Opinion
NO. 03-19-00454-CR
07-30-2020
Jose Oscar Villarreal, Jr., Appellant v. The State of Texas, Appellee
FROM THE 452ND DISTRICT COURT OF MCCULLOCH COUNTY
NO. 6366, THE HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING MEMORANDUM OPINION
Following the denial of his motion to suppress evidence, appellant Jose Oscar Villarreal, Jr. pleaded guilty to the offense of possession of a controlled substance, penalty group one, in an amount less than one gram. See Tex. Health & Safety Code §§ 481.102(6), .115(b). The district court sentenced Villarreal to 270 days in state jail. In a single issue on appeal, Villarreal asserts that the district court abused its discretion in denying his motion to suppress. We will affirm the district court's judgment of conviction.
BACKGROUND
At the hearing on the motion to suppress, Officer Jason Lavender of the Brady Police Department testified that on the evening of July 14, 2018, he initiated a traffic stop on a vehicle occupied by Villarreal and Toby Garcia for failure to signal a turn. Villarreal was the driver of the vehicle. After making the stop, Lavender approached the vehicle and asked to see Villarreal's driver's license and a copy of his insurance. Lavender testified that Villarreal "didn't have a proof of insurance as far as like a hard copy. He said he had it on his phone. Took him a while because he had to search for it on his phone." When Villarreal was able to pull up his insurance information on his phone, Lavender noticed that Villarreal was not listed on the insurance.
Lavender also observed that Villarreal's vehicle did not have an ignition interlock device. Lavender knew, based on a previous traffic stop of Villarreal, that Villarreal was on parole for felony DWI and that as a condition of his parole, he was required to have an ignition interlock device installed on any vehicle that he operated. Lavender testified that he decided to contact Villarreal's parole officer to obtain more information on this potential violation. Lavender explained:
An ignition interlock device is a type of breathalyzer that requires the driver to blow into a mouthpiece on the device before he may operate a motor vehicle.
We wanted to contact his parole officer to verify all of what his restrictions or his—the timelines of what his parole are as well as to let him know that is the second time I've made contact with him. He had been drinking both times and operating a motor vehicle. He was not intoxicated, but he was—he was drinking and he was driving without the interlock device on his—on the vehicle.
During the stop, Lavender also questioned Garcia, the passenger in Villarreal's vehicle. Lavender asked Garcia if he was in possession of any weapons. Garcia told him that there was a knife in the backseat. Upon looking in the backseat of the vehicle, Lavender observed in plain view what he described as "a very large machete."
Lavender further testified that Villarreal consented to a search of the vehicle. During the search, Lavender discovered a controlled substance in the driver's side of the vehicle and arrested Villarreal for possession of that controlled substance.
A video recording of the stop, taken from Lavender's body camera, was admitted into evidence at the suppression hearing. On the recording, Lavender can be seen initiating the stop, approaching the vehicle, telling Villarreal that he had been stopped for failing to use his turn signal, and asking Villarreal for his license and insurance. Villareal handed Lavender his license and attempted to pull up his insurance information on his phone. While he did so, Lavender asked Villarreal to exit the vehicle, walked him to his patrol car, and engaged him in conversation regarding the absence of an interlock device on his vehicle, which Lavender explained was a violation of his parole. A second police officer, Sammy Zapata, appeared on the scene during this conversation. As Villarreal continued to look on his phone for his insurance, Villarreal began conversing with Lavender, telling him that before the traffic stop, he and Garcia had been at a friend's house, and that a woman at the house, apparently Garcia's girlfriend, had been fighting with and yelling at Garcia. Lavender then walked up to Zapata and whispered something about questioning Garcia and possibly performing a canine search on the vehicle. Lavender then returned to Villarreal and asked him about an antenna that he had observed laying on the floorboard in the backseat of the vehicle. Villarreal explained that he had locked the car keys inside the vehicle and that the antenna had been used to open the car door.
Due to apparent sound issues with Lavender's body camera, the words of Lavender, Zapata, Villarreal, and Garcia are difficult to hear at certain points during the recording.
