Opinion
No. 07-15-00321-CR
08-29-2017
EMILIA MORALES-ACOSTA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court Oldham County, Texas
Trial Court No. OCR-13L-069 , Honorable Roland D. Saul, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Emilia Morales-Acosta pleaded guilty to the third degree felony offense of possession of marijuana in an amount more than 5 pounds but less than 50 pounds. Following a punishment hearing, the court sentenced her to ten years of imprisonment, probated for a period of ten years. On appeal, appellant challenges the trial court's denial of her motion to suppress. We will affirm.
TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(4) (West 2014).
Background
Appellant argues the evidence adduced at the hearing on her motion to suppress showed the Texas Department of Public Safety trooper lacked reasonable suspicion for his traffic stop; appellant did not give consent for the search of her SUV; and opening appellant's closed luggage was beyond the proper scope of the search.
At the hearing, the State presented the testimony of the arresting trooper, Mark Lancaster, and another trooper. Appellant testified, and the Spanish-language interpreter who assisted appellant at the hearing also testified. The patrol car video was admitted into evidence.
Evidence showed that appellant was traveling east on Interstate 40 in Oldham County. She was driving a sport utility vehicle with heavily tinted windows and was driving between 70 and 75 miles per hour. Lancaster was on patrol, traveling the opposite way on the interstate. He testified he turned his patrol car around to follow appellant's vehicle after he saw a passenger moving around in the vehicle. He pulled alongside the SUV and saw an apparently unrestrained child in the back seat. He initiated the traffic stop for appellant's failure to properly restrain her child. Lancaster testified he prepared a citation for the offense while sitting in his patrol car. He then approached appellant's car a second time and saw two new, neatly arranged suitcases in the rear luggage area of the SUV.
Thereafter, Lancaster testified, he asked appellant for permission to search her vehicle and asked for and received her keys. He searched the rear luggage area first, opening the closed luggage. Inside, the trooper found the marijuana for which appellant was charged. Lancaster arrested appellant for possession of marijuana and took her to jail.
The trial court denied appellant's motion and entered findings of fact and conclusions of law in support of its denial. On appeal, appellant contends the trial court erred in denying her motion.
Analysis
Standard of Review and Applicable Law
At a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of witnesses and the weight to be given their testimony. State v. Kaplan, No. 07-16-00135-CR, 2017 Tex. App. LEXIS 395, at *5-6 (Tex. App.—Amarillo Jan. 18, 2017, no pet.) (mem. op., not designated for publication). Reviewing its ruling, we afford almost total deference to a trial court's determination of the historical facts that the record supports, particularly when its fact findings are based on an evaluation of credibility and demeanor. Id. (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)) (citation omitted). We afford the same amount of deference to trial courts' rulings on "application of law to fact questions" if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. (citation omitted). If the trial court makes express findings of fact, we view the evidence, State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006), and the court's factual findings, State v. Granville, 423 S.W.3d 399, 404 (Tex. Crim. App. 2014), in the light most favorable to the trial court's ruling on the motion. We review a trial judge's application of search and seizure law to the facts de novo, and will affirm the judge's ruling if the record reasonably supports it and it is correct on any theory of law applicable to the case. State v. Duran, 396 S.W.3d 563, 568-571 (Tex. Crim. App. 2013).
Issue One—Reasonable Suspicion for Stop
In her first issue, appellant contends the trooper lacked reasonable suspicion to initiate a traffic stop.
An officer must have a reasonable suspicion that some crime was, or is about to be, committed before he may make a traffic stop. Duran, 396 S.W.3d at 570. Critical to that reasonable-suspicion analysis is whether the stop is supported by "specific and articulable facts" at its very inception. Id. The almost exclusive inquiry appropriate to determining the lawfulness of a traffic stop is whether the officer had "a pre-existing sufficient quantum of evidence to justify the stop." Id. at 569 (citing 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.3(a), at 472-73 (5th ed. 2012)).
In determining whether an officer is justified in making a Terry stop, "courts use an objective standard: Would a reasonable officer in the same situation believe a crime had been or was being committed? This objective standard requires reviewing courts to place themselves in the shoes of the officer at the time of the inception of the stop—considering only the information actually known by or available to the officer at that time. The court then asks, '[W]ould the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" Duran, 396 S.W.3d at 569 (citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)).
Normally, this inquiry "presents no significant problem, for most traffic stops are made based upon the direct observations of unambiguous conduct or circumstances by the stopping officer." Duran, 396 S.W.3d at 569. (citation omitted). But sometimes an issue arises as to what the officer actually saw or knew at the time that he made a traffic stop. Id.
At the suppression hearing, appellant argued Lancaster could not have seen an unbelted passenger when the vehicles passed going in opposite directions. And appellant argued the tinted glass would have rendered Lancaster unable to ascertain that the passenger was a child even when he pulled alongside the SUV. He reiterates those contentions on appeal.
Lancaster told the court that when he came alongside appellant's vehicle he "saw a child approximately eight or under jumping up and down in the back seat." It was for the trial court to assess the credibility of the trooper's testimony and to determine the weight to be given his statement regarding what he saw. Kaplan, 2017 Tex. App. LEXIS 395, at *5-6.
Appellant does not deny that it is a violation of Texas law to operate a vehicle with an unrestrained child inside. See TEX. TRANSP. CODE ANN. ART. 545.412 (West 2015) (describing offense). Under appellant's argument, the legality of Lancaster's traffic stop of appellant turns on resolution of the fact issue of whether he observed the commission of the offense. Affording deference to the trial court's resolution of that factual determination, we find the trooper had reasonable suspicion of a violation of law, permitting his detention of appellant. The trial court's acceptance of the trooper's testimony likely was influenced by the undisputed fact that appellant's five-year-old daughter indeed was riding in the SUV's back seat without a safety seat or other restraint.
