximately 2–3 minutes later, the Nissan Armada departed the scene in an
erratic behavior and at a high rate of speed. Mobile surveillance was
discontinued.
6. Continuing on this date, members of
the HAFTF conducted stationary surveillance at the Valero gas station, located
at 11499 Beamer Rd. The Nissan Armada, LP 5GRC74, was observed driving up to
the gas station pump and again neither the driver, nor the passenger, attempted
to pump gas. Members of the HAFTF arrested Minassian and Meharbian without
incident. Search incident to arrest revealed an open, powered on, laptop in the
passenger seat area, an additional laptop, 2 GPS devices, 6 universal keys for
gas pumps, several cell phones, double sided tape, 2 thumb drives, and a USB
radio receiver/transmitter device. Mehrabian also possessed notebook paper
containing a list of addresses, including the addresses to both gas stations
which contained the skimmers. Due to the risk of losing the data stored on the
computers, the laptops were immediately examined by SA Sparks. Approximately 10,000
credit card numbers and names associated with these numbers were discovered.
Efforts are on-going to examine the 8 skimmers found at the aforementioned gas
pumps.
Minassian v. State,
supra.
The opinion goes on to explain that after the hearing was
over, the judge
denied Minassian's motion to suppress
the evidence seized in connection with his arrest. Minassian subsequently
pleaded guilty. The trial court admonished him about the potential range of
punishment and other consequences of his plea; it then accepted Minassian's
plea and assessed his punishment at thirty years' confinement.
Minassian v. State,
supra.
Minassian appealed his conviction, arguing, first, that
law enforcement lacked probable cause
to arrest him and therefore violated his constitutional right to be free of
unreasonable seizures. See Brown v. State, 481 S.W.2d
106, 109 (Texas Criminal Court of Appeals 1972) (probable cause is a
prerequisite to warrantless arrest). He argues that he was not in a suspicious
place when he was taken into custody and exigent circumstances did not require
his arrest without first obtaining a warrant. See TEX.CODECRIM. PROC. ANN. art. 14.03(a)(1) (West Supp. 2015) (warrantless
arrest permitted when person is found in a suspicious place under circumstances
that reasonably show he is guilty of a felony); Swain v. State, 181
S.W.3d 359, 366 (Texas Criminal Court of Appeals 2005) (warrantless arrest
under Section 14.03(a)(1) requires showing of exigent circumstances). . . .
Minassian v. State,
supra.
The appellate court
then took up Minassian’s argument concerning probable cause. Minassian
v. State, supra. It began by
explaining that probable cause for an arrest
exists when the totality of the
circumstances show that law enforcement has `reasonably trustworthy information
sufficient to warrant a reasonable person to believe a particular person has
committed or is committing an offense.' Guzman v. State, 955
S.W.2d 85, 87 (Texas Criminal Court of Appeals 1997). While probable cause requires
`a relatively high level of suspicion,; it is `far short of a preponderance of
the evidence standard.’ Baldwin v. State, 278 S.W.3d 367 (Texas
Criminal Court of Appeals 2009). . . . And it requires `far less evidence’ than
is necessary to support a finding under a preponderance of the evidence. Guzman v. State, supra. Under this
standard, information from a confidential informant that has been corroborated
through independent investigation by law enforcement may supply probable cause
for an arrest. See Angulo v. State, 727 S.W.2d
276, 278–80 (Texas Criminal Court of Appeals 1987).
Minassian v. State,
supra.
The Court of Appeals then took up the specifics of
Minassian’s arguments on appeal, noting, first, that he
contends his arrest resulted from a
confidential informant's tip alone without evidence that the informant was
credible and reliable. See Lowery v. State, 843 S.W.2d
136 (Texas Court of Appeals -- Dallas 1992) (probable cause lacking where
information supplied by informant was not shown to be reliable or credible).
Thus, he contends, the trial court erred in denying his motion to suppress.
But the record shows that Minassian's
arrest was not based solely on an informant's tip. The informant told law
enforcement that Minassian would fly from Dallas to Houston on a particular
date. The accuracy of the informant's information was verified when Minassian
traveled to Houston on the day in question, using an assumed name and fake
driver's license. There, law enforcement observed Minassian travel directly
from the airport to a gas station, and then later observed him at another gas
station. Officers previously had determined that skimmers like those discovered
in the Dallas area had been installed in pumps at both of these gas stations.
