No. 05-02-00320-CR.
Opinion issued August 28, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-01-451. Affirmed.
Before Chief Justice THOMAS AND Justices WHITTINGTON and LAGARDE.
Opinion By Justice LAGARDE[fn1]. [fn1] The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
The issue in this case is whether the trial court erred in denying appellant Christopher Fershov Williams's motion to suppress evidence obtained as a result of the search of appellant's vehicle. Appellant contends the search was without his valid consent and was illegal in violation of the Fourth Amendment to the United States Constitution. After the trial court denied appellant's motion to suppress, appellant pleaded guilty to possession of marijuana of four ounces or more but less than five pounds, a state jail felony. Pursuant to a plea bargain, the adjudication of guilt was deferred and appellant was placed on deferred adjudication probation for four years and assessed a fine of $1000. Specifically challenging the trial court's ruling on his motion to suppress, appellant appeals from the order placing him on deferred adjudication. In one point of error, appellant argues: (1) the trial court erred in denying his motion to suppress because his continued detention violated his Fourth Amendment right against unreasonable search and seizure by exceeding the scope of the initial stop; (2) the State did not prove by clear and convincing evidence that appellant consented to the search; and, even if appellant purported to consent, such consent was invalid because it was obtained during an illegal detention; and (3) the trial court's sixteenth and seventeenth paragraphs of its conclusions of law are contradictory and not supported by the facts. For reasons that follow, we affirm.
Facts
At the hearing on appellant's motion to suppress, the trial court admitted into evidence a videotape of the initial stop and heard testimony from Texas highway patrolman Shawn Casey and appellant. The videotape shows that eleven minutes lapsed between the initial traffic stop and appellant's arrest for marijuana possession. During that time, Casey asked appellant for his driver's license and proof of insurance, discovered appellant's insurance had expired, smelled alcohol in appellant's car, and performed a field sobriety test on appellant. Casey also ran a computer check on appellant, had him blow into a breathalyzer, determined he was not legally intoxicated, and received information from dispatch on the computer check. Thereafter, Casey began to write a citation for appellant's failure to produce valid proof of insurance. As he wrote, Casey asked appellant where he had been earlier that night, he sought information from appellant (address, telephone number, and year and model of car) to complete the citation, he instructed appellant what to do with the citation, he handed the citation to appellant, and he asked appellant to sign it. As appellant signed the citation, Casey asked him if he had anything illegal in the car. When appellant laughed, Casey asked him, "Would you mind if I search it real quick?" Although the videotape is somewhat inaudible because of background noise from the highway and appellant's soft voice, appellant told Casey all he had in the car was children's clothes. Appellant then returned the clipboard to Casey, who asked, "So you wouldn't mind if I take a look real quick?" Appellant's oral response, if he made one, to Casey's follow-up request to search the vehicle is inaudible on the videotape. When appellant turned toward his own car, Casey told him to wait. Casey walked to the hood of the patrol car and laid down the clipboard with attached citation and appellant's driver's license. Casey then returned to appellant, conducted a pat-down search of his person, and found no illegal contraband. Casey then asked appellant to stand far enough away so that he could search the car; appellant complied. At no time did appellant ask to stop the search. Eight minutes elapsed between the initial stop and Casey's request to search. Casey testified that he stopped appellant for speeding on Interstate 30, which Casey knew to be a major drug trafficking thoroughfare. The officer approached the vehicle and noticed appellant appeared extremely nervous, spoke softly in a monotone voice, and would not make eye contact. Casey also detected an odor of alcohol coming from inside the vehicle. Appellant was unable to produce, upon request, valid proof of insurance. Casey returned to his car and ran a check on appellant's driver's license. The dispatch operator informed Casey appellant had been arrested previously for unlawfully carrying a weapon. Casey then checked to see if appellant was intoxicated and determined he was not. Casey began writing a citation for lack of proof of insurance and a warning for speeding. However, before issuing the citation, Casey suspected something was amiss. Casey asked appellant whether he had any guns, knives, hand grenades, or dead bodies in his vehicle. Appellant said "no" and then laughed, which made the officer believe something illegal might be in the vehicle. Casey asked appellant again if there were any drugs in the vehicle, and appellant answered, "No, sir." Casey then asked for appellant's consent to search the vehicle. Appellant responded in the negative, adding there was nothing in the vehicle except clothes. Casey responded to appellant's remark by asking "Then you wouldn't mind if I searched the vehicle then?" Appellant softly said, "No." According to Casey, appellant then turned away from the officer as if offering his vehicle to be searched. Casey did not believe appellant turned away to leave the scene because Casey still had appellant's copy of the citation and appellant's driver's license on his clipboard. Casey stated that, at this point, appellant was not free to leave. Casey then frisked appellant and began a search of the vehicle. Casey conceded that absent appellant's consent, he had no legal grounds to search. In the trunk of the vehicle, Casey found three plastic bags, each containing approximately one pound of marijuana. When Casey told appellant what he had found, appellant did not appear surprised. Conversely, appellant testified he did not give Casey consent to search his vehicle. Initially, he testified he said nothing in response to Casey's follow-up request for consent to search. Later, he