In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00147-CR
______________________________
WILLLIE RAY LOVE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court
Titus County, Texas
Trial Court No. F13,551
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
Concurring Opinion by Justice Carter
O P I N I O N
After having been convicted by a jury of possession of more than fifty pounds and less than 2,000 pounds of marihuana, a second-degree felony, and having been assessed a penalty of fifteen years' confinement and a fine of $10,000.00 by that jury, Willie Ray Love, Jr., files his appeal.
Love's appeal is limited to one alleged point of error: he maintains that the trial court erred in its refusal to suppress the evidence obtained after a search of his automobile, claiming that the evidence found was the product of an unreasonable search and seizure. We find that the trial court did not err, ratify its determination, and affirm the judgment.
The facts surrounding and leading up to the complained-of search are uncontroverted. Love was proceeding north on U.S. Highway 59 in Marion County on October 5, 2004, when he was pulled over by State Trooper Michael Horn for traveling 76 miles per hour in a 65-mile-per-hour zone. The time of the traffic stop was about 9:35 p.m. When Love was alerted to stop, he pulled into the center turn or dividing lane, but Horn directed him with his patrol car's public address speaker to move to the right-hand shoulder of the road; Love promptly complied.
After the traffic stop, Love provided his driver's license to Horn. Horn, noticing that there was a substantial amount of luggage and a large plastic storage box in plain view, questioned Love about his travel plans. Love, acting nervously by spitting often and by failing to make eye contact with Horn, indicated that he had commenced his travel at Houston. At first, he said that Shreveport, Louisiana, was his destination and then changed to say that he was on his way to Monroe, Louisiana, by way of Shreveport, Louisiana. During this questioning period, Love indicated that it was his aim to travel to see his cousin, but he had only a telephone number of the cousin and no address for him. Love told Horn that the duration of his stay was to be about two days. Upon further questioning, Love said that he had previously had only a previous minor drug conviction. The automobile driven by Love was a rental car.
The questioning during the traffic stop aroused suspicions with Horn because: (1) if a person were traveling north from Houston to Shreveport, Louisiana, he would have driven past two well-marked major highway turnoffs which would have carried him easterly toward that destination, but he was no longer traveling toward his stated geographic goal; (2) the volume of luggage was far greater than one would ordinarily expect a person to carry for a short two-day stay; (3) a criminal background check revealed that Love had two felony drug convictions, not the single minor one to which he had admitted; (4) Love's nervous demeanor exceeded the normal scope of nervousness he would be expected to display; (5) Highway 59 is a major drug artery; (6) Love was driving a rental car, this being a characteristic means of transportation for those transporting drugs; and (7) Love was inconsistent, vague, and uncertain about his destination and was not traveling the route which would carry him to the place he indicated he was attempting to go.
After these suspicions were aroused, Horn requested permission of Love to search the vehicle and was denied permission to search; this denial took place some twenty-five minutes after the initial traffic stop. Horn then attempted to locate a dog trained in narcotics detection to conduct a "free air" search of the exterior of the automobile driven by Love. There was not then such a dog in Marion County and the Department of Public Safety (DPS) drug dog in Texarkana was engaged elsewhere. Horn located such a drug dog which worked with the sheriff's office of neighboring Harrison County and requested its services. When the dog arrived, about forty-five minutes after the initial traffic stop, it alerted to the presence of drugs on both front doors of the automobile driven by Love. Using the dog's alert as probable cause, a search of the automobile was conducted, resulting in the discovery and seizure of some 93.44 pounds of marihuana.
Love maintains that the intervention of forty-five minutes from the initial traffic stop to the time of the free-air search by the narcotics dog was too long and that the detention was unwarranted. Therefore, he maintains, the search was not reasonable.
Love's motion to suppress the results of the search was the subject of a hearing pursuant to Article 28.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 28.01 (Vernon 2006). Love's motion to suppress was denied.
We review the trial court's decision on a motion to suppress evidence by applying a bifurcated standard of review deferring to the trial court's determination of historical facts that depend on credibility, but review de novo the trial court's application of the law. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court's evidentiary ruling "will be upheld on appeal if it is correct on any theory of law that finds support in the record." Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006); see Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Generally, we review de novo determinations of probable cause after granting deference to the trial court's determination of historical facts. Guzman, 955 S.W.2d at 87.
