Opinion
No. 05-19-00189-CR
05-07-2020
THOMAS ANDERSON GIROUX, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 069348
MEMORANDUM OPINION
Before Justices Osborne, Partida-Kipness, and Pedersen, III
Opinion by Justice Osborne
Appellant, Thomas Anderson Giroux, was charged with possession of methamphetamine in an amount of four grams or more but less than two hundred grams. Prior to trial, appellant filed a pre-trial motion to suppress evidence he claimed had been illegally seized. After a hearing, the trial court denied the motion to suppress. Appellant thereafter entered an "open" plea of guilty to the charged offense. The trial court found appellant guilty and sentenced him to eight years' imprisonment.
The trial court also ordered appellant to pay $180 in restitution and unspecified court costs.
Background
Appellant's motion to suppress the methamphetamine found in the vehicle he was driving was based on assertions that (1) the vehicle was stopped without reasonable suspicion or probable cause that a traffic violation had been committed, and (2) appellant was detained for an unreasonable period of time. The trial court held a hearing on this motion on October 5, 2018.
The only witness to testify at the hearing was Michael Landeros, a Texas State Highway Patrol trooper. On March 8, 2018, Landeros was patrolling U.S. 75 in Grayson County. Landeros testified that U.S. 75 was "known as a frequent corridor of people possessing and distributing narcotics." Over the course of his career, Landeros had stopped a "couple hundred" people having illegal drugs on that highway in the past.
The trooper's name is spelled differently in the various documents before this Court. Appellant's brief, the State's brief, and the trial court's findings of fact and conclusions of law spell the trooper's last name as "Landeros," while the reporter's record spells the trooper's name as "Landaros." At no point does the trooper spell his own name in the record. We will use "Landeros" as the spelling of the trooper's name in this opinion.
Landeros' attention was drawn to a Jeep SUV, headed southbound on U.S. 75, that was not displaying a front license plate. Landeros followed the vehicle and initiated a traffic stop. He approached on the passenger side of the vehicle, identified himself, stated the reason for the stop, and asked the driver for his license. From that license, Landeros identified the driver as appellant. Landeros then asked for proof of insurance for the vehicle. Appellant could not immediately produce insurance information and told Landeros that the vehicle belonged to his boss.
Landeros later discovered that the license plate was inside the vehicle on the dashboard facing up. However, the license plate was still improperly placed for purposes of being able to read it from the road. See TEX. TRANSP. CODE ANN. § 504.943.
Landeros asked appellant where he was coming from; appellant said the Days Inn in Sherman, a hotel known to Landeros and law enforcement for prostitution, narcotics, and stolen vehicles. Landeros asked appellant his destination; appellant said he was going to work about an hour away from Sherman. Appellant told Landeros that he had been in the area for two weeks going to this job but he did not know what city that the job was in. Landeros named several cities that were approximately an hour south of Sherman, including Allen and Fairview; appellant then said the job was in Allen. Appellant said that he did residential tile work; Landeros did not, however, see any tools for that trade in the vehicle.
Landeros noticed a number of things about appellant's physical appearance which caused him to be suspicious. Appellant appeared to have "sunken in cheeks" which can be characteristic of methamphetamine users. Landeros noticed that appellant's breathing was "extremely heavy" and his voice was "crackling." Appellant displayed unusual nervousness: "As soon as he handed me his license, his hand was trembling uncontrollably. He was avoiding eye contact. I noticed that at first he wasn't sweating, and then he started to sweat more throughout the traffic stop."
At some point during this encounter, an expired insurance card in the name of Tony Hester was found.
Landeros asked appellant to exit the vehicle. When appellant got out of the car, Landeros noticed a pocket knife in appellant's front right pants pocket. Landeros removed it for his safety and patted appellant down. Landeros had appellant empty his pockets "because we were fixing to sit in my car to look up information."
Once in Landeros' patrol car, Landeros did a routine driver's license check on appellant's license and a warrant check. Just prior to conducting this check, Landeros asked appellant if he had ever been arrested; appellant said "yes" for narcotics. The criminal history check revealed that appellant had arrests for "[s]everal manufacture, delivery, possession, and possession PG 3." Landeros could now see appellant's carotid artery pulsing very fast. This indicated to Landeros a high degree of nervousness over and above what would be normal during a standard traffic stop.
Based on all of his observations, Landeros told appellant he believed there were narcotics in the vehicle and asked for consent to search the vehicle. Appellant refused.
