Opinion
13-22-00370-CR
08-31-2023
FERNANDO AHMAD AZZAM A/K/A FERNANDEO AHAMID AZZAM A/K/A FERNANDEO AHAMD AZZAM, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the 2nd 25th District Court of Lavaca County, Texas.
Before Justices Tijerina, Silva, and Peña
MEMORANDUM OPINION
JAIME TIJERINA JUSTICE
Appellant Fernando Ahmad Azzam a/k/a Fernandeo Ahamid Azzam a/k/a Fernandeo Ahamd Azzam appeals the trial court's denial of his motion to suppress. By two issues, Azzam argues the evidence in this case was illegally obtained because: (1) the traffic stop was invalid, and (2) it was "a product of an illegal warrantless search based on the totality of the circumstances[.]" We affirm.
I. Background
Azzam was indicted for possession of a controlled substance in penalty group one, namely methamphetamine, in an amount more than one gram but less than four grams. See Tex. Health & Safety Code Ann. § 481.115(c). On June 15, 2021, Azzam filed a motion to suppress, alleging the traffic stop "was without probable cause," the State had the burden of proving "probable cause," and the officer's "search exceeded the lawful search and seizure scope of the Fourth Amendment."
At the hearing, Officer Austin Hannah with the Hallettsville Police Department testified that while he was on duty on January 9, 2020, he observed Azzam's vehicle "turned completely off the road real quick and it came right down the side." Officer Hannah followed Azzam's vehicle, and he noticed Azzam commit a traffic violation by signaling a right turn "about five feet before the turn." See Tex. Transp. Code Ann. § 545.104(b) (setting out that when approaching a stop sign, a driver must signal a right turn within 100 feet of an intersection). Officer Hannah's dash cam video was admitted into evidence, showing that Azzam activated his turn signal as he was within a few feet of the stop sign- consistent with Officer Hannah's testimony.
Officer Hannah testified that when he initiated the traffic stop, Azzam immediately exited his vehicle, which "draws all kinds of alarms for [police officers]" because from his experience, individuals do that because "they are walking away from the vehicle because there's something inside of that vehicle that they want to distract us from." The video from Officer Hannah's dash cam showed that Azzam parked his vehicle in a parking space and exited his vehicle. Officer Hannah instructed Azzam to reenter his vehicle. Officer Hannah approached Azzam, informed him the reason for the traffic stop, and requested Azzam's driver's license and insurance. Azzam did not produce his driver's license, giving Officer Hannah his name and date of birth instead. Officer Hannah performed several unsuccessful warrant searches.
Eventually, Officer Hannah completed the warrant check, returned to Azzam's vehicle, and questioned why Azzam was driving the opposite way from Wells Fargo when Azzam stated that Wells Fargo was his destination. After an explanation from Azzam, Officer Hannah asked Azzam if he had anything illegal in the vehicle, which Azzam denied. According to Officer Hannah, something "seemed off the way [Azzam] was acting" because "[h]e kept digging around in the center console," and "he would kind of glance up," but he "really wouldn't give me his full contact." Officer Hannah stated that Azzam "seemed like he was nervous" by his presence.
Officer Hannah then asked, "Do you care if I check and make sure?" Azzam's response is inaudible from the video, but Officer Hannah testified that Azzam consented to the search. Azzam began gathering his things and proceeded to exit his vehicle. Officer Hannah then responded, "That's okay," and explained he wanted to search the vehicle due to Azzam's behavior. Azzam responded that he was nervous. Officer Hannah stated that initially he wanted to give Azzam a warning for the violation but then "when [he] picks up on these clues it just makes [him] think something else might be going on in the car."
The video shows that Officer Hannah again asked Azzam "you don't care if I check [the vehicle?]" Again, Azzam's response is inaudible, but Officer Hannah immediately says, "Okay," in response. Azzam approached the vehicle, and Officer Hannah instructed him to step back so that Officer Hannah could perform his search. Azzam then stated, "I don't understand what is going on. I don't understand what is going on. You're getting me really nervous. I don't know why." Officer Hannah responded, "Just relax. Don't be nervous. It's fine. If you don't have [any]thing illegal in the car you have nothing to worry about, okay?"
