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Weaver v. State

Court of Appeals Seventh District of Texas at Amarillo
Feb 18, 2016
No. 07-15-00223-CR (Tex. App. Feb. 18, 2016)

Opinion

No. 07-15-00223-CR

02-18-2016

KEVIN SCOTT WEAVER, APPELLANT v. THE STATE OF TEXAS, APPELLEE


On Appeal from the 69th District Court Moore County, Texas
Trial Court No. 5090, Honorable Ron Enns, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Following the denial of his motion to suppress, appellant, Kevin Scott Weaver, entered an agreed plea of guilty to possession of a controlled substance, methamphetamine, weighing one gram or more but less than four grams. Pursuant to the plea agreement, the trial court found the evidence substantiated appellant's guilt; however, the trial court deferred entering a finding of guilt and placed appellant on community supervision for ten years. Appellant appeals the denial of his motion to suppress the evidence. We will reverse.

Factual and Procedural Background

Appellant was stopped for the traffic offense of speeding in Moore County, Texas, by Texas Department of Public Safety Trooper Colter Wade. As a result of this traffic stop, Wade eventually called for a K-9 unit to perform an open air search of the vehicle. Based upon the canine's alert on the vehicle, appellant's car was searched and several items of contraband were found in the vehicle. Appellant was indicted for possession of methamphetamine in an amount of one gram or more but less than four grams.

Appellant does not contest the validity of the initial traffic stop. Instead, appellant focuses his arguments on what transpired after he was stopped for speeding. Following his indictment, appellant filed a motion to suppress the evidence procured during the traffic stop. After hearing the testimony at the motion to suppress hearing and viewing the dash camera recording, the trial court denied appellant's motion to suppress. At the request of appellant, the trial court entered findings of fact and conclusions of law.

During the hearing on the motion to suppress, Trooper Wade testified about his observations and conclusions. According to Wade's testimony, appellant was extremely nervous when Wade made contact with him. Wade testified that appellant's hands were shaking so bad that appellant had trouble retrieving his driver's license from his wallet. Likewise, Wade testified that appellant's voice was shaky and breaking. Wade opined that appellant was noticeably more nervous than most people he came into contact with when stopping them for a traffic offense.

After stopping the vehicle, Wade asked appellant to step out of the vehicle and to the rear. Wade then began questioning appellant about where he was coming from. Upon learning that appellant was coming from Colorado, Wade immediately inquired into the purpose of the trip, who he was with, and what they had done. Wade then inquired about whether appellant had smoked any marijuana while in Colorado. Appellant denied having done so. Wade asked appellant if he had ever been convicted of any offense and was advised by appellant that he did have a conviction for D.W.I. in 1985. When asked when was the last time he smoked marijuana, appellant advised that he did not do that stuff.

Wade eventually took appellant's driver's license information and checked for any warrants outstanding against appellant. Wade issued a warning ticket to appellant for the offense of speeding but continued to question him about using and possessing marijuana. According to Wade's testimony, at one point, appellant admits being a member of "Narcotics Anonymous" which Wade contends is a direct contradiction of appellant's earlier statement that he did not use marijuana or drugs. Thereafter, Wade asked permission to search appellant's vehicle and the request was denied. Wade then called the K-9 unit to come out and do an open air search around appellant's vehicle.

A review of the dash camera recording reveals that the following events occurred at the minutes and seconds specified after the initiation of the traffic stop:

1:50 Appellant pulls to the side of the road.
2:22 Wade begins talking to appellant.
2:43 Wade asks appellant to step out of his vehicle.
3:41 Wade asks appellant if he has ever been arrested before for anything. Appellant admits to being arrested for D.W.I. in 1985.
4:28 Wade asks if appellant would mind him searching the vehicle later. Appellant seems to reply, later, no.
4:33 Wade asks, you don't mind me searching today. Appellant replies, today, no.
Wade then proceeds to go to his patrol unit out of the picture frame. Radio traffic can be heard between Wade and his communications department.
7:33 Wade comes back into the picture and hands appellant a warning ticket.
7:43 Wade again asks if appellant minds if he searches his vehicle. Appellant asks, do you have to.
A colloquy then occurs between Wade and appellant where Wade explains what he feels are the reasons he has "reasonable suspicion" to search the vehicle.
8:07 Wade asks again if appellant minds if he searches his vehicle. Appellant replies, "I'd rather be on my way."
8:11 Wade states, "That's a yes or no question." Appellant declines to give consent.
8:15 Wade states, "I'm going to call a K-9 unit because I believe you have marijuana in the car."
During the period after advising appellant that he was calling a K-9 unit, Wade explains again why he thinks appellant has marijuana in his vehicle. During this explanation, he asks appellant again if he smoked marijuana in Colorado and when was the last time he smoked marijuana. Appellant replied that he did not smoke any marijuana and actually is a member of Narcotics Anonymous. In reply to a question by Wade, appellant explained that he was in Narcotics Anonymous because he used to have a problem with drugs, specifically marijuana.
9:23 Wade again advises that he is going to call the K-9 unit.
9:30 Wade advises appellant that he is not allowed to leave and that he is detained until the K-9 search is completed.
41:11 The K-9 officer first appears with his dog in the video.

