Arkeith Jermone Davis A/K/A Arkeith J. Davis v. State ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ARKEITH JERMONE DAVIS A/K/A §
ARKEITH J. DAVIS, No. 08-15-00032-CR
§
Appellant, Appeal from the
§
v. Criminal District Court No. 1
§
of Tarrant County, Texas
THE STATE OF TEXAS, §
(TC#1234107D)
Appellee. §
OPINION
Appellant Arkeith Jermone Davis was on community supervision following a deferred
adjudication for possession of codeine. The State moved to proceed to adjudication. Appellant
filed a pretrial motion to suppress concerning a traffic stop in which Appellant was a passenger in
the vehicle. The trial court denied the motion following hearing. Appellant then pleaded true,
reserving the right to appeal the trial court’s ruling on his motion to suppress, and was adjudicated
guilty and sentenced to ten years’ incarceration.
On appeal, Appellant does not question the validity of the initial traffic stop, but contends
the trial court erred in concluding the arresting officers had reasonable suspicion to detain him as a
passenger and to “demand” that he provide identifying information. Appellant also contends the
trial court abused its discretion when it allowed the State to reopen its case three weeks after the
initial hearing on his motion to suppress.1 We affirm.2
BACKGROUND
On February 25, 2014, Fort Worth police officers John Lucas and W. Martin were
patrolling Fort Worth’s east side, when two undercover narcotics officers asked for their assistance
in an investigation concerning Appellant. The narcotics officers gave the officers a description of
Appellant and the clothing he was wearing, and informed them that Appellant had been seen
getting into a vehicle and that the driver had subsequently failed to properly signal a turn. As
Officers Lucas and Martin were following the vehicle, Officer Lucas noticed the car had a paper
tag. When he ran the tag number through the system, it came up invalid. The officers pulled the
vehicle over. Officer Martin approached the driver, while Officer Lucas approached the
passenger. Appellant was the passenger. Officer Lucas acknowledged that up to that point,
Appellant had done nothing wrong and was just sitting in the vehicle.
Appellant provided Officer Lucas with his name and date of birth,3 which Officer Lucas
used to contact the police information center and “run him for outstanding warrants.” Officer
Lucas was advised that Appellant had an outstanding local warrant out of the City of Fort Worth.
After receiving confirmation that the warrant was valid, Officer Lucas asked Appellant to step out
of the vehicle and placed him in handcuffs and under arrest for the outstanding warrant.
“Out of the blue,” Appellant then informed Officer Lucas that he needed to talk and that he
had something in his front pocket. When Officer Lucas searched Appellant’s front pocket he
1
Appellant raised the same two issues in a single brief filed in cause numbers 08-15-00030-CR, 08-15-00031-CR,
08-15-00032-CR, 08-15-00033-CR, and 08-15-00034-CR.
2
This case was transferred from our sister court in Fort Worth, and we decide it in accordance with the precedent of
that Court to the extent required by TEX. R. APP. P. 41.3.
3
Officer Lucas could not recall if Appellant handed him some form of identification “or whether he did it verbally and
I wrote it down.”
2
found a bag containing what he suspected was heroin, cocaine, and marijuana. He also found “a
large quantity of assorted bills” in Appellant’s front pockets and in a wallet in Appellant’s back
pocket. At that point, Officer Lucas put Appellant under arrest for possession. The officers did
not arrest or ticket the driver or take the paper tag off the vehicle, but rather ultimately allowed the
driver to drive away from the scene in the vehicle.
The initial hearing on Appellant’s motion to suppress was held on May 29, 2014. At the
conclusion of the evidence that day, both parties rested and closed, and argued their respective
positions. The trial court indicated it would take the matter under advisement and that court
would reconvene on June 12 “for purposes of the Court’s ruling[.]” A few days later, the State
filed a motion to reopen the evidence to submit additional evidence that Appellant had an
outstanding warrant at the time of the traffic stop, which Appellant opposed. Court reconvened
on June 20, and the trial court granted the State’s motion to reopen, and over objection, allowed the
State to place into evidence a certified copy of the outstanding traffic citation on which the warrant
for Appellant’s arrest had been issued.
The trial court made written findings of fact and concluded that the officers had reasonable
suspicion to make the traffic stop, that Officer Lucas had reasonable suspicion to detain Appellant
in order to obtain his identification, and that Officer Lucas had probable cause to arrest Appellant
on the outstanding warrant and probable cause to search Appellant’s pocket due to Appellant’s
statement that he had something in his front pocket and because the search was incident to
Appellant’s arrest on the outstanding warrant.
