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Click here for the full text of this decision FACTS:In November 2001, plainclothes police officers were guarding the mayor of Houston’s house when they observed a car drive by; one of the car’s occupants hurled a pumpkin out of the window onto a parked car, damaging that car. The two officers, Seaglar and Myers, followed the car and observed it break several traffic rules. The officers called for backup and got the car to pull over. Officers Giannavola and Mora reported to the scene and took over, while Seaglar and Myers returned to the mayor’s house. Richards, the driver, was arrested for traffic violations. One passenger, Douglas, was arrested for criminal mischief, for having thrown the pumpkin. Two more passengers, who were juveniles, were taken in for curfew violations. Mora noticed that Richards’ car was parked illegally, more than 18 inches away from the curb, so Mora decided that the car should be impounded once Richards was taken into custody. Before the car was towed, Mora took an inventory of it. He opened the trunk and noticed a backpack that Richards said was his. Opening the backpack, Mora found marijuana and peyote. Richards was arrested for possession of marijuana. Initially charged with misdemeanor possession of marijuana, Richards moved to suppress the evidence found in the backpack. The state dropped the misdemeanor charge and instead pursued a felony charge of possession of peyote. Richards again moved to suppress the evidence, but the trial court denied the motion. Richards challenges that ruling on appeal. As an initial matter, the state argues that it had no burden to prove the legality of the search because Richards never first provided direct evidence that the search was conducted without a warrant. HOLDING:Affirmed. The court notes that in Russell v. State, 717 S.W.2d 7 (Tex.Crim.App. 1986), the rule is generally that when a defendant seeks to suppress evidence on the basis that a search was performed in violation of the Fourth Amendment, the initial burden is on the defendant to rebut the presumption of proper police conduct. In Telshow v. State, 964 S.W.2d 303, (Tex. App. � Houston [14th Dist.] 1998, no pet.), this court has interpreted the Russell holding to mean that a defendant must meet his burden by producing affirmative evidence showing there was no warrant; circumstantial evidence will not suffice. The court, however, observes that the high court in Bishop v. State, 85 S.W.3d 819 (Tex.Crim.App. 2002), did not require such a heavy burden on the defendant. The court concludes that its requirement in Russell � that the showing be based on affirmative evidence � “appears to be more stringent than the requirement of the Court of Criminal Appeals.” Even though the Bishop case is not directly on point, the court takes it as an indication that a defendant can meet the burden of showing there was no warrant with less than affirmative evidence. Consequently, based on Russell and Bishop, the court holds that a defendant can meet his burden of demonstrating that an arrest was performed without a warrant with circumstantial evidence. “To the extent that Telshow and similar cases hold to the contrary, they are overruled.” The court then confirms that Richards met his burden of proof. The trial court impliedly found that he met his burden when it placed the burden of proceeding on the state, and the state accepted the burden without objection. Furthermore, based on the way the arrest took place � with officers responding to something they saw right then, and proceeding through to arrest without stopping � it is evident the officers did not arrest Richards pursuant to a warrant. The court then turns to Richards’ substantive arguments. He claims that the trial court erred in denying the motion to suppress because he was not given alternatives to having his car impounded. He says he should have been offered the option of leaving his car legally parked at the scene. The court finds that under the standard police policy, the officers are not required to offer someone to park his or her car legally. Richards also argues that he should have been allowed to release the car to one of his passengers. However, one passenger was under arrest as well, and the two juvenile passengers would have been in further violation of curfew if they’d been allowed to drive Richards’ car. Richards lastly says that he should have been allowed to leave the car at the nearby home of one of the passengers. Common law does not require that police offer such an option, the court finds. Though Richards claims that it was bad faith for the officers to impound the car, the court finds that the officers could not have acted in bad faith in failing to offer unavailable alternatives to towing. Although there is some evidence the officers did not offer the alternatives because they were unaware of the policy, such ignorance would not rise to the level of bad faith. The court rejects Richards’ argument that the search of the trunk was not made pursuant to any established department guidelines. The court, however, points out that department guidelines do provide for the inventory of vehicles before they are impounded. Although there is apparently no written policy governing inventory searches of closed containers, there is evidence of an established routine governing the opening of closed containers, the court finds. Furthermore, there is no evidence that the search was a ruse to discover incriminating evidence; searching the locked trunk and backpack furthered the purpose of allowing inventory searches. OPINION:Fowler, J.; en banc.

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