Approximately five minutes after the stop was initiated, Villarreal found the insurance information on his phone and handed the phone to Lavender. Lavender reviewed the information and observed that Villarreal's name was not listed on the insurance. Villarreal then explained to Lavender that he had recently purchased the vehicle from his girlfriend and claimed that his name was not on the insurance for that reason. Lavender asked Villarreal if he had any documentation proving that he owned the vehicle. Villarreal explained that he did not have any documentation on him. Lavender next asked Villarreal if he had any weapons on his person. Villarreal said that he did not and gave Lavender permission to perform a pat-down search on him, which Lavender did. After that, Lavender asked Villarreal more questions regarding what Villarreal had been doing before the traffic stop. Lavender also asked for the name and contact information of Villarreal's parole officer. Villarreal told him that he did not know his parole officer's full name or his phone number and then proceeded to explain to Lavender his history with different parole officers.
Approximately ten minutes after the stop was initiated, Lavender approached Villarreal's vehicle to speak with Garcia, who had remained seated in the front passenger seat. During this conversation, Garcia disputed Villarreal's claim that he had been fighting with his girlfriend. Lavender asked Garcia if he had any weapons in the vehicle, and Garcia informed him that there was a "knife" in the backseat. After asking Garcia if there were any narcotics in the vehicle, which Garcia denied, Lavender looked in the backseat and saw what he described to Garcia as "not a knife" but a "big old frickkin' machete."
Approximately thirteen minutes after the stop was initiated, Lavender returned to his patrol vehicle and asked Villarreal the same questions that he had asked Garcia regarding the presence of weapons and narcotics inside the vehicle. At that point, Villarreal informed Lavender that he had a prescription for Xanax and that some of the medicine might be found inside the vehicle. Lavender also discussed with Villarreal the machete that Lavender had observed inside the vehicle.
Approximately seventeen minutes after the stop was initiated, Lavender asked Villarreal if he had any problem with Lavender "checking the vehicle." Villarreal responded, "No." The recording reflects that before beginning the search, Lavender told Villarreal that he would issue him a warning for the traffic violation, asked Garcia to exit the vehicle and searched him for weapons, returned to his patrol car and asked Villarreal if he had been drinking alcohol that day (Villarreal admitted to having one beer), and contacted dispatch to check Villarreal's license information and to request that they locate Villarreal's parole officer and have that officer call Lavender on his cell phone. The search of the vehicle began at some point after that.
At the State's request and without objection from Villarreal, the district court admitted into evidence and viewed only the first twenty-five minutes and thirty seconds of the recording, which did not include the search of the vehicle. Our review is thus limited to that portion of the recording. See Turrubiate v. State, 399 S.W.3d 147, 150-51 (Tex. Crim. App. 2013) (appellate review of trial court's ruling on motion to suppress "is limited to the record at the time of the suppression hearing").
After taking the matter under advisement, the district court denied the motion to suppress and made the following findings of fact:
1. The traffic stop at issue was effected because Officer Lavender observed Mr. Villarreal fail to signal a turn.
2. Upon approaching the vehicle, Officer Lavender informed Mr. Villarreal that he had been stopped for failing to utilize a turn signal, something which Mr. Villarreal did not dispute.
3. As soon as he approached the vehicle and looked inside, Lavender recognized that Mr. Villarreal was driving a vehicle without an interlock device.
4. Based on Officer Lavender's prior encounters with Mr. Villarreal, Officer Lavender was aware that Mr. Villarreal was on parole for felony DWI and was supposed to have an interlock device on any vehicle he operated.The district court also made the following conclusions of law:
5. As can be observed on the body cam video admitted during the hearing, Mr. Villarreal was initially unable to produce an insurance card, which led to a delay in Officer Lavender completing his investigation.
6. As can be observed on the body cam video admitted during the hearing, Mr. Villarreal did not produce an insurance card until more than five (5) minutes after Officer Lavender initiated the traffic stop.
7. As can be observed on the body cam video admitted during the hearing, the insurance card which Mr. Villarreal had on his cell phone and showed to Officer Lavender did not list Mr. Villarreal as an insured person, which led to another brief delay.
8. As can be observed on the body cam video admitted during the hearing, the confusion pertaining to the insurance card which Mr. Villarreal produced was not cleared up until eight (8) minutes after Officer Lavender initiated the traffic stop.
9. As can be observed on the body cam video admitted during the hearing, Officer Lavender's discussions with Mr. Villarreal and the passenger who was in the vehicle with Mr. Villarreal produced minor discrepancies which led to another brief delay.
10. As can be observed on the body cam video admitted during the hearing, Office Lavender requested permission to search Mr. Villarreal's vehicle at approximately sixteen (16) minutes and forty (40) seconds after Office Lavender initiated the traffic stop.