The drug dog alerted on appellant's vehicle and a subsequent search revealed a quantity of methamphetamine, marijuana, and drug paraphernalia.

Appellant entered a plea of guilty following the trial court's denial of his motion to suppress. The trial court concluded that:

(1) a consensual encounter occurred after the warning ticket was written;

(2) reasonable suspicion existed to further detain [a]ppellant based on his nervousness, admission of participating in Narcotics Anonymous, and his withdrawal of consent to search his vehicle; and

(3) the thirty minute wait for the canine to arrive is reasonable.
After reviewing the evidence from the suppression hearing, we will reverse.

Standard of Review and Applicable Law

A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. In re Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013) (citing Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002)). As an appellate court, we give almost total deference to the trial court's assessment of historical facts that turn on credibility and demeanor. See State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013). Those historical facts must be supported by the record. See Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013). Thus, the findings of fact of the trial court, which find support in the record, and the rational inferences drawn from those supported facts are entitled to deference on appeal. Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002). We review de novo a trial court's application of the law of search and seizure to the facts. Wade, 422 S.W.3d at 667. We uphold the trial court's ruling if it is reasonably grounded in the record and correct on any theory of law applicable to the case. Id. (citing Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010)).

A traffic stop is a seizure for purposes of the Fourth Amendment. See U.S. CONST. amend. IV; Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (en banc). Such a detention may not last longer than is reasonably necessary to effectuate the purposes which justified the detention in the first place. See Sieffert v. State, 290 S.W.3d 478, 483 (Tex. App.—Amarillo 2009, no pet.) (citing Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004); State v. Daly, 35 S.W.3d 237, 241 (Tex. App.—Austin 2000, no pet.) (citing Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1391, 75 L. Ed. 2d 229 (1983)). A detention that exceeds the scope of the circumstances that authorized it initially becomes an unreasonable detention. See Sieffert, 290 S.W.3d at 483 (citing Davis, 947 S.W.2d at 244).

Reasonable suspicion to detain a subject beyond the scope of the initial traffic stop must rely upon new or different information that the officer has developed since the beginning of the initial traffic detention. See Spight v. State, 76 S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Thereafter, we review a reasonable suspicion allegation from a totality of the circumstances to ascertain whether, at the time of the temporary detention, the detaining officer had specific articulable facts which, taken together with reasonable inferences from those facts, would lead him to conclude that the person detained is, has been, or is about to engage in criminal activity. See Sieffert, 290 S.W.3d at 483.

Consensual Encounter

By his first issue, appellant contends that the trial court erred in denying his motion to suppress by concluding that a consensual encounter occurred after the warning ticket was written. The trial court's findings of fact that seem to support the conclusion are:

All numbered references are to the numbers assigned by the trial court in its findings of fact and conclusions of law.

11. Trooper Wade asked [appellant] if he could search his vehicle, [appellant] denied consent, withdrawing the consent that was previously given.

12. Trooper Wade told [appellant] that he was going to call for a K-9, but continued to speak to appellant before actually calling for one.
Based upon these findings of continued interaction between Wade and appellant after the issuance of a warning ticket, the trial court concluded that,
2. The conversation between [appellant] and Trooper Wade after Trooper Wade had issued a warning for [appellant's] speeding was a consensual encounter.

The State points out that a law enforcement officer need not tell a suspect that he or she is free to leave. See Rodriguez v. State, 191 S.W.3d 428, 441 (Tex. App.—Corpus Christi 2006, pet. ref'd) (en banc) (dealing with question of when a person is in custody for purposes of advising defendant of his rights under Miranda ). The holding in Rodriguez was focused on custodial arrest and, therefore, is minimally persuasive in the current situation dealing with actions following the conclusion of a temporary detention for a traffic violation. But see Daly, 35 S.W.3d at 241. Still, the question of a detainee's voluntary consent to remain at the scene and participate in further questioning is a question of fact to be determined from the totality of all the circumstances. See id. at 242 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)).

See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------

Appellant does not contend that his continuing dialogue with Wade was involuntary or brought about by express or implied coercion or duress. In fact, a review of the dash camera would belie such an assertion. Inasmuch as the conclusion of law submitted by the trial court is supported by the evidence, we must agree with the trial court that the dialogue with Wade following the issuance of the warning ticket was consensual in nature. See Manzi, 88 S.W.3d at 243. Appellant's contention to the contrary is overruled. However, finding that the trial court did not err in concluding that the continued dialogue with appellant was consensual does not end the inquiry.

