Opinion
NO. 14-18-01000-CR
11-03-2020
AUSTIN VAUGHN GREER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 458th District Court Fort Bend County, Texas
Trial Court Cause No. 15-DCR-070181A
MEMORANDUM OPINION
Appellant Austin Vaughn Greer was charged with unlawful possession of a firearm after he was stopped for a traffic violation by a Fort Bend County Sheriff's Deputy. Appellant pled guilty after the trial court denied his motion to suppress evidence and his motion to reconsider the trial court's denial. Appellant raises two issues on appeal, arguing that the trial court abused its discretion when it refused to exclude all evidence connected with the traffic stop. In appellant's view, the deputy sheriff who stopped him violated appellant's Fourth Amendment rights because (1) the deputy prolonged the traffic stop after his investigation of the traffic violation was complete; and (2) the temporary detention escalated into a custodial arrest when the deputy ordered appellant out of his car even though the deputy did not have probable cause to arrest at that time. Concluding that appellant did not show a violation of his Fourth Amendment rights during the traffic stop, we overrule both of his issues and affirm the trial court's judgment.
BACKGROUND
In 2015 Deputy Cory Hansen with the Fort Bend County Sheriff's Office was on patrol with his trainee, Deputy Rodriguez. At the time, Hansen had been a sheriff's deputy since 2009. Hansen estimated that he had conducted hundreds of traffic stops per year. Hansen testified that as a patrol officer he had developed a special expertise in "speaking to citizens" and "locat[ing] and . . . identifying narcotics."
While on patrol on Highway 6, Hansen observed a car fail to signal a lane change. The deputies initiated a traffic stop and pulled the car over. The car pulled over onto the right shoulder of Highway 6. The patrol vehicle's dash camera video shows that after pulling over, the car's driver leaned over toward the passenger side of the vehicle.
Hansen approached the stopped car and made initial contact with appellant, the driver and sole occupant of the car. Hansen immediately noticed that appellant was "extremely nervous." According to Hansen, appellant's "chest was beating rapidly, and you could see his chest beating through his shirt." Hansen also noticed that appellant's hands shook "uncontrollably" when he picked them up while talking. Hansen asked appellant why he was nervous. Appellant responded that he was nervous because Hansen's trainee, Rodriguez, had his hands near his pistol and he continued that "there's a lot of things going on in the world." Hansen also noticed that appellant was wearing a small backpack, which struck Hansen as abnormal because most people "would put a backpack in the seat or on the ground or store it in the trunk of the vehicle."
Hansen asked appellant where he was going. Hansen then told appellant that he had been pulled over because he changed lanes without signaling. Hansen again asked appellant where he was headed and appellant responded that he was heading to an apartment complex to see his girlfriend. Hansen testified that this apartment complex was known to him for drug activity because he had arrested people and conducted traffic stops on people leaving the apartment complex, resulting in arrests for narcotics. This information, combined with appellant's extreme nervousness and the fact he was wearing a backpack while driving, led Hansen to believe appellant might be taking narcotics to the apartment complex.
As the traffic stop progressed, appellant informed Hansen that he had been to prison for aggravated robbery. According to Hansen, knowing that a person had been to prison for a violent crime was an important fact to know for officer safety. Hansen then told appellant to "cut all this bullshit" regarding his nervousness. Hansen pointed out that Rodriguez had his hand on his hip, not his pistol. Hansen testified that because appellant was extremely nervous, it made him nervous.
Hansen then asked appellant to step out of his car. Hansen made this request approximately one minute forty-five seconds into the traffic stop. The dash camera video reveals that there was significant traffic on Highway 6 when Hansen approached appellant's car. It also reveals that the shoulder of the roadway at that point on Highway 6 was narrow. Hansen had appellant move to the side of the road in between the two vehicles for everyone's safety. Hansen told appellant that his two "rules" were to not lie and to be respectful.
Hansen then asked appellant whether he had any contraband or weapons on his person or in his car. Appellant stated that he did not. Appellant admitted that he had done some "green" - marijuana - when he first got out of prison, but had stopped so he could get a job. Hansen then told appellant that if he found out appellant had lied to him, then they would have a problem. Hansen then asked appellant again if he had any contraband or weapons in his car. Appellant once again denied that he did. Hansen then asked appellant if he had any weapons on his person and asked for consent to search him for weapons. At that point, appellant admitted that he had a weapon. This exchange occurred approximately three minutes and thirty seconds into the traffic stop.
