No. 08-03-00444-CR
May 12, 2005. DO NOT PUBLISH.
Appeal from 34th District Court of El Paso County, Texas, (Tc# 20020D04584).
Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
ANN CRAWFORD McCLURE, Justice.
Appellant pled guilty to the offense of money laundering in an amount over $20,000 but less than $100,000. He was sentenced to five years, to run concurrently with his sentence in cause number 20020D05881. At issue is the denial of his motion to suppress. Finding no error, we affirm.
FACTUAL SUMMARY
On December 19, 2001, Sergeant Todd Brackhahn was conducting a performance evaluation of trooper Jason Robinson during routine patrol on Interstate 10, east of El Paso. The troopers were engaged in a traffic stop, and Robinson was writing a driver a ticket. Brackhahn noticed a Ford sports utility vehicle in the right-hand lane of traffic. The troopers were back on the road after the traffic stop within approximately two to three minutes. Traffic was heavy, and the SUV initially cut from the right lane in front of a car into the left lane with approximately one car length in between. This maneuver is extremely dangerous and constitutes a traffic violation of unsafe lane change. Brackhahn characterized the lane change as unsafe due to the speed of the vehicles and the time needed to stop. He also noticed that the car in back had to brake to avoid hitting the SUV. The SUV then committed two more similar traffic violations. The vehicle cut in front of the car the first time, sped up, cut back into traffic again in front of another vehicle, went up, and cut back into traffic again. Brackhahn stated that the SUV was whipping in and out of traffic rapidly and committed three violations in a ten to fifteen second time period. He also saw the vehicle passing on the right, which is a further violation. The troopers attempted to catch up to the SUV. Brackhahn pulled the vehicle over because he wanted to determine if the driver were intoxicated. He activated the overhead lights which in turn activated the in-car video system. The Ford Excursion pulled over, and Brackhahn saw that it had Georgia license plates and three occupants inside. Robinson approached the driver's side while Brackhahn approached the passenger's side and motioned for him to roll down the window. Appellant was driving and he had a New York driver's license bearing the name "Ramin Sharif." Robinson asked Appellant to step out of the vehicle and back to the front of the patrol car. After Robinson informed Appellant why he had been stopped, Appellant was asked the purpose of his trip. Appellant told Robinson that the vehicle was a rental and showed him the contract. Appellant then explained that he was traveling to Los Angeles to visit family and buy Christmas presents. The family was named "Amon" but he did not know where they lived. He intended to call them once he arrived in Los Angeles. Brackhahn thought this was unusual since Appellant was traveling coast to coast without specific directions. Appellant also told him that the front passenger was his cousin and that the back passenger was his uncle. Since Brackhahn saw no impairment of the driver, he intended to give him a warning. Robinson then ran the radio checks on Appellant, and Brackhahn continued to talk to Appellant about the trip. Out-of-state checks take longer, especially for states with larger populations, including New York. Appellant was becoming nervous, his hands were shaking, and he was having difficulty speaking. Brackhahn explained that it was not unusual for someone to initially be nervous when stopped but that the nervousness usually subsides after being told why the stop was made. However, Appellant's nervousness escalated as Brackhahn's questions became more pointed. Further, Appellant volunteered the fact that he had been arrested for murder and selling drugs and had been released from jail on the murder charge six months ago. At that point, Brackhahn believed Appellant was being deceptive and trying to hide something. Due to his training, Brackhahn knew that Los Angeles was a cocaine hub and that as a result of increased security at airports, there had been an increase in illicit currency and drug trafficking across the country. Brackhahn then questioned the passengers. The front passenger was asked about the purpose of the trip. He gave information different from Appellant, furthering Brackhahn's suspicions. The back passenger gave information that conflicted with both the other passenger and Appellant. He found both passengers unusually nervous. The passengers were identified using their licenses and a warrant check was also run on them. Brackhahn then believed that criminal activity was afoot. Brackhahn returned to the patrol car to speak to Appellant and told Robinson that the passengers' stories conflicted with each other's and with Appellant's. He asked Appellant if there were any guns, drugs, or large sums of money in the vehicle. Appellant stated no, and Brackhahn asked for consent to search the vehicle. Appellant did not answer but motioned to the vehicle with both hands up. Brackhahn and Robinson believed Appellant consented to the search with this gesture, but it was not visible on the in-car videotape. Appellant acknowledged that he might have made such a gesture but did not remember. Appellant was not offered a written consent form, was not told he could refuse consent, and was not asked if he understood what consent meant He testified that he did not know he could refuse consent or withdraw consent at any time. Brackhahn thanked Appellant for his cooperation and asked him to step to another area for trooper safety. Brackhahn then searched the vehicle starting with the right front passenger side. He discovered some rolling papers and blunts commonly used for smoking marijuana in the middle section. At that point, Brackhahn believed there was marijuana in the vehicle and started searching for contraband. In his search of the rear of the vehicle, Brackhahn found a Wal-Mart bag holding $65,000 in cash wrapped in rubber bands in $10,000 bundles. Brackhahn believed the currency was drug money either to purchase contraband or made in payment for contraband. All three men were handcuffed for trooper safety and Brackhahn read Appellant his rights. The detention lasted approximately thirty-five to forty minutes. The men were transported to the police station a few blocks away. At the station, a drug dog searched the vehicle and alerted to the money. When asked, Appellant said that he planned to use the money to buy production equipment for a record company in Los Angeles. Officers found cocaine on his person. MOTION TO SUPPRESS
