Appellant=s Motion for Rehearing Overruled; Opinion of April 3, 2007 Withdrawn; Affirmed and Substitute Memorandum Opinion filed May 17, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-01092-CR
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ARTHUR E. HURD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1015377
S U B S T I T U T E M E M O R A N D U M O P I N I O N
Appellant=s motion for rehearing is overruled. We withdraw our opinion dated April 3, 2007, and issue this substitute memorandum opinion. After the trial court denied his pre-trial motion to suppress, appellant, Arthur Hurd, pleaded guilty to possession of marijuana weighing between five and fifty pounds. The trial court sentenced appellant to three years= confinement. In one issue, appellant contends the trial court erred by denying his motion to suppress. Because all dispositive issues are clearly settled in our jurisprudence, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
At the hearing on the motion-to-suppress, the trial court heard testimony from Trooper Kevin James of the Baytown highway patrol service. On February 2, 2005, Trooper James used his radar to clock appellant going 71 mph in a 65 mph speed zone and stopped him for speeding. When Trooper James approached the passenger-side window, he saw a gutted cigar blunt, typically used to smoke marijuana, and green residue that appeared to be marijuana and residue from a cigar on appellant=s shirt. While standing at the window, he thought he smelled raw marijuana coming from the car; however, he was not certain because it was cold and windy that night. Trooper James took appellant=s driver=s license and went back to his car to verify the information. When Trooper James returned to appellant=s car, he noticed the residue on appellant=s shirt had been removed. Trooper James gave appellant a warning for the speeding violation and asked him if he could search the vehicle. Appellant refused. Trooper James asked appellant to exit the vehicle. Once appellant was outside his vehicle, Trooper James asked him about the residue he had earlier seen on his shirt. Trooper James told appellant that it appeared to be marijuana. Appellant responded that the residue was actually crumbs from a candy bar he had been eating. While Trooper James was calling for a canine unit, appellant complained about the cold weather. After locating a canine unit, Trooper James told appellant that he could sit in the patrol car. Inside the patrol car, Trooper James smelled marijuana on appellant.
Deputy Almeida, dog handler from the canine unit, also testified. When he arrived, the drug dog sniffed the exterior of the car. The dog alerted to the driver=s side. Deputy Almeida then opened the driver=s side door. The dog alerted to the interior of the car. Deputy Almeida saw small pieces of green marijuana on the driver=s seat. He did not find a candy bar wrapper. The police took the keys from the ignition and opened the trunk where they found marijuana.
II. Standard Of Review
In reviewing a trial court=s ruling on a motion to suppress, we apply a bifurcated standard, giving almost total deference to the trial court=s determination of historical facts supported by the record, and reviewing de novo the trial court=s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 88B89 (Tex. Crim. App. 1997); Marsh v. State, 140 S.W.3d 901, 905 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). In a motion-to- suppress hearing, the trial court is the sole trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Marsh, 140 S.W.3d at 905. The trial court is free to believe or disbelieve all or any part of a witness=s testimony, even if the testimony is uncontroverted. Ross, 32 S.W.3d at 855; Marsh, 140 S.W.3d at 905. When, as in this case, the trial court does not make explicit findings of fact in ruling on a motion to suppress, we review the evidence in the light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327B28.
III. Discussion
Appellant contends the trial court erred in denying his motion-to-suppress the seized marijuana because (1) the State failed to lay a proper foundation for Trooper James=s testimony regarding the radar evidence, and (2) Trooper James lacked reasonable suspicion to detain appellant and call for a canine sweep, and the officers did not have probable cause to conduct a warrantless search of appellant=s vehicle .
A. Radar Evidence
In his brief, appellant seems to argue that the initial traffic stop was not lawful because the State failed to lay the proper foundation regarding calibration and accuracy of Trooper James=s radar at the motion-to-suppress hearing. We disagree. Appellant relies on Wilson v. State for the proposition that a legal traffic stop for speeding must be coupled with evidence regarding the accuracy of the radar device at that particular location both before and after the traffic stop. 328 S.W.2d 311 (Tex. Crim. App. 1959). However, an officer=s testimony that he was trained to test the radar for accuracy and operate the device provides sufficient predicate to support admission of radar evidence. Masquelette v. State, 579 S.W.2d 478, 481 (Tex. Crim. App. 1979) (citing Cromer v. State, 374 S.W.2d 884, 888 (Tex. Crim. App. 1964); Gano v. State, 466 S.W.2d 730, 732 (Tex. Crim. App. 1971)).
