Trejo v. State , 2008–KA–02133–COA.

• Decision Date: 12 October 2010
• Docket Number: No. 2008–KA–02133–COA.,2008–KA–02133–COA.
• Citation: 76 So.3d 702
• Parties: David TREJO, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

76 So.3d 702

David TREJO, Appellant

v.STATE of Mississippi, Appellee.

No. 2008–KA–02133–COA.

Court of Appeals of Mississippi.

June 8, 2010.Rehearing Denied Oct. 12, 2010.

Hunter Nolan Aikens, attorney for appellant.

Office of the Attorney General, by Laura Hogan Tedder, attorney for appellee.

Before MYERS, P.J., BARNES and MAXWELL, JJ.

BARNES, J., for the Court:

¶ 1. David Trejo appeals his conviction of possession of cocaine with intent to sell and sentence of sixty years as a habitual offender in the custody of the Mississippi Department of Corrections (MDOC). As there was no probable cause or reasonable suspicion to justify the initial traffic stop, we find that Trejo's motion to suppress the evidence of the cocaine was erroneously denied by the circuit court. Accordingly, we reverse and render a judgment of acquittal.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately 1:00 a.m. on January 21, 2005, Trejo and his passenger, Pebbles Nutt, were traveling north on Interstate 55 between Madison, Mississippi and Canton, Mississippi. Trejo's red Chevrolet SUV bore a Texas license plate. Trejo was traveling in the left-hand lane of the interstate at a speed of approximately sixty miles per hour (mph). The maximum posted speed limit was 70 mph; the minimum posted speed limit was 45 mph. Sergeant Chris Picou (Officer Picou) of the Madison County Sheriff's Department, who was traveling in the same direction, approached Trejo's vehicle, and began to follow him. Officer Picou flashed his high-beam lights into Trejo's vehicle in three quick successions, in order to get Trejo to move into the right-hand lane so that he could pass. However, Officer Picou later testified that there was no traffic in the right lane which would have prevented him from passing Trejo.

¶ 3. There is conflicting testimony as to what occurred next. According to the police report, Trejo moved into the right lane after the third time the officer flashed his high-beam lights. However, Officer Picou later testified that Trejo did not respond to these attempts; instead, he asserted that Trejo did not move over until Officer Picou activated his blue flashing lights. Regardless, upon the officer's activation of the blue lights, Trejo immediately pulled over. Officer Picou approached the passenger-side window and asked for a driver's license and proof of insurance. He also questioned Trejo and Nutt about their destination. Trejo presented a valid driver's license and proof of insurance and informed the officer that the couple was traveling from Houston, Texas, to Ohio. According to the officer, Trejo and Nutt appeared to be sleepy and nervous and a strong odor of air freshener was coming from the vehicle, indicating to Officer Picou that they may have been trying to cover up the smell of drug use. After a criminal history check, it was discovered that Trejo had been previously convicted of drug offenses; however, he had no outstanding warrants. Officer Picou ordered Trejo out of the vehicle and inquired about his criminal history. Trejo mentioned that he had been arrested for stealing a car several years ago; he did not mention any prior drug offenses. Officer Picou then requested consent to search the car, but Trejo refused. Officer Picou informed Trejo that he was going to run his drug-sniffing dog around the car, and he asked Nutt to exit the vehicle. When she complied, Officer Picou noticed a bulge underneath her shirt in her midsection. He frisked her person and recovered four packages of cocaine. The officer handcuffed Nutt with his only pair of handcuffs, ordered Trejo to lie on the ground until backup arrived, and proceeded to read the couple their Miranda rights.

¶ 4. On November 29, 2005, Trejo was indicted for possession of cocaine with intent to sell. Prior to trial, Trejo filed a motion to suppress the evidence of the cocaine, asserting that Officer Picou lacked probable cause or reasonable suspicion to initiate the traffic stop and that the length of the detention “lasted longer than necessary to effect the purpose of the stop.” At the suppression hearing, which was held immediately prior to trial on April 1, 2008, Officer Picou admitted that Trejo had not violated any traffic law, nor was Trejo operating the vehicle in an erratic manner. Rather, the officer claimed that the stop was made for the following reasons: (1) concern that Trejo may have been tired or intoxicated; (2) the fact that Trejo had a Texas license plate; and (3) Trejo's failure to respond to the officer's attempts to move him into the right lane of traffic, coupled with his reduced rate of speed. The circuit court overruled Trejo's motion to suppress stating that the officer had probable cause to stop Trejo for safety reasons, based upon the fact that he was traveling in the left-hand lane and failed to respond to the officer's flashing high-beam lights.¹ Further, the circuit court intimated that Trejo lacked standing to object to the evidence as the drugs were found on Nutt, not in the vehicle.

