James Earl Ingram v. The State of Texas--Appeal from 7th District Court of Smith County

NO. 12-07-00031-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES EARL INGRAM, APPEAL FROM THE 7TH

APPELLANT

V. JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

James Earl Ingram appeals his conviction for possession of cocaine in an amount of four grams or more but less than 200 grams, a second degree felony.1 In his sole issue on appeal, Appellant contends that the trial court erred in denying his motion to suppress physical evidence. We affirm.

Background

On May 23, 2005, Frank Bonilla, a trooper with the Texas Department of Public Safety, testified that he was patrolling Interstate 20 in Smith County, Texas when his radar indicated a speeding vehicle. Bonilla stopped the vehicle, which was driven by Oliver Williams. Williams s nephew, Appellant, was the passenger and owner of the vehicle. During questioning, Bonilla stated that the two men gave slightly different stories regarding where they had been. At first, Williams said they were visiting someone ill in Dallas and then stated they were visiting a cousin in Dallas. Appellant told Bonilla that he was visiting some folks in Dallas and that they had taken a car to Dallas. Both stated that they were returning to Longview. According to Bonilla, the two men were extremely, visibly nervous. At that point, Bonilla suspected criminal activity. When Bonilla was returning to his patrol car, Williams stopped him and said, There ain t any of that hanky-panky stuff going on around here. That spontaneous comment further raised Bonilla s suspicions that something was amiss. During the stop, Bonilla requested and received Appellant s criminal history and discovered it contained numerous charges, from assault to many different types of drug charges.

Bonilla noted that Appellant, while still in the passenger seat, was moving around a lot and occasionally disappeared from Bonilla s sight. Bonilla was concerned because Appellant could have been reaching down for a weapon. Bonilla issued Williams a warning ticket and then searched Appellant for obvious weapons. While searching Appellant, Bonilla felt a bulge in his pocket and Appellant removed from his pocket what turned out to be a bundle of money. Bonilla testified that the bundle of money further raised his suspicions of possible narcotics activity because the money was a bunch of fives wrapped around with rubber bands, and they were all broken down in a manner he described as a drug stop. To Bonilla, this indicated the money could be drug money. Bonilla further explained that the style in which the money was wrapped seemed consistent with a purchase of narcotics.

Bonilla requested and received permission from Appellant to search the vehicle. During the search, Bonilla noted that the spare tire was missing. Based on his training and experience, he stated that narcotics and drugs were sometimes concealed in the spare tire compartment. Further, Bonilla was suspicious because it would be unusual to travel to Dallas and back without a spare tire. Bonilla also noticed an unusual rattle in the rear driver s side door. He knew, based on his training and experience, that drug traffickers occasionally hide contraband inside a car s doors. Bonilla concluded he had reasonable suspicion to believe that there was contraband in the vehicle. Rather than dismantle the vehicle s door, Bonilla requested a canine unit to determine if there was contraband in the door. Bonilla advised Appellant and Williams that it would take ten to fifteen minutes for the canine unit to arrive. Appellant agreed to wait and did not object.

Bonilla testified that, in the meantime, Appellant could not remain still. He leaned on Bonilla s patrol car, got off the patrol car, and then leaned back on the car, continuously moving around. Bonilla noticed that Appellant s left shoe was partially off. Suspecting there could be contraband, either a weapon or drugs, he asked to see Appellant s shoe. Appellant took off his right shoe, but Bonilla told him he wanted to see the other shoe. Appellant took off his left shoe and then hesitated. Bonilla grabbed the shoe and the two men tussle[d]. Appellant threw the shoe toward Williams. Bonilla attempted to handcuff Appellant, but Appellant refused until Bonilla and the other trooper drew their weapons and instructed him to get on the ground. At that point, Appellant cooperated and was handcuffed. Then, Bonilla retrieved Appellant s shoe and found a large bag containing cocaine, as well as a smaller bag that also contained cocaine. Bonilla arrested Appellant and Williams for possession of a controlled substance. While Bonilla was completing the paperwork at the jail, Appellant advised Bonilla that the drugs were his and asked him to release his uncle.

At the conclusion of the evidence, and after argument of counsel, the trial court found that Bonilla had probable cause to stop the vehicle, probable cause to conduct the investigation, and probable cause to detain the two men while waiting for the canine unit. The trial court also found that Bonilla, because of his safety concerns, had probable cause to ask Appellant what was in his shoe. Thus, the trial court denied Appellant s motion to suppress the physical evidence, i.e., the cocaine, found in Appellant s shoe. Further, the trial court found Appellant guilty of possession of a controlled substance as alleged in the indictment. After a sentencing hearing, the trial court assessed Appellant s punishment at fifteen years of imprisonment.2 This appeal followed.

