Antonio Lavell Allen v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00303-CR
ANTONIO LAVELL ALLEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Antonio Lavell Allen appeals from the trial court’s denial of his
pretrial motion to suppress and subsequent conviction for possession of less
than one gram of methamphetamine. We affirm.
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See Tex. R. App. P. 47.4.
I. BACKGROUND
While working an off-duty security job at an apartment complex in a high-
crime area, Arlington Police Officer John Henry saw someone park a car in the
complex’s parking lot, turn off the car’s lights, and let it idle for approximately
three minutes without anyone getting out of the car during that period. This
made Henry suspicious “because, normally, somebody would get out of their car
and walk straight to their apartment” and concerned “about the person that
possibly could have . . . something going on, either illegal or possibly just them
sitting there.” Henry, who was in full uniform, reported the problem to dispatch,
got out of his patrol car, and shined his flashlight on the suspicious car as he
approached. He saw two people in the car. Appellant, from the passenger seat,
rolled down his window when Henry motioned for him to do so. Henry
immediately “got the smell of [burnt] marijuana” when Appellant rolled the window
down. Appellant was “acting real nervous” and “started placing his hands . . . up
under the [portable] DVD player” that was in his lap.
A back-up officer arrived and positioned himself at the driver’s side
window. The back-up officer also saw Appellant hiding his hands under the DVD
player. Henry asked Appellant if “there was something illegal in the car,” and
Appellant admitted that “he had smoked marijuana earlier in the daytime.”
Although Henry repeatedly warned Appellant to keep his hands visible, Appellant
continued to put his hands under the DVD player in his lap. Fearing that
Appellant was reaching for a weapon, Henry opened the car door, grabbed
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Appellant by the wrist, and pulled him out of the car. The DVD player fell to the
floorboard and a “small . . ., clear baggie with a pink rock-like substance” fell out
of Appellant’s lap onto the ground. Based on his training, Henry suspected that
the substance was methamphetamine. Henry arrested Appellant and found drug
paraphernalia—a short straw used to snort illegal drugs—on Appellant’s person.
Appellant admitted that the baggie contained methamphetamine. The driver of
the car was also arrested for possession of drug paraphernalia—a
methamphetamine pipe. No marijuana was found. The substance in the baggie
was tested and determined to be .17 grams of methamphetamine.
Appellant was indicted for possession of less than one gram of
methamphetamine with an enhancement paragraph and a repeat-offender
notice. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(a)–(b)
(West 2010); Tex. Penal Code Ann. §§ 12.35(c)(2), 12.42(a) (West Supp. 2013).
Appellant filed a motion to suppress the methamphetamine, the straw, and his
statements to Henry, claiming such evidence had been “seized without warrant,
probable cause[,] or other lawful authority.” See Tex. Code Crim. Proc. Ann. art.
38.23(a) (West 2005). The trial court denied the motion to suppress but
instructed the jury in the charge that any evidence found to have been obtained
in violation of the United States or Texas Constitutions as a matter of disputed
fact had to be disregarded. See id. The jury found Appellant guilty, found the
enhancement paragraph true, and assessed his punishment at ten years’
confinement. The trial court sentenced him accordingly. Appellant now appeals
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the denial of his motion to suppress and argues that there was neither
reasonable suspicion to justify his detention nor probable cause to arrest him.
II. MOTION TO SUPPRESS
A. SCOPE AND STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
When, as here, the record is silent on the reasons for the trial court’s
ruling, or when there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court’s ruling if the evidence, viewed in
the light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v.
State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial
court’s legal ruling de novo unless the implied fact findings supported by the
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record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808,
819 (Tex. Crim. App. 2006).
B. REASONABLE SUSPICION
Appellant argues that “the police were without reasonable suspicion” to
detain him because the sole facts Henry relied on were that the car had been
parked for three minutes with no one getting out and he smelled marijuana when
Appellant rolled down the passenger window. Reasonable suspicion sufficient to
justify a detention of a suspect exists if an officer has specific, articulable facts
that, when combined with rational inferences from these facts, would lead him to
reasonably suspect that a particular person engaged in (or soon will engage in)
criminal activity. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.
2001); State v. Larue, 28 S.W.3d 549, 553 n.8 (Tex. Crim. App. 2000).
Additionally, if an officer reasonably suspects that a person is armed, a limited
pat down of that person is permissible, even absent probable cause to arrest the
person for a crime. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968).
We view the totality of the circumstances objectively—without considering the
subjective intent of the officer conducting the detention—in making this
determination. Garcia, 43 S.W.3d at 530; Woods v. State, 956 S.W.2d 33, 38
(Tex. Crim. App. 1997).
C. PROBABLE CAUSE
Appellant asserts that “the odor of marijuana alone in this case is
insufficient to establish probable cause to arrest him” because the marijuana
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smell “was . . . an old smell, [thus,] the probable cause was not particularized
toward Appellant.” Under the Fourth Amendment, a warrantless arrest is
unreasonable per se unless it fits into one of a “few specifically established and
well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113
S. Ct. 2130, 2135 (1993); see Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim.
App. 2005). A police officer may arrest an individual without a warrant only if
probable cause exists with respect to the individual in question and the arrest
falls within one of the exceptions set out in the code of criminal procedure.
Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01–.04
(West 2005 & Supp. 2013).
Probable cause for a warrantless arrest requires that the officer have a
reasonable belief that, based on facts and circumstances within the officer’s
personal knowledge, or of which the officer has reasonably trustworthy
information, an offense has been committed. Torres, 182 S.W.3d at 901–02.
Probable cause—like reasonable suspicion—must be based on specific,
articulable facts rather than the officer’s mere opinion. Id. at 902. We use the
“totality of the circumstances” test to determine whether probable cause existed
for a warrantless arrest. Id.