The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. It is well settled in Fourth Amendment jurisprudence that absent a warrant or some functional equivalent giving probable cause to arrest, only a limited, investigatory detention of an individual is permitted. Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991). An investigative detention during the course of a traffic stop in which the subject is not free to leave is a seizure for purposes of the Fourth Amendment, and the appellate court must analyze the stop under the reasonableness standard. Whren v. United States, 517 U.S. 806, 810 (1996).
Under Terry v. Ohio, 392 U.S. 1, 19-20 (1968), the determination of whether an investigative detention is reasonable is a two-pronged inquiry: whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. This determination is a factual one and is made and reviewed by considering the totality of the circumstances existing throughout the detention. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997).
Certainly, the length of a detention may render a traffic stop unreasonable and there is not an absolute and unbending time line which prescribes when this has become unreasonable. United States v. Sharpe, 470 U.S. 675, 679 (1985). In lieu of such an unbending rule or bright line, common sense and ordinary human experience must govern over rigid criteria. Id. at 685. The reasonableness of the duration of a detention depends on whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions expeditiously, during which time it was necessary to detain the defendant. Id. at 686. In determining the reasonableness of the duration of a detention, the trial and appellate courts may consider legitimate law enforcement purposes served by any delay in the officer's investigation. Id. at 685. Fourth Amendment reasonableness requires a balance between serving the interest of the public as weighed against the individual's right to be free from arbitrary detentions and intrusions. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).
In looking at the actions that night, we should first take into account that there are two time frames involved here: (1) the time between the initial stop of Love and (2) the time necessary to bring a drug dog onto the scene. Was either of these time frames so unreasonable as to constitute a violation?
One of the factors which enters into the equation of determining reasonableness is the location of the search and the time of day it was conducted. Breaking the forty-five-minute time period between the initial stop and the search of the vehicle into two portions is helpful.
The first part of the time period was the initial stop, the questioning of Love, the radio confirmation of the information given by Love to Horn, a second questioning of Love concerning the inconsistencies which the confirmation raised, and the request to permit a search of Love's car. This consumed twenty-five minutes and is not an unreasonable period of time. As a result of the information gleaned during this period of time, Horn had acquired "articulable facts that, when combined with rational inferences from those facts" led him to have a reasonable belief that Love was actually engaged in criminal activity. See Castro v. State, 227 S.W.3d 737, 740 (Tex. Crim. App. 2007).
The second period, then, would be the time between Love's refusal to permit a search of his automobile and the commencement of the open-air search by the drug dog, a period which took an additional twenty minutes. We look at those surrounding circumstances to determine if this time period was unreasonable. After his suspicions had been aroused and after he had been denied permission to conduct a search of the automobile, Horn did not delay but, rather, immediately began an attempt to locate a drug dog to conduct a search of the exterior of Love's vehicle for the presence of the odor of contraband. Marion County had no drug dog and one would need to be located and brought from elsewhere. The first attempt was to enlist the aid of the DPS's dog, stationed in Texarkana. That dog being unavailable, Horn then contacted the nearest law enforcement entity having such a dog, that being the neighboring sheriff's office in Harrison County. Considering the distances involved and the fact that it was night time, it is somewhat surprising that only twenty minutes expired before the dog arrived on the scene. Considering the circumstances, this time frame suggests that the time between the determination that a further investigation by use of a drug dog and its actual deployment was done not only in a reasonable time frame, but expeditiously. The propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to quicky dispel or confirm their suspicions. United States v. Sharpe, 470 U.S. 675, 686 (1985).
Finding no error, we affirm the judgment.
Bailey C. Moseley
Justice
CONCURRING OPINION
Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances on which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991)).
To justify an investigative detention, an officer must have reasonable suspicion, based on specific, articulable facts that, in light of the officer's experience and general knowledge, lead the officer to a reasonable conclusion that criminal activity is underway and that the detained person is connected with the activity. Perez v. State, 818 S.W.2d 512, 516 (Tex. App.--Houston [1st Dist.] 1991, no pet.).
The line drawn between reasonable and unreasonable detention has evolved. In Davis, the Texas Court of Criminal Appeals found that the facts did not support a conclusion that the defendant was engaged in or about to be engaged in criminal activity even though the evidence showed alleged inconsistent statements by occupants of the vehicle, the passenger had a drug conviction, the vehicle was not registered in the driver's name, and the driver did not appear to the officer to be on a business trip. After the defendant refused to consent, the drug dog was summoned and the vehicle, but not the driver, was detained. The Texas Court of Criminal Appeals held that the court of appeals erred in determining that the detention and search were justified. Davis, 947 S.W.2d at 241-42.