Motion to Suppress

In his sole issue on appeal, Appellant argues that the trial court erred in denying his motion to suppress the physical evidence seized during the traffic stop. Specifically, Appellant urges a two pronged attack on the trial court s denial of his motion: that the seizure was unconstitutional as the result of an unreasonably prolonged detention, and that the seizure lacked probable cause.

Standard of Review

A trial court s decision to admit or exclude evidence is reviewed for abuse of discretion. See Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). A reviewing court is to uphold a trial court s ruling regarding the admission or exclusion of evidence if the ruling is reasonably supported by the record and is correct under any theory of law applicable to the case. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).

Applicable Law

The Fourth Amendment to the United States Constitution provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Similarly, Article I, section 9 of the Texas Constitution states, The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation. Tex. Const. art. I, 9.

We review the issue of whether a specific search or seizure is reasonable under the Fourth Amendment de novo. Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is ultimately a question of substantive Fourth Amendment law. Id. We give great deference to the trial court s findings of historical fact, but questions involving legal principles and the application of law to established facts are properly reviewed de novo. Id. at 62-63. Thus, we view the trial court s factual findings in the light most favorable to its ruling, but decide the issue of reasonableness as a question of Fourth Amendment law under Supreme Court precedent. Id. at 63. Reasonableness is measured in objective terms by examining the totality of the circumstances and emphasizing the fact-specific nature of the . . . inquiry. Id. (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996)). We must balance the public interest served with the individual s right to be free from arbitrary detentions and intrusions. Id.

The Fourth Amendment protects people and their freedom from police intrusion wherever an individual may harbor a reasonable expectation of privacy. Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889 (1968) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967)). The stopping of a vehicle and detention of its occupants constitutes a seizure under the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004). We evaluate the reasonableness of an investigatory stop by making a dual inquiry, asking whether the officer s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605 (1985).

Although a seizure may last no longer than necessary to effectuate the purpose of the initial stop, courts have imposed no rigid time limitations on investigatory stops. Sharpe, 470 U.S. at 685, 105 S. Ct. at 1575; Strauss v. State, 121 S.W.3d 486, 491 (Tex. App. Austin 2003, pet. ref d). In assessing whether a detention is too long in duration to be justified as an investigative stop, we must examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Sharpe, 470 U.S. at 686, 105 S. Ct. at 1575. During an investigative stop, the police officer is entitled to conduct a brief and minimally intrusive investigation. Strauss, 121 S.W.3d at 491. The officer may require the detainee to identify himself and produce a valid driver s license, check for outstanding warrants, ask about the driver s and passenger s destination and purpose for the trip, direct the driver to step out from the vehicle, require the detainee to move from one location to another, ask the detainee if he possesses any illegal contraband, and solicit his voluntary consent to search the vehicle. Id.

Analysis

In this case, Bonilla stopped Williams for speeding. According to Bonilla, Williams and Appellant gave conflicting stories about their trip, and seemed extremely, visibly nervous. After Williams told Bonilla that [t]here ain t any of that hanky-panky stuff going on around here, Bonilla grew increasingly suspicious. Further, Appellant s criminal history comprised numerous charges, including narcotics charges. Bonilla requested and received permission to search the vehicle, and noticed both the absence of a spare tire and an unusual rattle in one of the vehicle s doors. Bonilla told Appellant that he wanted to bring a canine unit to search the vehicle and stated that it would take ten to fifteen minutes. Appellant agreed to wait. While waiting for the canine unit, Bonilla noticed that Appellant was continuously moving and that his left shoe was partially off. He asked to see Appellant s shoe. When Appellant removed his shoe, he hesitated and struggled with Bonilla for possession of the shoe. Finally, Appellant threw the shoe toward Williams. When Bonilla retrieved the shoe, he discovered two bags of cocaine.

Approximately twenty-five to twenty-six minutes elapsed before Bonilla requested a canine unit. Other courts have found similar intervals after the initial stop to be reasonable under the Fourth Amendment. In Brigham, a police officer stopped a vehicle for following too closely. Brigham, 382 F.3d at 504. During the stop, the officer became suspicious because none of the occupants of the vehicle possessed the same characteristics, i.e., age and surname, as the person listed as the lessee of the vehicle, one occupant s identification appeared to be fictitious, the occupants appeared to be nervous and avoided eye contact, and the occupants explanations of their travel plans were inconsistent. Id. at 504-05. After giving the defendant a warning ticket, the officer received permission to search the vehicle. Id. at 505. Approximately twenty-nine minutes after the initial stop, the officer discovered a container of liquid codeine. Id. The court determined that the officer s actions were not unreasonable under the circumstances, and that the detention of the defendant and his companions did not violate the Fourth Amendment. Id. at 512.

