Christopher Mark Akins v. The State of Texas--Appeal from 265th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-086-CR

CHRISTOPHER MARK AKINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 265th District Court

Dallas County, Texas

Trial Court # F93-63203-NR

O P I N I O N

Appellant Akins appeals from his conviction for possession of cocaine (under 28 grams), for which he was sentenced to five years in prison, probated, plus a $750 fine.

Appellant was indicted for possession of cocaine (less than 28 grams). He filed a motion to suppress evidence, a hearing was held on November 23, 1993, and the motion was denied. Thereafter, pursuant to a plea-bargain agreement entered on February 4, 1994, Appellant pled guilty and was sentenced to five years, probated, and fined $750. Appellant obtained consent from the trial court to appeal and he appeals on one point of error.

The trial court erred in denying Appellant's motion to suppress evidence as such evidence was obtained in violation of the Constitutions of Texas and the United States.

Appellant asserts the evidence, i.e, cocaine, found in his car by the officer after Appellant was stopped for speeding, was the result of an illegal search.

At the hearing to suppress, Officer Stradtman testified that he and Officer Clayton saw Appellant speeding on Singleton Road at 7:50 p.m. on June 23, 1993. The police officers activated the overhead lights of their patrol car and attempted to pull Appellant over to the side of the road. Appellant, instead of pulling over, continued to drive. Officer Stradtman testified that Appellant's failure to stop was by itself an unusual action. The officers, who were directly behind Appellant's car, then honked their horn repeatedly before Appellant pulled over to the side of the road. It took five blocks for Appellant to stop.

While following Appellant, Officer Stradtman testified he saw Appellant lean towards the passenger side of the car, reach downward with his right arm and hand, and appeared to be trying to hide something. While leaning toward the passenger side of the car, Appellant continually looked in the rear view mirror to watch the police car.

Based on these observations, Officer Stradtman testified that he was concerned that Appellant was trying to retrieve or hide a weapon. Once Appellant stopped, Officer Stradtman asked him to step out of the car. After Appellant was frisked for weapons, Officer Stradtman looked inside the car in the area Appellant had been reaching towards with his arm. Officer Stradtman testified he searched this area of the car because he was fearful Appellant had hidden a weapon there, and he was concerned for his safety. During Officer Stradtman's limited search in the area between the front seats of the car, he found a plastic baggie containing a white powdery substance which he believed to be cocaine. Appellant was arrested for possession of a controlled substance, and was thereafter indicted for cocaine possession.

Appellant filed a motion to suppress the evidence, i.e., cocaine, alleging the search and seizure were in violation of the Texas and U.S. constitutions. The motion was denied, Appellant later pled guilty pursuant to a plea bargain, and was sentenced to five years probation and a fine.

At the suppression hearing, the trial court is the sole trier of fact. The trial court is the judge of the credibility of the witnesses and the weight of the evidence. Gibbs v. State, 819 S.W.2d 821, 830-31 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 1205.

Because roadside encounters between police officers and suspects are essentially hazardous, a police officer is permitted to conduct a protective search of the car, limited to the area in which a weapon may be hidden, if he has a reasonable belief based on specific and articulable facts that the detainee may pose a danger to him. Goodwin v. State, 799 S.W.2d 719, 728 (Tex. Crim. App. 1990). The officer need only to have a reasonable belief, not probable cause, to conduct a self protective search. Worthy v. State, 805 S.W.2d 435, 437 (Tex. Crim. App. 1991).

These holdings are grounded in the common sense understanding that the detainee will generally be allowed to return to his car after a traffic stop, and that protection of the police and others can justify protective searches of the car.

Officer Stradtman provided the trial court with the following articulable facts leading to his conclusion that reasonable suspicion existed to conduct a limited weapon search: (1) Appellant failed to promptly pull his car over to the side of the road despite the police car's overhead lights being activated, the position of the police car directly behind, and the continued honking of the police car's horn; (2) during the attempt to stop Appellant, he was leaning towards the passenger side in an apparent attempt to secrete something in that area of the car; (3) while Appellant was leaning towards the passenger side and reaching downward with his arm and hand, he continually looked into his rear view mirrors and watched the police car; and (4) it took Appellant five blocks to pull his car over to the side of the road in response to the actions of the police officers.

Based on these facts, Officer Stradtman's suspicion and belief that Appellant was hiding a weapon and posed a threat to the safety of the police, was reasonable. The limited search of Appellant's car was legal, and the trial court properly denied Appellant motion to suppress the evidence obtained in the search. Lewis v. State, 502 S.W.2d 699, 702 (Tex. Crim. App. 1974).

Appellant's point of error is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 12, 1995

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