
    The STATE of Texas v. Kimberly Crystal STORY, Appellee.
    No. PD-0590-13.
    Court of Criminal Appeals of Texas.
    Oct. 15, 2014.
    
      David J. Eveld, Seguin, TX, for Appellant.
    Stacey Goldstein, State Prosecuting Attorney, Austin, TX, Lisa C. McMinn, State’s Attorney, Austin, TX, for the State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court, in which

JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

Appellee, Kimberly Story, was charged with forgery after police found forged checks in her car. See Tex. Penal Code § 32.21 (2014). The trial court, however, granted her motion to suppress the cheeks that were recovered from her vehicle, which was searched during the arrest of Appellee and her boyfriend, James Kuyk-endall, for unrelated offenses. The trial court determined that Appellee was arrested without probable cause and that the search of her vehicle and seizure of the evidence found there were the result of a trespass by the officer. The court of appeals affirmed the ruling of the trial court, finding no abuse of discretion in the court’s conclusion that Appellee’s arrest was unlawful and the evidence inadmissible. State v. Story, No. 04-12-00235-CR, 2013 WL 1640781, at *4, 2013 Tex.App. LEXIS 4769, at *10 (Tex.App.-San Antonio April 17, 2013) (mem. op., not designated for publication). We agree with the court of appeals that the trial court did not abuse its discretion and, therefore, affirm its judgment.

BACKGROUND

Sheriffs deputies responded to an anonymous report of a vehicle chasing and possibly attempting to run over a man in a field. When the officers arrived, they found an SUV parked in the field, but no one else was present. The deputies found James Kuykendall walking alone on a nearby street and, after speaking with him, learned that he was the man described in the report. Because Kuyken-dall’s story was vague, they transported him back to the scene where the SUV was parked to try to get more information from him. Appellee then appeared, and the couple told the officers that they had both been in the car when they had an argument and Kuykendall got out. They explained that Appellee then followed Kuykendall in the car, trying to convince him to get back in. Both agreed that “nothing had happened, that it was just an argument.” However, Appellee was arrested for misdemeanor assault.

Prior to Appellee’s arrest, a deputy was walking by her vehicle and saw, in plain view, what he thought to be marijuana sitting on the floor by the passenger seat. Appellee was then arrested for the assault and the officers searched her vehicle. The officers collected the marijuana and arrested Kuykendall because he admitted that it was his. During the search of the entire passenger compartment of Appellee’s vehicle, the deputies also found several checks laid out in the back seat. All of the checks were from the Youth Livestock Show and were either made out to Appellee or blank. Appellee’s brother, who had come down to the scene at some point, confirmed for the officers that Appellee was not supposed to have the checks. The deputies seized the checks, and Appellee was later indicted for forgery.

Appellee filed a motion to suppress the checks, which the trial court granted. The trial court concluded that there was no probable cause to arrest Appellee for assault, that the deputy had no reason to look into the vehicle, and that the deputy trespassed when he went into the field and looked into the vehicle’s windows. Therefore, the court found that the seizure of the marijuana was illegal, as was the resulting seizure of the checks.

COURT OF APPEALS

The court of appeals held that “the evidence supports the conclusion that the checks were obtained by exploiting Story’s unlawful arrest” and, therefore, their suppression by the trial court was proper. Story, 2013 WL 1640781, at *4, 2013 Tex. App. LEXIS 4769, at *10. It concluded that the evidence supported the -trial court’s conclusion that Appellee’s arrest for misdemeanor assault was unlawful because the report from the anonymous caller was not sufficient to establish probable cause and both parties explained they were only having an argument. Id. at *3-4, 2013 TexApp. LEXIS 4769, at *9. Further, her arrest was not made under a circumstance that authorizes a warrantless arrest, such as committing an offense in the presence of an officer. Id. The State did not attempt to argue that Appellee’s arrest was lawful, but instead claimed that the checks were seized subject to Kuyken-dall’s arrest, rather than Appellee’s. The court of appeals found this “unconvincing.” Id. Determining that the trial court’s suppression ruling was reasonably supported by the record, the court of appeals affirmed the motion to suppress. Id. at *3-4, 2013 Tex.App. LEXIS 4769, at *9-10.

