Rodolfo Gonzalez v. State

Opinion issued April 7, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00975-CR

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Rodolfo Gonzalez, Appellant

V.

The State of Texas, Appellee

On Appeal from the County Criminal Court Number 13

Harris County, Texas

Trial Court Case No. 1594629

MEMORANDUM OPINION

          After the trial court denied a motion to suppress evidence, appellant Rodolfo Gonzalez pleaded guilty to the offense of possession of less than two ounces of marijuana.  See Tex. Health & Safety Code Ann. § 481.121 (West 2010).  The trial court sentenced him to 30 days in jail, and it certified his right to appeal.  In his sole issue, Gonzalez argues that the trial court erred by denying his motion to suppress because the police officers lacked reasonable suspicion to detain him, resulting in an unconstitutional search of his vehicle.  Because we conclude that the stop and search did not violate Gonzalez’s constitutional rights, we affirm.

I. Background

Houston Police Department Officers Wagner and Stahlin were patrolling near a residential neighborhood at approximately 9:30 p.m.  The patrol car’s windows were down, and the officers heard loud music coming from another vehicle.  Few cars were nearby aside from a sport-utility vehicle driven by Rodolfo Gonzalez.  The officers began to follow Gonzalez’s vehicle, which they believed was the source of the loud music.  Initially they did not activate the patrol car’s lights and sirens.

As the officers drove behind the vehicle within approximately one car length, they smelled marijuana.  After following for up to ten more seconds, the officers activated their lights and stopped Gonzalez.  Officer Wagner approached the driver’s side window, and Officer Stahlin approached the passenger side.  They smelled a strong aroma of marijuana.  Stahlin testified that he saw Gonzalez trying to hide a cigarette.  Wagner escorted him to the back seat of the police car, and Stahlin searched the vehicle, where he found half of a marijuana cigarette.

Gonzalez was charged by information with possession of marijuana in a useable quantity less than two ounces.  He moved to suppress the marijuana found in his vehicle.  He argued that the officers lacked reasonable suspicion to stop him for a violation of a noise ordinance because the municipal ordinance was preempted by the disorderly conduct provisions of the Texas Penal Code.  See Houston, Tex., Ordinance No. 93-77, § 2 (1993) (municipal noise ordinance); Tex. Penal Code Ann. § 42.01(a)(5) (West Supp. 2010) (disorderly conduct).  He also asserted that the search was illegal under both the state and federal constitutions because, absent the traffic stop, the officer would have lacked cause to conduct the search.

The trial court held a hearing at which Gonzalez and both police officers testified.  Officer Stahlin testified that he first noticed Gonzalez’s vehicle due to the loud music.  He stated that “[i]t was like a loud bass with the thumping and everything that we could kind of feel the vibrations. . . .  We could feel it in our body and it was kind of annoying.” He testified that as they followed Gonzalez, there was no other traffic nearby and they smelled marijuana. Officer Wagner similarly testified that they heard loud music coming from Gonzalez’s vehicle and followed it. He said he “realized for sure” that the marijuana smell had come from Gonzalez’s vehicle when the odor intensified as he approached on foot.  Both officers testified that Gonzalez’s windows were down.

Gonzalez testified that his windows were up when the police officers stopped him and that he was not smoking marijuana at that time.  He conceded there was “half a joint” in his car, which he had dropped when he smoked it earlier in the evening.  He also conceded that his car smelled of marijuana.

II. Standard of review

In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review.  See, e.g., Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court’s determinations of historical facts, and we review the application of the law of search and seizure de novo.  See id.

In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  “This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.”  Id.  When, as here, the trial court makes no explicit findings of historical fact, we review the evidence in the light most favorable to trial court’s ruling, and we assume the trial court made implicit findings of fact supported in the record.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  We must sustain the trial court’s ruling if it is reasonably supported by the record evidence and is correct under any theory of law applicable to the case.  See Ross, 32 S.W.3d at 855–56. 

III. Analysis

There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests.  Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); see also Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968); State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).  A consensual interaction that a citizen is free to terminate at any time is considered to be an “encounter.”  See Crain, 315 S.W.3d at 49.  An interaction with the police progresses beyond an encounter if the officer’s words or actions would have communicated to a reasonable person that he is not free to leave or refuse the officer’s requests.  See, e.g., Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  “An investigative detention occurs when a law enforcement officer confronts an individual, who then yields to a display of authority and is temporarily detained without a warrant.”  Id. at 153.  An investigative detention is permissible if the police officer reasonably suspects that the individual is involved in criminal activity. Balentine, 71 S.W.3d at 768 (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1881).  Reasonable suspicion exists when, under the totality of the circumstances, the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.  Id.  “[E]ven if reasonable suspicion exists, the detention must be temporary and last no longer than necessary to effectuate the purpose of the intrusion.”  Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

“[A]n officer may conduct a warrantless search of a motor vehicle if the officer has probable cause to believe the vehicle contains evidence of a crime.”  Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994); see Dickey v. State, 96 S.W.3d 610, 614 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  “Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found.”  Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005); see also Dickey, 96 S.W.3d at 613–14.

