JESUS RODRIGUEZ v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

NUMBER 13-01-592-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  JESUS RODRIGUEZ, Appellant,

v.

 THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 214th District Court

of Nueces County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Justice Rodriguez

Appellant, Jesus Rodriguez, was convicted of aggravated unlawful possession of marijuana. By a sole point of error, Rodriguez contends the trial court erred in denying his motion to suppress the evidence. By denying this motion, Rodriguez claims the court infringed on his Fourth and Fourteenth Amendment rights to be free from illegal searches and seizures. We affirm.

I. FACTS

A Nueces County deputy sheriff stopped Rodriguez for failure to have a license plate on the back of his tractor trailer. Rodriguez properly pulled over and got out of his car. He produced all required documents: a driver=s license, the license plate application, the vehicle registration papers, proof of insurance, authorization to haul goods in Texas, and his interstate commission card. The officer concedes the license plate corresponded with Rodriguez=s paperwork. The officer wanted to check the paperwork against the vehicle identification number (VIN) on the door frame and underneath the steering wheel. Although Rodriguez presented the required documentation to the officer, he did not consent to the officer=s search for the VIN underneath the steering wheel.

As the officer went to look at the VIN underneath the steering wheel, he noticed the sleeping compartment closed off with a curtain. Upon opening the curtain the officer found 1,136 pounds of marijuana. The officer testified the appellant appeared nervous, possessed an illegal radar detector, and the cab of the truck had a strong smell of air freshener.

Rodriguez pled not guilty and waived his right to a jury trial. He filed a motion to suppress the evidence seized from the truck. The trial court denied his motion. The trial court found Rodriguez guilty and sentenced him to fifteen years imprisonment for possession of more than 50 pounds, but less than 2,000 pounds of marijuana.

II. STANDARD OF REVIEW

A trial court=s ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, pet. ref=d) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). Mixed questions of law and fact that turn on the credibility and demeanor of a witness are reviewed under a total deference standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact which do not turn on the credibility and demeanor of a witness are reviewed de novo. Id. When the trial court does not make findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling so long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The typical motion to suppress case alleging lack of probable cause will be reviewed with a bifurcated standard of review giving almost total deference to a trial court=s express or implied determinations of fact, and review de novo the court=s application of the law of search and seizure to those facts. Ross, 32 S.W.3d at 856. In the instant case, the trial court did not file findings of fact. Therefore, we must assume the court made implicit findings of fact and review de novo the application of law to those facts. See Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).

III. ANALYSIS

In his sole point of error, Rodriguez contends the trial court erred in denying his motion to suppress because the search violated his Fourth and Fourteenth Amendment rights to be free from illegal searches and seizures. Rodriguez does not challenge the police officer=s authority to initially stop the truck for not having a license plate on the trailer. Therefore, the two issues we must discuss are (1) whether the officer properly entered the truck to find the VIN, and (2) whether the officer had reasonable suspicion to search the sleeping compartment of the truck. See Terry v. Ohio, 392 U.S. 1, 31 (1967); Davis v. State, 947 S.W.2d 240, 242-43 (Tex. Crim. App. 1997).

A. Vehicle Identification Number

A request for a driver=s license or other identification, proof of insurance, information regarding the ownership, and destination/purpose of trip are proper inquiries following a traffic stop. See Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.BAustin 2000, pet. ref=d). It is reasonable for an officer to want to compare the VIN number of the vehicle to the paperwork provided by the driver. Id. Therefore, we conclude the trial court did not abuse its discretion by determining the officer legitimately entered the truck to verify the VIN. See id.; see also Michigan v. Long, 463 U.S. 1032, 1048 (1983) (holding conduct is reasonable when weighing the interest of the individual against legitimate interests of crime prevention).

B. Sleeping Compartment

An appeals court looks to the totality of circumstances to determine whether a stop and investigatory detention is supported by reasonable suspicion. See Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998); see also Klare v. State, No. 14-00-00481, 2002 Tex. App. LEXIS 1807, at *6 (Houston [14th Dist.], March 7, 2002, no pet.). A police officer generally may not search a vehicle=s interior without evidence of criminal activity or potential danger to the officer. See United States v. Hunt, 253 F.3d 227, 231 (5th Cir. 2001). Reasonable suspicion requires that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime. See Davis, 947 S.W.2d at 244. There must be specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion. Id. at 242.

In this case, the sleeping compartment of the tractor trailer could easily hold more than one person. While looking for the VIN, the officer testified he wanted to open the curtain to be sure that no other people were in the truck. See Hunt, 253 F.3d at 231. Also, in light of Rodriguez=s nervousness, possession of an illegal radar detector, and the strong smell of air freshener in the cab of the truck, there are specific articulable facts which created a reasonable suspicion that criminal activity was afoot. See Maryland v. Buie, 494 U.S. 325, 327 (1990); see also Davis, 947 S.W.2d at 242. Based on the totality of circumstances, we conclude the officer had reasonable suspicion to open the curtain separating the driving space and the sleeping compartment. See Long, 463 U.S. at 1050; see also Buie, 494 U.S. at 332; Klare, 2002 Tex. App. 1807, at *7.

C. Marijuana

Objects falling in plain view of an officer who has the right to be in the position to have that view are subject to search and seizure and may be introduced into evidence. See Harris v. United States, 390 U.S. 234, 236 (1968); Ford, 26 S.W.3d at 674. If, while conducting a legitimate search, the officer discovers contraband other than weapons, he cannot be required to ignore it. See Long, 463 U.S. at 1034; Ardoin, 955 S.W.2d at 423. Because we have concluded the officer had the right to open the curtain to the sleeping compartment, we determine the officer had authority to seize the marijuana which lay in plain view on the floor of the sleeping compartment. See Ford, 26 S.W.3d at 674; see also Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).

IV. CONCLUSION

The protective search of the passenger and sleeping compartment of Rodriguez=s truck was reasonable under the Terry standards. See Terry, 392 U.S. at 31; see also Long, 463 U.S. at 1034 (holding Terry is not limited to preventative searches of the person of the detained suspect, but applies also to reasonable searches of a vehicle=s passenger compartment). In light of the totality of circumstances, we find that the officer had probable cause to search the sleeping compartment of the truck. See Guzman, S.W.2d 955 at 87. The court did not abuse its discretion in denying Rodriguez=s motion to suppress. Ford, 26 S.W.3d at 672. Rodriguez=s sole point of error is overruled.

Accordingly, the trial court=s judgment is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 3rd day of July, 2002.