Very recently, the Texas Court of Criminal Appeals found a twenty-five-minute detention and ensuing search were reasonable after the defendant refused to consent to a search and a drug dog was then obtained. The court found facts supporting that detention included two Florida "drug convoy" cars, diversionary tactics by one of the drivers, overdue rental car, and inconsistent stories. Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
Based on the most recent opinions from the Texas Court of Criminal Appeals, I agree that the facts here are sufficient to justify a finding that the detention was permissible.
The question here is what articulable facts support an officer's reasonable suspicion and conclusion that Love was involved in or connected to criminal conduct?
First, we must remember that this detention occurred after Love specifically invoked his Fourth Amendment right against an unreasonable search by refusing to consent to the search.
The majority opinion cites seven reasons why the officer's suspicions were aroused, seeming to give equal credence to each. I think we should acknowledge that some of these facts lend considerably less support than others that Love was involved in unusual activity related to crime.
1. Highway 59 is a major drug artery. I would dare to say that a comprehensive study of the appellate opinions in Texas would demonstrate that every interstate or United States highway in Texas is considered a major drug corridor. I find this fact lends little, if any, credence to a conclusion that a particular individual who is traveling on a major highway is in possession of drugs. It is also true that all persons who possess drugs on a highway are driving or traveling in a vehicle, but I doubt that anyone would seriously think that merely because one is driving a vehicle he or she is to be suspected of possessing drugs. Likewise, I do not think that merely driving a vehicle on a major highway, which is done by thousands of law-abiding people every day, contributes to a reasonable suspicion that the driver is a drug courier.
2. More nervous than normal. Almost every person who sees flashing lights in the rearview mirror and realizes that a police officer is about to detain him or her becomes somewhat nervous. How nervous do you have to be to exceed that normally expected? Some people by nature are more nervous than others and may begin crying when receiving a speeding ticket. Once again, this appears to be a fact that has little, if any, relevance to a reasonable conclusion that one is involved in crime (generally drug possession). In a recent case, the Texas Court of Criminal Appeals labeled this purported nervousness as "lagniappe--icing-on-the-cake--to the determination of reasonable suspicion." Madden, 242 S.W.3d at 517.
3. and 4. Information about his destination--failure to drive toward Shreveport. The officer testified that Love told him he was driving to Shreveport, Louisiana, and then later stated he was going to Monroe. If he intended to drive to Shreveport, he had driven past the interstate highway leading to Shreveport. This could indicate to a police officer that Love was attempting to deceive the officer.
5. Driving a rental vehicle. The vehicle was properly rented to Love. Apparently, it is common for those delivering drugs to use a rented vehicle. However, this too, standing alone, would be a rather weak indicator of criminal conduct.
6. Volume of luggage. The officer thought the amount of luggage was excessive for a two-day trip. Again, this is a weak connection to possible criminal activity. Speaking from personal experience, I find that every weekend trip my wife and I take involves an excessive amount of luggage.
7. Love had two felony drug convictions. When asked by the officer, Love admitted only to a conviction for a minor drug offense. This fact carries significant weight when we are considering what a police officer would be reasonably suspicious of based on his or her experience and general knowledge. While prior felony convictions are not admissible evidence to prove a defendant is guilty of the present offense, it cannot be denied that, when a police officer encounters a person in these circumstances who has previously been found guilty twice of a drug offense, it is not unreasonable for the officer to have a suspicion of drug possession. Additionally, here, Love attempted to deceive the officer and minimize his prior drug charges. I believe that the facts that Love (a) was driving a rental vehicle, (b) gave inconsistent information about his destination, and (c) had failed to take the highway leading him to that destination become more relevant when juxtaposed with the fact that he had two prior drug-related convictions. When these four facts are combined, I think it is reasonable for an officer to have a suspicion, based on objective facts, that Love was involved in criminal activity. I do not believe that the facts that he (1) was traveling on Highway 59, (2) was nervous, and (3) had several items of luggage add any strength to the basis for such a reasonable conclusion.
I concur with the opinion of the majority in affirming the judgment of the trial court.
Jack Carter
Justice
Date Submitted: March 11, 2008
Date Decided: April 4, 2008
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0; A. What's his name?
