Rodriguez, Luis v. State

Affirmed and Opinion filed _____________, 2002

Affirmed and Opinion filed December 31, 2002.        

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00196-CR 

____________

LUIS RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

                                                           Harris County, Texas                      

Trial Court Cause No. 858,384

O P I N I O N

            Appellant pleaded guilty to possession with intent to deliver cocaine weighing between four and two hundred grams after the trial court denied his motion to suppress.  He was sentenced to 15 years’ confinement.  We affirm.

In reviewing a motion to suppress, we examine the evidence in the light most favorable to the trial court's ruling, giving great deference to its determination of historical facts, but reviewing de novo mixed questions of law and fact that do not turn on the credibility and demeanor of a witness.  See Corbin v. State, 2002 WL 1174569 *2 (Tex. Crim. App. 2002)

The Stop

Deputy J.D. Mattox was watching an apartment in northeast Houston based on reports of narcotics activity there.  After he saw appellant drive up, enter the apartment, and leave shortly thereafter, Mattox followed him.  When appellant made several lane changes without signaling, Mattox pulled him over. Appellant argues this was a pretext for Mattox to look for narcotics.  But as probable cause to conduct a traffic stop exists whenever an officer observes a traffic violation, the initial stop was lawful.  Tex. Code Crim. Proc. Ann. Art. 14.01(b) (Vernon 1977); Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (finding that a police officer’s subjective motive will never invalidate an objectively justifiable stop). 

The Frisk

After the stop, as Mattox approached the car he saw appellant make a furtive movement towards his lap. Unsure if appellant was reaching for or hiding a weapon, Mattox ordered him out of the car and conducted a pat-down search.  He removed a large, hard object he encountered during the search, which turned out to be a bundle of money. 

Appellant argues Mattox lacked reasonable suspicion to frisk him or remove the object.  An officer may conduct a pat-down search of a person for safety purposes when the officer is justified in believing that the person may be armed and presently dangerous.  Terry v. Ohio, 392 U.S. 1, 21 (1968); O’Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).  Given the circumstances under which Mattox first saw appellant and his furtive movement when Mattox approached his vehicle, we hold Mattox had reason to believe the frisk was necessary for his safety.  See Worthey v. State, 805 S.W.2d 435, 438-39 (Tex. Crim. App. 1991). Additionally, given the officer’s description of what he felt, we hold he had reasonable suspicion that it might be a weapon or contraband, and thus was justified in removing it.  See, e.g., Parham v. State, 76 S.W.3d 60, 64 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (finding officer was justified in removing contraband when he testified he felt a bulge in appellant's waist area he thought could have been a weapon).

The Consent

The object Mattox found was a bundle of approximately $3,518 in U.S. currency, in $100 and $50 denominations. Based upon his training and the other circumstances surrounding the stop, he suspected narcotics might be in appellant’s car.  Mattox asked for and received permission from appellant to search it.

Appellant argues he never consented to the search of his vehicle.  But Mattox testified to the contrary, and nothing in the record indicates any duress, coercion, or confusion.  We therefore defer to the trial court’s determination and find that consent was voluntarily given.  Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980); Washington v. State, 902 S.W.2d 649, 655 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).

The Detention

In order to conduct the search safely, Mattox (who was alone) placed appellant in handcuffs in the rear seat of his police car.  Appellant argues the stop exceeded the bounds of a permissible investigatory detention. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997) (explaining that a detention may last no longer than is necessary to effectuate the purpose of the stop).  But an officer is permitted to detain an individual in order to check for outstanding warrants during a routine traffic stop, in addition to demands for identification and proof of insurance.  Id. at n.6; Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).  Mattox testified that he had not completed the search of appellant’s car, his verification of appellant’s licenses, and his check for outstanding warrants before a canine unit arrived and found narcotics in the car.  Thus, we find appellant’s detention lasted no longer than necessary to accomplish its lawful purposes.

Moreover, Mattox was no longer investigating only the traffic stop.  Mattox testified that, based on his training and experience, the size, denominations, and method appellant used to store his money was indicative of narcotics trafficking.  Articulable facts and circumstances that come to an officer's attention during the course of a routine traffic stop may justify a continued detention and broader investigation.  Razo, 577 S.W.2d at 711–10.  We thus find Mattox possessed reasonable suspicion that the automobile contained narcotics, which then justified temporary detainment of appellant to allow for inspection by a police dog.  Crockett v. State, 803 S.W.2d. 308, 311 (Tex. Crim. App. 1991); Roy v. State, 55 S.W.3d 153 (Tex. App.—Corpus Christi 2001, pet. denied) (finding reasonable suspicion of criminal activity justified officer's detention of defendant by handcuffing him for further investigation). 

The Search

Mattox’s “cursory” check of the vehicle yielded nothing illegal.  But he also notified a canine unit, and the dog alerted the officers to a sock hidden beneath the dashboard which proved to contain 76.5 grams of cocaine. Appellant was arrested within thirty minutes of the initial stop.

Appellant contends that the canine search exceeded the scope of his consent, if any.  But as long a lawful basis exists for detaining an individual, consent is not required for a canine “sniff” because it is not a “search” under the Fourth Amendment.  U.S. v. Place, 462 U.S. 696, 707 (1983); Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979). Having held appellant was lawfully detained, no consent was needed.

The judgment is affirmed.

                                                /s/                    Scott Brister

                                                                        Chief Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Chief Justice Brister and Justice Hudson and Senior Chief Justice Murphy[1].

Do Not Publish — Tex. R. App. P. 47.3(b).

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[1] Senior Chief Justice Murphy sitting by assignment.