Minassian and his companion drove to both of these stations directly from the
airport; neither one attempted to pump gas at either gas station.
The information from a confidential
informant in the Dallas area thus was independently corroborated by firsthand
surveillance of Minassian's activities by law enforcement in the Houston area.
Probable cause may arise from such a combination of sources. sources. See Angulo v.
State, 727 S.W.2d 276, 278–80 (Texas Court of Criminal Appeals 1987) (anonymous
tip with independent police corroboration and surveillance based on prior
investigation provided probable cause). Accordingly, the trial court acted
within its discretion in denying Minassian's motion to suppress on this ground.
Minassian v. State,
supra.
The court then took up Minassian’s second argument with
regard to probable cause, explaining that,
[i]n
addition to probable cause, law enforcement officers also must have
statutory authorization to make a warrantless arrest. Parker v. State, 206
S.W.3d 593, 596–97 (Texas Court of Criminal Appeals 2006). Section 14.03(a)(1)
of the Texas Code of Criminal Procedure authorizes law enforcement to arrest
“persons found in suspicious places and under circumstances which reasonably
show that such persons have been guilty of some felony ... or are about to
commit some offense against the laws.” This section requires “the legal
equivalent of constitutional probable cause.” Amores v. State, 816
S.W.2d 407, 413 (Texas Court of Criminal Appeals 1991).
Places seldom, if ever, are suspicious
in and of themselves. Dyar v. State, 125 S.W.3d 460 (Texas
Court of Criminal Appeals 2003). Instead, whether a given place is suspicious
requires a fact-specific analysis and turns on the totality of the circumstances.
Dyar v. State, supra. The proper
inquiry focuses not on whether a particular activity is innocent or criminal
standing alone, but rather on the degree of suspicion that the activity
engenders when viewed in the totality of the circumstances. State v.
Guzman, supra; Hall v. State, 795 S.W.2d 195, 197 (Texas Court
of Criminal Appeals 1990) (per curiam). Innocent activities can provide
probable cause when they are coupled with prior knowledge by law enforcement
that indicates a criminal offense is occurring. Stull v. State, 772
S.W.2d 449, 451–52 (Texas Court of Criminal Appeals 1989). With that knowledge,
a place `may become suspicious’ and raise a reasonable belief that the person
has committed a crime.
Swain v. State, 181
S.W.3d 359, 366 (Texas Court of Criminal Appeals 2005); see also Goldberg
v. State, 95 S.W.3d 345 (Texas Court of Appeals--Houston [1st Dist.]
2002). The same facts that support a finding of probable cause may also support
a finding that a defendant was in a suspicious place. place. E.g., Dyar v. State, supra. . . .
Minassian v. State,
supra.
The Court of Appeals then went on to announce its ruling on
Minassia’s argument regarding probable cause:
The facts in this case support
a finding that the police arrested Minassian in a suspicious place under
suspicious circumstances, i.e., upon leaving the second of two minutes-long
visits to gas stations with skimmers like the ones discovered in Dallas, and
without attempting to purchase gas at either location. Minassian argues that
traveling to the two Houston-area gas stations is as consistent with innocent
activity as it is with criminal conduct. See Torres v. State, 868 S.W.2d 798, 802-803(1993) (probable cause does not exist
when a defendant's activities are as consistent with innocent conduct as
criminal conduct). He posits, for example, that he could have visited a gas
station to look at a map or GPS.
Minassian's argument is tenable only if
one considers his gas-station visits in isolation from the remainder of the
record, rather than in context. Law enforcement had identified the two stations
that Minassian visited as locations at which skimmers had been installed,
confirmed that these skimmers were of the same type as those associated with an
organized crime ring's activities in the Dallas area, suspected that Minassian
was a member of this ring, and learned that he was travelling from Dallas to
Houston in apparent furtherance of the ring's scheme. Law enforcement surveilled
Minassian when he arrived in Houston, and observed that he went directly to one
of the two stations at issue but made no attempt to pump gas. He later went to
the second station and again made no attempt to pump gas.
