Gary Webster v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-437-CR

GARY WEBSTER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

Appellant Gary Webster appeals from his conviction for fraudulent

possession of identifying information. In two points, Webster argues that the

trial court erred by denying his motion to suppress and by refusing to submit a

jury instruction regarding the legality of his detention. We affirm.

1
 See Tex. R. App. P. 47.4.
 II. Factual and Procedural Background

A. Traffic Stop

In the early morning hours of December 4, 2007, Flower Mound Police

Officer Nick Hill pulled over a vehicle for a traffic violation. As soon as the

vehicle came to a stop, the driver, later identified as William Eric Richardson,

opened his door and attempted to exit the vehicle. Officer Hill immediately

exited his patrol unit and instructed Richardson to stay where he was.

Richardson complied and remained standing beside the driver’s side door.

Officer Hill then approached and made contact with Richardson. He

asked Richardson for his driver’s license and proof of insurance, which

Richardson provided. He informed Richardson that he was being stopped for

high beam activation.

Officer Hill then made contact with the passenger who was sitting in the

front right seat of the vehicle. The passenger identified himself as Webster.

Officer Hill asked Webster if he had any identification on him. Webster replied

that he did not and that he was not carrying a wallet. When questioned

further, Webster informed Officer Hill that he was thirty-nine years old and that

he had had a Texas driver’s license at one time but that he now had an

Oklahoma license. Officer Hill instructed Webster to “hang tight.”

2
 Officer Hill then began asking Richardson, who at this point was standing

at the rear of the vehicle, basic questions such as where he was coming from

and where he was going. Richardson responded that he was coming from a

hotel in Lewisville and that he was going to Wal-Mart. Officer Hill then

instructed Richardson to stay at the rear of the vehicle while he went to his

patrol unit to run a standard computer check.

The computer check returned an outstanding warrant for Richardson and

listed him as “armed and dangerous.” No warrants were returned for Webster.

Officer Hill, who was alone, requested a back-up unit and asked dispatch for

confirmation on Richardson’s warrant. The back-up unit arrived almost

immediately. Upon arriving at the scene, Officer Ben Lippens went and stood

by the open driver’s side door to keep an eye on Webster, at times shining his

flashlight into the vehicle.

While Officer Lippens kept an eye on Webster, Officer Hill asked

Richardson more questions. He asked Richardson whether he owned the

vehicle, and Richardson responded that the car belonged to his mother. Officer

Hill also asked, “Do you have any problem if I take a look in your car?”

Richardson responded that he did not. Officer Hill continued to talk with

Richardson while waiting for confirmation on the warrant. Shortly thereafter,

3
dispatch confirmed the warrant, and Officer Hill placed Richardson under arrest

and seated him in the backseat of his patrol unit.

Officer Hill then went to search the vehicle. He asked Webster, who was

still sitting in the front passenger seat, to step out of the vehicle. Officer Hill

then performed a pat-down on Webster’s outer clothing. At some point, Officer

Lippens told Webster that he could sit in a patrol unit to get out of the cold.

During the search of the vehicle, the officers discovered a clear plastic

wallet insert in the driver’s seat, containing a social security card, a Visa check

card, and a Texas Department of Human Services card, all bearing a name other

than Richardson or Webster. Under the wallet insert was a Wal-Mart bag

containing $100 gift cards still attached to their original cardboard backing.

The officers also found a laptop computer and a semi-clear box in the floorboard

on the front passenger side of the vehicle. The box contained transparency

graphing paper; razor blades; glues and adhesives; gift cards; driver’s licenses,

identifications, and a keychain credit card, all belonging to individuals other than

Richardson or Webster.

