Daniel Gonzales v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00259-CR
Daniel GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-3126
Honorable Raymond Angelini, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: June 20, 2007

 

AFFIRMED

 

This appeal arises from a motion to suppress. After initiating a traffic stop based on Appellant Daniel Gonzales' failure to wear a seatbelt, the officers requested a canine sweep of the vehicle, and narcotics were located. Gonzales was charged with possession with intent to deliver a controlled substance, namely cocaine in an amount more than four grams, but less than two hundred grams. After a pre-trial motion to suppress was denied by the trial court, Gonzales entered a plea of guilty and was sentenced to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine in the amount of $2,000.00. Gonzales appeals the trial court's determination on the motion to suppress. Because the officer had an objective basis upon which to initiate a traffic stop and the subsequent investigative detention was based on reasonable suspicion predicated on articulable facts, we affirm the judgment of the trial court.

Factual Background

On February 24, 2005, San Antonio Police Officer Valente Garcia, an undercover narcotics detective, received information regarding a large shipment of cocaine for distribution, at a specific residence, to an individual who was the target of an ongoing investigation. Garcia and his partner set up surveillance on the residence in question.

Approximately two hours later, the officers witnessed a white Ford Explorer pull into the driveway and an individual, the target of the surveillance, exit the residence and enter the front passenger side of the vehicle. The two individuals were in the vehicle for approximately ten minutes and appeared to exchange something, behavior Garcia testified was consistent with narcotics trafficking. The passenger then returned to the residence and the Explorer left. Based on the belief that the two individuals were involved in drug trafficking, the officers requested the assistance of uniformed officers. Officer De La Rosa responded and was briefed by radio communication on the investigation, the location of the undercover officers and was provided a description and license plate of the Ford Explorer. Because Garcia believed Gonzales had picked up narcotics at the house, he requested De La Rosa initiate a traffic stop upon observance of any traffic violation. The undercover officers maintained their view of the Ford Explorer during De La Rosa's stop of the vehicle and throughout the detention in question.

De La Rosa informed Garcia that he stopped the Ford Explorer based on Tex. Transp. Code Ann. 545.413 (Vernon 1999 & Supp. 2006), failure to wear a seatbelt. Garcia testified he witnessed De La Rosa approach the driver's side of the vehicle and make contact with the driver, Appellant Daniel Gonzales. After requesting Gonzales exit the vehicle, De La Rosa conducted a routine background check. Gonzales began acting very nervous, pacing back and forth in front of the patrol car and placing his hands in his coat pockets and inside his jacket. To ensure officer safety and avoid the possible destruction of evidence, Garcia, who was watching Gonzales from his car, radioed De La Rosa, who handcuffed Gonzales and placed him in the back of the patrol vehicle.

After requesting a background check on Gonzales, De La Rosa discovered Gonzales was on probation for narcotics and his record included numerous narcotics offenses. Based on De La Rosa's information regarding Gonzales' background check, combined with the suspected criminal activity with a known drug dealer and Gonzales' excessive nervousness and furtive gestures, Garcia requested a narcotics K-9 unit for a sweep of the vehicle. Gonzales was detained for less than thirty minutes from the time the traffic stop was initiated until the arrival of the K-9 unit. The dog initially alerted to the back right of Gonzales' vehicle and then to a blue plastic Wal-Mart bag on the back right floorboard of the vehicle, which ultimately tested positive for cocaine.

Gonzales was charged with possession with intent to deliver a controlled substance, namely cocaine in an amount more than four grams, but less than two hundred grams. After a pre-trial motion to suppress was denied by the trial court, Gonzales entered a plea of guilty and was sentenced to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine in the amount of $2,000.00.

