THE STATE OF TEXAS, Appellant v. GREGORY DAVID PIERCE, Appellee

 
AFFIRMED and Opinion filed July 31, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00828-CR
............................
THE STATE OF TEXAS, Appellant
V.
GREGORY DAVID PIERCE, Appellee
.............................................................
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82675-06
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OPINION
Before Justices Moseley, Francis, and Lang
Opinion By Justice Moseley
        Gregory David Pierce was indicted for possession of four grams or more but less than 200 grams of methamphetamine with intent to deliver. Pierce filed a pretrial motion to suppress evidence, challenging his detention and search as illegal. After a hearing, the trial court granted the motion. Upon the request of both parties, the trial court issued its findings of fact and conclusions of law. In one point of error, the State claims the trial court erred in granting Pierce's motion. For the following reasons, we affirm.
 
Standard of Review
 
        We apply a bifurcated standard of review to a ruling on a motion to suppress, giving almost total deference to the trial court's determination of the facts, particularly when the finding involves an evaluation of a witness's credibility and demeanor. Carmouche v. State, 10 S.W.3d 323, 328, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same deference to mixed questions of law and fact if resolving those ultimate questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. However, mixed questions of law and fact that do not turn on credibility and demeanor are reviewed de novo. Id.
Facts
 
        The record contains evidence that Pierce was driving northbound on Highway 75 at 3:15 a.m. on May 18, 2006, when Officer Spano clocked him as traveling 68 miles per hour in a 65 mile per hour speed zone. Spano activated his lights and stopped Pierce. Spano testified that Pierce bypassed several suitable places to stop before pulling over, which Spano considered an indication that either Pierce or his passenger might be attempting to get access to a weapon or to conceal contraband.
        Spano approached the vehicle and separately questioned Pierce and his passenger, a young man named Richard. Pierce said they had been visiting a mutual friend in Dallas and they were driving to Sherman. Richard said they had been visiting a person (whose name he could not remember) in Plano and they were driving to Sherman. Pierce later said they were coming from Plano, also. Richard admitted being arrested previously for burglary and methamphetamine use, while Pierce admitted being arrested previously for assault and DWI. Spano noticed that Richard appeared exceedingly nervous and had numerous open sores on his body, which Spano recognized as indicative of methamphetamine use.
        At 3:25 a.m., Spano returned to his patrol car and ran Pierce's and Richard's criminal histories. He discovered Pierce had an outstanding felony warrant out of California and three narcotics arrests. Spano contacted his dispatcher to see if California wanted to extradite Pierce on the warrant. Spano returned to Pierce's vehicle and patted down both Pierce and Richard for weapons, finding none. When Spano asked Pierce about the narcotics arrests, Pierce admitted them, but said that he had not been convicted.
        At 3:30 a.m., Spano asked for consent to search Pierce's vehicle. Pierce asked why he had been stopped, and, for the first time, Spano told him he had been stopped for speeding. Pierce denied consent to search his vehicle.
        At 3:31 a.m., Spano requested a canine unit to be sent to the scene. One minute later, Spano learned California would not seek extradition on the warrant. Five minutes after that, at 3:37 a.m., Spano told Pierce he was going to issue him a warning ticket for speeding; Spano testified it usually takes three to five minutes to complete such a ticket. The trial court found Spano completed the warning ticket no later than 3:45 a.m., but he did not issue the ticket to Pierce because he was waiting for the canine unit to arrive.
        At 3:50 a.m., the canine unit arrived, a sniff of the vehicle was conducted, and the canine alerted to the driver's side door. At 3:56 a.m., the police searched the vehicle and found thirty-eight grams of methamphetamine in the center console.
        The trial court's conclusions of law stated that Spano's initial stop of the vehicle was justified based on a reasonable suspicion that Pierce was speeding. As part of the initial stop, Spano was also authorized to check for warrants and criminal histories. However, once California refused to extradite, Spano was not authorized to extend the detention past the time it would take to write the warning ticket. The trial court concluded the reasons given by Spano were an insufficient basis to indicate that some activity out of the ordinary was occurring or had occurred and that any unusual activity, should any exist, was related to criminal activity. Thus, the trial court granted Pierce's pretrial motion to suppress the evidence because the detention and search were unreasonable and unlawful.
Applicable Law
 