In the backseat floorboard on the driver’s side, the officers discovered a

red plastic folder containing a list of Sun Shop customers and their financial

information; pictures of Webster; a document from a website discussing

magnetic strip readers; and hotel receipts with credit card information on

4
individuals other than Richardson or Webster. In the rear seat of the vehicle,

the officers found a small photo printer attached to a power inverter that was

plugged into the cigarette lighter. And in the trunk of the vehicle, the officers

discovered an aluminum box containing razor blades, white-out, hard drives for

laptops, glue, a screwdriver, batteries, scissors, and printer cartridges.

After searching the vehicle, the officers placed Webster under arrest and

transported him to jail where they searched him and discovered a blank credit

card hidden in his boot. The State charged Webster with fraudulent use or

possession of identifying information. The indictment included two

enhancement paragraphs, one for unlawful possession of a firearm by a felon

and the other for the felony offense of credit card abuse.

On July 10, 2008, Webster filed a motion to suppress physical evidence,

claiming that the evidence seized and obtained was the result of a warrantless

search in violation of his constitutional rights under the Unites States and Texas

Constitutions.

B. Hearing on Motion to Suppress

On July 21, 2008, the trial court held a hearing on Webster’s motion to

suppress. During the hearing, in addition to the facts stated above, Officer Hill

testified that, based on his past experience, he became suspicious when

Richardson attempted to exit the vehicle before Officer Hill had even

5
approached the driver’s side door. He also testified that it meant something

when Webster did not have identification on him because “typically people that

age will have their I.D. with them.” When asked why he had waited to search

Richardson’s vehicle until after the warrant had been confirmed, Officer Hill

replied,

It goes back to the warning that we received for Mr. Richardson,
the fact [that] he was armed and dangerous.

I did not know Mr. Webster. Mr. Webster was a very large man.
I didn’t want to have both of them out of the vehicle at the same
time, and I also wasn’t in a position where I could effect an arrest
upon Mr. Richardson because I had not received confirmation of the
warrant. So I decided at that point to wait until I received
confirmation so that I could effectively handle Mr. Richardson and
place him in the rear of my patrol vehicle and then instruct Mr.
Webster to exit the vehicle.

Officer Hill further testified that when the driver of a vehicle is arrested,

the standard practice is to tow the vehicle if it is on a public roadway or if the

owner of the vehicle is not the same person as the driver. He testified that,

before impounding the vehicle, and prior to having the vehicle towed, officers

will perform an inventory search to account for all the items that may be in the

vehicle. When asked whether he had obtained consent to search Richardson’s

vehicle, Officer Hill responded, “Yes, sir.” When asked whether it was a search

incident to arrest, he again responded, “Yes, sir.”

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 On cross-examination, Officer Hill was asked whether he arrested

Webster before or after he had found the “stuff” in the vehicle and his response

was “afterwards.” When questioned about the probable cause that led to the

arrest of Webster, Officer Hill responded,

It started with the wallet that we located in the driver’s seat. The
remainder of the search of the vehicle, located numerous credit
cards, other identifying information belonging to other individuals,
computer equipment that would be used in making photographs, or
other type of photographic items. And all those items combined
together establish the probable cause.

....

There were a number of items located in the front passenger side
seating area and floorboard. There were other items also located
in the rear seat, both behind the driver’s seat and the passenger
seat. And they were easily accessible by [Webster].

Officer Hill testified that he had asked to search Richardson’s vehicle

because, “[Richardson] had made an attempt to exit the vehicle prior to me

reaching his position. After speaking with him, he seemed a bit nervous.”

When asked at what point he had concluded his investigation as to the original

purpose for the traffic stop, Officer Hill responded that it was when he had

received confirmation on Richardson’s warrant.

On further cross-examination, Officer Hill testified that Webster was free

to leave up to the point when the officers found probable cause to arrest him,

that Webster never indicated a desire to leave, and that although he had not

7
told Webster that he could leave, he had never told Webster that he was being

detained. Officer Hill testified that when Webster sat in the back of Officer

Lippens’s heated patrol unit, the door had been left open, Webster had not been

handcuffed, and he sat sideways with his feet outside the door on the ground.

