Opinion
No. 11-16-00054-CR
02-28-2018
LEVI SHELDON TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 238th District Court Midland County, Texas
Trial Court Cause No. CR45665
MEMORANDUM OPINION
The jury convicted Levi Sheldon Taylor of the offense of possession of less than one gram of a controlled substance, namely cocaine, and assessed his punishment at confinement for 450 days in a state jail facility and a fine of $3,000. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017). Appellant presents two issues on appeal. We affirm.
In Appellant's first issue, he argues that, because the officer unduly prolonged the traffic stop, the trial court erred when it overruled Appellant's motion to suppress evidence discovered during the search of his vehicle. In his second issue, Appellant argues that a K-9 Unit dog jumped into his vehicle through an open door and thereby effected an unlawful search and that the trial court erred when it overruled his motion to suppress in which he urged that issue.
On the night in question, Doug Sauls, an officer with the Midland Police Department, pulled over a vehicle after he observed that the driver failed to signal a turn. Officer Sauls also could not confirm the vehicle's insurance "when [he] ran it through [his] laptop." When he approached the vehicle, Officer Sauls asked both the driver and the passenger for identification, as well as for proof of insurance on the vehicle. The driver—Appellant—provided a driver's license that contained information that identified him as Levi Taylor. Appellant also provided proof of insurance. The passenger did not have a driver's license with her but did provide the name, "Ola Taylor."
Officer Sauls went back to his vehicle to see whether Appellant and the passenger had any warrants and to confirm their identities. Although Officer Sauls did not find any warrants for Appellant, dispatch was unable to locate information regarding the passenger, which, according to Officer Sauls, "means they're from a different state or they're lying." Officer Sauls went back to the vehicle and had the passenger exit the vehicle so that Officer Sauls could attempt to identify her. The passenger told Officer Sauls that she was from another state. Officer Sauls asked dispatch to "run her through those states," but dispatch was unable to locate anything about her.
While Officer Sauls was talking with the passenger, Ciro Chairez, another officer with the Midland Police Department, arrived to assist Officer Sauls. While Officer Sauls spoke with the passenger, Appellant told Officer Chairez that the passenger "was lying about her last name because she had warrants" and that her real name was "Ola Harris." Officer Sauls checked that name and discovered that there were outstanding warrants for the passenger. Officer Sauls handcuffed her and put her in the backseat of his patrol vehicle.
After Officer Sauls had placed the passenger in the patrol vehicle, he asked Appellant to get out of his vehicle. Officer Sauls testified that "[e]verything was coming up weird" because one of the passenger's warrants was for possession of a controlled substance, they had just left a "high narcotics area," and the passenger had lied about her name. Officer Chairez had already called for a K-9 Unit, and Officer Sauls said that he wanted Appellant to exit the vehicle "in case something was in there that [they] didn't know about, that he wasn't destroying it or anything of that nature, and trying to go on and see if there was anything else at the stop."
Appellant got out of his vehicle but did not close his door. After Officer Sauls searched Appellant for weapons, he told Appellant to sit on the curb. Officer Sauls said that Appellant "kept standing up, not listening, and not complying with . . . directions," and Officer Sauls placed him in handcuffs. Eventually, Mollie Pehl, a police officer with the Midland Police Department, arrived at the scene with her K-9 Unit dog. Officer Pehl had the dog perform a "free air sniff" around the vehicle, during which the dog walks around the vehicle. When the dog passed the driver's side door, according to Officer Pehl, the dog "jumped in the open driver door." Officer Pehl testified that she did not prompt the dog to enter the vehicle. The dog "alerted on the center console" inside the vehicle, where officers discovered a substance that they believed to be "crack-cocaine." At that point, Officer Sauls arrested Appellant for possession of a controlled substance.
