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concluding that totality of circumstances, including officer's observation that defendant exhibited "elevated" nervousness "that went beyond the normal nervousness of a motorist during a traffic stop," provided officer with "reasonable suspicion to believe that appellant was engaged in criminal activity beyond his traffic violations" and justified officer's decision to call canine unit to investigate further
Summary of this case from Oden v. StateOpinion
NO. 01-15-00028-CRNO. 01-15-00029-CRNO. 01-15-00047-CR
05-05-2016
KELVIN MORRIS JONES, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 359th District Court Montgomery County, Texas
Trial Court Case Nos. 13-03-02521-CR and 13-03-02825-CR ("Counts I and II")
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred the appeals to this court. See Misc. Docket No. 14-9246 (Tex. Dec. 15, 2014); see also TEX. GOV'T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
MEMORANDUM OPINION
A Montgomery County grand jury issued true bills of indictment, accusing appellant, Kelvin Morris Jones, Jr., of the offenses of possession of a controlled substance, namely methamphetamine, and two "counts" of possession of child pornography. After the trial court denied his motion to suppress evidence, appellant, with an agreed punishment recommendation from the State, pleaded guilty to each offense. In accordance with appellant's plea agreements, the trial court assessed his punishment at confinement for 180 days for the offense of possession of a controlled substance and six years for each offense of possession of child pornography. The trial court ordered that the sentences run concurrently. In three issues, appellant contends that the trial court erred in denying his motion to suppress evidence and ordering him to pay, as court costs, $5,440.00 for reimbursement of his court-appointed attorney's fees.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115 (Vernon 2010); appellate cause no. 01-15-00047-CR, trial court cause no. 13-03-02521-CR.
See TEX. PENAL CODE ANN. § 43.26(a) (Vernon Supp. 2015); appellate cause no. 01-15-00028-CR, trial court cause no. 13-03-02825-CR, "Count I"; appellate cause no. 01-15-00029-CR, trial court cause no. 13-03-02825-CR, "Count II."
We modify the trial court's judgments and affirm as modified.
Background
Appellant moved the trial court to suppress "all evidence," including the "[m]ethamphetamine and pornographic materials," that was seized from his automobile and led to his arrest for the instant offenses. At the hearing on appellant's motion, Texas Department of Public Safety ("DPS") Trooper C. Cullar testified that at approximately 9:00 a.m. on March 7, 2013, while on duty in his patrol car on Gulf Coast Road in Montgomery County, he saw appellant driving a car, which had an expired inspection certificate on the windshield, at forty-five miles per hour in a thirty-five-mile-per-hour zone. After Cullar initiated a traffic stop and approached appellant's car, he noted that appellant's registration sticker had also expired. When Cullar discussed with appellant the reason for the traffic stop, appellant maintained eye contact and "project[ed] his voice" at a "normal" tone. Cullar told appellant that he was going to write a citation and walked back to his patrol car.
When Trooper Cullar checked the license number of appellant's car and his driver's license number in a computer database, he learned that another DPS trooper had, just three months prior, stopped appellant in the same car and arrested him for possession of a controlled substance. The database also indicated that appellant was a registered sex offender.
Trooper Cullar then went back to appellant's car and asked him for his "blue card." After appellant stated that he was not a registered sex offender, Cullar asked him about his recent arrest for possession of methamphetamine, at which point appellant's demeanor changed. Specifically, appellant's voice "soften[ed]" like he was "out of breath"; he "looked away" and "down"; he began "fidgeting" and his "lip started to twitch"; and he became "vague and evasive" and "wouldn't give [Cullar] the specifics of his arrest." Based on his training and experience as a peace officer, Cullar discerned an "elevated" nervousness in appellant that went beyond the normal nervousness of a motorist during a traffic stop. And he noted that appellant was traveling on Gulf Coast Road, a "small two-lane roadway" that "a lot of criminals use" to avoid the heavily patrolled main roads in the area. Thus, according to Cullar, he had "reasonable suspicion" to believe that appellant was committing another criminal offense, i.e., transporting narcotics. Cullar asked appellant for consent to search his car, and he refused. Cullar then asked him to exit his car and told him that he was going to request that a canine unit come and perform an open-air sniff of the exterior of the car. Cullar did not issue a traffic citation to appellant.
