Opinion
NO. 14-16-01004-CR NO. 14-17-00624-CR NO. 14-17-00625-CR
06-07-2018
LANCE ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 344th District Court and County Court Chambers County, Texas
Trial Court Cause Nos. 18007 , 31599 & 31600
MEMORANDUM OPINION
After the denial of his motion to suppress, appellant Lance Robertson pleaded guilty to possession of marijuana, possession of methamphetamine, and unlawfully carrying a weapon. See Tex. Penal Code § 46.02 (West 2011); Tex. Health & Safety Code Ann. §§ 481.115(a), 481.121(a), 481.121(b)(1) (West 2017). Appellant contends the trial court erroneously denied his motion. We affirm.
I. BACKGROUND
On July 24, 2014, appellant was arrested for possession of methamphetamine, possession of marijuana, and unlawfully carrying a weapon. Charges were filed in the county and district courts of Chambers County. Appellant filed motions to suppress in each case. In his motions, appellant argued the evidence discovered during his detention and arrest should be suppressed because the "evidence seized and/or statements made [were] made as a result of the illegal stop, detention and/or arrest, and/or search and seizure." Appellant asserted there was no probable cause for the traffic stop because the trooper who conducted the stop, Trooper Ihnen, did not articulate specific facts which led Ihnen to conclude a traffic offense had occurred. Appellant also asserted that the search and seizure of the pill bottle and the vehicle appellant was driving were without probable cause or reasonable suspicion. Appellant argued that he did not consent to the search of the pill bottle and the pill bottle was not in plain view.
The parties agreed that the district court's ruling on appellant's motion to suppress would be binding in each case. The district court heard the motion on November 3, 2016. At the hearing, Ihnen testified that he stopped appellant because appellant was "following a vehicle too close and getting closer to them." In response to the prosecutor's questioning, Ihnen articulated the specific facts which led him to conclude a traffic offense had occurred:
This agreement does not appear to be in the record. However, appellant does not dispute the State's contention that this agreement was made. Moreover, appellant's appeal of the denial of the district court's motion to suppress in each case supports the existence of the agreement.
Q. . . . [A]t what point in the stop did you decide that they were too close?
A. As—when I got behind him, he started inching up closer and closer to that Volkswagen when I got behind him.
Q. So, basically you could see through the back windshield. You could see the car in front of them, and they were getting closer and closer?The State also presented a video recording of the stop. The video shows that after pulling over appellant, Ihnen explained to appellant that he had been following the Volkswagen too closely.
A. Yes, sir.
Q. And that's when you turned on your sirens to stop?
A. That's when—yes, sir.
Q. Okay. And when you're considering following too close, what are some of the issues that you consider? Do you consider the speed?
A. Speed.
Q. Do you remember, approximately, how fast y'all were traveling?
A. 65, 66, somewhere in there.
Q. Around the speed limit?
A. Yes, sir.
Q. Okay. And about the traffic, was there quite a bit of traffic on the road at the time?
A. Medium traffic.
Q. Okay. And the distance on how far they were from the other car?
A. About a car length, maybe a car length and a half.
Q. And in your experience and your training, is that too close? If something were to happen and that car were to slam on their brakes, if—
A. Yes, sir. I could also see he was watching me in the rearview mirror. So, he had divided attention. So, if something were to happen, I don't think he would have had enough time to react to avoid a collision.
Ihnen testified that after stopping appellant and approaching the vehicle, he "immediately detected the odor of marijuana coming from the vehicle." Ihnen testified his initial contact with appellant was unusual. Appellant appeared "very nervous right off the bat" and "his hands were shaking." Ihnen asked appellant for his driver's license. Appellant told Ihnen that he did not have a driver's license but did have a passport. Appellant did not have his passport on his person; "He had to remove it from a backpack, which was located in the backseat."
