Summary
holding that testimony from officer that license plate frame on defendant's car obscured the word "Texas" supported trial court's implicit finding that a reasonable officer would have suspected that statute was violated and justified the traffic stop
Summary of this case from Wright v. StateOpinion
NUMBER 13-16-00472-CR
04-26-2018
REBECCA CZERWINSKI, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Rebecca Czerwinski appeals from an order denying her motion to suppress a controlled substance found in her purse after a traffic stop. Following the denial and Czerwinski reserving her right to appeal it, she pleaded nolo contendere pursuant to a plea agreement with the State. The trial court signed an order deferring adjudication of one count of possession of less than one gram of methamphetamine, see TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2017 1st C.S.), and placing Czerwinski on community supervision for two years. In seven issues, Czerwinski asks us to reverse the orders deferring adjudication and denying her motion to suppress. We affirm.
I. BACKGROUND
At approximately 2:30 p.m. on February 11, 2015, Clayton Cody, a lieutenant in the criminal investigation division of the Texas Department of Public Safety, was about to execute a warrant on a house suspected of narcotics activity when he witnessed a vehicle driven by Czerwinski leave the house. Cody radioed out to law enforcement officers to "be on the lookout" for Czerwinski's vehicle and to initiate a traffic stop of it.
Jason Rhodes, a Corpus Christi police officer, responded to the call by following Czerwinski's vehicle a few blocks. During his pursuit, Rhodes noticed that the "license plate frame [on Czerwinski's vehicle] had an American flag . . . imprint going around the frame, and the top of where the flag would be draped down far enough where it obscured the Texas on the license plate." Although Rhodes could not identify the specific statutory provision, he believed the partial obstruction to be a violation of the transportation code. Rhodes testified that he believed the partial license plate obstruction gave him reasonable suspicion of a traffic infraction, and he activated his patrol car's overhead lights and initiated a traffic stop.
The dashcam video from Rhodes's patrol car showed him approaching the passenger-side window and contacting the front-seat passenger, Thomas Cantu, and Czerwinski. Rhodes asked Czerwinski for her driver's license and the vehicle insurance identification card, and she complied. Cantu had no identification on him, and he was generally uncooperative with Rhodes. According to Rhodes, Czerwinski and Cantu appeared nervous as judged by their "fidgeting with their hands, their body movements." Rhodes's dashcam video shows that approximately a minute and a half after Rhodes began speaking to Cantu, an unidentified backup police officer and Chris Lynch, a canine handler with the Corpus Christi police department, approached the driver's-side window.
That afternoon, Lynch had been assisting with Cody's narcotics investigation. Lynch estimated that Czerwinski's vehicle had been stopped for a minute and a half to two minutes before his arrival. Upon encountering Czerwinski, Lynch asked her to step out of the vehicle. Czerwinski testified that she was scared and "started to panic" when Lynch asked her to step out of the vehicle. Lynch testified that he asked Czerwinski, "Okay, Rebecca, do you give me permission to search the car with the dog?" Czerwinski answered, "Yes." Dashcam video from the unidentified backup police officer's vehicle substantiates Lynch's testimony. According to Czerwinski, she consented "[b]ecause that's what they wanted [her] to do" and because she was scared. Czerwinski was also concerned about her children; she informed Lynch that she needed to call and ask her sister to pick up her children from elementary school. Lynch's canine entered the interior of the vehicle and alerted to the possible presence of narcotics between the driver's seat and the center console.
Meanwhile, Rhodes estimated that three to four minutes into the traffic stop he began running Czerwinski's information and checking for any outstanding warrants. Rhodes's dashcam video, and the accompanying audio, show that Rhodes and Cantu were engaged in a minutes-long discussion from their first interaction.
Cody arrived on the scene and learned that Lynch's canine had alerted to the possible presence of narcotics. Cody confronted Czerwinski with news of the alert and informed her that law enforcement agents witnessed her leaving a house suspected of narcotics activity. Cody recalled that Czerwinski admitted to him that she had drugs in her purse, and she handed him her purse; inside it was a cigarette pack containing methamphetamine. From her bra, Czerwinski pulled out a glass pipe for smoking methamphetamine and surrendered it to Cody.
