Brian Bolen A/K/A Brian P. Bolen v. State ( 2015 )

NUMBER 13-14-00321-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BRIAN BOLEN A/K/A
BRIAN P. BOLEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
By three issues, which we will address as one, appellant, Brian Bolen A/K/A Brian
P. Bolen, challenges the trial court’s denial of his motion to suppress evidence. We
affirm.
I. BACKGROUND
The State indicted Bolen for: (1) possession of marijuana in an amount of 2,000
pounds or less, but more than fifty pounds; and (2) possession of a controlled substance,
penalty group one, in an amount of 400 grams or more. See TEX. HEALTH & SAFETY
CODE ANN. §§ 481.121(a), (b)(5); 481.115(a), (f) (West, Westlaw through 2015 R.S.).
Acting on a tip related to drug activity, officers entered a property in Cameron
County and were given consent to search the property by its owner. During the search,
Bolen entered the property in a pickup truck through a gate in the fence line. Upon
spotting the officers, Bolen spun the pickup around and drove off at a high rate of speed
away from the property being searched. After taking officers on a high-speed chase,
Bolen wrecked the truck he was driving into a set of trees, causing bundles of marijuana
to fly out of the bed of the truck. Police subsequently arrested Bolen and charged him
as stated.
Bolen filed a pre-trial motion to suppress regarding the probable cause for the stop
and search of his vehicle. A hearing was held by the trial court where multiple law
enforcement officers and Bolen testified, and the trial court denied Bolen’s motion to
suppress. Bolen subsequently pleaded guilty and received a sentence of ten years
imprisonment in the Texas Department of Criminal Justice–Institutional Division (TDCJ–
ID). However, Bolen retained the right to appeal any motions that were argued pre-trial
as part of his plea agreement. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West,
Westlaw through 2015 R.S.). He appeals the denial of his motion to suppress.
II. MOTION TO SUPPRESS
By his issues challenging the denial of his motion to suppress, Bolen argues that:
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(1) there was no reasonable suspicion to stop or detain him at the time of the initial
encounter; (2) an officer could not stop Bolen for turning or “fishtailing” on private property;
and (3) the lawfulness of the search depends on the circumstances of the initial detention,
not subsequent acts.1 We will address his three issues as one. See TEX. R. APP. P.
47.1.
A. Standard of Review
We review a trial court's decision on a motion to suppress for an abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse
of discretion analysis, we use a bifurcated standard of review. State v. Ross, 32 S.W.3d
853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88
(Tex. Crim. App. 1997) (en banc)). We give almost total deference to the trial court's
findings of historical fact that are supported by the record and to its resolution of mixed
questions of law and fact that turn on an evaluation of credibility and demeanor. Amador
v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89).
We “review de novo ‘mixed questions of law and fact’ that do not depend upon credibility
and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App.
2006)).
B. Applicable Law
A “law enforcement officer may stop and briefly detain a person for investigative
1 During the pre-trial hearing on Bolen’s motion to suppress, Bolen narrowed the scope of his
general pre-trial motion to suppress. On questioning from the State, Bolen agreed that the scope of the
motion was regarding the probable cause for the stop only. Bolen’s trial counsel also informed the trial
court of the two issues he was arguing: (1) was there reasonable suspicion to stop Bolen’s vehicle, and
(2) was there probable cause to search Bolen’s vehicle or an exception to the requirement for a warrantless
search. We believe these issues were more succinctly addressed in Bolen’s appellate brief.
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purposes on less information than is constitutionally required for probable cause to
arrest.” Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010); see Terry v. Ohio,
392 U.S. 1, 21 (1968). The “lower standard of reasonable suspicion is derived from the
probable cause standard and applies only to those brief detentions which fall short of
being full-scale searches and seizures.” Woods v. State, 956 S.W.3d 33, 35 (Tex. Crim.
