Kendrae Shondell Johnson v. State ( 2008 )

Affirmed and Memorandum Opinion filed November 25, 2008

Affirmed and Memorandum Opinion filed November 25, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00818-CR

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KENDRAE SHONDELL JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 1114458

M E M O R A N D U M   O P I N I O N

Following the trial court=s denial of his pretrial motion to suppress evidence, appellant Kendrae Shondell Johnson pleaded guilty to possession with intent to deliver methamphetamine weighing more than four grams and less than four hundred grams.  In his sole issue, appellant argues the trial court erred in denying his motion to suppress.  We affirm.

Officer Brian Skero testified to the following facts at the motion to suppress hearing.  While Officer Skero and his partner were investigating loiterers at a bus shelter, they became suspicious of appellant=s car, which had passed by the shelter three times at low speed.  They followed appellant=s car and stopped it after observing two traffic violations: appellant=s license plate was obscured, and he failed to signal within one hundred feet prior to turning.

While advising appellant of the violations, Officer Skero smelled Awhat appeared to be marijuana, burned marijuana emitting from the vehicle.@  Officer Skero had appellant exit the vehicle and take a field sobriety test, which showed appellant was intoxicated.  During subsequent questioning, appellant claimed to be coming from work at a building that had not existed for two years.  Officer Skero then requested consent to search appellant=s car.  Appellant refused, and Officer Skero called a K-9 unit.  The canine gave positive alerts to appellant=s car, and a subsequent search uncovered marijuana and ecstasy pills.

Appellant was indicted for possessing the ecstasy pills, a methamphetamine.  He filed a motion to suppress, arguing that the evidence was obtained through an illegal search and seizure.  The trial court denied his motion.  This appeal followed.

We review the denial of a motion to suppress for abuse of discretion, giving almost total deference to a trial court=s determination of historical facts and reviewing de novo the court=s application of search and seizure law.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  Here, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact supported in the record.  Carmouche v. State, 10 S.W.3d 323, 327B28 (Tex. Crim. App. 2000).

Circumstances short of probable cause may justify a temporary investigative detention when specific, articulable facts create a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  In the context of a traffic stop, such a detention must not last longer than is necessary to carry out the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500 (1983).  If the detention lasts longer, then it becomes an arrest and is illegal without probable cause.  See id.

Appellant=s argument that the trial court erred by refusing to suppress evidence obtained through an illegal, warrantless detention, search, and seizure is based on two alternative theories: either (1) the investigative detention was converted into an invalid arrest because of its unreasonable duration or (2) the police lacked probable cause to arrest appellant and search his vehicle.  We do not analyze whether appellant was subjected to an unreasonably lengthy investigative detention because we hold that, even assuming the detention was so lengthy as to become an arrest, probable cause existed to arrest him and search his vehicle.

Officer Skero testified he smelled Awhat appeared to be marijuana, burned marijuana@ emanating from the vehicle while questioning appellant during a valid traffic stop.  It is well settled that probable cause to conduct a warrantless search of a validly stopped vehicle exists when the searching officer, experienced in detecting the odor of marijuana, smells burned marijuana emanating from the vehicle.  See United States v. Johns, 469 U.S. 478, 482 (1985); Leonard v. State, 496 S.W.2d 576, 578 (Tex. Crim. App. 1973); Polk v. State, No. 14-05-00793-CR, 2006 WL 3026345, at *2 (Tex. App.CHouston [14th Dist.] July 25, 2006, pet. ref=d) (mem. op., not designated for publication) (citing Leonard).  Appellant=s probable cause challenge is founded on Officer Skero=s cross-examination explanation that he only reported smelling Awhat appeared to be@ marijuana based on his previous police experience because he did not want A100 percent to say it was marijuana and be wrong,@ and that he Acould have been wrong@ about the smell.  But probable cause deals with probabilities, requiring more than mere suspicion but far less evidence than that necessary to support a conviction or finding by a preponderance of the evidence.  Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  Probable cause to search exists when facts and circumstances within the knowledge of the officer on the scene would lead a reasonable person to believe that an instrumentality of a crime or evidence of a crime will be found.  McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). The law does not require Officer Skero to have been one hundred percent certain that the odor he smelled emanating from appellant=s car was in fact marijuana odor. Based on his police training and experience, the odor emanating from appellant=s vehicle appeared to Officer Skero to be that of marijuana or burned marijuana, and that fact was sufficient to lead a reasonable person to believe that an instrumentality of crime or evidence of a crime would be found in appellant=s car.  Therefore, Officer Skero had probable cause to arrest appellant and search his vehicle based on the odor.

Furthermore, appellant=s failure of the field sobriety test also provided a basis for probable cause to arrest him.  See State v. Stevenson, 958 S.W.2d 824, 829 n.7 (Tex. Crim. App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)).  A search of his vehicle incident to that arrest would have been proper.  New York v. Belton, 453 U.S. 454, 460 (1981) (search of passenger compartment of vehicle incident to lawful arrest allowed); State v. Gray, 158 S.W.3d 465, 470 (Tex. Crim. App. 2005) (same).  Additionally, appellant=s statement regarding returning from work at a building that had not existed for two years is a lie or evasive statement that may also be considered in determining the existence of probable cause.  See Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991); Johnson v. State, 751 S.W.2d 926, 929 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d).

Because there was probable cause to arrest appellant and search his vehicle, the trial court did not abuse its discretion in denying appellant=s motion to suppress evidence.  We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed November 25, 2008.

Panel consists of Justices Yates, Anderson, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).