In his first issue, Appellant argues that the trial court erred when it denied his motion to suppress because the search of his vehicle resulted from "an unreasonably prolonged temporary detention." We review a trial court's ruling on a motion to suppress for an abuse of discretion and will overturn a trial court's ruling on a motion to suppress only if it is outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). When we review a ruling on a motion to suppress, we apply a bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348 S.W.3d at 922-23. We afford almost total deference to the trial court's determination of historical facts and of mixed questions of law and fact that turn on the weight or credibility of the evidence. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 922-23. We review de novo any determination of pure questions of law and mixed questions of law and fact that do not turn on credibility. Brodnex, 485 S.W.3d at 436; Martinez, 348 S.W.3d at 923.
When the trial court makes explicit findings of fact, as it did in this case with regard to the motion to suppress, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the record is silent as to the reasons for the trial court's ruling, we infer 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 v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
An investigative stop may not last longer than necessary to effectuate its purpose. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In this case, Officer Sauls testified that he pulled Appellant over because Appellant failed to signal a turn and because Officer Sauls could not confirm the vehicle's insurance "when [he] ran it through [his] laptop." Therefore, the purpose of the stop was to investigate the traffic violation and to confirm the vehicle's insurance. In Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015), the Supreme Court reaffirmed that, while investigating a traffic stop, an officer may examine driver's licenses and vehicle registrations and run computer checks as part of his investigation of the circumstances that originally caused the stop. The officer may also ask for the name of any passengers in the vehicle and attempt to confirm that name and check for warrants. See Overshown v. State, 329 S.W.3d 201, 205-06 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that arrest of passenger—in a vehicle stopped for traffic violation—for false identification that "occurred immediately after the traffic stop began and prior to running the driver's information through the computer" was valid because "the statement was given before the traffic stop was completed").
Recently, in Lerma v. State, No. PD-1229-16, 2018 WL 525427 (Tex. Crim. App. Jan. 24, 2018), the Court of Criminal Appeals distinguished facts similar to this case from the facts in Rodriguez and in St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), to which, Appellant argues on appeal, this case is analogous. In Lerma, an officer pulled over a vehicle for two traffic violations. Lerma, 2018 WL 525427, at *1. The defendant in that case was a passenger in the front seat of the vehicle. Id. The officer asked the driver for his driver's license and insurance, which the driver provided, and the officer also asked the passenger, Lerma, for identification. Id. Lerma told the officer that he did not have identification on him. Id. The officer then had Lerma get out of the vehicle. Id. at *2. It was then that Lerma provided the officer with a name and date of birth. Id. After the officer went back to his vehicle to run the information that Lerma had provided him, the officer determined that Lerma did not match the physical description of the person whose name and date of birth Lerma had provided. Id. at *3. As the officer continued to question Lerma, he ran from the officer. Id. After Lerma was arrested, he told the officer that he had "crack" on him, that there was a warrant out for his arrest, and that he had lied about his name. Id. Officers found cocaine on Lerma's person. Id. Lerma was eventually convicted of possession of a controlled substance. Id. at *1.
Lerma filed a motion to suppress the cocaine and, in the motion, claimed that the officer unjustifiably prolonged the traffic stop. Id. However, the Court of Criminal Appeals held that the officer did not unduly prolong the detention. Id. at *6-7. The court first distinguished the facts of Lerma from the facts of Rodriguez, in which the Supreme Court held that an officer unduly prolonged a traffic stop:
[T]he prolonged detention in Rodriguez occurred after the officer had completed all tasks associated with the traffic stop. Unlike the officer in Rodriguez, [the officer in Lerma] was still actively involved in the traffic stop when he questioned [the appellant] and he had not yet completed all aspects of the traffic stop at the point that [the appellant] fled. Most obviously, [the officer in Lerma] had not yet conducted a computer warrant check on the driver of the vehicle.Id. at *7.