Azzam showed Officer Hannah how to unlock the doors and open the center console. Officer Hannah searched the interior of the vehicle and the glove compartment. Officer Hannah informed Azzam he was almost done and asked Azzam how to open the trunk. Azzam approached Officer Hannah, and Officer Hannah asked Azzam, "Can you pop it for me?" In response, Azzam opened the trunk. In the trunk, Officer Hannah located a black bag with an uncapped syringe containing a dark substance "mixed with blood." Azzam approached Officer Hannah and informed him that the needle is his and the content in the syringe is medication. Officer Hannah instructed Azzam to step back and continued the search, rummaging through the bag.
When Officer Hannah asked Azzam if the content in the syringe would test positive for methamphetamine, Azzam responded, "[I]t shouldn't. I don't think it is." Azzam then admitted it was methamphetamine when Officer Hannah stated he would test the substance. Officer Hannah ultimately found another needle with a clear substance inside and a clear baggy containing a white crystalline substance that resembled methamphetamine. The trial court denied the motion to suppress. This appeal followed.
II. Standard of Review
"We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review." Lerma v. State, 543 S.W.3d 184, 189-90 (Tex. Crim. App. 2018). "[W]e afford almost complete deference to the trial court in determining historical facts," but "we review de novo whether the facts are sufficient to give rise to reasonable suspicion in a case." Id. at 190. When, as here, the trial court does not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and presume that the court made implicit findings of fact supported by the record. Id. A trial court's ruling should not be reversed unless it is arbitrary, unreasonable, or outside the zone of reasonable disagreement. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We may uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. Id.
We cannot ignore indisputable video evidence, see State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013), but we defer to the trial court when video evidence does "not indisputably refute the trial court's finding." State v. Gobert, 275 S.W.3d 888, 892 n.13 (Tex. Crim. App. 2009). When indisputable video evidence is conclusive, "then any trial-court findings inconsistent with that conclusive evidence may be disregarded as unsupported by the record, even when that record is viewed in a light most favorable to the trial court's ruling." Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (quoting Tucker v. State, 369 S.W.3d 179, 187 (Tex Crim App 2012) (Alcala, J, concurring)).
III. Reasonable Suspicion
By his first issue, Azzam argues the trial court erroneously denied his motion to suppress because "there was no probable cause for the traffic stop."
A. Applicable Law
The Fourth Amendment to the United States Constitution guarantees protection against unreasonable searches and seizures. U.S. Const. amend. IV; Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). These constitutional protections extend to investigatory stops of persons or vehicles that fall short of a traditional arrest. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017) (citing United States v. Arvizu, 534 U.S. 266, 273, (2002)). A warrantless traffic stop by law enforcement personnel to address traffic violations constitutes a seizure within the meaning of the Fourth Amendment and is tantamount to a temporary detention; therefore, the traffic stop must be justified and supported by reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7 (1989); Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
A police officer has reasonable suspicion to detain a person when the officer has specific, articulable facts that, combined with rational inferences from such facts, would lead the officer to reasonably conclude that the detained person is, was, or soon will be engaged in criminal activity. Ramirez-Tamayo, 537 S.W.3d at 36. Under this standard, we consider whether there was an objectively justifiable basis for the detention. Id. We look to the totality of the circumstances in assessing the existence of reasonable suspicion and consider whether the officer who detained the person had a particularized and objective basis for suspecting wrongdoing. Id.
As relevant here, § 545.104(b) of the transportation code reads as follows: "An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn." Tex. Transp. Code Ann. § 545.104(b).
B. Discussion
Azzam asserts that "[he] signaled a turn while at a stop sign," and only "[a]fter coming to a complete stop, he turned as indicated by his turn signal." Although Azzam argues that there was no probable cause for the traffic stop, an officer only needs reasonable suspicion for a traffic stop, which "requires only some minimal level of justification for the stop." Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016).
