Alvin Gerard Piper v. The State of Texas--Appeal from 188th District Court of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00113-CR

______________________________

ALVIN GERARD PIPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 28844-A

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Alvin Gerard Piper appeals from his conviction on his guilty plea for possession with intent to deliver between four and 200 grams of cocaine, and his sentence of twenty-five years' imprisonment. Piper complains that, at the pretrial hearing, the trial court improperly ruled that the search of the vehicle was proper and also argues that his trial counsel was ineffective. We affirm the judgment of the trial court.

The evidence shows that Piper was a passenger in a car driven by Robert Taylor and owned by Robert and Lynrell Taylor. Robert Taylor was stopped for a traffic violation. The officer asked Taylor for his driver's license. Taylor produced Piper's license, and then could not produce a valid license. While questioning both of them, the officer saw cigar tobacco on the floor of the car, with bits of the wrapping. He thought it likely they had hollowed out a cigar to stuff with marihuana, making a "blunt." The officer asked permission to search. Taylor refused. The officer walked his drug dog around the car. The dog alerted. The officers searched the car and found a brick of marihuana in a cooler and a kilogram of cocaine under the passenger's seat.

Both occupants were arrested, and when searched at the jail, officers found fifty-six grams of cocaine on Piper's person. Although Piper was originally charged with possession of the kilogram of cocaine, the State proceeded only on the lesser amount, and Piper was convicted for possession of the cocaine found on his person.

Motion to Suppress

At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses, and our review of the ruling is limited to a determination of whether the trial court abused its discretion. The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact-findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We are also to afford such deference to a trial court's ruling on the "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. However, where the underlying facts are undisputed, mixed questions of law and fact must now be reviewed de novo. Hernandez v. State, 957 S.W.2d 851 (Tex. Crim. App. 1998); see Guzman, 955 S.W.2d at 87, 89.

Piper argues that the trial court abused its discretion by finding the search of the car to be lawful. He reasons that, if the officer had not searched the car, then he would not have been arrested and searched and thus, the cocaine on his person would never have been discovered. A similar situation was discussed by the Texas Court of Criminal Appeals in Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). In that opinion, the court recognized that, in a situation where a passenger was arrested,

regardless whether appellant's arrest was illegal, he cannot claim a violation of any legitimate, reasonable expectation of privacy as a result of the search and seizure of the vehicle or its other occupants. "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978). See also Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985).

Id. As in Hughes, in this case, Piper claims no possessory interest in the vehicle itself or in those items seized from within it. With regard to those items, Piper endured no infringement of any right ensuring freedom from unreasonable searches and seizures. Accordingly, he had no standing to complain about the search of the vehicle. See Freeman v. State, 62 S.W.3d 883, 889 (Tex. App. Texarkana 2001, pet. ref'd).

Piper further complains of his arrest and the admission of evidence found on his person. Again, as in Hughes, the facts surrounding his arrest show police were justified in conducting a warrantless arrest and, therefore, those items were admissible as evidence. As a general rule, police officers must obtain an arrest warrant before taking someone into custody. Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). However, statutory exceptions do exist and, in the case at bar, circumstances demonstrate that the justification to arrest without a warrant arose from Article 14.01(b). Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977).

Article 14.01(b) provides that a peace officer may arrest an individual without an arrest warrant for any offense committed in the presence or view of the officer. This is true no matter how trivial the offense. State v. McCray, 986 S.W.2d 259, 264 (Tex. App. Texarkana 1998, pet. ref'd) (arrest upheld for failure to dim headlights of an automobile to oncoming traffic in violation of Section 547.333 of the Texas Transportation Code). As we have previously held, Piper had no standing to object to the search of Taylor's vehicle. The search of the vehicle revealed that it contained a kilogram of cocaine underneath the passenger's seat and a cooler containing a brick of marihuana located in the back seat. The United States Supreme Court has recently held that the occupants of a vehicle may be arrested when narcotics are discovered within the common areas of the vehicle. Maryland v. Pringle, ___ U.S. ___, 157 L. Ed. 2d 769 (2003). Piper was arrested under circumstances which reasonably showed he was guilty of the felony offense of possession of a controlled substance. The officer was authorized to arrest Piper without a warrant because the possession of the drugs in the vehicle and underneath Piper's seat were personally observed. See Hennessey v. State, 732 S.W.2d 387, 390 (Tex. App. Houston [14th Dist.] 1987, pet. ref'd). This provided the authority to arrest Piper without a warrant because the discovery of the drugs was probable cause for the arrest. See McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003); Rice v. State, 753 S.W.2d 726, 729 (Tex. App. Beaumont 1998, pet. ref'd). After Piper was lawfully arrested, he was properly subject to a search incident to the arrest. See McGee, 105 S.W.3d at 615.

Reasonable Suspicion for Detention

Piper also argues that the evidence was insufficient to show the officer had the probable cause necessary to detain the driver beyond the time it took him to complete his investigation of the traffic violation. The only evidence concerning the length of time of the stop was that about twenty minutes elapsed between the traffic stop and the discovery of the contraband.