The Court of Criminal Appeals distinguished the facts of Lerma from those in St. George, in which the court held that officers had unduly prolonged a traffic stop. Id. at *8-9. In St. George, officers pulled over a vehicle on which there was an inoperative license plate light. 237 S.W.3d at 721-22. The officers requested the driver's license and insurance, which the driver provided. Id. at 722. The officers also asked the passenger for identification. Id. The passenger told officers that he had a driver's license but that it was not with him. Id. The passenger did provide officers a name and date of birth. Id. The license and warrant checks for the driver came back clear, but the officers were unable to locate a driver's license that matched the name and date of birth the passenger provided them. Id. One of the officers then issued a warning for the inoperative license plate light, and while he did so, the other officer continued to question the passenger. Id. After further questioning, the officers learned the passenger's true name, ran it for warrants, and found that the passenger had two warrants. Id. The officers arrested the passenger and searched him. Id. When officers searched the passenger, they found marihuana. Id. In a motion to suppress his statements and the marihuana, the passenger argued that the officers unduly prolonged the stop. Id. at 724. The Court of Criminal Appeals agreed, and held that "[b]ecause the officers failed to show reasonable suspicion in this case, it was unreasonable for them to continue detaining [the passenger] long after the warning citation was issued." Id. at 727.
However, the court in Lerma held that the facts in that case were distinguishable from those in St. George. Lerma, 2018 WL 525427, at *8-9. First, the court noted that, unlike in St. George, in Lerma there was only one officer at the scene when the stop began and that it was therefore reasonable for the officer "to briefly question and attempt to identify the occupants of the car before running the driver's information through his computer system in his patrol car." Id. at *9. The court also made the following distinction:
Another key difference between St. George and the case at bar is the timing in which the events occurred. In St. George, the deputy did not begin questioning [the passenger] until after he had completed a computer check on the driver and issued a citation, nine minutes into the traffic stop. Further, the deputies questioned [the passenger] for an additional ten minutes before they obtained enough information to arrest him. Here, [the officer] was still actively engaged in the purposes of the traffic stop when he asked Appellant to exit the vehicle and briefly questioned him. [The officer] may have decided that he was not going to issue a citation to the driver for the traffic violation, but the traffic stop was not complete. [The officer] still had the driver's license
and had to run a computer check on his information, which we have already determined was a reasonable course of action.Id.
We believe that the facts in this case align closely with those in Lerma. As in Lerma, Officer Sauls was the only officer at the scene at the beginning of the stop and had not yet "completed all tasks associated with the traffic stop." Id. at *7. Officer Sauls had not yet issued Appellant a warning or a citation when he learned the passenger's real name, ran it, and discovered the passenger had warrants. Therefore, Officer Sauls did not unduly prolong the stop when he arrested the passenger.
Once Officer Sauls arrested the passenger, the focus of the stop shifted. Generally, "if an officer's subsequent actions are not reasonably related in scope to the circumstances that caused him to stop the vehicle and if he detains the driver beyond the time needed to investigate the circumstances that caused the stop, the detention is unlawful unless he develops reasonable suspicion" of an additional crime. Smith v. State, No. 02-15-00426-CR, 2017 WL 1289354, at *4 (Tex. App.—Fort Worth Apr. 6, 2017, pet. ref'd) (mem. op., not designated for publication). If "the officer develops reasonable suspicion of additional criminal activity during his investigation of the circumstances that originally caused the stop, he may further detain the driver for a reasonable time while appropriately attempting to dispel the officer's reasonable suspicion." Id.
In order for the stop to be reasonable, it must be temporary and not last longer than necessary to effectuate the purpose of the stop. Id. We measure whether or not the stop is reasonable in objective terms and examine the totality of the circumstances. Id. During the investigation, if an officer develops reasonable suspicion that another violation has occurred, the scope of the initial investigation expands to include the new offense. Id.
