Green v. State

• Decision Date: 23 April 2008
• Docket Number: No. 10-07-00085-CR.,10-07-00085-CR.
• Citation: 256 S.W.3d 456
• Parties: Ronald Lewis GREEN, Appellant v. The State of TEXAS, Appellee.
• Court: Texas Court of Appeals

256 S.W.3d 456

Ronald Lewis GREEN, Appellant v. The State of TEXAS, Appellee.

No. 10-07-00085-CR.

Court of Appeals of Texas, Waco.

April 23, 2008.

Amanda Doan, Attorney At Law, Corsicana, TX, for Appellant/Relator.

Nicole M. Crain, Dan V. Dent, Hill County District Atty., Hillsboro, TX, for Appellee/Respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

After the trial court denied his motion to suppress, Appellant Ronald Green entered into a plea agreement for the possession of a controlled substance (less than one gram), receiving four years of deferred adjudication community supervision with the right to appeal the suppression ruling. We will affirm.

Evidence

Around 10:00 a.m. on January 27, 2006, Israel Abrego, a Hillsboro police warrant officer, saw a pickup truck on Sycamore without a front license plate as the vehicle was approaching him. After it passed, Abrego turned and noticed that the truck did not have a rear license plate either and decided to make a traffic stop. Abrego went around the block and noticed the truck stopped in front of a house on Vineyard, where he saw a man turn and walk away from the truck to the house. From his experience (he had made a traffic stop of a vehicle that had just left the house and the driver possessed crack) and from other officers, Abrego knew the house to be a "drug house" and he thought that the driver was picking up narcotics. Abrego activated his lights and stopped the truck. The stop was not videotaped; Abrego's usual police car was in the shop, and he was using a temporary car and had not turned on the power.

Before Abrego got out of his car, Green, the truck's driver, had gotten out and began walking toward Abrego, who was getting out of his car. Standing behind his door for protection, Abrego ordered Green, who had been making nervous glances toward his truck, to return to his truck. From Abrego's experience, similar nervous glances at a stopped vehicle had always resulted in something illegal being found. He had to tell Green several times to get back in his truck, and because Green then left his door open, Abrego told him to close it and to lower the window. Abrego said that he sent Green back to his truck because, even if Green had a gun in the truck, Green would have to then get back out of the truck to shoot him or shoot from his truck, which would have given Abrego more of a shield and more cover. But Abrego did admit that putting Green back in the truck would have given him access to a gun if one were in the truck. Abrego did not notice any arm or hand movements by Green in the truck, but Abrego says he was concerned for his own safety based on Green's nervousness.

As Abrego approached the truck, he noticed a "dealer" tag in the truck's rear window. He then approached Green, advised him of the reason for the stop, and asked for driver's license and insurance information, which Green provided. Abrego saw no contraband in plain sight, nor did he smell an odor of drugs or of a masking agent, but he asked Green to get out of the truck so they could talk. Abrego said that, at this point, Green was being detained for investigation and was not free to leave because he was nervous and was seen in front of a known drug house. Green asked why he had to get out, and Abrego told him that it was because he was acting nervous and suspicious, thus making Abrego think that Green was trying to hide something. Abrego found nothing on Green's person.

Abrego asked Green if he had anything illegal in this truck, and Green responded, "No, why?" Abrego asked if he could search the truck, and Green again said, "No, why?" Abrego then told Green that because of the way he was acting, Abrego believed that Green was hiding something. He told Green that he didn't need his permission to search his truck and was going to do it anyway: "I have reason to search your vehicle, I'm going to search it but I'm going to ask you anyway." Abrego testified that he was going to search the truck with or without Green's consent. Abrego asked for consent again, and Green told him to go ahead. Abrego searched the truck and found crack cocaine in a cigarette box stuffed next to the seat. The detention lasted from ten to fifteen minutes.

Green's sole issue asserts that the trial court erred in denying his motion to suppress the evidence obtained from the warrantless search. Specifically, Green alleges that: (1) once Abrego determined that no traffic violation had occurred, the detention should have ended because Abrego lacked reasonable suspicion to continue the detention; and (2) Green's consent to search was involuntary and thus invalid.

Standard of Review

To suppress evidence on an alleged violation of Fourth Amendment rights, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005). A defendant satisfies this burden by establishing that a search or seizure occurs without a warrant. Id. Once the defendant makes this showing, the burden shifts to the State, which must then establish that the search or seizure was conducted with a warrant or was reasonable. Id.

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made whatever appropriate implicit findings that are supported by the record. Carmouche, 10 S.W.3d at 327-28; Guzman, 955 S.W.2d at 89-90. But when the trial court's rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a trial court's rulings on mixed questions of law and fact. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005). Therefore, although due weight should be given to the inferences drawn by trial judges and law enforcement officers, determinations of matters such as reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman, 955 S.W.2d at 87.

Applicable Law

In this case, Green does not challenge Abrego's initial traffic stop. In what is know as a Terry stop or an investigative detention, an officer may stop and briefly detain a person suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim.App.2000). Routine traffic stops are more analogous to investigative detentions than custodial arrests and are thus analyzed as Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). An investigative detention—either as a part of, or apart from, a traffic stop—is a seizure for Fourth Amendment purposes. See Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim.App.1996). Therefore, a traffic stop and any concomitant investigative detention must be reasonable under the United States and Texas Constitutions. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9.

An investigative detention is reasonable, and thus constitutional, if (1) the officer's action was justified at the detention's inception, and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879. For the officer's initial action to be justified under the first Terry prong, we ask whether there existed specific, articulable facts that, taken together with rational inferences from those facts, reasonably warranted that intrusion. Id. at 21, 88 S.Ct. at 1880; see also Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App. 1997). Specifically, the officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the unusual activity is related to crime. See Davis, 947 S.W.2d at 244.

In other words, "an officer conducts a lawful temporary investigative detention when the officer has reasonable suspicion to believe that an individual is violating the law." Ford, 158 S.W.3d at 492. "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. We give due weight not to the officer's inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences that he is entitled to draw from the facts in light of his experience. See Davis, 947 S.W.2d at 243 n. 3. An investigative detention that is not based on reasonable suspicion is unreasonable and thus violates the Fourth Amendment. Id.

Under the second Terry prong, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Once the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition for unrelated criminal activity." Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concurring)). Also, the scope of the seizure must be restricted to that necessary to fulfill the seizure's purpose. Royer, 460 U.S. at 500, 103 S.Ct. at 1325.

Once the traffic stop investigation is concluded, the officer must no longer detain the driver, who must be permitted to leave. Kothe, 152...