James Cole Hanlon v. State ( 2016 )

Opinion filed September 15, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00234-CR
__________
JAMES COLE HANLON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Eastland, Texas
Trial Court Cause No. 1300341
MEMORANDUM OPINION
After the trial court denied his motion to suppress, James Cole Hanlon pleaded
guilty to the misdemeanor offense of possession of marihuana in an amount of less
than two ounces. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(1) (West
2010). The trial court, pursuant to a plea agreement, assessed Appellant’s
punishment at confinement for a term of sixty days in the Eastland County Jail and
a fine in the amount of $500. In a single issue, Appellant challenges the trial court’s
denial of his motion to suppress. We affirm.
In Appellant’s pretrial motion to suppress, he alleged that he was searched
without probable cause, that the search exceeded the scope of a search permitted
under Terry v. Ohio, 392 U.S. 1 (1968), and that, therefore, the evidence seized
during the search should be suppressed. After a hearing, the trial court ruled that the
officer articulated reasonable suspicion by pointing to specific and articulable facts
and denied Appellant’s motion to suppress. The trial court did not enter findings of
fact or conclusions of law.
Appellant’s sole issue on appeal is whether the officer, who had reasonable
suspicion to make an investigative traffic stop of Appellant, then developed such a
reasonable belief that Appellant was armed and dangerous as to justify the officer’s
pat-down search of Appellant. Appellant contends that the officer did not articulate
specific facts that would justify a search of Appellant’s person and that, therefore,
the trial court erred when it denied his motion to suppress.
Trooper Robert McGrath of the Texas Department of Public Safety was the
only witness who testified at the hearing on the motion to suppress. He testified that
he was patrolling the eastbound lanes on Interstate 20 near Cisco when Appellant’s
vehicle caught his attention. Appellant gave a signal to get on the highway but it
was late, and in addition, he was driving below the speed limit. Trooper McGrath
ran Appellant’s license plates through police dispatch and discovered that
Appellant’s license plates were expired; therefore, he initiated a traffic stop. When
he approached the vehicle, he smelled an odor coming from inside the vehicle that
he believed was “K2 or spice.”
Trooper McGrath testified that he had not had any dealings with Appellant
before this stop. He believed that Appellant was acting nervous; Appellant was
fidgeting around in the car trying to find papers. Appellant could not present his
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driver’s license. Trooper McGrath further testified that Appellant’s hands were
moving and shaking and that Appellant was continuously breaking eye contact with
him. He explained that “everybody has a nervousness to an extent, but not to that
extent.” Appellant’s nervousness “was above normal.”
Trooper McGrath went back to his patrol car to prepare the warnings that he
was going to issue Appellant. When he returned to Appellant’s vehicle, he asked
Appellant and Appellant’s passenger to step out of the car so that he could issue the
warnings and talk to Appellant about the odor that was coming from the vehicle.
Trooper McGrath testified that Appellant became more nervous; his hands were
shaking, he was constantly looking around, and he failed to “stay in contact” with
the trooper. Trooper McGrath asked Appellant if he could search his car, and
Appellant consented. Before Trooper McGrath searched the car, he conducted a pat-
down search of Appellant and Appellant’s passenger for safety purposes.
Trooper McGrath explained that he has always conducted a pat-down search
when he searched a person’s vehicle: “If I’m going to search a vehicle, I always pat
down everybody.” He agreed that Interstate 20 was a known drug corridor and that
many felony arrests were made on that highway. He had personally made felony
arrests on that highway. He also testified that Interstate 20 was a busy, dangerous
highway. He testified that it was not unusual for a person that was in possession of
drugs to also be in possession of weapons and that he used caution when he dealt
with drug offenders because some drug offenders were violent people.
Trooper McGrath began the pat-down search by pulling up Appellant’s pants
at the waistline so that he could “relocate [Appellant’s] pants line”; Appellant “had
his pants located lower,” and Trooper McGrath “did not want to touch any private
areas.” When he lifted Appellant’s pants, he observed something slide out of one of
the legs of Appellant’s pants. He continued the pat-down search and then retrieved
the item that fell out of Appellant’s pants. The item was a baggie that contained a
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green leafy substance that had the odor of marihuana. Based on his training and
experience, Trooper McGrath believed that the substance was indeed marihuana,
and he placed Appellant under arrest. When Trooper McGrath conducted a pat-
down search of the passenger, he found a pocket knife.
On cross-examination, Trooper McGrath testified that Appellant was polite
and cooperative. He did not ask Appellant for consent to search Appellant’s person.
He advised Appellant that he was going to pat him down for officer safety and for
Appellant’s safety. Trooper McGrath had no reason to believe that Appellant was a
person who normally carried weapons because he did not know Appellant; however,
he believed “everybody to be armed.” Appellant was not being aggressive and did
not give Trooper McGrath any indication that he belonged to a gang. When asked
if he could testify to anything specific about Appellant that led him to believe that
Appellant was armed, Trooper McGrath responded, “I treat every person I stop as if
they are armed.” He emphasized that Appellant was nervous and that it was standard
operation to conduct a pat-down search.
