Shannon Day v. The State of Texas--Appeal from 70th District Court of Ector County

Opinion filed January 25, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00082-CR

__________

   SHANNON DAY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-31,650

O P I N I O N

Shannon Day appeals his conviction by a jury of the offense of possession of heroin in an amount of more than one but less than four grams. The trial court, having found two enhancement allegations to be true, assessed his punishment at thirty years in the Texas Department of Criminal Justice, Institutional Division. Day contends in a single point of error that the trial court erred by refusing to suppress the evidence discovered as the result of an illegal search of his vehicle. We affirm.

We review the trial court=s denial of a motion to suppress for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). There is an abuse of discretion when the trial court=s decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Haas v. State, 172 S.W.3d 42, 49 (Tex. App.CWaco 2005, pet. ref=d).

We are to give the trial court=s findings of fact almost total deference. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In the absence of explicit findings of fact, we assume that the trial court made whatever appropriate implicit findings the record supports. Id.at 328. We review the application of relevant law to the facts de novo. Id. at 327.

Steve Kelly, a corporal with the Odessa Police Department, testified that he stopped Day for two traffic violations B failing to use his turn signals and failing to yield the right-of-way after stopping at a stop sign. He indicated that he first observed Day=s vehicle parked in front of a residence that was known, from past experience, as Aa narcotics residence for heroin.@ He said, AWe=ve dealt with it several times, that residence, in reference to heroin.@ He related that there had been past search warrants and Athat kind of thing@ at the residence and that heroin had been located.

Corporal Kelly indicated that, after asking Day for his license and insurance, he had Day step out of his vehicle and explained why he was stopped. He said he then asked Day for consent to search his person and his vehicle. He related that Day consented for him to search his person but not his vehicle. Corporal Kelly recalled that Day was a little bit nervous and that he kept fidgeting around. He said that he told Day a couple of times to calm down. Corporal Kelly testified that he decided to call for canine backup as soon as Day refused consent to a search of his vehicle. He acknowledged that Day had a valid driver=s license and that nothing was found during the search of his person.

On cross-examination, Corporal Kelly testified that he saw Day=s vehicle at the house for two to three minutes but that he did not know if Day had been there a long time or had come and stayed just for that period of time. While Corporal Kelly acknowledged that it had probably been six months since he had searched the house, he related that Awe=ve stopped traffic leaving there and gotten heroin off of traffic leaving the house.@ He related that, the night before he stopped Day, Awe got a car leaving with heroin@ and that the week before other members of his unit got a car leaving and got heroin out of it.

Corporal Kelly indicated that, after he stopped Day, he was asking Day where he was coming from and where he was headed. He stated that he explained to Day that the house that he parked in front of was Aa known narcotics residence.@ He acknowledged that what he was talking to Day about was not related to the traffic stop. He testified that Day was being detained but was not under arrest at that point. He said he could not recall if he had any intention of issuing Day a citation for the traffic stop. He related that at that point he was detaining Day because he Awas changing it into a narcotics investigation.@ He insisted that Day could not give him any particular reason why he was at the house in question. He stated that he believed there was a suspicion of narcotics activity. Corporal Kelly indicated that he stopped Day about 6:36 p.m. and that the Canine Unit arrived at approximately 7:04 p.m.

In response to a question from the trial court, Corporal Kelly testified that the Canine Unit did an open air search around Day=s vehicle and that no one entered the vehicle until the dog alerted to the vehicle. He acknowledged that the dog went into the vehicle once it Ahit on the vehicle.@

Jesse Garcia, another corporal with the Odessa Police Department, testified that Day was nervous and shaking after Corporal Kelly had asked him to get out of his car. Andy Blackburn, an officer with the Odessa Police Department assigned to the Canine Unit, testified that he was called out by the Street Crimes Unit to do an open air search around Day=s vehicle. He said that, after the dog responded to the driver=s door, he opened the door and let the dog into the vehicle. He related that the dog then alerted to a paper towel in the cup holder where he found a quantity of heroin. He said he arrived at the scene about 7:00 p.m.

Day does not contest the validity of the initial stop for a traffic violation but contends that his detention, from the time Corporal Kelly turned the traffic stop into a narcotics investigation until the Canine Unit arrived, was an illegal seizure. If a valid traffic stop evolves into an investigative detention concerning other criminal activity so that a canine sniff can take place, reasonable suspicion is required to prolong the detention. Haas, 172 S.W.3d at 52. Day=s vehicle was parked at a residence that Corporal Kelly characterized as a Anarcotics residence,@ noting that just the day before heroin had been found on someone coming from the residence. Day had been unable to offer any explanation as to why he had been at that residence, and he was shaking and acting so nervous that Corporal Kelly had tried to calm him down. We hold that under the circumstances Corporal Kelly had a reasonable suspicion that justified Day=s detention until the Canine Unit arrived at the scene. See Haas, 172 S.W.3d 42.

