The State of Texas v. Jim Brownson--Appeal from County Court at Law No. 1 of Hays County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00758-CR
The State of Texas, Appellant
v.
Jim Brownson, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
NO. 41,565, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING

PER CURIAM

 

The State appeals from an order of the county court at law granting appellee's motion to suppress evidence. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 1995). The underlying prosecution is for possession of marihuana.

The marihuana in question was seized during a search of appellee's truck following a traffic stop. Appellee's written motion to suppress urged that the "stop, arrest and subsequent search and seizure were without probable cause and in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution." The motion further asserted that appellee's statements to the arresting officer "were not prefaced by proper warnings under the Fifth Amendment to the United States Constitution and Article 38.22 of the Texas Code of Criminal Procedure [Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp 1995)]" and "were obtained in violation of Defendant's rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and in violation of Article I, Sections 9 (unreasonable search and seizure), 10 (freedom from giving compelled evidence, and right to counsel), and 19 (due process) of the Texas Constitution." The motion sought the suppression of "all unlawfully obtained evidence, including but not limited to statements."

The only witness at the hearing on appellee's motion to suppress was Hays County deputy sheriff Russell Weirich, and there is no dispute as to the relevant facts. On June 30, 1994, Weirich was on routine patrol near Dripping Springs when he was passed by a truck driven by appellee. Weirich could see that appellee was not wearing his seat and shoulder belt. Weirich stopped appellee for this traffic offense.

 

Q [By prosecutor] And what happened next?

 

A After I initiated the traffic stop Mr. Brownson exited his vehicle and I met him at the rear of it. At that time I had asked him if he had any contraband or weapons inside the vehicle, and he had stated that he did have some marihuana in the console of his vehicle.

 

Q Why did you ask him whether or not he had any contraband or weapons in the vehicle?

 

A When somebody meets me at the rear of the vehicle it's my policy that I ask them if they have anything in the front of the vehicle such as contraband or weapons before I will let them re-enter the vehicle.

 

Q And what did he indicate to you?

 

A He indicated that there was marihuana in the console.

 

Q Okay. As best as you can remember what specifically did he say?

 

A To my best recollection he said that there was some marihuana in a can in the console.

 

Q Okay. And what did you do in response to this?

 

A In response to this I went to the driver's compartment and I opened the console, observed a small can, removed the can and opened it and observed a pipe and some marihuana in the can.

 

Weirich was cross-examined by defense counsel.

 

Q So the very first thing that you did was start talking about whether there was contraband or weapons in the vehicle?

 

A Yes, sir.

 

Q At that stage you had him -- or he was out of his car, right, and you --

 

A Yes, sir.

 

Q You wouldn't have let him leave at that point, would you?

 

A No, sir.

 

Q Until he answered your question, right?

 

A Yes, sir.

 

Q You never did tell him before he answered any questions that he had a right not to answer any questions, did you?

 

A No, sir.

 

Q You never told him he had a right to a lawyer or a right to -- or that you might use anything he said against him in a court of law, did you?

 

A No, sir.

 

Q So basically you got out and you started asking him questions -- he got out and you started asking him questions that -- and based on those answers that he gave you you seized the marihuana, right?

 

A Yes, sir.

 

. . .

 

Q You never had a search warrant to do anything that you did that day, did you?

 

A No.

 

. . .

 

Q Did you ever ask him to sign one of those [consent to search forms]?

 

A No.

 

In his closing comments, defense counsel summarized appellee's position as follows:

 

What I think we have here, Judge, is a violation of my client's rights under Article 1, Section 9, and more particularly under Article 38.22 of the Texas Code of Criminal Procedure.

 

We have an officer who stopped my client for a traffic stop and immediately begins interrogation. He's detained and he begins interrogation, never has warned him of his rights, and he says it's for his safety. Now I could see where it might be for his safety to ask about weapons in the car, but I certainly don't see that marihuana or any other kind of drugs have anything to do with his safety. They have something to do with him investigating a crime, which is possession of marihuana.

 

So he was asking him questions about -- to obtain evidence in this case and never did read him any rights, never told him he had a right to refuse to answer any questions. And then after that he never did obtain any sort of consent to search the vehicle, he just proceeded to search the car, seize the evidence, and here we are. And I think it's a clear violation of Article I, Section 9 and article -- Article 38.22 of the Texas Code of Criminal Procedure.

 

The prosecutor responded to this argument by urging that appellee's statement to the officer was not the product of custodial interrogation and therefore article 38.22 did not apply. The prosecutor further argued that the statement "indicated that [appellee] was in criminal possession of a controlled substance" and justified the search of his vehicle.

At the conclusion of counsels' remarks, the court announced, "With regards to the motion to suppress, this motion is granted." The court made a similar notation on the face of the motion. The court did not make oral or written findings of fact or conclusions of law. We will disturb the suppression order only if it exceeded the limits of the court's discretion. State v. Williams, 814 S.W.2d 256, 258 (Tex. App.--Austin 1991), aff'd, 832 S.W.2d 52 (Tex. Crim. App. 1992).