Q. The police?
A. Not the police. It was the other dude, the drug force man. What's his name? I forget his name.
Q. Was it a law enforcement person or a civilian?
A. Yeah.
Q. Law enforcement?
A. Yeah.
Q. Do you know where they took the shoes from?
A. Yes, out of my mom's house.
Q. You're sure those are yours?
A. Yeah, they're mine. My wife bought them for me.
In a related appeal, we found the evidence sufficient to support Rollerson's convictions associated with the Norrell burglary. See Rollerson v. State, cause number 06-05-00088-CR. The State argues that the "modus operandi" were the same in all three burglaries, suggesting that, if Rollerson is guilty of one of the burglaries, he must be guilty of all three. The State points out that there were (a) three burglaries, (b) during the daytime, (c) in rural areas, (d) when no one was home, (e) items were stolen from each residence, and (f) a single pillowcase was taken off the bed in each residence. The State also points out that there was evidence that cotton gloves were worn by the perpetrator in two of the burglaries. These similarities are too generic to support an inference of guilt.
The State contends that the evidence that Rollerson was in possession of recently stolen property supports an inference of guilt. In cases where there is independent evidence of a burglary, the unexplained personal possession of recently stolen property may constitute sufficient evidence to support a conviction. See Harris v. State, 656 S.W.2d 481, 483 (Tex. Crim. App. 1984); Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no pet.). Mere possession of stolen property does not give rise to a presumption of guilt, but, rather, it will support an inference of guilt of the offense in which the property was stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). To warrant an inference of guilt based solely on the possession of stolen property, it must be established that the possession was personal, recent, and unexplained. Sutherlin v. State, 682 S.W.2d 546, 549 (Tex. Crim. App. 1984); Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. [Panel Op.] 1978). The inference of guilt is not conclusive, however, and the sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review. Hardesty, 656 S.W.2d at 77.
Also, the possession must involve a distinct and conscious assertion of right to the property by the defendant. Grant, 566 S.W.2d at 956. If the defendant offers an explanation for his or her possession of the stolen property, the record must demonstrate the account is false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). Whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the trier of fact. Dixon, 43 S.W.3d at 552.
Rollerson was found with coins stolen from the Norrell burglary in his possession. But, Rollerson was not found with any property taken during the McCoin burglary. In order to support an inference of guilt for the McCoin burglary, it needed to be shown that Rollerson was in possession of property taken from McCoin's residence. Rogers v. State, 929 S.W.2d 103, 108 (Tex. App.—Beaumont 1996, no pet.). Merely showing that Rollerson was in possession of some stolen property is not sufficient.
Viewing all of the evidence in a neutral light, we find the evidence is too weak, and the evidence to the contrary too strong, to support a finding of guilt beyond a reasonable doubt.
Theft
A person commits the offense of theft if, without the effective consent of the owner, they appropriate property with the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a). The charged theft was a part of, and occurred simultaneously with, the charged burglary. For the reasons discussed above, we find the evidence legally sufficient, but factually insufficient to support Rollerson's conviction for theft of a firearm.
Felon in Possession of a Firearm
A person commits the offense of unlawful possession of a firearm if they have been convicted of a felony and possess a firearm at any location other than the premises at which they live. Tex. Pen. Code Ann. § 46.04(a)(2). The State must prove the defendant was previously convicted of a felony and intentionally or knowingly possessed a firearm. Rollerson stipulated at trial that he had been convicted of the felony offenses of burglary of a habitation and failure to stop and render aid May 19, 1998. As noted above, there was direct testimony that Rollerson was seen in possession of several firearms rolled up in a blanket and a pistol tucked in his waistband. Viewing this evidence in the light most favorable to the verdict, we find the trial court could have reasonably found all of the elements of the crime had been proven beyond a reasonable doubt.
Under the second review for a factual sufficiency challenge, all the evidence, supporting and contrary, is considered. Rollerson did not offer any evidence to contradict the testimony that he was in possession of a firearm. Therefore, viewing the evidence in a neutral light, we find the evidence supports a finding of guilt beyond a reasonable doubt.
Deadly Weapon Finding
The trial court made an affirmative finding that Rollerson used and exhibited a firearm during the commission of each offense or during the immediate flight therefrom. Rollerson challenges the sufficiency of the evidence to support these findings.
