State v. Uyless Troy Bland ( 2016 )

NUMBER 13-15-00041-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
UYLESS TROY BLAND, Appellee.
On appeal from the 377th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
The State of Texas appeals from the trial court’s order granting appellee Uyless
Troy Bland’s motion to suppress evidence.1 By six issues, which we have regrouped as
1 This appeal is brought pursuant to Texas Code of Criminal Procedure article 44.01(a)(5) which
authorizes the State “to appeal an order of a court in a criminal case if the order . . . grants a motion to
suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the
prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that
the evidence, confession, or admission is of substantial importance in the case[.]” TEX. CODE CRIM. PROC.
two, the State argues the trial court erred in concluding that law enforcement officers
lacked reasonable suspicion to stop Bland’s vehicle. We affirm.
I. BACKGROUND
Bland was charged by indictment with one count of possession of cocaine in an
amount less than one gram, and one count of possession of a substance in penalty group
3 in an amount of less than twenty-eight grams. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.115(a), 481.117(b) (West, Westlaw through 2015 R.S.). Both counts were
alleged to have occurred in a drug-free zone.2 See id. § 481.134(d), (e). Prior to trial,
Bland filed a motion to suppress evidence obtained following the traffic stop.3
Officer Dennis Paine with the Victoria Police Department testified at the
suppression hearing. Officer Paine explained that he was part of a team conducting
undercover surveillance of a residence located on a dead-end street in Victoria. The
Department received “numerous Crime Stoppers tips about [the] location,” and officers
made several recent arrests of individuals purchasing crack cocaine from the residence.
Officer Paine was monitoring the area in an unmarked car from a distance of
approximately 200 yards, when he observed a vehicle leave the area. He did not see
the vehicle at the residence, but decided to follow the vehicle. He testified that the driver
ANN. art. 44.01(a)(5) (West, Westlaw through 2015 R.S.).
2The cocaine possession offense was further enhanced by Bland’s prior felony convictions. See
TEX. PENAL CODE ANN. § 12.42(a) (West, Westlaw through 2015 R.S.).
3 Bland argued that the evidence was obtained “in violation of the rights of [Bland] pursuant to the
Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, [and] Article I, Sections
9, 10 and 19 of the Constitution of the State of Texas.”
2
was “driving around in circles.” After following the vehicle for two miles, Officer Paine
observed the following from a distance of two car lengths:
When the vehicle approached the intersection, stopped for the stop sign,
stopped and pulled into the intersection, and the front of the vehicle was
actually out into the intersection . . . From the vantage point, I could tell the
front of the vehicle was well past the curb . . . I would say from the front tires
forward.
Officer Paine noted that the intersection did not have a crosswalk or designated stop line.
He believed the driver of the vehicle violated Texas Transportation Code section 544.010
due to his “[f]ailure to stop at a designated point, extending into the intersection.” See
TEX. TRANSP. CODE ANN. § 544.010 (West, Westlaw through 2015 R.S.). Officer Paine
relayed his observation to Officer Kelly Gibbs, who was nearby in a marked police cruiser.
Officer Gibbs testified that after receiving notification of the traffic violation, she
located the vehicle and initiated a traffic stop.4 She identified Bland as the driver of the
vehicle and recognized him from a previous narcotics investigation. Officer Gibbs
“observed nervous behavior on the part of [Bland and his passenger]” and asked them to
exit the vehicle so she could speak to them separately. She asked Bland where he was
coming from and believed that his answers were evasive. Bland informed her that he
had prior drug charges from 1996. Officer Gibbs asked for consent to search the vehicle,
but Bland declined.
Officer Gibbs talked to the passenger, who disclosed prior drug-related arrests.
The passenger stated that they recently stopped at a fast-food restaurant which was
4 Reasonable suspicion can be based on information relayed to one officer by other officers and
the sum of the information known to those officers cooperating with him. See Mount v. State, 217 S.W .3d
716, 728 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
3
inconsistent with Bland’s representations. Officer Gibbs decided to have a canine
conduct a free-air sniff of the vehicle to detect the presence of narcotics. The canine
was present at the scene and alerted for the odor of narcotics on the vehicle. The free-
air sniff occurred approximately seven minutes into the stop.