Standard of Review

An appellate court reviews a trial court's ruling on a motion to suppress on a bifurcated standard articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). See also Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). As such, we afford almost total deference to the trial court's express or implied determination of historical facts while reviewing the trial courts' application of the law de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (allowing de novo review when the question does not turn on the credibility and demeanor of a witness). In a suppression hearing, the trial court is the sole trier of fact and the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 855. In cases such as this, where the trial court did not make explicit findings of historical facts, the evidence must be viewed in the light most favorable to the trial court's ruling. Carmouche, 10 S.W.3d at 327-28.I. Initial Detention

In his first issue, Gonzales claims the trial court erred in denying the motion to suppress because the traffic infraction was not seen by any of the witnesses at the hearing. Gonzales points to the fact that rather than De La Rosa testifying at the suppression hearing, the State called Garcia to testify to the circumstances surrounding the stop and detention of Gonzales. Yet, no one objected to Garcia's testimony concerning the detention. Garcia testified De la Rosa told him Gonzales was not wearing a seatbelt and that De La Rosa stopped Gonzales as a result. As sole trier of fact, the trial court was free to disbelieve some, all or none of Garcia's testimony, even uncontroverted hearsay, based on witness credibility and demeanor. Ross, 32 S.W.3d at 857. Because Garcia's testimony, if believed, would support the denial of the motion to suppress, the record supports that the trial court found Garcia's testimony to be credible based on demeanor, appearance, and tone. Id.

As a matter of law, an officer is allowed to stop and arrest a driver who violates the "rules of the road," such as driving without a seatbelt. See Tex. Transp. Code 543.001, 545.413 (Vernon 1999 & Supp. 2006); Anderson v. State, 701 S.W.2d 868, 873 (Tex. Crim. App. 1985) (holding that seatbelt and other traffic violations are sufficient grounds for traffic stop, a temporary detention or arrest). De La Rosa, therefore, had an objective basis upon which to stop Gonzales, regardless of his subjective motivation. State v. West, 20 S.W.3d 867, 872 (Tex. App.--Dallas 2000, pet. ref'd). Here, Garcia's version of the facts was uncontroverted. Accordingly, the trial court did not err in overruling Gonzales' motion to suppress. Gonzales' first issue on appeal is overruled.

II. Investigative Detention

Gonzales next argues that even if the initial stop was supported by probable cause, no reasonable suspicion supported the extended detention. Having found the traffic stop was valid, we must next answer whether the facts supported a reasonable suspicion sufficient to warrant De La Rosa's detention of the vehicle and passenger until the K-9 unit arrived and performed a sniff test on the vehicle. (1)

 

A. Scope of the Search

A sniff of the exterior of an automobile by a trained canine is not a search within the meaning of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707 (1983); Illinois v. Caballes, 543 U.S. 405, 409 (2005) (approving dog sniff on the exterior of a car while defendant was lawfully seized for traffic violation). The temporary detention of an automobile in order to allow an olfactory inspection by a trained drug detection dog does not violate the Fourth Amendment when based on a reasonable suspicion that the automobile contains narcotics. See Crockett v. State, 803 S.W.2d 308, 311, n.7 (Tex. Crim. App. 1991). If the investigative detention is not based on reasonable suspicion, however, it is unreasonable and violates the Fourteenth Amendment. Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997). We must, therefore, determine whether the length of time that Gonzales was detained while waiting for a K-9 unit was, in fact, based on a reasonable suspicion that criminal activity was afoot.

B. Reasonable Suspicion

Reasonable suspicion exists if the officer has identified specific and articulable facts, combined with rational inferences from those facts, that lead him to reasonably suspect a particular person has engaged, is engaged, or will soon engage in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Whether reasonable suspicion exists is reviewed under an objective standard. Id. An appellate court does not look to the officer's inchoate or unparticularized suspicion or hunches, but to specific reasonable inferences that the officer is entitled to draw from the facts in light of his experience. Davis, 947 S.W.2d at 243 n.3.

After initiating a routine traffic stop, an officer may check for outstanding warrants and request specific information, including a driver's license, insurance papers, identification and vehicle registration. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004). Once the purpose of the traffic stop is complete, the stop may not be used as a "fishing expedition" for unrelated criminal activity. Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). The suspicious conduct upon which the officers rely, however, must be sufficiently distinguishable from that of "innocent people under the same circumstances as to clearly, if not conclusively, set the suspect apart from them." Crockett, 803 S.W.2d at 311. As such, we consider the totality of the circumstances in order to determine whether the officer had reasonable suspicion to detain a suspect. Ford, 158 S.W.3d at 493.

