Mayra Lorena Delgadillo v. The State of Texas--Appeal from 409th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MAYRA LORENA DELGADILLO,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00507-CR

Appeal from the

409th District Court

of El Paso County, Texas

(TC# 20030D02248)

O P I N I O N

This is an appeal from a conviction for the offense of possession of marijuana in the amount of fifty pounds or less but more than five pounds. Appellant pleaded guilty and the court assessed punishment at two years community supervision and a fine of $1,000. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

At the hearing on Appellant s motion to suppress the evidence, Officer Martin Moncada testified that he worked for the El Paso Police Department, and he was assigned to a canine unit. He stated that on October 24, 2002, he was patrolling a small parking lot near the entrance to a international bridge known as the Zaragoza port-of-entry. There was a bank of pay telephones in the parking lot that people typically stopped to use when crossing either way on the bridge.

He was using his dog to sniff the air near several vehicles that were parked in the lot. The dog alerted on a van. The officer noticed that there were three people in the van. There was a driver, Appellant, a passenger, Appellant s sister, and a child in the van. Appellant was the owner of the vehicle. Officer Moncada advised Appellant that the dog had alerted on the van indicating the presence of narcotics. He asked if he could search the vehicle and she gave consent to search. He also stated to her that he really did not need her permission as the dog had alerted on the vehicle. He did not threaten or promise anything in obtaining the consent. The dog was deployed inside the van and it pinpointed an area on the floorboard behind the driver s seat. The officer noticed the carpet was loose and he pulled it back. He saw an access panel that had been cut out. When he lifted the covering to the compartment, he saw bundles of marijuana. Appellant and her sister were placed under arrest and the officer then called for assistance. In further testimony, Officer Moncada stated that he did not park his patrol vehicle in such a manner that Appellant could not move her vehicle.

Appellant testified at the hearing. She related that she had parked her vehicle near the phone bank in the parking lot. Officer Moncada then drove up and parked right beside as another vehicle parked behind her. There was already a car in front of her. She was blocked from leaving the area. The officer took his dog to the vehicle in front of her and then he brought it back to her car. The dog was sniffing in the air. The officer asked her and the other two individuals in the car to get out of the vehicle. He placed the dog in the car. Appellant testified that the officer never asked for consent to search the vehicle.

II. DISCUSSION

In Appellant s sole issue, she maintains that the court erred in denying her motion to suppress the evidence. // Specifically, Appellant contends that Officer Moncada unlawfully detained her by preventing her from leaving the parking lot according to her rendition of events; therefore, the officer needed reasonable suspicion to cause the dog to sniff the area around her occupied van.

We review the trial court s ruling on a motion to suppress evidence under an abuse-of-discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). If supported by the record, a trial court s ruling on a motion to suppress will not be overturned. Hill v. State, 902 S.W.2d 57, 59 (Tex.App.--Houston [1st Dist.] 1995, pet. ref d). At a suppression hearing, the trial judge is the sole finder of facts. Arnold v. State, 873 S.W.2d 27, 34 (Tex.Crim.App. 1993); Hill, 902 S.W.2d at 59. The trial judge is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). We give almost total deference to the trial court s determination of historical facts that the record supports, especially when the trial court s findings turn on evaluating a witness s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We give the same amount of deference to the trial court s ruling on mixed questions of law and fact if the question is resolved by evaluating credibility and demeanor. Ross, 32 S.W.3d at 856. Where, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court s ruling. Carmouche, 10 S.W.3d at 327-28. We must assume the trial court made implied findings of fact that are supported by the record. Id. at 328.

We consider de novo issues that are purely questions of law, such as whether probable cause existed. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002); Guzman, 955 S.W.2d at 89. Furthermore, if the trial court s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal, 935 S.W.2d at 138. This is true even if the decision is correct for reasons different from those espoused at the hearing. Id. at 138-39.

There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). An arrest must be supported by probable cause; a detention requires reasonable suspicion; and an encounter needs no justification. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). Police officers do not violate the Fourth Amendment by approaching an individual on the street or in another public place and questioning him. Perez, 85 S.W.3d at 819.

An investigative detention requires an officer to have a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Id. The controlling question in determining whether there was a detention is whether the actions of the officer would have made a reasonable person feel they were not free to decline the officer s requests or otherwise terminate the encounter. State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999).

A sniff of the outside 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, 103 S. Ct. 2637, 2644 (1983); Crockett v. State, 803 S.W.2d 308, 310 n.5 (Tex.Crim.App. 1991); Ortiz v. State, 930 S.W.2d 849, 856 (Tex.App.--Tyler 1996, no pet.). This is because the exterior or open-air dog sniff is much less intrusive than a typical search and only discloses the presence or absence of narcotics. See Crockett, 803 S.W.2d at 311. As such, in this instance, Officer Moncada and his dog were free to approach Appellant s van and observe anything that could be perceived by the public, including odors emanating from the van indicating the use or presence of narcotics. Perez, 85 S.W.3d at 819; see also State v. Crawford, 120 S.W.3d 508, 510 (Tex.App.--Dallas 2003, no pet.).

In contrast to Appellant s testimony, Officer Moncada stated that he did not block in her van. Appellant suggests that her testimony is more believable; however, the court was free to believe or disbelieve her testimony regarding the officer s actions. Further, Appellant maintains that there was a greater expectation of privacy existent because the van was occupied. However, this contention runs counter to the established principle that the police may engage in encounters with the public without such interactions being characterized as detentions. It is well-settled that a trained narcotics dog s positive alert for drugs is sufficient to establish probable cause for an arrest. De Jesus v. State, 917 S.W.2d 458, 461 (Tex.App.--Houston [14th Dist.] 1996, pet. ref d); Bunts v. State, 881 S.W.2d 447, 450 (Tex.App.--El Paso 1994, pet. ref d); Walsh v. State, 743 S.W.2d 687, 688-89 (Tex.App.-- Houston [1st Dist.] 1987, pet. ref d).

In this instance, the interaction between Officer Moncada and Appellant did not amount to a detention until he told her to exit the vehicle so he could search it for narcotics. See Martin v. State, 104 S.W.3d 298, 301 (Tex.App.--El Paso 2003, no pet.). By that time, the dog had alerted on the vehicle and Officer Moncada had obtained consent to search the vehicle. Accordingly, we overrule Appellant s sole issue on appeal.

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

RICHARD BARAJAS, Chief Justice

July 28, 2005

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)