Parker v. State

• Decision Date: 10 September 2009
• Docket Number: No. 11-08-00214-CR.,11-08-00214-CR.
• Citation: 297 S.W.3d 803
• Parties: Demetrice Wayne PARKER, Appellant v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

297 S.W.3d 803

Demetrice Wayne PARKER, Appellant v. STATE of Texas, Appellee.

No. 11-08-00214-CR.

Court of Appeals of Texas, Eastland.

September 10, 2009.

Frederick Dunbar, Galbreath Law Firm, Abilene, TX, for Appellant.

Ann Reed, Dist. Atty., Amos W. (Trey) Keith, Asst. Dist. Atty., Nolan County, Sweetwater, TX, for Appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

TERRY McCALL, Justice.

Demetrice Wayne Parker appeals his conviction for the first degree felony offense of possession of 400 grams or more of cocaine with the intent to deliver. Appellant pleaded nolo contendere to the offense after the trial court denied his motion to suppress evidence. Pursuant to a plea bargain agreement, the trial court sentenced appellant to twenty years confinement and a fine of $1,000. In his sole appellate issue, appellant contends that the trial court erred in denying his motion to suppress because police officers discovered the cocaine as a result of illegally detaining him after a traffic stop. We affirm.

Introduction

On August 22, 2007, appellant was a passenger in a vehicle being driven by Thomas Pimpton. On that date, at 12:32 p.m., Department of Public Safety Trooper Todd Adkins stopped Pimpton for speeding. After conducting an investigation, Trooper Adkins arranged for a drug dog to be brought to the scene for the purpose of performing a free-air sniff around the stopped vehicle. Department of Public Safety Trooper Ben Mueller, the canine officer, arrived at the scene with the drug dog at 1:50 p.m. The drug dog alerted on the vehicle at 1:54 p.m., and, thereafter, law officers found cocaine in the trunk of the vehicle. This appeal involves two primary issues: (1) whether Trooper Adkins had reasonable suspicion to detain appellant and (2) if so, whether the duration of appellant's detention was reasonable.

Background

Trooper Adkins and Trooper Mueller testified at the suppression hearing. Trooper Adkins testified that, on August 22, 2007, at 12:32 p.m., he stopped Pimpton for a speeding violation on Interstate 20 at about mile marker 232. At that time, Pimpton was driving a white Dodge Magnum. Appellant was in the front passenger seat of the vehicle, and a juvenile was in the backseat of the vehicle. Trooper Adkins testified that Pimpton was going 76 miles per hour before the stop. The stop was videotaped by a camera in Trooper Adkins's vehicle, and the State introduced into evidence a copy of the video, which also contained audio, at the suppression hearing. The relevant part of the video was played for the trial court.¹

After stopping the vehicle, Trooper Adkins approached the driver's side of the vehicle. He requested to see Pimpton's driver's license. Pimpton complied with Trooper Adkins's request. However, the manner in which Pimpton produced his license raised suspicion in Trooper Adkins's mind. Trooper Adkins testified that Pimpton had a "large bulge" in his front pants pocket, which Trooper Adkins believed was Pimpton's wallet. Trooper Adkins said that, instead of pulling the bulge out of his pocket, Pimpton "stuffed his hand in there, sat back in his seat, [and] thumbed around to get his license out as if he was trying to hide something in his front pocket from me." Trooper Adkins testified that, when he was talking with Pimpton, appellant was eating a hamburger. Trooper Adkins said that appellant continued to eat the hamburger "instead of actually putting it down like most people would have and paying attention to what was going on at the time." Appellant provided an identification card to Trooper Adkins.

The Dodge Magnum was a rental vehicle. Pimpton told Trooper Adkins that the vehicle had been rented in Abilene by his girlfriend, Tonya Carr. Trooper Adkins asked Pimpton for the rental agreement for the vehicle. Pimpton and appellant were unable to find the rental agreement in the vehicle. At 12:35 p.m., Pimpton got out of the vehicle at Trooper Adkins's request.² Trooper Adkins and Pimpton walked toward the rear of the Dodge Magnum. Trooper Adkins asked Pimpton, "[W]here y'all coming from?" Pimpton responded that they had come from California. When asked by Trooper Adkins how long they had been in California, Pimpton responded, "[T]hree days."

At 12:35:50 p.m., Trooper Adkins approached appellant to ask him whether he had found the rental agreement. Appellant was not looking for the rental agreement but was still eating his hamburger. Trooper Adkins believed that, by continuing to eat the hamburger, appellant was attempting to avoid speaking with him. Trooper Adkins thought that appellant may have been trying to hide something from him. Trooper Adkins testified that, based on other stops he had made, appellant's conduct was indicative "of a passenger in the vehicle not wanting to speak to me." Appellant did not find the rental agreement. In response to questioning by Trooper Adkins, appellant said that he and Pimpton had been in California for five days. Thus, appellant and Pimpton gave conflicting statements about the length of the trip.

