John Smithwick v. The State of Texas--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00024-CR

John Smithwick,

Appellant

v.

The State of  Texas,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court # 03-10608-CR

MEMORANDUM Opinion

Charged with possession of marihuana, John Smithwick filed a motion to suppress the evidence because the arresting officer did not have reasonable suspicion to perform a protective search of his vehicle. The trial court denied Smithwick s motion. We affirm.

Background

As State Trooper Robert Bernard Jr. was driving on US 287 toward the intersection of US 287 and Reagor Springs Road, he observed a pick-up truck, driven by Smithwick, stopped at a stop sign on Reagor Springs Road. Smithwick entered the intersection before Bernard had completely passed through it, interrupting the flow of traffic and causing Bernard to take evasive action. Bernard turned around, activated his lights, and began to pull Smithwick over. As he was doing so, he observed Smithwick inside the truck moving toward the right side of the truck. Bernard testified that Smithwick s hand and arm went to the right side of the vehicle followed by his body, and that this furtive gesture caused him to suspect Smithwick was hiding something. Once both vehicles were stopped, Smithwick immediately began to get out of the vehicle. Bernard asked him if he was trying to hide something, and then ordered Smithwick back into the vehicle. After asking some questions, Bernard then had Smithwick get out of the vehicle and move to a safe place away from the road. Bernard entered the passenger side of Smithwick s vehicle, and conducted a protective sweep. During his search, Bernard observed a marihuana cigarette in plain view in an ashtray. Smithwick was charged with possession of marihuana, less than two ounces.

Smithwick filed a motion to suppress the marihuana claiming that the protective search was invalid. The trial court denied the motion, and Smithwick entered a plea of guilty subject to the outcome of his appeal. Smithwick was sentenced to six days incarceration and a $500 fine.

Reasonable Suspicion

On appeal, Smithwick argues in his sole issue that the trial court erred in denying his motion to suppress because the stop and search were illegal.

The ruling of a trial court on a motion to suppress will not be set aside absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985); Simmons v. State, 100 S.W.3d 484, 489 (Tex. App. Texarkana 2003, pet. ref d). Law enforcement officers may stop and detain an individual if they have reasonable suspicion to believe that the individual is violating the law. Ford v. State, 2005 Tex. Crim. App. Lexis 399, **7-8 (Tex. Crim. App. Mar. 9, 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id.

In making this determination, we look to the totality of the circumstances. Lemons v. State, 135 S.W.3d 878, 883-84 (Tex. App. Houston [1st Dist.] 2004, no pet.). We give almost total deference to the trial court s determination of facts and review de novo the trial court s application of law to facts. Ford, 2005 Tex. Crim. App. Lexis at *8; Newhouse v. State, 53 S.W.3d 765, 768 (Tex. App. Houston [1st Dist.] 2001, no pet.). Accordingly, we review the evidence in the light most favorable to the trial court s ruling. Ford, 2005 Tex. Crim. App. Lexis at *8; Newhouse, 53 S.W.3d at 768.

Bernard had reasonable suspicion to stop and detain Smithwick. Bernard observed Smithwick failing to yield at an intersection, and a videotape admitted into evidence depicts this fact. Also, failing to yield is a violation of Texas law. See Tex. Transp. Code Ann. 545.151(a) (Vernon Supp. 2004); Tex. Transp. Code Ann. 542.302 (Vernon 1999).

However, simply because an officer has reasonable suspicion to detain a vehicle does not automatically give him leave to search the vehicle for weapons.[1] Tucker v. State, 135 S.W.3d 920, 922-26 (Tex. App. Amarillo 2004, no pet.). The officer must also have a reasonable suspicion, based on specific and articulable facts, that his safety or the safety of others is in danger before he may conduct a limited search for weapons. Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (holding that a weapons search is only justified where the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon ). A court looks to whether a reasonably prudent officer in the same circumstances would be warranted in believing that his safety or the safety of others is in danger. Michigan v. Long, 463 U.S. 1032, 1050-51, 103 S. Ct. 3469, 3481-82, 77 L. Ed. 2d 1201 (1983); McCraw v. State, 117 S.W.3d 47, 55 (Tex. App. Fort Worth 2003, pet. ref d). The subjective beliefs of the officer performing the search are not determinative. See O'Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000).

The State points to two facts that it says gave Bernard reasonable suspicion to believe that Smithwick was potentially in possession of a weapon: the furtive[2] gesture and Smithwick s rapid exit from the vehicle. Bernard testified that because Smithwick made a furtive gesture, moving towards the passenger side of the vehicle before the truck had completely pulled over to the shoulder of the road, he suspected that Smithwick was attempting to hide something. When Smithwick attempted to exit the vehicle immediately upon stopping, Bernard testified that he was suspicious that Smithwick wanted to keep Bernard away from the vehicle and whatever he was attempting to hide there. The videotape of the stop depicts both these events as Bernard portrayed them in his testimony.

Smithwick argues that a furtive gesture alone is not sufficient to allow an officer to reasonably believe that a detainee is dangerous and may possess a weapon. By analogy he points to cases holding that a furtive gesture alone is not probable cause to search a vehicle. See Howard v. State, 599 S.W.2d 597 (Tex. Crim. App. 1979); Jenkins v. State, 76 S.W.3d 709 (Tex. App. Corpus Christi 2002, pet. ref d). However, there are numerous cases that hold that in the absence of a furtive gesture, there is no reasonable suspicion to conduct a protective search. Tucker, 135 S.W.3d at 924;McCraw, 117 S.W.3d at 55; In re A.T.H., 106 S.W.3d 338, 347 (Tex. App. Austin 2003, no pet.); Davis v. State, 61 S.W.3d 94, 97 (Tex. App. Amarillo 2001, no pet.).

In this case, there is not only a furtive gesture, but also a quick exit from the vehicle that could have given a reasonably prudent officer reasonable suspicion to believe that his safety was in danger. Carmouche, 10 S.W.3d at 329. Therefore, we cannot say that the trial court abused its discretion in denying Smithwick s motion to suppress. See Maddox, 682 S.W.2d at 564. Accordingly, we overrule Smithwick s sole issue.

Conclusion

We affirm the judgment of the trial court.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 20, 2005

Do not publish

[CR25]

[1] The State argues that because Bernard was authorized to arrest Smithwick on the traffic offense, the search of his vehicle was valid as a search incident to an arrest. However, traffic stops are comparable to temporary detentions and not arrests. See Tucker v. State, 135 S.W.3d 920, 922-26 (Tex. App. Amarillo 2004, no pet.). Accordingly, detaining a person for a traffic offense alone does not entitle the officer to search the vehicle as a search incident to an arrest. Id.

[2] Furtive gestures are generally defined as those which are surreptitious, underhanded, or done by stealth. Webster s Collegiate Dictionary 474 (10th ed., Merriam-Webster, Inc. 1993).