Officer Gibbs searched the vehicle and located drug paraphernalia, cocaine, and
Ambien pills. The traffic stop was recorded by a dash camera, and the video was
admitted into evidence. The video does not depict the alleged traffic violation, which was
observed by Officer Paine in a separate unmarked vehicle.
After the State closed its presentation, Bland called Officer Jimmy McDonald who
was riding in the unmarked vehicle with Officer Paine. Officer McDonald explained that
as they followed Bland, he observed the vehicle driving in a circular pattern. He testified
that he did not observe the traffic violation. Next, Bland called Officer Clay Fetters who
was also in the vehicle with Officers Paine and McDonald. Officer Fetters explained that
he observed Bland drive his vehicle in a circular pattern through the neighborhood. He
stated he did not “have as good a view as [Officer] Paine,” but observed Bland stop at an
intersection, and “[Bland’s vehicle] was into the intersection . . . past the stop sign.”
The trial court granted Bland’s motion to suppress and later issued written findings
of fact and conclusions of law upon the State’s request. The trial court found in relevant
part the following:
The residence or residences under surveillance could not be specifically
identified by the law enforcement officers who testified during the
suppression hearing. The defendant’s car was located near the area
under surveillance. The area is a “known” area whereby drugs are sold.
4
Officers’ attention was directed to the defendant’s car because he was
driving near the area. While the officers’ [sic] testified that the defendant
was driving in “circles”, the testimony showed the defendant made two
consecutive turns and not a complete circle. The defendant did not commit
a traffic offense when he made these consecutive turns. The defendant’s
driving was not erratic or bizarre.
....
Det. Paine testified that he allegedly saw the defendant violate the
transportation code by failing to stop at a stop sign. Specifically, Det. Paine
testified that there was reasonable suspicion to . . . stop the defendant
because he did not stop at the “designated point.”
....
The unmarked vehicle in which the law enforcement officers were in was at
least three car lengths behind the defendant’s vehicle. There is no clearly
marked stop line or cross walk at the intersection of Brownson and Stayton
Streets. See [TEX.] TRANSP[.] CODE . . . § 544.010[.] No other traffic
violations were perceived by law enforcement on the day in question.
....
The defendant stopped his vehicle at the intersection of Brownson and
Stayton past the stop sign but not in the intersection.
The trial court issued the following conclusions of law:
The officers do not understand or are mistaken as to a driver’s responsibility
under Transportation Code [section] 544.010[.] An officer’s mistaken
understanding of the law will not justify a stop. Goudeau v. State, 209
S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
....
There was no search warrant in this case; therefore, the burden is on the
State to show that there was reasonable suspicion for the stop of the
defendant. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). This
Court looked solely to whether an objective basis existed for the stop. Id.
at 492. This Court also looked at the totality of the circumstances. Curtis
v. State, 238 S.W.3d 376 (Tex. Crim. App. 2007).
5
In the absence of a cross walk or a clearly marked line, the Transportation
Code [section] 544.010 . . . does not require a driver to stop a designated
point. The statute at issue will be “taken and understood in their usual
acceptation in common language.[”] TEX. GOV 'T CODE ANN. §§ 311.002,
311.011[.] The requirement under the statute is for a driver to stop “at the
place nearest the intersecting roadway where the operator has a view of
approaching traffic on the intersecting roadway.” [TEX.] TRANSP[.] CODE §
544.010 (c)[.]
....
The defendant did not commit a traffic violation as a matter of law.
Considering the totality of the circumstances viewed objectively, the
defendant's stop and subsequent detention were unreasonable.
The State now appeals.
II. SUPPRESSION OF EVIDENCE
A. 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). In
reviewing the trial court’s decision, we do not engage in our own factual review. Romero
v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is the sole trier of
fact and judge of the credibility of the witnesses and the weight to be given to their
testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). 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. Amador, 221 S.W.3d at 673.
We “review de novo ‘mixed questions of law and fact’ that do not depend upon
credibility and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex.
Crim. App. 2006)). Accordingly, the question of whether a certain set of historical facts
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gives rise to reasonable suspicion is reviewed de novo. Wade v. State, 422 S.W.3d 661,
668 (Tex. Crim. App. 2013); see Davis v. State, 947 S.W.2d 240, 249 (Tex. Crim. App.
