Donald Eric Wingard, Jr. v. State ( 2012 )

Affirmed and Memorandum Opinion filed August 14, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00633-CR
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DONALD ERIC WINGARD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Cause No. 16,816
MEMORANDUM OPINION
Appellant, Donald Eric Wingard, Jr., pled guilty to the second-degree felony of
possession of a controlled substance and was sentenced to five years in prison. He
retained the right to appeal the trial court’s denial of his pretrial motion to suppress all
evidence resulting from a traffic stop during which the police found illegal drugs on his
person and inside his truck. On appeal, appellant argues that the trial court erred in
denying his motion to suppress because the evidence was the fruit of three allegedly illegal
police actions: (1) stopping appellant without a reasonable suspicion that he was engaged
in criminal activity; (2) frisking him without a reasonable suspicion that he had a weapon;
and (3) exceeding the permissible scope of a weapons search by reaching under appellant’s
waistband and seizing several bags of drugs hidden there. We conclude that the police
acted legally in all of these respects and consequently affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Late on the afternoon of May 18, 2010, Deputies Steven Siracasa and Wesley Male
of the Grimes County Sherriff’s Department were on patrol in Navasota, Texas. The
deputies pulled into a Sonic drive-thru and spotted appellant’s black pickup truck coming
out of the drive-thru at the same time. About a week earlier, Siracasa (along with the other
deputies in the department) had been told by Lieutenant Blake Jarvis that the owner of this
particular truck had been observed engaging in a number of illegal drug transactions. The
deputies followed appellant as he left the drive-thru and pulled into the parking lot of a
Wal-Mart down the street. Deputy Male watched appellant from inside a car dealership
next door. Male saw appellant stop his car in the middle of the parking lot, get out, and
talk with a woman for about 15 seconds before driving off again. Male, who has been
involved with narcotics investigations for many years, “thought it to be a narcotics
transaction.”
Siracasa and Male continued to follow appellant as he left the parking lot of the
Wal-Mart and turned right onto Navasota’s main street. Male noticed appellant make a
“wide right” into one of the center lanes of the street rather than turning into the closest
lane. The deputies followed appellant down the main road as he continued under an
overpass and turned left onto a feeder road. After driving some distance along the right
lane of the feeder road, appellant veered left—across the left lane of the feeder—and got
onto the highway entrance ramp. Appellant failed to use his left turn signal when he
entered the highway. The deputies began signaling for appellant to stop, and appellant
pulled over to the side of the entrance ramp. Due to the highway traffic, Deputy Siracasa
ordered appellant to stand to the rear of the vehicle. According to Deputy Siracasa,
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[appellant] appeared to be nervous. When I would talk to him he wouldn’t
make eye contact, he would shuffle his feet back and forth, appeared to have
a kind of jerky motion about his body as if something—he was nervous about
something.
Deputy Male also said that “[appellant]’s nervousness was a little bit more than I would
suspect for just a normal little traffic stop.” Deputy Male also testified that he saw a white
speck on appellant’s mouth that looked like narcotics. Asked about this, appellant stated
that he had just eaten at Sonic.
While Deputy Male waited with appellant, Deputy Siracasa returned to the patrol
car and ran appellant’s information and driver’s license through a police database. He
found that appellant had a history of drug arrests. Deputy Siracasa asked appellant if he
had ever been arrested in the past, and appellant responded that he had been arrested for
narcotics. Deputy Siracasa explained that among his duties was “to intercept illegal flow
of contraband” and asked “if there was anything in the vehicle that [Deputy Siracasa]
should be concerned about that would be illegal.” Appellant answered that there was not.
Deputy Siracasa asked to search appellant’s vehicle, and appellant responded, “I don’t see
why you need to, but if you want to, go ahead. It’s not a problem.”
Before conducting the vehicle search, Deputy Siracasa asked appellant to turn
around, explaining that he “was going to conduct a pat down of the outer part of his
clothing for weapons for his safety and mine, just to make sure he didn’t have anything that
was going to, you know, poke me, stick me, shoot me.” Appellant was wearing
loose-fitting white shorts—loose enough that his wallet could be discerned when he put it
in his pocket—and a weapon was not immediately visible. Nonetheless, Deputy Siracasa
testified that he felt the patdown was necessary for both his and appellant’s safety. As the
patdown began, appellant tried to reach into his pockets, prompting Deputy Siracasa to tell
him to stop. According to Male, when a suspect reaches into his pockets,
“it raises—it heightens you a little bit, because you don’t know if they’re
trying to grab— you know, what’s in their pocket, whether they have a knife,
a gun or what could be in there, some type of weapon. It’s such—it’s a
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safety issue. You want to make sure that they don’t reach in there because
you don’t know what they can pull out.”