When asked about Officer Lippens standing beside the driver’s side door while

Webster sat in the passenger seat and the pat-down performed on Webster,

Officer Hill responded that it was all for officer safety.

Officer Hill testified that he had not released Richardson’s vehicle to

Webster because (1) he needed to perform a search on the vehicle, (2) Webster

did not have a valid driver’s license, and (3) Richardson did not have the

authority to release the vehicle to Webster because Richardson was not the

registered owner. Finally, Officer Hill testified that Webster never indicated any

ownership over the items in Richardson’s vehicle, nor did he indicate at any

time that he wanted Officer Hill to stop looking.

In addition to Officer Hill’s testimony, Officer Lippens testified that he had

never heard Webster claim any ownership over the items in Richardson’s

vehicle, nor had he heard Webster ask to leave. On cross-examination, Officer

Lippens testified that he could not recall if he had told Webster to cease talking

on his cell phone but that if he had it would have been because of officer

safety.

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 Webster testified during the hearing that when Officer Hill told him to

“hang tight,” he had not felt as if he was free to leave the scene. He also

testified that he had told Officer Lippens that he wanted to leave and take his

property with him and that the officers had not asked for his permission to

search his property. When asked about sitting in the patrol unit, Webster

testified that the door had been closed and that he had been unable to get out.

Finally, Webster testified that, of the items found in the vehicle, he owned the

computer equipment, the clear plastic box, some of the bags of clothing found

in the trunk, and the wooden box, and that he had assumed control over the

red folder, which belonged to his girlfriend.

After taking the matter under consideration, the trial court denied

Webster’s motion to suppress, and it entered the following pertinent findings

of fact and conclusions of law.

Findings of Fact

1. [Webster] was a passenger in the car and had no ownership
interest in the car.

2. [Webster’s] presence had no bearing on the search of the car or
for the justification for the search of the car.

3. [Webster] did not tell the police officers at the scene that he
wanted to leave the scene with various property that he claimed
belonged to him. [Webster’s] testimony on this subject is not
credible—the testimony of the police officers on this subject is
credible.

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4. The police had no reason to suspect that the property at issue
was not associated with the car.

...

10. Roughly three minutes after Officer Hill was notified of a
warrant against the driver, the officer learned that [Webster] had
no outstanding warrants, that his Texas driver’s license had been
suspended, and that his claim of having a valid Oklahoma driver’s
license could not be verified. Officer Hill reasonably believed that
if he released the car to [Webster], [Webster] would be operating
a vehicle while his license was suspended. [Webster] overheard
that his identity check came back clear, i.e., no outstanding
warrants.

...

13. Once the driver had been arrested, police removed [Webster]
from the car and conducted a brief pat-down for officer safety.
[Webster] walked off camera without a police escort.

14. [Webster] could have left the scene had he asked to do so.
Police allowed him to sit in a squad car to escape the cold
temperature, and the door was open while he waited there.
[Webster’s] testimony to the contrary is not credible. Specifically,
[Webster] did not ask to leave. The officers’ testimony on this
subject is credible.

...

Conclusions of Law

1. [Webster] has no standing to complain of the search of the car
in which he was a passenger and in which he had no ownership
interest. Moreover, the search of the car did not depend upon the
detention of [Webster], so he has no standing to complain of its
search based on his own detention.

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 2. Since [Webster] did not assert an ownership interest in any
property inside the car during the stop, and since the police had no
reason to suspect any of the property was not associated with the
car, [Webster] has no standing to complain of the search of the
property he now alleges was his.

...

6. [Webster] and [the] driver were seized and detained by the
traffic stop, but such detentions were never prolonged past what
was required for police to complete [their] investigation and
therefore never became illegal . . .

7. [Webster] has no standing to complain that the search of the
driver’s car exceeded the scope of the driver’s consent.

...