1997) (en banc) (Keller, J., concurring); see also Madden v. State, 242 S.W.3d 504, 517
(Tex. Crim. App. 2007) (providing that we review the legal question of whether totality of
circumstances is sufficient to support officer’s reasonable suspicion de novo).
B. Reasonableness of Initial Detention
By issues three through five, which we will address first, the State argues that the
trial court erred in concluding Bland’s initial detention was unreasonable.5 Specifically,
the State argues the trial court incorrectly concluded “that Section 544.010(c) of the Texas
Transportation Code does not mandate stopping prior to entering an intersection when
approaching a stop sign on a street that does not have a crosswalk or designated stop
line.” The State also argues “[i]n the alternative, the trial court committed reversible error
by concluding that a mistake of law could not justify a traffic stop.” Finally, the State
argues “[t]he trial court committed reversible error by concluding there was no reasonable
suspicion for the traffic stop in this case.”
1. Applicable Law
A traffic stop is a seizure that implicates the United States and Texas Constitutions;
therefore, the traffic stop must be reasonable. U.S. CONST. amend. IV; TEX. CONST. art.
I, § 9; Johnson v. State, 365 S.W.3d 484, 488 (Tex. App.—Tyler 2012, no pet.). When
5 Although framed as issues on appeal, we note that the State’s first two issues are simply a
discussion of the appropriate standard of review. By its first issue, the State asserts that “[t]he appropriate
standard of review in this case is de novo.” By its second issue, the State maintains that “[a] trial court is
not entitled to implicit findings of fact when it submitted explicit findings of fact.” We will apply the
appropriate standard of review as set forth in this opinion.
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evaluating the reasonableness of an investigative detention, we conduct the inquiry set
forth by the United States Supreme Court in Terry v. Ohio to determine whether: (1) the
officer’s action was justified at its inception; and (2) it was reasonably related in scope to
the circumstances that initially justified the interference. See 392 U.S. 1, 19–20 (1968);
Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).
An officer may conduct a brief investigative detention, or Terry stop, when he has
reasonable suspicion to believe that the person is involved in criminal activity. Ornelas
v. United States, 517 U.S. 690, 693 (1996); Terry, 392 U.S. at 21; Balentine v. State, 71
S.W.3d 763, 768 (Tex. Crim. App. 2002). Reasonable suspicion exists when the officer
has specific articulable facts that, combined with the rational inferences from those facts,
lead him reasonably to conclude that the person is, has been, or soon will be engaged in
criminal activity. Balentine, 71 S.W.3d at 768; Woods v. State, 956 S.W.2d 33, 38 (Tex.
Crim. App. 1997). This is an objective standard that disregards the actual subjective
intent of the officer and instead looks to the totality of the circumstances and focuses on
whether there was an objectively justifiable basis for the detention. Derichsweiler v.
State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).
A traffic violation committed in the presence of an officer authorizes an initial stop.
State v. Daniel, 446 S.W.3d 809, 813 (Tex. App.—San Antonio 2014, no pet.) (citing
Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000)). In determining whether
the initial stop was justified, the proper inquiry “is not whether [the defendant] was guilty
of the traffic offense but whether the [officer] had a reasonable suspicion that [he] was.”
Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015).
8
Under the second part of the inquiry, the “investigative stop can last no longer than
necessary to effect the purpose of the stop.” Kothe v. State, 152 S.W.3d 54, 63 (Tex.
Crim. App. 2004). The issue is “‘whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during which time
it was necessary to detain the defendant.’” Id. at 64 (quoting United States v. Sharpe,
470 U.S. 675, 685–86 (1985)). If a valid traffic stop evolves into an investigative
detention for a drug related offense so that a canine sniff can take place, reasonable
suspicion is necessary to prolong the detention. See Rodriguez v. United States, 135
S. Ct. 1609, 1614 (2015) (authority for detention of person for traffic violation ends when
tasks tied to traffic infraction are, or reasonably should have been, completed). We
examine the totality of the circumstances to determine the reasonableness of a temporary
detention. Curtis v. State, 238 S.W.3d 376, 380–81 (Tex. Crim. App. 2007).
