Demarcus Darrelle Jones v. the State of Texas ( 2022 )

Opinion filed March 10, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00082-CR
__________
DEMARCUS DARRELLE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court
Eastland County, Texas
Cause No. 1900117
MEMORANDUM OPINION
The State charged Demarcus Darrelle Jones by information with the
misdemeanor offense of possession of less than two ounces of marihuana. See TEX.
HEALTH AND SAFETY CODE ANN. § 481.121(b)(1) (West Supp. 2021). Appellant
filed a written motion to suppress evidence seized by officers. At the conclusion of
the hearing on the motion to suppress, the trial court denied the motion. Appellant
then entered a plea of guilty to the offense. The trial court found Appellant guilty
and, in accordance with the plea agreement, assessed Appellant’s punishment at
confinement for four days in the Eastland County Jail and a fine of $500.
In one issue, Appellant contends that the trial court erred in denying his
motion to suppress evidence based on his contention that the evidence seized from
him was obtained as the result of an unlawful pat-down search. He contends that the
pat-down search violated the Fourth Amendment of the United States Constitution;
Article I, section 9 of the Texas Constitution; and Terry v. Ohio, 392 U.S. 1 (1968).
We affirm.
Background Facts
Russell Reid, a trooper with the Texas Department of Public Safety, was the
sole witness at the hearing on the motion to suppress. Trooper Reid testified that he
was using his stationary radar on Interstate 20 near mile marker 337 in Eastland
County1 at roughly 10:20 a.m. when he noticed a vehicle approaching without a front
license plate. Once the vehicle passed him, Trooper Reid saw that the vehicle’s rear
tag was paper and illegible because it was “flapping in the wind.” Based on the
appearance of the paper tag, Trooper Reid initiated a traffic stop.
As Trooper Reid approached the vehicle, he noticed that there were two
occupants—the driver and Appellant. Trooper Reid advised the driver that he
initiated the stop because of the obscured paper tag and explained that he would issue
her a warning for the traffic violation. He placed the driver in the front passenger
We take judicial notice that this location is in a rural area. See Barton v. State, 948 S.W.2d 364,
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365 (Tex. App.—Fort Worth 1997, no pet.) (per curiam) (appellate courts may take judicial notice of
geographical facts because they are “easily ascertainable and capable of verifiable certainty”).
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seat of his vehicle and began running a check on her driver’s license. At this time,
Trooper Reid learned that her driver’s license was suspended.
While Trooper Reid was seated in his patrol vehicle with the driver, he noticed
the smell of marihuana coming from her body. The driver denied smoking
marihuana, but she granted consent for Trooper Reid to search her vehicle. At some
point during this interaction, Trooper West arrived on the scene. It is unclear from
the record when he arrived, but Trooper Reid testified that Trooper West was there
when the driver provided proof of her insurance. Trooper West remained at the
patrol vehicle with the driver.
Trooper Reid returned to the suspect vehicle, where Appellant had remained.
Trooper Reid asked Appellant for his driver’s license to determine if he could validly
drive the vehicle. Appellant responded that he did not have his license with him, but
he did have a copy on his phone. Trooper Reid asked Appellant to step out of the
vehicle, and after Appellant produced a picture of his license, Trooper Reid ran a
check on his license. The check indicated that Appellant “was clear” from any
warrants, but it indicated that his license was suspended.
Trooper Reid informed Appellant that he smelled the odor of marihuana on
the driver and that she had given him consent to search the vehicle. Trooper Reid
testified that he then told Appellant:
I just wanted to pat him down, make sure he didn’t have no weapons
on him while I was searching the vehicle because he was standing there
beside the vehicle. So, I asked him -- I just told him I needed to pat him
down, so I patted him down.
Trooper Reid answered in the affirmative to the prosecutor’s follow-up question
asking if the pat-down search was for his safety. When asked why he needed to
determine whether or not Appellant had any weapons, Trooper Reid testified that he
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would have his head “down in the car” while searching it and that he did not “want
to get shot in the back of the head” while searching the vehicle. In this regard,
Trooper Reid testified that Appellant was standing “pretty close” to the car.
On cross-examination, Trooper Reid testified that he did not think that
Appellant was acting suspicious. When Trooper Reid was asked whether he could
articulate anything that made him believe Appellant was armed and dangerous, he
responded that he could not. However, Trooper Reid testified that he did not know
at the time whether Appellant was armed “so that’s why I patted him down.”
Trooper Reid performed the pat-down and identified a cellphone in
Appellant’s right pocket. However, Trooper Reid could not identify what was in
Appellant’s left pocket. He testified that the pocket felt full and that there “was a
whole bunch of stuff” in it. Unable to identify the contents of the pocket by plain
feel, Trooper Reid asked Appellant what was in the pocket. At this time, Appellant
voluntarily emptied the pocket and revealed a small container, some “Cigarillos,”
and a small plastic bag of a green substance that Trooper Reid “assumed to be
marijuana.” The bag of marihuana came out of the top of the pocket in plain view
as Appellant removed the other items. Trooper Reid testified that he did not ask
Appellant to empty the pocket; he only asked Appellant what was inside of his
pocket.
The State took the position at the hearing that the “key” factor would be
whether Trooper Reid had the right to pat Appellant down. The State argued at the
hearing that Trooper Reid conducted the pat down for officer safety and that it was
therefore appropriate. The State also argued that Appellant voluntarily exposed the
marihuana. Appellant argued that the pat down was not based on reasonable
suspicion that Appellant was armed or dangerous and that, but for the pat down,
Appellant would not have voluntarily emptied his pocket.
