Opinion
No. 2-04-140-CR
Delivered: November 23, 2005.
Appeal from the County Court at Law of Hood County.
Panel A: CAYCE, C.J.; HOLMAN and WALKER, JJ., WALKER, J. filed a dissenting opinion.
OPINION
Appellant Mickel Wayne Lambeth, Jr. appeals his conviction for possession of less than two ounces of marijuana. In two issues, appellant contends that the trial court erred in denying his motion to suppress. We affirm.
At 10:11 p.m. on September 10, 2003, Department of Public Safety Troopers Randall Wilson and Jim Hatfield stopped appellant because he was speeding. After pulling appellant over, Trooper Wilson approached the driver's side of the vehicle and asked appellant for his driver's license and insurance card. Appellant complied and informed Trooper Wilson that his license had expired and that the vehicle belonged to his mother. Appellant volunteered that he was driving to his boss's house to pick up paint. When Trooper Wilson observed that the car was not registered, appellant explained that another officer had removed the expired registration sticker during a previous traffic stop. Trooper Wilson then asked appellant to step outside of the vehicle. Trooper Hatfield, who was standing on the passenger's side of the vehicle, inspected the interior of appellant's car with a flashlight.
The stop was videotaped by a camera mounted on the patrol car and audiotaped by a microphone worn by Trooper Wilson. The tape was admitted into evidence, and we have viewed it as part of our review of the record.
Appellant exited the vehicle at 10:13 p.m. Trooper Wilson then began questioning him about why he was driving with an expired driver's license. Appellant told him that he had been unable to renew his license because of some legal trouble stemming from a family matter in Corpus Christi. He went on to explain that the State had charged him with theft because he took some property from a cousin who owed him money. Appellant denied having any outstanding warrants, however, and invited Trooper Wilson to run a warrant check on him. Trooper Hatfield called in a warrant check at 10:14 p.m.
At approximately 10:15 p.m., four minutes into the stop, Trooper Wilson began administering field sobriety tests because he smelled alcohol on appellant's breath. While Trooper Wilson was administering the sobriety tests, appellant admitted drinking two beers just before leaving his mother's house. The tests were completed at 10:21 p.m.
After determining that appellant was not intoxicated, Trooper Hatfield and Trooper Wilson questioned appellant for five minutes about a suspicious object in his vehicle, his destination, and warrants. Trooper Hatfield asked appellant to identify an object in the back seat of his vehicle, which he did. Trooper Wilson then asked appellant about his destination and warrants. Appellant reiterated that he was on his way to his boss's house, and, although he did not know the address, he explained how to get there. When asked about outstanding warrants, appellant admitted having had some warrants in Hood County and a warrant for theft from Corpus Christi, but said that he had taken care of them.
Appellant indicated that the object in question was a perfume bottle.
At this point, it was 10:26 p.m., about fifteen minutes into the stop. Trooper Wilson then asked appellant a series of questions intended to persuade him to consent to a search of his vehicle. Trooper Wilson first asked appellant if he had any contraband in the vehicle. When appellant said "no," Trooper Wilson asked him if he would consent to a search of the vehicle. Appellant refused and explained that the vehicle belonged to his mother. When Trooper Wilson suggested calling appellant's mother to obtain her consent, appellant said he could not remember his mother's phone number and then said that his mother did not actually have her own phone, but used his sister's cell phone. Appellant indicated that he had the cell phone number in his vehicle. Trooper Wilson asked for appellant's consent to search the vehicle several more times before turning to the matter of the vehicle's ownership.
During this exchange, Trooper Hatfield took Trooper Wilson aside and informed him that there was an object in appellant's vehicle that he could not identify. His concern prompted a pat down search of appellant. Trooper Wilson did not find anything suspicious on appellant's person.
At 10:32 p.m., after approximately eleven minutes of post-sobriety test questioning, Trooper Wilson went to his patrol car and called dispatch to request a license plate check and a canine unit, leaving Trooper Hatfield with appellant. When Trooper Wilson rejoined them approximately four minutes later, Trooper Hatfield announced that he smelled marijuana on appellant. Appellant admitted that he "smoke[d] some," but denied having any marijuana in his possession. At 10:40 p.m., Trooper Wilson issued citations to appellant for driving with an expired license and without a valid registration and informed him that he was not free to leave because he had called the canine unit to conduct a free-air search of the vehicle. By this time, more than twenty-seven minutes had passed since the initial stop.