Czerwinski was arrested. The clerk's record contains a DPS laboratory analysis confirming that Czerwinski possessed 0.64 grams of methamphetamine. Czerwinski moved to suppress the methamphetamine on the basis that the law enforcement agents lacked reasonable suspicion of a traffic infraction to initiate the stop, the stop was unreasonably prolonged, and Czerwinski's consent to search her vehicle was involuntary, given the intimidating presence of law enforcement agents. The trial court denied Czerwinski's motion to suppress, accepted a plea of nolo contendere in accordance with a plea bargain between her and the State, deferred adjudication, placed her on community supervision for two years, and certified her right to appeal the suppression ruling. This appeal followed.
II. DISCUSSION
A. Standard of Review
We review a trial court's ruling on a motion to suppress using a bifurcated standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We give almost total deference to the trial court's determination of historical facts and of mixed questions of law and fact that rely on credibility determinations if they are supported by the record. Id. However, we review de novo questions of law and mixed questions of law and fact which do not rely on credibility determinations. Id. When there are no written findings explaining the factual basis for the trial court's decision, as in this case, we imply findings of fact that support the trial court's ruling so long as the evidence supports those implied findings. Meekins v. State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011).
B. Reasonable Suspicion
1. Applicable Law
To suppress evidence for an alleged Fourth Amendment violation, the defendant bears the initial burden of rebutting the presumption that the police acted properly. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant satisfies her initial burden if she establishes that the search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant shows she was searched or her property was seized without a warrant, the burden shifts to the State to establish that the search and the seizure were reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). In evaluating a trial court's suppression ruling, we must keep in mind that the "touchstone of the Fourth Amendment is reasonableness, not individualized suspicion." Samson v. California, 547 U.S. 843, 855 n.4 (2006). In evaluating whether a given search was reasonable, we evaluate it in relation to the search's "scope and manner of execution." Maryland v. King, 133 S.Ct. 1958, 1970 (2013).
A defendant's temporary detention following a traffic stop may be justified on less than probable cause if the evidence from the hearing establishes specific and articulable facts showing that the police reasonably suspected the defendant was or soon would be involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). Reasonable suspicion is proven to exist if, from the totality of the circumstances, the facts the officer articulates indicate that a reasonable person would have believed that the individual being detained was or soon would be engaged in criminal activity. Ford, 158 S.W.3d at 492-93. This objective standard requires courts to look solely at whether an objective basis for the stop existed, as the evaluation disregards the officer's subjective intent. Id.
Importantly, when based on reasonable suspicion, the legality of the stop does not depend on the State proving that the individual who was stopped actually committed a traffic offense. Instead, the legality of the stop may be proven by evidence that shows an objectively reasonable officer would have believed that an offense was in progress, given the facts that were articulated by the officer during the hearing. Martinez v. State, 500 S.W.3d 456, 465-66 (Tex. App.—Beaumont 2016, pet. ref'd) (citing Fernandez v. State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010, no pet.)). Therefore, to determine whether the stop was reasonable, we must decide if the evidence at the hearing reveals sufficient facts to show that a reasonable officer would have developed suspicion that the license plate on Martinez's car violated the obscured-plate statute. See Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). Generally, reasonable suspicion requires the State to demonstrate in the hearing only "some minimal level of objective justification" to justify the initial stop. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).
2. Analysis
Czerwinski's first issue partially turns on section 504.945(A)(7)(B) of the transportation code, which provides:
A person commits an offense if the person attaches to or displays on a motor vehicle a license plate that . . . has a coating, covering, protective substance, or other material that . . . alters or obscures one-half or more of the name of the state in which the vehicle is registered[.]TEX. TRANSP. CODE ANN. § 504.945(A)(7)(B) (West, Westlaw through 2017 1st C.S.). Czerwinski argues that "[u]nder the totality of the circumstances, there was no justification for the initial traffic stop." Specifically, Czerwinski argues:
[T]he numbers and letters were not covered, and enough of the letters of "TEXAS" were uncovered so that the license plate was readily identifiable as a Texas license plate. Less than one half of the name "Texas" was covered. . . . The middle bar of the "E" to its base was uncovered. The
aperture in the "A" to its base was uncovered. The crossing point of the "X" to its base was uncovered. The middle portion of the "S" to its base was uncovered. Less than half of the word "Texas" was covered, so the initial reason for the stop was invalid.In addition to the two dashcam videos, the trial court admitted several photographs of the license plate.