Immediately after appellant refused consent to search, Landeros called for a canine unit to come and conduct an "open air dog sniff." He made calls to both Grayson County and to the Sherman Police Department, but no canine units were immediately available. He then contacted a deputy in Collin County who had a canine; that officer said he was in Anna, about 10 miles away, but would be there shortly. The call for the canine unit was made approximately seven minutes and fifty seconds after the traffic stop was initiated.
Appellant was worried about being late for work and asked if he could call his boss. Landeros agreed, and appellant called Hester on his own cell phone. During the call, Landeros asked appellant if he could speak to Hester; appellant agreed. Hester told Landeros that he was the owner of the vehicle. Landeros explained about the license plate and Hester agreed to later put it on front of the vehicle. Landeros also asked Hester if there was anything illegal in the vehicle; Hester said there should not be. Landeros then asked Hester, who he now had on speaker phone, for consent to search the vehicle, which Hester gave.
Landeros did not, however, immediately search the vehicle, but waited for the canine unit to arrive. He explained his reasons for waiting:
Q. [BY THE PROSECUTOR] So, why didn't you search the vehicle at the time that Mr. Hester says, yeah, you can go ahead and search my vehicle?
A. After Mr. Hester gave me consent to search, the suspect here (i.e., appellant) said, no, I'm not going to allow you to search.
Q. And that is the second time that he told you that?
A. Yes.
Q. He told you that earlier, correct?
A. Yes.
Q. So, why did you ask for the dog?
A. Because I believed there was narcotics in that vehicle.
Q. Well, I mean, you believe that you had consent to search from the owner, so why -
A. Oh, why did I wait? To be safe. I didn't want to violate -
Q. To be safe not to do an illegal search?
A. That is correct.
About forty-three minutes after the traffic stop, the canine unit arrived and began an open-air sniff around the vehicle. The dog alerted on the vehicle and a warrantless search was conducted. Several baggies of methamphetamine were located in a sunglass kit behind the driver's seat and seized.
At the conclusion of Landeros' testimony, counsel for appellant asked the trial court to suppress the methamphetamine. Counsel for appellant based his argument on (1) unnecessary delay in waiting for the canine unit and (2) the inability of an absent owner to give consent to search. The State argued that an owner "can consent if he's not there" to the search of the vehicle and that Landeros was not "unreasonable in trying to be safe and wait on a dog," which he diligently pursued. In denying appellant's motion to suppress, the trial court stated "I agree that it (the delay in waiting for the dog) went beyond the time of a regular traffic stop, but I think under the totality of the circumstances that he (Landeros) had reasonable suspicion, so the motion is denied."
The trial court entered written findings of fact and conclusions of law. In particular, the trial court made the following conclusions of law:
1. Landeros had probable cause to conduct a stop of the vehicle.
2. Landeros developed a reasonable suspicion that the defendant had contraband in his vehicle based upon the location from which the defendant indicated he had come, his inability to tell Landeros where he was working, his travel back and forth from a job site some 50 miles away, his extreme nervousness, and his criminal history involving the use, possession and delivery/manufacture of drugs.
3. Landeros received a voluntary and valid consent to search the vehicle from the owner, Tony Hester.
4. Prior to receiving the consent, Landeros' detention of the defendant was reasonable.
5. Prior to receiving the consent from Hester, Landeros did not unnecessarily prolong the traffic stop. After receiving the consent to search from Hester, Landeros was legally justified to search the vehicle.
6. Even after receiving the consent to search, Landeros was diligent in seeking a K9 to come to his location for a search of the vehicle.
7. The time awaiting the arrival of the K9 was reasonable under the circumstances.
8. The search of the vehicle operated by the defendant was legally justified either as a consent search or a search based upon the K9 alert or both.
The record does not reflect that appellant made any objections to the trial court's findings of fact and conclusions of law.
Issues on Appeal
On appeal, appellant challenges only the trial court's ruling on the motion to suppress. Appellant claims the trial court erred when it concluded that (1) reasonable suspicion to detain appellant existed beyond the time necessary to effectuate the purpose of his traffic stop and (2) the actual owner of the vehicle, who was not present at the scene, provided the officer with valid consent to search the vehicle appellant was driving. Appellant does not challenge the propriety of the canine search.
Appellant did not challenge the propriety of the canine search at trial. As the parties informed the trial court:
[THE PROSECUTIOR] The basis of the Motion to Suppress involves . . . what we have covered.