Trooper Cullar explained that a "blue card" identifies a registered sex offender by "name, address and date of birth." He noted that law enforcement officers are required to "cross reference" that information with an offender's driver's license "to make sure they're staying current with their sex offender registration."
At some point, Trooper Cullar did learn that the database contained an error and appellant was not in fact required to register as a sex offender. Cullar noted, however, that during the time of the traffic stop, he either did not have this information or know for sure that appellant was not a registered sex offender.
Trooper Cullar then contacted DPS Ranger R. Clendennen, who came to the scene with his dog. After the dog performed an open-air sniff of appellant's car and positively alerted to the presence of narcotics, Cullar and Clendennen performed a search of the car. Cullar noted that when he first entered the car, he smelled a "slight" odor of marijuana. Inside the car, Cullar found butane lighters, which are "commonly used" "to smoke methamphetamine out of glass pipes due to the extremely high heat they put off." And he found "behind the passenger seat on the floorboard" a "small, black safe" that was locked. Based on his training and experience, Cullar noted that individuals who sell narcotics typically store their narcotics in "locked boxes." After Cullar asked appellant for the key to the safe and appellant produced it, Cullar found inside the safe "numerous small baggies of white substances that [he] identified as methamphetamine"; a "glass pipe specifically used to smoke methamphetamine" that was "coated with residue"; and external data storage devices, i.e., "SD cards" or "memory cards."
Trooper Culler further testified that after he had arrested appellant and booked him into jail, he obtained a search warrant to view the contents of the external data storage devices. On the devices, investigators found photographs of children, who appeared to be from five to sixteen years of age, involved in lewd exhibition of genitalia and sexual contact. The investigator also found a video recording of a "child or young person" being "gang raped." And Cullar noted that the white substance recovered from appellant's safe later tested positive for methamphetamine, weighing less than one gram.
Ranger Clendennen testified that he is a "certified canine handler," his dog, "Raider," is a "certified" "drug detector canine," and they completed their training at the DPS Canine School in 2010. They are required to undergo eight hours of additional training each week and obtain annual recertification. And Clendennen and Raider were certified at the time of the traffic stop in this case. Raider is certified to detect methamphetamine, marijuana, heroin, and cocaine; Clendennen is trained to recognize when Raider displays a positive "alert" for the presence of these narcotics; and they have conducted "500 to 1,000" canine "open air sniffs" involving cars. The trial court admitted into evidence approximately 178 of their DPS "Drug Detector Canine Search Reports" and "Weekly Detector Canine Training Records," dated from 2010 to 2013.
When Ranger Clendennen arrived at the scene of Trooper Cullar's traffic stop of appellant, he briefly spoke with appellant and then "deployed [Raider] on the vehicle" for a "free-air sniff." Raider began his sweep at the front-right tire of appellant's car and "came to a complete stop at the rear of the vehicle," where he "[h]ad a breathing change." He then "[w]ent back" "towards the front of the vehicle and started trying to work out where the odor was coming from." Clendennen explained that Raider's turning around, returning to the driver's-side door, and displaying a breathing change constituted a positive "alert," i.e., a "noticeable, readable, physical act" or "change of behavior" in reaction to the scent of narcotics coming from appellant's car. Clendennen further explained that had appellant's car been "blank," with no odor of narcotics, Raider would have simply "proceeded around the vehicle on the first pass."
During cross-examination, Ranger Clendennen admitted that in approximately twelve previous instances, detailed in the DPS training records and search reports, in which Raider had displayed alerts, some similar to those that he had displayed in the instant case, no narcotics were found. During re-direct, Clendennen explained that dogs sometimes alert to odors or residue from narcotics that had been previously smoked or kept in a car. And he noted that he, himself, had smelled marijuana in appellant's car during the subsequent search.
