Opinion
NO. 09-20-00038-CR
09-16-2020
THE STATE OF TEXAS, Appellant v. RYAN LANIER VAWTER, Appellee
On Appeal from the County Court at Law Polk County, Texas
Trial Cause No. 2018-0523
MEMORANDUM OPINION
Appellee Ryan Lanier Vawter was charged by information for the offense of driving while intoxicated. See Tex. Penal Code Ann. § 49.04(a). Vawter filed a motion to suppress, and after a hearing, the trial court granted the motion. In this accelerated appeal, the State appeals the trial court's order granting Vawter's motion to suppress. We affirm.
The parties agree that Vawter was also charged by information for the offenses of possession of marijuana in an amount less than two ounces and for unlawfully carrying a weapon. However, the appellate record reflects that this appeal pertains solely to the offense of driving while intoxicated, and we confine our analysis to the issues and record before us.
The State may appeal an order granting a defendant's motion to suppress provided jeopardy has not attached. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5); State v. Wachtendorf, 475 S.W.3d 895, 899 (Tex. Crim. App. 2015).
Suppression Hearing
Vawter filed a motion to suppress his breath samples, video evidence of a field sobriety test, any other tangible evidence (including marijuana and a weapon) seized by law enforcement pursuant to Vawter's detention and arrest, and statements Vawter made to law enforcement, which the State obtained prior to the issuance of a warrant. At the suppression hearing, Vawter expressly did not contest reasonable suspicion for the traffic stop, and he did not contest the warrant that the State obtained for a subsequent blood draw, or the result from the blood draw.
Deputy Austin McCracken with the Polk County Sheriff's Office testified at the suppression hearing. According to McCracken, on July 1, 2018, he stopped a vehicle for speeding at about 1:25 a.m., and the radar confirmed that the vehicle was traveling 73 miles per hour in a 60 mile per hour zone. The Deputy testified that he approached the vehicle on the passenger side and conducted a traffic stop on the vehicle, and Vawter was the only person in the vehicle. McCracken testified that as soon as he started talking with Vawter, he smelled cologne and the "very strong odor" of marijuana and an alcoholic beverage coming from inside the vehicle "mainly" on the driver's side. According to McCracken, in his experience, many people try to mask the odor of marijuana or alcohol by using cologne or air fresheners. McCracken denied searching the vehicle as soon as he smelled marijuana, even though he testified that the odor of marijuana gives law enforcement probable cause to search a vehicle. McCracken testified that he asked Vawter whether he had a weapon, and Vawter looked towards the dash, where McCracken observed a handgun "in plain view[.]" The Deputy testified that he then detained Vawter at gunpoint, restrained his hands behind his back, patted him down, and recovered the weapon from inside the vehicle. According to McCracken, he then took Vawter to the county jail where a field sobriety test was administered. McCracken testified that, under the totality of the circumstances, he concluded that Vawter was intoxicated. McCracken recalled that Vawter did not consent to a blood draw, and McCracken obtained a search warrant for a blood draw.
On cross-examination, McCracken agreed that after he stopped Vawter, McCracken opened the passenger side door of Vawter's vehicle, and according to McCracken, Vawter was not under arrest at that time but was detained. Also on cross-examination, McCracken agreed that he did not see a weapon in Vawter's vehicle until he opened the door and got inside the vehicle, he stopped Vawter at 1:25 a.m., he opened the door of Vawter's vehicle at 1:26:20 a.m., he drew his gun at 1:27:11 a.m., he read Vawter his rights at 1:29 a.m., and he indicated he detected an odor of marijuana at 1:30:20 a.m. and stated that he saw a gun. When asked why he did not indicate that he smelled marijuana until four minutes after opening the vehicle door, McCracken answered, "Just because I did not state it on body camera does not mean I don't smell it." McCracken agreed he did not see marijuana in plain view.
McCracken identified State's Exhibit 1 as a video recording made from his body camera on the night of the traffic stop and that the recording indicates the exact timing of events. In a second hearing on the motion to suppress, the State offered Exhibit 2 into evidence, a dash cam video recording.