Taken as a whole, the facts are not as
consistent with innocent activity as criminal conduct, and they support a
finding that Minassian was arrested in a suspicious place under circumstances
that raised a reasonable belief that he had committed a crime. See State
v. Dyar, supra (a place may become suspicious when circumstances raise a
reasonable belief that a person has committed a crime there); Hall v. State, supra (the proper inquiry
is not limited to whether the actual activity observed is innocent or criminal
but instead concerns the degree of suspicion reasonably aroused by the observed
activity); Lunde v. State, 736 S.W.2d 665 (Texas Court of
Criminal Appeals 1987) (holding that another statutory provision
authorizing warrantless arrest was satisfied despite that fact that law enforcement
did not observe overtly criminal conduct). Thus, the trial court did not abuse
its discretion in denying the motion to suppress on this ground.
Minassian v. State,
supra.
It then addressed Minassian’s argument concerning “exigent circumstances”, noting that
[s]o long as probable cause to make the
arrest exists, a warrantless felony arrest made in a public place need not be
supported by exigent circumstances in order to pass constitutional
muster. Milton v. State, 549 S.W.2d 190 (Texas Court of
Criminal Appeals 1977). Minassian contends without elaboration that no exigency
required his immediate arrest.
Minassian v. State,
supra.
The court also explained that
Hutchins' affidavit permits a
reasonable inference that Minassian and his driver were pulled over and
arrested at the second gas station or on a nearby roadway. Both of these
locations are public places. Accordingly, regardless of any exigency,
Minassian's arrest was not constitutionally infirm, because there was probable
cause. Milton v. State, 549 S.W.2d 190
(Texas Court of Criminal Appeals 1977). Section
14.03(a)(1) of the Texas Code of Criminal Procedure, requires exigent
circumstances to make a warrantless arrest premised on suspicious activity in a
suspicious place. Swain v. State, supra.
Even if not in public, the possibility of escape and immediate erasure of any
evidence of wrongdoing provides the necessary exigency for an immediate arrest.
Coyne v. State, 485 S.W.2d 917 (Texas Court of Criminal Appeals 1972).
Thus, the trial court did not abuse its discretion in denying the motion to
suppress on this ground.
Minassian v. State,
supra.
Minassian also argued that “law enforcement violated his
Fourth Amendment rights when they conducted a search of the laptops found
within the vehicle without a warrant.” Minassian
v. State, supra. As Wikipedia
explains, the Fourth Amendment has been interpreted to require that law
enforcement officers obtain a warrant before they search a place or a thing; as
Wikipedia also explains, the Supreme Court has recognized a number of
circumstances (“exceptions”) which allow officers to search and/or seize
without first obtaining a warrant.
Getting back to the opinion, the Court of Appeals explained
that law enforcement
searched the vehicle in which Minassian
was a passenger incident to his arrest. See State v. Tercero, 467
S.W.3d 1 (Court of Appeals of Texas – Houston 2015). . . . We have
concluded that the arrest was lawful. The search-incident-to-arrest exception
to the warrant requirement, however, does not render an immediate, warrantless
search of the laptops found in the car constitutional, and it is this further
search that Minassian challenges.
Minassian v. State,
supra.
The court went on
to hold that
[o]ne of the two laptops was discovered in
the passenger area of the vehicle in which Minassian was traveling as a
passenger, and the other was located elsewhere within the vehicle. In the trial
court, Minassian asserted in a footnote to his motion to suppress that the
computers `were both personal computers, with personal information, under his
control.’ But Minassian did not introduce any evidence in support of this
allegation at the suppression hearing. Nor is there any evidence of ownership of
the laptops elsewhere in the record. The argument of counsel, as opposed to
evidence, is not enough to show standing. Handy v. State, 189
S.W.3d 296, 299 (Texas Court of Criminal Appeals 2006); Calloway v. State,743
S.W.2d 645 (Texas Court of Criminal Appeals 1988). The fact that Minassian was
seated near one laptop is not proof of ownership without evidence linking him
to it. Rawlings v. Kentucky, 448U.S. 98 (1980).
In sum, Minassian failed to carry his
burden to prove a legitimate expectation of privacy in the laptops. We hold
that he failed to establish standing to challenge law enforcement's search of
them. State v. Granville, 423 S.W.3d 399 (Texas Court of
Criminal Appeals 20140. Accordingly, the
trial court did not abuse its discretion in denying Minassian's motion to
suppress on this ground. Thus, we do not reach the State's further contention
that sufficient exigent circumstances existed for the search.
Minassian v. State,
supra.
You can, if you are interested, read more about the facts in
this case in the news stories you can find here, here and here.
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