Hansen instructed appellant to place his hands behind his head and walked appellant over to the front of the patrol vehicle. Hansen told appellant that he was not under arrest at that time, but he was being detained. Hansen then placed appellant in handcuffs and conducted a pat down search of appellant's shorts, where he discovered a pistol. Hansen asked appellant where he was going with a pistol in his pocket. Appellant's response is unintelligible. Hansen then returned to the patrol vehicle, leaving appellant with Rodriguez. The remainder of the dash camera video consists of Hansen in the patrol vehicle performing computer, radio, and telephone checks on appellant's criminal history, the pistol, and appellant's driver's license and registration. When appellant's criminal history initially came back that he had no prior criminal history, Hansen left the patrol vehicle and went back to appellant to confirm appellant's identity. When dispatch confirmed appellant's prior statement that he was a felon, Hansen arrested appellant. The entire stop and subsequent arrest of appellant lasted approximately 30 minutes.
Appellant was indicted for the felony offense of unlawfully carrying a weapon. Appellant filed a motion to suppress all evidence arising out of the traffic stop. The trial court held a hearing on this motion and Hansen was the only witness to testify at the hearing. The trial court signed a lengthy order denying appellant's initial motion to suppress. Appellant later filed a "Second Motion to Suppress and Motion for Reconsideration of Court's Prior Ruling Denying Defendant's Motion to Suppress." Appellant argued that the trial court should suppress all evidence arising out of the traffic stop because Hansen prolonged the traffic stop past the time when the traffic infraction investigation was completed. Appellant also argued that the trial court should suppress all of appellant's statements made after he exited his car because, in appellant's view, he was under arrest at that point in time and should have been, but was not, given his Miranda warnings. The trial court conducted an oral hearing on appellant's second motion and appellant testified during that hearing. The trial court denied appellant's second motion at the completion of the hearing.
Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant's attorney requested that the trial court make additional findings of fact and conclusions of law. The trial court eventually signed its "Supplemental Findings of Fact and Conclusions of Law on Defendant's Motion to Suppress His Statements." The trial court found that appellant informed Hansen about a minute after he first spoke with Hansen that he had just been released from prison for aggravated robbery. The trial court also found that the traffic stop was initiated during the daytime in an area where there was a lot of traffic and that appellant was "wearing a backpack while belted into the driver's seat of his vehicle." Additionally, the trial court found that the deputies did not draw their weapons at any time during the traffic stop. Further, the trial court found that appellant was nervous during the traffic stop and "did not contradict Deputy Hansen when Hansen mentioned that [appellant's] heart was beating through his shirt and his hands were shaking." The trial court also found that the deputies did not yell or raise their voices during the traffic stop and the only profanity used was "to cut the BS." In addition, the trial court found that Hansen tried to expedite the investigation when he was in contact with dispatch and "did all he could to expedite the confirmation of either [Appellant's] statement or the initial clear history." Finally, the trial court found that "Deputy Hansen reasonably prolonged his detention of [appellant] until [appellant's] conviction was confirmed within about thirty minutes of the stop."
The record contains "Supplemental Findings of Fact and Conclusions of Law on Defendant's Motion to Suppress His Statements," and this is the only document specifically styled findings of fact and conclusions of law. The trial court, however, stated in its supplemental findings of fact and conclusions of law that it had detailed findings of fact and conclusions of law in its order denying appellant's initial motion to suppress. These carry the same weight as the findings of fact and conclusions of law contained in the trial court's "Supplemental Findings of Fact and Conclusions of Law on Defendant's Motion to Suppress His Statements." See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) ("The findings and conclusions need to be recorded in some way, whether written out and filed by the trial court, or stated on the record at the hearing."); Joseph v. State, 514 S.W.3d 838, 842 n.2 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (same).
The trial court also made conclusions of law. In its original March 29, 2018 order, the trial court concluded that appellant "was lawfully detained and that [appellant] was arrested upon confirmation of his prior felony." In its supplemental findings of fact and conclusions of law, the trial court concluded that "under the facts and circumstances and the law stated in its Order dated March 29, 2018, this Court found that [appellant] was lawfully detained while his prior conviction for aggravated robbery was confirmed. [Appellant] was not in custody for purposes of Miranda." The trial court also concluded that "Deputy Hansen made reasonable attempts via radio, phone and computer to expedite the confirmation [of appellant's prior conviction] and [appellant's] detention was not unnecessarily prolonged." Additionally, the trial court concluded that the "use of handcuffs was reasonable and did not convert [appellant's] detention into an arrest." The trial court also concluded that "[n]o force was displayed by the officers, the detention was relatively short and prolonged only to obtain confirmation of [appellant's] statements, [appellant] was told he was being temporarily detained and was not under arrest, and handcuffs were used only to ensure the safety of the officers; [appellant's] detention did not amount to an arrest." In addition, the trial court concluded that appellant's "statements, made before his prior conviction was confirmed and he was formally arrested, were made during a temporary detention in public view on the side of a well-trafficked highway, and [appellant] was not in custody for purposes of Miranda." Finally, the trial court concluded that appellant's "statements made prior to his formal arrest, as captured on the video cam recording, are admissible at trial."