Trooper Wilson told the canine officer that appellant had denied consent to a search and that possibly "something" was in the vehicle.
As they waited, Trooper Wilson read appellant his rights. When he finished, appellant told the troopers where to look for his marijuana. The troopers ultimately found a bag containing less than two ounces of marijuana between the passenger seat and center console of the vehicle.
At trial, appellant moved to suppress the marijuana when the State moved to enter it into evidence and again at the close of appellant's case. The trial court denied the motion both times. A jury found appellant guilty of possession of less than two ounces of marijuana and sentenced him to probation. The trial court suspended the terms and conditions of his probation pending the outcome of this appeal.
Appellant contends that the trial court erred in denying his motion to suppress. In his first issue, appellant argues that the troopers wrongfully detained him in the absence of continuing reasonable suspicion.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); 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.). 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. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Harrison v. State, 144 S.W.3d 82, 85-86 (Tex.App.-Fort Worth 2004, pet. granted). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); Best, 118 S.W.3d at 861-62. However, we review de novo the question of whether a specific search or seizure is "reasonable" under the Fourth Amendment. See Ornelas v. United States, 517 U.S. 690, 691, 116 S. Ct. 1657, 1659 (1996); Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App. 2004).
A police officer may lawfully stop and detain a person for a traffic violation. See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992); Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.-Fort Worth 1998, pet. ref'd). A routine traffic stop resembles an investigative detention. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3149-50 (1984); State v. Cardenas, 36 S.W.3d 243, 246 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). An investigative detention must be temporary, and the questioning must last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Balentine v. State, 71 S.W.3d 763, 770-71 (Tex.Crim.App. 2002); Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App. 1997).
During a traffic stop, an officer is entitled to request information concerning the driver's license, ownership of the vehicle, the driver's insurance information, the driver's destination, and the purpose of the trip. Mohmed, 977 S.W.2d at 628. An officer may also conduct a warrant check to determine whether the driver has any outstanding warrants, Smith v. State, 840 S.W.2d 689, 692 (Tex.App.-Fort Worth 1992, pet. ref'd); Petty v. State, 696 S.W.2d 635, 639 (Tex.App.-Dallas 1985, no pet.), and request the driver's consent to search his vehicle, see Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 2386 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). And, an officer may conduct a pat down search of the driver for weapons. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968). Once an officer concludes the investigation of the conduct that initiated the stop, however, continued detention of a person is permitted only if there is reasonable suspicion to believe another offense has been or is being committed. United States v. Brigham, 382 F.3d 500, 512 (5th Cir. 2004); Davis, 947 S.W.2d at 245; McQuarters v. State, 58 S.W.3d 250, 256 (Tex.App.-Fort Worth 2001, pet. ref'd).
"Reasonable suspicion" exists if an officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity. Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001); McQuarters, 58 S.W.3d at 255. The officer must be able to articulate more than an "inchoate and unparticularized suspicion or `hunch'" of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000). The circumstances that raise suspicion that illegal conduct is taking place need not be criminal in themselves; however, the suspicious conduct relied upon by an officer must be sufficiently distinguishable from that of innocent people under the same circumstance to clearly, if not conclusively, set the suspect apart from them. Davis, 947 S.W.2d at 242; Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App. 1991). The existence of reasonable suspicion is determined by considering the totality of the circumstances. Garcia, 43 S.W.3d at 530; McQuarters, 58 S.W.3d at 255.
Appellant in this case does not challenge the reasonableness of the initial traffic stop or Trooper Wilson's decision to detain him long enough to perform sobriety tests. Instead, he contends that the troopers were required to issue his citations and release him as soon as they determined he was not intoxicated. We disagree. The purpose of the traffic stop was effectuated when Trooper Wilson handed appellant his citations.
Following the administration of the field sobriety tests, Troopers Wilson and Hatfield proceeded to ask appellant legitimate questions related to matters within the scope of the traffic stop, including whether he had outstanding warrants, where he was going, why his vehicle was not registered, and who owned the vehicle. See Mohmed, 977 S.W.2d at 628 (holding that officers may question motorists about their license, registration, and travel plans); Smith, 840 S.W.2d at 692; Petty, 696 S.W.2d at 639 (both holding that officers may check for outstanding warrants during a traffic stop). In the course of this activity, Trooper Hatfield detected the odor of marijuana on appellant. The smell of marijuana gave the troopers the reasonable suspicion they needed to detain appellant after issuing the citations. See Mohmed, 977 S.W.2d at 628. Therefore, appellant's continued detention after the issuance of the citations was supported by reasonable suspicion.