Video evidence of the traffic stop showed appellant began looking through the backpack in the backseat of the vehicle, but Ihnen asked him to take the bag out of the vehicle. Appellant pulled the backpack out of the car and then continued digging through it in front of Ihnen, looking for his passport. Video also showed that while appellant was rifling through his backpack, Ihnen noticed a pill bottle. Ihnen testified that the pill bottle had no label and had a "plastic baggy shoved inside of it." Based on his training and experience, Ihnen testified, "That's not normal. That's not how everyday folks carry their pills." Ihnen asked appellant to hand the pill bottle to him, and appellant did so. Ihnen then opened the bottle and found a purple pill, which he identified as ecstasy, a drug containing methamphetamine. Ihnen questioned appellant about the pill. Appellant initially said he did not know what the pill was, but after further questioning, appellant admitted the pill was ecstasy.
Ihnen's testimony and the video showed that after finding the ecstasy, Ihnen brought appellant back to his patrol vehicle to continue his investigation. Before appellant got in the patrol vehicle, Ihnen asked appellant for consent to search his person; appellant consented. Ihnen searched appellant's person. Ihnen and appellant then got into the front seat of Ihnen's patrol vehicle. Ihnen continued questioning appellant, and using appellant's identification information, Ihnen discovered that appellant had active warrants. Ihnen then placed appellant under arrest for possession of a controlled substance. After arresting appellant, Ihnen searched appellant's vehicle and its contents. He found marijuana in the driver's side door, a pistol in the backpack, and a rifle in the trunk. Before releasing the vehicle appellant had been driving to a passenger in that vehicle, Ihnen asked appellant for the contents of his pockets. Appellant produced more marijuana from his pocket. Finally, Ihnen released the vehicle to the passenger and told her he was taking appellant to the Chambers County jail.
No evidence other than Ihnen's testimony and the video recording was presented at the hearing.
At the conclusion of the hearing, the trial court made oral findings on the record and denied appellant's motions to suppress. The trial court stated, in relevant part:
I'm going to deny your Motion to Suppress. I'll make the specific finding that my view of the video indicated that a vehicle that's called the Volkswagen . . . pulled in front of the defendant's car. At that point the video indicates the defendant's vehicle comes next into play that it is fairly close at that time. The lane change rules apply to that. It was obviously done safely. So, the Volkswagen is not in any trouble for that particular move; and he didn't have to hit his brakes.
However, the video also shows that once the trooper got behind the defendant, that the car—you can see it on the video. It's hard to tell the difference (sic) from the video—the distance. But I see a vehicle in the left lane, which appears to either slow down or his car is speeding up because it is impossible for him to change lanes to pass that vehicle. Whether he would or wouldn't have, I don't know; but it indicates to me that he is still going at a speed that, if he continued at that speed, he might be following too close in comparison to the other vehicles on the highway. And, so, I think it is a legitimate stop.
. . .
I also make the finding that he volunteered to get his ID and pull out—or was apparently looking into the backpack where he thought his ID was, which gives indicia evidence for me that that is his backpack. He
does pull it out at the officer's request. As he's going through it, the officer sees this unmarked pill bottle with a pill in it; and then the questioning ensues about that.Appellant pleaded guilty to all charges. Both the district court and the county court sentenced appellant to deferred community supervision and assessed fines. This appeal followed.
I think that with all the things leading up to that, that he is certainly in the proper place and, therefore, may be in the position to, in fact, view an offense in his presence under Chapter 14 at that point in time. So, then later the defendant admits that would be ecstasy, I believe, was his testimony.
So, for all those findings—and I can certainly be more specific if you want me to—I think it, cumulatively, clearly is a good stop and a valid arrest; and, therefore, I will deny your Motion.
. . .
The defendant did appear very nervous; and, I mean, he came out—you know, he did appear nervous that he was pulled over. Obviously, it was a Wisconsin license plate. So, he may not be from around here. I don't know. But I did want to make that notation.
II. ANALYSIS
A. Standard of review
We review a trial judge's ruling on a motion to suppress under a bifurcated standard of review. Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). First, we afford almost total deference to a trial judge's determination of historical facts. Id. The judge is the sole trier of fact and judge of witnesses' credibility and the weight to be given their testimony. Id. The judge is entitled to believe or disbelieve all or part of a witness's testimony—even if that testimony is uncontroverted—because the judge can observe the witness's demeanor and appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
When the trial judge makes express findings of fact, we afford those findings almost total deference as long as the record supports them. Id. When there is not an express finding on an issue, we infer implicit findings of fact that support the trial court's ruling as long as those findings are supported by the record. See id. "[T]he prevailing party is entitled to 'the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.'" State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).