After the trial court denied appellant's Second Motion to Suppress, appellant pled guilty to the offense and the trial court sentenced appellant to an agreed three-year term in prison. This appeal followed.
ANALYSIS
Appellant raises two issues on appeal challenging the trial court's denial of his motions to suppress. We address them in order.
I. Standard of review
In reviewing a trial court's ruling on a motion to suppress, an appellate court applies an abuse-of-discretion standard and will overturn the trial court's ruling only if it is outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). 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). At a suppression hearing, the trial judge is the sole trier of fact and assesses the witnesses' credibility and decides the weight to give that testimony. Id. at 24-25.
When, as here, the trial court makes explicit findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Appellate courts give almost total deference to a trial court's determination of the historical facts that are supported by the record, particularly if the findings are based on credibility and demeanor. Miller v. State, 393 S.W.3d 255, 262 (Tex. Crim. App. 2012). This deference applies to findings based on evidence in the form of a video recording. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). "When there are factual disputes regarding testimony or the contents of a videotape, the trial court's findings of historical fact are afforded almost total deference," though findings inconsistent with indisputable visual evidence may be disregarded. Miller, 393 S.W.3d at 263 (internal quotation marks omitted). We are not at liberty to disturb any fact finding that is supported by the record. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). If a trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it finds some support in the record. Kelly, 204 S.W.3d at 818-19. We review the trial court's legal rulings de novo unless the 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. We uphold the ruling if it is supported by the record and correct under any theory of the law applicable to the case. Hereford v. State, 339 S.W.3d 111, 117-18 (Tex. Crim. App. 2011).
II. Deputy Hansen did not unconstitutionally prolong the traffic stop.
Appellant argues in his first issue that Hansen unconstitutionally prolonged the traffic stop when he ordered appellant out of his car and asked appellant about other criminal activity without reasonable suspicion. We disagree.
Appellant does not challenge the legality of the initial traffic stop for failing to signal a lane change.
In the context of a traffic stop, police officers are justified in stopping a vehicle when the officers have reasonable suspicion to believe that a traffic violation has occurred. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). A traffic stop made for the purpose of investigating a traffic violation must be reasonably related to that purpose and may not be prolonged beyond the time to complete the tasks associated with the traffic stop. Id. During a traffic stop the officer may request certain information from a driver, such as the driver's license, vehicle registration, and proof of insurance, and run a computer check on that information. Id. An officer is also permitted to ask drivers and passengers about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop. Id. A detention becomes unreasonable only if an officer unduly prolongs the detention after the original reason for the detention is resolved. Kothe v. State, 152 S.W.3d 54, 65-67 (Tex. Crim. App. 2004).
There is no per se rule on when the officer must perform the computer check on the information gathered from the driver. Lerma, 543 S.W.3d. at 190-91. Once that computer check is completed, and the officer has confirmed that the driver has a valid license, no outstanding warrants, and the car is not stolen, the traffic investigation is complete. Id. at 191. If, however, the officer has developed reasonable suspicion that the driver is involved in criminal activity, the officer may continue questioning the driver regardless of whether the traffic investigation has been completed. Id. The ultimate issue is not the length of the detention, but whether during the time the police detained the driver, they diligently pursued a method of investigation that was likely to confirm or dispel their suspicions quickly. Kothe, 152 S.W.3d at 65, n.42. An unreasonable detention renders any subsequently discovered evidence inadmissible as "fruit of the poisonous tree." Sieffert v. State, 290 S.W.3d 478, 488 (Tex. App.—Amarillo 2009, no pet.) (quoting Segura v. United States, 468 U.S. 796, 804 (1984)).
