State v. Tucker

• Decision Date: 05 May 2016
• Docket Number: NUMBERS 13-15-00491-CR
• Parties: THE STATE OF TEXAS, Appellant, v. ALVO LAYFITTE TUCKER, Appellee.
• Court: Texas Court of Appeals

THE STATE OF TEXAS, Appellant, v. ALVO LAYFITTE TUCKER, Appellee.

NUMBERS 13-15-00491-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

May 5, 2016

On appeal from the 34th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Perkes and Longoria

Memorandum Opinion by Justice Perkes

The State appeals the trial court's granting of appellee Alvo Layfitte Tucker's motion to suppress evidence.¹ Following a traffic stop, Tucker was arrested forpossession of a controlled substance, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West, Westlaw through 2015 R.S.). By two issues, the State argues: (1) the trial court's findings of fact and conclusions of law are inadequate for appellate review; and (2) the trial court abused its discretion in granting Tucker's motion to suppress because the arresting officer had reasonable suspicion to extend the traffic stop so that a canine could conduct a free-air sniff of Tucker's vehicle.² We affirm.

I. BACKGROUND

Officer Justin Garcia, with the Victoria Police Department, was the only witness to testify at the suppression hearing. Officer Garcia testified that he was "spot checking" a residence located at 901 Cameron Street in Victoria, which was a known drug house. The Victoria Police Department received a Crime Stoppers report nineteen days earlier that crack cocaine was being sold at the residence. Officer Garcia testified he has made countless narcotics arrests of individuals leaving the residence. He estimated that he worked at least twenty cases of suspects coming from the residence, including one within a week or two of Tucker's arrest. Concerning the prior arrests, Officer Garcia explained that he typically observes vehicles stop at the residence for a couple of minutes before leaving. He also stated that drug transactions tend to occur at night.

Officer Garcia, who was in an unmarked vehicle a tenth of a mile away, observed Tucker pull his vehicle to the front of the residence around 9:50 p.m. Tucker's vehicle was at the location less than two minutes, which Officer Garcia believed to be consistentwith a narcotics purchase. Officer Garcia could not tell from his vantage point whether anyone approached the vehicle. He followed Tucker's vehicle as it left and observed Tucker make several quick turns which he believed were evasive. Officer Garcia initiated a traffic stop after observing Tucker fail to signal one hundred feet before making a left turn at a stop sign. See TEX. TRANSP. CODE ANN. § 545.104 (West, Westlaw through 2015 R.S.). Though his vehicle was unmarked, it was equipped with red and blue lights on the window, headlights, and the front grill. Officer Garcia testified the traffic stop was pretext for a narcotics investigation.

After Officer Garcia activated his emergency lights, Tucker took a right turn onto another street before coming to a stop. Officer Garcia testified that this occurred on a residential street with no traffic, so there was no reason for Tucker to not have pulled over immediately. This caused Officer Garcia to believe the occupants of the vehicle might be concealing narcotics or trying to get rid of something. Upon making contact with Tucker, Officer Garcia stated he stopped him for failing to signal one hundred feet before turning. Officer Garcia observed Tucker as well as a passenger in the vehicle. He testified that Tucker seemed slightly nervous and his hands were shaking.

Tucker told Officer Garcia that "Claire" called him and asked for him to pick up a passenger from 901 Cameron Street and take him home. Officer Garcia knew where the passenger lived and observed that Tucker did not take a direct route to drop him off. Officer Garcia believed at this point that he had reasonable suspicion that Tucker was inpossession of a controlled substance.³ He asked Tucker for consent to search the vehicle. Tucker declined.

Officer Garcia then informed Tucker that a canine was going to conduct a "free-air sniff" of the vehicle to determine whether it contained any controlled substances. Detective Jason Stover, who was present with Officer Garcia from the beginning of the traffic stop, immediately led the canine around the vehicle. Detective Stover then informed Officer Garcia that "his dog alerted on the vehicle."

The officers proceeded to search the vehicle and discovered a white rock-like substance and a crack pipe under the driver's seat, and Brillo, which can be used as a crack-pipe filter, in the driver-side door pocket. Officer Garcia field tested the rock-like substance which tested positive for the presence of cocaine. He then arrested Tucker for possession of a controlled substance and drug paraphernalia.