testified that he responded "no" to that request. By this response, appellant meant, "No, you can't look in my car." Appellant stated he turned towards his car not to allow Casey's search, but to leave, because he had already signed the citation. Appellant believed he was free to drive away, even though that would have meant leaving behind his driver's license and citation with Casey. The trial court denied appellant's motion to suppress and subsequently filed findings of fact and conclusions of law. Specifically, the trial court found that Casey's experience and knowledge that Interstate 30 had become a major thoroughfare for individuals trafficking marijuana, coupled with appellant's nervous demeanor and prior arrest for a weapons offense, prompted Casey to ask appellant whether his vehicle contained any "contraband, knives, guns, or drugs of any type" within the scope of the initial traffic stop and prior to issuing a formal citation. The trial court further found that in response to the initial request to search, appellant "mumbled something about having children's clothes in the car." When appellant was asked again whether he minded the officer searching the vehicle, appellant responded "no" and turned toward his car, indicating to Casey that he was offering his vehicle to be searched. The trial court found that appellant's consent, albeit softly spoken, was nevertheless unequivocal and voluntarily given. In paragraph sixteen of its conclusions of law, the trial court concluded the evidence was insufficient to show that Casey had a reasonable suspicion to believe that appellant was engaged in criminal activity. In paragraph seventeen, the trial court concluded that evidence supported the State's contention that Casey requested and was granted consent to search before the conclusion of the initial traffic investigation. Thus, appellant failed to show Casey's actions exceeded the scope of the initial traffic stop. This appeal followed. Investigative Detention and Search
Appellant first argues the trial court erred in denying his motion to suppress because the search violated his rights against unreasonable search and seizure. He does not dispute the validity of the traffic stop itself. Instead, he contends Casey detained him and asked for his consent to search after the purpose for the stop (issuing warning for speeding and a citation for failure to produce proof of insurance) had ended, and it was this further detention that resulted in an unconstitutional seizure and subsequent illegal search. In reviewing the denial of a motion to suppress, we apply a bifurcated standard of review, giving "almost total deference to a trial court's determination of historical facts" and review de novo the court's application of the law of search and seizure. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997)); see also Vargas v. State, 18 S.W.3d 247, 251 (Tex.App.-Waco 2000, pet. ref'd) (stating that in context of motion to suppress, proper standard for review when determining whether citizen was detained is de novo). An officer may lawfully stop and detain a person who commits a traffic violation, including speeding and the failure to produce proof of financial responsibility. See Tex. Transp. Code Ann. §§ 545.351, 601.051, 601.053 (Vernon 1999) (mandating that motor vehicle operator possess and provide to peace officer driver's license and proof of financial responsibility); State v. Cardenas, 36 S.W.3d 243, 246 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992)). A routine traffic stop resembles an investigative detention, and investigative detentions must be reasonably related in scope to the circumstances that justified the interference in the first place. Id. (citing 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. Id. (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). Because the validity of the stop (speeding and failure to produce financial responsibility) in this case is undisputed, the first Terry prong has been met. The question we must answer deals with Terry's second prong: When Casey questioned appellant about whether he had illegal contraband in his car and asked for his consent to search the car, did the detention exceed the reasonable scope of the stop's original purpose, thereby violating Terry's second prong? During a traffic stop, an officer has the right to check for outstanding warrants and request a driver's license, insurance papers, and identification. See Davis, 947 S.W.2d at 250 n. 6. During a valid detention, the officer may also ask about the driver's destination and purpose of travel. United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993). Mere questioning is neither a search nor a seizure. Id. at 436. The second Terry prong is concerned with detentions, in other words, seizures. Id. An officer's questioning, even on a subject unrelated to the purpose of the stop, is not necessarily in itself a Fourth Amendment violation. Id. When the questioning takes place during the pendency of the furtherance of the stop, the questioning does nothing to extend the duration of the initial, valid seizure. See id. at 437, 438 (holding that appellant could not complain of questioning that took place during pendency of computer check, because detention to that point continued to be supported by facts that justified its initiation, and the four minutes it took to run a computer check imposed no significant Fourth Amendment hardship). Detention, not questioning, is the evil at which Terry's second prong is aimed. Id. at 436. A police officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished as long as it is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer's request is required. Leach v. State, 35 S.W.3d 232, 235-36 (Tex.App.-Austin 2000, no pet.). However, if consent is refused, then the officer must have reasonable suspicion that some criminal activity exists to continue detaining the person stopped. See id. at 236 (citing Simpson v. State, 29 S.W.3d 324, 328 (Tex.App.