The trial court did not, in its findings of fact, expressly state that it found Lancaster's testimony regarding what he saw to be credible. The trial court's findings include the statement that Lancaster's "reason for the stop, failure to wear a seatbelt was reasonable." Reading the findings in the light most favorable to the court's ruling on the motion, Granville, 423 S.W.3d at 404, however, we accept the statement as finding Lancaster did observe the "failure to wear a seatbelt" prior to his initiation of the traffic stop.
For that reason, we overrule appellant's first issue. Issue Two—Voluntary Consent
Via appellant's second issue, she contends she did not give voluntary consent to Lancaster's search of her SUV because she understood his question, asked in Spanish, to ask for entry into her vehicle, not a search of it.
A search conducted without a warrant based on probable cause is per se unreasonable, "subject to only a few specifically established and well-delineated exceptions." Hutchins v. State, 475 S.W.3d 496, 498-99 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011)). One exception is a search conducted with a person's voluntary consent. Id. (citing Meekins, 340 S.W.3d at 458).
Before a consent to search is deemed effective, the State must prove that the consent was freely and voluntarily given. Id. (citing Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985)). In Texas, the State carries the burden to establish a valid consent to search by "clear and convincing" evidence. Id. (citing Meekins, 340 S.W.3d at 459).
"The validity of a consent to search is a question of fact to be determined from all the circumstances." Id. (citations omitted). Resolving a question about the voluntariness of a consent requires the trial court to "conduct a careful sifting and balancing of the unique facts and circumstances of each case." Id. (citation omitted).
Here, like appellant's first issue, the consent issue appellant raises turns on the resolution of a question of fact: which Spanish word did Lancaster employ in his request to appellant, "registrar" or "entrar"? Appellant's brief states, "[Lancaster] claims to have used the term 'registrar' which means to search, however, the video footage and court translator, both confirm that [Lancaster] only used the term 'entrar,' which means to enter."
Other meanings of the word "registrar" were discussed at the hearing, but have no application to appellant's issue on appeal.
Lancaster testified he believed, based on his observations after the stop, that appellant was either a drug courier or had abducted the child. He asked appellant, in Spanish, for consent to search the car. Lancaster told the court he asked appellant "Puede registrar su vehiculo?" He stated this question requested appellant's consent to search her vehicle and he was "100 percent" sure he used the word "registrar." He testified appellant answered affirmatively and handed the keys to him when he asked. He then began his search of the SUV.
Lancaster said appellant was calm but, at the time of the stop, the child was crying and screaming. No toys were visible in the car, which was rented. And, as noted, the vehicle had no child safety seat. Appellant told Lancaster she was traveling from Las Cruces, New Mexico to Oklahoma City to visit her sister.
Another trooper, fluent in Spanish, testified he spoke by telephone with appellant at Lancaster's request after the stop. This trooper also testified that when he listened to the patrol car recording, he heard Lancaster's question to appellant to be "Puede registrar su vehiculo?" and that it meant "May I search your vehicle?" The trial court also heard the recording.
During the hearing and on appeal, appellant contends she heard the trooper say "entrar" rather than "registrar." She agrees she gave consent to the trooper to enter her car but asserts she never authorized him to search it. Appellant testified she thought the trooper was asking if he could enter her car to "calm" her daughter.
Appellant also presented the testimony of the translator who was present in court. Listening to the recording, the translator testified she also believed the trooper used the word "entrar" in asking for consent to search and that word means "reenter."
In its findings of fact and conclusions of law, the court determined, based on the other trooper's testimony, that Lancaster had used the appropriate phrase to ask appellant for consent to search her vehicle, "puede registrar su vehiculo." The court also found appellant understood the trooper's questions, responded and inquired appropriately, and consented to the search.
Again deferring to the trial court's determination of historical facts that are supported by the record, we overrule appellant's issue contending she did not consent to the search. See Valtierra v. State, 310 S.W.3d 442, 450 (Tex. Crim. App. 2010) (citing and discussing Florida v. Jimeno, 500 U.S. 248, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991)). Issue Three—Scope of Search
In her last issue, appellant contends the search was not limited to the areas of the car that could contain evidence of the violation for which appellant was stopped, i.e. an unrestrained child. However, the search need not be so limited.
The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, i.e., what a reasonable person would have understood by the exchange between the officer and the suspect. Crooks v. State, No. 14-00-00665-CR, 2001 Tex. App. LEXIS 1009, at *10 (Tex. App.—Houston [14th Dist.] Feb. 15, 2001, no pet.) (mem. op., not designated for publication) (citing Jimeno, 500 U.S. 248 at 251). The scope of a search is also defined by its expressed object, and a suspect is free to delimit the scope of the search to which he consents. Id. (citing Jimeno, 500 U.S. at 251-52).
Based on the record before us, we conclude appellant's consent to Lancaster to search her vehicle included a search of the suitcases within it. Appellant consented to the search of her SUV. "Unless an officer's request or a suspect's consent to search" is limited to a "particular area of a vehicle," an officer's request to search "the car" reasonably includes all areas of the vehicle, eliminating none. Crooks, 2001 Tex. App. LEXIS 1009, at *10-11. See also Valtierra, 310 S.W.3d at 450. Here, neither Lancaster's request nor appellant's consent was limited. The search of the suitcases thus did not exceed the scope of the consent given.
Accordingly, we overrule appellant's third issue.
Conclusion
The trial court did not abuse its discretion in denying appellant's motion to suppress. We affirm the judgment of the trial court.
James T. Campbell
Justice Pirtle, J., concurs in the result. Do not publish.