In its first point of error, the State urges that the county court at law had no basis for concluding that the initial stop was unlawful because appellee's failure to wear a seat belt was an offense for which the officer was authorized to detain and ticket appellee. Tex. Rev. Civ. Stat. Ann. art. 6701d, 107C (West Supp. 1995). In his reply brief, appellee suggests that the court may have concluded that Weirich used the observed traffic offense merely as a pretext to stop him. Under the pretext arrest doctrine, an objectively valid stop for one offense is rendered invalid if the officer was motivated by a desire to investigate the individual stopped for a different offense. Garcia v. State, 827 S.W.2d 937, 939-40 (Tex. Crim. App. 1992).

There is no evidence that Weirich knew appellee or had any reason to suspect he was in possession of marihuana before stopping him, and thus there is no basis in the record for concluding that the traffic stop was pretextual. Moreover, the pretext arrest doctrine is no longer applied in Texas. An objectively valid traffic stop is not rendered unlawful under either the United States or Texas constitution just because the detaining officer had some ulterior motive for making it. Crittenden v. State, 899 S.W.2d 668, 674 (Tex. Crim. App. 1995) (Tex. Const. art. I, 9); Garcia, 827 S.W.2d at 944 (U.S. Const. amend. IV). The State's first point of error is sustained.

The principal issue at the hearing on appellant's motion to suppress was whether appellee's admission to Weirich was the product of unwarned custodial interrogation. Statements made during the custodial interrogation of a person who has not been advised of his rights are generally inadmissible as evidence. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp. 1995). At least one court of appeals has held that statements made in violation of Miranda cannot be considered in determining whether probable cause for a search existed. Taylor v. State, 874 S.W.2d 362, 365-66 (Tex. App.--Fort Worth 1994, no pet.). In its second point of error, the State argues that appellee's admission to Weirich that he had marihuana in his truck was not the product of custodial interrogation.

For the purposes of the Fifth Amendment as interpreted and applied in Miranda, a person temporarily detained pursuant to an ordinary traffic stop is not "in custody" and roadside questioning of a motorist so detained is not "custodial interrogation." Berkemer v. McCarty, 468 U.S. 420, 435-40 (1984). As used in article 38.22, "custodial interrogation" has the same meaning as it does under the Fifth Amendment. Wicker v. State, 740 S.W.2d 779, 785 (Tex. Crim. App. 1987).

In Loar v. State, 627 S.W.2d 399, 400 (Tex. Crim. App. 1982), the defendant was stopped for driving the wrong way on a one-way street. The police officer, noticing the defendant's lack of motor control, asked him if he had been drinking. The defendant replied, "One glass of wine." The Court of Criminal Appeals held that this statement was not the product of custodial interrogation and its admission in evidence was not a violation of Miranda or article 38.22. Other courts have reached the same conclusion on similar facts. Harrison v. State, 788 S.W.2d 392, 394 (Tex. App.--Houston [1st Dist.] 1990, no pet.); Bradeen v. State, 711 S.W.2d 263, 264 (Tex. App.--Dallas 1986, no pet.); see Linnett v. State, 647 S.W.2d 672, 675 (Tex. Crim. App. 1983); Adams v. State, 634 S.W.2d 785, 789 (Tex. App.--Austin 1982, no pet.) (routine traffic stop is not custodial arrest authorizing search incident to arrest).

As previously noted, there is no evidence that Weirich's stop of appellee's truck was anything other than what it objectively appeared to be: a routine traffic stop. Under the circumstances shown by this record, appellee was not in custody when Weirich asked him if he had contraband in his truck and his answer to the question was not the product of custodial interrogation. The State's second point of error is sustained.

Finally, the State contends the county court at law erred if it based its suppression order on the absence of a search warrant. Appellee's statement to Weirich that there was marihuana in the console of the truck unquestionably gave the officer probable cause to believe that contraband was concealed in the truck. A peace officer with probable cause to believe that a motor vehicle contains contraband may lawfully search those areas of the vehicle where the contraband might be concealed without first obtaining a warrant. United States v. Ross, 456 U.S. 798, 825 (1982); Chambers v. Maroney, 399 U.S. 42, 51-2 (1970); Delgado v. State, 718 S.W.2d 718, 723-24 (Tex. Crim. App. 1986); Christopher v. State, 639 S.W.2d 932, 935 (Tex. Crim. App. 1982). Appellee told Weirich that there was marihuana in a can in the console. Weirich searched for and found the marihuana exactly where appellee said it would be. We agree with the State that the absence of a warrant did not render this search unlawful. Point of error three is sustained.

In summary, Weirich was authorized to stop appellee for the observed traffic offense. This routine traffic stop was not an arrest and appellee was not in custody when he was asked if he had contraband in his truck. Appellee's admission to Weirich was not the product of custodial interrogation and gave the officer probable cause to search appellee's truck without a warrant. We cannot determine any legal basis on which the trial court could have suppressed the evidence. Therefore, the county court at law abused its discretion by granting appellee's motion to suppress evidence.

The order suppressing evidence is overruled and the cause is remanded to the county court at law for further proceedings.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Reversed and Remanded

Filed: August 16, 1995

Do Not Publish