A traffic stop is treated as being a Fourth Amendment seizure analogous to a temporary detention. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). The detention may last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). A detention becomes unreasonable when it is not reasonably related in scope to the circumstances which justified the detention in the first place. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); State v. Daly, 35 S.W.3d 237, 241 (Tex. App. Austin 2000, no pet.).

If the detention is prolonged, it can no longer be considered an investigative stop; but there is no rigid or specific time limitation on the permissible length of an investigative stop. The question is fact-intensive, and the propriety of the stop's duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to quickly dispel or confirm their suspicions. United States v. Sharpe, 470 U.S. 675, 686 (1985). That extended time of detention must be justified by articulable facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that a continued detention was justified, i.e., the detainee was or would soon be engaged in criminal activity. Davis, 947 S.W.2d at 244 45; Herrera v. State, 80 S.W.3d 283, 288 (Tex. App. Texarkana 2002, pet. ref'd). In other words, once the purpose of the original detention has been effectuated, any continued detention must be supported by some additional reasonable suspicion, that is, something out of the ordinary is occurring and there is some indication the unusual circumstance is related to a crime. See Davis, 947 S.W.2d at 244 45; Herrera, 80 S.W.3d at 288.

In this case, the officer testified that Taylor attempted to identify himself using Piper's driver's license and that Taylor had no license of his own. The officer also testified that, while he was talking to Piper, he saw cigar wrappings and cigar tobacco on the floor of the car items typical of usage of marihuana in making a "blunt." At this time, the officer allowed his drug dog to sniff around the vehicle to detect drugs. We believe this action was authorized. 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 (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. The temporary detention of an automobile to allow an olfactory inspection by a police dog trained to detect the odor of illegal drugs is not offensive to the Fourth Amendment when based on a reasonable suspicion that the automobile contains narcotics. See id. The additional questioning extending the length of the detention was reasonable, considering the attempt of Taylor to use a false identification and his inability (or unwillingness) to produce his own identification, and the discovery of the "blunt" remains. The dog alert followed in quick succession. Under these facts, we find that the trial court could properly conclude the continued detention was justified by reasonable suspicion of criminal activity. Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App. Fort Worth 1998, no pet.). The contention of error is overruled.

Ineffective Assistance of Counsel

The standard of testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. 668; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that the attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

In this case, Piper contends counsel was ineffective because he did not attempt to subject the videotape of the stop to "meaningful adversarial testing." Piper argues that trial counsel should have objected to the tape because, when it became apparent that the tape was not an original and that it had the initials of another officer on the box, counsel nevertheless did not object and require the officer to verify the authenticity of the copy.

There is, however, nothing in the record to show that the videotape did not accurately portray the events of the scene of the search or that such an objection would have had any likelihood of being sustained. Accordingly, we cannot find that counsel was deficient by failing to object.

Piper also argues that trial counsel was ineffective because he did not argue to the trial court that Piper's seizure as a result of the traffic stop gave him standing to seek suppression. We have addressed that matter above. There is no evidence to show that Piper did have standing to seek to suppress the items discovered as a result of the traffic stop, and counsel did not render inadequate assistance by failing to raise an argument that cannot prevail.

Piper finally complains because trial counsel did not object to hearsay statements. Specifically, he complains about statements that were repeated by the testifying officer attributed to the other officer at the arrest site and to the jail personnel who processed Piper. He also complains because counsel did not object to leading questions asked of the officer to elicit information about the existence of a trail car (apparently there was not one), and about the State's prompting of the officer to recount the events immediately following the stop: checking drivers' licenses and obtaining identities.

However, the Texas Rules of Evidence, except with respect to privileges, do not apply when the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104. Tex. R. Evid. 101(d)(1)(A). Rule 104 states that "[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . . In making its determination the court is not bound by the rules of evidence except those with respect to privileges." Tex. R. Evid. 104(a).

Suppression hearings involve the determination of preliminary questions concerning the admissibility of evidence. Therefore, the Texas Rules of Evidence, with the exception of privileges, do not apply to suppression hearings. Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002). The hearsay objections would have been fruitless. Counsel was therefore not ineffective in failing to object.

The other complained-of questions by the State were arguably leading in nature. Even if they were, however, for the reason stated above, leading questions are not objectionable in this context. Tex. R. Evid. 104(a), 611(c).

Piper finally complains because counsel did not more rigorously question the officer about the specifics of the lane change and failure to signal. However, inasmuch as counsel has failed to show or suggest what the officer's testimony would have been, and inasmuch as our record does not contain the reason why trial counsel did not ask further questions, Piper has failed to show that his counsel was ineffective for failing to ask further questions and has failed to show that, if his counsel had asked more questions, the result of his trial would have been different. See Davis v. State, 119 S.W.3d 359, 370 (Tex. App. Waco 2003, pet. ref'd). The contention of error is overruled.

We affirm the judgment.

Jack Carter

Justice

Date Submitted: July 14, 2004

Date Decided: August 25, 2004

Do Not Publish