Opinion filed February 4, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00062-CR
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JOSEPH ROBERT ELLIS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15034
MEMORAND UM OPI NI ON
The jury convicted Joseph Robert Ellis, Jr. of the offense of possession of
methamphetamine in an amount of one gram or more but less than four grams. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (c) (West 2017). After Appellant
pleaded “true” to the two enhancement paragraphs contained in the indictment, the
jury assessed punishment at confinement for ninety-nine years. See TEX. PENAL
CODE ANN. § 12.42(d) (West 2019). Appellant did not file a motion to suppress
evidence at trial. Appellant’s sole issue on appeal is that the traffic stop that led to
the search was a “pretext” and that the search for and discovery of narcotics in his
vehicle therefore was, as a matter of law, unreasonable. Appellant asks this
intermediate appellate court to overturn Crittenden v. State, 899 S.W.2d 668 (Tex.
Crim. App. 1995), on the same basis upon which it was originally adopted by the
Texas Court of Criminal Appeals—Article I, section 9 of the Texas Constitution. We
affirm.
Background Facts
Officer Gary Roberts, a K-9 officer with the Stephenville Police Department
Narcotics Unit, was conducting surveillance on a residence he knew to be
Appellant’s home when he observed a red Ford compact car leave the property.
Officer Roberts was familiar with the car because he had seen it parked outside the
residence and on several occasions during patrol. He knew that the vehicle was
registered to Betty Ellis, Appellant’s mother. From his position across Lingleville
Highway from the residence, Officer Roberts observed a traffic violation: the driver
of the vehicle failed to signal a turn. Officer Roberts then pursued the vehicle to
initiate a traffic stop that would essentially allow him to conduct a narcotics
investigation.
There were two people in the vehicle. Officer Roberts recognized Appellant
as the driver. After his initial conversation with Appellant, he asked Appellant to get
out of the vehicle. For safety reasons, Officer Roberts waited for another unit to
arrive before he got his drug dog out to perform an open-air sniff around the vehicle.
The dog ultimately alerted to the odor of narcotics next to the open window on the
passenger side of the vehicle. Officer Roberts searched the car and found
methamphetamine in a clear plastic bag concealed within the parking brake cover.
On appeal, Appellant argues that the search of his vehicle was unreasonable
under the Texas Constitution because the traffic stop was a pretext for the search.
He petitions this court to revisit the “Crittenden doctrine.”
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Discussion
The temporary detention of individuals by the police to address traffic
violations constitutes a seizure within the meaning of the Fourth Amendment and
must be reasonable. Whren v. United States, 517 U.S. 806, 809–10 (1996); Kothe v.
State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). The officers must have at least
reasonable suspicion to believe that a traffic violation has occurred, and the traffic
stop must be reasonably related, in duration and scope, to the purpose of
investigating the violation. See Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim.
App. 2018). “There need only be an objective basis for the stop; the subjective intent
of the officer conducting the stop is irrelevant.” State v. Clark, 315 S.W.3d 561, 564
(Tex. App.—Eastland 2010, no pet.); see Whren, 517 U.S. at 813. An actual traffic
violation constitutes probable cause that sufficiently justifies the initial detention.
Walter v. State, 28 S.W.3d 538, 543 (Tex. Crim. App. 2000). While a lawful traffic
stop is ongoing, an officer may have a canine perform an open-air sniff around the
vehicle without any additional justification. See 1979 Pontiac Auto. v. State, 988
S.W.2d 241, 243 (Tex. App.—Eastland 1998, no pet.); see also Mohmed v. State, 977
S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d).
A pretextual traffic stop occurs when an individual is validly stopped for a
traffic violation only because the officer wishes to investigate that individual for a
separate offense, for which the officer does not have valid legal grounds to effectuate
a stop or an arrest. See Garcia v. State, 827 S.W.2d 937, 939–40 (Tex. Crim. App.
1992) (adopting the objective approach for pretextual stops under the Fourth
Amendment). In Crittenden, the court addressed pretextual stops in the context of
Article I, section 9 and held that an objectively valid traffic stop is not unlawful
solely because the officer had an ulterior motive for making it. Crittenden, 899
S.W.2d at 671, 674; see TEX. CONST. art. I, § 9.
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Here, the traffic stop was objectively valid. Officer Roberts testified that he
saw “the vehicle make a turn violation” when the driver failed to signal that he was
turning; therefore, Officer Roberts had probable cause to stop and detain the
vehicle’s occupants for the traffic violation. See Lerma, 543 S.W.3d at 190. Because
Appellant was lawfully detained for the traffic violation, Officer Roberts was able
to conduct a canine sweep of the vehicle, and he had probable cause to search it after
the dog made a positive alert. See State v. Weaver, 349 S.W.3d 521, 527–28 (Tex.
Crim. App. 2011) (recognizing that a positive alert by a canine provides probable
cause to search a vehicle). The fact that Officer Roberts had an ulterior motive for
making the stop—i.e., to conduct a narcotics investigation—is of no consequence.
See Crittenden, 899 S.W.2d at 674.
Appellant suggests that the reasonableness of pretextual traffic stops under the
Texas Constitution needs to be revisited. As an intermediate appellate court, we are
bound by the precedent of the Court of Criminal Appeals, and the controlling
precedent is that the subjective intent of the detaining officer is irrelevant to whether
the stop was reasonable under Article I, section 9. See id. Accordingly, we overrule
Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
February 4, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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