C. Trial on the Merits

During a trial on the merits, Officer Hill, Officer Lippens, and Webster

provided similar testimony as that provided during the suppression hearing. At

the close of evidence, Webster requested that the jury charge include the

following instruction:

Bearing these instructions in mind, if you find that the defendant
asked the police officers, or somehow communicated to the police
officers, that he wanted to leave the scene with his property before
the search of the driver’s seat of the vehicle, and the defendant
would have in fact left the scene if it were not for the officer’s
conduct, or you have a reasonable doubt thereof, then you must
not consider the evidence obtained from the defendant’s person or
property[,] and will not consider such evidence for any purpose
whatsoever.

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The trial court denied Webster’s requested instruction, but it granted him an

article 38.23 instruction as to property found on his person. 2

At the close of trial, the jury found Webster guilty of fraudulent

possession of identifying information, and the trial court sentenced him to forty

years’ confinement. This appeal followed.

III. Motion to Suppress

In his first point, Webster argues that the trial court erred by denying his

motion to suppress because he was unlawfully detained under the Fourth

Amendment of the United States Constitution.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). We give almost total deference to a trial court’s rulings on questions

of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-of-

2
 See Tex. Code Crim. Proc. Ann. art. § 38.23(a) (Vernon 2005)
(providing that “[n]o evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.”).

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law-to-fact questions that do not turn on credibility and demeanor. Amador,

221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007);

State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial

court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those fact

findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court’s legal

ruling de novo unless its explicit fact findings that are supported by the record

are also dispositive of the legal ruling. Id. at 819.

In determining whether a trial court’s decision is supported by the record,

we generally consider only evidence adduced at the suppression hearing

because the ruling was based on it rather than evidence introduced later. See

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v.

State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043

(1996). But this general rule is inapplicable when the parties consensually

relitigate the suppression issue during the trial on the merits. Gutierrez, 221

S.W.3d at 687; Rachal, 917 S.W.2d at 799. If the State raised the issue at

13
trial either without objection or with subsequent participation in the inquiry by

the defense, the defendant is deemed to have elected to re-open the evidence,

and we may consider the relevant trial testimony in our review. Rachal, 917

S.W.2d at 799. Here, although Webster objected to all of the evidence

recovered from the vehicle on Fourth Amendment grounds, he did not object

to Officer Hill’s testimony pertaining to the stop and investigation. Nor did the

State object when Webster testified about the circumstances of his alleged

detention. Therefore, we will consider both the evidence presented at the

suppression hearing and the evidence presented at trial.

B. The Fourth Amendment

The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment

violation, the defendant bears the initial burden of producing evidence that

rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672.

A defendant satisfies this burden by establishing that a search or seizure

occurred without a warrant. Id. Once the defendant has made this showing,

the burden of proof shifts to the State, which is then required to establish that

the search or seizure was conducted pursuant to a warrant or was reasonable.

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Id. at 673; 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).

C. Standing to Challenge the Stop

Before we can address whether Webster’s Fourth Amendment rights were

violated, we must first assess whether Webster has standing to complain about

the search and seizure of the items taken from Richardson’s vehicle. Webster

has standing to contest the search only if he had a reasonable personal

expectation of privacy that he claims was violated. Kothe v. State, 152

S.W.3d 54, 59 (Tex. Crim. App. 2004).

Proof of “a reasonable expectation of privacy” is at the forefront of all

Fourth Amendment claims. Id. Any defendant seeking to suppress evidence

obtained in violation of the Fourth Amendment must first show that he

personally had a reasonable expectation of privacy that the government

invaded. See Rakas v. Illinois, 439 U.S. 128, 139, 99 S. Ct. 421, 428 (1978)

(noting that issue of standing involves two inquiries: first, whether defendant

has alleged an “injury in fact”; and second, “whether the proponent is asserting

his own legal rights and interests rather than basing his claim for relief upon the

rights of third parties”); see also Alderman v. United States, 394 U.S. 165,

174, 89 S. Ct. 961, 965–67 (stating “Fourth Amendment rights are personal

rights which, like some other constitutional rights, may not be vicariously

15
asserted.”). In other words, he must prove that he was a “victim” of the

unlawful search or seizure. Kothe, 152 S.W.3d at 59. A defendant does not

have standing to complain about the invasion of someone else’s personal rights.