In our review of the totality of the circumstances, the operative circumstances are not only those known to the officer making the stop, but also those collectively known by the officers cooperating together at the time of the detention. Fearance v. State, 771 S.W.2d 486, 509 (Tex. Crim. App. 1988) (acknowledging that an officer may rely upon information relayed to him by other officers and the sum of information known to those cooperating with him); Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). Further, the circumstances which raise suspicion of illegal conduct need not be criminal in and of themselves. Crockett, 803 S.W.2d at 311. They may simply include any facts which render the likelihood of criminal conduct greater than it would be otherwise. United States v. Sokolow, 490 U.S. 1, 9-10 (1989).

C. Analysis

Although De La Rosa and Garcia clearly detained Gonzales in hope of finding evidence of other criminal activity, we must examine the totality of the circumstances regarding the officers' reasonable suspicion to detain Gonzales. The total lapse of time from when De La Rosa first stopped Gonzales to the time the canine alerted on the vehicle was approximately thirty minutes. See $217,590.00 in U.S. Currency v. State, 54 S.W.3d 918, 924 (Tex. App.--Corpus Christi 2001, no pet.) (setting forth testimony that justified a twenty-two minute detention). At the time the canine sweep was requested, the officers: (1) knew Gonzales was on probation and had several convictions for drug related offenses; (2) was acting excessively nervous and making furtive gestures requiring De La Rosa to place him in handcuffs for officer safety; (3) knew from a reliable and credible confidential informant that the residence to which Gonzales drove was a residence known for drug trafficking; (2) (4) witnessed the exchange between Gonzales and a known drug dealer, which was consistent with narcotics trafficking; (3) and (5) witnessed Gonzales make what appeared to be furtive gestures consistent with attempting to destroy evidence. (4) Furthermore, this information was corroborated by the observations of Garcia, an eleven and a half year veteran with the San Antonio Police Department and a detective for four years. U.S. v. Cortez, 449 U.S. 411, 418 (1981) (concluding that officers may rely on their personal background, training and experience to reach their level of suspicion). We cannot say the trial court erred in determining that the officers possessed reasonable suspicion to believe that Gonzales was involved in drug trafficking, an ongoing criminal activity. Accordingly, Gonzales' second issue on appeal is overruled.

 

Conclusion

Gonzales was detained for less than thirty minutes from the time the traffic stop was initiated until the arrival of the K-9 unit. Based on the specific articulable facts, coupled with reasonable inferences therefrom and Garcia's experience and personal knowledge, we cannot say the trial court abused its discretion in determining the evidence was sufficient to reasonably justify an extended detention of Gonzales. We, therefore, affirm the judgment of the trial court.

 

Rebecca Simmons, Justice

Do Not Publish

 

1. Although the State suggests that Gonzales was placed under arrest and De La Rosa performed a search

incident to arrest, the trial court's findings (". . . it's not a search incident to arrest, because they really weren't arresting him. It was a pretext stop to investigate, to see if illegal activity had occurred. They had suspicion of that . . .") and the testimony of Garcia (Garcia: "Officer De La Rosa exited his vehicle, approached the Defendant and placed him into handcuffs for his safety." Defense: " . . . the reason that [Gonzales] was placed in handcuffs and then to the back of De La Rosa's vehicle is because he was pacing around and putting his hands in his pocket, and you were concerned about weapons?" Garcia: "Weapons; yes, sir.") do not support this contention. Accordingly, we only address Gonzales' detention as an investigative detention.

2. See Alabama v. White, 496 U.S. 325, 329-30 (1990) (holding that information from a reliable informant may provide reasonable suspicion necessary to justify an investigatory detention).

3. See United States v. Mendenhall, 446 U.S. 544, 563-64 (1980) (among the circumstances that can give rise to reasonable suspicion to briefly detain and question an individual is an officer's assessment of the facts in light of his experience, including the officer's knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices).

4. See Powell v. State, 5 S.W.3d 369, 378 (Tex. App.--Texarkana 1999, pet. ref'd) (listing prior drug offenses and nervousness as factors that could be considered in determining whether post-citation detention was reasonable).