The trial court admitted into evidence a dash-camera video recording from Trooper Cullar's patrol car. And the audio portion of the recording was transcribed into the record of the hearing. The recording shows that Cullar initiated the traffic stop of appellant at "2:03," two minutes and three seconds into the recording; Cullar requested a canine unit at "10:00," ten minutes into the recording; Ranger Clendennen arrived at approximately "26:38," twenty-six minutes and thirty-eight seconds into the recording; and Raider's open-air sniff of appellant's car was complete at "34:00," or thirty-four minutes into the recording.
Texas Highway Patrol ("THP") Captain J. Chrane, the "DPS State Canine Coordinator," testified that he supervises portions of the training of canine units across the State, and he discussed in detail how dogs are trained to detect narcotics. He trained Raider, knows him "very well," and is familiar with how Raider "alerts" to narcotics. Chrane noted that when Raider first came into the canine program, he was "one of the top five dogs" that it had "ever tested." He has continued to be an "impressive" and "reliable" dog, and on at least one occasion during training, he detected five grams of methamphetamine inside of a metal box. Chrane noted that Raider's training records are "complete" and comply with State protocols.
The Texas Highway Patrol is a division of the Texas Department of Public Safety. See http://www.txdps.state.tx.us/HighwayPatrol/.
Captain Chrane further testified that he had been to many crime scenes and had observed dogs alerting to "minute" amounts, even less than the amount in this case, of methamphetamine. He had also seen dogs alert to narcotics located inside of gasoline tanks and recent odors where no packaged substance remained. From his review of the video recording in this case and his familiarity with how Raider alerts, Chrane opined that Raider alerted on appellant's car and did so without any "cueing" by Ranger Clendennen. He noted that Raider could have been alerting to the presence of the methamphetamine that was eventually found or to the odor of marijuana that Trooper Cullar and Clendennen had smelled when they entered appellant's car.
Steven Nicely of "K9 Consultants of America" testified on behalf of appellant. Nicely is a recognized "police service dog[]" expert, primarily in the area of explosives detection; has trained approximately 750 dogs; has published four articles on police service dogs; and had previously testified as a police-service-dog expert "about a hundred times." From his review of the video recording in this case, Nicely opined that Raider's "alert" could have been "caused by a host of things"; "mean[t] nothing other than the dog ha[d] interest"; and was not "conclusive" as to whether narcotics were present in appellant's car. He further noted that although there is a point in the recording in which Raider "did walk away from" appellant's car, he was then directed back to the car. And he opined that Raider either "did not detect a discriminative stimulus" or "ha[d] to be cued." Nicely explained that had Raider "truly detected [narcotics] and was trained properly," he would have "exhibited his trained response right then and right there." Moreover, the fact that the "handler ha[d] to redirect him back" to the car demonstrates that the "dog either said no, nothing is there" and "the handler didn't trust him," or "the dog was not properly trained." The trial court admitted into evidence Nicely's expert report, in which he analyzed still frames from the video recording of Raider's open-air sniff of appellant's car. "[B]ased on the video alone," Nicely opined that Ranger Clendennen had "cued" Raider to "alert" on appellant's car.
Dr. Warren Woodford testified that he has a doctorate degree in chemistry; specializes in the "area of naturally occurring substances, products, particularly, odors, flavors"; patented the first "scientific odor standard developed in dog science for narcotics with drug dogs"; developed substances designed to give off odors of specific narcotics at certain distances for use in training narcotics-detection dogs; and has testified as an expert "more than 500 times" in state and federal courts. Woodford does not have expertise concerning dog "alerts," and he is not certified by the State of Texas or DPS to train dogs and their handlers how to locate narcotics. Rather, his expertise is limited to conducting studies to create substances to be used to train dogs in narcotics detection.