11. The total delay not attributable to actions which were required as a result of a routine traffic stop appear to have consumed less than five minutes and were attributable to Officer Lavender's efforts to be courteous to Mr. Villarreal and his passenger.
1. Based on the totality of the circumstances, Officer Lavender did not impermissibly extend the detention.After the district court denied the motion to suppress, Villarreal pleaded guilty to the charged offense. This appeal followed.
2. The delay between the time the traffic stop was effected and Officer Lavender's request for permission to search Mr. Villarreal's vehicle was reasonable under the totality of the circumstances.
STANDARD OF REVIEW
"We review a ruling on a motion to suppress using a bifurcated standard of review." Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019) (citing Guzman v. State, 955 S.W.2d 85, 87-91 (Tex. Crim. App. 1997)). "A trial court's findings of historical fact and determinations of mixed questions of law and fact that turn on credibility and demeanor are afforded almost total deference if they are reasonably supported by the record." Id. "That same deferential standard of review 'applies to a trial court's determination of historical facts [even] when that determination is based on a videotape recording admitted into evidence at a suppression hearing.'" State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006)). "We review a trial court's determination of legal questions and its application of the law to facts that do not turn upon a determination of witness credibility and demeanor de novo." Id.
We view the evidence in the light most favorable to the trial court's ruling, State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014), and that ruling will be sustained if it is correct on any applicable theory of law and the record reasonably supports it, State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). "As the prevailing party at the trial level, appellee gains the benefit of deference on factual findings made in [its] favor." State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim. App. 2017) (citing State v. Krizan-Wilson, 354 S.W.3d 808, 815-16 (Tex. Crim. App. 2011)); see Duran, 396 S.W.3d at 571 ("The winning side is afforded the 'strongest legitimate view of the evidence' as well as all reasonable inferences that can be derived from it." (quoting State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011))). However, whether the facts, as determined by the trial court, add up to reasonable suspicion or probable cause to support a search or seizure under the Fourth Amendment is a legal question to be reviewed de novo. See Ford, 537 S.W.3d at 23; Byram v. State, 510 S.W.3d 918, 923 (Tex. Crim. App. 2017); Duran, 396 S.W.3d at 571; Weaver, 349 S.W.3d at 525; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
ANALYSIS
In his sole issue on appeal, Villarreal asserts that the district court abused its discretion by denying his motion to suppress. Villarreal does not claim that Lavender lacked reasonable suspicion to initiate the traffic stop or that Villarreal did not consent to a search of the vehicle. Instead, Villarreal argues that Lavender unreasonably prolonged the traffic stop.
"A traffic stop made for the purpose of investigating a traffic violation must be reasonably related to that purpose and may not be prolonged beyond the time to complete the tasks associated with the traffic stop." Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018) (citing Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004)). "In addition to determining whether to issue a traffic ticket, the police officer's investigation also includes the ordinary inquiries incident to the traffic stop such as checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the vehicle's registration and proof of insurance." Id. at 193 (citing Rodriguez v. United States, 575 U.S. 348, 355 (2015)). The officer may also request information pertaining to the ownership of the vehicle, the driver's destination, and the purpose of the trip. Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.—Austin 2000, pet. ref'd). "An officer is also permitted to ask drivers and passengers about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop." Lerma, 543 S.W.3d at 190 (citing Arizona v. Johnson, 555 U.S. 323, 333 (2009)). Additionally, to facilitate officer safety, officers are permitted to require drivers and passengers to exit the vehicle during the stop. Id. at 194 (citing Rodriguez, 575 U.S. at 356).
Although the length of the detention may render a traffic stop unreasonable, "there is no 'bright line' time limit" for traffic stops. Balentine v. State, 71 S.W.3d 763, 770 (Tex. Crim. App. 2002) (citing United States v. Sharpe, 470 U.S. 675, 686 (1985)). "Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria." Sharpe, 470 U.S. at 685. The test is "whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 686. "A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing." Id. Courts should also consider whether the detainee's actions contributed to any delay in the length of detention. See id. at 687-88.