At 12:37:25 p.m., Pimpton recalled that the rental agreement might be in the trunk. At 12:37:43 p.m., appellant unlocked the trunk from inside the vehicle. Trooper Adkins walked to the back of the vehicle. At that time, Trooper Adkins looked through the back windows of the vehicle for luggage, and he saw that the vehicle did not contain the amount of luggage that would have been necessary for a three-day or five-day trip to California. The lack of luggage was significant to Trooper Adkins because he was aware of cases involving seizures of large amounts of narcotics and currency where "not a lot of luggage" had been taken. Pimpton lifted the hatchback, retrieved paperwork from the trunk area, and then immediately closed the hatchback. Before Pimpton closed the hatchback, Trooper Adkins saw a box of "Tide soap" inside the trunk. Trooper Adkins testified that, in the past, he had seen "Tide soap or soap boxes being used to contain illegal narcotics trying to mask the odors that the narcotic would put off."

At 12:38:15 p.m., Pimpton located a rental agreement in the paperwork that he had retrieved from the trunk. He handed the rental agreement to Trooper Adkins. Trooper Adkins then asked Pimpton, "[W]ho rented it?" In response, appellant told Trooper Adkins that his "girlfriend did." Pimpton put the other paperwork back in the trunk. At 12:38:50 p.m., Trooper Adkins told Pimpton that he was going to his vehicle to look at the rental agreement. Trooper Adkins also told Pimpton that he would be receiving a warning on the speeding, with no fine or penalty, and "if you'll hold on tight just a second, I'll be right with you."

By 12:39:00 p.m., Trooper Adkins had decided that he was going to ask for consent to search the vehicle. At that time, Trooper Adkins believed that he had sufficient articulable facts that gave him reasonable suspicion to detain the occupants of the vehicle. When he returned to his vehicle, Trooper Adkins requested warrant and criminal history information for Pimpton and appellant over his radio. At 12:40:00 p.m., while waiting for the warrant and criminal history information, Trooper Adkins stated a number of observations into his microphone, including the following: (1) that appellant was acting "real hesitant"; (2) that "they say they're coming from California"; (3) that they were in a third party rental vehicle; (4) that Pimpton said his girlfriend rented the vehicle; (5) that "they don't have hardly any clothes in the vehicle—said they'd been there a week"; and (6) that appellant was "real nervous—shaking—his hands [were] shaking real bad."

At 12:41 p.m., Trooper Adkins received the requested warrant information. Neither Pimpton nor appellant had any outstanding warrants. However, they both had lengthy criminal histories, including arrests for a number of drug offenses. The dispatcher gave Trooper Adkins the following criminal history for Pimpton: "1991—one traffic offense; 1992—one possession of cocaine; [audio interrupted] ... manufacture, deliver, possess controlled substance; 2002—two possession of marihuana; one possession of a controlled substance; [and] one evading arrest." The dispatcher gave Trooper Adkins the following criminal history for appellant: "one theft of property; one possession of marihuana under two ounces; two possession of marihuana under five pounds; one possession of a controlled substance over one gram; [and] one carrying prohibited weapon." After receiving the criminal histories, at 12:44:10 p.m., Trooper Adkins requested backup over his radio. Department of Public Safety Trooper Bill Wheat responded to the request.

In reviewing the rental agreement, Trooper Adkins noticed that Pimpton was not named in it. The rental agreement indicated that Tonya Carr had rented the vehicle. The fact that Carr was not in the vehicle was significant to Trooper Adkins because he had made other stops involving third party rental vehicles that "ha[d] yielded large amounts of narcotics or illegal drug money." At 12:45:09 p.m., Trooper Adkins exited his vehicle and then questioned Pimpton as to whether he was supposed to be driving the vehicle.

At 12:48:15 p.m., Trooper Adkins requested consent from Pimpton to search the vehicle. Pimpton denied consent to search. Trooper Adkins believed that he had sufficient articulable facts, including Pimpton's and appellant's criminal histories, to justify detaining Pimpton and appellant and waiting on the arrival of a drug dog. Trooper Adkins explained to Pimpton that he was going to arrange for a drug dog to be brought to the scene for the purpose of performing a free-air search around the vehicle. Trooper Adkins searched Pimpton and appellant for weapons. He did not find any weapons or contraband during the searches. Trooper Wheat arrived at the scene, and Trooper Adkins apprised him of the situation.

At 12:51 p.m., Trooper Adkins returned to his...