To review evidence for legal sufficiency, this Court must view the evidence in the light most favorable to the verdict and determine if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The trial court appears to have based its findings solely on Rollerson's mere possession of firearms. When applied to the special issue regarding the use or exhibition of a deadly weapon during the commission of a felony offense, the question facing this Court is whether a rational trier of fact could find beyond a reasonable doubt that the mere possession of firearms facilitated the associated felony. Gale v. State, 998 S.W.2d 221, 223–24 (Tex. Crim. App. 1999). The Texas Court of Criminal Appeals has said, "'[U]sed . . . a deadly weapon' during the commission of the offense means that the deadly weapon was employed or utilized in order to achieve its purpose. Whereas 'exhibited a deadly weapon' means that the weapon was consciously shown or displayed during the commission of the offense." Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). Even simple possession of a firearm may be sufficient to support a deadly weapon finding if such possession facilitates the associated felony. Id.
In Patterson, the appellant was convicted of possession of a controlled substance. A search team executing a search warrant at a private residence found the appellant sitting on a couch in the living room. A loaded .45 caliber revolver was found by the arresting officer concealed between the appellant's leg and the end of the sofa. The officer also found the appellant's wallet and a pistol "boot" holding ammunition for a .45 caliber weapon on a table next to the couch. Id. at 939. The court found there was sufficient evidence to uphold the jury's finding that he used or exhibited a deadly weapon in the course of possessing the contraband. Id. at 942. The court approved the intermediate court's determination that appellant "'used' the firearm during the commission of the felony offense . . . in a sense that the firearm protected and facilitated appellant's care, custody, and management of the contraband." Id.
The Texas Court of Criminal Appeals has held that, where the associated felony is unlawful possession of a firearm by a felon, an affirmative deadly weapon finding cannot be based solely on the defendant's possession of the firearm. Narron v. State, 835 S.W.2d 642 (Tex. Crim. App. 1992); Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992). Therefore, the affirmative deadly weapon finding pertaining to Rollerson's conviction for the offense of unlawful possession of a firearm by a felon is inappropriate.
The deadly weapon findings pertaining to the burglary and theft convictions are also inappropriate. The trial court appears to have based its findings regarding those convictions solely on Rollerson's mere possession of the firearm stolen during the burglary. Unlike in other burglary cases, there is no evidence that Rollerson handled the firearm in such a manner that would indicate he intended to use it for some purpose other than simply stealing it. In Gregg v. State, 820 S.W.2d 191 (Tex. App.—Fort Worth 1991, no pet.), during the burglary, the appellant found a shotgun in the closet of the master bedroom of the complainant's home, loaded the gun, and placed it on top of the bed in that room. The court held the appellant's actions were sufficient to support a deadly weapon finding because,
Certainly he would not have gone to the trouble to load the gun and place it in such an accessible position had he simply intended to steal the gun; rather, the gun was "used" for the purpose of effectuating this burglary in that the appellant could have fired it upon being surprised or caught in the home by the complainant or a family member, the police, or anyone else. Although he was not in actual physical possession of the shotgun at the time of his arrest on the premises, appellant's act of finding, loading, and moving the gun, constituted sufficient control and possession of the gun as to support a finding that he "used" the gun during the commission of the offense.
Id. at 193.
In contrast, here there is no evidence Rollerson loaded the firearm, or positioned it in such a way that he could use it against someone if he was surprised. The record shows that no one was home when Rollerson committed the burglary and theft. Rollerson was not confronted by law enforcement officers until the next day, and he did not possess a firearm at that time. Rollerson's possession of the firearm did not facilitate the burglary, as that crime would have been complete whether or not he found and possessed the weapon. Nor did the firearm facilitate his flight from the burglary, as he was not confronted by anyone, either civilian or law enforcement officers. His possession of the firearm did not facilitate the theft, as it was his very act of possession that constituted the crime.
As the court stated in Petty, "In the present case, the weapon was not 'used' in furtherance of any collateral felony. Thus, because there was no associated felony facilitated by the Applicant's possession of the deadly weapon, the holding in Patterson dictates that the affirmative finding of the use of a deadly weapon was error." Petty, 833 S.W.2d at 145. The same is true here. We hold the evidence is legally insufficient to support the trial court's affirmative deadly weapon findings with respect to the burglary and theft convictions. Therefore, on remand, no deadly weapon finding may be sought.
Conclusion
We find the evidence to be legally sufficient, but factually insufficient to support the convictions for burglary of a habitation and theft of a firearm. Accordingly, we reverse those judgments and remand for a new trial. The State is not permitted, on retrial, to seek a deadly weapon finding. We find the evidence to be both legally and factually sufficient to support the conviction for possession of a firearm by a felon. However, we reform that judgment to delete the affirmative deadly weapon finding.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 24, 2006
Date Decided: May 17, 2006
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