NO. 14-05-01092-CR.
Opinion filed April 3, 2007.
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Cause No. 1015377 .
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE, J.
After the trial court denied his pre-trial motion to suppress, appellant, Arthur Hurd, pleaded guilty to possession of marijuana 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 motion-to-suppress hearing, the trial court heard testimony from Trooper Kevin James of the Baytown highway patrol service. On February 2, 2005, Trooper James clocked appellant on his radar driving 71 mph in a 65 mph speed limit and stopped appellant for speeding. When Trooper James approached appellant's 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 car window, he thought he smelled raw marijuana coming from the window; 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. He asked appellant about the residue, and appellant said it was crumbs from a candy bar he had been eating. Trooper James issued a warning for the speeding violation and asked appellant if he could search the vehicle. Appellant refused. Trooper James asked appellant to exit the vehicle and called for a canine unit. Appellant told Trooper James that it was cold outside. After locating a canine unit, Trooper James told appellant that he could sit in the front seat of the patrol car while they waited. Inside the patrol car, Trooper James smelled marijuana on appellant. Deputy Almeida, the narcotics handler for the canine unit also testified. When the canine unit arrived, the drug dog was allowed to sniff 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.-Houston [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 appellant's 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) the 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
Appellant seems to argue that the initial traffic stop was illegal because at the motion-to-suppress hearing, the State failed to lay the proper foundation regarding calibration and accuracy of Trooper James's radar. We disagree. Appellant relies on Wilson v. State for the proposition that a legal traffic stop for speeding must be coupled with evidence relative to 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 to detect speeding vehicles. On the day of appellant's arrest he followed the Department of Public Safety requirement that troopers calibrate the radar at the beginning of their shifts and after each traffic stop. Accordingly, we conclude that the State laid the proper foundation for Trooper James's testimony regarding the radar. The trial court did not abuse its discretion in admitting radar evidence. See Maysonet v. State, 91 S.W.3d 365, 369B71 (Tex.App. — Texarkana 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 appellant's 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 thus must be reasonable under the Fourth Amendment to the United States Constitution. See Simpson v. State, 29 S.W.3d 324, 327 (Tex.App.-Houston [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 by reviewing 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). In contrast, 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 and thus its occupants had no other means to depart. Id. (citing Davis, 947 S.W.2d at 241). We interpreted Robinette and Davis to mean 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 outside of an automobile by a trained canine is not a search within the meaning of the Fourth Amendment. See Mohmed v. State, 977 S.W.2d 624, 628 (Tex.App.-Fort 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, the 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 the residue was crumbs from a candy bar he was eating at the time 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 and not candy bar crumbs. Appellant cites McQuarters v. State to support his argument that Trooper James had no reasonable suspicion to further detain appellant. 58 S.W.3d 250 (Tex.App.-Fort 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 in the car. 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 to this case, because Trooper James testified he was not certain he smelled marijuana at appellant's car door because it was a cold, windy night. However, the State argues and we agree, that there is a difference between the facts in McQuarters and the facts in this case. Trooper James observed residue of green marijuana on appellant's shirt and a cigar blunt typically used to smoke marijuana in addition to possibly smelling marijuana while standing at appellant's car door. Considering the totality of the circumstances, Trooper James had a reasonable suspicion that appellant was engaged in illegal activity. Trooper James testified he was trained in drug detection. He observed, in plain view, green marijuana residue on appellant's shirt, cigar residue, and a cigar blunt in appellant's car while standing at appellant's car door. Trooper James observed that the residue was removed when he returned to the car. When he asked about the residue, appellant stated that it was candy bar crumbs. Based on these articulated facts, when 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.-Houston [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. See Simpson, 29 S.W.3d at 328. Appellant also contends the dog handler, Officer Almeida, violated the Fourth Amendment when he opened the door of the vehicle without any positive alert from the drug dog, allowing the dog to search the car without probable cause. 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.-Houston [1st Dist.] 1999, pet. ref'd); Josey v. State, 981 S.W.2d 831, 846 (Tex.App. — Houston [14th Dist.] 1998, pet. ref'd); Ortiz v. State, 930 S.W.2d 849, 856 (Tex.App.-Tyler 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.