¶ 5. Trejo was convicted of possession of cocaine with intent to sell and a judgment of conviction was entered on April 8, 2008. Trejo filed a motion for a new trial and/or a motion for a judgment notwithstanding the verdict on April 11, 2008, which the circuit court subsequently denied. Following a sentencing hearing on December 12, 2008, Trejo received an enhanced sentence of sixty years as a habitual offender pursuant to Mississippi Code Annotated section 99–19–81 (Rev.2007) and as a subsequent drug offender pursuant to Mississippi Code Annotated section 41–29–147 (Rev.2005) in the custody of the MDOC. He was also ordered to pay a fine of two million dollars. He now appeals his conviction citing several assignments of error. As we find the first issue on appeal to be dispositive of the case, we decline to address the remaining issues.

Whether the circuit court erred in denying Trejo's motion to suppress.

¶ 6. In his motion to suppress, Trejo argued that the cocaine should not have been admitted as evidence as Officer Picou lacked probable cause or reasonable suspicion to stop Trejo's vehicle. Therefore, the initial stop was not justified and, thus, resulted in an unreasonable search and seizure, violating the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” See also Miss. Const. art. 3, § 23 (1890). However, the State argues that since the drugs were found on Nutt's person and not in Trejo's vehicle, Trejo had no standing to object to the search of her person. This contention is based on the circuit court's finding at trial that since the drugs were not found in the vehicle, there was nothing for the court to suppress.

¶ 7. In Brown v. State, 19 So.3d 85, 89 (¶ 7) (Miss.Ct.App.2008), this Court stated that:

Whether a defendant has standing to challenge a seizure is a question of law; therefore, we address this issue de novo. United States v. Kye Soo Lee, 898 F.2d 1034, 1037 (5th Cir.1990). “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Lyons v. State, 942 So.2d 247, 250 (¶ 11) (Miss.Ct.App.2006)[.]

Here, both the State and the circuit court failed to acknowledge the “fruit of the poisonous tree” doctrine. This doctrine states that all evidence acquired as a result of an unreasonable search, including that evidence that is subsequently or indirectly acquired from the search,

is inadmissible. Jackson v. State, 418 So.2d 827, 829 (Miss.1982) (citations omitted); see also Powell v. State, 824 So.2d 661, 667 (¶ 27) (Miss.Ct.App.2002) (“[t]he exclusionary rule is to bar use of the fruit of the poisonous tree of a Fourth Amendment violation”). The cocaine was obtained from Nutt's person as a result of the traffic stop, which resulted in a “seizure” of Trejo. See Tate v. State, 946 So.2d 376, 382 (¶ 17) (Miss.Ct.App.2006) (“Traffic stops are considered to be seizures within the meaning of the Fourth Amendment.”) (citing United States v. Grant, 349 F.3d 192, 196 (5th Cir.2003)). Consequently, if the initial traffic stop was a violation of Trejo's constitutional right under the Fourth Amendment, the cocaine is the “fruit” of that illegal seizure, and Trejo, as driver of the vehicle, has standing to assert the violation.

¶ 8. This Court analyzes an unlawful-seizure claim under a mixed standard of review. Brown, 19 So.3d at 89 (¶ 9) (citing Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006)). We conduct a de novo review in determining “the existence of probable cause.” Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). However, we limit our de novo review to the circuit court's “decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. (quoting Ornelas, 517 U.S. at 699, 116 S.Ct. 1657). “In determining whether evidence should be suppressed, a [circuit] court's findings of fact are not disturbed on appeal absent a finding that the [circuit court] judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.” Id. (quoting Clair v. State, 845 So.2d 733, 734–35 (¶ 4) (Miss.Ct.App.2003)).

¶ 9. The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 30–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “held that an officer may, consistent with the Fourth Amendment, make a brief, investigatory detention without a warrant when the officer has a reasonable suspicion that criminal activity is afoot.” Rainer v. State, 944 So.2d 115, 118 (¶ 6) (Miss.Ct.App.2006). An investigatory stop under Terry, requires “a two-tiered reasonable suspicion inquiry: 1) whether the officer's action was justified at its inception,...