In this case, Dr. Woodford reviewed Ranger Clendennen and Raider's weekly training records; manuals from the DPS Drug Detector Canine Program; and Nicely's expert report. He did not review the video recording from the traffic stop of appellant. Woodford explained that an odor of narcotics inside of a car will "take the least resistan[t] air ways to exit" and "as soon as it gets to the exterior surface of the vehicle it comes off in what's called a cone." He opined with "scientific certainty" that "Raider did not alert to" the methamphetamine found in appellant's car because the amount found "would not [have made] a scent cone on the exterior of a car." However, Woodford did concede that Raider could have detected the odor of marijuana that Trooper Cullar and Ranger Clendennen smelled when they entered appellant's car.
After hearing the evidence, the trial court denied appellant's motion to suppress, explaining:
On March 7th, 2013, there was a traffic stop. All agreed that the traffic stop was proper. The defendant was speeding, had expired registration, expired inspection sticker, and I believe the—there was a partially obscured license plate. The attention during this Motion to Suppress was focused on what happened next.
. . . .
The credible evidence in this case showed the following: This defendant was traveling down Gulf Coast Road, a road that the officer knew was traveled on to avoid the number of law enforcement officers usually present on 1314 and 242. The trooper learned of an arrest of the defendant, approximately, three months prior for possession of a controlled substance . . . . The demeanor of the defendant changed when asked about the arrest.
He looked down and away instead of the eye contact. His voice became softer, lip twitching, evasive and vague in answering when asked about meth. He said, no, and looked away from the trooper, sounding out of breath. The trooper asked permission to search the vehicle and was refused. The car looked disheveled. Appeared to not have been driven for awhile, the expired stickers. Trooper told the defendant that he was requesting a canine to come to the location. The closest canine was sent to the car. A free air scent was done by the dog. The dog alerted on the vehicle. Methamphetamine and child pornography were found in a safe in a vehicle.
From the evidence before this Court, the case law, the argument of counsel, the Court finds that the canine Raider was certified and reliable. That the handler, [Clendennen], was reliable and acting properly in handling the canine. The traffic stop was legally executed. That Trooper Cullar from the totality of the circumstances had an articulable, reasonable suspicion to believe that [appellant was] engaged in activity beyond the traffic offenses. That canine was
called to the scene without undue delay. That the period of time was reasonable for the continued detention of [appellant] . . . . And that the dog's alert on the vehicle establish[ed] probable cause to search the vehicle.In regard to the testimony of Nicely and Dr. Woodford, the trial court stated:
I do not find their testimony to be reliable as to the actions of the dog and his handler. I find them to be credible witnesses. And I accept that expertise in that area. However, I do not agree with their findings and with what they saw and what it meant as to the handler and the canine.
Motion to Suppress Evidence
In his first and second issues, appellant argues that the trial court erred in denying his motion to suppress evidence because Trooper Cullar did not have reasonable suspicion to detain him beyond an investigation of his traffic violations and Cullar and Ranger Clendennen did not have probable cause to search his car. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9.
Appellant does not challenge the propriety of the initial traffic stop.
Because appellant does not provide argument or authority that the Texas Constitution is more comprehensive than its federal counterpart, we will limit our analysis to the Fourth Amendment's protections. See Carmouche v. State, 10 S.W.3d 323, 326 (Tex. Crim. App. 2000).
We review a trial court's denial of a motion to suppress evidence under a bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). "We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of law to the facts de novo." Id. We give almost total deference to the trial court's determination of historical facts, especially if those determinations turn on witness credibility or demeanor, and we review de novo the trial court's application of the law to facts not based on an evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012); Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility and may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, the trial court makes findings of fact, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review the trial court's legal ruling de novo unless its explicit findings that are supported by the record are also dispositive of the legal ruling. Id. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ross, 32 S.W.3d at 855-56.
Investigative Detention
Appellant first argues that Trooper Cullar did not have reasonable suspicion to detain him beyond an investigation of his traffic violations because "there was no evidence presented that [his] behavior was indicative of drug trafficking in particular."
