Opinion
NO. 02-17-00034-CR
04-19-2018
ALAN BRYAN EDMONDS APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2016-0074M-CR MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In three issues, Appellant Alan Bryan Edmonds appeals the trial court's denial of his motion to suppress in a prosecution for drug possession. See Tex. Health & Safety Code Ann. § 481.115(d) (West 2017). We affirm.
Background
Appellant takes issue with the use of a drug-checkpoint ruse set up by the Bowie Police Department (BPD). In this case, Sergeant Robert Blackburn of BPD set up the checkpoint on Highway 287 in Bowie on the evening of February 21, 2016, by placing a large, illuminated, yellow sign on the side of the highway that cautioned, "Drug Checkpoint Ahead." But there was no actual drug checkpoint ahead. Rather, as Sergeant Blackburn acknowledged during the suppression hearing, the purpose of the sign was to look for any suspicious reaction to the sign by passing motorists, such as braking suddenly or attempting to exit the highway.
Around 8:20 p.m., Appellant was driving a tractor-trailer south on Highway 287 when, according to Sergeant Blackburn and Officer Brian Keating, he passed the drug-checkpoint sign, slowed dramatically, swerved out of the right lane and over the fog line, and then overcorrected and swerved out of the right lane of the highway into the left lane. Both officers heard the tractor-trailer pass over the fog line.
Sergeant Blackburn and Officer Keating referred to the white, textured line separating the right lane of traffic and the unimproved shoulder—"the bumpy things along the side of the road"—as the "fog line."
Sergeant Blackburn testified that, although traffic was "sparse" on Highway 287 that night, Appellant's erratic driving presented a safety issue to the other motorists passing by and placed them in danger. Officer Keating echoed this concern in his testimony, describing traffic on Highway 287 at the time as "medium" and acknowledging that Appellant's driving could have been a danger to other motorists on the highway.
Based on Appellant's erratic driving, Officer Keating—who was in a separate patrol car from Sergeant Blackburn—initiated a traffic stop. A recording taken by a dashboard camera in Officer Keating's patrol car was admitted into evidence during the hearing, but because it did not begin recording until Officer Keating began to pursue Appellant, it did not capture Appellant's initial erratic driving. Additionally, no audio of Appellant's discussions with the officers prior to his arrest was captured on the recording.
At the suppression hearing, Officer Keating testified that as Appellant pulled the tractor-trailer onto the shoulder to stop, "he hit his brakes in such a way that the trailer kicked out and kind of skidded to a stop instead of coming to a slow normal stop as most traffic violations do. It came to a very abrupt stop . . . ." This was captured on video.
Officer Keating approached the driver's side window, asked Appellant to exit the vehicle, and walked with him to the back of the trailer so that they were both standing in front of Officer Keating's patrol car and were clear of the right lane of traffic. According to Officer Keating, Appellant claimed that he had swerved out of his lane because he had spilled coffee on himself. But both Officer Keating and Sergeant Blackburn testified that Appellant's pants appeared dry. Although Officer Keating noted that they did have a brown stain on them, he had not seen any coffee spilled inside the cab of the truck when Appellant exited the vehicle. Officer Keating concluded that Appellant was not being truthful about the coffee, and he returned to his patrol car to conduct a warrant check using Appellant's driver's license information.
By that time, Sergeant Blackburn had arrived on the scene and when Officer Keating returned to his patrol car, Sergeant Blackburn approached Appellant. According to Sergeant Blackburn, Appellant initially gave "no specific response" when Sergeant Blackburn inquired about Appellant's erratic driving. But when Sergeant Blackburn asked Appellant if the drug checkpoint sign had contributed to Appellant's erratic driving, Appellant "claimed he possessed no drugs and he said if there was anything in the truck, other drivers left it there and they hide stuff like that in the dash." Sergeant Blackburn testified that when he asked if Appellant knew of anything in the truck that a drug-sniffing dog might alert to, Appellant responded, "It . . . would probably find something in the dash. There is a baggie with something in it." Appellant then clarified that it was a little bag.
In an ensuing search of the cab of the tractor-trailer, Sergeant Blackburn found a plastic Tupperware container in an opening underneath the dashboard. Inside the plastic container was a straw, a razor blade, and a smaller container that held a substance later identified as methamphetamine. Appellant was arrested, and during a search incident to the arrest, Officer Keating also found a piece of the Tupperware container in Appellant's shirt pocket.
Appellant was charged with possession of methamphetamine. See id. Before trial, he filed a motion to suppress any statements or tangible evidence—including controlled substances—obtained during or as a result of the traffic stop and arrest. In his motion, he argued generally that BPD officers had violated his constitutional rights and that they had stopped and arrested him without probable cause.
The trial court denied the motion to suppress. Appellant entered a guilty plea pursuant to a plea bargain, and the trial court deferred adjudication and placed Appellant on community supervision for a period of 5 years.
Discussion
Appellant presents three issues on appeal, all of which complain of the use of drug-checkpoint ruses by Texas law enforcement. First, Appellant challenges whether reasonable suspicion existed to justify the traffic stop. Second, Appellant argues that BPD's use of a drug-checkpoint ruse constituted entrapment. Third, Appellant argues that the use of a drug-checkpoint ruse violated his rights to due process and due course of law. See U.S. Const. amends. V, XIV, § 1; Tex. Const. art. 1, § 19.
I. Standard of review and applicable law
A. Standard of review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 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); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.