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.
2000). We give great deference to the trial court’s findings of historical facts as long
as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim.
App. 1997). Even when the trial court does not make explicit findings of historical
fact, we review the evidence adduced at the suppression hearing in the light most
favorable to the trial court’s ruling and assume that the trial court made implicit
findings to support its ruling. Carmouche, 10 S.W.3d at 327–28. We also give
deference to the trial court’s rulings on mixed questions of law and fact when those
rulings turn on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at
87. Where such rulings do not turn on an evaluation of credibility and demeanor,
such as whether there was reasonable suspicion to support a pat-down search, we
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review the trial court’s actions de novo. Id.; State v. Sheppard, 271 S.W.3d 281,
286–87 (Tex. Crim. App. 2008).
A police officer who has lawfully detained a person based upon reasonable
suspicion may conduct a protective pat-down search of the person for weapons if the
officer has a reasonable belief based on specific articulable facts that the person is
armed and dangerous. Carmouche, 10 S.W.3d at 329. The officer does not need to
be “absolutely certain that the individual is armed.” Worthey v. State, 805 S.W.2d
435, 437 (Tex. Crim. App. 1991) (quoting Terry, 392 U.S. at 27). The question is
whether a reasonably prudent person would believe that his safety or the safety of
others was in danger. O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)
(citing Terry, 392 U.S. at 27). We look to whether the facts, when viewed
objectively, support a pat-down search, not at “the officer’s subjective state of mind
or his asserted rationale.” Sheppard, 271 S.W.3d at 287.
The Court of Criminal Appeals has recognized that it is objectively reasonable
for a police officer to believe that individuals involved in the “drug business” are
armed and dangerous. Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006)
(citing Carmouche, 10 S.W.3d at 330). However, in its opinion on rehearing, the
Court of Criminal Appeals instructed that its “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.’” Id. at 411 (op. on reh’g). In addition to the fact that the officers
in Griffin had reasonable suspicion to believe that the defendant was dealing drugs
in a public place, there was also evidence that the defendant had been arrested for
possession of cocaine two days prior to the pat-down search as well as evidence that
the defendant moved his hand toward his pocket during the investigative detention.
Id.
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An officer’s standard operation, without more, is also insufficient to justify a
pat-down search. See O’Hara, 27 S.W.3d at 553 (“We reject the State’s argument
that routine alone is sufficient to justify a pat-down.”). “[C]onstitutional protections
against unreasonable searches cannot be whittled away by police regulations or
standard operating procedure.” Id. at 552–53 (quoting Sikes v. State, 981 S.W.2d
490, 494 (Tex. App.—Austin 1998, no pet.)). However, “sometimes, even when an
officer erroneously conducts the pat-down as a matter of routine, the objective facts
will nevertheless justify the pat-down.” Id. at 554.
Here, although Trooper McGrath emphasized throughout his testimony that it
was his standard procedure to conduct a pat-down search of an individual before he
searched the individual’s vehicle, he also provided other objective facts upon which
a reasonably prudent person could base a belief that his safety or the safety of others
was in danger. See id. at 551 (citing Terry, 392 U.S. at 27). The objective facts
presented in this case were as follows: (1) Trooper McGrath suspected that Appellant
possessed drugs; (2) it is not unusual for an individual that is in possession of drugs
to also be in possession of weapons; (3) the highway on which the traffic stop
occurred was a known drug corridor where many felony arrests had been made;
(4) the stop was a roadside encounter; (5) Trooper McGrath was alone with two adult
males—Appellant and his passenger—on the side of the road; (6) Appellant’s hands
were moving and shaking; (7) Appellant was constantly looking around and did not
maintain eye contact with Trooper McGrath; and (8) Appellant’s nervousness “was
above normal.”
The Court of Criminal Appeals has noted that “roadside encounters between
police and suspects are especially hazardous.” Carmouche, 10 S.W.3d at 330
(quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983)). Here, the facts not only
show that the stop was a roadside encounter but also that it was a roadside encounter
with two individuals and one officer on a busy and dangerous highway that was
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known as a drug corridor. In Sargent v. State, 56 S.W.3d 720, 726 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d), the Fourteenth Court of Appeals held that the
suspicion of drug activity, combined with the fact that the stop was a roadside
encounter and the fact that the defendant failed to identify himself or produce any
identification to the officers, were specific and articulable facts to justify the pat-
down search. Appellant, in this case, was also suspected of possessing drugs and
was unable to produce his driver’s license.
In addition, although not relevant to whether there were objective facts to
support a pat-down search, we note that Appellant consented to the search of his car
and that, while he did not expressly consent to a pat-down search, he also did not
object to the pat-down search. We hold that, based on the objective facts presented
by the State, the State met its burden to show that the specific circumstances in this
case supported a reasonable belief that Appellant was armed and dangerous.
Therefore, Appellant’s sole issue on appeal is overruled.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 15, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall.1
Bailey, J., not participating.
1
Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
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