Gonzalez argues that Officers Wagner and Stahlin did not have reasonable suspicion to detain him for violation of a noise ordinance.  In his brief, in which Gonzalez addresses only whether the alleged violation of a noise ordinance provided reasonable suspicion to stop him, Gonzalez contends that the State argued the applicability of the noise ordinance. However, on appeal as at trial, the State argues that the officers had reasonable suspicion to stop Gonzalez based on the odor of marijuana as well as the suspected noise-ordinance violation.

Both police officers testified that Gonzalez initially drew their attention because of the loud music coming from his vehicle.  They turned their vehicle to follow him, but this act alone did not implicate Gonzalez’s constitutional rights.  At that point, the interaction between the police officers and Gonzalez was no more than an encounter.  See Perez, 85 S.W.3d at 819 (police officer did not need to have reasonable suspicion to slow his car and take a closer look at the fleeing suspect); Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. 1979) (officer who saw defendant smoking marijuana cigarette while driving did not need reasonable suspicion or probable cause to follow defendant’s vehicle).  Gonzalez argues that at the time the patrol car turned to follow him, the officers lacked reasonable suspicion to detain him for violation of a municipal noise ordinance.  But because this interaction was no more than an encounter at that stage, the officers did not need reasonable suspicion to follow.  See Perez, 85 S.W.3d at 819; Isam, 582 S.W.2d at 444.

While the officers drove behind Gonzalez’s vehicle, they smelled marijuana.  Although the testimony conflicted as to whether Gonzalez was driving with his windows down, the trial court resolved this inconsistency in rendering its decision on the motion to suppress, and we must defer to its credibility decision, which is supported by the record.  See Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002).  The smell of marijuana gave rise to reasonable suspicion to believe that Gonzalez had been or soon would be engaged in criminal activity, namely the use or possession of marijuana.  See Glazner v. State, 175 S.W.3d 262, 266 (Tex. Crim. App. 2005).  The officers activated the patrol car lights and stopped Gonzalez to investigate. This communicated to Gonzalez that he was not free to leave or refuse their request for him to stop, and was, therefore, an investigative detention.  See Pennywell, 127 S.W.3d at 152. Because it was based on reasonable suspicion and related to the officers smelling marijuana coming from Gonzalez’s vehicle, the temporary detention was permissible and did not violate Gonzalez’s constitutional rights.  See Balentine, 71 S.W.3d at 768.

Both officers testified that as they approached the vehicle, the marijuana odor intensified.  Officer Stahlin testified that he saw Gonzalez hiding what he believed, based on the strong odor, to be a marijuana cigarette. Based on these observations, the officers had probable cause to believe that marijuana would be found inside Gonzalez’s vehicle.  See Estrada, 154 S.W.3d at 609; Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978) (holding that police officer had probable cause to search vehicle when he and partner smelled burnt marijuana after approaching car stopped for traffic violation).  Therefore, their warrantless search of Gonzalez’s vehicle did not violate his constitutional rights.  See Estrada, 154 S.W.3d at 609.

Gonzalez does not challenge the propriety of the search subsequent to the temporary detention, only the temporary detention itself. Although he asserted in the trial court that there was no probable cause to search, he has not made the same challenge on appeal.  Rather, Gonzalez argues that “everything the officers did was based on a decision to stop [him] based on the unreasonable assertion that he was violating a noise ordinance based on a passing encounter of two vehicles.”  This statement is unsupported by the record, which shows that the officers’ decision to stop Gonzalez was also based on detecting the odor of marijuana.  No detention occurred until after then.  We conclude that the stop was supported by reasonable suspicion, and we need not address Gonzalez’s contentions about the noise ordinance, as it was an alternative ground for detaining the vehicle.  See, e.g., Ross, 32 S.W.3d at 855–56 (holding that court of appeals must affirm trial court’s ruling on motion to suppress if ruling is reasonably supported by record and correct under any applicable legal theory).

We hold that the trial court did not err in denying Gonzalez’s motion to suppress evidence, and we overrule Gonzalez’s sole issue.

CONCLUSION

          We affirm the judgment of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Massengale.

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