Donna Lynn Martin v. State ( 2018 )

Affirmed and Opinion filed November 29, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00963-CR
NO. 14-17-00965-CR
DONNA LYNN MARTIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Chambers County, Texas
Trial Court Cause Nos. 33119 & 33120
OPINION
Appellant was a passenger in a vehicle that a deputy stopped pursuant to an
alleged traffic violation. Roughly ten minutes into the stop, the driver admitted that
she had purchased marijuana with appellant and that appellant was in possession of
the marijuana. A few minutes later, appellant admitted that the marijuana was in her
purse. The deputy searched the purse and found several controlled substances.
Appellant filed a motion to suppress evidence discovered as a result of the
traffic stop, and the trial court denied the motion. Appellant pleaded nolo contendere
to misdemeanor counts of possessing marijuana and possessing a controlled
substance in penalty group three, i.e., Xanax. The court sentenced appellant to seven
days’ confinement and a $600 fine.
In her sole issue on appeal, appellant challenges the trial court’s denial of the
motion to suppress. Specifically, appellant contends that (1) the initial stop of the
vehicle was illegal; (2) the stop was improperly prolonged; and (3) the subsequent
search of appellant’s purse was illegal.
We affirm.
I. Legal Principles and Standard of Review
The Fourth Amendment prohibits unreasonable searches and seizures. Lerma
v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). A search and seizure must
be justified at its inception and reasonably related in scope to the circumstances that
justified the seizure in the first place. Id. A police officer is justified in stopping a
vehicle if the officer has reasonable suspicion to believe that a traffic violation has
occurred. Id. A traffic stop made for the purpose of investigating a traffic violation
must be reasonably related to that purpose and may not be prolonged beyond the
time to complete the tasks associated with the traffic stop. Id.
During a traffic stop, an officer may request the driver’s license, vehicle
registration, and proof of insurance, and the officer may run a computer check on
that information. Id. An officer may ask drivers and passengers about matters
unrelated to the purpose of the stop so long as the questioning does not measurably
extend the duration of the stop. Id.; see also Rodriguez v. United States, 135 S. Ct.
1609, 1614–15 (2015).
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There is no per se rule that an officer must immediately conduct a computer
check on the driver’s information before questioning the occupants of the vehicle.
Lerma, 543 S.W.3d at 190–91. An officer’s authority for the stop ends when tasks
related to the traffic infraction are, or reasonably should have been, completed.
Rodriguez, 135 S. Ct. at 1614; see also Lerma, 543 S.W.3d at 191. However, if an
officer develops reasonable suspicion that an occupant of a vehicle is involved in
criminal activity, the officer may continue questioning the person regardless of
whether the tasks related to the traffic stop have come to an end. See Lerma, 543
S.W.3d at 191; see also Rodriguez, 135 S. Ct. at 1615.
Reasonable suspicion exists if an officer has specific, articulable facts that,
when combined with rational inferences from those facts, would lead the officer to
reasonably conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). This
is an objective standard that disregards the subjective intent of the officer. Id.
If a defendant shows that a search or seizure occurred without a warrant, then
the burden shifts to the State to prove that the search or seizure was conducted
pursuant to a warrant or was otherwise reasonable. Id. at 492. When reviewing a trial
court’s ruling on a motion to suppress, we give almost complete deference to the
trial court in determining historical facts. Lerma, 543 S.W.3d at 190. When the trial
court does not make explicit findings of fact, as here, we view the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made
implicit findings that are supported by the record. Id. We review do novo whether
the facts are sufficient to give rise to reasonable suspicion. Id. And, we consider the
totality of the circumstances. Ford, 158 S.W.3d at 492–93. We will sustain a trial
court’s ruling if it is correct under any applicable theory of law. Lerma, 543 S.W.2d
at 190.
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II. Traffic Stop Complaint Not Preserved
Appellant first complains that the trial court erred by denying the motion to
suppress because the traffic stop was illegal at its inception. The State contends that
appellant failed to preserve this argument for review. We agree with the State.
To preserve an issue for appellate review, a party must present to the trial
court a timely request, objection, or motion stating the specific grounds for the ruling
desired. Penton v. State, 489 S.W.3d 578, 580 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d); see Tex. R. App. P. 33.1(a). The appellate complaint must comport
with the specific complaint that the appellant timely lodged in the trial court. Penton,
489 S.W.3d at 580. The appellant must have conveyed to the trial court the particular
complaint raised on appeal, including the precise and proper application of law as
well as the underlying rationale. Id.
