Mark Wilson Glazner v. State ( 2004 )

Opinion issued on May 27, 2004.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00396-CR

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MARK WILSON GLAZNER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from County Criminal Court at Law No. 12

Harris County, Texas

Trial Court Cause No. 1155372

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MEMORANDUM OPINION

          Appellant, Mark Wilson Glazner, pleaded guilty to unlawfully possessing marihuana. Pursuant to a plea agreement, the trial court sentenced him to two days’ confinement and a $300 fine. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress. We affirm.

Background

          At the suppression hearing, Harris County Sheriff’s Deputy L.J. Martin testified that, while on patrol, he discovered that appellant’s license plate registration had expired. Martin parked next to appellant’s car at a convenience store and waited for appellant to return to his car. When appellant returned, Martin asked him for his driver’s license and proof of insurance. Appellant did not have proof of insurance. While talking to appellant, Martin saw a “small” pocketknife clipped to appellant’s right pocket. Martin testified that he removed the knife for his safety and patted appellant down. Martin then opened appellant’s car door and placed the knife on appellant’s front seat. He testified that he placed the knife in appellant’s car because it was a habit to avoid misplacing or forgetting to return temporarily detained items, and he wanted to keep the knife away from appellant. Upon opening the door, Martin noticed a strong marihuana odor. He asked appellant if there was any marihuana in the car, and appellant said that there were probably a couple of “roaches” in the ashtray. Martin then retrieved the marihuana.

Motion to Suppress

          In his sole issue, appellant contends that the trial court erred in overruling his motion to suppress because the evidence seized was the result of an “illegal plain view search and seizure” and no other exception to the warrant requirement, including a search incident to arrest, allowed the officer to search appellant’s car.

          In reviewing the trial court’s ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determination of historical facts, while we conduct a de novo review of the trial court’s application of the law to those facts. Id.

          When, as here, there are no findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial court’s decision is correct on any theory of law applicable to the case, the decision will be upheld. Id. at 856.

          A routine traffic stop resembles an investigative detention and must be reasonably related in scope to the circumstances that justified the interference in the first place. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). To determine the reasonableness of an investigative detention, we apply the Terry test: (1) whether the officer’s action was justified at its inception; and (2) whether it was reasonably related in scope to the circumstances that justified the initial interference. See Terry v. Ohio, 392 U.S. 1, 19-20, 88 S. Ct. 1868, 1879 (1968); Davis, 947 S.W.2d at 244. In determining whether an officer acted reasonably in a particular case, due weight must be given not to the officer’s unparticularized suspicion or hunch, but to the specific reasonable inferences which the officer is entitled to draw from the facts in light of experience. Terry, 392 U.S. at 27, 88 S. Ct. at 1868.  

          During a traffic stop, it is reasonable for an officer to check for outstanding warrants and demand identification, a valid driver’s license, and proof of insurance from the driver. See Davis, 947 S.W.2d at 245 n.6. Further, an officer may conduct a limited search for weapons of a suspect’s outer clothing, even in the absence of probable cause, where an officer reasonably believes that the suspect is armed and dangerous. See Terry, 392 U.S. at 27, 88 S. Ct. at 1877; Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992). However, “[t]he purpose of a limited search after [an] investigatory stop is not to discover evidence of a crime, but to allow the peace officer to pursue investigation without fear of violence.” Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974). An investigative detention “must be strictly circumscribed by the exigencies which justify its initiation.” Terry, 392 U.S. at 25–26, 88 S. Ct. at 1882; Spight v. State, 76 S.W.3d 761, 766 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Once the reason for the detention has been satisfied, the detention may not be used as a “fishing expedition for unrelated criminal activity.” Davis, 947 S.W.2d at 243.

          Appellant argues that Deputy Martin could not point to any articulable facts to justify a Terry-type weapon search.

          In support of his argument, that there was no fear of violence, appellant refers to the following testimony of Deputy Martin:

[Defendant]: In terms of your safety, would you feel like [appellant] was going to do anything to you at that time?

[Martin]: No.

[Defendant]: Did you feel like he was going to assault you or hit you or anything like that?

[Martin]: I didn’t know. I just met the guy.

[Defendant]: Okay. But certainly he had not presented you with any kind of threats, had he?

[Martin]: Not in the brief moment we had met, no.

          However, Deputy Martin was justified in disarming appellant. Martin testified that the reason he placed the knife in appellant’s car was to avoid forgetting to return the knife to appellant and to keep the knife away from appellant. He testified that his motive was not to detect any criminal activity. Thus, Martin acted reasonably in taking preventive measures to ensure his safety, and his discovery of the marihuana smell inside the car was not beyond the scope of the investigative stop. See Michigan v. Long, 463 U.S. 1032, 1051, 103 S. Ct. 3469, 3481 (1983) (holding that protection of police can justify protective searches when police have a reasonable belief that the suspect poses a danger); Ramsey v. State, 806 S.W.2d 954, 958 (Tex. App.—Austin 1991, pet. ref’d). Judging the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court properly denied appellant’s motion to suppress. We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.4.