No. 09-10-00054-CR
Submitted on July 6, 2010.
Opinion Delivered August 18, 2010. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 09-06626.
Before GAULTNEY, KREGER, and HORTON, JJ.
HOLLIS HORTON, Justice.
Subject to the trial court's ruling on his motion to suppress, Conrell James Guillory a/k/a Cornell James Guillory pled guilty to the offense of possession of a controlled substance, a second degree felony. TEX. HEALTH SAFETY CODE ANN. § 481.115 (Vernon 2010). After denying Guillory's motion to suppress evidence, the trial court then sentenced Guillory to ten years' imprisonment. In his sole appellate issue, Guillory contends the trial court erred in denying his motion to suppress evidence based on his argument that the evidence was illegally seized. We affirm the trial court's judgment.
Background
Noticing that a car on the Eastex freeway had made unsafe lane changes, Officer Romero stopped Guillory's car. Although Officer Romero activated his emergency lights, Guillory did not immediately stop. According to Officer Romero, after Guillory noticed that he was being pursued by a police car, he leaned forward in his car and then sped up through a gas station parking lot. Officer Romero testified that Guillory's actions created safety concerns because he did not know if Guillory was concealing a weapon, reaching for a weapon, or whether Guillory might endanger others at the gas station. Guillory stopped but then took off again, driving toward a car wash. Guillory finally was forced to stop when Officer Romero used his car to pin Guillory's car against the car wash. After stopping Guillory, Officer Romero approached the passenger side of the stopped car while his partner, Officer McBride, approached the car's driver, Guillory. According to Officer Romero, Officer McBride recognized Guillory and made him exit the car to separate Guillory from anything in the car that Guillory might have been attempting to conceal. Because he was concerned that Guillory might have a weapon, Officer Romero conducted a pat-down search. During that search, Officer Romero felt a hard object that was protruding from Guillory's buttocks. Officer Romero, thinking the object might be the "butt of a weapon[,]" pulled the top waistband of Guillory's mesh shorts back to see the object. Officer Romero saw that Guillory had what appeared to be a clear baggy beneath his shorts. At that point Guillory became irate, and Officer Romero "had to forcibly turn [Guillory] back around" to return him to the position in which he had been standing while being patted down. Officer Romero then handcuffed him. After being handcuffed, Guillory tried to reach inside his shorts and retrieve the hidden object. As a result, Officer McBride removed the baggy from Guillory's pants. Officer Romero testified that the clear baggy contained what he suspected to be crack cocaine, so he placed Guillory in custody. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, we "apply a bifurcated standard of review, giving "almost total deference to a trial court's determination of historical facts' and reviewing de novo the court's application of the law[.]" Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). At a suppression hearing, 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) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)). In this case, because the trial court did not make explicit fact findings, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Legality of the Stop
Guillory argues that his motion to suppress should have been granted because the initial stop of his car was not justified. Based on his claim that the initial stop was not justified, Guillory contends the search and seizure that followed violated his constitutional rights. The State argues that the initial stop was justified because Guillory committed several traffic violations and then attempted to avoid being stopped. A police officer may lawfully stop and detain a motorist who commits a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). In this case, Officer Romero testified that he observed Guillory make an unsafe lane change. When changing lanes on a multi-lane road, a driver "may not move from the lane unless that movement can be made safely." TEX. TRANSP. CODE ANN. § 545.060 (Vernon 1999). At the suppression hearing, Officer Romero testified that he saw other vehicles that were required to quickly brake to avoid colliding with Guillory's car as it cut across several lanes of traffic. The trial judge, in denying Guillory's motion to suppress, found the evidence supporting the stop credible, and we must give deference to that determination. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). In viewing the evidence in the light most favorable to the trial court's ruling, and based on the trial court's implicit finding that a traffic violation occurred before the stop, we conclude that the record supports the trial court's finding that the traffic stop was lawful. See Ross, 32 S.W.3d at 855. Pat-down Search