As we read Czerwinski's argument, she asks us to hold that as a matter of law she did not violate section 504.945(A)(7)(B) and therefore Rhodes's traffic stop lacked reasonable suspicion. But that is not the standard. Instead, the standard is whether a reasonable officer would have developed suspicion that the license plate on Martinez's car violated the obscured-plate statute. See Martinez, 348 S.W.3d at 923. Moreover, while we may review de novo "indisputable visual evidence" in a videotape, we will defer to the trial judge's factual finding on whether a witness actually saw what was depicted on a videotape or heard what was said during a recorded conversation. State v. Duran, 396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013); see also State v. Piedra, No. 13-13-00540-CR, 2015 WL 5576346, at *3 (Tex. App.—Corpus Christi 2015, no pet.) (mem. op., not designated for publication). For as the court of criminal appeals has explained, "there is a difference between what an officer sees during an ongoing event and what [an appellate court sees] when reviewing video." Jaganathan v. State, 479 S.W.3d 244, 248 (Tex. Crim. App. 2015).
Rhodes testified that the license plate frame on Czerwinski's vehicle obscured the word "Texas" on it. In its evaluation of Rhodes's credibility, we give the trial court almost total deference. See Kerwick, 393 S.W.3d at 273. The trial court may have gleaned from Rhodes's testimony, the photographs, and dashcam videos that a reasonable police officer would have suspected that Czerwinski's license plate violated section 504.945(A)(7)(B).
Consequently, there is some evidence supporting the trial court's implicit finding that the initial stop of Czerwinski's car was justified. See Martinez, 500 S.W.3d at 467 (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). While Czerwinski argues, like the defendant in Martinez, that less than fifty percent of the total area of the state's name was obscured by the license plate's frame, the State was not required to prove that an actual violation of the transportation code occurred to justify Rhodes's decision to stop the car to investigate whether a violation had in fact occurred. See 500 S.W.3d at 467; Heien, 135 S.Ct. at 536-39; see also Derichsweiler, 348 S.W.3d at 914.
Czerwinski's first issue is overruled.
Given our disposition of Czerwinski's first issue, we need not address her sixth issue, which contends that her consent was contaminated by the illegal stop. See TEX. R. APP. P. 47.1 (providing that the court must hand down a written opinion that is as brief as practicable).
C. Good Faith
In Czerwinski's second issue, she argues that Rhodes lacked "good faith" in initiating the traffic stop because he was directed by Cody to find pretext. At the intersection of good faith and pretext the court of criminal appeals has written:
Appellee points to the good faith exception to the exclusionary rule to argue
that subjective intent is a factor in fourth amendment analysis. However, the good faith exception does not come into consideration until an objective evaluation shows a constitutional violation. Only at that point do subjective considerations become involved. In the pretext arrest setting, the facts must first be viewed objectively to determine whether a constitutional violation has occurred.Garcia v. State, 827 S.W.2d 937, 944 n.10 (Tex. Crim. App. 1992). Having overruled Czerwinski's first issue, her second issue necessarily fails under Garcia. See id.
Czerwinski's second issue is overruled.
D. Prolonged Detention
In Czerwinski's third issue, she argues that "the stop was prolonged past its legitimate objectives." According to Czerwinski, she immediately provided her driver's license and insurance documentation, and Rhodes indicated to Cantu that because of her compliance he did not intend on writing Czerwinski a ticket for the obscured license plate. Therefore, the detention should have ended shortly thereafter. The State counters that Czerwinski's consent to allow Lynch to search her vehicle with his canine undercuts her prolonged detention issue.