Second, we review a judge's application of the law to the facts de novo. Weems, 493 S.W.3d at 577. We sustain the judge's ruling if the record reasonably supports that ruling and is correct on any theory of law applicable to the case. Id.
B. Traffic stop
In his first issue, appellant contends the trial court erred in denying his motion to suppress because the "stop" of appellant's vehicle was without reasonable suspicion or probable cause, "in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article 1 Section 9 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure" (capitalization omitted).
When, as here, an individual is stopped without a warrant, the State bears the burden to prove the officer conducting the stop had reasonable suspicion to believe the individual was violating the law. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A violation of a traffic law is sufficient authority for an officer to stop a vehicle. Josey v. State, 981 S.W.2d 831, 837 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd). Therefore, if an officer has a reasonable basis for suspecting that a traffic violation is in progress or has been committed, the officer legally may initiate a traffic stop. Miller v. State, 418 S.W.3d 692, 696 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd.).
The determination of the presence of reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the time of the stop. Icke v. State, 36 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2001, pet ref'd). To justify a stop, the detaining officer should articulate specific facts which, taken together with rational inferences from those facts, explain why the officer concluded that the person detained was, had been, or soon would be engaged in criminal activity. Ford, 158 S.W.3d at 492; Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). We look solely to whether an objective basis for the stop exists. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
Section 545.062(a) of the Texas Transportation Code provides that an operator of a vehicle may not follow another vehicle too closely. Tex. Transp. Code Ann. § 545.062(a) (West 2011). "There is no bright-line test for determining 'too closely.'" Lawton v. State, No. 07-16-00272-CR, 2017 WL 3611578, *2 (Tex. App.—Amarillo Aug. 16, 2017) (mem. op., not designated for publication). The statute provides that an operator shall "maintain an assured clear distance between the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of the highway, the operator can safely stop without colliding with the preceding vehicle or veering into another vehicle, object, or person on or near the highway." Tex. Transp. Code Ann. § 545.062(a).
In his first issue, appellant contends that Ihnen failed to articulate specific facts which, taken together with rational inferences from those facts, explain why he concluded appellant was following too closely. In Ford v. State, the court of criminal appeals held the trial court erred in denying Ford's motion to suppress evidence based on the officer's conclusory statement that he observed Ford following too closely. 158 S.W.3d at 493. The officer did not articulate any details regarding the approximate distance between vehicles, the speed at which they were traveling, the conditions of the road, traffic conditions, or whether the operator would have been able to safely stop if necessary. Id. The officer only stated that Ford was "following too close." Id. The court held the record did not support a finding of reasonable suspicion where "[t]he State failed to elicit any testimony pertinent to what facts would allow [the officer] to objectively determine Ford was violating a traffic law." Id.
In this case, unlike Ford, the trooper offered more than a conclusory statement. At the hearing on appellant's motion to suppress, Ihnen's testimony presented clear, concrete facts from which the trial court could determine the officer had "specific, articulable facts," which when viewed under the totality of the circumstances could lead the officer to reasonably conclude appellant had violated a traffic law. Ihnen's testimony was not conclusory. Ihnen testified that appellant was traveling at a high rate of speed, "65, 66"; that there was "[m]edium traffic" on the road; and that appellant's vehicle was between a car length and a car length and a half away from the Volkswagen. Ihnen also testified that he observed appellant looking away from the road ahead, his attention "divided," and that "if something were to happen," he did not believe appellant "would have had enough time to react to avoid a collision."
Because the record contains sufficient, articulable facts from which the trial court could have determined Ihnen's initial detention of appellant was objectively reasonable under the totality of the circumstances, no "violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article 1 Section 9 of the Texas Constitution [or] Article 38.23 of the Texas Code of Criminal Procedure" occurred. We overrule appellant's first issue.