2. Analysis
We must first determine whether the detention of Bland was justified at its
inception. See Terry, 392 U.S. at 19–20. The trial court concluded “[Bland] did not
commit a traffic violation as a matter of law[,]” and, therefore, “[Bland’s] stop and
subsequent detention were unreasonable.” The State concedes that the “sole
justification for the traffic stop was the violation of [Texas Transportation Code section
544.010]”, but maintains “[t]he trial court’s interpretation of the statute is in error.” The
State maintains that “the statute requires stopping before entering the intersection.”
The requirements of the Texas Transportation Code for a vehicle operator
approaching a stop sign vary depending on the circumstances: (1) if a crosswalk exists,
9
the driver shall stop before entering the crosswalk; (2) if there is no crosswalk, the driver
shall stop at a clearly marked stop line; (3) if there is no stop line, the driver shall stop “at
the place nearest the intersecting roadway where the operator has a view of approaching
traffic on the intersecting roadway.” State v. Police, 377 S.W.3d 33, 37 (Tex. App.—
Waco 2012, no pet.) (quoting TEX. TRANSP. CODE ANN. § 544.010(c)); see also Gaona v.
State, No. 13-14-00083-CR, 2015 WL 4035048, at *2 (Tex. App.—Corpus Christi Feb.
19, 2015, pet. ref’d) (mem. op., not designated for publication).
The trial court found that “[t]here [was] no clearly marked stop line or crosswalk at
the intersection” and concluded that Bland was required to stop “at the place nearest the
intersecting roadway where the operator has a view of approaching traffic on the
intersecting roadway.” See TEX. TRANSP. CODE ANN. § 544.010(c). The trial court’s
conclusion of law is taken verbatim from section 544.010. See id.
Further, the trial court found that Bland’s vehicle was “not in the intersection” when
it came to a stop. We must give almost total deference to the trial court's findings of
historical fact when supported by the record. See Amador, 221 S.W.3d at 673. The
trial court’s finding was supported by Officer Paine’s testimony describing the purported
violation: “When the vehicle approached the intersection, stopped for the stop sign,
stopped and pulled into the intersection, and the front of the vehicle was actually out into
the intersection.” (Emphasis added.). Based on this testimony, the trial court could
have reasonably found that Bland stopped his vehicle prior to entering the intersection.
We review de novo the trial court’s conclusion that Officer Paine lacked reasonable
suspicion to stop Bland’s vehicle. See Wade, 422 S.W.3d at 668. In doing so, we
10
disregard the subjective intent of the officer, and instead focus on whether there was an
objectively justifiable basis for the detention. Derichsweiler, 348 S.W.3d at 914. We
conclude there was no objectively justifiable basis for Bland’s detention. By stopping
prior to entering the intersection, Bland complied with section 544.010’s requirement that,
in the absence of a crosswalk or stop line, the driver shall stop “at the place nearest the
intersecting roadway where the operator has a view of approaching traffic on the
intersecting roadway.” TEX. TRANSP. CODE ANN. § 544.010(c); see Police, 377 S.W.3d at
38 (concluding there was no traffic violation justifying the traffic stop under section
544.010(c) where the trial court found that the defendant came to a complete stop at a
point past the stop sign but not in the intersection). Therefore, we disagree with the
State’s contention that the trial court interpreted the statute incorrectly.
The State argues, alternatively, that a traffic stop based on an officer’s mistake of
law is justified, so long as the mistake of law was reasonable. The State relies primarily
on Heien v. North Carolina, 135 S. Ct. 530 (2014). In Heien, the United States Supreme
Court concluded that the officer’s “objectively reasonable” but ultimately incorrect view of
the traffic code did not invalidate a subsequent search of the defendant’s vehicle. Id. at
540. The Court explained that “[t]he Fourth Amendment tolerates only reasonable
mistakes, and those mistakes—whether of fact or of law—must be objectively
reasonable.” Id. at 539 (emphasis in original).
Prior to Heien, the Texas Court of Criminal Appeals held that “an officer’s mistake
about the legal significance of facts, even if made in good faith, cannot provide probable
cause or reasonable suspicion.” Abney v. State, 394 S.W.3d 542, 550 (Tex. Crim. App.
11
2013); see also Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim. App. 2012) (“Only
the judge is authorized to determine the legal significance of the material facts in the case
and how they affect the ultimate conclusion regarding the existence, vel non, of probable
cause or reasonable suspicion.”). We must consider the application of Heien in light of
Texas’s exclusionary rule, which is broader than its federal counterpart. See TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (West, Westlaw through 2015 R.S.) (“No evidence
obtained . . . in violation of any provisions of the Constitution or laws of the State of Texas,
or of the Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.”); State v. Tercero, 467
S.W.3d 1, 10 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).
