Glen Lamar Morning v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00051-CR
GLEN LAMAR MORNING,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 16-05123-CRF-361
MEMORANDUM OPINION
In one issue, appellant, Glen Lamar Morning, argues that the trial court erred in
denying his motion to suppress evidence. Specifically, Morning contends that reasonable
suspicion did not exist for the traffic stop based on an “unconfirmed” insurance status
return. We affirm.
I. STANDARD OF REVIEW
We review the trial court's ruling on a motion to suppress evidence for an abuse
of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.
App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give “almost
total deference” to the trial court's findings of historical fact that are supported by the
record and to mixed questions of law and fact that turn on an evaluation of credibility
and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial court's
determination of the law and its application of law to facts that do not turn upon an
evaluation of credibility and demeanor. Id. When the trial court has not made a finding
on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it
finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.
2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the
trial court's ruling if it is reasonably supported by the record and is correct under any
theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.
2006).
When ruling on a motion to suppress, the trial judge is the sole trier of fact and
judge of the credibility of the witnesses and the weight to be given their testimony. Wiede
v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial court's ruling
on a motion to suppress, we view all of the evidence in the light most favorable to the
ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
Morning v. State Page 2
II. APPLICABLE LAW
In a hearing on a motion to suppress based on an alleged Fourth Amendment
violation, the initial burden of producing evidence that rebuts the presumption of proper
police conduct is on the defendant. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.
2005); see State v. Dietiker, 345 S.W.3d 422, 424 (Tex. App.—Waco 2011, no pet.). The
defendant’s burden may be satisfied by establishing that a search or seizure occurred
without a warrant. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. After this
showing is made by the defendant, the State assumes the burden of demonstrating that
the search or seizure was conducted pursuant to a warrant or was reasonable. Ford, 158
S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. Here, the record indicates that the stop was
made without a warrant; thus, the State assumed the burden of proof regarding whether
reasonable suspicion for the detention existed. See Ford, 158 S.W.3d at 492.
The Fourth Amendment to the United States Constitution provides, in part, that
“the right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. As a
general rule, searches conducted without a warrant are deemed unreasonable unless the
situation presents an exception to the warrant requirement. Hubert v. State, 312 S.W.3d
554, 560 (Tex. Crim. App. 2010). One such exception is the Terry stop. See Terry v. Ohio,
392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 889 (1968). Consistent with Terry, a police
officer may stop and briefly detain a person for investigative purposes if the officer has
Morning v. State Page 3
reasonable suspicion supported by articulable facts that criminal activity may be afoot,
even if the officer lacks evidence rising to the level of “probable cause.” 392 U.S. at 29, 88
S. Ct. at 1884; see Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
A determination of reasonable suspicion is made by considering the totality of the
circumstances. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In Foster v.
State, the Court of Criminal Appeals repeated the standard for warrantless traffic stops:
A law enforcement officer may stop and briefly detain a person for
investigative purposes on less information than is constitutionally required
for probable cause to arrest. In order to stop and briefly detain an
individual, an officer must be able to articulate something more than an
inchoate and unparticularized suspicion or hunch. Specifically, the police
officer must have some minimal level of objective justification for making
the stop, i.e., when the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant the intrusion. The reasonableness of a temporary detention must
be examined in terms of the totality of the circumstances.
326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (internal quotations omitted); see Garcia v.
State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that reasonable suspicion exists
if the officer has specific articulable facts that, when combined with rational inferences
from those facts, would lead him to reasonably suspect that a particular person has
engaged in or is, or soon will be, engaging in illegal conduct).
III. ANALYSIS
On appeal, Morning asserts that the “ambiguous return of an insurance
verification program alone is insufficient to establish reasonable suspicion to justify a
traffic stop.” Morning further argues that “[f]or a stop to be based on the ambiguous
Morning v. State Page 4
return, the officer making the stop will have to have indications of accuracy and reliability
from the database that produced the information.”
“A person may not operate a motor vehicle in this state unless financial
responsibility is established for that vehicle . . . .” See TEX. TRANSP. CODE ANN. § 601.051
(West 2011). Moreover, operating a vehicle for which financial responsibility has not
been established is a misdemeanor punished by a fine. See id. § 601.191 (West Supp. 2018).