During the patdown, Deputy Siracasa felt a bulge under appellant’s right waist band.
Although the bulge did not feel like a weapon, Deputy Siracasa asked appellant what it
was. Appellant responded that it was “speed,” which is a slang term for
methamphetamines (“meth”), and told Deputy Siracasa, “Go ahead, you can go in there
and get it.” Deputy Male reached under appellant’s waistband and pulled out two baggies
of a crystalline substance that later testing revealed to be meth. Inside the truck, the
deputies found several more bags of meth along with a “meth pipe” commonly used for
smoking meth and a little over $4,000 in cash scattered throughout the interior
compartment. The total amount of meth recovered came to roughly 3.17 ounces.
Appellant was charged with possession of a controlled substance. Before the trial
setting, appellant moved to suppress all “tangible evidence seized . . . in connection with”
the investigation of his case and “any testimony . . . concerning such evidence.” At a
hearing on his motion, the trial court heard testimony from Deputies Siracasa and Male,
summarized above, and from Lieutenant Jarvis, who provided Siracasa with his initial
information that appellant had recently been spotted engaging in a number of drug
transactions. Jarvis testified that he had been given this information by a confidential
informant who had provided reliable information in the past.
After hearing this evidence, the trial court denied appellant’s motion to suppress.
Appellant pled guilty to the charged offense while reserving the right to appeal the trial
court’s denial his motion. The trial court sentenced appellant to five years in prison and
this appeal followed.
II. QUESTIONS PRESENTED
In three issues, appellant argues that the trial court abused its discretion in denying
his motion to suppress because all evidence that he possessed drugs was the fruit of three
allegedly illegal police actions: (1) stopping appellant’s car without a reasonable suspicion
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that he was engaged in criminal activity; (2) frisking him without a reasonable suspicion
that he had a weapon; and (3) exceeding the permissible scope of a weapons search by
reaching under his waistband and seizing the bags of meth hidden there.
III. STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress for an abuse of discretion.
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under this standard of
review, we will uphold the trial court’s ruling if it is reasonably supported by the record
and is correct under any applicable legal theory. Id. The trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their testimony.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court
almost complete deference in determining historical facts, while reviewing de novo its
application of the law to those facts. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.
Crim. App. 2002). Where, as here, the trial court does not file findings of fact, we review
the evidence in the light most favorable to the trial court’s ruling. Torres v. State, 182
S.W.3d 899, 902 (Tex. Crim. App. 2005).
IV. ANALYSIS
(a) Traffic Stop
Appellant first argues that the trial court erred in denying his motion to suppress all
physical and testimonial evidence arising from the traffic stop because the police stopped
him without a reasonable suspicion that he was engaged in criminal activity. Because the
police stopped appellant without a warrant, the State had the burden at the suppression
hearing of proving the reasonableness of the stop. See Russell v. State, 717 S.W.2d 7,
9–10 (Tex. Crim. App. 1986). A police officer may stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion, supported by articulable
facts and rational inferences from those facts, that criminal activity may be afoot. Terry v.
Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Woods v. State, 956 S.W.2d
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33, 35 (Tex. Crim. App. 1997). “This standard is an objective one: there need only be an
objective basis for the stop; the subjective intent of the officer conducting the stop is
irrelevant.” Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (citing Garcia v.
State, 827 S.W.2d 937, 943–44 (Tex. Crim. App. 1992)). “The information provoking the
officer’s suspicions need not be based on his own personal observations, but may be based
on an informant’s tip which bears sufficient ‘indicia of reliability’ to justify a stop.”
Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). The reasonableness of
a temporary detention must be examined in view of the totality of the circumstances.
Woods, 956 S.W.2d at 38.