Appellant did not complain in her written motion to suppress, nor at the
hearing, that the stop was illegal. In fact, her counsel told the trial court that she was
not challenging the stop: “I’m not contesting the stop of the vehicle because she
doesn’t have standing to contest. She was a passenger. She wasn’t the driver.”1
Under these circumstances, appellant has not preserved for appellate review
the alleged illegality of the traffic stop. See id. at 579–81 (no error preserved for
appellate complaint that the traffic stop was unlawful when the precise argument
was not made to the trial court).
III. Reasonable Suspicion to Extend the Detention
Appellant contends that the trial court erred by denying the motion to suppress
because the deputy prolonged the traffic stop beyond the time necessary to complete
1
But see, e.g., Kothe v. State, 152 S.W.3d 54, 61 & n.19 (Tex. Crim. App. 2004) (collecting
cases and noting that passengers have standing to challenge a vehicle stop).
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the stop, and the deputy lacked reasonable suspicion that any other crimes had been
committed.
A. Suppression Hearing Evidence
At the suppression hearing, the evidence consisted solely of the deputy’s
testimony and the video recording from his dashcam. The deputy testified that he
had been surveilling a house that his office had “known for narcotics,” also described
as a “drug house.” He saw appellant and the driver go to the house. When they left,
he followed them for about fifteen minutes before making the traffic stop. The
deputy testified that he made the stop because the truck’s license plate was not
clearly legible from a distance of fifty feet. See Tex. Transp. Code § 547.322(f)(2).
The video recording shows that the deputy initially spent about a minute
talking to the driver about the purpose for the stop and to ask for the driver’s license,
registration, and insurance. The driver did not have her license but knew her number,
and the driver said the truck belonged to her grandmother. The deputy asked the
driver to get out of the truck, and the deputy performed a pat down of the driver. The
deputy briefly questioned the driver about where they were coming from, and the
driver said they were coming from buying a lottery ticket. The deputy asked the
driver to wait by the patrol car while the deputy spoke with appellant.
At about two minutes into the stop, the deputy approached the passenger side
of the truck to speak with appellant. He asked her to get out of the truck to talk with
him and provide her license. The deputy testified that he believed appellant was
under the influence of alcohol or a narcotic because her eyes were red and dilated,
she walked unsteadily, and her speech was slurred. The deputy also noted that
appellant was avoiding eye contact and was “real clinched to her purse, holding on
tight to it.” The deputy testified, “At that point I—I felt there was some kind of
narcotic activity going on.”
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The deputy asked appellant whether there was anything in the purse that could
hurt him, like a knife or a gun. Appellant said, “No”—an answer the deputy would
soon learn was a lie. The deputy asked her where she had been coming from, and
she referred to “the store.” At this point, the traffic stop had lasted about three and a
half minutes.
The deputy spent the next three and a half minutes interrogating appellant. He
told her that he had been following them, he knew that they had been into a house,
he knew “what goes on there,” and the driver had previously been arrested at the
house. He asked appellant multiple times if they got anything from that house, if
appellant had anything illegal on her, and whether she would consent to a search of
her purse. He threatened to “call the dog” multiple times. She denied consent to
search her purse but ultimately admitted that she had a knife in her purse. The deputy
asked appellant to put her purse on the hood of the patrol car, and she complied.
By this point, the traffic stop had lasted about seven minutes. The deputy
relayed the license number over his radio for a warrant check and then questioned
the driver again. The driver maintained that they only went to a store and nowhere
else, but her story unraveled as the deputy continued to question her. She admitted
to driving “through” the area of the house. Then she admitted that she had been at
the house, but it was appellant who went inside the house. Then the driver admitted
that the driver went inside the house to buy “pot.” She said she gave it to appellant.
The driver said that she thought the pot was in appellant’s purse. At about ten and a
half minutes into the stop, the license checks on the driver and appellant came back
“clear.”
The deputy and another officer at the scene had a discussion for about a minute
regarding what the deputy learned from talking with the driver and appellant. The
deputy approached appellant and told her that the driver had said they bought some
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pot. He asked her, “Is it in your purse?” She answered, “Yes.” She offered to show
him where it was, and she said it was “in the middle section, in that side pocket.”