United States v. Salvucci, 448 U.S. 83, 84–85, 100 S. Ct. 2547, 2549–50

(1980); Villarreal v. State, 708 S.W.2d 845, 849–50 (Tex. Crim. App. 1986),

overruled on other grounds by Blake v. State, 971 S.W.2d 451 (Tex. Crim.

App. 1998). Only after a defendant has established his standing to complain

may a court consider whether he has suffered a substantive Fourth Amendment

violation. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.

1996); see also United States v. Brazel, 102 F.3d 1120, 1147 (11th Cir.

1997); United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir. 1992).

Although we defer to the trial court’s factual findings and view them in the light

most favorable to the prevailing party, we review the legal issue of standing de

novo. State v. Johnson, 896 S.W.2d 277, 285 (Tex. App.—Houston [1st

Dist.] 1995), aff’d, 939 S.W.2d 586 (Tex. Crim. App. 1996); see also United

States v. DeLuca, 269 F.3d 1128, 1131 (10th Cir. 2001) (stating that courts

review de novo the issue of whether a defendant has standing to challenge a

search).

In addressing standing, “it is critical that the precise police conduct being

objected to be properly identified, for this may itself turn out to be

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determinative on the standing issue.” Kothe, 152 S.W.3d at 60. Here, the

State argues that Webster had no reasonable expectation of privacy in

Richardson’s vehicle. However, that is not the basis of his complaint. Rather,

Webster’s Fourth Amendment claim is based upon an allegedly prolonged

detention of himself as the passenger in Richardson’s vehicle.

The intrusion a vehicle stop causes is personal to those in the car when

it occurs. United States v. Powell, 929 F.2d 1190, 1195 (7th Cir. 1991)

(collecting cases and concluding that passengers, as well as drivers, have

standing to challenge a vehicle stop or prolonged detention). Both Webster and

Richardson had a reasonable expectation of privacy in not being detained

beyond the time necessary for Officer Hill to complete his investigation. Thus,

Webster has standing to complain about any illegally prolonged detention. See

Brendlin v. California, 551 U.S. 249, 255–56, 127 S. Ct. 2400, 2406 (2007).

Having determined Webster has standing to challenge the stop, we now

review whether Officer Hill unreasonably prolonged Webster’s detention after

Richardson’s arrest.

D. Unlawful Detention

There are three basic categories of interaction between police officers and

citizens: encounters, investigative detentions, and arrests. Francis v. State,

922 S.W.2d 176, 178 (Tex. Crim. App. 1996). An encounter is a friendly

17
exchange of pleasantries or mutually useful information. Id. In an encounter,

a police officer is not required to possess any particular level of suspicion,

because the citizen is under no compulsion to remain. Id. In an investigative

detention (also known as a temporary detention or “ Terry-stop”), however, the

officer must be able to articulate specific facts that, in light of his experience

and personal knowledge, together with inferences from those facts, reasonably

warrant the intrusion on the freedom of the citizen stopped. Id. In other

words, to justify a detention, there must be a reasonable suspicion by the

officer that some unusual activity is or has occurred, that the detained person

is connected with the activity, and that the unusual activity is related to the

commission of a crime. Id. An investigative detention is a seizure under which

the citizen is not free to leave, at least for some period of time. Id. The key

questions in determining whether an interaction is an encounter or a detention

are whether a reasonable person would have believed he was free to leave and

whether he actually yielded to the officer’s show of authority. Id. It is also

important to note that these differing levels of interaction often flow from one

into the next, and sometimes the lines between them may blur in any given

transaction. See id. “[W]hat may begin as a consensual encounter can readily

become an investigative detention, which may evolve into an arrest.” Id.