We note that Czerwinski's third issue, as presented in the argument section of her brief, varies from the one articulated in the issues presented section of her brief. See TEX. R. APP. P. 38.1 (f), (i). In our discretion and because the briefing rules are to be liberally construed, see id. R. 38.9, we will address all issues fairly presented.
A police officer is allowed to detain a person on a temporary basis to investigate the officer's reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 29; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). The reasonableness of the duration of the detention depends on whether the police diligently pursued the investigation in a manner that was likely to confirm or dispel any suspicions quickly while detaining the defendant. United States v. Sharpe, 470 U.S. 675, 686 (1985); see Belcher v. State, 244 S.W.3d 531, 539 (Tex. App.—Fort Worth 2007, no pet.). It is unlawful for police officers to prolong a stop beyond the time reasonably required to complete the purpose of the stop. Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015). Factors that are considered in deciding whether a person has been detained for an unreasonable period of time include whether a legitimate need for law enforcement was served by any delays that were attendant to the investigation. Belcher, 244 S.W.3d at 539.
Lynch testified that Czerwinski's vehicle had been stopped for a minute and a half to two minutes before his arrival. One of the dashcam videos shows that Rhodes was unable to check Czerwinski's driver's license and vehicle registration information because he was busy conversing with Cantu. Before Rhodes could check Czerwinski's driver's license and vehicle registration information, Czerwinski consented to Lynch's request to search her vehicle with his canine. The evidence supports the trial court's implicit finding that the police diligently pursued the investigation in a manner that was likely to confirm or dispel any suspicions quickly while detaining Czerwinski. See Sharpe, 470 U.S. at 686; Belcher, 244 S.W.3d at 539.
Czerwinski's third issue is overruled.
E. Voluntariness of Czerwinski's Consent
In Czerwinski's fourth issue, she argues that her consent to Lynch was involuntary given the totality of the circumstances. Czerwinski points to the presence of Cody, Rhodes, Lynch, and the unidentified police officer, and Rhodes's possession of her driver's license and insurance documentation when Lynch asked for consent to search. She also highlights her cross-examination of Lynch:
Q. So three patrol cars, about four officers. There's a lot going on for Miss Rebecca; would you agree?The State responds that the trial court, as the factfinder, considered the totality of the circumstances and soundly rejected Czerwinski's contention that her consent was involuntary.
A. I would agree.
Q. You would agree that that's quite intimidating for a person for a traffic stop, that starts off as a traffic stop; is that correct?
A. I could see how that would be, yes.
When the State seeks to rely upon consent to justify the lawfulness of a search, it must prove that the consent was, in fact, freely and voluntarily given. Bumper v. N. Carolina, 391 U.S. 543, 546 (1968). The question of whether a consent was valid is a question of fact that the State must prove by clear and convincing evidence. Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012). The factfinder must consider the totality of the circumstances in determining whether consent was given voluntarily. Id. Thus, the State cannot meet its burden to establish that one consented if such consent was not given freely and voluntarily. See Bumper, 391 U.S. at 546.
Czerwinski's fourth issue largely turns on whether the trial court believed that she was intimidated into giving her consent, an area on which the trial court is afforded almost total deference. See Kerwick, 393 S.W.3d at 273. There is some evidence supporting the trial court's implicit finding that Czerwinski voluntarily consented to the search. The trial court weighed the testimony of Rhodes, Lynch, Cody, and Czerwinski, and it viewed two dashcam videos of Czerwinski's encounter with the law enforcement agents. Fienen, 390 S.W.3d at 333.
Czerwinski's fourth issue is overruled.
Given our disposition of Czerwinski's fourth issue, we need not address her fifth issue, which contends that there were no other intervening circumstances to attenuate the taint when she surrendered the contraband, and her seventh issue, which contends that the search and seizure was generally unreasonable. See TEX. R. APP. P. 47.1
III. CONCLUSION
We affirm the trial court's order denying Czerwinski's motion to suppress.
LETICIA HINOJOSA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 26th day of April, 2018.