To determine the reasonableness of an investigative detention, we consider whether the law enforcement officer's action was (1) justified at its inception and (2) reasonably related in scope to the circumstances that justified the interference. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997). Under the first prong, an officer is generally justified in briefly detaining an individual on less than probable cause for the purpose of investigating "possibly . . . criminal behavior," where the officer has "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Carmouche v. State, 10 S.W.3d 323, 328 (Tex. 2000). Reasonable suspicion must be based on more than a non-specific suspicion or mere "hunch" of criminal activity. Terry, 392 U.S. at 22, 88 S. Ct. at 1880. The officer must have had an objective basis for the stop; the officer's subjective intent is irrelevant. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). We look only to the facts known to the officer at the inception of the stop; an initially unlawful stop is not validated by a subsequent discovery of criminal activity. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415 (1963).
Under the second prong, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Davis, 947 S.W.2d at 245. The reasonableness of the detention depends on whether the law enforcement officer diligently pursued a means of investigation that was likely to dispel or confirm his suspicions quickly. Id. For instance, in a routine traffic stop, an officer may direct the driver and occupants out of the car without violating the Fourth Amendment. O'Hara v. State, 27 S.W.3d 548, 553 (Tex. Crim. App. 2000); Champenois v. State, 874 S.W.2d 254, 257 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109-111, 98 S. Ct. 330, 332, 333 (1977)). And an officer may request identification and insurance information from the detainee and conduct a computer verification. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004); see Davis, 947 S.W.2d at 245 n.6. The investigation is not complete until such check is completed and the officer confirms that the person has no outstanding warrants. Kothe, 152 S.W.3d at 63-64. Once the purpose of the initial stop has been effectuated, "the stop may not be used as a 'fishing expedition for unrelated criminal activity.'" Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S. Ct. 417, 422 (1996) (Ginsberg, J., concurring)).
A continuation of an investigative stop is permitted if additional facts provide reasonable suspicion that another offense is being committed. McQuartersv. State, 58 S.W.3d 250, 256 (Tex. App.—Fort Worth 2001, pet. ref'd). If a valid traffic stop evolves into an investigative detention for a drug-related offense, the officer must act to confirm or dispel his suspicions quickly. See Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014). One method of doing so is to have a trained narcotics-detection dog perform an "open-air sniff" of the air around the exterior of a detainee's car. Id. If the dog "alerts" to apparent evidence of contraband, the officer has probable cause to conduct a warrantless search of the car. See id. at 603-04; Harrison v. State, 7 S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd).
The State argues that appellant did not preserve his complaint that Trooper Cullar lacked reasonable suspicion to detain him beyond an investigation of the traffic violations because appellant: (1) did not, in his motion to suppress, assert that the traffic stop was "unreasonably prolonged without the existence of reasonable suspicion"; (2) did not raise the issue until his closing argument at the hearing on his motion; and (3) during the hearing, conceded that Trooper Cullar had reasonable suspicion to detain him until the canine unit arrived. In support of its assertion that appellant conceded that Cullar had reasonable suspicion to detain him, the State cites the following exchange:
THE COURT: . . . I think we all agree that there was a reason to stop this car.
[Appellant's Counsel]: Correct.
THE COURT: That traffic stop was a good one. And then from there, as I think where you're believing there was some problems and something that made the stop longer than it would have been for the traffic, and that there was not reasonable suspicion to bring that dog there. But now it also sounds like you're saying—(Emphasis added.)
[Appellant's Counsel]: No, I believe the dog—
THE COURT: —that wasn't a good dog.
[Appellant's Counsel]: I believe the dog was legally brought there. I don't believe there is an argument to be made there wasn't because he refused at that point. Now, we have gone past the investigative detention to begin with for sure.
THE COURT: Well, if there wasn't reasonable suspicion that something else was going on, then that would have been the end of it all.
[Appellant's Counsel]: I believe [co-counsel] addressed that with the first witness.