ARGUMENTS OF THE PARTIES

The State asserts that the court of appeals erred in holding that the seizure of the checks following a warrantless search of Appellee’s SUV was tainted by her unlawful arrest as fruit of the poisonous tree. It argues that the checks are admissible against Appellee because they were lawfully seized pursuant to Kuykendall’s arrest. Further, the State contends that the deputies’ entry onto the field was lawful under the “open fields” doctrine and that the marijuana was in plain sight when the officer looked through the car’s window. Therefore, Kuykendall was lawfully arrested after taking responsibility for the drugs, and there was probable cause to seize the marijuana. The State argues that the checks were in plain view in the back seat and that their incriminating character was immediately apparent.

Alternatively, the State contends that remand to the court of appeals would be appropriate because the court of appeals did not consider the admissibility of the checks under the theory that the search was valid pursuant to Kuykendall’s arrest. Appellee counters that the testimony from one of the officers present that night made clear that the search was conducted pursuant to Appellee’s arrest. Further, Appel-lee points out that the court of appeals did directly address the State’s theory and found it unconvincing.

Appellee also argues that, because it was not brought up on direct appeal, the State cannot now raise a challenge to the trial court’s conclusion that the deputy trespassed prior to the search of Appellee’s vehicle. Regardless, however, Appellee asserts that the State misunderstands the open-fields doctrine, because an intrusion on an open field by law enforcement is considered trespass. See Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The trial court was correct in concluding that a trespass occurred, that the deputy had no reason to look inside the vehicle, and that the search of the vehicle was illegal.

STANDARD OF REVIEW

We will review a lower court’s ruling on the motion to suppress for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). The record will be viewed in the light most favorable to the trial court’s determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.; Montgomery v. State, 810 S.W.2d 372, 391-92 (Tex.Crim.App.1991). We will uphold the judgment if it is correct on some theory of law applicable to the case, even if the trial judge made the judgment for a wrong reason. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Further, a trial court’s ruling will not be reversed based on a legal theory that the complaining party did not present to it. Hailey v. State, 87 S.W.3d 118, 122 (Tex.Crim.App.2002). Because the trial court is the sole trier of fact, we will give almost total deference to the its determination of historical facts. Dixon, 206 S.W.3d at 590. The trial court’s application of the law to those facts, however, is reviewed de novo. Id.

ANALYSIS

In its first issue, the State argues that Appellee’s vehicle was searched pursuant to Kuykendall’s arrest and that a step-by-step application of the law to the facts shows that the trial court erred in rejecting this claim. The first step in the State’s proposed analysis is finding the deputies’ entry into the unoccupied field lawful under the open-field doctrine. From this lawful entry, the State says, the officers developed probable cause to arrest Kuyk-endall and, subsequently, the probable cause for the search of the rest of the vehicle.

First, as discussed, an appealing party may not present a theory for the first time on appeal. Hailey, 87 S.W.3d at 122. Here, the State never presented any evidence concerning the open-field doctrine or even raised the doctrine as part of its argument at either the trial court or the court of appeals. Therefore, while the State’s theory might be valid to justify the search, it needed to be raised in the trial court in order for us to consider it. Despite this requirement, during the suppression hearing, the State never asserted that the area where the vehicle was located was an “open field” in the legal sense, nor did the State provide any evidence to support such a determination.

The State also asserts that, contrary to the trial judge’s conclusion, there is no evidence that the officers were trespassing because there is no evidence that the unknown owner prohibited entry. There is no evidence on this issue, however, because the State did not present any. Because the State had the burden of proving that the location was an open field, the lack of evidence undermines the State’s argument rather than supports it. This open-field claim should have been raised at the suppression hearing in order to avoid what, due to the lack of evidence, would only be speculation on our part due to the lack of evidence. Because the trial court never had the opportunity to rule upon it and Appellee never had a chance to rebut it, the State cannot now rely on its open field theory. Therefore, the State’s theory that the checks were properly seized pursuant to Kuykendall’s arrest is missing its essential first link of the deputies’ entry into the field being lawful.

Further, one of the officers who testified at the suppression hearing stated that the search of the vehicle was conducted pursuant to Appellee’s arrest, and no officers testified otherwise. Therefore, the court of appeals did not err in rejecting the State’s theory that the search occurred pursuant to Kuykendall’s arrest.