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 Here, Webster does not challenge the propriety of the initial traffic stop.

Instead, Webster attacks the scope of the detention and asserts that what

began as a consensual encounter quickly moved into an unlawful detention.

Specifically, Webster argues that a reasonable person under similar

circumstances would not have felt free to leave—that is, (1) having an officer

say to “hang tight,” (2) having an officer stand next to the open driver’s side

door to keep watch, (3) being removed from the vehicle and frisked for

weapons, and (4) being placed in the rear seat of a patrol unit. Webster further

argues that because he was illegally detained, the search of the vehicle violated

his Fourth Amendment rights. In response, the State contends Webster was

never illegally detained because his detention did not exceed the time necessary

to complete the traffic stop investigation. And, because the detention was

lawful, Webster, as a passenger in the car, lacks standing to complain of the

search.

For Fourth Amendment purposes, a traffic stop is a seizure and must be

reasonable to be lawful. Brendlin, 551 U.S. at 250, 127 S. Ct. at 2403; Davis

v. State, 947 S.W.2d 240, 243–45 (Tex. Crim. App. 1997); Spight v. State,

76 S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A traffic

stop is reasonable if the police officer was justified in making the stop and his

actions during the stop were confined in length and scope to that necessary to

19
fulfill the purpose of the stop. Kothe, 152 S.W.3d at 63; Davis, 947 S.W.2d

at 242, 243 (citing Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879

(1968)). Actions an officer may take within the scope of investigation

attendant to a traffic stop include requesting identification, proof of insurance,

and vehicle registration; checking for outstanding warrants; verifying the vehicle

is not stolen; and asking about the purpose of the trip and intended destination.

United States v. Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (op. on reh’g)

(en banc); Kothe, 152 S.W.3d at 63; Spight, 76 S.W.3d at 766; Mohmed v.

State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d). The

officer may approach not just the driver for this information but also any

passengers. Kothe, 152 S.W.3d at 64 n.36; Duff v. State, 546 S.W.2d 283,

286 (Tex. Crim. App. 1977); Freeman v. State, 62 S.W.3d 883, 888 (Tex.

App.—Texarkana 2001, pet. ref’d). Additionally, the officer may ask the driver

and passengers to step out of the car. Maryland v. Wilson, 519 U.S. 408, 410,

117 S. Ct. 882, 884 (1997). A stop may last no longer than is necessary to

effectuate its purpose, although no rigid time limitation exists on its length.

Kothe, 152 S.W.3d at 63, 64, 65 n.43.

Applying the above principles to the facts of this case, we conclude the

trial court properly denied Webster’s motion to suppress. Having lawfully

stopped Richardson and Webster, Officer Hill was authorized to ask Richardson

20
and Webster for identification, to run a computer check, and to wait for

confirmation on Richardson’s outstanding warrant. See Kothe, 152 S.W.3d at

64 n.36; Davis, 947 S.W.2d 240, 244–45. Further, the evidence shows that

Webster voluntarily answered Officer Hill’s questions, resulting in a consensual

encounter. See Duff, 546 S.W.2d at 286 (stating that officers may approach

the passengers in the vehicle and ask them questions so long as the officer

does not attempt to coerce a passenger’s cooperation). Webster, however,

argues that when Officer Hill told him to “hang tight,” and when Officer Lippens

stood watch beside the driver’s side door, he was being illegally detained.

A detention following a traffic stop is not illegal as to a driver or

passenger so long as the driver or passenger has not been detained beyond the

time necessary for the officer to complete his investigation. See Kothe, 152

S.W.3d at 61. At the point in the stop when Officer Hill told Webster to “hang

tight” and when Officer Lippens stood watch over the vehicle, the initial traffic

stop investigation was still ongoing—that is, Officer Hill had not yet received

confirmation on Richardson’s warrant. See id. at 63–64; see also Powell v.