DISCUSSION
Detaining a Passenger and Obtaining Identification
3
In his first issue, Appellant does not question the validity of the initial traffic stop, stating
that “even though the motive of the officers was nefarious and pre-textual, they clearly had the
authority to stop a vehicle which had committed even a minor traffic violation within their view.”
See Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992) (an officer may lawfully stop and
detain a person for a traffic violation the officer witnesses); see also Jaganathan v. Texas, 479
S.W.3d 244, 247 (Tex.Crim.App. 2015) (the decision to stop an automobile is reasonable when an
officer has reasonable suspicion to believe that a traffic violation has occurred); Guerra v. State,
432 S.W.3d 905, 911 (Tex.Crim.App. 2014) (same). Appellant contends, however, that despite
having reasonable suspicion to make the traffic stop, the officers did not have reasonable suspicion
to detain him as a passenger and to require him to provide identifying information.
Standard of Review
We review a trial court’s ruling on a motion to suppress under an abuse of discretion
standard and will disturb the lower court’s ruling only if it falls “outside the zone of reasonable
disagreement.” Martinez v. State, 348 S.W.3d 919, 922 (Tex.Crim.App. 2011); State v. Dixon,
206 S.W.3d 587, 590 (Tex.Crim.App. 2006). We afford almost total deference to the trial judge’s
determination of historical facts—if supported by the record. Wade v. State, 422 S.W.3d 661, 666
(Tex.Crim.App. 2013); State v. Woodard, 341 S.W.3d 404, 410 (Tex.Crim.App. 2011) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). We view the evidence in the light
most favorable to the ruling. Wade, 422 S.W.3d at 666; Woodard, 341 S.W.3d at 410 (citing State
v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008)). The prevailing party is afforded
the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
it. Wade, 422 S.W.3d at 666-67; Woodard, 341 S.W.3d at 410. We review de novo the trial
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judge’s application of the law to the facts. Wade, 422 S.W.3d at 667; Valtierra v. State, 310
S.W.3d 442, 447 (Tex.Crim.App. 2010). We will uphold the trial judge’s ruling if it is reasonably
grounded in the record and correct on any theory of law applicable to the case. Wade, 422 S.W.3d
at 667; Valtierra, 310 S.W.3d at 447–48.
Analysis
It is well-settled that when a police officer makes a traffic stop, not only is the driver of the
vehicle seized within the meaning of the Fourth Amendment, but also any passenger is seized as
well, and consequently the passenger may challenge the constitutionality of the stop. Brendlin v.
California, 551 U.S. 249, 251, 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132 (2007). Appellant
concedes that the officers had the right to make the initial traffic stop, but argues they (i) did not
have the right to detain him as “a mere passenger who was not observed violating the law,” (ii) did
not have the right to “demand that he provide identification,” and (iii) that “the detention was so
overly long as to be unreasonable[.]”4
In making these arguments, Appellant relies primarily on the Court of Criminal Appeals
decision in St. George v. State, 237 S.W.3d 720 (Tex.Crim.App. 2007), which was also a
passenger case in which the validity of the initial traffic stop was not in question. We find
Appellant’s reliance is misplaced.
First, the Court in St. George never addressed the officers’ right to detain the passenger
along with the driver during the traffic stop. The only issue in St. George was whether the
officers’ questioning of the appellant violated the Fourth Amendment. See id. at 726. And, after
4
Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), a court must first decide whether the
officer’s action was justified at its inception. Kothe v. State, 152 S.W.3d 54, 63 (Tex.Crim.App. 2004). Because
Appellant concedes the initial stop was justified, we focus on the second factor in Terry—whether the search and
seizure was reasonably related in scope to the circumstances that justified the stop in the first place. Id.
5
St. George was issued, the United States Supreme Court made clear that following a lawful
roadside stop, the police may lawfully detain both the driver and all passengers “pending inquiry
into a vehicular violation,” and that the seizure of the driver and the passengers is reasonable and
ordinarily remains reasonable for the duration of the stop. Arizona v. Johnson, 555 U.S. 323, 327,
333, 129 S. Ct. 781, 784, 788, 172 L. Ed. 2d 694 (2009). Thus, in the present case, the officers had
the right to detain Appellant for the duration of the traffic stop, without any particular reasonable
suspicion that Appellant himself had committed an offense.