        An officer may lawfully stop and reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); see Terry v. Ohio, 392 U.S. 1, 21 (1968). Similarly, an officer may briefly detain a person for investigative purposes if, under the totality of the circumstances, the officer has a reasonable suspicion supported by facts that the person detained is, has been, or soon will be engaged in criminal activity. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997) (citing Terry, 392 U.S. at 30).
        Generally, an investigative stop can last no longer than necessary to complete the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In a routine traffic stop, that purpose can include requesting certain information from a driver, such as a driver's license and car registration, and conducting a computer check on that information. Id. It is only after this computer check is completed, and the officer knows that this driver has a currently valid license, no outstanding warrants, and the car is not stolen, and the officer, at his discretion, issues a citation, that the traffic-stop investigation is fully resolved. Id. at 62 n.36 (citing United States v. Zabalza, 346 F.3d 1255, 1259 (10th Cir. 2003)). It is at this point that the detention must end, and the driver must be permitted to leave. Id. at 63-64.
        However, a detention may be prolonged beyond the point at which the purpose of the initial stop is complete if there is reasonable suspicion to believe another offense has been or is being committed. Lambeth v. State, 221 S.W.3d 831, 836 (Tex. App.-Fort Worth 2007, pet. ref'd). Reasonable suspicion permits an officer to detain a person on less than probable cause to investigate possible criminal behavior when the officer points to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention. See Carmouche, 10 S.W.3d at 328-29. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, and that the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex. Crim. App. 1983). The stop may not be used as a “fishing expedition for unrelated criminal activity.” Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996) (Ginsberg, J., concurring)).
Discussion
 
        Here, the purpose of the traffic stop was speeding. Spano was authorized to conduct an investigative stop for as long as it was necessary to complete the purpose of the stop. Kothe, 152 S.W.3d at 63; see Lambeth, 221 S.W.3d at 336. Accordingly, Spano requested information from Pierce to run a license and warrants check. Although Pierce's license was valid and the car was not stolen, Spano learned that Pierce had an outstanding warrant out of California. However, once Spano learned that California did not want to extradite Pierce on the warrant, the traffic stop investigation was fully resolved. At that point, Spano was not authorized to extend the detention past the time it would take to write the warning ticket, see Kothe, 152 S.W.3d at 63-64, unless Spano had reasonable suspicion to believe another offense has been or is being committed. Lambeth, 221 S.W.3d at 836.
        The State contends that the trial court erred in granting Pierce's motion to suppress because the totality of the circumstances was sufficient to create a reasonable suspicion in Spano that another offense has been or was being committed, making the extended detention to await the canine unit reasonable. These circumstances included the early hour of the stop; the time Pierce took to pull over; Pierce's and Richard's somewhat inconsistent stories about where they had been; Richard's nervous behavior during the stop and history of drug use; and Pierce's lying about his criminal history.
        These facts are similar to those in Davis. There, police officers stopped an auto on suspicion of DWI, and extended the detention of a motorist and his passenger after the purpose of the traffic stop had been completed. The court of criminal appeals, quoting the majority opinion of the lower court,   See Footnote 1  noted that the stop took place late at night, and that the travelers told inconsistent stories about where they were going and appeared nervous. Additionally, the passenger had been arrested and convicted for a drug offense. Davis, 947 S.W.2d at 242. Although the officers had not detected an odor of alcohol or drugs on the motorist or emanating from the vehicle, they called in a canine unit and found marijuana in the trunk. Id. at 241-42.
        The court of criminal appeals concluded such facts did not support Davis's continued detention:
 
The continued detention of appellant was based upon the officer's conclusion that appellant did not appear to be someone who was on a business trip. However, this conclusion was not based upon articulable facts which, taken together with rational inferences from those facts, would warrant a man of reasonable caution in the belief that continued detention was justified. Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880. Indeed, when viewed in an objective fashion, no known fact, or rational inferences from those facts, would support the conclusion that appellant was engaged in or soon would engage in criminal activity. Crockett [v. State], 803 S.W.2d [308,] 311 [Tex. Crim. App. 1996)]. . . .
 
Id. at 245.
        As in Davis, here the facts and the reasonable inferences drawn therefrom are insufficient to support the conclusion that Pierce was engaged in or soon would engage in criminal activity; the suspicious conduct relied upon by Spano was as consistent with innocent activity as with criminal activity. See id. at 244-45; see also Carmouche, 10 S.W.3d at 328-39. Therefore, we reject the State's argument.         We conclude Spano lacked reasonable suspicion to continue the detention beyond the time necessary to complete the initial purpose of the stop. See St. George v. State, 237 S.W.3d 720, 727 (Tex. Crim. App. 2007); Kothe, 152 S.W.3d at 63; see also Lambeth, 221 S.W.3d at 336. Thus, Pierce's continued detention beyond that time was unreasonable. See St. George, 237 S.W.3d at 727; Kothe, 152 S.W.3d at 63. We overrule the State's single point of error and affirm the trial court's July 16, 2007 Amended Order on Motion to Suppress Evidence with Findings of Fact and Conclusions of Law.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070828F.U05
 
 
Footnote 1 Davis v State, 923 S.W.2d 781, 789 (Tex. App.-Beaumont 1996).