Appellant, in his motion to suppress, challenged the legality of the search of his car. He asserted that he was stopped for a traffic violation and after he had refused to consent to a search of his car, a "[canine] unit was called to the scene." He further asserted that the handler "cued" the dog, resulting in an illegal search of his car. The State, in its response to appellant's motion, argued that the "investigative detention was reasonable" because the officer had "reasonable suspicion that there may be drugs in the car." Specifically, appellant was "traveling on a road that is used to avoid law enforcement" and although he "made eye contact during the initial investigation" pertaining to the alleged traffic violations, his "demeanor changed once he was questioned on the narcotic arrest that occurred approximately three months" prior. And the State described in detail various changes in appellant's demeanor.
At the hearing on his motion, appellant extensively cross-examined Trooper Cullar about whether he had reasonable suspicion to prolong the investigative detention for an open-air sniff by a canine unit. And the trial court specifically found:
Trooper Cullar from the totality of the circumstances had an articulable, reasonable suspicion to believe that [appellant was] engaged in activity beyond the traffic offenses. That canine was called to the scene without undue delay. That the period of time was reasonable for the continued detention of [appellant].
Thus, the record shows that the issue of whether Trooper Cullar had reasonable suspicion to extend his investigative detention of appellant was hotly contested at the hearing. And both the State's response to appellant's motion and the trial court's above finding indicate that the State and the trial court understood appellant's complaint and considered it to be a live issue before the court. Cf. Vasquez v. State, No. PD-0078-15, —S.W.3d—, 2016 WL 735786, at *3 (Tex. Crim. App. Feb. 24, 2016) (publication pending) (State's lack of response to, and trial court's ruling on, suppression issue indicated defendant's complaint not fully understood); Pabst v. State, 466 S.W.3d 902, 907-08 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (suppression issue not preserved where not clearly conveyed to trial court and State had no opportunity to develop record). Accordingly, we hold that appellant has preserved this issue for our review. See TEX. R. APP. P. 33.1; Vasquez, 2016 WL 735786, at *3 ("[A] party need only let the trial court know what he wants and why he feels himself entitled to it clearly enough for the judge to understand him.").
Trooper Cullar testified that, based on several observations he made during the course of his investigation of appellant's traffic violations, he suspected that appellant was engaged in other criminal activity, i.e., transporting narcotics. Specifically, appellant exceeded the speed limit along a "small two-lane roadway" that "a lot of criminals use" to avoid detection on the heavily patrolled main roads in the area. And appellant, just three months prior to the stop, had been arrested for transporting methamphetamine in his car. "Although a prior criminal record does not by itself establish reasonable suspicion," it "is a factor that may be considered." Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012) (considering arrest for narcotics offense seven months prior to traffic stop).
Further, when Trooper Cullar "first walked up" to appellant, he was talkative, "projecting his voice," and maintaining "eye contact" with Cullar. However, when Cullar asked him about his previous arrest, appellant's voice "soften[ed]," like he was "out of breath"; he "looked away" and "down"; he began "fidgeting" and his "lip started to twitch"; and he became "vague and evasive" and "wouldn't give [Cullar] the specifics of his arrest." Cullar explained that, based on his training and experience as a peace officer, he discerned an "elevated" nervousness in appellant that went beyond the normal nervousness of a motorist during a traffic stop. "Although nervousness alone is not sufficient to establish reasonable suspicion for an investigative detention, it can do so in combination with other factors." Id. at 308.
In Hamal, the Texas Court of Criminal Appeals held that the following factors were "sufficient, when viewed as a whole, to establish reasonable suspicion": the defendant was traveling late at night; had exceeded the speed limit; was nervous, with hands shaking; had a prior criminal record, including recent arrests for drug offenses; and responded in the negative when asked about prior offenses. Id.