At the motion-to-suppress hearing, Trooper James testified that he had been employed by the highway patrol service for nine years and was qualified to operate a radar unit. He further testified that troopers calibrate the radar at the beginning of their shifts and after each traffic stop. On the day of appellant=s arrest, he followed these Department of Public Safety requirements. Accordingly, we conclude that the State laid the proper foundation for Trooper James=s testimony regarding accuracy or reliability of the radar. See Maysonet v. State, 91 S.W.3d 365, 369B71 (Tex. App.CTexarkana 2002, pet. ref=d) (holding radar evidence was properly admitted when officer testified he had used radar equipment for several years and had calibrated and tested his radar unit one day before he stopped the defendant for speeding).
B. Reasonable Suspicion to Detain and Probable Cause to Search
Appellant contends his Fourth Amendment rights were violated because Trooper James did not have reasonable suspicion of criminal activity to justify continued detention after issuing a warning ticket. Appellant also contends the search was not justifiable because Trooper James did not have reasonable suspicion that the car contained narcotics. In response, the State argues Trooper James had a reasonable suspicion to detain appellant because he observed green marijuana residue and cigar residue on appellant=s shirt. He also observed a hollowed-out cigar blunt, typically used to smoke marijuana. We agree with the State.
A routine traffic stop is a detention, and must pass the reasonableness test under the Fourth Amendment to the United States Constitution. See Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To be reasonable, the traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). During a routine traffic stop, an officer may demand identification, a valid driver=s license, and proof of insurance from the driver, and also may check for outstanding warrants. Id. at 245 n.6. Once the purpose of the traffic stop has been satisfied, the stop must not be used as a fishing expedition for unrelated criminal activity. Simpson, 29 S.W.3d at 327 (citing Ohio v. Robinette, 519 U.S. 33, 40B41 (1996) (Ginsburg, J., concurring)). Rather, any further detention must be based on articulable facts. Id. Therefore, once the purpose of the original detention has been effectuated, any continued detention must be supported by some additional reasonable suspicion that something out of the ordinary is occurring and some indication that the unusual circumstance is related to crime. Id.
Reasonable suspicion exists if the officer has identified specific and articulable facts, combined with rational inferences from those facts that lead him to reasonably suspect a particular person has engaged, is engaged, or will soon engage in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The determination is made by considering the totality of the circumstances. Id.
In Simpson v. State, we explained the relationship between an officer=s reasonable suspicion of criminal activity and a defendant=s refusal of a search, relying on rationale from the United States Supreme Court=s decision in Ohio v. Robinette and the Court of Criminal Appeals=s decision in Davis v. State. Simpson, 29 S.W.3d at 328. In Robinette, the Supreme Court held that continued detention and a request to search the detainee=s car following a traffic stop was reasonable, where consent was given, even though no circumstances were noted that would have constituted reasonable suspicion of any criminal activity. Id. (citing Robinette, 519 U.S. at 38). Conversely, in Davis, the Court of Criminal Appeals found the officers= conduct unreasonable where, after the detainee refused consent to search his car, the officer nevertheless detained the vehicle. Consequently, the occupants had no other means to depart. Id. (citing Davis, 947 S.W.2d at 241). We interpreted Robinette and Davis to hold that an officer may request consent to search a vehicle after a traffic stop but may not detain the occupants or vehicle further if such consent is refused unless reasonable suspicion of some criminal activity exists. Id.
A sniff by a trained canine outside of an automobile is not a search within the meaning of the Fourth Amendment. See Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.CFort Worth 1998, pet. ref=d); see also United States v. Place, 462 U.S. 696, 707 (1983); Crockett v. State, 803 S.W.2d 308, 310 n.5 (Tex. Crim. App. 1991). Thus, temporary detention of an automobile to allow an olfactory inspection by a police dog trained to detect the odor of illegal drugs is not offensive to the Fourth Amendment when based on the officer=s reasonable suspicion that the automobile contains narcotics. See Mohmed, 977 S.W.2d at 628; Crockett, 803 S.W.2d at 311.
The parties disagree relative to the residue on appellant=s shirt. Trooper James testified it appeared to be a combination of green marijuana residue and cigar residue. In contrast, appellant testified that the residue was crumbs from a candy bar he was eating before he was stopped. Because the trial court was the sole judge of the credibility of the witnesses, we give deference to the trial court=s findings. See Carmouche, 10 S.W.3d at 327. Under our standard of review, when the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court=s ruling; we assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion. Id. Therefore, we defer to the trial court=s determination that the substance was marijuana residue and cigar residue, not candy bar crumbs.
