Crystal Guerrero v. The State of Texas--Appeal from County Court at Law No 1 of Bexar County

MEMORANDUM OPINION

No. 04-04-00684-CR

Crystal GUERRERO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From County Court at Law No.1, Bexar County, Texas

Trial Court No. 867019

Honorable Al Alonso, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 5, 2005

AFFIRMED

Defendant, Crystal Guerrero, was charged by information for possession of marijuana. After the denial of her motion to suppress, defendant pled no contest and was sentenced to six months in jail, probated for one year. Defendant appeals the trial court s denial of her motion to suppress. We affirm.

BACKGROUND

On October 26, 2003, San Antonio Police Officer Hartford Dwayne Lemm observed a 1989 Mazda at a known drug location. After seeing some of the occupants leave the vehicle and return within a period of three to five minutes, Lemm followed the vehicle upon its departure because he believed the occupants may have purchased drugs. Lemm followed the Mazda for approximately one half mile and observed the vehicle commit a traffic violation when it failed to signal 100 feet before making a turn. After observing the traffic violation, Lemm proceeded to check the license plate of the Mazda to determine whether it was stolen or suspected of being involved in any criminal activity. Lemm then turned on his overhead lights and attempted to initiate a traffic stop.

As Lemm was attempting to make the stop, the vehicle pulled into the driveway of the driver s residence. When the vehicle stopped, all four of the Mazda s occupants exited and began walking towards the house. Lemm stopped Jacob, the driver, and asked him to stay put until Lemm was able to stop the other vehicle occupants from entering the house. After Lemm stopped the remaining occupants, Lemm asked them for identification as well as for Jacob s license and insurance. After running warrant checks, Lemm gave Jacob a verbal warning for the traffic violation.

Lemm then asked Jacob and Sandra, the vehicle owner, if there was anything in the Mazda that he should be concerned about, such as any kind of contraband, weapons, narcotics or anything else. Jacob and Sandra replied no. According to Lemm, he then verbally requested permission to search the vehicle and they both consented. However, one of the rear passengers testified Jacob and Sandra refused to consent to the search of the vehicle; while defendant, who was also a rear passenger, asserts the consent was coerced after Lemm allegedly stated he was going to search the car anyway. The search yielded a small bag of marijuana tucked in the left rear seat behind the driver s seat. Sandra and the defendant both claimed ownership of the marijuana and were arrested.

MOTION TO SUPPRESS

On appeal, defendant asserts the trial court erred by denying her motion to suppress the evidence seized during the search of the vehicle. 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, the trial court did not make explicit findings of historical facts, so we review the evidence in the light most favorable to the trial court s ruling and assume that the trial court made implicit findings of fact supported in the record. Id.; Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

Defendant argues that the traffic stop was conducted as a pretext to search for drugs in the vehicle; the ensuing search of the vehicle was non-consensual; and the search was illegal because once the purpose for the original stop had ended, no other basis warranted continuation of the detention. Specifically, defendant asserts after the warrant check returned clear and Lemm had issued a warning for the traffic violation, no justification remained to detain the vehicle occupants. Therefore, according to defendant, the search exceeded the scope of the traffic stop. Defendant also contends her prolonged detention caused the search to be non-consensual.

Waiver

The State first asserts that because defendant did not argue to the trial court that Lemm exceeded the scope of the traffic stop, this issue has been waived on appeal. To present a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1. Defendant s motion to suppress asserted (1) defendant was illegally taken into custodial detention; (2) at the time of the illegal detention, the State lacked probable cause to formally arrest her; (3) as a result of the illegal detention, the State acquired incriminating evidence; and (4) the evidence should be suppressed because it was obtained as a result of the illegal detention of defendant. We believe defendant s motion to suppress challenges the scope and legality of the stop. Therefore, she preserved these issues for our consideration.

Scope

Defendant contends the initial stop was a pretext to search the car for drugs because Lemm testified he had no probable cause to stop the car after it initially drove away from the alleged known drug location. Lemm stated he followed the car until he witnessed the traffic violation, at which point he decided to stop the vehicle. Even if the officer had an ulterior motive for stopping the car, the pretext does not invalidate the stop and arrest. Crittenden v. State, 899 S.W.2d 668, 674 (Tex. Crim. App. 1995).