We decline appellant's invitation to review the credibility of Trooper Wilson's detection of the marijuana odor de novo. Although the trial court did not make express findings of fact, we will assume that the trial court found that Trooper Wilson smelled marijuana on appellant because that finding supports the court's decision to deny appellant's motion to suppress and it is supported by the record. See Carmouche, 10 S.W.3d at 328. As a finding of historical fact, we give it almost total deference. See Johnson, 68 S.W.3d at 652-53; Best, 118 S.W.3d at 861-62.
The dissent suggests that this was a traffic stop investigation for a mere speeding violation, and that appellant's detention should have ended at least "twenty-seven minutes after the initial stop for speeding" because the troopers had no reasonable suspicion to believe that criminal activity was afoot. A review of the entire record, however, shows that the troopers' investigation actually encompassed four potential offenses: speeding, driving with an expired license, no registration sticker, and driving while intoxicated. Further, at least two minutes before the point when the dissent contends the detention should have ended and appellant should have been permitted to leave — "more than twenty-seven minutes after the initial stop for speeding" — Trooper Hatfield testified that he had smelled marijuana. Again, it was this smell of marijuana that gave rise to the troopers' suspicion that appellant had been or might be engaging in some additional criminal activity, not appellant's nervousness and evasiveness, as the dissent contends. Thus, while we would agree that the initial reasons for the detention were resolved at the point when Trooper Wilson handed appellant his citations for an expired driver's license and no registration sticker, Trooper Hatfield articulated facts that gave rise to an intervening suspicion of additional criminal activity that justified appellant's continued detention beyond this point. Based on the peculiar facts of this case, we cannot say, as the dissent would have us do, that the troopers violated appellant's Fourth Amendment rights by continuing to detain him after Trooper Hatfield smelled marijuana. We overrule appellant's first issue.
In his second issue, appellant argues that the State failed to prove by clear and convincing evidence that his consent to the search was voluntary. We disagree.
The State bears the burden of proving voluntary consent by clear and convincing evidence. Carmouche, 10 S.W.3d at 331; Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000); State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997). We will not reverse the trial court's finding of valid consent unless it is clearly erroneous. United States v. Dortch, 199 F.3d 193, 201 (5th Cir. 1999); United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993).
To be valid, a consent to search must be positive and unequivocal and must not be the product of duress or coercion, either express or implied. See Carmouche, 10 S.W.3d at 331; Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991), cert. denied, 510 U.S. 831 (1993). Voluntary consent is not shown by a mere acquiescence to a claim of lawful authority. Royer, 460 U.S. at 497, 103 S. Ct. at 1324; Carmouche, 10 S.W.3d at 331. Whether consent was given voluntarily is a question of fact to be determined from the totality of the circumstances. See Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996) ; Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2059 (1973); Reasor, 12 S.W.3d at 818.
Appellant did not give his consent to the vehicle search in response to a request from Trooper Wilson or Trooper Hatfield. In fact, the troopers did not ask for appellant's consent to search the vehicle after issuing his citations. Rather, appellant volunteered to show them his marijuana when Trooper Wilson was reading him his rights. Trooper Wilson continued reading appellant his rights, and, when he was through, appellant again volunteered to show them where it was. Trooper Wilson explained that he could not let appellant reenter the vehicle. Appellant then told Trooper Hatfield where to look. Under these circumstances, we hold that appellant's consent to the search was positive and unequivocal and not the product of duress or coercion, either express or implied. See Carmouche, 10 S.W.3d at 331; Allridge, 850 S.W.2d at 493.
Because appellant consented to the search of his vehicle, the subsequently discovered evidence is not inadmissible as "fruit of the poisonous tree." See Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 3385 (1984). Therefore, the trial court did not abuse its discretion by denying appellant's motion to suppress. We overrule appellant's second issue.
Having overruled both of appellant's issues, we affirm the trial court's judgment.
DISSENTING OPINION
I respectfully dissent. The general rule is that an investigative stop can last no longer than necessary to effect the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). Once an officer concludes the investigation of the conduct that initiated the stop, continued detention of a person is permitted only if there is reasonable suspicion to believe another offense has been or is being committed. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). To establish reasonable suspicion justifying a continued detention, an officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. See United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989).