Cases involving stops based on an officer’s database-derived suspicion that the driver
may be committing this misdemeanor fall into two categories:
In the first category . . . the courts have held an officer did not have
reasonable suspicion where the evidence was not developed to determine
the ambiguous answer’s meaning or reliability. In the second
category . . . courts have held that reasonable suspicion existed when the
officer, through experience or training, had additional information about
what the ambiguous answer from the database meant and some idea
regarding the data’s reliability.
Ellis v. State, 535 S.W.3d 209, 214 (Tex. App.—Fort Worth 2017, pet. ref’d) (quoting
Swadley v. State, No. 02-15-00085-CR, 2016 Tex. App. LEXIS 13308, at **13-14 (Tex. App.—
Fort Worth Dec. 15, 2016, pet. ref’d) (mem. op., not designated for publication) (citations
omitted)).
In the instant case, Garret Hudson, a patrol officer for the Texas A&M University
Police Department, testified that he had been a certified peace officer for three-and-a-half
years and that he has a total of seven or eight years of law-enforcement experience.
During the early morning hours of September 1, 2016, Officer Hudson observed a vehicle
Morning v. State Page 5
driven by Morning turning from F and B Road onto Wellborn Road. While driving
behind the vehicle driven by Morning, Officer Hudson conducted a license-plate check.
Officer Hudson testified that, when conducting a license-plate check, he is “looking for
things such as registration status, obviously any TCIC/NCIC hits coming back to a stolen
vehicle, and the insurance status.” When Officer Hudson conducted the license-plate
check on the vehicle driven by Morning, the insurance status came back as
“unconfirmed.” Based on his training and experience, Officer Hudson noted that an
“unconfirmed” return means that the vehicle is not insured.
Officer Hudson later testified that he has regularly conducted license-plate checks
during his three-and-a-half years as a peace officer and that it has been his experience
that the “unconfirmed” insurance status is “very accurate that insurance is not able to be
provided.” Officer Hudson also explained that he believes the database to be “[v]ery
accurate” and reliable and that he did not have any problems with the database on the
night in question.
After receiving the “unconfirmed” status, Officer Hudson stopped the vehicle
driven by Morning, believing that he had reasonable suspicion that the vehicle was not
insured. At the hearing on Morning’s motion to suppress, Officer Hudson acknowledged
that he stopped Morning solely because of the “unconfirmed” insurance status. When
Officer Hudson made contact, Morning was not able to provide proof of insurance or
valid proof of financial responsibility. When Morning provided his name and birthdate,
Morning v. State Page 6
Officer Hudson discovered that Morning had a suspended driver’s license. Morning was
subsequently arrested for driving with an invalid license.
On appeal, Morning contends that this case belongs in the category of cases in
which courts have held that the police lacked reasonable suspicion based on the word
“unconfirmed” and no other information. See State v. Daniel, 446 S.W.3d 809, 815-16 (Tex.
App.—San Antonio 2014, no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—
Amarillo 2010, pet. ref’d); Gonzalez-Gilando v. State, 306 S.W.3d 893, 896-97 (Tex. App.—
Amarillo 2010, pet. ref’d). We disagree.
As noted above, Officer Hudson testified that he has regularly conducted license-
plate checks during his three-and-a-half years as a peace officer and that, based on his
experience, the database is “very accurate that insurance is not able to be provided.”
Officer Hudson further stated that he believes the database to be “[v]ery accurate” and
reliable; that he did not have any problems with the database on the night in question;
and that an “unconfirmed” return means that the vehicle is not insured. We therefore
hold that Officer Hudson had sufficient specific, articulable facts upon which to base his
inference that the vehicle Morning was driving was uninsured. See Ellis, 535 S.W.3d at
216 (citing Oliva-Arita v. State, No. 01-15-00140-CR, 2015 Tex. App. LEXIS 11925, at **8-12
(Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for
publication)); see also TEX. TRANSP. CODE ANN. §§ 601.051, .191; Foster, 326 S.W.3d at 613;
Castro, 227 S.W.3d at 741; Garcia, 43 S.W.3d at 530.