Defendant also contends that once the reason for the stop was complete, Lemm s continued detention of her and the other occupants was unreasonable. Once the purpose of a traffic stop has been satisfied, the stop may not be used as a fishing expedition to discover unrelated criminal activity; any continued detention must be supported by additional reasonable suspicion. Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997); State v. Kothe, 123 S.W.3d 444, 447 (Tex. App. San Antonio 2003), rev d on other grounds, 152 S.W.3d 54 (Tex. Crim. App. 2004). However, in this case, Lemm requested consent to search. According to Lemm, after the purpose of a traffic stop had been effectuated, he asked the driver and the vehicle owner if they possessed illegal contraband, and he also solicited voluntary consent to search the vehicle. Merely requesting such consent does not amount to an unlawful seizure, and neither probable cause nor reasonable suspicion is required for the officer to ask. James v. State, 102 S.W.3d 162, 173 (Tex. App. Fort Worth 2003, pet. ref d); Leach v. State, 35 S.W.3d 232, 235 (Tex. App. Austin 2000, no pet.). Nor does the encounter become a further detention simply due to the request for permission to search. Vargas v. State, 18 S.W.3d 247, 252-53 (Tex. App. Waco 2000, pet. ref d). Accordingly, we conclude the defendant was not illegally detained. Because defendant was not illegally detained, we next consider whether she has standing to challenge the legality of the search. See Kothe, 123 S.W.3d at 448-49 (holding, [The] issue [of standing] is transcended by the illegal detention that was found to have occurred earlier. ).

Standing

In order to have standing, defendant must prove she had a legitimate, reasonable expectation of privacy in the vehicle. See Flores v. State, 871 S.W.2d 714, 720 (Tex. Crim. App. 1993). Significant to the present case, a passenger in a vehicle does not have a legitimate expectation of privacy in the vehicle where the passenger fails to assert a possessory interest in the vehicle or the property seized. Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985); see also Rakas v. Illinois, 439 U.S. 128, 134 (1978) ( [A] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person s premises or property has not had any of his Fourth Amendment rights infringed. ).

This does not mean, however, that a passenger automatically lacks standing to challenge a vehicle s search under any circumstances; a passenger can challenge a vehicle s search if the search resulted from an infringement (such as an illegal detention) of the passenger s Fourth Amendment rights. Lewis v. State, 664 S.W.2d 345, 347-48 (Tex. Crim. App. 1984). In Lewis, the police officer conducting the search requested that the appellant, a passenger of the vehicle, leave the vehicle and the officer detained her while the search was conducted. Id. at 347. At trial, the appellant asserted a Fourth Amendment claim, challenging both her removal from the vehicle and her continued detention after a certain point in time. Id. at 348. The Court of Criminal Appeals stated that the relevant question as to whether the appellant had standing to assert a Fourth Amendment claim is whether the search of the vehicle was come at by exploitation of appellant s continued detention and removal from the vehicle. Id. The Court found that the detention of the appellant was irrelevant to the officer s decision to search. Put another way, [the officer] could have let appellant leave without hampering his ability to search the car. Thus, in no way was her detention necessary to perform the search. Id. at 349. The Court concluded that the allegedly illegal search was not directly caused by exploiting appellant s continued detention, and thus held that the appellant did not have standing to make a Fourth Amendment claim of an unreasonable search of the vehicle. Id.

Here, because defendant did not have any possessory interest in the vehicle, her standing to assert a Fourth Amendment claim is dependent upon the police illegally detaining her, which we have already determined did not occur. Id. at 348. Therefore, similar to the Lewis court, we find that the search of the vehicle was not directly caused by exploiting defendant s continued detention. Defendant was merely a passenger in the vehicle, and had she been allowed to leave, Lemm s ability to search the vehicle would not have been affected. We thus conclude that defendant does not have standing to make a Fourth Amendment claim as to the search of the vehicle.

Because lack of standing is a correct theory of law that supports the trial court s denial of defendant s motion to suppress, we overrule defendant s issue on appeal and affirm the trial court s judgment. See Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001) (holding that if the trial court s decision is correct under any theory of law applicable to the case, the ruling must be sustained).

Sandee Bryan Marion, Justice

DO NOT PUBLISH