Elizabeth A. Rodriguez v. State ( 2009 )

Affirmed and Memorandum Opinion filed December 3, 2009

In The

Fourteenth Court of Appeals

NO. 14-08-00906-CR

Elizabeth A. Rodriguez, Appellant

v.

The State of Texas, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 1152814

MEMORANDUM OPINION

A grand jury indicted appellant Elizabeth A. Rodriguez for the offense of possession of a controlled substance.  After the trial court denied her motion to suppress, appellant pleaded guilty to the offense; the trial court placed her on deferred adjudication for two years.  We affirm.

Background

Appellant filed a motion to suppress the narcotics discovered on her person after a traffic stop.  The trial court heard the motion to suppress through opposing affidavits.[1] Viewing the evidence in the light most favorable to the trial court’s ruling,[2] the record reflects the following:

Around 10:30 p.m. on February 7, 2008, Harris County Sheriff’s Deputy R. Persaud pulled a vehicle over for a traffic violation. Appellant was the front seat passenger in the vehicle.  When Deputy Persaud approached the driver’s side of the vehicle, he smelled “a strong odor of burnt marijuana” coming from inside the car.  He asked the driver to get out of the vehicle and patted him down; Deputy Persaud discovered cocaine in the driver’s front pocket.  He placed the driver in the back seat of his patrol vehicle.

Deputy Persaud then asked appellant to exit the vehicle; as she was exiting, he saw a marijuana cigar on her seat.  He conducted a pat-down search of appellant and found nothing.  He then placed appellant in the back seat of his patrol car.  Deputy Persaud returned to the vehicle to search for more contraband, but found nothing else.  When he returned to his patrol car, he noticed that appellant had unbuttoned her pants.  He removed her from his patrol car to see if she had dropped any small weapons or contraband in the back seat of his vehicle.  After he found nothing, he asked appellant if she had any narcotics on her person that he needed to know about.  She admitted she had pills in the “inside . . . back area of her pants.”  Appellant retrieved a small pill bottle containing six pills from inside her pants.  The pills field-tested positive for a methamphetamine substance that Deputy Persaud identified as Ecstasy. 

According to Deputy Persaud, during the investigation appellant was handcuffed and placed in the back of his vehicle for “officer safety”; she was not under arrest at the time she made the statement to him regarding the pills in her pants or when she willingly turned over the drugs to him.

After the trial court denied her motion to suppress the evidence, appellant pleaded guilty.  Pursuant to a plea agreement with the State, the trial court entered an order of deferred adjudication and placed appellant on community supervision for two years.  The trial court also filed “findings and conclusions.”[3] The trial court certified appellant’s right to appeal the denial of her motion to suppress, and this appeal timely ensued.

Analysis

In three issues, appellant challenges the trial court’s ruling on her motion to suppress evidence.  She asserts the trial court abused its discretion in denying her motion to suppress; she challenges the trial court’s finding that Deputy Persaud discovered a marijuana cigar in her seat; and she contends the trial court erred in concluding that her statement in response to Deputy Persaud’s question did not result from police interrogation because she was not under arrest.

A.         Standard of Review

When reviewing a trial court’s ruling on a motion to suppress, we “must view the evidence in the light most favorable to the trial court’s ruling.”  Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the case even if the trial court gave the wrong reason for its ruling.  Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (en banc).  Where, as here, the trial court determines the motion to suppress based solely on competing affidavits, we defer to the trial court’s determination of historical facts.  See Manzi v. State, 88 S.W.3d 240, 243–44 (Tex. Crim. App. 2002) (en banc).  We generally review de novo the trial court’s application of the law to the facts, unless resolution of the legal issues turns on an evaluation of credibility and demeanor, in which case we must afford “almost total deference” to the trial court’s ruling.  See State v. Ross, 32 S.W.3d 853, 856–57 (Tex. Crim. App. 2000) (en banc). 

B.         Application

Appellant summarizes her argument as follows:

[Appellant’s] argument herein is two-fold.  First, while the initial detention and pat down search by the officer may have been reasonable, after the search of the suspect vehicle and pat down of [appellant]’s person disclosed no contraband, any further detention would be unfounded since there was no basis to believe she had or was about to commit a violation of any kind.  Second, when the police continued the use of handcuffs and refused to allow [appellant] to leave, but instead, subjected her to an interrogation in the presence of several on-the-scene police officers to determine if she possessed any narcotics or other contraband, converted [sic] an otherwise temporary detention into an unlawful arrest so that the fruits of the unlawful, extended, illegal arrest and non-Mirandized statements were tainted and subject to suppression.  The trial court’s conclusion to the contrary in denying [appellant’s] motion to suppress was clearly erroneous and constituted an abuse of discretion violating the mandatory directive of Article 38.23 of the Texas Code of Criminal Procedure.