It's not the dog, or anything like that, so we both agreed that it was not necessary for Deputy Tackett to be here and talk about the dog alerting and doing all of that. I think we're good with that.
It's the things that happened prior to that that is the gist of the motion.
[DEFENSE COUNSEL] That's correct. We're not challenging the dog.
The State responds that the officer had reasonable suspicion to detain appellant and the officer had the consent of the actual owner to conduct the search. The State does not specifically address appellant's allegations concerning the delay while waiting for the canine unit.
Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion, using a bifurcated standard. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's determination of historical facts, and review de novo the trial court's application of the law. Maxwell, 73 S.W.3d at 281; Guzman, 955 S.W.2d at 88-89.
When the trial court makes findings of fact, as it did in this case, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). The trial court's legal conclusions are reviewed de novo unless its explicit fact findings supported by the record are also dispositive of the legal ruling. Id. We will uphold a trial court's ruling on a motion to suppress if it is correct under any theory of law applicable to the case, even if the trial court did not rely on that theory in making its ruling. State v. Copeland, 501 S.W.3d 610, 612-13 (Tex. Crim. App. 2016).
Consent is an Exception to a Warrant Requirement
A warrantless search is considered "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). One exception is a search that is conducted pursuant to consent. Id.; Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
The validity of consent to search is a question of fact to be determined from all the circumstances. Meekins, 340 S.W.3d at 458. To prove valid consent, the prosecution must show, from the totality of the circumstances, that consent was freely and voluntarily given. Voluntariness depends on the totality of the circumstances. State v. Ruiz, 581 S.W.3d 782, 786 (Tex. Crim. App. 2019) (citing Schneckloth, 412 U.S. at 233).
Issues of consent are "necessarily fact intensive" and, as a result, "a trial court's finding of voluntariness must be accepted on appeal unless it is clearly erroneous." Meekins, 340 S.W.3d at 460. The prevailing party in the trial court "is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
The Actual Owner Gave Consent to Search
Here, the trial court made the following findings concerning consent:
(1) An expired proof of insurance in the vehicle had the owner's name, Tony Hester;The record supports these findings.
(2) Appellant called Hester on his own cell phone;
(3) During this call Hester gave Landeros consent to search the vehicle;
(4) It is a reasonable inference that Hester had appellant's cell number after Hester's consent to the search; and
(5) The record does not show that any calls were made from Hester asking to withdraw his previously given consent at any time during the traffic stop.
Indeed, there was no dispute at trial that Hester was the actual owner of the vehicle or that he gave Landeros his consent to search the vehicle over the telephone. From these facts, the trial court concluded that consent was valid and that the search was conducted pursuant to that consent:
(1) Landeros received a voluntary and valid consent to search the vehicle from Hester;
(2) After receiving that consent from Hester, Landeros was legally justified to search the vehicle; and
(3) The search of the vehicle operated by the defendant was legally justified as a consent search.
On appeal, appellant does not challenge Hester's ownership of the vehicle he was driving at the time he was stopped. Nor does appellant challenge the fact that Hester gave Landeros his consent to search the vehicle. Rather, his argument concerns the ability of an owner who is not at the scene to consent. Yet the law is well-settled that third parties may consent to a search if they have authority and control over the property being searched and equal access to the property. See United States v. Matlock, 415 U.S. 164, 170-71 (1974); Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983).
This case is not dissimilar from Hill v. State, No. 05-08-01224-CR, 2010 WL 2683113 (Tex. App.—Dallas July 8, 2010, no pet.) (mem. op., not designated for publication). In Hill, the defendant was approached by two Plano police officers in the parking lot of a Motel 6. Id., 2010 WL 2683113 at *1. One of the officers testified at the hearing on Hill's motion to suppress that he had frequently seen criminal activity at this location; consequently, he included the parking lot in his patrol every night. Id.
Upon entering the parking lot, the officers saw a truck parked across three or four parking spaces. Id. The officers saw a light, which was not the truck's interior dome light, inside the truck. Id. One of the officers used a spotlight to light the interior of the truck so both officers could see whether anyone was inside the truck. Id. The officers saw Hill making furtive movements in the truck; it appeared to the officers that he was trying to hide something in the door. Id. The officers approached the truck to speak with Hill. Id. One officer walked to the passenger's side of the truck. Id. While the other officer crossed in front of the truck to get to the driver's side, Hill started to drive away but stopped to avoid running into the officer, who was, at the time, directly in front of the vehicle. Id.