In his brief, Guillory also contends that he was subjected to a "warrantless invasive strip search" in a public place in violation of his federal and state constitutional and statutory rights. Guillory further argues that the search was an unreasonable visual body-cavity-search that is prohibited by the Fourth Amendment. The State responds that the search was legitimate because the officers were conducting a pat-down search for weapons on a known felon who had made furtive gestures while trying to avoid detention. The State also emphasizes that Guillory tried to keep the police officers from retrieving an object that was on his person before the officers knew if the object was a weapon. The State contends that its search under these circumstances was reasonable to assure the safety of Officer Romero and Officer McBride. After validly detaining an individual, a police officer may conduct a reasonable search for weapons for his protection if the officer has reason to believe that he is dealing with an armed and dangerous individual. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer does not have to be absolutely certain that the individual is armed. Id. In justifying a pat-down search for weapons the officer has to be able "to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The issue is whether a reasonably prudent person in the circumstances would justifiably believe that his safety or that of others was in danger. Id. at 27; see O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). However, "[i]f in the course of a pat-down frisk the officer satisfies himself that the suspect has no weapons, the officer has no valid reason to further invade the suspect's right to be free of police intrusion absent probable cause to arrest." Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984) (citations omitted). There was evidence that the initial pat-down search was conducted because Officer Romero was concerned that Guillory had a weapon. There was also evidence that Officer Romero's pat-down of Guillory's outer clothing had been inconclusive, because the pat-down revealed what might later have been proven to be a weapon. We conclude the trial court did not abuse its discretion in determining that Officer Romero could conduct a more intrusive search to rule out whether Guillory had a weapon. Although Officer Romero, in pulling back Guillory's waistband, saw what appeared to him to be part of a clear baggy, he still had not established whether Guillory possessed a concealed weapon. When Guillory became irate, Officer Romero handcuffed him. While handcuffed, Guillory attempted to reach inside his shorts and retrieve the hidden object. It was only at that point that Officer McBride removed the object from Guillory's shorts which allowed him to make a positive determination of the object's nature. Because the evidence was seized during a warrantless search, Guillory argues the trial court erred in denying his motion to suppress the evidence resulting from Officer Guillory's search. Guillory further argues that the intrusive search inside of his clothing was "clearly a fishing expedition," and that the search amounted to a "visual body[-]cavity search" in a public place. During the suppression hearing, there were conflicting versions about the intrusiveness of the search. Guillory testified that his pants and underwear were pulled down to his knees, exposing him in public. Officer Romero, on the other hand, testified that he only pulled back the top waistband of Guillory's shorts. At a suppression hearing, 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, 214 S.W.3d at 24-25 (citations omitted). In summary, the trial court could choose to believe Officer Romero's testimony about how the search had been conducted. Where the search for a weapon is legal, the fact that the search resulted in the police finding drugs instead of weapons does not transform the search into one that is illegal. In Parham v. State, a customs agent, while conducting a pat-down search of a suspect's outer clothing, felt a bulge in the suspect's waist area that he thought might be a weapon. 76 S.W.3d 60, 64 (Tex. App.-Houston [14th Dist] 2002, pet. ref d). When the customs agent lifted the suspect's shirt, he found a brick of cocaine inside the suspect's pants. Id. at 63. The Fourteenth Court of Appeals held that the "Fourth Amendment does not require the suppression of contraband that is discovered while conducting a legitimate search for weapons." Id. at 64. Although the defendant asserted that the custom agent's claim that the bulge felt like a weapon was '"preposterous,"' the Fourteenth Court of Appeals noted that questions of credibility and historical fact are left to the trial court's determination. Id. at n. 2. Additionally, in Farmer v. State, a police officer conducted a pat-down search and felt a large object below the suspect's waist. 47 S.W.3d 187, 190 (Tex. App.-Texarkana 2001, pet. ref'd). After handcuffing the suspect, the officer opened the front of the suspect's pants and found a bag of cocaine taped to the suspect's body. Id. The Texarkana Court of Appeals held that the police officer, having formed a reasonable belief that the object might be a weapon, was justified in conducting a more intrusive search. Id. at 193 (citing McAllister v. State, 34 S.W.3d 346, 353 (Tex. App.-Texarkana 2000, pet. ref'd.)); see also Spillman v. State, 824 S.W.2d 806, 808, 811 (Tex. App.-Austin 1992, pet. ref d) (concluding that the trooper's search did not offend state or federal constitutional guarantees where trooper's frisk for weapons revealed a hard object and the officer then asked the suspect to undo his pants). Officer Romero's testimony at the suppression hearing pointed to specific and articulable facts that the trial court could reasonably conclude were sufficient to allow Officer Romero's initial pat-down of Guillory. Because Officer Romero explained that during the search he felt what might have been a weapon, the trial court could also reasonably conclude that concerns of officer safety justified Officer McBride's subsequent decision to remove the object from Guillory's shorts. See Farmer, 47 S.W.3d at 193 (citing McAllister, 34 S.W.3d at 353). Guillory's attempt to reach for the hidden object after being handcuffed further supports the trial court's ruling that the officers removed the object due to their concerns for their safety during a legitimate search for weapons. Conclusion
We conclude that the trial court did not err in denying Guillory's motion to suppress. The judgment of conviction is affirmed.