Opinion
No. 04-16-00717-CR
01-24-2018
Jon Erik TORRES, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR10505
Honorable Ron Rangel, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
Jon Erik Torres pleaded nolo contendere to the offense of possession of a controlled substance, methamphetamine, with intent to deliver between one and four grams. The trial court assessed punishment at five years' imprisonment, probated for five years, with a fine of $1,500. In a single issue on appeal, Torres contends the trial court erred by denying his motion to suppress the evidence obtained during a traffic stop. We affirm the judgment of the trial court.
BACKGROUND
On May 14, 2015, Officers Nieto and Vader of the San Antonio Police Department conducted a traffic stop of Torres's vehicle based on the vehicle's expired registration. Officer Nieto approached the vehicle on the passenger side, and as he made contact with the passenger, he smelled the odor of marijuana coming from the vehicle. The officers placed both Torres and the passenger in handcuffs after removing them from the vehicle. Officer Vader arrested Torres for driving without a license.
Officer Nieto saw a plastic bag with white residue on it in plain view on the center console. Officer Nieto recognized the residue as methamphetamine. Additionally, Officer Nieto viewed an open container of beer inside the vehicle. Officer Nieto then searched the vehicle, including the trunk, for narcotics, based on smelling the marijuana odor and seeing the methamphetamine residue and open beer container. The officers seized from the trunk a glass narcotics pipe and a large zip-top bag filled with what was later identified as 3.4 grams of methamphetamine.
A grand jury indicted Torres for the offenses of possession of a controlled substance, methamphetamine, with intent to deliver between one and four grams and possession of a controlled substance, methamphetamine, weighing between one and four grams. Torres filed a motion to suppress all tangible evidence seized; all statements made at the time of and subsequent to the vehicle stop, arrest, and search of Torres and the vehicle; and law enforcement officers' testimony. Torres argued the warrantless search of the vehicle, specifically the vehicle's trunk, was unreasonable. The trial court denied Torres's motion to suppress and entered findings of fact and conclusions of law.
Thereafter, Torres pleaded nolo contendere and was sentenced to five years' imprisonment, probated for five years, with a fine of $1,500. This appeal followed.
STANDARD OF REVIEW
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Turrubiate, 399 S.W.3d at 150. We give almost total deference to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2014). However, we review de novo mixed questions of law and fact that do not depend upon credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). Accordingly, the question of whether a certain set of historical facts gives rise to reasonable suspicion is one which we review de novo. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).
When reviewing the trial court's ruling on a motion to suppress, we view the evidence in the light most favorable to the trial court's ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). 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 fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818. We uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
The defendant in a criminal proceeding who alleges a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Id. The burden then shifts to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances. Id. In this case, the police searched Torres's vehicle without a warrant, and thus the State had the burden to show an exception to the warrant requirement existed. Daves v. State, 327 S.W.3d 289, 292 (Tex. App.—Eastland 2010, no pet.).
DISCUSSION
Torres contends the trial court erred by denying his motion to suppress the evidence found in the vehicle's trunk. Torres argues that Officer Nieto's warrantless search of the vehicle was unreasonable as a search incident to a lawful arrest and that Officer Nieto lacked probable cause to conduct a search of the vehicle.
Torres argues Officer Nieto's search of the vehicle was unreasonable under the search-incident-to-arrest exception to the warrant requirement in light of the United States Supreme Court's holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the Supreme Court held that an officer may conduct a warrantless search of the passenger compartment of a vehicle incident to an arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Gant, 556 U.S. at 335.
Although Gant limited the search-incident-to-arrest exception, other exceptions to the warrant requirement, such as the automobile exception, remained unaffected. See Gant, 556 U.S. at 347. "Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband." Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Given that Torres was driving the vehicle at the time of the traffic stop, there is no dispute the vehicle was "readily mobile." See id. Therefore, the only remaining inquiry is whether the officers had probable cause to believe the vehicle contained contraband. See id.
"Probable cause exists when reasonably trustworthy circumstances within the knowledge of the police officer on the scene would lead him to reasonably believe that evidence of a crime will be found." Turrubiate, 399 S.W.3d at 151. When probable cause exists to search a vehicle, "the police may search 'every part of the vehicle and its contents that may conceal the object of the search.'" Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008) (quoting United States v. Ross, 456 U.S. 798, 825 (1982)).
The facts before us are similar to other cases in which Texas courts have held that the odor of marijuana alone is sufficient to give an officer probable cause to search a vehicle. See Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006); Moulden v. State, 576 S.W.2d 817, 818-20 (Tex. Crim. App. 1978); Brenes v. State, 488 S.W.3d 384, 390 (Tex. App.—Texarkana 2016, pet. ref'd). Texas courts have also held that observing drugs in plain view provides probable cause to search all parts of a vehicle. See Barnes v. State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo 2014, no pet.) (holding that an officer had probable cause to search an entire vehicle upon seeing a glass jar containing a green leafy substance in the vehicle); Alcorta v. State, 699 S.W.2d 605, 607 (Tex. App.—Waco 1985, no writ) (holding an officer had probable cause to search an entire vehicle upon seeing a marijuana cigarette in the vehicle).
In this case, Officer Nieto smelled the odor of marijuana and saw a plastic bag with what Nieto recognized as methamphetamine residue on it in plain view. Based on his observations, Officer Nieto reasonably believed the vehicle contained contraband.
Accordingly, we hold the search of Torres's vehicle was supported by probable cause and the trial court correctly denied his motion to suppress.
CONCLUSION
Based on the foregoing reasons, we affirm the judgment of the trial court.
Irene Rios, Justice DO NOT PUBLISH