Reasonable Suspicion to Detain Appellant

Appellant contends that the trial court erred by concluding that reasonable suspicion existed to detain appellant. The applicable period of time begins from the moment appellant was detained. We turn to the findings of fact entered by the trial court.

12. Trooper Wade told [appellant] that he was going to call for a K-9, but continued to speak to [appellant] before actually calling for one.
13. [Appellant] informed Trooper Wade that he was in marijuana anonymous or drug anonymous, after previously stating he doesn't use drugs or smoke marijuana.

14. When Trooper Wade pointed out the discrepancies in [appellant's] story, [appellant] admitted to lying and stated he did so because he was ashamed.

15. Trooper Wade called Sgt. Brandon Jones, a deputy and K-9 handler for Moore County Sheriff's office and requested he bring his canine to the scene.

16. While waiting for Sgt. Jones and his canine to arrive, [appellant] continued to show signs of nervousness by fidgeting with his hands.

17. While continuing to wait for the canine unit to arrive, [appellant] asked if he was free to leave, Trooper Wade informed him that he was not free to leave.
Based upon those findings, the trial court entered the following conclusion:
4. Trooper Wade's detainment of [appellant] was based upon reasonable articulable suspicion due to his extreme articulable nervous behavior, giving and withdrawing consent to search [appellant's] vehicle, and claiming not to use any drugs and later claiming to be in narcotics anonymous.
Remembering that a trial court's findings of fact must be supported by the record, we now turn our attention to the dash camera recording of the stop of appellant. See Wade, 422 S.W.3d at 666.

According to a timeline of the dash camera recording, 7:34 into Wade's interaction with appellant, Wade handed appellant a warning ticket. Wade continued to question appellant until 7:43, when Wade asked for a second time to search appellant's vehicle. Appellant responded, "Do you have to?" Wade then advised that it was a yes or no question. Appellant then declined to have his car searched. At the 8:15 mark, Wade advised that he was calling the K-9 unit because he believed that appellant had marijuana in his car. From this record, we deduce that, from an objective standard, detention occurred at the instant appellant declined permission to search his vehicle. See id. at 668. We realize that this determination is at odds with the trial court's determination; however, our review is of the trial court's application of the law to the facts, which we do on a de novo basis. See id. at 667. Based upon this review, we conclude that Wade's decision to detain appellant predated the last of the articulable facts that the trial court relied upon in its conclusion. Namely, that appellant lied or changed his story regarding use of marijuana or drugs, findings numbered 13 and 14.

This is of consequence in this matter because a decision to detain must be made upon the facts presented to the officer at the time the decision to detain is made. See Sieffert, 290 S.W.3d at 483. At the moment Wade decided to detain appellant, Wade could articulate the following facts that the State contends supports his decision. First, appellant appeared to be extremely nervous. Second, appellant first said Wade could search his vehicle but then changed his mind and declined to allow Wade to search the vehicle.

Nervousness alone is not sufficient to establish reasonable suspicion to believe that appellant is, shortly will be, or has been involved in criminal behavior. See Wade, 422 S.W.3d at 671. It is, however, a relevant factor in looking at the totality of circumstances, albeit, not particularly probative since most citizens will manifest an understandable nervousness in the presence of an officer. See id.

Likewise, changing one's mind and deciding not to allow a search can be a factor in making a reasonable suspicion determination. See id. at 674. However, it cannot be the prominent factor in making the reasonable suspicion determination. See id. Our review of the record leads to the conclusion that, when appellant declined to allow a search of his vehicle, Wade made a determination to detain appellant. Thus, appellant's declining consent to search was the tipping point in the interaction between Wade and appellant. However, at that point in time there is no other objective, factual justification to support detention.

We, therefore, hold that the detention of appellant to await the arrival of the K-9 unit for an open air drug sniff was not supported by reasonable suspicion. See Sieffert, 290 S.W.3d at 483. That being said, we conclude that the trial court abused its discretion in denying the motion to suppress. See In re Moore, 395 S.W.3d at 158. Accordingly, we sustain appellant's second issue and reverse the trial court's ruling.

Conclusion

Having sustained appellant's second issue, we reverse the trial court's judgment denying appellant's motion to suppress and remand this case to the trial court for further proceedings consistent with this opinion.

Mackey K. Hancock

Justice Do not publish.


Summaries of

Weaver v. State

Court of Appeals Seventh District of Texas at Amarillo
Feb 18, 2016
No. 07-15-00223-CR (Tex. App. Feb. 18, 2016)
Case details for

Weaver v. State

Case Details

Full title:KEVIN SCOTT WEAVER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:Court of Appeals Seventh District of Texas at Amarillo

Date published: Feb 18, 2016

Citations

No. 07-15-00223-CR (Tex. App. Feb. 18, 2016)