Moreover, "[t]here is no per se rule that an officer must immediately conduct a computer check on the driver's information before questioning the occupants of the vehicle." Id. at 190-91 (citing United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004)). "A traffic stop may involve both an investigation into the specific suspected criminal activity and a routine check of the driver's license and car registration," and "neither the Fourth Amendment nor the Supreme Court dictate that an officer making a . . . traffic stop must investigate the situation in a particular order." Kothe, 152 S.W.3d at 65. "Once the computer check is completed, and the officer knows that the driver has a current valid license, no outstanding warrants, and the car is not stolen, the traffic stop investigation is fully resolved." Lerma, 543 S.W.3d at 191 (citing Kothe, 152 S.W.3d at 63-64. "However, if an officer develops reasonable suspicion that the driver or an occupant of the vehicle is involved in criminal activity the officer may continue questioning the individual regardless of whether the official tasks of a traffic stop have come to an end." Id. (citing St. George v. State, 237 S.W.3d 720, 726-27 (Tex. Crim. App. 2007)).
In this case, approximately seventeen minutes elapsed between the initiation of the traffic stop and Villarreal providing consent to search the vehicle. Villarreal concedes in his brief that "[a]ppellant himself prolonged the stop because it took him a few minutes to locate proof of insurance on his phone" and that "Officer Lavender did nothing wrong when he questioned the [a]ppellant about matters unrelated to the stop during the time it took Appellant to locate his proof of insurance." Thus, Villarreal does not dispute that the first five minutes of the detention were reasonable. However, Villarreal contends that after he produced the insurance, Lavender engaged in an impermissible "fishing expedition" for unrelated criminal activity that unreasonably extended the duration of the stop.
The record supports the district court's finding to the contrary. First, Villarreal was not listed on the proof of insurance that he showed to Lavender. Consequently, Lavender's inquiry into Villarreal's financial responsibility for the vehicle did not end when Villarreal produced the insurance. The record reflects that it took an additional three minutes for Villarreal to explain to Lavender why he was not listed on the insurance, and when Lavender asked Villarreal if he had documentation to prove that he owned the vehicle, Villarreal told him that he did not. Thus, approximately eight minutes into the stop, Lavender still did not know if Villarreal had financial responsibility for the vehicle.
After that, the record reflects that Lavender spent (1) approximately two minutes asking Villarreal other questions, including questions related to the identity and contact information of Villarreal's parole officer; (2) approximately three minutes asking Garcia questions, including whether there were any narcotics or weapons in the vehicle and questions to confirm what Villarreal had told Lavender regarding the events before the traffic stop; and (3) approximately four minutes asking Villarreal additional questions, including questions related to the machete that Lavender had seen in the vehicle and whether there were any narcotics in the vehicle. Thus, after the initial eight-minute delay attributable to Villarreal, Lavender spent approximately nine minutes questioning Villarreal and Garcia before asking Villarreal for consent to search the vehicle.
The district court would not have abused its discretion in concluding that under the totality of the circumstances in this case, this was not an unreasonable amount of time to prolong the detention. The circumstances included: (1) the absence of an ignition interlock device on Villarreal's vehicle, which Lavender had reason to believe might have been a violation of Villarreal's parole; (2) Villarreal's inability to provide Lavender with the identity and contact information of his parole officer; (3) Villarreal's inability to provide proof of insurance or other documentation demonstrating his financial responsibility for the vehicle as required by the Transportation Code, see Tex. Transp. Code §§ 601.051 (providing that person may not operate motor vehicle in Texas unless financial responsibility is established for that vehicle through motor vehicle liability insurance policy), .191 (providing that operating motor vehicle without motor vehicle liability insurance policy is misdemeanor offense); (4) discrepancies between Villarreal's and Garcia's accounts of what had occurred before the traffic stop; (5) the presence of a large machete in the vehicle; and (6) Villarreal's claim that there might be prescription drugs inside the vehicle. We cannot conclude on this record that Lavender, when confronted with these circumstances during the stop, failed to "diligently pursue[] a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant." See Sharpe, 470 U.S. at 686-88; Lerma, 543 S.W.3d at 195; Kothe, 152 S.W.3d at 66; see also Johnson, 555 U.S at 333 (explaining that police are permitted to inquire into matters unrelated to purpose of traffic stop, "so long as those inquiries do not measurably extend the duration of the stop"); United States v. Pack, 612 F.3d 341, 351-52 (5th Cir. 2010) (explaining that police are permitted to question passengers during traffic stop in order to verify information provided by driver of vehicle); Brigham, 382 F.3d at 510-11 (explaining that discrepancies between statements of drivers and passengers during traffic stop may justify further investigation). Accordingly, the district court did not abuse its discretion in denying Villarreal's motion to suppress.
We overrule Villarreal's sole issue on appeal.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Gisela D. Triana, Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: July 30, 2020 Do Not Publish