Hansen walked up to appellant's driver's side door less than a minute after the traffic stop was initiated. Due to the narrow width of the Highway 6 shoulder, Hansen was standing about a foot from the right lane of traffic while he talked to appellant. About a minute into the traffic stop, appellant revealed that he was a felon who had recently been released from prison. Then, about thirty seconds later, Hansen, as he is permitted to do, asked appellant to get out of his car and move in between the vehicles and away from the traffic. See Lerma, 543 S.W.3d at 194 ("The legitimate and weighty interest in officer safety, therefore, may outweigh a 'di minimis' intrusion on the occupant's Fourth Amendment rights, such as requiring a driver and passenger to exit the vehicle during the stop."). Once they had moved away from the traffic, Hansen asked appellant where he was headed. Hansen then asked appellant if he had any contraband or weapons on him. Appellant said that he did not. Then, after Hansen asked if he could search appellant to check for weapons, appellant admitted that he had a weapon. This exchange occurred approximately three minutes after Hansen initially walked up to appellant's vehicle. At the time of appellant's admission that he had a weapon, Hansen had not yet checked appellant's driver's license, checked for warrants, or issued a citation or a warning for the traffic offense. See Kothe, 152 S.W.3d at 63-64 & n.36 (describing actions that a police officer is authorized to do during a traffic stop including questioning the driver regarding travel plans). Thus, the traffic investigation had not been completed when appellant's admission established reasonable suspicion that appellant was a felon illegally in possession of a weapon. See Lerma, 543 S.W.3d at 191 ("Once the computer check is completed, and the officer knows that the driver has a current valid license, no outstanding warrants, and the car is not stolen, the traffic stop investigation is fully resolved."). We conclude that Hansen did not unreasonably extend the traffic stop because he was conducting the investigation when appellant admitted that he was carrying a weapon. See id. at 190-91 (noting that there is no per se rule that an officer must immediately conduct a computer check on the driver's information before questioning the occupants of the vehicle about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop).
Once appellant admitted that he had a weapon, Hansen was authorized to further detain appellant to investigate whether appellant was, as he had told Hansen, a felon. See id. at 191 ("[I]f an officer develops reasonable suspicion that the driver or an occupant of the vehicle is involved in criminal activity the officer may continue questioning the individual regardless of whether the official tasks of a traffic stop have come to an end."). The trial court concluded that, while it took nearly thirty minutes, Hansen "made reasonable attempts via radio, phone and computer to expedite the confirmation" of appellant's felony conviction and appellant's "detention was not unnecessarily prolonged." The record supports the trial court's conclusion. We hold that Hansen did not unconstitutionally prolong appellant's detention in violation of the Fourth Amendment. See Kothe, 152 S.W.3d at 66 ("Viewing the totality of the circumstances in the light most favorable to the trial court's factual findings, Deputy Forslund's decision to return to his vehicle and simply wait a few minutes for the warrant-check results before releasing Mr. Kothe was 'reasonable' as a matter of substantive Fourth Amendment law."). We overrule appellant's first issue.
III. The trial court did not abuse its discretion when it denied appellant's Second Motion to Suppress.
Appellant argues in his second issue that the trial court abused its discretion when it denied his Second Motion to Suppress because the traffic stop escalated into an illegal custodial arrest when Hansen ordered appellant out of his car. We once again disagree.
Both state and federal courts recognize three categories of interaction between police and citizens: encounters, investigative detentions, and arrests. Ortiz v. State, 421 S.W.3d 887, 890 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Both detention and arrest involve a restraint on one's freedom; the difference is in the degree. Id. An arrest places a greater restraint on an individual's freedom of movement than does an investigative detention. Id. Persons temporarily detained for purposes of investigation are not in custody for Miranda purposes, and thus the right to Miranda warnings is not triggered during an investigative detention. Hauer v. State, 466 S.W.3d 886, 893 (Tex. App.—Houston [14th Dist.] 2015, no pet.). There is no bright line rule dividing investigative detentions and custodial arrests. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008). When called upon to make that determination, courts examine several factors, including "the amount of force displayed, the duration of a detention, the efficiency of the investigative process and whether it is conducted at the original location or the person is transported to another location, the officer's expressed intent—that is, whether he told the detained person that he was under arrest or was being detained only for a temporary investigation, and any other relevant factors." Id. The fruit-of-the-poisonous-tree doctrine generally precludes the use of evidence obtained following an illegal arrest. See Wong Sun v. U.S., 371 U.S. 471, 484 (1963); Monge v. State, 315 S.W.3d 35, 40 (Tex. Crim. App. 2010). When the evidence is undisputed, we review a trial court's custody ruling de novo. Herrera v. State, 241 S.W.3d 520, 527 (Tex. Crim. App. 2007).
