Jones v. State, NUMBERS 13–14–00183–CR, 13–14–00184–CR

• Court: Court of Appeals of Texas
• Writing for the Court: Opinion by Justice Longoria
• Citation: 511 S.W.3d 202
• Docket Number: NUMBERS 13–14–00183–CR, 13–14–00184–CR
• Decision Date: 19 February 2015
• Parties: James Thomas JONES II, Appellant, v. The STATE of Texas, Appellee.

511 S.W.3d 202

James Thomas JONES II, Appellant,
v.
The STATE of Texas, Appellee.

NUMBERS 13–14–00183–CR, 13–14–00184–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed February 19, 2015

Jose Vela, Attorney at Law, Houston, TX, for Appellant.

Brett W. Ligon, District Attorney, Brent Chapell, Asst. District Attorney, Conroe, TX, for Appellee.

Before Justices Benavides, Perkes, and Longoria

OPINION

Opinion by Justice Longoria

By two issues, appellant, James Thomas Jones II, challenges his conviction for possession with intent to deliver 2.62 pounds of cocaine and possession of 76 pounds of marijuana. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(f) ; 481.121(b)(5) (West, Westlaw through 2013 3d C.S.). We affirm.¹

I. BACKGROUND

On April 29, 2013, a group of ten Texas Highway Patrol officers performed a drug interdiction at a bus station located in front of a gas station on Frazier Street in Conroe, Texas. The officers were not in uniform but most wore body armor with markings identifying them as police and displayed their badges on chains around their necks. Some of the officers wore visible sidearms. Officer Brian Inhen ("Inhen")² was there with his trained drug-detection dog, Femke. Inhen testified that his role in these types of operations was to "run" Femke over the luggage

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that had already been loaded onto the bus to see if Femke would alert to the presence of illegal narcotics. Inhen does not usually run Femke on people because she bites, scratches, and attempts to jump when she alerts. In contrast to the other officers present, Inhen was in full uniform with a sidearm visible on his belt.

Appellant was standing near the gas pumps with three new-looking suitcases. Lieutenant Kyle Matheson ("Matheson") approached appellant and "struck up a conversation with him." Matheson testified that he talked with appellant for "maybe a minute" about his travel plans. Appellant told him that he was headed to Tyler, Texas, and then onto Meridian, Mississippi. Matheson discovered that the name on the bus ticket did not match appellant's name. Matheson identified himself as a police officer and explained what the officers were doing. At this time, Inhen and Femke came around the back of the bus from where Inhen had parked on the other side. Inhen stated that when appellant saw Inhen and Femke, appellant "gave me like a blank stare" and then immediately looked away. Inhen approached appellant and Matheson backed several feet away.

While Inhen approached, Femke began to alert on appellant by sniffing the air and looking around. Inhen asked appellant for his identification as Femke became more agitated. Inhen asked appellant if he had any illegal narcotics on his person. Appellant denied that he was carrying any, but he agreed to Inhen's next request to empty his pockets. While appellant was in the process of emptying his pockets, Femke's alert strengthened, and she attempted to bite, scratch, and jump on appellant. Inhen noticed a bulge in the watch pocket of appellant's pants and thought that appellant was trying to cover it. At this time, Inhen touched the bulge and "knew it was marijuana." Inhen removed the bulge from appellant's pants pocket and discovered it to be a sealed bag containing 6.5 grams of marijuana. Inhen told appellant to drop the bags he was carrying. The officers searched the bags and recovered 76 pounds of marijuana and 2.62 pounds of cocaine.

Appellant made a motion to suppress on the grounds that the dog sniff was a search under the Fourth Amendment and that it was not supported by reasonable suspicion. He also asserted that he was detained without reasonable suspicion from the onset of the encounter. The trial court judge denied the motion. Appellant unsuccessfully reurged his motion before the jury during the trial.³ The jury returned a verdict of guilty on both counts. See id. The trial court judge assessed concurrent sentences of thirty-five years' imprisonment in the Texas Department of Criminal Justice—Institutional Division.

II. STANDARD OF REVIEW FOR A MOTION TO SUPPRESS

We review a trial court's ruling on a motion to suppress using a bifurcated standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex.Crim.App.2013). We give almost total deference to the trial judge's determination of historical facts and of mixed questions of law and fact that rely on credibility determinations if they are supported by the record. Id. When, as

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here, the trial court does not issue findings of fact, we imply all necessary findings in support of the trial court's ruling if the evidence, viewed in the light most favorable to the ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex.Crim.App.2006). However, we review de novo questions of law and mixed questions of law and fact which do not rely on credibility determinations. Kerwick, 393 S.W.3d at 273. We afford the party that prevailed in the trial court the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it. Wade v. State, 422 S.W.3d 661, 666–67 (Tex.Crim.App.2013). We will uphold the trial court's ruling if it is reasonably supported by the record and correct on any applicable theory of law. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013).

III. WAS THE DOG SNIFF AN UNREASONABLE SEARCH?

By his first issue, appellant argues that Femke's sniff of his person was a search under the Fourth Amendment, and that the search was not supported by reasonable suspicion. Appellant's issue actually presents two questions: whether the sniff of appellant's person was a search governed by the Fourth Amendment and, if so, whether the search was reasonable.

We first address whether the dog sniff of appellant's person was a search. A "search" within the meaning of the Fourth Amendment occurs "when the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). If the defendant's expectation of privacy was not one society was prepared to recognize as legitimate, then the Fourth Amendment provides no protection. In the words of the Texas Court of Criminal Appeals:

a ‘legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’

State v. Granville, 423 S.W.3d 399, 407 (Tex.Crim.App.2014) (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ). The United States Supreme Court has ruled that there is no legitimate expectation of privacy in the possession of contraband such as illegal narcotics. Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (citing United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ). Therefore, "governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest" and is not a "search" for purposes of the Fourth Amendment. Id. (citing Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652 ); see State v. Dobbs, 323 S.W.3d 184, 188 n. 11 (Tex.Crim.App.2010). Applying this principle, the Caballes Court held that because a dog sniff could reveal only the presence of contraband, and there is no legitimate privacy interest in the possession of contraband, a sniff by a trained drug-detection dog of the exterior of a vehicle was "generally" not a Fourth Amendment search. Caballes, 543 U.S. at 409, 125 S.Ct. 834. In similar cases involving dog sniffs of vehicles, the Texas Court of Criminal Appeals and the courts of appeals have held that officers initiating a dog sniff must only "have the right to be where they are at the time they initiate a dog sniff." State v. Weaver, 349 S.W.3d 521, 529 (Tex.Crim.App.2011) ; accord Branch v. State, 335 S.W.3d 893, 900 (Tex.App.—Austin 2011, pet. ref'd) ;

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Johnson v. State, 323 S.W.3d 561, 564 (Tex.App.—Eastland 2010, pet. ref'd). Our research has not revealed any Texas state cases evaluating the dog sniff of a person outside of the context of a vehicle or a home,⁴ but the Fifth Circuit Court of Appeals has twice addressed the issue. In Horton v. Goose Creek Independent School District, the court held that intentional dog sniffs where the dogs' noses touched the bodies of the students was a "search" within the meaning of the Fourth Amendment. 690 F.2d 470, 479 (5th Cir.1982). The Horton Court reasoned that "intentional close proximity sniffing of the person" was a Fourth Amendment search, but reserved for another...