The deputy began searching the purse at about thirteen minutes into the stop and
found the marijuana and Xanax. The deputy formally arrested appellant and,
ultimately, issued a written warning to the driver for the traffic violation.
B. Analysis
The evidence discussed above shows that the deputy expeditiously questioned
the driver and appellant and learned of facts giving rise to a reasonable suspicion
that a crime had been or was being committed. Before the stop and within a few
minutes of the traffic stop’s inception, the deputy knew that (1) the truck was
observed leaving a known drug house; (2) appellant appeared intoxicated with
dilated pupils, slurred speech, and an unsteady walk; (3) appellant was avoiding eye
contact and “clinched to her purse”; and (4) appellant and the driver both lied about
where they had been coming from. These facts, all learned by the deputy less than
four minutes into the traffic stop, gave rise to his reasonable suspicion that a crime
involving narcotics had been or was being committed. See Green v. State, 256
S.W.3d 456, 462–63 (Tex. App.—Waco 2008, no pet.) (reasonable suspicion for
continued detention during traffic stop because the officer had seen the vehicle
parked in front of a known drug house where a person walked from the truck to the
house, the driver got out of and walked away from his truck during the traffic stop,
the driver initially did not comply with the officer’s order to return to the truck, and
the driver was nervous); see also Lindsey v. State, No. 01-15-00649-CR, 2016 WL
5851898, at *1, *3 (Tex. App.—Houston [1st Dist.] Oct. 6, 2016, pet. ref’d) (mem.
op., not designated for publication) (reasonable suspicion based on the passenger’s
presence in a car in front of a known “crack house,” his apparent nervousness, and
the fact that the driver did not have a license or identification); Gonzalez v. State,
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No. 04-14-00709-CR, 2016 WL 1689968, at *1, *5 (Tex. App.—San Antonio Apr.
27, 2016, pet. ref’d) (mem. op., not designated for publication) (reasonable suspicion
to investigate narcotics activity during traffic stop because the driver had parked at
a “suspected narcotics house,” was very nervous, and had lied about his driving
route); Medellin v. State, No. 02-10-00002-CR, 2011 WL 2119668, at *1–2, *5 (Tex.
App.—Fort Worth May 26, 2011, no pet.) (mem. op., not designated for publication)
(reasonable suspicion to prolong a detention for ten minutes for a canine sniff based
on the driver’s leaving a known drug house, extreme nervousness, lack of driver’s
license and proof of insurance, and allowing the officer to search the driver’s person
but to not search the truck); cf. Sieffert v. State, 290 S.W.3d 478, 485–88 (Tex.
App.—Amarillo 2009, no pet.) (holding that a traffic stop was illegally prolonged
without reasonable suspicion when the officer testified that the vehicle was driving
slowly through a high-crime area and the driver was nervous; “Significantly, [the
officer] did not observe any activity prior to the stop that would indicate that the
SUV’s occupants might have engaged in any illegal activity such as stopping near a
known drug house or drug-dealing location . . . .”).2
The deputy “diligently” questioned the driver and appellant, and “we cannot
say that [the deputy] acted unreasonably by questioning Appellant before running
the driver’s license for a warrant check.” See Lerma, 543 S.W.3d at 195 (traffic stop
not illegally prolonged when officer questioned driver and passenger for five
minutes before running warrant checks and learning that the passenger gave a false
name). Soon after the deputy developed reasonable suspicion based on his initial
questioning, he also learned that appellant had lied to him about possessing a knife
in her purse. During additional brief questioning of the driver, about ten minutes
2
We cite unpublished opinions for comparative and illustrative purposes, not for
precedential value. See Peyronel v. State, 465 S.W.3d 650, 652 n.8 (Tex. Crim. App. 2015);
Roberson v. State, 420 S.W.3d 832, 837 (Tex. Crim. App. 2013).
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from the inception of the traffic stop, the deputy learned that the driver and appellant
had engaged in a drug transaction and that the marijuana was in appellant’s purse.
The deputy was still actively involved in the traffic stop when he learned about the
drug transaction, and he had not yet completed all aspects of the traffic stop. See id.
at 194–95 (traffic stop not illegally prolonged when officer had not completed all
tasks associated with traffic stop before the defendant fled from police about nine
minutes from the inception of the stop).
Under the totality of the circumstances, the State has met its burden to show
that the deputy developed reasonable suspicion to prolong the traffic stop and
investigate the suspected narcotics activity. The trial court did not err by overruling
the motion to suppress on the basis of an unreasonably prolonged detention.