Second, St. George made clear that police officers may question a passenger after a legal
stop, as long as it is consensual. See St. George, 237 S.W.3d at 726 (“Absent reasonable
suspicion, officers may conduct only consensual questioning of passengers in a vehicle.”). While
Appellant states in his brief that Officer Lucas had no right to “demand” he provide identification
and that he was subject to “continued, non-consensual questioning,” the record fails to show that
Appellant’s interaction with Officer Lucas was anything but consensual. The trial court found
that Appellant was “asked” for his identification and that Appellant “provided Officer Lucas his
identification information[.]” Officer Lucas testified that Appellant provided him with his name
and date of birth, which Officer Lucas used to contact the police information center to “run him for
outstanding warrants.” There was no evidence that Officer Lucas “demanded” Appellant’s
identification, or even asked for that information more than once, as asserted by Appellant. In
fact, in his cross examination of Officer Lucas, defense counsel characterized that Officer Lucas
had “asked for his I.D[.]” We conclude the record was sufficient to enable the trial court to
reasonably infer that Appellant provided his name and date of birth to Officer Lucas voluntarily.
We note that in St. George, the validity of the officer’s initial request for the passenger’s
6
identification was not in question.5 The only inquiries called into question were the officers’
subsequent inquiries after the passenger had voluntarily given the officers his alleged name and
date of birth, they had run that information, and there was no record of a driver’s license matching
that name and date of birth. Id. at 722, 723 n.2. After the officers had already issued a warning
ticket to the driver, the officers continued to question appellant, and ultimately determined his true
name. Id. at 722. It was this subsequent questioning that was determined to be non-consensual
because the officers requested appellant’s “name and date of birth multiple times and repeatedly
told him that this has to be resolved before he could leave[,]” and because Appellant explicitly
protested. Id. at 726. After appellant finally revealed his real name, the officers ran that name,
found that appellant had outstanding warrants, arrested him on the outstanding warrants, and then
discovered marijuana in their search incident to arrest. Id. at 722. It was within this context that
the Court of Criminal Appeals addressed whether the officers’ “continued questioning” was
unrelated to the justification for the stop and whether, without reasonable suspicion that appellant
was engaged in criminal activity, his “continued detention and investigation” was illegal. Id. at
726. The Court ultimately concluded that the “continued detention was unreasonable, based on
its non-consensual nature and the fact that the deputies lacked reasonable suspicion to continue
questioning Appellant once the initial reason for the traffic stop ended[.]” Id. at 727.
Here, the record supports that when Appellant was asked for his identification, he provided
it willingly. Thus, unlike in St. George where the officers obtained the appellant’s true name and
his warrant information only by continuing to question the appellant despite his protests, Officer
Lucas properly obtained Appellant’s identifying information in a consensual manner and thus
5
The court of appeals had held that the first identification was consensual because the appellant had voluntarily
answered the officer’s question. Id. at 723 n.2.
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properly used that information to determine Appellant’s warrant status.
Third, unlike in St. George where the evidence showed that the officers continued to
question appellant once the initial reason for the traffic stop had ended, there is no evidence in the
present case to show that Appellant’s detention was so overly long as to be unreasonable.
In Johnson, the United States Supreme Court held that following a lawful roadside stop,
the seizure of the driver and passengers ordinarily remains reasonable for the duration of the stop,
which ends when the police have no further need to control the scene and inform the driver and
passengers that they are free to leave. Johnson, 555 U.S. at 333, 129 S.Ct. at 788. The Court
specifically stated: “An officer’s inquiries into matters unrelated to the justification for the traffic
stop, this Court has made plain, do not convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend the duration of the stop.” Id. (citing
Muehler v. Mena, 544 U.S. 93, 100-01, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005)). Similarly, in
State v. Mazuca, 375 S.W.3d 294, 309-10 (Tex.Crim.App. 2012), the Court of Criminal Appeals
recognized that there would be no Fourth Amendment violation when:
[The officer] did not demand that the appellee, a passenger in the car, supply
identification; he merely asked for it. Once the appellee assented to provide that
information, [the officer] immediately conducted a check for warrants, as he was
entitled to do during a routine traffic stop, so long as that warrant check does not
extend the legitimate duration of the traffic stop beyond the scope of its original
justification. [Citations omitted].
In a routine traffic stop, police officers may request certain information from a driver, such
as a driver’s license and car registration, and may conduct a computer check on that information;
the traffic stop is fully resolved only after the computer check is completed, and the officer knows
that the driver has a currently valid license, no outstanding warrants, and the car is not stolen.