The record also supports the trial court’s conclusion that Appellee’s arrest was unlawful for a lack of probable cause, which is required in order for an officer to make an arrest without a warrant. An officer has probable cause when he has knowledge of facts that would lead a reasonable person to believe that the suspect has committed a crime or will soon do so. Neal v. State, 256 S.W.3d 264, 280 (Tex.Crim.App.2008). Only when the officer has probable cause to arrest the suspect may the officer conduct a warrantless search of the passenger compartment of the suspect’s vehicle as a search incident to the arrest. State v. Ballard, 987 S.W.2d 889, 892 (Tex.Crim.App.1999). Any evidence that is obtained directly pursuant to an unlawful arrest, however, cannot be used unless the State can show that the means by which it was obtained are “sufficiently distinguishable” from the taint of the original unlawful search. Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Further, an anonymous call, standing alone, cannot serve to supply probable cause for a war-rantless search or arrest. Rojas v. State, 797 S.W.2d 41, 43 (Tex.Crim.App.1990). There must be additional facts or circumstances that support an officer’s finding of probable cause. Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991).

In this case, both of the involved parties indicated that they were having an argument and that Appellee was simply driving beside Kuykendall in her car. Without additional facts and circumstances indicating that Appellee had committed or was committing an offense, the anonymous call could not serve as the basis for the probable cause required for her arrest. Therefore, viewing the record in the light most favorable to the trial court’s ruling, the conclusion that Appellee’s arrest was made without probable cause is supported by the evidence. Because it was not error to find Appellee’s arrest unlawful, it was similarly reasonable for the trial court to conclude that any evidence found pursuant to that arrest was not admissible. We conclude, therefore, that the trial court did not abuse its discretion in suppressing the checks and the court of appeals did not err in affirming the trial court’s ruling.

Alternatively, the State argues that remand is appropriate because the court of appeals did not analyze the argument that the checks were lawfully seized pursuant to Kuykendall’s arrest. The court of appeals, however, did directly deal with the issue, stating, “Instead of addressing the matter of Story’s unlawful arrest, the State argues the deputies obtained the checks lawfully in a search incident to Kuykendall’s arrest. We find this argument unconvincing. The evidence- supports the conclusion that the checks were obtained by exploiting Story’s unlawful arrest.” Story, 2013 WL 1640781, at *4, 2013 Tex.App. LEXIS 4769, at *10. The court of appeals explained, albeit briefly, that it is rejecting the State’s argument because it is contrary to the evidence. Considering that the evidence presented at the suppression hearing directly indicated that the search was made pursuant to Appellee’s arrest, not Kuykendall’s, we find the court of appeals’ explanation to be satisfactory and that remand of this case for the issue to be reconsidered is not the appropriate disposition.

CONCLUSION

The record, viewed in the light most favorable to the trial judge’s ruling, supports the conclusion that Appellee’s arrest was unlawful, as was the subsequent search of her vehicle incident to that arrest. The trial court did not abuse its discretion, and its ruling was not arbitrary or unreasonable. Therefore, we affirm the court of appeals’s judgment that upheld the trial court’s ruling to suppress the checks.

KELLER, P.J., filed a dissenting opinion in which Price, J., joined. WOMACK, J., concurred.

KELLER, P.J.,

filed a dissenting opinion in which PRICE, J., joined.

The State contends that the deputies lawfully entered an open field and developed probable cause to arrest from this lawful entry. The Court says that the State cannot rely upon the “open fields” doctrine because the issue was not raised in the trial court. But we have held that a State-appellant may raise for the first time on appeal an issue, such as standing, on which the defendant had the burden of proof at the suppression hearing. By bringing a Fourth Amendment claim, ap-pellee was on notice that she had the burden of establishing a privacy interest with respect to the premises.

In the present case, the State did not even need the “open fields” doctrine; the record contains no evidence that appellee had any ownership or possessory interest in the field in question. Without such an interest, appellee cannot possibly have an expectation of privacy with respect to the deputies’ entry onto the field. But even if the State needed the “open fields” doctrine, that doctrine has been construed to be part of the expectation-of-privacy inquiry upon which the defendant has the burden of proof. Contrary to the Court’s position, the State had no burden to show that the deputies were not trespassers or that the field in question was an open field.

The Court further contends that the deputies lacked probable cause to arrest because appellee was simply driving beside James Kuykendall in her car and because an anonymous call cannot be the sole basis for an arrest. But before anyone was arrested, one of the deputies saw what appeared to be marijuana, in plain view, on the front passenger floorboard. Under the automobile exception, an officer can enter and search a car if he has probable cause to believe the car contains contraband. The presence in plain view of what appeared to be marijuana gave the deputies probable cause to enter the vehicle and ascertain that it was in fact marijuana. Once the item on the front passenger floorboard was determined to be marijuana, the deputies had probable cause to search the remaining portions of the front and back seat areas of the car to determine if more marijuana was present. It was in the course of that search that the deputies stumbled upon the checks.