C. Search and seizure
We now turn to appellant's second issue: the trial court erred in denying his motion to suppress because the search of the pill bottle containing ecstasy was without reasonable suspicion, probable cause, or consent, "in violation of the Fourth and Fourteenth Amendemnts [sic] to the United States Constitution, Article 1 Section 9 of the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure" (capitalization omitted). Appellant also briefly argues in his second issue that the search of his vehicle was without reasonable suspicion, probable cause, or consent. We first address the search of the pill bottle.
1. Pill bottle in plain view
The Fourth Amendment protects against unreasonable searches and seizures. Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). "The capacity to claim the protection of the Fourth Amendment depends upon whether the person has a legitimate expectation of privacy in the invaded place." Id. at 541. A warrantless search of either a person or property is considered per se unreasonable subject to well-established exceptions to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). Although commonly classified as an exception to the warrant requirement, "the 'plain view' doctrine is not really an 'exception' . . . because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable." Walter, 28 S.W.3d at 541.
If an item is in plain view, "neither its observation nor its seizure involves any invasion of privacy." Id. The rationale of the plain view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and no "search" within the meaning of the Fourth Amendment. See Illinois v. Andreas, 463 U.S. 765, 771 (1983). A seizure of an object is lawful under the plain view doctrine if three requirements are met. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). First, police officers must lawfully be where the object can be "plainly viewed." State v. Betts, 397 S.W.3d 198, 206 (Tex. Crim. App. 2013) (citing Keehn, 279 S.W.3d at 334). Second, the "incriminating character" of the object in plain view must be "immediately apparent" to the police officers. Id. Third, the officials must have the right to access the object. Id.
Appellant purports to challenge the first and third requirements of the plain view doctrine, arguing that Ihnen "had no lawful right to open the bottle" as appellant "did not consent to the search of the pill bottle." According to appellant, "Being in a position to view the bottle, lawfully, did not put [Ihnen] in a lawful position to open the bottle when contents were obscured." However, the first and third requirements of the plain view doctrine are met so long as the officer was lawfully positioned to view and access the pill bottle. See Goonan v. State, 334 S.W.3d 357, 361 (Tex. App.—Fort Worth 2011, no pet.) (rejecting appellant's argument that corporal was not justified in opening pill bottle; finding first and third requirements of plain view doctrine met where appellant consented to corporal's search of appellant's car where pill bottle found, not search of pill bottle itself). The first and third requirements of the plain view doctrine do not separately require that an officer be "in a lawful position to open the bottle" where he was in properly to view and access the bottle. See id.; Kinchen v. State, No. 14-02-00859-CR, 2004 WL 1314096, *at 2 (Tex. App.—Houston [14th Dist.] June 15, 2004, pet. ref'd) (mem. op., not designated for publication) (rejecting appellant's argument that trooper was not justified in opening vanilla extract bottle; officer was in proper position to view vanilla extract bottle because he made valid traffic stop).
Appellant does not argue that Ihnen was not lawfully positioned when he viewed the pill bottle or that he did not have a right to access the pill bottle. Appellant does not challenge Ihnen's seizure of the pill bottle. Ihnen was on the side of a public road, observing appellant rifling through his backpack, when he observed the pill bottle. From this vantage point, Ihnen was lawfully positioned to view the pill bottle and had a right to access the pill bottle. When Ihnen observed the pill bottle in plain view in appellant's backpack, he asked appellant to hand it to him. Appellant provided the pill bottle to Ihnen without objection. These circumstances satisfy the first and third requirements of the plain view doctrine. See Goonan, 334 S.W.3d at 361; Kinchen, 2004 WL 1314096, at *2.
Appellant further asserts, "[t]he Trooper could not see what was in the bottle[;] he only had an assumption about the bottle contents." These arguments go to the second requirement of the plain view doctrine—whether the "incriminating character" of the object in plain view must be "immediately apparent" to the police. Addressing the second requirement, appellant contends (1) the pill bottle has "had no incrimination [sic] character that was immediately apparent to view its contents," (2) appellant "appeared not to own the bottle," (3) appellant "denied knowing what was in the bottle," (4) the "owner of the bag was not established," (5) appellant "never made furtive gestures to hide the bottle from the Officer," and (6) "The Trooper said the bottle appeared to contain a plastic bag, showing the Defendant the bottle."