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest.  See Terry v. Ohio, 392 U.S. 1, 22 (1968); Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  An officer must have reasonable suspicion to justify an investigatory stop.  See United States v. Sokolow, 490 U.S. 1, 7 (1989).  Reasonable suspicion for an investigatory detention arises when an officer has specific articulable facts which, premised upon his experience and personal knowledge and coupled with the logical inferences from those facts, warrant intruding upon the detained citizen’s freedom.  Chapnick, 25 S.W.3d at 877.  The validity of the stop is determined from the totality of the circumstances.  Id. (citing Sokolow, 490 U.S. at 8).  An officer may handcuff a suspect and place her in the patrol car during an investigatory detention if it is reasonably necessary to continue the investigation, maintain the status quo, and insure the safety of the officer.[4] An investigatory detention must last “no longer than is necessary to effectuate the purpose of the stop....  The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”  Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (en banc).  But if an officer develops a reasonable suspicion that a person is engaged in, or soon will engage in, criminal activity, he may continue to detain her for investigation unrelated to the initial traffic stop.  See Taylor v. State, 20 S.W.3d 51, 56 (Tex. App.—Texarkana 2000, pet. ref’d) (citing Davis, 947 S.W.2d at 245).  

The record reflects that after Deputy Persaud made the traffic stop, he smelled a strong odor of burnt marijuana emanating from the vehicle, and he saw a cigar containing a “green leafy substance” on appellant’s seat when he asked her to exit the vehicle.[5] See id. (stating that the odor of marijuana emanating from a vehicle provides reasonable suspicion of criminal activity sufficient to support a temporary detention).  After patting down appellant and finding nothing on her, Deputy Persaud handcuffed appellant and put her in the back seat of the patrol car while he searched the vehicle.  Finding nothing significant during the search, Deputy Persaud returned to his patrol car and he observed that appellant had unbuttoned her pants.  He removed appellant from the patrol car and asked if she had contraband on her that he needed to know about, and she admitted she had pills in her pants, which she removed and gave to him.

Based on the record, the trial court could have reasonably concluded that appellant was legally detained for investigatory purposes when she was handcuffed and placed in the back of the patrol car while the vehicle was searched.  Further, when Deputy Persaud observed that appellant had unbuttoned her pants while she was in the patrol car, it was reasonable for the officer to extend the detention to investigate whether appellant had concealed or disposed of contraband.  Thus, appellant was not under arrest when she made the statement admitting she had drugs in her pants.  The trial court did not err in denying appellant’s motion to suppress.

Conclusion

We affirm the trial court’s judgment.

                                                                        /s/        Margaret Garner Mirabal

                                                                                    Justice

Panel consists of Justices Anderson and Boyce and Senior Justice Mirabal.*

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

---

[1] See Tex. Code Crim. Proc. Ann. art.  28.01 § 1(6) (Vernon 2006).

[2] Baldwin v. State, 278 S.W.3d 367, 379 (Tex. Crim. App. 2009).

[3] These findings and conclusions provide:

Pursuant to Tex. Code (Tex. Crim. App. P. art. 38.22 (hereafter referred to as “Article 38.22”), the court makes the following findings and conclusions:

Harris County Sheriff’s Deputy Ronathan Persaud observed a car commit a traffic violation.  He pulled the car over.  It was occupied by driver Virgilio Trevino and front seat passenger, Elizabeth Rodriguez (hereafter “defendant”).

Persaud asked Trevino to get out of the car.  He smelled the odor of marijuana.  He patted down Trevino and found cocaine in his pocket.  He put Trevino into the backseat of the patrol car.

Persaud then approached the defendant and asked her to get out of the car.  He saw a marijuana cigar on the front passenger seat.  He patted her down, found nothing on her, handcuffed her and put her in the backseat of the patrol car while he searched the car.  Finding nothing significant in the car, he returned to the defendant and noticed her pants were unbuttoned.  He took her out of the patrol car and asked if she had contraband on her that he needed to know about.  She admitted she had pills in her pants.  Persaud found a pill bottle in the back of her pants.  It contained six Ecstasy tablets.

The defendant’s statement is admissible because she was not under arrest when she made it, and it was not in response to “interrogation” as that term is used in Article 38.22.  Therefore, the defendant’s motion to suppress is denied.

[4] See, e.g., United States v. Sanders, 994 F.2d 200, 205–08 (5th Cir. 1993) (summarizing cases in which handcuffing suspect was permissible during an investigative detention); Josey v. State, 981 S.W.2d 831, 840 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (stating that during an investigative detention, an officer may handcuff a suspect in certain circumstances); see also Perez v. State, 818 S.W.2d 512, 516 (Tex. App.—Houston [1st Dist.] 1991, no pet.) (concluding that moving suspects to a private area to continue investigation did not “taint” the detention).

[5] Deputy Persaud’s pat-down search of the driver resulted in the discovery of cocaine in his pocket.  The record does not reflect that any marijuana was discovered on his person.  The trial court could have reasonably concluded that Deputy Persaud saw a marijuana cigar on the front passenger seat.

* Senior Justice Margaret Garner Mirabal sitting by assignment.