App. 1997) (en banc). “A police officer has reasonable suspicion to detain [an individual]
if he has specific, articulable facts that, combined with rational inferences from those
facts, would lead him to reasonably conclude that the person detained is, has been, or
soon will be engaged in criminal activity.” Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011); see United States v. Sokolow, 490 U.S. 1, 7 (1989). “This
standard is an objective one that disregards the actual subjective intent of the arresting
officer and looks, instead, to whether there was an objectively justifiable basis for the
detention.” Derichsweiler, 348 S.W.3d at 914; see Terry, 392 U.S.at 21–22.
Additionally, we must look to the “totality of the circumstances; those
circumstances may all seem innocent enough in isolation, but if they combine to
reasonably suggest the imminence of criminal conduct, an investigative detention is
justified.” Derichsweiler, 348 S.W.3d at 914; see United States v. Cortez, 449 U.S. 411,
417–18 (1981). “The relevant inquiry is not whether particular conduct is innocent or
criminal, but the degree of suspicion that attaches to particular non-criminal acts.”
Derichsweiler, 348 S.W.3d at 914 (quoting Woods, 956 S.W.2d at 28); see Arguellez v.
State, 409 S.W.3d 657, 663 (Tex Crim. App. 2013). The “detaining officer need not be
personally aware of every fact that objectively supports a reasonable suspicion to detain;
rather, ‘the cumulative information known to the cooperating officers at the time of the
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stop is to be considered in determining whether reasonable suspicion exists.’”
Derichsweiler, 348 S.W.3d at 914.
C. Discussion
Bolen first argues that there was no reasonable suspicion to stop or detain him.
We disagree. The cumulative information known to the officers at the time Bolen
appeared on the scene and fled was enough for the officers to determine that reasonable
suspicion existed. See id. The trial court issued extensive findings of fact and
conclusions of law following the suppression hearing. In relevant part, the trial court
found:
I. FINDINGS OF FACT
....
2. Commander Leonel Silva of the Cameron County District Attorney’s
Office Special Investigations Unit testified that the Hidalgo County
Narcotics Task Force forwarded intelligence regarding narcotics
activity at a property on Altas Palmas Road in Harlingen, Texas.
3. Commander Silva subsequently organized surveillance near the
property. Commander Silva testified that he observed constant
vehicular traffic to and from the property. The property was
enclosed by a fence, and investigators observed livestock and
buildings along with pedestrian and vehicular traffic. Commander
Silva testified that the pattern of traffic was consistent with that of
narcotics activity.
....
5. Investigators then entered the property in six or seven unmarked
vehicles and two marked Cameron County Sheriff’s Department
units. Commander Silva then made contact with proprietor Jorge
Videles, who signed consent to search form [sic]. . . .
6. [Homeland Security Investigations] Special Agent [Tanner] Whatley
testified that he wore a black bullet proof vest with POLICE
prominently displayed, a badge, a drop-leg holster with a sidearm
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and a submachine gun across his chest. He testified that all law
enforcement officers were dressed in proper police identifiers.
....
8. Investigators then observed the driver of a red Ford F-150 truck, the
Defendant, open the property gate, enter the property, and close the
gate. The Defendant then drove into the open field and headed
towards the investigators. Special Agent Whatley walked toward
the vehicle to initiate contact with the driver. Whatley testified that
he raised his hand, and made eye-contact with the driver, who then
abruptly turned the vehicle, spinning his tires, and fish-tailed toward
the gate.
9. The Defendant then exited the property, closed the gate, and drove
onto the roadway. . . .Special Agent Whatley then pushed through
the gate with his truck. All other officers ran to their vehicles and
according to testimony, the Defendant drove recklessly on Altas
Palmas Road.
10. The Defendant continued northbound on Altas Palmas Road at high
rate of speed and weaving in and out of traffic. With lights and
sirens, the two marked units took the lead in the pursuit of the
Defendant. One marked unit crashed into a concrete traffic barrier.
During the pursuit, the Defendant’s [sic] drove in excess of 100 miles
per hour.
11. The Defendant ultimately entered a trailer park, at which time he
drove over several fence points [sic] and wrecked into several palm
trees. Two bundles of what appeared to be marihuana flew out of
the truck bed. The Defendant ran from the crash site. Law
enforcement chased the Defendant and apprehended him.
Additional bundles remained in the truck bed. No search of the
truck was necessary as the marihuana was in plain view. . . .