Officer Hannah testified that he believed Azzam's failure to signal continuously for not less than 100 feet was a violation of § 545.104(b) of the transportation code because he observed Azzam initiate his turn signal about "five feet" before making a right turn. Moreover, as previously stated, Officer Hannah's dash cam video, corroborates his testimony. See Tex. Transp. Code Ann. § 545.104(b). There are no exceptions in the transportation code to the requirement that operator must signal continuously for not less than 100 feet when making a turn. See Tex. Transp. Code Ann. § 545.104(b). "Although appellate courts may review de novo 'indisputable visual evidence' contained in a videotape, the appellate court must defer to the trial judge's factual finding on whether a witness actually saw what was depicted on a videotape," and here Officer Hannah testified that he observed the traffic violation. Duran, 396 S.W.3d at 570-71. Therefore, we conclude that Officer Hannah had reasonable suspicion that Azzam violated § 545.104 of the transportation code and properly conducted the traffic stop. Accordingly, the trial court did not err in concluding Officer Hannah had reasonable suspicion to conduct the traffic stop. See Ramirez-Tamayo, 537 S.W.3d at 36. We overrule Azzam's first issue.
IV. Warrantless Search
By his second issue, Azzam argues that the evidence was a product of an illegal warrantless search because Officer Hannah prolonged the detention without further reasonable suspicion and Azzam did not consent to a search of the trunk of the vehicle.
A. Officer Hannah did not unreasonably prolong the detention
First, Azzam argues that the detention was delayed and unrelated to the 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, 543 S.W.3d at 190. During a traffic stop, the officer may request the driver's license, vehicle registration, and proof of insurance, and run a computer check on that information. Id. An officer is also permitted to ask drivers "about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop." Id.
"There 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. 190-191. Once the officer knows that the driver has a current valid license, no outstanding warrants, and the vehicle is not stolen, and the computer check is completed, the traffic stop investigation is fully resolved. Id. at 191. "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.
Here, Officer Hannah was actively involved in the traffic stop when he questioned Azzam about his whereabouts, destination, and choice of routes. Id. at 195 ("[P]olice may diligently pursue means of investigation likely to confirm or dispel their suspicions of other crime quickly, so long as they do not unnecessarily detain the driver."); State v. Martinez, 638 S.W.3d 740, 750 (Tex. App.-Eastland 2021, no pet.) ("[W]hile the investigation is ongoing a law enforcement officer may appropriately request and verify (1) the driver's license and proof of insurance, (2) the driver's destination and purpose of the trip, (3) the driver's history for outstanding warrants, and (4) the vehicle's ownership and registration."). Azzam argues that the justification for the stop concluded when Officer Hannah confirmed that Azzam had no outstanding warrants. Once Officer Hannah determined that Azzam had no outstanding warrants, Officer Hannah asked why Azzam was traveling in the opposite direction of his alleged destination. He then requested consent to search Azzam's car, which was given. See Martinez, 638 S.W.3d at 750 ("[A]n officer may inquire into matters unrelated to the purpose of the traffic stop provided those inquiries do not unreasonably extend the duration of the stop.").
At the suppression hearing, Officer Hannah testified that he observed these indicators of criminal activity while conducting the traffic stop: (1) Azzam parked the vehicle in a parking lot, immediately exited the vehicle, and started walking away from it-in a possible attempt to hide something in the vehicle, according to Officer Hannah; (2) Azzam did not have his driver's license; (3) Azzam avoided eye contact with Officer Hannah; (4) Azzam "kept digging around in the center console"; (5) Azzam was nervous; (6) Azzam admitted he was previously arrested for two offenses of driving while intoxicated; and (7) Azzam stated he was going to Wells Fargo, yet he was traveling in the opposite direction. See id. at 750-51 (providing that "the detaining officer develops reasonable suspicion that other criminal activity has occurred or is occurring, the scope of the initial investigation may expand to include the other offense and the officer may further detain the driver for a reasonable period of time in order to dispel or confirm the officer's reasonable suspicion of other criminal activity"). Importantly, the entirety of the traffic stop lasted approximately six minutes before Azzam gave Officer Hannah consent to search the vehicle. See Martinez, 638 S.W.3d at 752 ("[W]e cannot say that a thirty-eight-minute detention to await the arrival of a canine unit is unreasonable 'per se.'"); see also Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.-Amarillo 2003, pet ref'd) (holding that seventy-five-minute detention from the time of stop until the drug dog arrived was not unreasonable).
