Nos. 01-02-00250-CR, 01-02-00251-CR.
Opinion Issued January 9, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.4.
Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause Nos. 886170 and 891639.
Before Justice HEDGES, KEYES, and DUGGAN.
The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.
EVELYN V. KEYES, Justice
James L. Daughtry, III, appellant, was charged in two indictments with possession of a controlled substance. Appellant filed a motion to suppress the evidence. The trial court denied the motion to suppress, and appellant pleaded guilty to both charges of possession of a controlled substance. Appellant was sentenced to three years' confinement on both charges. We affirm.
Facts Possession of Codeine — Cause Number 886170
On August 25, 2001, appellant and David Lee Brown, Jr., pulled into the parking lot of a gas station. Officer D. L. DeBlanc was at the gas station completing an unrelated codeine investigation. DeBlanc saw appellant driving his car with difficulty and almost striking the gas islands. DeBlanc believed appellant was intoxicated. DeBlanc saw Brown fix a drink by pouring liquid from an unmarked medicine bottle into a paper cup. On the basis of his experience, DeBlanc believed that the liquid was codeine syrup. DeBlanc also saw an unlabeled medicine bottle in plain view in the console area of the car. DeBlanc approached the car in a marked police unit and asked Brown to get out of the car. DeBlanc noticed that Brown was shuffling his feet in an attempt to hide a silver .38 caliber handgun on the floorboard. DeBlanc also noticed a strong odor that he recognized as codeine on Brown's breath. DeBlanc reached into the car and took the bottle of Sprite in Brown's possession. At this time, appellant returned to the car from the convenience store. Appellant said to DeBlanc, "We was just drinking a little Lean man, nothing serious." Brown further stated, "Yeah man let us go, we was just drinking syrup." Neither statement was made in response to questioning. Both Brown and appellant were detained while DeBlanc conducted an investigation into their possession of a controlled substance. DeBlanc observed several cups and containers in plain view, which he believed to contain codeine syrup on the basis of their smell and packaging. DeBlanc placed Brown and appellant under arrest for possession of a controlled substance. Appellant claims that Brown had a prescription for the codeine syrup and that DeBlanc came up to the car only because he just "knew" that they had something. Possession of Codeine — Cause Number 891639
On October 22, 2001, appellant was driving a white 1998 Oldsmobile westbound in a school zone at 36 miles per hour (mph). The school zone was clearly marked with a speed limit posted at 20 mph. Officers L. Carrion and M. Hernandez initiated a traffic stop. Appellant stated that he did not have a Texas Driver's License. Carrion asked appellant to step out of the car; and, as appellant was getting out of the car, Carrion smelled a strong odor of burnt marijuana. On the basis of his experience, Carrion detained appellant and called for a canine unit. Carrion conducted a pat down search of appellant and found $1,100 in small bills in appellant's pockets. Officer J. Ivey arrived with his trained and certified drug-sniffing dog, Boris. Boris immediately alerted to the center console of the car. Inside the console was found a baby bottle containing codeine, within reach of appellant. Boris also alerted to the money found on appellant. Appellant's print was lifted off of the bottle containing codeine. Appellant denies that he was driving 36 mph. Appellant stated that he was following behind two other cars that had slowed down upon entering the school zone, and therefore he could not have been speeding. Motion to Suppress
In his sole point of error, appellant argues that the trial court erred in overruling his motion to suppress evidence. He asserts that, in both cause numbers, the seizure of the codeine syrup from him after the officers detained him was illegal because the officers did not have a reasonable suspicion to stop and question him. Generally, a trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). However, when the motion presents a question of law based on undisputed facts we review de novo. See id. Possession of Codeine — Cause Number 886170
It is well settled that items in "plain view" may be seized by law enforcement personnel if two conditions are met. Ramos v. State, 934 S.W.2d 358, 365 (Tex.Crim.App. 1996). These conditions are that: (1) the initial intrusion must be proper; in other words, the police must have a right to be where they are when the discovery is made; and (2) it must be "immediately apparent" to the police that they have evidence before them (i.e., probable cause to associate the property with criminal activity). Ramos, 934 S.W.2d at 365. Not all searches conducted without a warrant are per se unreasonable. Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim. App. 2000). Seizing contraband that is in plain view does not violate the Fourth Amendment. Id. The "plain view" doctrine is not really an "exception" to the warrant requirement because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. Id. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Id. Looking into a vehicle does not violate any privacy interest protected by the Fourth Amendment. Id. at 543-44. DeBlanc had a right to be present in the parking lot of the gas station, and appellant drew DeBlanc's attention by driving erratically and almost hitting the gas pump islands at the gas station; therefore, the initial intrusion was proper. While looking through the window of the car, DeBlanc saw Brown pouring liquid from one container into another. It was immediately apparent from the odor of codeine on Brown's breath and Brown's and appellant's comments that the evidence was before the police. Therefore, the two conditions for seizure of items in plain view were met, and the search and seizure of appellant was proper. Possession of Codeine — Cause Number 891639
A violation of traffic law provides authorization for a police officer to stop a vehicle and detain its occupants briefly. State v. Cardenas, 36 S.W.3d 243, 246 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd); Josey v. State, 981 S.W.2d 831, 837 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). A driver commits a traffic violation if he does not comply with a properly posted speed limit sign. See Tex. Transp. Code Ann. § 544.004(a) (Vernon 1999). A routine traffic stop closely resembles an investigative detention. Martinez v. State, 29 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Law enforcement officers may stop and briefly detain a person for investigative purposes on less information than would be required to support a probable cause determination. Id. (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-81 (1968)). To justify the intrusion, the officer must have specific, articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Id. (citing Terry, 392 U.S. at 21, 88 S.Ct. at 1880). Appellant was driving in excess of the posted speed limit in a school zone; he did not have a Texas Driver's License; there was a strong odor of burnt marijuana; and he had a large amount of cash in small bills. Carrion thus had specific, articulable facts which, in light of his experience and personal knowledge, together with inferences from those facts, warranted the intrusion on the freedom of appellant. We overrule appellant's sole point of error.Conclusion We affirm the judgment of the trial court.