In his first point of error on appeal, Appellant challenges the denial of his motion to suppress. He offers four reasons why the trial court erred: (1) the troopers did not have a valid reason for stopping him; (2) they exceeded the scope of their detention; (3) he did not consent to the search; and (4) the currency and cocaine seized by the troopers were "fruit of the poisonous tree." Standard of Review
The denial of a motion to suppress is reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). There is an abuse of discretion "when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree." Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex.Crim.App. 1997). However, the application of the relevant law to the facts, including Fourth Amendment search and seizure law, is reviewed de novo. Carmouche, 10 S.W.3d at 327. When the facts are undisputed and we are presented with a pure question of law, de novo review is proper. Oles, 993 S.W.2d at 106. Thus, for example, when the issue to be determined on appeal is whether an officer had probable cause, "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Guzman, 955 S.W.2d at 87. Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause should be reviewed de novo on appeal. Id., citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). Validity of the Traffic Stop
An officer's decision to stop a vehicle is reasonable where he has probable cause to believe that a traffic violation has occurred. Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Traffic violations committed in an officer's presence provide probable cause to stop a vehicle and detain its driver. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). Troopers Brackhahn and Robinson testified that Appellant made three unsafe lane changes and passed a vehicle on the right. In so doing, Appellant committed traffic violations in the officers' presence and they had probable cause to stop him. See Tex.Transp. Code Ann. § 545.060(a) (Vernon 1999). Investigatory Detention
A routine traffic stop resembles an investigative detention. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984); State v. Cardenas, 36 S.W.3d 243, 246 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). Investigative detentions must be reasonably related in scope to the circumstances that justified the interference in the first place. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). To determine the reasonableness of an investigative detention, we apply the Terry test: (1) whether the officer's action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the initial interference. See Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Davis, 947 S.W.2d at 244. An investigative detention must be temporary and last no longer than necessary to verify or dispel the officer's suspicion. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 244. Once an officer has concluded his investigation of the traffic violation, he can no longer lawfully detain or question the driver unless he has reasonable suspicion to believe another offense is being committed. See Davis, 947 S.W2d at 245. During a traffic stop, the officer has authority to check for outstanding warrants and request: (1) a driver's license; (2) insurance papers; and (3) identification. Id. The officer may also ask about the driver's destination and purpose of travel. Powell v. State, 5 S.W.3d 369, 377 (Tex.App.-Texarkana 1999, pet. ref'd), cert. denied, 529 U.S. 1116, 120 S.Ct. 1976, 146 L.Ed.2d 805 (2000). He may rely on all of the facts ascertained during the course of his contact with a defendant to develop articulable facts that would justify a continued detention. Id.; Sims v. State, 98 S.W.3d 292, 295 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Appellant complains that when the troopers determined he was not impaired, they should have issued a warning and let him go. But the officers were justified in running a check on Appellant for outstanding warrants and asking the purpose of his trip. Since Appellant had a New York driver's license, the check took longer than usual. Due to Appellant's nervousness and his statements about the purpose of his trip, the troopers became suspicious that criminal activity was occurring, and their continued detention of Appellant was justified. It does not appear that the troopers used dilatory tactics to detain him any longer than was necessary. Consent to Search
Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued with probable cause is per se unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Id. at 219, 93 S.Ct. at 2043-44, 36 L.Ed.2d 854; Carmouche, 10 S.W.3d at 331. The test for a valid consent to search requires the consent to be voluntary, and voluntariness is a question of fact to be determined from all the circumstances. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059; Carmouche, 10 S.W.3d at 331. For consent to be voluntary, it must not be coerced by explicit or implicit means, by implied threat, nor by covert force. Carmouche, 10 S.W.3d at 331. Under the Texas Constitution, the State is required to prove by clear and convincing evidence that consent was voluntarily given. State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). Voluntary consent to search can be given by a hand gesture as well as verbally or in writing. See McAllister v. State, 34 S.W.3d 346, 351 (Tex.App.