According to Officer Garcia, a typical traffic stop takes approximately ten minutes. A dash-camera video from Officer Garcia's vehicle depicting the traffic stop and arrest was admitted into evidence and viewed by the trial court. The video shows that Officer Garcia asked Tucker and his passenger to exit the vehicle approximately eight minutes into the stop so that the canine could conduct a free-air sniff. The free-air sniff was completed approximately twelve minutes into the stop. Following Officer Garcia's testimony, Tucker stipulated that Detective Stover's canine was certified and capable of conducting a free-air sniff to detect the presence of narcotics.

At the conclusion of the hearing, the trial court issued a ruling from the bench granting Tucker's motion to suppress. The trial court also issued written findings of fact and conclusions of law. We subsequently granted the State's motion to abate the appeal for supplemental findings of fact and conclusions of law relating to the following: (1) whether the initial traffic stop was supported by reasonable suspicion; (2) whether the canine sniff occurred beyond the time needed to investigate the circumstances that caused the officer to stop Tucker's vehicle; and (3) the credibility of the witness's testimony in general and as to each factor relied on to justify the continued detention. The trial court issued the following amended findings of fact and conclusions of law:

On October 20, 2014, Victoria Police Department (VPD) Officer Justin Garcia was "spot checking" on 901 South Cameron Street within the city limits of Victoria, Texas. According to Garcia, there was a crime stopper tip that informed the VPD that crack was being sold at the location. The "tip" was made on October 1, 2014. The tip in the case at bar does not demonstrate the "informant's basis of knowledge or veracity" with regard to any drug activity at the location of 901 South Cameron. Adams v. White, 407 U.S. 143 (1972).

Garcia stated that the location has been targeted numerous times. In addition, Officer Garcia testified that he has made "countless" arrests from vehicles leaving this location. The Court notes that even though there was testimony that this location is known to supply drugs, law enforcement failed to secure a warrant for either the search of the defendant or the residence. There was no search warrant in this case; therefore, the burden is on the State to show that there was reasonable suspicion for the stop of the defendant. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). This Court looked solely to whether an objective basis existed for the stop. Id. at 492. This Court also looked at the totality of the circumstances. Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007).

The officer testified that the last time he believed that he "worked" a case whereby a vehicle had come from that location was within a week prior to the defendant's stop. The defendant's car was seen by the officer at 901 South Cameron.

The defendant's car stopped at the location for less than two minutes. The officer did not see the defendant exit the vehicle. The officer could only testify that the defendant's car stopped at the location. Officer Garcia did not see anyone approach the vehicle.

During cross examination, Garcia testified that after they arrest someone coming from the location (of 901 South Cameron), the drugs are moved from the residence. Therefore there was no credible evidence presented by the State that demonstrated that it would be reasonable to believe that someone leaving from 901 South Cameron would be in possession of a controlled substance. Accordingly, the Court finds that it is unreasonable to believe that the defendant was engaged in criminal activity based on the testimony and evidence presented by the State.

After the defendant left the location, Garcia followed the defendant until he failed to signal at a stop sign. The defendant's car was pulled over. The defendant did not act suspicious or demonstrate any behavior that would lead a reasonable person to believe that he was committing a crime other than a traffic offense. The officer had no reason to believe that the defendant had any prior contacts with law enforcement. In addition, Garcia had no information that the defendant was either possessing or selling a controlled substance. Garcia did not observe any activity that would lead a reasonable person to believe that the defendant was engaged in criminal activity.

While stop of the defendant for failing to signal may have been lawful; his detention after the stop was unreasonable. Terry v. Ohio, 392 U.S. 1 (1968). The defendant did not consent to the search of his vehicle. Acting nervous, changing the story or refusing to consent to a search without more are insufficient to justify a prolonged detention. Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013).

Therefore, the subsequent search of the defendant was based on an illegal prolonged detention. The fact that law enforcement used a dog sniff does not change the results of this case. The search of the defendant was without "reasonable suspicion" and the "police extension of a traffic stop in order to conduct a dog sniff violates the Constitution's shield against

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