"It may be true that, taken individually, none of these facts provide an adequate foundation from which to form reasonable suspicion that [Azzam] was engaging in illegal conduct." See Ramirez-Tamayo, 537 S.W.3d at 38. "[S]ome circumstances may seem innocent in isolation," but "they will support an investigatory detention if their combination leads to a reasonable conclusion that criminal activity is afoot." Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014). Considering the totality of the circumstances, including "the combined logical force of these circumstances when examined together," we conclude Officer Hannah did not unreasonably prolong the detention. See Ramirez-Tamayo, 537 S.W.3d at 38-39.
B. Azzam consented to the search
Next, Azzam argues that the scope of the search exceeded consent. Consent to a search is an exception to the constitutional requirements of a both a warrant and probable cause. See Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). The extent of a search is limited to the scope of the consent given, and the scope of the consent is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251 (1991). We measure the scope of consent under the Fourth Amendment under "objective" reasonableness-"what the typical reasonable person would have understood by the exchange between the officer and the [defendant]." Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); see Jimeno, 500 U.S. at 251. A defendant may limit the scope of the search if he chooses. Simpson, 29 S.W.3d at 330; see Jimeno, 500 U.S. at 251; see also State v. Gonzalez, No. 13-02-355-CR, 2004 WL 1698326, at *3 (Tex. App.-Corpus Christi-Edinburg July 29, 2004, no pet.) (mem. op., not designated for publication). "Absent an officer's request or a suspect's consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search 'the car' reasonably includes all areas of the vehicle and excludes none." State v. Garrett, 177 S.W.3d 652, 657 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). When an officer asks a suspect for permission to search a vehicle for illegal contraband and the suspect agrees, a reasonable person would construe the consent to extend to any area of the vehicle where such objects could be concealed. Id. at 657-58; Whether a specific search is "reasonable" under the Fourth Amendment is subject to de novo review. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006); see also U.S. Const. amend. IV (protecting against "unreasonable searches and seizures").
Here, Azzam consented to a search of the vehicle at least twice. Nothing in the record indicates that Azzam's consent was restricted to only the interior of the vehicle. See Montanez v. State, 211 S.W.3d 412, 416 (Tex. App.-Waco 2006, no pet.) ("[I]t is objectively reasonable that an unlimited consent to search a vehicle will extend to every part of the vehicle within which contraband may be hidden."). Moreover, by asking if he had any drugs or illegal substance in the vehicle and if he could search the vehicle for "anything," Officer Hannah did not limit his search request to a specific area of the vehicle or a particular item. "Absent an officer's request or a suspect's consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search 'the car' reasonably includes all areas of the vehicle and excludes none." Garrett, 177 S.W.3d at 657; Simpson, 29 S.W.3d at 330 ("Unless an officer's request, or a suspect's consent, limits a search to a particular area of the vehicle, such as the passenger compartment or trunk, we believe that a request for a search 'of the car' reasonably includes all areas of the vehicle and excludes none."); see also Gonzalez, 2004 WL 1698326, at *3 ("When an officer states that he is looking for narcotics and consent is given, it is reasonable to conclude that such consent includes containers that may contain drugs.").
Azzam did not expressly or implicitly exclude the trunk from Officer Hannah's search. When Officer Hannah questioned how to open the trunk, Azzam voluntarily opened the trunk himself. Based on our de novo review of the reasonableness of the search in this case, we conclude that Officer Hannah did not exceed the scope of the consent when he searched the trunk under the facts presented here. Accordingly, the trial court did not err in denying Azzam's motion to suppress.
V. Conclusion
We affirm the judgment of the trial court.