Appellant asserts that "[t]he present case is analogous" to Siefert v. State, 290 S.W.3d 478, 481-87 (Tex. App.—Amarillo 2009, no pet.). There, however, the officer articulated only that the defendant had been "driving slowly through a high crime area" and was nervous. Id. at 487. And the officer testified that he prolonged the investigative detention for the arrival of a "drug-sniffing canine" based on his suspicion that "something was out of the ordinary." Id. at 481. The court noted that, "[w]ith the exception of the driver's nervousness," the officer "learned or observed nothing new during the stop that would reasonably lead to any heightened suspicion." Id. at 488 n.10. Here, unlike the offense in Siefert, Trooper Cullar sought to investigate specific suspected criminal activity prior to completing the traffic stop, and he did not unduly delay the traffic stop merely to "investigate a 'hunch' or 'suspicion.'" See id. at n.11.
We conclude that the evidence supports the trial court's finding that Trooper Cullar, from the totality of the circumstances, had reasonable suspicion to believe that appellant was engaged in criminal activity beyond his traffic violations and Cullar called the canine unit to the scene without undue delay. See Hamal, 390 S.W.3d at 308; see also Gonzales, 369 S.W.3d at 854; Kelly, 204 S.W.3d at 818. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence on the ground that Trooper Cullar lacked reasonable suspicion to detain him beyond the investigation of his traffic violations.
We overrule appellant's first issue.
Probable Cause
Appellant next argues that Trooper Cullar and Ranger Clendennen did not have probable cause to search his car because Raider's open-air sniff outside of the car was unreliable. He asserts that Nicely's testimony established that the dog "did not exhibit any behavior consistent with detecting [narcotics]" and there was "inconsistency in the dog's behavior" that "indicated possible cueing" by Clendennen. Appellant further assets that Dr. Woodford's testimony establishes that the dog "did not" with "scientific certainty" "alert to the drug that was found in the interior of [his] car."
In Florida v. Harris, the United States Supreme Court considered "how a court should determine if the 'alert' of a drug-detection dog during a traffic stop provides probable cause to search a vehicle." 133 S. Ct. 1050, 1053 (2013). The lower court had held that the State "must in every case present an exhaustive set of records, including a log of the dog's performance in the field, to establish the dog's reliability." Harris v. State, 71 So.3d 756, 775 (Fla. 2011). However, the Supreme Court held that demand to be inconsistent with the "flexible, common-sense standard" of probable cause. 133 S. Ct. at 1053 (quoting Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 2333 (1983)).
Noting that the records of a dog's field performance "have relatively limited import" because "[e]rrors may abound in such records," the Court in Harris explained:
If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog's false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver's person. Field data thus may markedly overstate a dog's real false positives.Id. at 1056-57. "For that reason, evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert." Id. at 1057. "If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search." Id.
A defendant, however, must have an opportunity to challenge such evidence, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. Id. For instance, a defendant may contest the adequacy of a certification or training program; examine how the dog (or handler) performed in the assessments made in those settings; or present circumstances surrounding a particular alert, e.g., "the officer cued the dog," that undermine the case for probable cause. Id. at 1057-58.
"In short, a probable-cause hearing focusing on a dog's alert should proceed" as follows:
The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State's case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. . . . The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense,
would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.Id. at 1058.
Here, Ranger Clendennen's testimony and the extensive training records and search reports admitted into evidence show that Clendennen and Raider satisfactorily completed the THP Drug Detector Canine Program; Clendennen is a "certified canine handler" and Raider is a "certified" "drug detector canine"; Raider is certified to detect methamphetamine; Clendennen is trained to recognize when Raider displays a positive "alert" for the presence of narcotics; they undergo weekly training; they have continued to perform satisfactorily in training and evaluations; they are re-certified annually by DPS as a "Drug Detector Canine Team"; and they have conducted "500 to 1,000" canine "open air sniffs" involving cars. See id. at 1057.