Kothe v. State, 152 S.W.3d 54, 63-64 (Tex.Crim.App. 2004). While there was no specific
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timeline developed in the evidence in the present case, there was sufficient evidence from which
the trial court could reasonably infer that Officer Lucas had obtained Appellant’s information and
determined Appellant was subject to an outstanding warrant well before the officers had
completed their check of the driver and the driver was allowed to leave the scene. As such, the
trial court could have reasonably concluded that Appellant’s detention was not so unduly long as to
be unreasonable. See Overshown v. State, 329 S.W.3d 201, 206 (Tex.App. – Houston [14th Dist.]
2010, no pet.) (passenger’s statement properly obtained before traffic stop completed); Roberson
v. State, 311 S.W.3d 642, 646 (Tex.App. – Eastland 2010, no pet.) (passenger’s detention was
permissible where officer had not yet completed his initial investigation). Issue One is overruled.
Allowing the State to Reopen
At the May 29 hearing on Appellant’s motion to suppress, the State placed into evidence a
copy of the outstanding arrest warrant to support Officer Lucas’ testimony that when he ran
Appellant’s identifying information for outstanding warrants, he was advised that Appellant had
one valid, outstanding local warrant from the City of Fort Worth. The warrant had been issued by
the municipal court of the City of Fort Worth to arrest Appellant for the misdemeanor traffic
offense of failing to wear a seat belt. In closing that day, Appellant’s counsel argued that the State
had failed to show there was “an affidavit to support such an arrest warrant.” At the subsequent
June 20 hearing, the State offered into evidence, and the trial court admitted, a certified copy of the
actual traffic ticket underlying the arrest warrant.
In his second issue, Appellant contends the trial court abused its discretion when it allowed
the State to reopen its case three weeks after the initial hearing on his motion to suppress.
Appellant acknowledges that the trial court “has admittedly broad discretion” in allowing a party
9
to reopen, but cites to Article 36.02 of the Texas Code of Criminal Procedure and claims that the
trial court had no discretion to allow the State to reopen after the parties closed and argued the
motion to suppress on May 29, or at least abused its discretion by granting the State’s motion to
reopen without requiring it to show that the evidence was necessary to the due administration of
justice.6
We agree with the State that this issue is controlled by the Court of Criminal Appeals’
decision in Black v. State, 362 S.W.3d 626 (Tex.Crim.App. 2012), and the case discussed
approvingly therein—Montalvo v. State, 846 S.W.2d 133 (Tex.App. – Austin 1993, no pet.).
These cases recognize that a pretrial motion to suppress evidence is nothing more than a
specialized objection to the admissibility of that evidence. Black, 362 S.W.3d at 633; Montalvo,
846 S.W.2d at 137. Accordingly, a ruling on a motion to suppress is interlocutory in nature,
which a trial court can reconsider and revise in its discretion at any time. Black, 362 S.W.3d at
633; Montalvo, 846 S.W.2d at 138. To the extent Article 36.02 circumscribes a trial court’s
authority to reopen a hearing on a motion to suppress, it restricts the court’s discretion only to the
extent it prohibits further evidence of any kind, that is, once the parties have concluded their
arguments at the trial itself. Black, 362 S.W.3d at 634. Therefore, even mid-trial, a trial court
has the discretionary authority to reopen a hearing on a motion to suppress to allow the State to
present additional evidence in support of the trial court’s interlocutory ruling to deny the motion.
Id. at 635.
In Montalvo, the court of appeals concluded that because the trial court was presented with
a State’s motion indicating that the evidence had been lawfully obtained, and because the decision
6
Article 36.02 provides that the “court shall allow testimony to be introduced at any time before the argument of a
cause is concluded, if it appears that it is necessary to a due administration of justice.” TEX. CODE CRIM. PROC. ANN.
art. 36.02 (West 2007).
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to reconsider did not result in a purposeful delay, the trial court did not abuse its discretion in
allowing the State to reopen during trial. Montalvo, 846 S.W.2d at 138. Certainly, when as here
the trial court has not yet made any decision on the motion to suppress and grants the motion to
reopen in a pretrial proceeding and not at trial, the trial court’s decision falls well within its
discretion. Likewise, the record shows that the State moved to reopen in order to present
evidence to further support its position that at the time of the traffic stop, a valid warrant for
Appellant’s arrest was outstanding—evidence that supported Officer Lucas’ testimony that he had
been so advised. Further, the record contains no evidence showing that the trial court’s decision
to allow the State to reopen resulted in any purposeful delay. Accordingly, we conclude the trial
court did not abuse its discretion in granting the State’s motion to reopen and in allowing the State
to submit the additional evidence. Issue Two is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
August 3, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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