Opinion
No. 05-09-00862-CR
Opinion issued June 30, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 397th District Court, Grayson County, Texas, Trial Court Cause No. 057757.
Before Justices MOSELEY, BRIDGES, and FILLMORE.
OPINION
Corey Maurice Rogers appeals his conviction for possession of marijuana in an amount greater than five pounds but less than fifty pounds. Appellant was charged with the underlying offense and filed a motion to suppress the evidence against him. The trial court denied appellant's motion to suppress following a hearing. Subsequently, appellant entered a plea bargain agreement under which he pled guilty and received seven years' confinement and paid $140 in restitution. Appellant preserved his right to appeal matters raised before trial. In a single point of error, appellant argues the trial court erred in denying his motion to suppress. We affirm the trial court's judgment. On June 6, 2008, Chad Butler and Harvey Smitherman, investigators with the Grayson County Sheriff's Office, observed appellant driving on US 75 in the left lane for approximately five miles. The section of the highway was marked with a sign indicating the left lane was for passing only. Nevertheless, appellant remained in the left lane even when he was not passing other vehicles and he had an opportunity to move back into the right lane. Butler and Smitherman were riding in an unmarked pickup truck equipped with concealed red and blue lights. Butler activated the emergency lights and pulled appellant over. Smitherman stayed in the truck, and Butler approached appellant's driver's side door and asked appellant to get out of the vehicle. Appellant complied. Butler asked appellant where he was going and where he was coming from and whether he had any criminal history. Appellant said he "had been in trouble before in some other stuff." Butler asked what he meant, and appellant answered he could "look it up" if he wanted. Butler looked inside appellant's vehicle and saw two air fresheners hanging from the rearview mirror and a full size can of Febreeze air freshener and an energy drink in the front passenger seat. In the back seat, Butler saw a duffel bag. Butler considered the presence of these items unusual and knew that people who had that many air fresheners were trying to mask an odor, usually of narcotics. Butler returned to his patrol car and ran appellant's identification with dispatch. Appellant had no outstanding warrants, and his driver's license was valid. However, when Butler returned to where appellant was standing and asked for consent to search the vehicle, appellant turned and looked at his vehicle and turned back and "kind of hesitated" before refusing consent to search. As appellant hesitated, Butler saw appellant's face began to twitch, and after refusing consent, appellant shuffled his feet and walked back and forth with his arms crossed, indicating he was being deceptive. Butler informed appellant he was calling for a K-9 unit. About fifteen minutes later, the K-9 unit arrived, and the dog alerted on the car. Butler subsequently searched appellant's vehicle and found the marijuana. The trial court overruled appellant's motion to suppress. Following appellant's guilty plea and imposition of sentence, the trial court certified appellant's right to appeal. This appeal followed. In a single point of error, appellant argues the trial court erred in overruling his motion to suppress. Specifically, appellant argues Butler and Smitherman lacked reasonable suspicion to believe appellant had violated the Texas Transportation Code, failed to timely initiate a traffic stop, and lacked probable cause to search his trunk. We review a trial court's denial of a motion to suppress for abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion when the ruling was so clearly wrong as to be outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). We afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court's rulings on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Carmouche, 10 S.W.3d at 332; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the trial court's application of law to those facts in the determination of reasonable suspicion and probable cause. Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence that may have been introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). Butler and Smitherton stopped appellant without a warrant, and therefore the State bore the burden of demonstrating the stop was reasonable within the totality of the circumstances. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998). To justify a traffic stop, the officer must observe specific objective, articulable facts which, in light of the officer's experience and personal knowledge, together with inferences from those facts, would warrant a reasonable person to believe a traffic violation had occurred. See Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997). Section 544.011 of the transportation code states the following:
If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read "left lane for passing only."Tex. Transp. Code Ann. § 544.011 (Vernon Supp. 2009). The operator of a vehicle shall comply with an applicable traffic-control device unless the person is otherwise directed by a traffic or police officer or is operating an authorized emergency vehicle. Tex. Transp. Code Ann. § 544.004(a) (Vernon 1999). A lawfully placed sign is a "traffic-control device." Tex. Transp. Code Ann. § 541.304(1) (Vernon 1999). A violation of section 544.011 is a misdemeanor offense punishable by a fine of not less than $1 or more than $200. Tex. Transp. Code Ann. §§ 542.301, 542.401 (Vernon 1999). Butler testified the section of the highway on which appellant was stopped had clearly posted signs indicating the left lane was for passing only. Butler observed appellant driving in the left lane for approximately five miles, even when he was not passing other vehicles and had an opportunity to move back into the right lane. This evidence establishes appellant violated article 544.011, thereby providing Butler with specific, articulable facts that would reasonably lead him to believe appellant had violated the traffic law. See Mouton v. State, 101 S.W.3d 686, 690 (Tex. App.-Texarkana 2003, no pet.). Therefore, Butler had probable cause to stop and detain appellant for the observed offense. See Whren v. United States, 517 U.S. 806, 809 (1996) (traffic stop valid as long as reasonable officer in same circumstances would have stopped car); Green v. State, 93 S.W.3d 541, 544-45 (Tex. App.-Texarkana 2002, pet. ref'd) (violation of section 544.011 provides probable cause for traffic stop). In reaching this conclusion, we reject appellant's assertion that, because Butler and Smitherman observed appellant driving in the left lane for approximately five miles before stopping him, the stop was somehow untimely. If anything, this evidence shows that the traffic offense was ongoing, and the officers verified the offense before stopping appellant. Appellant further argues the police lacked reasonable suspicion to detain him after the initial traffic stop and to search his trunk for evidence of a separate offense. A sniff of the outside of an automobile by a trained canine is not a search within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707 (1983); Crockett v. State, 803 S.W.2d 308, 310 n. 5 (Tex. Crim. App. 1991). This is because the exterior or open air dog sniff is much less intrusive than a typical search and only discloses the presence or absence of narcotics. See Crockett, 803 S.W.2d at 311. Thus, the temporary detention of an automobile to allow an olfactory inspection by a police dog trained to detect the odor of illegal drugs is not offensive to the Fourth Amendment when based on a reasonable suspicion that the automobile contains narcotics. See id. Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. See id. Here, Butler testified he saw two air fresheners and a can of Febreeze air freshener in appellant's car after appellant pulled over. Butler testified he had training and experience that indicated the presence of multiple air fresheners indicated an attempt to mask the odor of narcotics in the vehicle. In addition, appellant appeared deceptive as if "something was wrong." Appellant said he "had been in trouble before in some other stuff" but did not elaborate and told Butler he could "look it up" if he wanted. Butler called in a canine unit that took fifteen minutes to arrive and alerted on appellant's trunk where the marijuana was discovered. We conclude that, based on his training and experience, Butler had reasonable suspicion to continue to detain appellant and call in a canine unit. See id. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress. See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 89. We overrule appellant's single point of error. We affirm the trial court's judgment.