Captain Chrane, the "DPS State Canine Coordinator," testified that he trained Raider, knows him "very well," and considers him to be "one of the top five dogs" that has "ever tested" for DPS's canine program and a "reliable" drug-detection dog. Chrane, based on his familiarity with how Raider alerts and his review of the video recording in this case, opined that Raider alerted on appellant's car and did so without any "cueing" by Ranger Clendennen. He noted that Raider could have alerted to the presence of the methamphetamine that Trooper Cullar and Clendennen eventually found or to the marijuana odor that they smelled when they entered appellant's car. Chrane further noted that Raider, on at least one occasion during training, had detected five grams of methamphetamine inside of a metal box. And he has seen dogs alert to even less than the amount of methamphetamine found in this case.
Appellant notes that his experts testified that Raider's "open-air sniff" was not reliable. Nicely did testify that Raider "did not exhibit any behavior consistent with detecting something" and the "inconsistency in [Raider's] behavior in this case indicated possible cueing" by Ranger Clendennen. And Dr. Woodford did testify that Raider could not have detected the small amount of methamphetamine that Trooper Cullar and Clendennen found in appellant's car and "did not alert [to the methamphetamine] with scientific certainty."
In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. See Maxwell, 73 S.W.3d at 281; State v. Guo, 64 S.W.3d 662, 666 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Here, given the conflicting evidence, it was up to the trial court to weigh the credibility of the witnesses, and it chose to credit the testimony of Captain Chrane over that of Nicely and Dr. Woodford.
We conclude that the evidence supports the trial court's finding that Raider's open-air sniff outside of appellant's car was reliable. See Harris, 133 S. Ct. at 1057; Kelly, 204 S.W.3d at 818. Thus, Raider's positive alert during the open-air sniff established probable cause to search the car. See Matthews, 431 S.W.3d at 603-04; Harrison, 7 S.W.3d at 311.
Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress evidence on the ground that Trooper Cullar and Ranger Clendennen lacked probable cause to search appellant's car.
We overrule appellant's second issue.
Attorney's Fees
In his third issue, appellant argues that the trial court, in its judgments, erred in ordering him to pay, as court costs, $5,440.00 for reimbursement of his court-appointed attorney because the record contains no evidence that he had an ability to pay his attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon 2009 & Supp. 2015).
We review the assessment of court-appointed attorney's fees to determine whether a basis exists for the award. See Johnson v. State, 423 S.W.3d 385, 389-90 (Tex. Crim. App. 2014). If there is no basis in the record to support the assessment of court-appointed attorney's fees, the proper remedy is to reform the judgment by striking the assessment of court-appointed attorney's fees. Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013).
An indigent defendant is entitled to have an attorney appointed to represent him in criminal proceedings at no cost. TEX. CODE CRIM. PROC. ANN. art. 1.051(c) (Vernon 2005 & Supp. 2015). "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Id. art. 26.04(p) (Vernon Supp. 2015); Cates, 402 S.W.3d at 251-52. If a trial court later determines that a defendant has the financial resources "to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay." TEX. CODE CRIM. PROC. ANN. art. 26.05(g).
Here, the trial court found that appellant was indigent, and it appointed counsel to represent him. Although appellant has been represented by appointed counsel throughout the life of this case, the trial court's judgments include an assessment of $5,440.00 against him for reimbursement of his court-appointed attorney's fees. The State concedes that the record in each case does not show that the trial court made any findings regarding appellant's ability to pay the attorney's fees or that it issued an order pursuant to article 26.05(g).
The trial court, in its judgment in cause number "13-03-02825-CR Count I," ordered appellant to pay, as court costs, $5,440.00 for reimbursement of his court-appointed attorney's fees. The judgments in trial court cause numbers "13-03-02825-CR Count II" and 13-03-02521-CR contain a notation in the space for attorney's fees: "See CT I." --------
Accordingly, we modify each judgment and delete the trial court's order that appellant pay, as court costs, $5,440.00 for reimbursement of his court-appointed attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Johnson, 423 S.W.3d at 389-90; Cates, 402 S.W.3d at 251-52.
We sustain appellant's third issue.
Conclusion
We affirm the judgments of the trial court as modified.
Terry Jennings
Justice Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).