Here, it is not disputed that Hansen had detained appellant and that he was not free to leave the scene. Thus, the question before us is whether Hansen telling appellant to exit his car escalated the investigative detention into an arrest. Based on an examination of the objective circumstances surrounding the episode, we conclude that it did not.
The fact that Hansen ordered appellant out of his car does not, under these facts, establish that appellant had been placed under arrest because a police officer, as part of a traffic stop, may require a driver to exit his vehicle so that the traffic-offense investigation can be completed safely. Rodriguez v. United States, 575 U.S. 348, 356 (2015). As pointed out above, the traffic stop at issue here occurred on the narrow shoulder of a busy highway. In that situation, it was reasonable for Hansen to require appellant to exit his car and move to a safer location where he could complete the investigation. See id. (observing that because traffic stops are "fraught with danger" to police officers, "an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely."). Beyond that, appellant points out that once he was out of his car and standing on the side of the road, "the two deputies, both armed, stood close to him on either side of him while Hansen repeatedly asked him the same questions and announced his intention to search his vehicle." Appellant also argues that Hansen revealed his subjective belief that appellant was engaged in illegal drug activity. In appellant's view, these circumstances suffice to convert his detention into an arrest.
While appellant asserts that Hansen conveyed his subjective belief that appellant was engaged in illegal activity, we disagree that Hansen's questions regarding appellant's destination, which are a common and accepted part of routine traffic stops, was sufficient to convey that belief. See Herrera, 241 S.W.3d at 525-26 (stating that custody determination is based on objective circumstances surrounding the questioning and the "subjective belief of law enforcement officials about whether a person is a suspect does not factor into our 'custody' determination unless an official's subjective belief was somehow conveyed to the person who was questioned."). In addition, Hansen did not convey his knowledge that, based on prior traffic stops near appellant's destination, he believed the apartment complex was a center of drug activity. See id. Also, while appellant asserts that the deputies aggressively interrogated him on the side of the road, the dash camera video shows otherwise. In the video, Hansen does not raise his voice or yell at appellant. Martinez, Hansen's trainee, cannot be heard on the video at all. Martinez instead can be seen calmly standing nearby observing the events. The video does not show the deputies drawing their weapons during the traffic stop, nor does it show aggressive action toward appellant. In addition, the video establishes that appellant was not handcuffed until he revealed, after previously denying it, that he had a weapon. At that point, Hansen asked appellant to place his hands behind his head, moved him directly in front of the patrol vehicle and the dash camera, and then handcuffed appellant while expressly telling appellant that he was not under arrest but was only being detained. Finally, the entire investigation up to that point had lasted less than five minutes. We conclude that the investigative detention did not transition into a custodial arrest until Hansen confirmed appellant's felony conviction.
Appellant's citation of the Court of Criminal Appeals's State v. Ortiz opinion does not change this analysis because the case is distinguishable. 382 S.W.3d 367 (Tex. Crim. App. 2012). First, the procedural postures differ. In Ortiz, the trial court granted the defendant's suppression motion. Ortiz, 382 S.W.3d at 371. Therefore, both the court of appeals and the Court of Criminal Appeals were required to review the trial court's ruling deferentially and viewed all facts in the light most favorable to the trial court's suppression ruling. Id. at 372. Here, on the other hand, the trial court denied suppression. In addition, numerous facts that were present in Ortiz are not present in appellant's case. The expression of suspicion conveyed by the officer in Ortiz was more definite and accusatory, where the officer stated "[h]ow much drugs are in the car?" and "What kind of drugs does [your wife] have." Id. at 373-74. Hansen's questioning was neither accusatory nor definite and instead reflected normal police questioning during a traffic stop. This includes Hansen asking appellant about whether he had contraband or weapons in his car or on his person. As for the amount of force displayed by the police, in Ortiz two squad cars and three officers arrived, while here there was a single patrol vehicle and two deputies, one of whom was a trainee. Finally, in Ortiz, the defendant and his wife were quickly handcuffed while here appellant was not handcuffed until after he admitted possessing a weapon. Id. at 374-75. Because the facts in Ortiz are distinguishable, it does not dictate the same outcome.
Because we conclude that appellant's investigative detention did not evolve into an arrest until after appellant revealed that he possessed a weapon and Hansen confirmed appellant's statement that he had been convicted of a felony, we overrule appellant's second issue.
CONCLUSION
Having overruled appellant's issues on appeal, we affirm the trial court's judgment.
/s/ Jerry Zimmerer
Justice Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant.
Do Not Publish — TEX. R. APP. P. 47.2(b).