NUMBER 13-18-00250-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARK PLOEGER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 2nd 25th District Court
of Gonzales County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
Appellant Mark Ploeger was indicted for possession of a controlled substance
(methamphetamine) in a correctional facility, a third-degree felony. See TEX. PENAL CODE
§ 38.11(d)(1) (West, Westlaw through 2017 1st C.S.). By one issue on appeal, Ploeger
argues that the trial court erred in denying his motion to suppress. We affirm.
I. BACKGROUND
On February 7, 2017, Officer Thomas Garza of the Gonzales Police Department
was patrolling a county road. Officer Garza testified at trial, based on his personal
experience, that this road was well-known as an illegal dumping site; Garza claimed that
he noticed new trash dumped there almost every night. He also averred that the police
department had received numerous calls reporting people dumping trash on this road.
According to Garza’s testimony, at 12:36 a.m., he observed a black SUV driving slowly
down the road and braking frequently. Based on his training and personal experience,
Officer Garza claimed that he believed that the vehicle’s occupants were either looking
for a place to dump something or “discarding something and then traveling up a bit and
discarding another piece [of trash].” Officer Garza did not actually see anything dumped
from the SUV; Officer Garza also admitted that the SUV did not commit any traffic
violations. But, after watching the black SUV stop and go repeatedly for five minutes,
Officer Garza pulled the vehicle over to investigate; Sargent James Holt arrived at the
scene to assist. Ploeger, the driver, informed Officer Garza that Robbie Copeland, the
passenger, was the owner of the vehicle. Sargent Holt asked Copeland if there were any
open containers of alcohol in the vehicle, and she responded in the affirmative. Officer
Garza conducted a search of the vehicle and found narcotics. Ploeger and Copeland
were both arrested and transported to jail. As Ploeger was processed at the jail, more
narcotics were discovered on his person.
On March 7, 2017, Ploeger was charged with possession of a prohibited substance
in a correctional facility. See id. On May 1, 2017, he filed a motion to suppress, arguing
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that Officer Garza lacked reasonable suspicion to initially pull him over. The trial court
denied his motion and made the following findings of fact and conclusions of law:
1) On February 7, 2017, Officer Garza witnessed the defendant operating
a motor vehicle late at night, pulled over on the side of the road, stopping
and starting, lurching forward in a bizarre fashion, in an area known for
illegal dumping.
2) Based on the totality of the circumstances, the officer had reasonable
suspicion to stop the vehicle.
3) Within 8 minutes, a second officer, Sgt. Holt, arrived on the scene where
contact with the passenger was made. When asked if there were open
containers in the vehicle, the passenger admitted to having an open
container in the vehicle and handed the open container to Sgt. Holt. The
passenger also admitted to having used narcotics with the Defendant
earlier.
4) The officers had probable cause to search the vehicle for open
containers, which led to discovery of other contraband.
5) The contraband was found in various areas of the passenger
compartment of the vehicle within reach or control of both the driver and
the passenger of the vehicle.
6) After the discovery of the contraband, the officer had probable cause to
arrest both subjects.
On March 7, 2018, Ploeger filed a motion for reconsideration, which the trial court
denied. Ploeger subsequently entered into a plea agreement and pleaded guilty. The
trial court sentenced Ploeger to four years of deferred adjudication community supervision
and ordered Ploeger to pay a $750 fine. This appeal followed.
II. MOTION TO SUPPRESS
As his sole issue, Ploeger argues that the trial court erred in denying his motion to
suppress. More specifically, Ploeger asserts Officer Garza lacked reasonable suspicion
to initially pull him over.
A. Standard of Review
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In reviewing a trial court’s ruling on a motion to suppress, we employ a bifurcated
standard, giving almost total deference to a trial court’s determination of historic facts and
mixed questions of law and fact that rely upon the credibility of a witness, but applying a
de novo standard of review to pure questions of law and mixed questions that do not
depend on credibility determinations. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim.
App. 2013). The record is reviewed in the light most favorable to the trial court’s
determination, and the judgment will be reversed only if it is arbitrary, unreasonable, or
“outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W.3d 587, 590
(Tex. Crim. App. 2006).
B. Applicable Law
Ordinarily, a police officer may not conduct a seizure and search of
a suspect without probable cause that a crime has been committed. An
exception to the requirement of probable cause allows the police to make a
Terry stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal
activity may be afoot, even if the officer lacks probable cause. Reasonable
suspicion is a less demanding standard than probable cause, but the officer
still must be able to articulate something better than an inchoate suspicion
or hunch.
In re A.T.H., 106 S.W.3d 338, 343 (Tex. App.—Austin 2003, no pet.) (internal citations
and quotations omitted); see Terry v. Ohio, 392 U.S. 1, 19 (1968); Derichsweiler v. State,
348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (observing that the reasonable suspicion
standard is much lower than the probable cause standard because a “brief investigatory
detention constitutes a significantly lesser intrusion upon the privacy and integrity of the
person” compared to an arrest); Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App.
2010) (observing that reasonable suspicion “requires only some minimal level of objective
justification”); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (noting that a
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police officer may temporarily detain an individual when the officer has reasonable
suspicion to believe that an individual “actually is, has been, or soon will be engaged in
criminal activity”).
To determine if a temporary detention was supported by reasonable suspicion,
courts look at the totality of the circumstances. See Foster, 326 S.W.3d at 613. Relevant
factors in evaluating the totality of the circumstances include time of day, location of the
stop, the officer’s observations, and the officer’s training and expertise. See id.
(concluding that the officer had reasonable suspicion to pull over defendant at 1:30 a.m.
in a location where many other individuals had been pulled over for drinking while driving);
Ford, 158 S.W.3d at 493 (concluding that law enforcement training and experience are
factors in the reasonable suspicion analysis).
C. Discussion
Ploeger acknowledges that time of day is a relevant factor in determining whether
an officer possessed reasonable suspicion. See Foster, 326 S.W.3d at 613. He also
concedes that if an area is known to be a high-crime area, it is also relevant to the
reasonable suspicion inquiry. See id. Nevertheless, Ploeger argues that these factors
by themselves do not establish reasonable suspicion. Ploeger argues that his unusual,
yet legal, driving was also insufficient to establish reasonable suspicion. We disagree.
In the present case, Officer Garza pointed to specific and articulable facts that led
him to form a reasonable suspicion that criminal activity was afoot. Officer Garza testified
that he saw Ploeger driving at 12:36 a.m. on a county road that was known to be an area
where people frequently dumped trash illegally. See TEX. HEALTH & SAFETY CODE ANN.
§ 365.012 (West, Westlaw through 2017 1st C.S.). Officer Garza also testified that
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Ploeger was driving unusually by repeatedly stopping and going for five minutes. Viewing
the totality of the circumstances together, including the time of night, Officer Garza’s
training and expertise, and Ploeger’s unusual driving pattern, we conclude that Officer
Garza had reasonable suspicion to temporarily detain Ploeger. See Foster, 326 S.W.3d
at 613. Accordingly, the trial court did not err by denying Ploeger’s motion to suppress.
See Dixon, 206 S.W.3d at 590. We overrule Ploeger’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of May, 2019.
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