David Charles Trammell v. State of Texas

Opinion filed July 31, 2008

Opinion filed July 31, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00248-CR

                                                     __________

                            DAVID CHARLES TRAMMELL, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                       On Appeal from the 104th Judicial District

                                                          Taylor County, Texas

                                                  Trial Court Cause No. 15261B

                                              M E M O R A N D U M   O P I N I O N

David Charles Trammell was convicted of possession of methamphetamine with the intent to deliver in an amount of more than four grams but less than 200 grams enhanced by two prior convictions.  He was sentenced to life in prison.  We affirm.

Issues on Appeal

In three issues, appellant challenges the trial court=s ruling on his motion to suppress.  Appellant argues that the evidence was insufficient to show probable cause to arrest appellant, the evidence was insufficient to show reasonable suspicion to detain appellant, and the right to detain appellant ended after the officers identified him by his driver=s license.

 Standard of Review

A trial court=s ruling on a motion to suppress is reviewed for an abuse of discretion.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings.  Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).  We will uphold the trial court=s ruling on a motion to suppress if that ruling was supported by the record and was correct under any theory of law applicable to the case.   State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  Because the trial court is the exclusive factfinder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  We also 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.  Where such rulings do not turn on an evaluation of credibility and demeanor we review the trial court=s actions de novo.  Myers v. State, 203 S.W.3d 873, 879 (Tex. App.CEastland 2006, pet. ref=d).

Relevant Facts

William Bradley Birchum, a narcotics investigator with the Taylor County Sheriff=s Office, testified that he received a tip from a cooperating individual.  Agent Birchum testified that the information he received from the cooperating individual was that a meth cook by the name of Chuck was at 901 Pecan with methamphetamine.  Agent Birchum testified that he and another narcotics investigator, Lieutenant Donnie Edwards, set up surveillance at the residence to determine if the information was credible.  Agent Birchum testified that he was familiar with the residence because he had recently executed a narcotics search warrant at that residence. He knew that one of the residents of the house was involved with methamphetamine and had a pending methamphetamine case.

While surveilling the property, Agent Birchum testified that he observed an individual moving back and forth from the residence to a pickup in the backyard.  Agent Birchum testified that, when the individual got into the pickup and left, he and Lieutenant Edwards followed it in an unmarked car.  The individual pulled the pickup into an Allsup=s a few miles away.   He did not stop the pickup in response to a traffic stop; rather, the pickup voluntarily stopped.  Agent Birchum testified that they pulled in behind the pickup and got out.  The individual got out of the pickup and identified himself as Chuck Trammell.  Agent Birchum testified that, when he learned appellant=s identity, it Acorroborated in my mind that [the] CI knew what they were talking about when they said Chuck.@  Agent Birchum further testified that Lieutenant Edwards, another narcotics officer working the case, also had received information that a Chuck Trammell was manufacturing methamphetamine in Abilene on a regular basis.  Agent Birchum testified that he asked for consent to search the pickup, but appellant did not give consent. Agent Birchum testified that there was a marked canine unit en route to the scene.  The canine unit arrived on the scene about eight minutes after the pickup left the residence that was under surveillance and approximately three to five minutes after appellant stopped at Allsup=s. The canine unit performed an open air sniff, and the dog alerted on the pickup.  Agent Birchum then searched the pickup and found contraband.

Lieutenant Edwards testified that he was an investigator in the narcotics division with the Taylor County Sheriff=s Office.  He testified that he and Agent Birchum were working together on the day that appellant was arrested.  He testified that, in the twenty-four hours prior to making contact with appellant, he had received information from a federal agency that an individual by the name of Chuck Trammell was Amanufacturing large amounts of methamphetamine on nearly a daily basis in the Abilene/Taylor County area.@  Lieutenant Edwards testified that the information Agent Birchum had received regarding AChuck@ being in possession of methamphetamine at 901 Pecan coupled with the information that he had received that Chuck Trammell was manufacturing methamphetamine gave rise to reasonable suspicion to detain appellant.

Analysis

Not every encounter between police and citizens implicates the Fourth Amendment.  Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).  A police officer is free to stop and ask questions of a citizen as long as that individual feels free to disregard the police and go about his business.  Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104.  An officer may generally ask questions of an individual, ask to examine the individual=s identification, and request consent to search.  Bostick, 501 U.S. at 435.

Further, police officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest.  Terry v. Ohio, 392 U.S. 1 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  To justify an investigative detention, the individual officer must have a reasonable suspicion that Asome 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, 771 S.W.2d at 558.  The officer must have specific articulable facts that, in light of his experience and personal knowledge and together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the person detained for investigation.  Terry, 392 U.S. at 30; Carmouche, 10 S.W.3d at 328.

The information provoking the officer=s suspicions need not be based on his own personal observations but may be based on an informant=s tip that bears sufficient Aindicia of reliability@ to justify a stop.  Carmouche, 10 S.W.3d at 328.  That information can be reliable if it is reasonably corroborated by other matters within the officer=s knowledge or by the officer=s subsequent investigation.  Illinois v. Gates, 462 U.S. 213, 242 (1983); Whaley v. State, 686 S.W.2d 950, 950-51 (Tex. Crim. App. 1985).  Reasonable suspicion is dependent upon both the content of the information possessed by the police and its degree of reliability.  Alabama v. White, 496 U.S. 325, 330 (1990).

The reasonableness of a temporary detention turns on the totality of the circumstances in each case.  Gates, 462 U.S. at 230-31; Shaffer v. State, 562 S.W.2d 853, 855 (Tex. Crim. App. 1978). There is not a defined bright-line rule in evaluating whether an investigative detention is unreasonable.  United States v. Sharpe, 470 U.S. 675, 683 (1985). Instead, common sense and ordinary human experience govern over rigid criteria.  Id.   It is well-established that an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  Florida v. Royer, 460 U.S. 491, 500 (1983); Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997).  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.  Sharpe, 470 U.S. at 686; Davis, 947 S.W.2d at 245; Josey v. State, 981 S.W.2d 831, 840-41 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).

If the officer has a reasonable suspicion that the automobile contains narcotics, he may temporarily detain it to allow an olfactory sweep by a trained police dog.  Crockett v. State, 803 S.W.2d 308, 310-11 (Tex. Crim. App. 1991); Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.C Austin 2000, pet. ref=d). A trained narcotics dog=s positive alert for drugs is sufficient to establish probable cause for an arrest.  Royer, 460 U.S. at 506; De Jesus v. State, 917 S.W.2d 458, 461 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d); Bunts v. State, 881 S.W.2d 447, 450 (Tex. App.CEl Paso 1994, pet. ref=d); Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.CHouston [1st Dist.] 1987, pet. ref=d).

The trial court did not err in denying appellant=s motion to suppress.  The officers could ask for appellant=s identity once he had stopped the pickup at the Allsup=s without implicating the Fourth Amendment protections.  The officers= investigation  and prior knowledge corroborated the tips they had received from other sources.  After learning appellant=s identity, the officers had reasonable suspicion to detain appellant further. Because the evidence established that the canine unit was at the scene within three to five minutes after appellant stopped the pickup, appellant was not unreasonably detained.  Once the trained narcotics dog alerted on appellant=s pickup, the officers had probable cause to arrest appellant and search his pickup.  We overrule appellant=s three issues on appeal.

Conclusion

We affirm the judgment of the trial court.

RICK STRANGE

July 31, 2008                                                                           JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.