II. CONCLUSIONS OF LAW
....
2. The Defendant entered the property during the investigation.
Special Agent Whatley, wearing proper POLICE identifiers,
approached the Defendant in an attempt to initiate verbal contact.
Based on the initial report of narcotics activity on the property, the
narcotics investigator had reasonable suspicion to speak with the
Defendant. Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997);
Curtis v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007).
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An “individual’s presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion that the person is
committing a crime.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000); see State v. Kerwick,
393 S.W.3d 270, 276 (Tex. Crim. App. 2013). However, “officers are not required to
ignore the relevant characteristics of a location in determining whether the circumstances
are sufficiently suspicious to warrant further investigation.” Wardlow, 512 U.S. at 124.
In Wardlow, police arrived at an area known for drug trafficking. Id. at 121. Upon
noticing the police, Wardlow ran. Id. at 122. However, the Court found it was not just
Wardlow’s running that provided enough for reasonable suspicion, but also the facts that
it was an area known for narcotics trafficking, that Wardlow had an opaque bag in his
hand, and it was common for weapons to be near areas where drug trafficking occurs.
Id. at 124–25. The Court agreed that all of those factors were relevant in making a
determination for reasonable suspicion. Id.
Here, similar to Wardlow, Bolen’s presence at the home was not the sole reason
for the aroused suspicions of the officers, but “his unprovoked flight upon noticing the
police” was a relevant factor. Id. The Supreme Court has “recognized that nervous,
evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. at 124;
see United States v. Brignoni-Ponce, 422 U.S. 873 (1975). “Headlong flight–wherever
it occurs–is the consummate act of evasion; [i]t is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.” Wardlow, 528 U.S. at 124. “Flight,
by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.
Allowing officers confronted with such flight to stop the fugitive and investigate further is
quite consistent with the individual’s right to go about his business or to stay put and
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remain silent in the face of police questioning.” Id. at 125. Therefore, the
“determination of reasonable suspicion must be based on commonsense judgments and
inferences about human behavior.” Id.; see Cortez, 449 U.S. at 418.
Based on the actions officers observed, there was reasonable suspicion for the
officers to attempt to make initial contact with Bolen. Special Agent Whatley testified
during the hearing and explained that he attempted to make initial contact with Bolen, but
Bolen fled. Whatley also testified that the search of the property was ongoing when
Bolen entered the property, and Bolen’s pickup was the only vehicle that came onto the
property during the search. Based on the tip regarding drugs on the property, the
surveillance by Silva of vehicles entering and exiting the property, and the ongoing
property search at the time Bolen entered the property, we hold that reasonable suspicion
existed for members of law enforcement to make contact with Bolen and ascertain why
he had arrived at the property officers were searching. Once on the roadway and fleeing
from police, Bolen committed various offenses including: evading officers with a motor
vehicle, driving recklessly, as well as other traffic violations. See TEX. PENAL CODE ANN.
§ 38.04(b)(2) (West, Westlaw through 2015 R.S.); TEX. TRANSP. CODE ANN. § 545.401
(West, Westlaw through 2015 R.S.). Bolen then wrecked his vehicle, causing bundles
of marijuana concealed in the bed of the pickup under mesquite logs and drywall, to fly
out of the bed and land in the surrounding area. Officers were then able to discover
multiple other bundles of marijuana in their plain view in the bed of the truck.
Bolen was never detained or stopped prior to his arrest, even though officers
attempted to speak to him. His arrest was the initial detention. The subsequent search
and arrest of Bolen came after felony offenses were committed in the presence of
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officers.2 See TEX. CODE CRIM. PROC. ANN. art. 14.01. Therefore, the trial court did not
abuse its discretion in denying his motion to suppress.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
19th day of November, 2015.
2 Article 14.01 of the code of criminal procedure states: (a) a peace officer or any other person,
may, without a warrant, arrest an offender when the offense is committed in his presence or within his view,
if the offense is one classified as a felony or as an offense against the public peace; or (b) a peace officer
may arrest an offender without a warrant for any offense committed in his presence or within his view.
(West, Westlaw through 2015 R.S.).
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