Appellant cites McQuarters v. State in support his argument that Trooper James had no reasonable suspicion to continue detention.[1] 58 S.W.3d 250 (Tex. App.CFort Worth 2001, pet. ref=d). In McQuarters, the officer issued two warnings for traffic violations, the defendant refused consent to search his car, a canine unit was called to the scene, and the subsequent search revealed drugs. Id. at 256B57. At the McQuarters motion-to-suppress hearing, the officer testified that he did not smell marijuana coming from the car while standing at the car door. Id. at 257. As a result, the court of appeals held the officer did not have sufficient facts to reasonably suspect the defendant was hiding narcotics. Id. Focusing on this fact, appellant argues McQuarters is similar because Trooper James testified he was not certain that he smelled marijuana while standing at appellant=s car door. However, the State argues, and we agree, that McQuarters is factually distinguishable.
Although the videotape depicts Trooper James asking appellant about residue on his shirt after appellant exited the vehicle, Trooper James clearly testified that he suspected illegal activity while standing at the passenger-side window because he observed marijuana and cigar residue on appellant=s shirt and a marijuana blunt. Trooper James also observed that the residue was removed when he returned to the car. Moreover, the videotape includes the conversation between Trooper James and appellant while they were waiting in the patrol car for the canine unit. During the conversation, appellant told Trooper James that he had Ano probable cause@ to detain him for the search. Trooper James responded that he only needed reasonable suspicion and he based it on the fact that he saw marijuana on appellant=s shirt. Based on these articulated facts, combined with rational inferences, Trooper James reasonably could have suspected that appellant was engaged in or about to be engaged in criminal activity. See Shelley v. State, 101 S.W.3d 606, 611 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (finding officers had reasonable suspicion to attempt to detain appellant based on their observation of a plastic bag containing a substance that appeared to be narcotics); Mohmed, 977 S.W.2d at 628 (finding officers had reasonable suspicion to detain defendant for a canine sweep of exterior of car where officers smelled odor of burned marijuana coming from car). Moreover, information obtained through observation of an object in plain sight may be the basis for reasonable suspicion of illegal activity. Texas v. Brown, 460 U.S. 730, 739 n.4 (1983). Therefore, after issuing a warning ticket and hearing appellant=s refusal of consent to search, Trooper James properly detained appellant based on his reasonable suspicion that appellant was engaged in criminal activity.[2] See Simpson, 29 S.W.3d at 328. Considering the totality of the circumstances, Trooper James had a reasonable suspicion of illegal activity when he detained appellant for the canine search.
Appellant also contends dog handler Officer Almeida lacked probable cause and violated the Fourth Amendment when he opened the door of the vehicle without any positive alert from the drug dog. However, both Trooper James and Officer Almeida testified that the dog alerts through passive signals by either standing or sitting. Trooper James identified the portion of the video depicting the dog alerting to the driver=s side door of the car by sitting down in front of the driver=s door.
When a trained and certified narcotics dog alerts an officer to apparent evidence or contraband, probable cause exists to search a vehicle. Harrison v. State 7 S.W.3d 309, 311 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d); Josey v. State, 981 S.W.2d 831, 846 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.CTyler 1996, no pet.). Therefore, once the dog, which was trained to recognize and identify the location of drugs, alerted to the automobile, reasonable suspicion of the presence of narcotics escalated into probable cause to search the vehicle.
Accordingly, we overrule appellant=s sole issue. The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Substitute Memorandum Opinion filed May 17, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] To support his argument that Trooper James did not have reasonable suspicion to detain for a canine sweep, appellant cites Walter v. State, 997 S.W.2d 853 (Tex. App.CAustin 1999), reversed by Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000). However, that decision was reversed.
[2] Appellant also contends his detention was Aunlawfully prolonged@ because thirty-two minutes elapsed from the time appellant was initially stopped until the canine unit arrived. The only case appellant cites is $217,590.00 in U.S. currency v. State, where the court of appeals found detention for twenty-two minutes while waiting for a canine unit was proper because the officer articulated facts under the totality of circumstances to show he had reasonable suspicion. 54 S.W.3d 918, 925 (Tex. App.CCorpus Christi 2001, no pet.). Therefore, the court=s reasoning was based on a finding of reasonable suspicion, not on a specific number of minutes, as appellant implies.