In other words, if a driver is stopped on suspicion of driving while intoxicated, once the police officer determines that the driver is not impaired and completes routine traffic stop duties — such as checking the driver's license and car registration and running a computer check on that information — the driver should be promptly released. Kothe, 152 S.W.3d at 63-64. At this point, the traffic-stop investigation is fully resolved; the detention must end and the driver must be permitted to leave. Id.; Herrera v. State, 80 S.W.3d 283, 289 (Tex.App.-Texarkana 2002, pet. ref'd). An investigative detention must be temporary, must last no longer than is necessary to effectuate the purpose of the stop, and cannot be utilized as a "fishing expedition" concerning unrelated criminal activity. See Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S. Ct. 417, 422 (1996) (Ginsburg, J., concurring)); see also Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 1878 (1968) (stating that scope of search must be limited because "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope"). "A stop based on a violation of a traffic regulation will not justify detention to await the arrival of a drug detection dog . . . [which] is necessarily a greater imposition on a motorist than conducting a search immediately upon the arousal of a reasonable suspicion." $217,590.00 In U.S. Currency v. State, 54 S.W.3d 918, 924 (Tex.App.-Corpus Christi 2001, no pet.).
Texas Department of Public Safety troopers stopped Appellant Mikel Wayne Lambeth, Jr. for speeding. The entire stop was recorded on a videotape that was introduced into evidence at the suppression hearing and is part of our record. Trooper Wilson testified that the videotape truly and accurately depicted the stop. The videotape shows that, after troopers asked Lambeth where he was going, conducted field sobriety tests, conducted a pat down search of Lambeth, and obtained the information they needed to run computer checks on Lambeth and on the vehicle and to write Lambeth citations, they had concluded their investigation of the speeding offense and of all other possible offenses that they reasonably suspected Lambeth may have committed — driving with an expired license and with no registration sticker, and while intoxicated. At this point, more than twenty-seven minutes after the initial stop for speeding , the traffic-stop investigation for speeding and the trooper's investigation of their reasonable suspicions had been fully resolved; Lambeth's detention should have ended, and he should have been permitted to leave. See Kothe, 152 S.W.3d at 63-64. Although both troopers testified at the suppression hearing, neither of them was able to articulate any facts they possessed at this point in the stop that would give rise to any suspicion that Lambeth had been or might be engaging in some other criminal activity. They both testified only that they were suspicious because Lambeth was nervous and "slightly evasive in his answers," but they both agreed that nervousness was not uncommon. In short, at this point in the stop the troopers possessed nothing more than an inchoate and unparticularized suspicion or hunch that "something" might be in Lambeth's car because he was nervous and declined to give them consent to search the car.
The troopers nonetheless continued to detain Lambeth. Trooper Wilson told Lambeth, "We're not finished yet. . . . We are waiting for a dog to come in and conduct a `free-air' search of the vehicle." Thus, in the absence of any new facts giving rise to any reasonable articulable suspicion of criminal activity, the troopers continued to detain Lambeth for a canine search. The continued detention constituted a "fishing expedition." The troopers were simply trolling for information concerning unrelated, unarticulable, "possible" criminal activity. Trooper Hatfield's subsequent statement — almost thirty minutes after the troopers stopped Lambeth for speeding and after Trooper Wilson had told Lambeth they were not finished yet — that he smelled marijuana on Lambeth, cannot retroactively justify Lambeth's unauthorized, continued detention. See Davis, 947 S.W.2d at 244-45; $217,590.00 In U.S. Currency, 54 S.W.3d at 924 (explaining that traffic stop will not justify continued detention to await the arrival of a drug detection dog).
No explanation was offered for the trooper's failure to smell marijuana on Lambeth during the initial twenty-seven minutes of the stop, including during field sobriety tests performed in close contact with Lambeth.
Lambeth's continued detention after completion of the traffic stop investigation and after the completion of the investigations into the trooper's other reasonable suspicions — that Lambeth was driving with an expired license, had no registration sticker, and was driving while intoxicated — violated his Fourth Amendment rights. See Kothe, 152 S.W.3d at 63-64; Davis, 947 S.W.2d at 244-45. I would sustain Lambeth's first issue and hold that the trial court abused its discretion by misapplying the law to the undisputed facts reflected in the videotape and confirmed by the trooper's testimony. See McQuarters v. State, 58 S.W.3d 250, 258 (Tex.App.-Fort Worth 2001, pet. ref'd) (reversing trial court's failure to suppress and holding officer did not have reasonable suspicion to detain defendant after traffic stop for canine search).