Here, after he arrested the passenger and placed her in his patrol vehicle, Officer Sauls developed reasonable suspicion of additional criminal activity to warrant prolonging the detention to accommodate the dog sniff. At the suppression hearing, Officer Sauls testified that, after he arrested the passenger, "everything, just in the totality of the circumstances, seemed very suspicious." Officer Sauls said that the vehicle had "left an area that was high in narcotics," that it was after midnight, that the passenger "had a warrant for narcotics," that Appellant "had a previous history for narcotics," that Appellant denied consent to search the vehicle, and that the passenger had lied about her name. Officer Sauls's testimony showed the existence of objectively reasonable articulable suspicion of illegal activity beyond a traffic violation and warranted the detention of Appellant's vehicle pending the arrival of the K-9 Unit. Therefore, we conclude that the circumstances here show that the actions Officer Sauls took, including the length and scope of the detention, were reasonable and that the dog sniff did not unreasonably prolong the detention. Appellant's first issue is overruled.
In his second issue, Appellant argues that the trial court erred when it overruled his motion to suppress and "uph[eld] the search of Appellant's vehicle which was premised on an alert from a narcotics dog which had impermissibly entered the vehicle to investigate the presence of narcotics." We note that "[a] sniff of the outside of an automobile by a trained canine is not a search within the meaning of the Fourth Amendment." Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref'd); see Illinois v. Caballes, 543 U.S. 405, 409 (2005) (dog sniff of exterior of automobile during lawful traffic stop did not "implicate legitimate privacy interests"). "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." Mohmed, 977 S.W.2d at 628. Therefore, if an officer temporarily detains "an automobile to allow an olfactory inspection by a police dog trained to detect the odor of illegal drugs," that detention "is not offensive to the Fourth Amendment when based on a reasonable suspicion that the automobile contains narcotics." Id.
Here, however, Appellant does not complain on appeal that the officer used the dog to perform a "free air sniff" around his vehicle. Rather, Appellant argues that, because the dog jumped into Appellant's vehicle through an open door, law enforcement "conducted a search of the automobile" in violation of the Fourth Amendment of the United States Constitution. U.S. CONST. amend. IV.
"[I]t is . . . well-established that officers cannot rely on a dog's alert to establish probable cause if the officers open part of the vehicle so the dog may enter the vehicle or otherwise facilitate its entry." Felders v. Malcom, 755 F.3d 870, 880 (10th Cir. 2014). "It is a Fourth Amendment violation for a narcotics detection dog to jump into a car because of something the police did, like training the dog to jump into cars as part of the search or facilitating or encouraging the jump." United States v. Sharp, 689 F.3d 616, 620 (6th Cir. 2012). However, there is no violation if "the canine enters the vehicle on its own initiative and is neither encouraged nor placed into the vehicle by law enforcement." Id. at 619; see United States v. Pierce, 622 F.3d 209, 213-14 (3d Cir. 2010); see also United States v. Lyons, 486 F.3d 367, 373 (8th Cir. 2007).
Officer Pehl testified at the suppression hearing that the dog jumped into the vehicle "without provocation." She also testified that she "did not prompt [the dog] to jump in that vehicle." Additionally, nothing in the record indicates that law enforcement trained the dog to jump into vehicles if a door is open. Finally, we note that the trial court made the following findings of fact:
27. Officer Sauls pulled on the handle of the door and assisted in opening the door when [Appellant] got out of the car.
29. When [Appellant] got out of the car, Officer Sauls immediately had him turn around and patted him down. As he patted him down, Officer Chairez positioned himself between [Appellant] and the open car door. As soon as the pat down was complete, Officer Sauls escorted [Appellant] to the curb and had him sit.However, the trial court did not find that "officers open[ed] part of the vehicle so the dog [could] enter," nor did it find that officers "facilitate[d] [the dog's] entry." Felders, 755 F.3d at 880 (emphasis added). In fact, the trial court found that the dog "was not prompted by Officer Pehl or another Officer to jump into the driver's seat." Viewing the evidence as a whole, we cannot conclude that the trial court abused its discretion when it denied Appellant's motion to suppress. Appellant's second issue is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE February 28, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.