IV. Search Incident to Arrest
Appellant contends that the search of her purse was illegal because the State
failed to prove an exception to the warrant requirement. In particular, appellant
contends that the search-incident-to-arrest exception does not apply because
appellant had not been arrested and no exigency justified searching the purse.
In the absence of a warrant, a search is reasonable only if it falls within a
recognized exception to the warrant requirement. State v. Villarreal, 475 S.W.3d
784, 796 (Tex. Crim. App. 2014). One exception, which the State urged the trial
court to apply in this case, is the search-incident-to-arrest exception. See id. Under
this exception, a search must be substantially contemporaneous with the arrest and
is confined to the area within the immediate control of the arrestee. Id. at 807. “If an
officer has probable cause to arrest, a search incident to arrest is valid if conducted
immediately before or after a formal arrest.” State v. Ford, 537 S.W.3d 19, 24 (Tex.
Crim. App. 2017).
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The rationale for permitting a search incident to arrest “derives from interests
in officer safety and evidence preservation that are typically implicated in arrest
situations.” Arizona v. Gant, 556 U.S. 332, 338 (2009). Accordingly, a search that is
“proximate in time and place to the arrest, that is limited to the person of the arrestee
and the area within his reach is a permissible search incident to arrest.” Carrasco v.
State, 712 S.W.2d 120, 122–23 (Tex. Crim. App. 1986) (upholding search incident
to arrest of the defendant’s “shoulder bag” when the search occurred “at the scene
of the arrest, in a public place, and within the appellant’s reach”). A search incident
to arrest extends to “objects immediately associated with the person of the arrestee
or objects in an area within the control of the arrestee.” Id. at 123. “The object need
not be physically attached to the arrestee.” Id. Thus, a search incident to arrest may
include the arrestee’s purse. See id. (discussing multiple cases upholding searches of
the arrestee’s purse); see also Riley v. California, 134 S. Ct. 2473, 2488 (2014)
(noting that lower courts had “approved searches of a variety of personal items
carried by an arrestee,” including purses, wallets, and billfolds).
Appellant does not contend that the deputy lacked probable cause to arrest
her. Indeed, the driver implicated appellant in the possession of marijuana, and
appellant admitted to possessing it. See Sandoval v. State, 860 S.W.2d 255, 259 (Tex.
App.—Houston [1st Dist.] 1993, pet. ref’d) (holding that the officer had probable
cause to arrest the defendant for possession of marijuana when the defendant
admitted to the offense in the officer’s presence). Although the deputy did not
formally arrest appellant until after the deputy located the marijuana inside the purse,
the search was conducted immediately before the formal arrest. Accordingly, the
search was “incident to arrest.” See Ford, 537 S.W.3d at 24.
When appellant admitted that marijuana was in the purse, she was standing
within a few feet of it. And, she had already admitted the purse contained a weapon.
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Thus, both rationales for the search-incident-to-arrest exception applied—officer
safety and evidence preservation. See Carrasco, 712 S.W.2d at 123 (upholding
search incident to arrest of the defendant’s shoulder bag because she was within a
few feet of it and clearly could have obtained access to it; “Had the bag contained a
weapon, the risk of appellant gaining access to it was no less dangerous once in the
hands of the officer standing immediately adjacent to appellant than while it was in
the actual grasp of the appellant.”).
The trial court did not err by overruling the motion to suppress on the basis of
an illegal search.
V. District Court Decision
Appellant notes in her brief that the deputy also discovered methamphetamine
in the purse, and the State prosecuted her for the felony in district court. She
allegedly filed a motion to suppress in the felony case, and the district court granted
the motion after the trial court’s ruling in this case. She contends, “The District
Court’s ruling on the same facts should provide guidance to this Court’s decision.”
She cites no legal authority to support her argument, nor does her argument invoke
any governing legal principles. Accordingly, it is waived. Belle v. State, 543 S.W.3d
871, 875 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (briefing waiver when the
appellant cited no authority in support of his argument); Wooten v. State, 267 S.W.3d
289, 307 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (briefing waiver when
the appellant had not presented any argument in support of the complaint and had
not “addressed any of the governing legal principles or applied them to the facts”).
We do not consider the impact, if any, of the district court’s ruling.
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VI. Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Donovan, Wise, and Jewell.
Publish — Tex. R. App. P. 47.2(b).
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