I respectfully dissent. 
      
      . The following findings of fact accompanied the trial court’s conclusions of law: (1) on November 7, 2010, the Sheriff's Department received an anonymous call that "there was a vehicle in the field that was chasing a male as if they were trying to run him over;” (2) when deputies arrived at the scene no one was present; (3) the possible male (Kuykendall) was located elsewhere and brought back to the scene by a deputy; (4) the defendant (Story) was at the scene. How or when she came to be there is unknown; (5) Kuykendall and defendant told the deputies that nothing had happened and they were only having some kind of argument; (6) There was no emergency, no one was in danger. The community did not need any care taking; (7) Kuykendall and defendant were arguing because the deputy had brought Kuykendall back to the scene; (8) a deputy went into the field where the Explorer was located and looked inside the vehicle; (9) the deputy did not ask anyone for permission to enter the field and look into the vehicle; (10) the deputy had no reason to look into the vehicle; (11) Defendant was in custody for assault family violence and Kuykendall was 15-20 feet from the vehicle; (12) deputies entered the vehicle and seized suspected marijuana; (13) Kuyk-endall was arrested and placed in a patrol car after he admitted the marijuana was his; (14) after entering the vehicle to seize the marijuana, the deputy searched the passenger area for any other contraband; (15) the deputy sees the checks in the backseat area of the vehicle. The checks are not contraband; (16) "upon further inspection of the checks” the deputy noticed the payee on the checks was defendant; (17) no photographs of the back seat area were taken even though a camera was available. Photographs would have verified what the deputy saw in the back seat; (18) the deputy seized the checks as evidence of a crime without a search warrant issued by a judge only on his "suspicion that the checks were fraudulently written out and stolen possibly;” (19) the defendant owned the vehicle; (20) only after further investigation was probable cause established that defendant had committed the offense of a forgery.
     
      
      . State v. Mercado, 972 S.W.2d 75, 77-78 (Tex.Crim.App.1998); State v. Klima, 934 S.W.2d 109 (Tex.Crim.App.1996).
     
      
      . Klima, 934 S.W.2d at 111.
     
      
      . See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (defendant "bears the burden of proving ... that he had a legitimate expectation of privacy” in the subject of the search); Rakas v. Illinois, 439 U.S. 128, 131 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”); United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980) ("it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he ... establish, that he himself was the victim of an invasion of privacy”) (ellipsis in Salvucci).
     
      
      . United States v. Jones, - U.S. -, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012) ("Quite simply, an open field, unlike the curti-lage of a home is not one of those protected areas enumerated in the Fourth Amendment. The Government's physical intrusion on such an area — unlike its intrusion on the "effect” at issue here — is of no Fourth Amendment significance.") (citations omitted); United States v. Mathis, 738 F.3d 719, 729-31 (6th Cir.2013); United States v. Royster, 436 F.3d 986, 991 (8th Cir.2006); Fullbright v. United States, 392 F.2d 432, 434-36 (10th Cir.1968); Casey v. State, 87 Nev. 413, 415, 488 P.2d 546, 548 (1971). See also State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991) ("Federal law places the burden on the defendant to establish a reasonable expectation of privacy in the area searched in order to claim rights under the Fourth Amendment. Thus, under federal law, the open fields doctrine is not generally treated as an exception to the warrant requirement.”).
     
      
      . United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (automobile exception allows officers who have probable cause to search a vehicle without a warrant); Keehn v. State, 279 S.W.3d 330, 331, 335-36 (Tex.Crim.App.2009).
     
      
      . Texas v. Brown, 460 U.S. 730, 739-44, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (when officer observed what appeared to be a drug balloon inside the car, he was permitted to enter the car and seize it); Keehn, 279 S.W.3d at 336 (officer could enter van parked in suspect’s driveway and seize tank seen through van window that, from officer’s experience, was likely to contain a precursor to methamphetamine)
     
      
      . See United States v. Staula, 80 F.3d 596, 603 (1st Cir.1996) ("Tyrie’s discovery of the marijuana gave him probable cause to continue to hunt within the passenger compartment for more contraband.”); Meekins v. State, 340 S.W.3d 454, 467 & n. 1 (Tex.Crim.App.2011) (Johnson, J., concurring) (finding marijuana on the suspect’s person in a traffic stop would give rise to probable cause to search the suspect’s vehicle).
     