In another case, the police officer stopped the defendant after receiving a radio dispatch regarding a possible intoxicated driver. Kothe, 152 S.W.3d at 54. During the stop, the officer conducted a field sobriety test and a driver s license and warrant check. Id. Although the officer concluded that the defendant was not intoxicated, he received another radio dispatch describing the defendant as possibly possessing stolen coins. Id. The officer received the defendant s permission to search his vehicle and discovered drug paraphernalia, but no coins. Id. However, the defendant s passenger informed the officer that she had two baggies of heroin that the defendant had asked her to hold. Id. The court stated that there was no evidence that the officer failed to diligently pursue his investigation, that the license check was a pretext, or that he engaged in a fishing expedition. Id. at 66. Moreover, the court determined that the officer s decision to return to his patrol car and wait a few minutes for the warrant check results before releasing the defendant was reasonable as a matter of substantive Fourth Amendment law. Id.

In Strauss, the police officer stopped the defendant for speeding. Straus, 121 S.W.3d at 489. The defendant stated that the vehicle belonged to a friend, but could not recall his name. Id. Both the defendant and his passenger gave conflicting stories about the location at which they previously stayed. Id. The officer received the defendant s permission to search the vehicle and discovered a shaving bag that smelled of burnt marijuana along with laundry detergent scattered on the rear floor of the vehicle. Id. He also smelled fresh marijuana in the rear of the vehicle in a compartment containing tools. Id. At that point, the officer requested a canine unit, but one was not immediately available. Id. Approximately one hour and fifteen minutes after the initial stop, the canine unit arrived and discovered sixty pounds of marijuana in the vehicle. Id. The court stated that the length of time between the initial stop and the arrival of the canine unit did not render the detention per se unreasonable because the unit was not immediately available and had to be secured from a law enforcement agency in a neighboring community. Id. at 492. After reviewing the totality of the circumstances, the court concluded that the trial court did not abuse its discretion in determining that the initial stop, subsequent search, and arrest of the defendant were lawful. Id.

Finally, in a fourth case, the police officers stopped the driver of a vehicle after seeing him commit a traffic offense. Josey v. State, 981 S.W.2d 831, 835 (Tex. App. Houston [14th Dist.] 1998, pet. ref d). The defendant was a passenger in the vehicle. Id. Because the driver was arrested and the defendant did not have his driver s license with him, the officers impounded the vehicle. Id. However, before the wrecker took the vehicle, the officers conducted a search of the vehicle, which revealed a bag of cash in bundles of $1,000 and a title naming the defendant as the owner of the vehicle. Id. At that point, the officers transported the defendant and the vehicle to a police station and requested a canine unit to search the vehicle. Id. During that search, the officers and the canine unit discovered a loaded pistol and a small amount of cocaine and marijuana. Id. However, ninety minutes had elapsed between the initial stop and the full search of the vehicle at the police station. Id. at 841. The court noted that during this time, the officers secured the scene, arrested the driver, asked the defendant for identification, ran a computer check on the defendant, and began an inventory search of the vehicle pursuant to impoundment procedures. Id. The court also noted that some of the delay was attributable to the defendant s silence. Id. Finally, the court concluded that the defendant s detention was reasonable under the circumstances. Id.

In this case, the twenty-five to twenty-six minutes that elapsed between the initial stop and request for the canine unit was about the same as the interval in Brigham, more than the interval at question in Kothe, but far less than the seventy-five minute interval in Strauss, or the ninety minute interval in Josey. There is no evidence that Bonilla failed to diligently pursue his investigation in requesting and waiting for a canine unit. See Kothe, 152 S.W.3d at 66. Further, Appellant s furtive movements involving his shoe while waiting for the canine unit, along with the previously noted suspicious behavior and activity, properly raised Bonilla s suspicions of illegal contraband. Thus, we conclude that seizure of Appellant s shoe was reasonable under the circumstances. See id. at 63. Based on the totality of the circumstances, the trial court did not abuse its discretion in denying Appellant s motion to suppress physical evidence. Accordingly, we overrule Appellant s sole issue.

Disposition

Having overruled Appellant s sole issue, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered February 29, 2008.

Panel consisted of Worthen, C.J., Griffith, J, and Hoyle, J..

(DO NOT PUBLISH)

1 See Tex. Health & Safety Code Ann. 481.115(a), (d) (Vernon 2003).

2 An individual adjudged guilty of a second degree felony shall be punished by imprisonment for any term of not more than twenty years or less than two years and, in addition, a fine not to exceed $10,000. See Tex. Penal Code Ann. 12.33 (Vernon 2003).