Hill got out of the truck, but kept himself between the officers and the truck, shielding the officers' view. Id. When the officers asked Hill if there was anything illegal in the truck, Hill replied that he did not consent to a search of the truck. Id.
The officers asked Hill what was going on; he said he had just left his ex-wife's room, Room 206. Id. The officers contacted the motel clerk and learned that Room 206 had been vacant for approximately three hours. Id. When the officers asked Hill about his criminal history, Hill told the officers he had been arrested once. Id. After checking Hill's criminal history, the officers verified that Hill had three prior arrests. Id.
When Hill provided the officers with the truck's proof of insurance, the officers discovered that the truck was owned and insured by Hill's employers, Richard and Karen Forbes. Id. The officers used the information on the insurance card to get a phone number for the Forbeses. Id. One of the officers called the number and spoke to both Richard and Karen Forbes, who said that the truck was not supposed to be at the Motel 6 and they gave their consent to allow the officers to search the vehicle. Id. During the search, the officers found drugs and a weapon in the side door of the truck, which was the location where the officers observed Hill's furtive gestures just prior to their approach. Id.
Ms. Forbes stayed on the phone while the search was conducted so she would be able to revoke her consent at any time. After the search was completed, an officer obtained written consent from Ms. Forbes.
Hill filed a motion to suppress the search of the truck which the trial court denied. On appeal, Hill argued that telephone consent given by one of the owners of the vehicle, with no facts to show mutual use or right to possession of the vehicle, was not valid. Id. at * 2. This Court rejected Hill's argument:
It is well established that consent to search is an exception to constitutional requirements for a warrant or probable cause. Because the truck was a company vehicle, appellant had no justifiable expectation that the truck would be free from inspection by the Forbeses or police acting with the Forbeses' consent. . . . Here . . . the Forbeses owned the truck, paid insurance on the truck, and paid the employee for work done while using the truck. Further, the Forbeses indicated that
they had control over where the truck was to be used when they told the officers the truck was not supposed to be at the Motel 6. Under these circumstances, the Forbeses maintained a supervisory authority over the truck and had the power to consent to a search despite appellant's objections. Accordingly, the trial court did not abuse its discretion in denying appellant's motion to suppress.Id. at * 3 (citations omitted).
Other cases have also approved searches of company vehicles conducted pursuant to the actual owner's consent or a supervisor's consent. See Boyle v. State, 820 S.W.2d 122, 143 (Tex. Crim. App. 1991) (op. on reh'g) (holding that the owner of a truck rig had sufficient authority to consent to a search of one of the company's trucks driven by the defendant); Sharp v. State, 707 S.W.2d 611, 617 (Tex. Crim. App. 1986) (holding that the defendant's supervisor at a drilling company had the authority to give valid consent to search the company truck the defendant was driving regardless of its location).
Because appellant called Hester of his own accord, it is reasonable to conclude that he acknowledged Hester's supervisory authority over the truck. Hester assured Landeros on the telephone that he would attend to the license plate issue, which can be interpreted as Hester exercising control over, and taking responsibility for, the vehicle. When Landeros asked if there was contraband in the vehicle, Hester replied that there should not be; this can be interpreted as Hester asserting his authority over the vehicle. We agree with the trial court that Hester's consent provided legal justification to search the vehicle. The search, conducted pursuant to that consent, was valid and the trial court properly denied appellant's motion to suppress.
Reasonableness of Time of Detention
Because we conclude that the search of the vehicle was legally justified based on the consent of the actual owner, we need not decide appellant's issue regarding the reasonableness of the delay awaiting the arrival of the canine unit.
This, however, should not be read to condone the forty-three minute time frame from the initiation of the traffic stop to the actual search. To the contrary, we have grave concerns about the length of the delay involved. See Rodriguez v. United States, 575 U.S. 348, 355-56 (2015) (holding that an officer may not unduly prolong a traffic stop to conduct a dog sniff); Illinois v. Caballes, 543 U.S. 405, 407-08 (2005) (holding that a traffic stop "becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission" of issuing a warning ticket and to conduct ordinary inquiries incident to such a stop); United States v. Sharpe, 470 U.S. 675, 685 (1985) (noting that while there is no rigid, bright-line time limitation, the length of a detention may render a traffic stop unreasonable). We must, however, leave this question for another case and another day.
We overrule appellant's sole issue.
Conclusion
The trial court's judgment is affirmed.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
190189F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 069348.
Opinion delivered by Justice Osborne. Justices Partida-Kipness and Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 7, 2020