William Bilbie v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
No. 04-03-00675-CR
William BILBIE,
Appellant
v.
The STATE of Texas,
Appellee
From the 218th Judicial District Court, Atascosa County, Texas
Trial Court No. 03-03-092-CRA
Honorable Olin B. Strauss, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 27, 2004

AFFIRMED

William Bilbie appeals the trial court's denial of his motion to suppress. We affirm the trial court's judgment.

A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Under this standard, "we give 'almost total deference to the trial court's determination of historical facts' and review the court's application of search and seizure law de novo." Id. (quoting Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). Here, because the trial court did not make explicit findings of historical facts, we review the evidence in the light most favorable to the trial court's ruling and assume the trial court made findings of fact supported by the record. Id.; See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

Bilbie does not dispute the legality of the initial traffic stop for speeding but contends the arresting officer, Agent Randy Broom (an officer with the Narcotics Task Force), exceeded its scope when he began questioning Bilbie about possession of narcotics and exceeded the permissible scope of a Terry search. Because Bilbie's detention was illegal, he argues, the State failed to prove that his consent to the search was voluntary.

1. Bilbie argues that Broom exceeded the scope of a legitimate traffic stop. We disagree. An investigative detention must be temporary and last no longer than necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). Thus, "a traffic detention may last as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of reasonable suspicion, supported by articulable facts within the officer's professional judgment, that emerges during the stop." United States v. Brigham, No-02-40719, 2004 WL 1854552, at *8 (5th Cir. Aug. 19, 2004)(en banc). The record does not indicate a significant delay in the issuance of a citation. See Kothe v. State, No. 1738-03, 2004 WL 2347781, at *6-7 (Tex. Crim. App. Oct. 20, 2004). Broom testified he stopped Bilbie's vehicle and asked Bilbie to step to the rear of the vehicle with his driver's license and insurance to allow Broom to explain the reason for the stop. As he was talking, Broom noticed that Bilbie continually glanced towards the front of the van, kept putting his hands in his pocket after being asked three different times not to, and appeared "very nervous" throughout the encounter. (1) We hold the trial court did not err in concluding that these acts were suspicious and required further investigative efforts. See Brigham, 2004 WL 1854552, at *7-8.

2. Bilbie next argues that Broom exceeded the permissible scope of a Terry search. Under Terry, an officer may conduct a limited search of the detainee's outer clothing for weapons when specific and articulable facts lead him to reasonably conclude the person is armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 19-20 (1968). Under the plain feel doctrine, if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there is no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons under Terry. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993). When Broom conducted a pat-down of Bilbie, he testified that he felt a bulge in Bilbie's pocket. The bulge, according to Broom, "felt kind of soft like a plastic baggie type deal." Although he testified that he could not "tell what was in the pocket," Broom also testified on re-direct that, upon feeling the small plastic bag with soft material inside, he believed Bilbie to be carrying contraband in his pocket. The trial court was free to believe Broom's testimony that, based on his experience and training, he immediately recognized the small plastic bag to be contraband. We therefore hold that the trial court did not err in concluding Broom did not exceed the permissible scope of a Terry search. See In re L.R., 975 S.W.2d 656, 659 (Tex. App.-San Antonio 1998, no pet.)

3. Bilbie finally argues that, because his detention was illegal, the State failed to prove that his consent to the search was voluntary. Bilbie's argument assumes that his detention was illegal. As stated above, because Broom did not exceed the scope of the detention, it was not illegal. Whether consent to search was voluntary is a question of fact to be determined from the "totality of the circumstances." Reyes v. State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987). We are bound under the standard of review to assume that the trial court made findings of fact supported in the record. Balentine, 71 S.W.3d at 768. We cannot substitute our judgment for that of the trial court, especially when the findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 88-89. Therefore, we hold that the trial court was free to believe Broom's testimony that he did in fact obtain consent from Bilbie to conduct a pat-down search and a search of the vehicle. We affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. A more detailed recitation of the evidence can be found in Klein v. State, No. 04-03-00676-CR (Tex. App.-San Antonio October 20, 2004).