State, 5 S.W.3d 369, 378–79 (Tex. App.—Texarkana 1999, pet. ref’d) (stating

that a traffic stop investigation is not fully resolved until a computer check is

completed; the officer knows that the driver has a currently valid license, no

outstanding warrants, and the car is not stolen; and that the officer issues

21
either a citation or warning). Thus, Officer Hill’s and Officer Lippens’s actions

were within the scope of the investigation attendant to the traffic stop and,

therefore, were reasonable as a matter of substantive Fourth Amendment law.

See Brigham, 382 F.3d at 507–08; see also Cunningham v. State, 11 S.W.3d

436, 440 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (stating that an

officer who makes a valid traffic stop may take appropriate measures to

guarantee his safety).

The evidence also shows that, while the traffic stop investigation was still

ongoing, Officer Hill requested permission from Richardson to search the vehicle

and that consent to do so was voluntarily given. See Guerrero v. State, No.

04-04-00684-CR, 2005 WL 2438315, at *2 (Tex. App.—San Antonio Oct. 5,

2005, no pet.) (mem. op., not designated for publication) (stating that merely

requesting such consent does not amount to an unlawful seizure, and neither

probable cause nor reasonable suspicion is required for the officer to ask).

Officer Hill, therefore, was authorized to act upon the consent given him. See

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973)

(stating that an established exception to both the warrant and probable cause

requirements is a search conducted pursuant to valid consent). It reasonably

falls within the scope of that consent to ask persons in the vehicle to exit it so

that the search can be conducted. See Rhodes, 945 S.W.2d at 118–19

22
(holding that asking passengers to step outside the vehicle is not an

unreasonable intrusion of their Fourth Amendment rights). Consequently, it

was reasonable for Officer Hill to remove Webster from the vehicle in order to

conduct a search of the vehicle. See id.3 Further, Officer Hill’s decision to frisk

Webster for weapons after removing him from the vehicle was also reasonable

under the circumstances—that is, Webster’s proximity and association with an

individual listed as “armed and dangerous.” See Cunningham, 11 S.W.3d at

440 (stating that an officer who makes a valid traffic stop may take appropriate

measures to guarantee his safety); see also Balentine v. State, 71 S.W.3d 763,

769 (Tex. Crim. App. 2002) (stating that “[t]he officer need not be absolutely

certain that an individual is armed; the issue is whether a reasonably prudent

person would justifiably believe that he or others were in danger”).

Next, Webster asserts that because Richardson had already been arrested

when Officer Hill asked Webster to step out of the vehicle, the original purpose

of the traffic stop investigation had been resolved and he, therefore, should

have been free to leave. We agree. Webster, however, claims that he was still

being detained because the officers placed him into a patrol unit and closed the

3
 It was also reasonable to remove Webster from the vehicle because
Richardson had been arrested and Webster did not have his driver’s license with
him. Thus, the officers were not authorized to release the vehicle to Webster.

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door. Webster also asserts that he asked to leave with his property and was

told by the officers that he could not leave.

The evidence, however, shows that although neither Officer Hill nor

Officer Lippens told Webster that he could leave, they also never told him that

he was being detained. See Ohio v. Robinette, 519 U.S. 33, 39–40, 117 S.

