Powell v. State

• Decision Date: 07 October 1999
• Docket Number: No. 06-98-00194-CR,06-98-00194-CR
• Citation: 5 S.W.3d 369
• Parties: (Tex.App.-Texarkana 1999) BARRY JOSEPH POWELL, Appellant v. THE STATE OF TEXAS, Appellee Date Submitted:
• Court: Texas Court of Appeals

Page 369

5 S.W.3d 369 (Tex.App.-Texarkana 1999)

BARRY JOSEPH POWELL, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-98-00194-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted:October 7, 1999

Date Decided: November 4, 1999

On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 25,093-B

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Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Chief Justice CORNELIUS.

Barry Joseph Powell appeals his conviction for possession of cocaine with intent to deliver. A jury found him guilty and assessed punishment at sixty years' imprisonment. Powell contends that the trial court (1) erred in overruling his motion to suppress cocaine discovered during a warrantless search; (2) erred in denying his counsel the opportunity to review an officer's offense report; and (3) erred in admitting at the guilt/innocence phase of the trial evidence of a subsequent drug possession offense. We affirm the judgment.

FACTS

On August 28, 1998, Powell and three companions, one male and two females, were traveling eastbound on Interstate Highway 20 when Gregg County Sheriff's Deputy James Benson stopped Powell for failure to drive in a single marked lane. Officer Benson asked Powell to step outside his vehicle and join him at the rear of the vehicle. Once there, Benson asked Powell about the traffic violation. He also questioned Powell about his identity, place of employment, destination and purpose of the trip, traveling companions, and whether he had ever been arrested. Benson approached the passenger's side of the vehicle and asked similar questions of Powell's companions. The occupants gave details about the trip that Benson believed to be conflicting. Benson directed Powell to remain standing behind his car. Benson then returned to his own car, where he investigated the ownership of the car that Powell was driving. He learned that the car was not registered to Powell or any of the passengers. He also learned that,contrary to Powell's statement to him, Powell had been arrested before. Benson then returned to Powell and gave him a warning citation for failing to maintain a single lane. He briefly questioned Powell about the inconsistency, then asked Powell for his consent to search the vehicle. Powell said that because his companion, Terry Mooneyham, not he, had borrowed the car, he was unable to give consent to search it. He suggested that Benson get Mooneyham's consent. Benson asked Mooneyham for his permission to search the car. Mooneyham hesitated, but then gave his consent, whereupon Benson returned to Powell, patted him down, handcuffed him, and directed him to sit on the ground. During the pat-down, Benson detected a lump in Powell's pants around the groin area that he believed to be narcotics. Another officer, Jennifer Arnold, arrived. While Arnold patted down the female passengers, Benson patted down Mooneyham, then returned to Powell to check for the narcotics he suspected were on his person, buthe no longer felt the lump. Benson, Arnold, and another officer later searched for the narcotics and found some on the pavement underneath the car near where Powell had been sitting. Officer Benson inspected the vehicle and recovered various narcotics.

Powell does not dispute that Benson acted within his authority when he stopped him for a traffic violation, but in his first point he argues that when Benson gave him the warning citation, the purpose of the stop ended and Benson's later investigation and detainment constituted an impermissible "fishing expedition." Powell argues that the post-citation detention was not supported by reasonable suspicion and thus was unreasonable in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, 9 of the Texas Constitution. Additionally, he contends that Mooneyham's consent to search the car was invalid because it was obtained only after the fishing expedition had begun. Our first inquiry is whether the issuance of the warning citation ended the legitimate traffic stop so that the subsequent detention was a "continued detention." If the issuance of the warning citation ended the permissible traffic stop, our second inquiry is whether Benson had reasonable suspicion to justify detaining Powell after he issued the citation.

STANDARD OF REVIEW

In reviewing the legality of searches following legitimate traffic stops, we review de novo the trial court's determinations of reasonable suspicion and probable cause. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The amount of deference we afford to the trial court's ruling on probable cause often is determined by which judicial actor is in a better position to decide the issue. If the issue involves the credibility of witnesses, thereby making the evaluation of the witnesses' demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts. But if the issue is whether an officer had probable cause or reasonable suspicion under the totality of the circumstances to seize or detain a suspect, the trial judge is not in an appreciably better position than the reviewing court to make that determination. See Loserth v. State, 963 S.W.2d 770, 773 n.2 (Tex. Crim. App. 1998); Guzman v. State, 955 S.W.2d at 87 (citing Ornelas v. United States, 116 S.Ct. at 1662).

Although we review the issue of reasonable suspicion de novo, the ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At the suppression hearing, the trial court observes the testimony and demeanor of the witnesses and is therefore in a better position than the appellate court to judge the credibility of the witnesses. See id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Therefore, we do not engage in our own factual review. Instead, we view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling and sustain the ruling if it is sufficiently supported by the evidence and is correct on any theory of law applicable to the case. Id.

At Powell's suppression hearing, only Officer Benson testified; Powell did not. The trial court heard testimony from Benson, viewed a videotape of the traffic stop, and evaluated the facts. Affording total deference to the trial court's conclusions as to Benson's credibility and to the facts leading up to Powell's continued detainment, we must review the evidence to determine whether the factors Benson listed as providing him with reasonable suspicion of drug trafficking were enough to justify his continued detention of Powell beyond the detention necessary for the traffic violation.

DISCUSSION

A routine traffic stop closely resembles an investigative detention. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). An investigative detention is a seizure. Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). Therefore, a traffic stop must be reasonable under the United States and Texas Constitutions. See U.S. CONST. amend. IV; TEX. CONST. art. I, 9. To determine the reasonableness of an investigative detention under the Fourth Amendment,¹ we apply the guidelines set out by the United States Supreme Court in Terry v. Ohio: (1) whether the officer's action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the interference initially. See Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Under the first guideline, an officer's reasonable suspicion justifies an investigative detention. See Davis v.State, 947 S.W.2d at 242-43 (citing Terry v. Ohio, 392 U.S. at 27). 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 the unusual activity is related to crime. See Davis v. State, 947 S.W.2d at 244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). To determine whether an officer was reasonable in his initial action, we ask whether, in light of the officer's experience and knowledge, there existed specific articulable facts which, taken together with rational inferences from those facts, reasonably warranted that intrusion. See Davis v. State, 947 S.W.2d at 242. We give due weight, not to the officer's inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences he is entitled to draw from the facts in light of his experience. See id. at 243 n.3. In addition, we determine reasonablenessbasedon the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). We use an objective standard: would the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate. See Davis v. State, 947 S.W.2d at 243. An investigative detention that is not based on reasonable suspicion is unreasonable and thus violates the Fourth Amendment. Id.

A search that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope. See Davis v. State, 947 S.W.2d at 243. Under the second guideline, 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, 75 L.Ed.2d 229 (1983). It follows that once the reason for the stop has been satisfied, the stop may not be used as a fishing expedition for unrelated...