Here, the police produced evidence that appellant was engaged in two types of
criminal activity: drug-related and traffic-related.1 See Kelly v. State, 331 S.W.3d 541,
549 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“An officer may stop and detain a
person if the officer has reasonable suspicion that a traffic violation was in progress or had
been committed.”). The evidence that appellant was engaged in drug-related activity
included the following: Jarvis told his deputies, including Siracasa, that appellant’s truck
was associated with drug dealing. Jarvis testified that his information was provided by a
confidential informant who had provided reliable information in the past. See
Carmouche, 10 S.W.3d at 328. Jarvis also provided the lieutenants with photographs of
appellant. Siracasa and Male spotted appellant’s truck and followed appellant to the
Wal-Mart parking lot, where Male saw appellant pull into the middle of the parking
lot—far from the store itself—get out of the truck, and rendezvous with a woman for about
15 seconds before leaving. Based on his experience, Male “thought [this] to be a narcotics
transaction.” Taken together, this evidence provided reasonable suspicion to conduct a
stop to investigate drug-related activity.
The police also provided the following evidence that appellant had committed
1
Appellant emphasizes that the deputies admitted they were “looking for a traffic violation” in
order to stop appellant and investigate for drugs, but this is irrelevant because pretextual stops are
permissible. See State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005).
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traffic violations justifying a stop: Deputy Male saw appellant make a “wide right” out of
the Wal-Mart parking lot into a center lane of Navasota’s main street. See TEX. TRANSP.
CODE ANN. § 545.101(a) (West 2011) (“To make a right turn at an intersection, an
operator shall make both the approach and the turn as closely as practicable to the
right-hand curb or edge of the roadway.”).2 Then, both deputies saw appellant veer left
onto the highway from the right lane of the feeder road without using his left-turn signal.
See TEX. TRANSP. CODE ANN. § 545.104(a) (“An operator shall use the signal . . . to
indicate an intention to turn, change lanes, or start from a parked position.”). Viewing this
evidence in a light most favorable to the trial court’s ruling and giving total deference to the
trial court’s credibility-based determinations, we conclude that the State met its burden of
proving the reasonableness of the traffic stop—either for a drug-related or for a
traffic-related infraction—and hold that any evidence resulting from that stop was
admissible. We overrule appellant’s first issue.
(b) Weapons Search
Appellant next contends that the trial court erred in denying his motion to suppress
all physical and testimonial evidence flowing from the weapons search because the
deputies acted illegally in frisking him without a reasonable suspicion that he had a
weapon. “Law enforcement personnel may conduct a limited search for weapons of a
suspect’s outer clothing, even in the absence of probable cause, where an officer
reasonably believes that the suspect is armed and dangerous.” Carmouche, 10 S.W.3d at
329. “However, ‘[t]he purpose of a limited search after [an] investigatory stop is not to
discover evidence of a crime, but to allow the peace officer to pursue investigation without
fear of violence.’” Id. (citing Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App.
2
Appellant argues that the police presented insufficient evidence that the turn he made was not as close as
practicable to the right-hand curb, but Deputy Male testified that it was not. See Hughes v. State 334
S.W.3d 379, 384 (Tex.App.—Amarillo 2011, no pet.) (“We view this issue as turning upon the credibility
of the officer’s testimony about whether or not appellant made a wide right turn. . . . [W]e are cautioned to
give almost total deference to the trial court’s determination of historical facts that turn on the credibility of
the witness.”).
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1974)). Consequently, “the additional intrusion that accompanies a Terry frisk is only
justified where the officer can point to specific and articulable facts which reasonably lead
him to conclude that the suspect might possess a weapon.” Id. (citing Terry, 392 U.S. at
26–27, 88 S. Ct. at 1882–83, and Worthey v. State, 805 S.W.2d 435, 438 (Tex. Crim. App.
1992)).
Before commencing the patdown, Deputy Siracasa confirmed that appellant had
several prior drug arrests. Appellant also admitted as much when Deputy Siracasa asked
him before the patdown. Additionally, Deputy Male had just observed appellant engaging
in what he believed was a drug transaction, and Deputy Siracasa had been told that
appellant had recently been spotted engaging in a number of drug transactions. See id.
(“Since weapons and violence are frequently associated with drug transactions, the officers
reasonably believed that the individual[ ] with whom they were dealing [was] armed and
dangerous.”) (citing United States v. Brown, 913 F.2d 570, 572 (8th Cir 1990)).