After the hearings, the trial court granted the motion to suppress and entered the following findings of fact and conclusions of law:
Findings of Fact
1. On July 1, 2018, Deputy Austin McCracken of the Polk County Sheriff[']s Department conducted a lawful stop for speeding of a vehicle being driven by Ryan Lanier Vawter, the Defendant herein, on US 190 in Polk County, Texas.
2. When the Defendant herein stopped on the paved shoulder of the highway, Deputy McCracken parked behind Defendant's vehicle.
3. Deputy McCracken exited his vehicle and on foot approached Defendant's vehicle on the passenger side of the vehicle.
4. Deputy McCracken almost immediately opened the passenger door of Defendant's vehicle and entered the interior space of the vehicle.
5. No explanation of any kind was offered for the opening of the passenger door of Defendant's vehicle by Deputy McCracken.
6. All evidence discovered in this cause directly resulted from Deputy McCracken's opening the passenger door of the Defendant's vehicle.
7. No warrant of any kind existed at any point relevant herein.
Conclusions of Law
1. No exigent circumstance was proven to authorize Deputy McCracken's intrusion into Defendant's vehicle.
2. There was no proof of any probable cause to believe that the vehicle contained contraband at the time Deputy McCracken opened the passenger door of the Defendant's vehicle.
3. The opening of the door and intrusion into Defendant's vehicle was per se unreasonable.
4. All evidence resulting from the openings of the Defendant's vehicle and subsequent search of the vehicle and the Defendant is excluded in this cause by Article 38.23, Code of Criminal Procedure.
We abated the appeal and remanded the matter to the trial court for additional findings of fact. The trial court entered the following Supplemental Findings of Fact:
1. During the suppression hearing, Deputy Austin McCracken testified that he smelled marijuana and alcohol as soon as he started to talk to the driver. The Court finds this testimony credible.
2. The Court finds, after a careful examination of State's Exhibit 2, that the passenger door window of Defendant's vehicle was closed at all relevant times and the Deputy did not talk to the Defendant prior to opening the passenger door of Defendant's vehicle.
3. Defendant did not give Deputy McCracken permission to open a door or enter his vehicle.
4. Deputy McCracken never testified that he smelled marijuana or alcohol prior to opening the passenger door. The Court finds that there was no credible evidence that these substances were smelled prior to the Deputy opening the passenger door and partially entering the vehicle.
5. Deputy McCracken gave conflicting testimony concerning when he saw a weapon in Defendant's vehicle. Any testimony that he saw the weapon or any other substance prior to entering Defendant's vehicle is not credible.
Issue
The State argues that the trial court erred in granting Appellee's motion to suppress and that, under the totality of the circumstances, the State met its burden to prove that the warrantless search of Appellee's vehicle was based on probable cause and consistent with the automobile exception to the Fourth Amendment's requirement of a warrant. According to the State, Deputy McCracken testified that upon contact with Appellee's vehicle he immediately smelled marijuana and an alcoholic beverage, and it was the odor of marijuana that gave him probable cause to search Appellee's vehicle.
Standard of Review and Applicable Law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to a trial judge's determination of historical facts, especially when those determinations are based on assessments of credibility and demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We also give deference to the trial court's rulings that apply the law to the facts if those determinations turn on credibility or demeanor. Id. We review de novo mixed questions of law and fact that do not turn on credibility and demeanor. Id. At a suppression hearing, the trial judge is the sole trier of fact and exclusive judge of the credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
The same deferential standard of review applies to a trial court's determination of historical facts, demeanor, and credibility even when that determination is based on a video recording. State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). The Texas Court of Criminal Appeals has expressly rejected the proposition that a video changes the "almost total deference" standard. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). Still, we must determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports the trial court's fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); State v. Houghton, 384 S.W.3d 441, 446 (Tex. App.—Fort Worth 2012, no pet.) (a reviewing court should give almost total deference to the trier of fact's factual determinations unless the video recording indisputably contradicts those findings).