The second requirement of the plain view doctrine merely "requires a showing of probable cause that the item discovered is incriminating evidence; actual knowledge of the incriminating evidence is not required." Goonan, 334 S.W.3d at 361 (citing Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991)); see State v. Dobbs, 323 S.W.3d 184, 189 (Tex. Crim. App. 2010). Probable cause "exist[s] when the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found[.]" Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Known facts and circumstances include those personally known to police officers. Id. An officer also may rely on training and experience to draw inferences and make deductions as to the nature of the item seen. Nichols v. State, 886 S.W.2d 324, 325-26 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd).
Ihnen testified when the pill bottle came into his plain view, he noticed it had no label and it had "a plastic baggy shoved inside of it." Based on his experience, Ihnen testified that this manner of carrying drugs was "not normal." Although it was not immediately apparent that the pill bottle contained ecstasy or methamphetamine, Ihnen did have probable cause to associate the pill bottle with contraband and criminal activity. Based on the evidence in the record, Ihnen presented sufficient facts and circumstances demonstrating his belief that the pill bottle he saw in plain view was of "incriminating character." See Thomas v. State, No. 14-16-00230-CR, 2017 WL 2484366, *at 6-8 (Tex. App.—Houston [14th Dist.] June 8, 2017, pet. granted) (mem. op., not designated for publication) (holding that second prong of plain view doctrine was met where pill bottle had no label and officer testified to her experience that "individuals often 'carry their narcotics within pill bottles' and without a label or a name on it"); Goonan, 334 S.W.3d at 361 (holding that second prong of plain view doctrine was met where pill bottle had old label made out to someone other than appellant). We conclude that the pill bottle was legally seized under the plain view doctrine.
2. Search of the vehicle
A warrantless search of a vehicle is valid if the automobile exception applies, Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.—Houston [1st] 2002, no pet.), or the search is incident to arrest, see State v. Sanchez, 538 S.W.3d 545, 548-51 (Tex. Crim. App. 2017). In this case, the automobile exception applies, and the search of appellant's vehicle was incident to his arrest.
Under the automobile exception, a police officer "may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband." Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009) (citing Pennsylvania v. Labron, 518 U.S. 938, 940 (1996), and California v. Carney, 471 U.S. 386, 393 (1985)). A strong odor of marijuana emanating from a vehicle establishes probable cause to search the vehicle and its occupants. Parker v. State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006); Rocha v. State, 464 S.W.3d 410, 418 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Because Ihnen "immediately detected the odor of marijuana coming from the vehicle" after stopping appellant and approaching the vehicle, he had probable cause to search the vehicle. See Parker, 206 S.W.3d at 597 n.11.
Moreover, Ihnen was authorized to arrest appellant because he had probable cause to believe appellant had committed an offense in his presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2017) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."); State v. Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011). After appellant admitted that the pill bottle contained ecstasy, Ihnen was justified in conducting a warrantless search of the vehicle appellant drove because Ihnen had probable cause to believe there was contraband located inside the vehicle. See State v. Sanchez, 538 S.W.3d 545, 548-51 (Tex. Crim. App. 2017) (citing Arizona v. Gant, 556 U.S. at 335, 335 (2009), as adopting the concurrence in Thornton v. United States, 541 U.S. 615, 632 (2004), which held that where petitioner was lawfully arrested for drug offense, it was reasonable for officer "to believe further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle").
The trial court did not err in denying appellant's motion to suppress. No violation of the United States Constitution, the Texas Constitution, or Article 38.23 of the Texas Code of Criminal Procedure occurred. Ihnen was justified in seizing the pill bottle pursuant to the plain view doctrine, and in searching the vehicle under the automobile exception and incident to appellant's arrest.
Appellant's second issue is overruled.
III. CONCLUSION
Having overruled appellant's first and second issues, we affirm the trial court's judgment.
/s/ Marc W. Brown
Justice Panel consists of Justices Boyce, Jamison, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).