Ct. 417, 421 (1996) (stating that there is no requirement to inform a detainee

he is free to leave after a lawful traffic stop). Further, the video from Officer

Hill’s patrol unit shows that, after being frisked, Webster walked away without

a police escort. See Moreno v. State, No. 07-07-0477-CR, 2009 WL

1361594, at *2 (Tex. App.—Amarillo May 14, 2009, no pet.) (concluding that

appellant’s freedom to move around discredited his contention that he was

being detained). And, to the extent that Webster relies on his own testimony

to undermine the officers’ testimonies as to: (1) whether it was an option to

sit in the patrol unit, (2) the patrol unit’s door being opened or closed, and (3)

whether he asked to leave with his property or asserted ownership over any of

the items in the vehicle, we defer to the trial court on issues of credibility. See

Amador, 221 S.W.3d at 673; Estrada, 154 S.W.3d at 607; Johnson, 68

S.W.3d at 652–53. Thus, based on the totality of the circumstances viewed

in the light most favorable to the trial court’s factual findings, we conclude that

(1) the officers’ conduct up to Richardson’s arrest—that is, the end of the

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traffic stop investigation—was reasonable and (2) the officers’ conduct after

Richardson’s arrest did not result in an unlawful detention .

Having concluded that the initial traffic stop was neither illegal nor

unlawfully extended to render it unreasonable, we turn to the State’s argument

that Webster, as a passenger in the car, lacked “standing” to complain of the

search.

E. Standing to Challenge the Search

A passenger may challenge the legality of a search of the vehicle in

which he was riding so long as the search resulted from an infringement on his

Fourth Amendment rights. Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim.

App. 1984); Stone v. State, 147 S.W.3d 657, 659 (Tex. App.—Amarillo 2004,

pet. ref’d). In other words, he must show that the initial detention leading to

the search was illegal, his removal from the car was unreasonable, or he had

a possessory interest in the car itself or the items seized from the car. Kothe,

152 S.W.3d at 61; Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App.

2000); Lewis, 664 S.W.2d at 348.

Here, because the detention was neither illegal nor unlawfully extended

to render it unreasonable, Webster may challenge the legality of the search only

upon a showing that his removal from the car was unreasonable or that he had

a possessory interest in the vehicle itself or the items seized from the vehicle.

25
See Kothe, 152 S.W.3d at 61; Hughes, 24 S.W.3d at 838; Lewis, 664 S.W.2d

at 348. Webster, however, makes none of these assertions.4 His sole

argument as to standing is based on the lawfulness of the detention. As such,

we conclude that Webster cannot challenge the legality of the search.

Accordingly, we overrule Webster's first point.

IV. Jury Instruction

In his second point, Webster asserts that the trial court erred by denying

his requested jury instruction on the legality of the search that led to the

discovery of the evidence seized from Richardson’s vehicle. See Tex. Code

Crim. Proc. Ann. art. 38.23. However, having concluded that Webster’s rights

were not infringed by an illegal detention and given Webster makes no

argument that his removal from the vehicle was unreasonable or that he had a

possessory interest in the items seized, we conclude Webster lacks the capacity

to complain of the denial of his requested jury instruction. See Walter v. State,

28 S.W.3d 538, 540–41 (Tex. Crim. App. 2000) (capacity to claim protection

of Fourth Amendment depends upon whether legitimate expectation of privacy

4
 To the extent Webster claims that he exerted a possessory interest
over the items seized from the vehicle, we defer to the trial court on issues of
credibility. Furthermore, Webster does not provide any citation to legal
authority nor does he provide any legal analysis in support of his claim that he
exerted a possessory interest over the items seized from the vehicle. Thus, he
presents nothing for our review on this issue. See Hankins v. State, 132
S.W.3d 380, 385 (Tex. Crim. App.), cert. denied, 543 U.S. 944 (2004).

26
exists in “invaded place”); Lewis, 664 S.W.2d at 348; see also Guy v. State,

No. 05-07-00733-CR, 2008 WL 3984051, at *8 (Tex. App.—Dallas Aug. 28,

2008, pet. ref’d) (not designated for publication) (holding that appellant was not

entitled to requested article 38.23 instruction based on the same conclusions

and reasoning presented here). Accordingly, we overrule Webster’s second

point.

V. Conclusion

Having overruled both of Webster’s points, we affirm the trial court’s

judgment.

PER CURIAM

PANEL: MCCOY, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 25, 2010

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