When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. Kelly, 204 S.W.3d at 818; see also State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (recognizing findings and conclusions may be "stated on the record at the hearing[ ]"). We then exercise de novo review of the trial court's legal rulings unless the trial court's explicit fact findings that are supported by the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 818.
Pursuant to the Fourth Amendment, a warrantless search is per se unreasonable unless it falls within an exception to the rule requiring a warrant. Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017) (citing Arizona v. Gant, 556 U.S. 332, 338 (2009); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)). The automobile exception allows for the warrantless search of an automobile when "'it is readily mobile and there is probable cause to believe that it contains contraband.'" Marcopoulos, 538 S.W.3d at 599 (quoting Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009)). Where, as here, there is no question that the defendant's vehicle was readily mobile, the only relevant inquiry is whether the officer had probable cause to believe the vehicle contained contraband. Id.
"Probable cause exists where the facts and circumstances known to law enforcement officers are sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Id. at 599-600 (internal quotation omitted). "The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer[.]" Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). A reviewing court must consider the totality of the circumstances known to the officer. Marcopoulos, 538 S.W.3d at 600.
Analysis
The State emphasizes that the Deputy smelled marijuana and that when an officer smells marijuana during a traffic stop, it provides probable cause to search the vehicle for contraband. We agree that the odor of marijuana may, by itself, supply probable cause to search for contraband. See Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. 1979); Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim. App. 1977). In supplemental briefing, the State argued that the Supplemental Findings of Fact "unequivocally" state that
During the suppression hearing, Deputy Austin McCracken testified that he smelled marijuana and alcohol as soon as he started to talk to the driver. The Court finds this testimony credible [emphasis added].According to the State, the Deputy was objectively justified under the automobile exception to search Appellee's vehicle when he smelled the odor of marijuana coming from Vawter's vehicle.
However, the trial court also found that the passenger door window of Vawter's vehicle was closed "at all relevant times[,]" that the Deputy did not talk to Vawter prior to opening the passenger door, and that there was no credible testimony that the Deputy smelled marijuana prior to opening the passenger door and partially entering the vehicle. In addition, the court found that Vawter did not give the Deputy permission to open the door or enter the vehicle and that any testimony that the Deputy observed contraband prior to entering Vawter's vehicle was not credible.
Deferring to the trial court's findings of fact and viewing the evidence in a light most favorable to the trial court's ruling, as we must, the trial court could have reasonably concluded from the evidence at the suppression hearing that the Deputy opened Vawter's car door and entered Vawter's vehicle without a warrant, without consent, and before he smelled marijuana. We must defer to the trial court on credibility findings, and therefore we conclude that the trial court did not err in granting the motion to suppress. See Marcopoulos, 538 S.W.3d at 599-600; Arguellez, 409 S.W.3d at 662. Accordingly, we overrule the State's issue and affirm the order of the trial court.
We note, as stated earlier, the record before us indicates the State obtained a warrant for a blood draw. A blood draw is valid under the Fourth Amendment if it is executed pursuant to a valid warrant and is reasonable under the totality of the circumstances. See State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2014). Testimony from the hearing reflects that the Defendant expressly did not challenge the warrant authorizing the blood draw or the results of the blood draw:
[Defense counsel]: . . . we're not contesting the reasonable suspicion for the stop. We're moving to suppress from the probable cause and when the officers went ahead and arrested my client, not based on the blood draw warrant.
THE COURT: Okay. The warrant was blood draw at the hospital?
[Defense counsel]: Yes, Your Honor. And we're not -- we're not contesting that.
THE COURT: And by that point, it's -- everything's
[Defense counsel]: Well, I mean, there was some -- the affidavit's vague; but -- but we think it doesn't even reach to that level, Your Honor. What we are asking today is that
THE COURT: We are talking about the stop and what happened out on the road before it got to the hospital and there was no warrant?
[Defense counsel]: Yes, Your Honor.
THE COURT: That's all you're complaining about today?
[Defense counsel]: That's all we're complaining [about] today, yes, Your Honor.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on April 13, 2020
Opinion Delivered September 16, 2020
Do Not Publish Before Kreger, Horton and Johnson, JJ.