Appellant correctly argues that his status as a drug dealer would not alone have justified the
weapons search,3 but here there was other evidence supporting the police’s reasonable
suspicion that appellant had a weapon: Siracasa testified that appellant was “a little bit
more [nervous] than I would suspect for just a normal little traffic stop” and that appellant
reached into his pockets before the search began. See Kelly, 331 S.W.3d at 549–50
(“[N]ervous behavior and furtive movements may constitute factors in determining
reasonable suspicion.”). According to Deputy Male, this heightened the deputies’
concerns for their own safety. The Court of Criminal Appeals has also noted that
3
See Griffin v. State, 415 S.W.2d 403, 411 (Tex. Crim. App. 2006) (op. on reh’g) (“Our opinion on original
submission should not be characterized as holding that an objectively reasonable police officer may base a
determination that his safety is in danger solely upon the basis that ‘the suspect is a drug dealer.’”). In
Griffin, the Court of Criminal Appeals cited as further justification for the search the fact that the officer
knew that the appellant had been arrested for a drug offense a day or two before and “[a] reasonable police
officer could believe that a suspect facing his second arrest on another felony drug charge in two days might
be more likely to engage in violence to avoid this arrest.” Id. at 411 n.3.
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“‘roadside encounters between police and suspects are especially hazardous.’” Id.
(quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481, 77 L. Ed. 2d 1201
(1993)). Viewing the evidence in a light most favorable to the trial court’s ruling, we
conclude that it is sufficient to justify a weapons search of appellant’s person.
Further, appellant had already consented to a search of his vehicle even before the
weapons search, and inside his truck the police found a large amount of meth. See
Carmouche, 10 S.W.3d at 331 (“Consent to search is one of the well-established
exceptions to the constitutional requirements of both a warrant and probable cause.”).
Appellant does not contest the voluntariness of this search. Thus, even if the weapons
search had been impermissible, the admission of the meth found on appellant’s person
would have been harmless due to the independent evidence recovered from appellant’s
truck. 4 We conclude that the trial court did not abuse its discretion in admitting the
evidence seized as a result of the weapons search and overrule appellant’s second issue.
(c) Scope of Weapons Search
Finally, appellant argues that the trial court erred in denying his motion to suppress
all physical and testimonial evidence resulting from the weapons search because the police
exceeded the permissible scope of the weapons search by reaching under his waistband and
seizing the bags of meth hidden there. A police officer in a public place has the authority,
even without a warrant, to seize anything he has probable cause to believe constitutes
contraband. State v. Dobbs, 323 S.W.3d 184, 187 (Tex. Crim. App. 2010). “If the
protective search goes beyond what is necessary to determine if the suspect is armed, it is
no longer valid under Terry, and its fruits will be suppressed.” Minnesota v. Dickerson,
508 U.S. 366, 373, 113 S. Ct. 2130, 2136, 124 L. Ed. 2d 334 (1993). However, when “a
police officer lawfully pats down a suspect’s outer clothing and feels an object whose
contour or mass makes its identity immediately apparent, there has been no invasion of the
4
Appellant does not argue that the meth found under his waistband added to the total in a way that
affected his conviction or punishment.
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suspect’s privacy beyond that already authorized by the officer’s search for weapons.”
Dickerson, 508 U.S. at 375, 113 S. Ct. at 2137.
Appellant argues that because Deputy Siracasa, who conducted the patdown, had
never investigated drug-possession cases before, he did not immediately recognize that the
lump he felt under appellant’s waistband was meth. Therefore, by reaching into
appellant’s waistband, Deputy Male exceeded the valid scope of Deputy Siracasa’s search.
However, Deputy Siracasa testified that when he asked appellant what the lump was,
appellant told him, “Go ahead, you can go in there and get it. It’s speed.” Appellant thus
consented to the search, and also provided probable cause to believe that the lump was in
fact contraband. See Dickerson, 508 U.S. at 377, 113 S. Ct. at 2138 (“The seizure of an
item whose identity is already known occasions no further invasion of privacy.”).
Further, as noted above, appellant had already consented to a search of his vehicle even
before the weapons search. This search yielded evidence that independently supported
appellant’s conviction. Appellant does not contend that his consent to either the drug
seizure or the vehicle search was involuntary. Thus, even if the search had exceeded the
valid scope of a weapons search, the admission of the meth found on appellant’s person
would have been harmless.
We overrule appellant’s third issue.
IV. CONCLUSION
Because the trial court did not abuse its discretion in denying the motion to
suppress, we affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Jamison, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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