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Analysis
We apply a bifurcated standard of review to a trial court’s ruling on a motion
to suppress. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Brodnex v. State, 485
S.W.3d 432, 436 (Tex. Crim. App. 2016). We give almost total deference to the trial
court’s findings of historical fact as long as the record supports its findings.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). When the trial court
does not issue findings of fact, we imply findings that support the trial court’s ruling
if the evidence supports those findings. State v. Kelly, 204 S.W.3d 808, 818–19
(Tex. Crim. App. 2006); Carmouche, 10 S.W.3d at 327–28. We give deference to
the trial court’s rulings on mixed questions of law and fact when those rulings turn
on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We
review de novo a trial court’s application of the law of search and seizure to the facts.
Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); State v. Sheppard,
271 S.W.3d 281, 286–87 (Tex. Crim. App. 2008).
The Fourth Amendment prohibits unreasonable searches and seizures, and a
stop-and-frisk by law enforcement implicates the Fourth Amendment’s protections.
Lerma, 543 S.W.3d at 190 (citing Terry, 392 U.S. at 16). A Fourth Amendment
analysis of an officer’s stop-and-frisk has two prongs: (1) whether the officer’s
action was justified at its inception and (2) whether the search and seizure were
reasonably related in scope to the circumstances that justified the stop in the first
place. Id. (citing Terry, 392 U.S. at 20). We note that Appellant is not challenging
Trooper Reid’s basis for initiating the traffic stop. Appellant is also not challenging
Trooper Reid’s request for Appellant to step out of the vehicle. See id. at 191 & n.39
(citing Maryland v. Wilson, 519 U.S. 408, 414–15 (1997), for the proposition that
“an officer making a traffic stop may order passengers to get out of the car pending
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completion of the stop”). Instead, this case concerns the reasonableness of Trooper
Reid’s pat-down search.
As noted by the Texas Court of Criminal Appeals in Lerma:
During the course of a detention, an officer may, in certain
circumstances, conduct a pat-down search of an individual to determine
whether the person is carrying a weapon. In order to justify a pat-down,
the officer must reasonably believe that the suspect is armed and
dangerous, such that the officer can point to specific and articulable
facts which reasonably lead him to conclude that the suspect might
possess a weapon. Reasonable suspicion in this context is based on an
objective assessment of the officer’s actions in light of the facts and
circumstances surrounding the detention. The officer’s subjective level
of fear is not controlling. The question is whether a reasonably prudent
person would justifiably believe that his safety or the safety of others
was in danger.
Id. at 191 (footnotes omitted). The purpose of the pat-down search is to protect the
officer’s safety during interactions when suspects are in close quarters with the
officer. Id. “The Supreme Court has noted that it would be unreasonable to require
police officers to take unnecessary risks in performing their duties and that traffic
stops are ‘especially fraught with danger to police officers.’” Id. (quoting
Michigan v. Long, 463 U.S. 1032, 1047 (1983)).
An officer may not conduct a pat-down search as a matter of routine. Id. at
192 (citing O’Hara v. State, 27 S.W.3d 548, 553 (Tex. Crim. App. 2000)). However,
objective facts can justify a pat-down search even if the officer conducts a pat-down
search as a part of a stated routine. Id. (citing O’Hara, 27 S.W.3d at 554). The
relevant inquiry is whether a reasonably prudent person in the officer’s situation
would be justified in fearing for his safety to the point that a pat-down search for
weapons is necessary to assure the officer’s safety. Id. at 191.
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Courts have identified several factors that will justify a pat-down search. See
Seymore v. State, No. 02-19-00486-CR, 2021 WL 2252751, at *5–6 (Tex. App.—
Fort Worth June 3, 2021, pet. ref’d) (mem. op., not designated for publication)
(collecting cases). In Lerma, the officer was alone conducting a traffic stop; he was
outnumbered by the occupants of the vehicle; and he observed the defendant moving
around and reaching into his pockets. 543 S.W.3d at 193. In O’Hara, the officer
was alone in conducting a traffic stop in a rural area; the defendant was in close
proximity to the officer; it was the middle of the night; and the defendant had
previously been wearing a knife. 27 S.W.3d at 553–54.
Appellant asserts on appeal that Trooper Reid did not have any express,
articulable facts to justify the pat-down search of Appellant, emphasizing that
Trooper Reid did not feel that Appellant was armed and dangerous. However,
Trooper Reid’s subjective level of fear is not controlling, but rather we focus on the
objective facts and circumstances to determine if a reasonably prudent officer would
justifiably believe that his safety was in danger. See Lerma, 543 S.W.3d at 191.
The facts in this case are both similar and dissimilar to the facts in Lerma and
O’Hara. Trooper Reid was conducting a roadside traffic stop and vehicle search in
a rural area. Additionally, Appellant was in close proximity to Trooper Reid and the
vehicle at the time of the search. However, the search did not occur at night and
Trooper Reid was not by himself at the time because Trooper West had arrived at
the scene. The critical factor in this case is the fact Trooper Reid would be placed
in a vulnerable position while searching the vehicle. Because Trooper Reid would
be taking his eyes off Appellant while searching the car, coupled with the fact that
he was making a roadside traffic stop in a rural area, he had an objectively reasonable
concern for his safety that justified his pat-down search of Appellant.
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We disagree with Appellant’s contention that Trooper Reid had a less
intrusive option available because he could have required Appellant to stand with
Trooper West while Trooper Reid searched the vehicle. Had that occurred, Trooper
West would have been outnumbered while Trooper Reid was inside the vehicle
searching it. Thus, the trial court did not err in denying Appellant’s motion to
suppress. We overrule Appellant’s sole issue on appeal.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
March 10, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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