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D. APPLICATION
1. Reasonable Suspicion
We conclude, as did the trial court, that sufficient reasonable suspicion
was present to justify Appellant’s detention. 2
When Appellant rolled the passenger window down at Henry’s request,
Henry immediately smelled burnt marijuana. When Henry mentioned to
Appellant that he could smell marijuana and asked if there was “anything illegal”
inside the car, Appellant admitted he had smoked marijuana earlier in the day.
Appellant acted “real nervous” and began reaching under a DVD player in his lap
so his hands were no longer visible. Objectively viewing the totality of these
circumstances, a reasonable officer in Henry’s position could have reasonably
suspected that Appellant had a weapon and, therefore, could detain him for a
limited pat down for officer safety. See State v. Castleberry, 332 S.W.3d 460,
468–69 (Tex. Crim. App. 2011) (holding officer had reasonable suspicion to
detain suspect for weapons pat down when suspect reached for his waistband
after officer asked him for identification).
Further, the smell of marijuana and Appellant’s admission that he earlier
had smoked marijuana gave Henry specific, articulable facts that, when
combined with rational inferences from these facts, would lead him to reasonably
2
We assume without deciding that, once Henry asked Appellant to roll
down the window, the interaction was a nonconsensual encounter and that
Appellant was detained.
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suspect that Appellant had engaged in criminal activity. See United States v.
Nunn, No. 12-50504, 2014 WL 782957, at *1 (5th Cir. Feb. 28, 2014) (holding
reasonable suspicion for detention present after officer approached defendant’s
car and smelled marijuana); United States v. Grant, 349 F.3d 192, 195, 197–99
(5th Cir. 2003) (finding reasonable suspicion to justify continued detention of
passenger after traffic stop because driver admitted smoking marijuana earlier
with passenger, car had “faint” smell of marijuana, passenger was nervous, and
passenger made “furtive movements in the car”), cert. denied, 540 U.S. 1227
(2004); United States v. Rhine, Nos. 4:12-CV-931-A, 4:07-CR-183-A, 2013 WL
1718108, at *4 (N.D. Tex. Apr. 18, 2013) (finding reasonable suspicion for
detention after officer smelled marijuana in car defendant was a passenger in
and defendant admitted “that he had smoked marijuana earlier that night”);
Glazner v. State, 175 S.W.3d 262, 266 (Tex. Crim. App. 2005) (“When Deputy
Martin opened the door of appellant’s truck and smelled marijuana, he acquired
reasonable suspicion to continue detaining appellant because he, at that point,
reasonably believed that appellant was or had been engaged in criminal
activity.”); Taylor v. State, 20 S.W.3d 51, 56 (Tex. App.—Texarkana 2000, pet.
ref’d) (“The odor of marihuana alone provides reasonable suspicion of criminal
activity to justify a continued detention . . . .”).
Accordingly, we hold that Henry’s detention of Appellant was lawful based
on specific, articulable facts that, when viewed objectively, would lead Henry to
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reasonably suspect that Appellant had engaged in criminal activity or that
Appellant was armed.
2. Probable Cause
Probable cause to arrest Appellant was also present under the totality of
the circumstances. Henry discovered the baggie containing the
methamphetamine while lawfully detaining Appellant in a high-crime area and in
the interest of officer safety. See, e.g., Chambers v. State, 397 S.W.3d 777, 783
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding detention for officer
safety permissible where suspect put hands in back pockets as if to reach for a
weapon). The incriminating character of the contents of the baggie was
immediately apparent to Henry based on his experience and training. The totality
of these specific, articulable facts shows probable cause existed to arrest
Appellant based on Henry’s reasonable belief that the baggie contained an illegal
drug. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2005); see also
McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App.) (holding officer had
probable cause to arrest defendant under article 14.01(b) based on presence of
marijuana smoke in the air and marijuana cigarette on the ground next to
defendant), cert. denied, 540 U.S. 1004 (2003); Young v. State, Nos. 14-99-
00960-CR, 14-99-00961-CR, 2001 WL 253702, at *5 (Tex. App.—Houston [14th
Dist.] Mar. 15, 2001, no pet.) (not designated for publication) (holding probable
cause to arrest defendant present when officers, while clearing parking lot in
high-crime area, saw defendant put a plastic baggie containing an illegal
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substance into his pocket in a high-crime area and defendant consented to
search of his pocket); Josey v. State, 981 S.W.2d 831, 839–41 (Tex. App.—
Houston [14th Dist.] 1998, pet. ref’d) (holding officers justified in making
warrantless arrest under article 14.01(b) after detaining defendant and
discovering cocaine behind dashboard of his car); Butler v. State, 825 S.W.2d
727, 728 (Tex. App.—Houston [14th Dist.] 1992, no pet.) (finding probable cause
to arrest defendant where officer was lawfully present when baggie containing
apparently incriminating substance inadvertently discovered, which led to proper
plain-view seizure and valid arrest). See generally Texas v. Brown, 460 U.S.
730, 742, 103 S. Ct. 1535, 1543 (1983) (plurality op.) (holding probable cause
only required reasonable belief that certain items may be contraband and “does
not demand any showing that such a belief be correct or more likely true than
false”).
3. Summary
The implied, necessary fact findings, which were supported by the
evidence adduced at the hearing on the motion to suppress, revealed that Henry
had reasonable suspicion to detain and probable cause to arrest Appellant.
Therefore, the trial court did not err by denying Appellant’s motion to suppress.
We overrule Appellant’s sole point.
III. CONCLUSION
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment. See Tex. R. App. P. 43.2(a).
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/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 8, 2014
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