-Houston [14th Dist.] 2000, no pet.)). The traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Id. Here, the videotape and Casey's testimony support the trial court's finding that the stop had not yet ended when Casey first asked appellant for his consent to search the vehicle. At the time Casey first questioned appellant about illegal contraband and requested his consent to search, appellant was busy signing his name to the citation. In other words, Casey had not yet issued the warning and citation to appellant, nor had he returned appellant's driver's license. It was appellant's laughter when asked about illegal contraband that prompted Casey's request for appellant's consent to search. Casey's second question about consent to search occurred within seconds of appellant handing Casey the clipboard, and it was phrased as a follow-up question to appellant's response about the children's clothing. Importantly, Casey asked the follow-up question before he issued the citation to appellant or returned appellant's driver's license. The officer testified that the reason he detained appellant was not to get consent to search, but because the initial stop had not yet concluded. Moreover, Casey did not convey a message that compliance with his request was required. Because Casey requested the consent to search during the pendency of the stop, appellant was not detained further as a result of Casey's questions thus he was not detained in violation of the Fourth Amendment. The cases upon which appellant relies are inapplicable because they concern continued detentions, meaning detentions that took place after the officer had issued the citation and the stop had ended, which is not the case here. See McQuarters v. State, 58 S.W.3d 250, 254 (Tex.App.-Fort Worth 2001, pet. ref'd); State v. Daly, 35 S.W.3d 237, 240 (Tex.App.-Austin 2000, no pet.); Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.-Fort Worth 1998, pet. ref'd). Even if we were to conclude that Casey's request for consent to search constituted a continued detention, which we do not, the continued detention did not violate the Fourth Amendment because Casey had a reasonable suspicion that some criminal activity existed. During the stop, Casey observed appellant's nervous behavior, noticed that appellant would not make eye contact with him, and discovered appellant had previously been arrested for unlawfully carrying a weapon. Casey knew that Interstate 30 was a favorite thoroughfare among drug traffickers, and, in his experience, appellant's laughter in response to the question about whether he possessed anything illegal was generally indicative of someone found to have contraband in their possession. Unlike some cases where there exists no suspicious behavior or incriminating circumstances during the stop to justify the continued detention, the facts in this case would have warranted a person of reasonable caution in the belief that a continued detention was justified. See Simpson, 29 S.W.3d at 329. Additionally, we note that the videotape belies appellant's suggestion that Casey kept the unissued citation and driver's license for the purpose of detaining appellant so he could request and obtain a consent to search or conduct a "fishing expedition." We resolve this argument against appellant. Consent to Search
Appellant next argues the evidence is legally and factually insufficient to show that he provided valid consent to search the vehicle. Alternatively, appellant argues that even if there was sufficient evidence to show he consented to the search, the consent was nevertheless invalid because it was still tainted from the unlawful detention. Because the latter argument is premised on an unlawful detention, and we have already determined that the detention in this case was lawful, we address only the primary argument. The validity of an alleged consent to search is a question of fact to be determined from all the circumstances. Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App. 2003). The State is required to prove validity of consent by clear and convincing evidence. See id. At a suppression hearing, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Id. Again, we apply the bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Id. Here, the trial court found appellant's response to the question whether he minded if Casey searched his car was "no." Although appellant answered in a soft, monotone voice, his consent was nonetheless unequivocal and voluntarily given. The trial court's finding is supported by the record. Both Casey and appellant testified that appellant answered "No" to Casey's question, "So, you don't mind if I take a real quick look?" Appellant then immediately turned to walk toward his car, leaving his driver's license and signed, but unissued, warning and citation behind with Casey. The dispute here does not arise on the "no" answer itself; instead, it arises in the interpretation of what "no" meant. Based on appellant's verbal and nonverbal communication, Casey could reasonably have concluded that appellant consented to the search. See Powell v. State, 5 S.W.3d 369, 379 (Tex.App.-Texarkana 1999, pet. ref'd) (stating that validity of consent depends on whether officer could reasonably conclude that consent was given). Considering all the circumstances and giving proper deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that appellant consented to the search of his car. We resolve this argument against appellant. Conclusions of Law
In his last argument, appellant contends that the trial court's sixteenth and seventeenth paragraphs of its conclusions of law are contradictory when read together, and they are not supported by the facts or cited case law. Specifically, appellant asserts that if, as the trial court suggests in paragraph sixteen, there was not sufficient evidence to show Casey had a reasonable suspicion to believe that appellant was engaged in criminal activity, then the continued detention must be construed as illegal. However, appellant's argument relies on the determination that a continued detention occurred, and, as we have already determined above, that did not happen in this case. The two complained-of paragraphs are consistent when read together. They conclude that Casey requested and obtained appellant's consent to search during the traffic stop. There was insufficient evidence for Casey to detain appellant any longer after the stop concluded. However, that there was insufficient evidence of a basis for a continued detention is of no consequence because consent had already been obtained during the initial stop. We therefore resolve this argument against appellant. Because appellant has not shown that the trial court abused its discretion in denying his motion to suppress, we affirm.