Day relies on several cases to support his view that his detention pending the arrival of the Canine Unit was unreasonable and, therefore, violative of the Fourth Amendment. These primarily include Ohio v. Robinette, 519 U.S. 33, 45 (1996); Florida v. Royer, 460 U.S. 491, 500 (1983); United States v. Brigham, 382 F.3d 500 (5th Cir. 2004) (en banc); Kothe v. State, 152 S.W.3d 54, 65 (Tex. Crim. App. 2004); and Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). We have examined each of these authorities and find some to be distinguishable, some supportive of our opinion, and some irrelevant.

In Royer, the Court found that officers had a reasonable suspicion sufficient to justify a temporary detention of the defendant where he had a discrepancy in his airline ticket and baggage tags in that they did not match his driver=s license, which bore his correct name; he paid cash for a one-way ticket; he did not put an address and phone number on his baggage identification; he paid in cash for his ticket with a large number of bills; and he appeared pale and nervous, looking around at other people. Royer, 460 U.S. at 502. The Court held that, when he was taken to a separate room in the airport where he was alone with two police officers who had obtained his luggage without his consent, the detention was transformed into an arrest. Id. Subsequently, the Court concluded that there was not probable cause for such an arrest. Id.at 507. Interestingly, the Court suggested that officers, rather than arresting the defendant, could have held him until a dog was obtained to sniff his luggage. Id.at 505-06. Also, in the case at bar, officers did not take Day or his property to a room containing police officers. We find that Royer supports and is not inconsistent with our opinion.

In Davis, the defendant was originally stopped for suspicion of driving while intoxicated. Davis, 947 S.W.2d at 241. After officers determined that the defendant was not intoxicated, they detained his automobile pending the arrival of a Canine Unit. Id. The court held that there were no facts to justify a reasonable suspicion necessary to detain the vehicle after it had been determined that the defendant was not intoxicated: the officers had released the defendant, knew that the vehicle was not stolen, and had not detected an odor of drugs or alcohol. Id. at 245-46. Unlike the case at bar, in Davis there was no indication that the defendant had come from a location known to be a distribution point for narcotics.

In Kothe, the court held that a police officer=s decision to return to his vehicle and wait a few minutes for the result of a warrant check before releasing the defendant, after determining that he was not intoxicated, was reasonable as a matter of substantive Fourth Amendment law. Kothe, 152 S.W.3d at 66. We find that Kothe supports and is not inconsistent with this opinion.

In Brigham, the court concluded that evidence of liquid codeine found after a consensual search was admissible because a police officer who stopped a vehicle for a traffic violation acted reasonably in detaining the occupants for nearly thirty minutes where circumstances suggested the car might be stolen and where the occupants had fake IDs and gave conflicting stories as to their travel. Brigham, 382 F.3d at 504-05, 509. We find that Brigham supports and is not inconsistent with our opinion. The only difference suggested by Day is that in Brigham the officer was waiting for ID checks, whereas in the case at bar the officer was waiting for a Canine Unit. There is nothing in Brigham that suggests the result would have been different had the officer in that case waited a reasonable time for a Canine Unit. Such a unit was unnecessary in Brigham because the search in that case was consensual. Id. at 505.

In Robinette, the Court held that a police officer who asked for a consent to search during a traffic stop after the officer no longer had reasonable suspicion to justify continued detention did not need to tell the person stopped that he was free to go before obtaining consent for a search. Robinette, 519 U.S. at 36, 39-40. This opinion does not resolve the issue before us. As we have noted, there were no facts in Robinette supporting any continued detention, and the defendant in that case consented to the search. As we have previously noted, in the case at bar there were facts, including the defendant=s nervousness and his failure to give any explanation as to why he was at a residence known to be a narcotics distribution point just prior to the stop, that supported his detention until the arrival of the Canine Unit.

Day suggests that the trial court erred by denying his motion because his testimony that he was never in the house but had only been visiting a friend in a park across the street was uncontroverted. Day did not testify at the hearing on the motion to suppress. Rather, he testified at trial after the heroin had been admitted into evidence. We will only review evidence that was before the trial court when it was asked to render a decision on this matter. Jones v. State, 944 S.W.2d 642, 650-51 (Tex. Crim. App. 1996). Even if we were to consider Day=s testimony in evaluating this point on appeal, we note that he admitted that he parked at the residence in question and that the friend he visited in the park was the occupant of that residence. He also acknowledged that he had a prior felony conviction and that he could not say how someone could have at least $260 worth of drugs in their vehicle leaving a place known to distribute heroin and not know that it was there in the cup holder. Even if the trial court were required to believe Day, which it was not, we still maintain the record reflects evidence in support of the trial court=s implicit finding that there was reasonable suspicion to justify detaining Day until the Canine Unit arrived. We overrule Day=s sole point on appeal.

The judgment is affirmed.

PER CURIAM

January 25, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.