Spight v. State

• Decision Date: 09 May 2002
• Docket Number: No. 01-01-00027-CR.,01-01-00027-CR.
• Citation: 76 S.W.3d 761
• Parties: Antonyo Terrell SPIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 761

Antonyo Terrell SPIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 01-01-00027-CR.

Court of Appeals of Texas, Houston (1st Dist.).

May 9, 2002.

Cornel A. Williams, Houston, for Appellant.

Jessica Akins, Assistant District Attorney, Houston, for State.

Panel consists of Justices MIRABAL, HEDGES and JENNINGS.

OPINION

TERRY JENNINGS, Justice.

Appellant, Antonyo Terrell Spight, was charged by indictment with possession with intent to manufacture or deliver cocaine weighing more than 400 grams. After the trial court denied his motion to suppress evidence, appellant pleaded guilty and, pursuant to a plea agreement with the State, was sentenced to 15 years confinement. In three points of error, appellant contends the trial court erred in denying his motion to suppress evidence because: (1) reasonable suspicion did not exist to justify his "prolonged detention," (2) there was no probable cause for his arrest, and (3) a second pat-down search of his person was illegal. We affirm.

Background

Texas Department of Public Safety Trooper Lawrence Lily testified that, at 10:33 p.m. on April 30, 2000, while on patrol and using a radar device, he determined that appellant was driving a car at 70 miles per hour in a 55 mile per hour construction zone on Interstate 10 in Harris County. Trooper Lily turned on his overhead emergency lights and effected a traffic stop of appellant's car on the side of the freeway. The stretch of road was dark, and Lily stated there is "a lot of illegal activity on that road." Using a video camera mounted in his patrol car, Lily videotaped the entire traffic stop and subsequent search. After appellant stepped out of his car, he handed his driver's license to Lily before it was requested. Lily saw that appellant's hands were shaking "tremendously" as he handed over his license. Appellant also attempted to give his car rental agreement to Lily before it was requested. Lily stated that appellant appeared to be very nervous and "unsure of his answers" to questions.

Trooper Lily asked appellant if he had ever been arrested, and appellant told him he had previously been arrested for "gun charges" and for possession of marihuana. Because he was patrolling alone, it was dark and late in the evening, and the appellant was nervous and had been previously arrested on a weapons charge, Lily feared and suspected that appellant might be armed. Lily tried to calm appellant by informing him that Lily would only give him a warning. However, appellant continued to act nervous.

As Trooper Lily was writing out the warning, he asked appellant where he was coming from. Appellant replied that he was visiting a friend in Houston. Appellant was unsure of his answers, appeared confused, and hesitated in his response as to where his friend lived. Appellant knew only the nickname of his friend. As Lily handed appellant the completed traffic warning, appellant, without being questioned, volunteered an explanation for one of his previous arrests. Lily then told appellant that a part of his duty was to look for stolen guns and drugs. He asked appellant whether he had drugs or stolen weapons in his possession, and appellant stated he did not. Lily then asked if he could search appellant's car, and appellant said "yes, you could."

Trooper Lily testified that, after he issued the warning, he thought that the appellant was "probably a narcotic carrier." Approximately four and one-half minutes passed from the time the traffic stop began to the time that Lily asked for consent to search the car. After appellant consented to the search, Lily conducted a brief pat-down search of appellant for weapons and found a knife in appellant's pocket. Lily asked appellant to stand off the roadway, removed the keys from the ignition of the car, and opened the trunk. Appellant began moving away from the car, and Lily asked him to step closer to the car and remain in the lighted area.

After searching the trunk, Trooper Lily discovered a brick-shaped object, in a pillowcase on the backseat of the car. Although he did not intend to place appellant under arrest at this time, Lily, out of a concern for his own safety, placed handcuffs on appellant. Lily then determined that the brick-shaped object, wrapped in cellophane, was in fact a bundle of money. Lily thought that appellant might be involved with guns and drugs. Appellant told Lily that there was $7,000 wrapped in the cellophane, but it was later determined there was $11,330 wrapped in the cellophane.

Trooper Lily asked appellant what he was planning to do with the money, and appellant replied that he was going to buy a car. As he replied, appellant began moving back towards his car, and Lily told him to return to where he had been standing. Based on appellant's behavior, Lily thought that appellant might be concealing another weapon elsewhere on his body. Lily then conducted a more thorough patdown search of appellant, feeling a large bulge near appellant's crotch area, which, based on his experience, he thought to be a plastic bag containing powder cocaine. After obtaining and putting on latex gloves, Lily removed from appellant's pants the plastic bag, which contained more than 400 grams of powder cocaine. Approximately nine minutes passed from the time that Lily asked for consent to search the car to the time he pulled the bag of cocaine from appellant's pants.

Appellant argues the trial court erred in overruling his motion to suppress evidence because Trooper Lily's search of his car and his person was in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 9, of the Texas Constitution.

Standard of Review

A trial court's ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim.App.1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We will afford almost total deference to a trial court's determination of facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Here, the trial court did not make explicit findings of historical fact; we, therefore, review the evidence in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). We assume the trial court made implied findings of fact supported in the record that buttress its conclusion. Id. Because we do not determine credibility, our de novo review of reasonable suspicion, probable cause, consent, and mixed questions of law and facts becomes a de novo review of legal questions. State v. Derrow, 981 S.W.2d 776, 778 (Tex.App.-Houston [1st Dist] 1998, pet. ref'd) (citing Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996)).

We note at the outset that the United States Supreme Court has long held that the "touchstone of the Fourth Amendment is reasonableness." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (emphasis added). Reasonableness is measured in objective terms by examining the totality of the circumstances. Id. We steer clear of "bright-line rules" in applying this test because of the "endless variations in the facts and circumstances" implicating the Fourth Amendment.¹ Id.

Investigative Detention

In his first issue, appellant challenges whether reasonable suspicion existed to justify his "prolonged detention." Circumstances short of probable cause may justify a temporary investigative detention. Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968);² Stone v. State, 703 S.W.2d 652, 654 (Tex. Crim.App.1986). An officer is permitted to make a temporary investigative detention of an individual if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication that the activity is related to a crime. Stone, 703 S.W.2d at 654. The determination of the presence of reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the of time the stop. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim.App.1997).

Appellant does not dispute his initial detention for the offense of speeding. Rather, he argues that Trooper Lily's "continued detention after the issuance of the warning for speeding was unreasonable under the circumstances."

A routine traffic stop is a detention and must be reasonable under both the United States and Texas constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App.1997). To be reasonable, a traffic stop 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); Davis, 947 S.W.2d at 243, 245. During a traffic stop, it is reasonable for an officer to check for outstanding warrants and demand identification, a valid driver's license, and proof of insurance from the driver. See Davis, 947 S.W.2d at 245 n. 6. However, once the reason for the detention has been satisfied, the detention may not be used as a "fishing expedition for unrelated criminal activity." Id. at 243. An investigative detention "must be strictly circumscribed by the exigencies which justify its initiation." Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882. As noted in Terry:

The scope of the search must be limited because `a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.'

392 U.S. at 18, 88 S.Ct. at 1878 (emphasis added).

Appellant contends that his "continued detention" after issuance of the warning for speeding was unreasonable. He argues that his nervousness, as testified to by Trooper Lily, did not...