-Texarkana 2000, pet. ref'd) (concluding that defendant consented to a search when, after the officer told defendant he had to conduct a pat-down search, defendant raised his hands indicating the officer was free to proceed); Kendrick v. State, 93 S.W.3d 230, 234 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (finding that when the officer requested appellant's permission to conduct a pat-down, appellant indicated his consent by standing up and raising his hands). Whether a defendant knew he had the right to refuse consent is one factor to examine in determining voluntariness. Carmouche, 10 S.W.3d 332-33. Here, Brackhahn asked Appellant whether he had any guns, drugs, or large sums of money in the vehicle. When Appellant said no, Brackhahn asked for permission to search the vehicle. Appellant did not verbally consent but instead threw up his arms in the direction of the vehicle. Brackhahn and Robinson both interpreted this gesture as giving consent. Appellant's gesture could not be seen on the videotape in the patrol car, but both Brackhahn and Robinson described Appellant's gesture and demonstrated the gesture to the court. Appellant testified that he may have made such a gesture but did not remember. The troopers did not tell Appellant he could refuse to give consent, and Appellant testified he did not know he could refuse consent. Appellant argues that his consent was involuntary since the troopers had already exceeded the scope of their detention. We conclude that the State met its burden of demonstrating by clear and convincing evidence that Appellant consented to a search of his vehicle. No evidence suggests that the troopers drew their weapons or that Appellant was threatened by the officers in any way. Because the troopers did not exceed the scope of their detention, we conclude that Appellant freely and voluntarily consented to the search. "Fruit of the Poisonous Tree" Doctrine
Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion. Segura v. U.S., 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984). The question to be resolved is whether the evidence was obtained by exploitation of the initial illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. Having determined that the troopers made a valid stop for traffic violations, legally detained Appellant after developing reasonable suspicion that criminal activity was afoot, and received free and voluntary consent to search his vehicle, we conclude there was no unconstitutional search or seizure. We find no error in the denial of the motion to suppress. We overrule the first point of error. MOTION TO QUASH THE INDICTMENT
In Point of Error No. Two, Appellant challenges the denial of his motion to quash the indictment. He argues that although the indictment tracked statutory language, it was vague and failed to give him sufficient notice of the offense to enable him to prepare an adequate defense. He claims that the indictment was defective since it did not state the nature, manner, or means of the criminal activity underlying the charge or specificity of facts to prevent a subsequent prosecution for the same offense. Standard of Review
We review a trial court's decision on a motion to quash under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. 1981). An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Language of the Indictment
In all criminal prosecutions, an accused is guaranteed the right to demand the nature and cause of the action against him, and to have a copy thereof. Tex. Const. art. I, § 10. This constitutional mandate requires that the charging instrument itself convey adequate notice from which the accused may prepare his defense, and the adequacy of the State's allegation must be tested by its own terms. Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App. 1986). Subject to rare exceptions, an indictment which tracks the language of the penal statute will be legally sufficient, and the State need not allege facts which are merely evidentiary in nature. Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App. 1986). The indictment will be read as a whole in determining whether it sufficiently charges an offense. Dennis v. State, 647 S.W.2d 275, 279 (Tex.Crim.App. 1983). A motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. Thomas, 621 S.W.2d at 163. In the face of a timely motion to quash, the indictment must allege on its face the facts necessary to show that the offense was committed, to bar a subsequent prosecution for the same offense, and to give the defendant notice of the precise charge against him. State v. Rivera, 42 S.W.3d 323, 329 (Tex.App.-El Paso 2001, pet. ref'd). Where the accused has raised the claim of inadequate notice, the general rule is that a motion to quash will be granted if the facts sought are essential to give notice. Smith v. State, 502 S.W.2d 133, 134 (Tex.Crim.App. 1973). But unless a fact is essential, the indictment need not plead evidence relied on by the State. Id. A person commits the offense of money laundering if he knowingly acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. Tex.Penal Code Ann. § 34.02 (Vernon 2003). Criminal activity is defined as a felony or any crime punishable by confinement for more than one year. Tex.Penal Code Ann. § 34.01(1). The language of the indictment charged that Appellant knowingly possessed, concealed, and transported the proceeds of criminal activity. It directly tracked the language of the penal statute. See Moreno, 721 S.W.2d at 300. It did not deny Appellant effective notice of the acts he allegedly committed since it alleged he engaged in money laundering. See Thomas, 621 S.W.2d at 163. The nature and means of the underlying criminal activity involved an evidentiary matter and did not need to be pled by the State. See Moreno, 721 S.W.2d at 300; Smith, 502 S.W.2d at 134. Having found no abuse of discretion in the denial of the motion to quash, we overrule Point of Error No. Two. The judgment of the trial court is affirmed.