When, as here, the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.
We must 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); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
B. The Fourth Amendment and investigative detentions
The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure was conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.
II. Reasonable suspicion existed to detain Appellant
In his first issue, Appellant argues that the State failed to show reasonable suspicion existed to detain Appellant. Appellant's arguments focus on the use of the drug-checkpoint sign. In his strongly-worded brief, he accuses the police of outrageous conduct and alternatively complains of the format of the sign—specifically, its failure to provide a distance to the non-existent drug checkpoint— and the use of the sign at all. He further posits, in his third issue, that the use of the ruse drug-checkpoint sign is unconstitutional, extending the reasoning of the supreme court's decision in City of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447 (2000), which held the use of actual drug checkpoints was unconstitutional. Because we hold that reasonable suspicion existed to justify stopping Appellant regardless of the drug-checkpoint sign's presence, we need not address Appellant's constitutional challenge to the use of such a sign. See Tex. R. App. P. 47.1; Salinas v. State, 464 S.W.3d 363, 366 (Tex. Crim. App. 2015) ("It is well settled that 'the constitutionality of a statute is not to be determined in any case unless such a determination is absolutely necessary to decide the case in which the issue is raised.'" (quoting State ex rel. Lykos v. Fine, 330 S.W.3d 904, 909 (Tex. Crim. App. 2011))).
Sergeant Blackburn and Officer Keating testified to their observation of Appellant's braking suddenly and then swerving across lanes of traffic—first into the shoulder, running over the fog line, and then overcorrecting across his lane and into the left lane of the highway. Both officers also testified that Appellant's erratic driving placed other motorists in danger. Because the trial court was not requested to and thus did not issue findings in this case, we presume from the denial of the suppression motion that the trial court found the officers to be credible. See Garcia-Cantu, 253 S.W.3d at 241.
Even though the officers' testimony evidenced their belief that the drug-checkpoint sign provided the impetus to Appellant's erratic driving, we disregard the officers' subjective intent in evaluating whether reasonable suspicion existed to justify the stop. See Ford, 158 S.W.3d at 492. Furthermore, we review the officers' articulation of specific facts and rational inferences to be drawn from those facts to determine whether they could have reasonably led them to conclude that Appellant was engaged in criminal activity. See id.
Their testimony to Appellant's erratic and dangerous driving was sufficient to show reasonable suspicion existed to initiate a traffic stop, regardless of the presence of the drug-checkpoint sign. See Leming v. State, 493 S.W.3d 552, 564-65 (Tex. Crim. App. 2016) (holding that reasonable suspicion existed based on observation of driver's failure to remain entirely within traffic lane); Shrout v. State, No. 02-16-00443-CR, 2017 WL 2871686, at *2-3 (Tex. App.—Fort Worth July 6, 2017, no pet.) (mem. op., not designated for publication) (holding reasonable suspicion existed to detain driver observed weaving back and forth in her lane and driving "onto, if not slightly over, the center white line").
We therefore overrule Appellant's first issue, and because we have determined that the drug-checkpoint sign's presence is irrelevant to that determination, we do not need to address Appellant's third issue. See Tex. R. App. P. 47.1; Salinas, 464 S.W.3d at 366.
III. Entrapment
In his second issue, Appellant argues that BPD's actions in using a drug-checkpoint ruse constituted entrapment. Appellant failed to properly preserve this issue for our review, and even if he did preserve it, he did not meet his burden to show entrapment.
Although it is preferably presented during a trial, the affirmative defense of entrapment may be presented to the trial court through a pretrial motion to dismiss. Tex. Code Crim. Proc. Ann. art. 28.01 (West 2006); see Hernandez v. State, 161 S.W.3d 491, 498-99 (Tex. Crim. App. 2005) (acknowledging that, while permissible, it "is generally undesirable [to try an entrapment defense before trial] because it permits the piecemeal trial of a criminal case" (citing Bush v. State, 611 S.W.2d 428, 432 n.1 (Tex. Crim. App. 1981) (op. on reh'g))).
Appellant made no mention of an entrapment defense in his motion to suppress. The first time Appellant's counsel mentioned an entrapment defense was in his closing argument at the end of the suppression hearing, stating, "This drug checkpoint as it was administered, because the police - - through - - because the police invited the conduct that allegedly gave rise to the reasonable suspicion necessarily requires us to go into an entrapment analysis, which will be summarized in my bench brief." A later-submitted letter brief did mention his entrapment argument. We do not view Appellant's counsel's mere mention of entrapment during his closing argument at the suppression hearing as having timely presented the defense sufficient to preserve any error for our review. See Tex. R. App. P. 33.1(a)(1) (explaining that, to preserve error, a party must present the trial court with a timely request, objection, or motion that states the specific grounds for the desired ruling).
Even if we were to find that Appellant preserved his entrapment argument, he did not establish any entitlement to the defense. As the defendant, Appellant had the burden not only of producing evidence sufficient to raise the affirmative defense of entrapment but also of admitting that he engaged in the criminal conduct. See Hernandez, 161 S.W.3d at 497. Appellant wholly failed to do so at any point in the trial court proceeding.
For these reasons, we overrule Appellant's second issue.
Conclusion
Having overruled Appellant's first and second issues, which are dispositive of his appeal, we need not reach Appellant's third issue. See Tex. R. App. P. 47.1. Accordingly, we affirm the trial court's order denying Appellant's motion to suppress.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 19, 2018