Carl Darhal Evans v. State ( 2013 )

Opinion filed July 25, 2013
In The
Eleventh Court of Appeals
__________
No. 11-11-00193-CR
__________
CARL DARHAL EVANS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 9597-D
MEMORANDUM OPINION
The jury convicted Carl Darhal Evans of possession of a controlled
substance and assessed his punishment at twenty years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice and a $10,000
fine. In his sole issue on appeal, Appellant complains that the trial court erred in
denying his motion to suppress. We affirm.
Background Facts
Officer Christopher Collins of the Abilene Police Department testified that
he observed Appellant parked outside a residence at 1:30 a.m. on April 2, 2010.
Officer Collins testified that the residence is well known as a location where the
trafficking of illegal narcotics occurs. Appellant was sitting inside his car talking
to a male outside of the residence. As Appellant drove away from the residence,
Officer Collins observed him commit two traffic violations. Officer Collins
initiated a traffic stop of Appellant upon observing the traffic violations. He
testified that, at the time of the stop, he suspected that Appellant was engaging in
illegal drug activity. Appellant drove ten blocks before stopping his vehicle. After
Appellant came to a stop, Officer Collins called for Officer Thomas Joel Peavy III,
a “K-9” officer, to report to the scene to conduct an open air search of Appellant’s
vehicle with a drug-detection dog. Officer Peavy had the dog conduct an open air
search around the vehicle, and the dog alerted on the driver’s side door of the
vehicle. Officer Peavy testified that he searched the vehicle and found a rock of
crack cocaine located within a slit in the driver’s side seat.
Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011);
Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). In reviewing a
ruling on a motion to suppress, we apply a bifurcated standard of review.
Martinez, 348 S.W.3d at 922–23; Hubert v. State, 312 S.W.3d 554, 559 (Tex.
Crim. App. 2010). First, we afford almost total deference to the trial court’s
determination of historical facts and of mixed questions of law and fact that turn on
the weight or credibility of the evidence. Martinez, 348 S.W.3d at 922–23; Lujan,
331 S.W.3d at 771. Second, we review de novo the trial court’s determination of
pure questions of law and mixed questions of law and fact that do not depend on
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credibility determinations. Martinez, 348 S.W.3d at 923. Thus, we review de
novo the issue of whether the totality of the circumstances was sufficient to support
an officer’s reasonable suspicion to make a stop. Madden v. State, 242 S.W.3d
504, 517 (Tex. Crim. App. 2007).
Analysis
Appellant does not challenge Officer Collins’s basis for initiating the traffic
stop in light of the evidence that the officer observed Appellant commit two traffic
violations. A law enforcement officer may lawfully stop a motorist who commits a
traffic violation. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992);
Haas v. State, 172 S.W.3d 42, 50 (Tex. App.—Waco 2005, pet. ref’d). In general,
the decision to stop an automobile is reasonable when an officer has probable
cause to believe that a traffic violation has occurred. Walter v. State, 28 S.W.3d
538, 542 (Tex. Crim. App. 2000); Haas, 172 S.W.3d at 50.
Appellant complains that Officer Collins did not have a valid basis to
request an open air sniff by a drug-detection dog. We addressed a similar
contention in Johnson v. State, 323 S.W.3d 561, 563–64 (Tex. App.—Eastland
2010, pet. ref’d). Citing Illinois v. Caballes, 543 U.S. 405 (2005), we held that a
canine sniff conducted during a lawful traffic stop is not a search under either the
Fourth Amendment or Article I, section 9 of the Texas constitution. Accordingly,
an officer is not required to have reasonable suspicion justifying a canine sniff
during a lawful traffic stop. Caballes, 543 U.S. at 409; see Johnson, 323 S.W.3d at563–64.
Appellant additionally contends that Officer Collins did not have a sufficient
basis for continuing to detain him until the K-9 officer arrived. An investigatory
detention is reasonable, and therefore constitutional, if (1) the officer’s action was
justified at the detention’s inception and (2) the detention was reasonably related in
scope to the circumstances that justified the interference in the first place. Terry v.
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Ohio, 392 U.S. 1, 19–20 (1968). The second prong of Terry deals with the scope
of the detention: “[A]n investigative detention, ‘like any other search, must be
strictly circumscribed by the exigencies which justify its initiation.’” Davis v.
State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (quoting Terry, 392 U.S. at
25–26). A routine traffic stop includes investigation of the suspected offense as
well as a license and warrant check. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.
App. 2004). A traffic-stop investigation is not fully resolved until after a computer
check of the license and warrant status of the driver is completed and the officer
knows that this driver has a valid license and no outstanding warrants and that the
car is not stolen. Kothe, 152 S.W.3d at 63–64, 65. Once the reason for a routine
traffic stop is resolved, the stop may not then be used as a fishing expedition for
unrelated criminal activity. Davis, 947 S.W.2d at 243 (citing Ohio v. Robinette,
519 U.S. 33, 41 (1996) (Ginsburg, J., concurring)). Reasonable suspicion that
another offense was or is being committed is required to prolong the detention.
Lambeth v. State, 221 S.W.3d 831, 836 (Tex. App.—Fort Worth 2007, pet. ref’d);
McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.—Fort Worth 2001, pet.
ref’d).
A review of the video taken of Officer Collins’s traffic stop of Appellant
reveals that he followed Appellant for approximately twenty-five seconds prior to
Appellant stopping. Officer Peavy arrived at the location within three minutes of
Officer Collins’s initial contact with Appellant, and Officer Peavy conducted the
open air sniff within approximately thirty seconds of arriving at the scene. During
the few minutes prior to Officer Peavy’s arrival, the video depicts Officer Collins
making contact with Appellant, obtaining information from Appellant, and
returning to his patrol unit. Appellant testified at the suppression hearing that he
did not have a valid driver’s license. Accordingly, the evidence shows that Officer
Collins’s traffic-stop investigation was not fully resolved prior to the open air sniff
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conducted by Officer Peavy’s drug-detection dog. We conclude that the duration
of the stop was not unduly prolonged prior to the open air sniff and the subsequent
discovery of a controlled substance within Appellant’s vehicle. Appellant’s sole
issue is overruled.
This Court’s Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
July 25, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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