Morning v. State Page 7
Nevertheless, Morning asserts that Officer Hudson’s testimony alone was
insufficient to establish the database’s reliability, focusing on all the objective information
about the database that Officer Hudson did not know. Specifically, Morning focuses on
the absence of testimony from Officer Hudson regarding the law that allowed the
database and the specific program that generated the information, as well as Officer
Hudson’s inability to define one of the terms the database can return—“[v]erify
manually.” Furthermore, Morning notes that Officer Hudson admitted that he has
chosen to “err on the side of caution” instead of relying on the database to ticket some
“unconfirmed drivers.” In making these arguments, Morning attempts to place his case
in the category with Gonzalez-Gilando, 306 S.W.3d at 896-97 and Daniel, 446 S.W.3d at 815.
In Gonzalez-Gilando, the license-plate check conducted by the deputy resulted in
the discovery that potential liability insurance was “unavailable,” “not available,” or the
status “undocumented.” 306 S.W.3d at 894-95. The deputy testified with no further
explanation that the return led him to believe that the vehicle did not have insurance
coverage. Id. at 896-97. The Amarillo Court noted that another trooper testified that the
return could have meant either that the vehicle was insured or that it was not insured.
Id. at 897 n.2. And in concluding that the deputy lacked reasonable suspicion for the stop,
the Amarillo Court stated,
without other evidence developing the source of the information
comprising the database, explaining what was meant when insurance
information was unavailable, explaining why such information would be
unavailable, illustrating the accuracy of the database, establishing the
Morning v. State Page 8
timeliness of the information within the database, depicting how often
those using the database were told that insurance information was
unavailable, proving that the program through which the database was
accessed was even operating at the time, and the like, we cannot accept the
deputy’s inference as reasonable.
Id. at 897.
We find Gonzalez-Gilando to be factually distinguishable from the case at bar. Here,
Officer Hudson testified about the meaning of “unconfirmed” and explained that: (1) he
regularly conducted license-plate checks during his three-and-a-half years as a peace
officer; (2) it has been his experience that the “unconfirmed” insurance status is “very
accurate” and reliable; and (3) he did not have any problems with the database on the
night in question. This has been held to be enough to support a finding of reasonable
suspicion to support a stop. See Ellis, 535 S.W.3d at 216; see also United States v. Broca-
Martinez, 855 F.3d 675, 680 (5th Cir. 2017) (“A state computer database indication of
insurance status may establish reasonable suspicion when the officer is familiar with the
database and the system itself is reliable. If that is the case, a seemingly inconclusive
report such as ‘unconfirmed’ will be a specific and articulable fact that supports a traffic
stop.”). And we are not persuaded by any suggestion that the State was required to
proffer evidence in support of all or most of the factors mentioned by the Gonzalez-Gilando
Court. See 306 S.W.3d at 897.
In Daniel, the San Antonio Court of Appeals concluded that the officer lacked
reasonable suspicion that the defendant’s vehicle was being operated without insurance
Morning v. State Page 9
to justify the warrantless stop. 446 S.W.3d at 815. The State stipulated at the suppression
hearing that the sole reason for the officer’s suspicion was based on a response from
dispatch of “unconfirmed insurance.” Id. And in response to the trial court’s question
whether the information of “unconfirmed insurance” meant that “it could have been that
[the defendant] did have insurance or it could have been that he didn’t,” the State
answered “[c]orrect.” Id. The State offered no other evidence to support a finding that
the officer had reasonable suspicion to effect the traffic stop.
We find Daniel to be factually distinguishable from this case because, as discussed
above, the State developed evidence demonstrating that Officer Hudson had specific,
articulable facts—other than simply the database return of “unconfirmed”—upon which
he could reasonably conclude that the vehicle Morning was driving was not insured.
Therefore, viewing the evidence in the light most favorable to the trial court’s
ruling, we conclude that the trial court did not abuse its discretion in denying Morning’s
motion to suppress. See Crain, 315 S.W.3d at 48; see also Guzman, 955 S.W.2d at 88-89. As
such, we overrule appellant’s sole issue on appeal.
IV. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Morning v. State Page 10
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 31, 2018
Do not publish
[CR25]
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