The State of Texas v. Christopher Glen Wilkins--Appeal from County Court at Law No 3 of Montgomery County

MEMORANDUM OPINION
No. 04-02-00027-CR
The STATE of Texas,
Appellant
v.
Christopher Glen WILKINS,
Appellee
From the County Criminal Court No. 3, Montgomery County, Texas
Trial Court No. 01-167784-03
Honorable Mason Martin, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 12, 2003

REVERSED AND REMANDED

The State of Texas contends that the trial court erred in granting Christopher Wilkins' motion to suppress on the basis that Miranda warnings were required before Wilkins was questioned during a traffic stop. We reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.

Background

Deputy Bill Perry stopped Wilkins for speeding, approached the car, and asked to see Wilkins' driver's license and proof of insurance. Wilkins' hands were shaking, and he did not make eye contact. Perry found this excessive nervousness out of the ordinary.

Concerned for his safety at the roadside, Perry asked Wilkins to exit and step to the rear of the car. While awaiting the results of a license plate check, Perry asked Wilkins if he had anything in the car Perry needed to know about. Wilkins replied that he had "some smoke," which Perry understood to mean marijuana. Wilkins gave Perry permission to search his car and told him to "look in the ashtray, behind the actual ashtray." Perry found a small bag of marijuana.

Discussion

Where the State's evidence at a suppression hearing is uncontroverted, and there is "no indication that the trial court did not believe that testimony," de novo review is appropriate. State v. Ross, 32 S.W.3d 853, 858 (Tex. Crim. App. 2000). The prosecution is prohibited from using statements stemming from a custodial interrogation of a defendant "unless it demonstrates the use of procedural safeguards to secure the privilege against self-incrimination." Berkemer v. McCarty, 468 U.S. 420, 428 (1984) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). A "custodial interrogation" is defined as questioning initiated by law enforcement officers "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. Persons temporarily detained pursuant to ordinary traffic stops are not "in custody" for the purposes of Miranda. See Berkemer, 468 U.S. at 440.

An officer may lawfully stop and detain a person who commits a traffic offense. State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). Asking Wilkins to exit his car and step to the rear, rather than conversing with him while exposed to moving traffic, did not raise the traffic stop to the level of legal custody requiring Miranda warnings to be given. See Pennsylvania v. Mimms, 434 U.S. 106, 111 & n.6 (1997).

While awaiting the results of a license plate check, Perry asked the visibly nervous Wilkins if he had anything in the car Perry needed to know about. The trial court determined that the Miranda warnings were required because Perry had already reached the conclusion that something was wrong at the time he questioned Wilkins. However, Miranda warnings are not required until an officer has objectively created a custodial environment and has communicated to the accused his intention to effectuate custody to the accused himself. State v. Abernathy, 963 S.W.2d 822, 825 (Tex. App.--San Antonio 1998, pet. ref'd). A police officer's subjective view that the individual under questioning is a suspect, if not disclosed by the officer to that suspect, does not bear upon the question whether the individual is in custody. Id. Nothing in our record indicates that Perry made Wilkins the focus of a criminal investigation, much less that Perry communicated his subjective view to Wilkins. Because Perry's suspicions were aroused by Wilkins' unusual nervousness, Perry's questioning was reasonably related to the traffic stop investigation. Cardenas, 36 S.W.3d at 246. Accordingly, Miranda warnings were not required because Wilkins was not in custody, and Wilkins' consent to the search was valid.

The trial court's order is reversed and the cause is remanded for further proceedings consistent with this opinion.

Paul W. Green, Justice

DO NOT PUBLISH