The Court of Criminal Appeals has recognized that exceptions to the federal
exclusionary rule are only applicable to the Texas rule if they are consistent with the plain
language of article 38.23. See Wehrenberg v. State, 416 S.W.3d 458, 473 (Tex. Crim.
App. 2013) (adopting federal independent source exception); State v. Daugherty, 931
S.W.2d 268, 270 (Tex. Crim. App. 1996) (declining to adopt the federal inevitable
discovery exception). The Court of Criminal Appeals has yet to address Heien’s
application, and we note that our sister courts have reached different conclusions on this
issue. Compare Tercero, 467 S.W.3d at 10 (declining to apply Heien’s “reasonable
mistake of law” exception to mandatory blood draw procedure because it was
“inconsistent with the text of article 38.23”) with State v. Varley, No. 02-15-00076-CR,
2016 WL 4540491, at *7 (Tex. App.—Fort Worth Aug. 31, 2016, no pet. h.) (mem. op.,
not designated for publication) (applying Heien in holding that the officer’s mistake of law
12
was reasonable while noting that Heien “represents a departure from established
jurisprudence”).
However, even if Heien generally applies in Texas, it would have no effect on the
outcome of this case. The trial court found that Bland stopped his vehicle “past the stop
sign but not in the intersection.” By Officer Paine’s own understanding of the law—that
a vehicle must stop prior to entering the intersection—Bland did not violate the statute.
Officer Paine did not have reasonable suspicion that Bland committed a traffic
violation. Therefore, the detention of Bland was unreasonable. See Jaganathan, 479
S.W.3d at 247. We overrule the State’s issues three through five.
C. Canine’s Free-Air Sniff of Vehicle
By issue six, the State argues the trial court erred when it “based its entire ruling
on the question of whether there was a reasonable suspicion for the stop of [Bland’s]
vehicle [because it] did not . . . address the legality of the free air sniff of [Bland’s] vehicle
or the subsequent search of the vehicle which found the contraband narcotics.” The
State contends: (1) Officer Gibbs’s canine partner was with her at the time of the initial
stop of the vehicle; (2) Officer Gibbs conducted the free air sniff approximately seven
minutes after initiating the traffic stop; (3) the traffic stop was not complete at the time she
conducted the free air sniff because she still needed to run Bland’s name and vehicle
plates for possible warrants; and (4) Officer Gibbs did not unduly prolong the traffic stop
by conducting the free air sniff. In the alternative, the State contends the free air sniff
was still lawful because Officer Gibbs had obtained reasonable suspicion that Bland’s
vehicle contained contraband prior to initiating the free air sniff.
13
1. Applicable Law
If a valid traffic stop evolves into an investigative detention for a drug-related
offense, the officer must act to confirm or dispel his suspicions quickly. See Matthews
v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014). One method of doing so is to
have a trained narcotics-detection dog perform an “open-air sniff” of the air around the
exterior of a detainee’s car. Id. If the dog “alerts” to apparent evidence of contraband,
the officer has probable cause to conduct a warrantless search of the car. See id. at
603–04; Harrison v. State, 7 S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 1999, pet.
ref’d).
If the initial detention is not based on reasonable suspicion, the detention is
unreasonable and violates the Fourth Amendment. Davis, 947 S.W.2d at 242. Under
the “fruit of the poisonous tree” doctrine, evidence may not be used against a criminal
defendant if it was obtained by exploitation of an illegal search or seizure and not by
means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United
States, 371 U.S. 471, 484 (1963); Thornton v. State, 145 S.W.3d 228, 232 (Tex. Crim.
App. 2004); see also TEX. CODE CRIM. PROC. art. 38.23(a). An unreasonable detention
renders any subsequently discovered evidence inadmissible as “fruit of the poisonous
tree.” Sieffert v. State, 290 S.W.3d 478, 488 (Tex. App.—Amarillo 2009, no pet.) (citing
Segura v. United States, 468 U.S. 796, 804 (1984)).
2. Analysis
As noted above, the traffic stop was not supported by reasonable suspicion.
Accordingly, the detention was unreasonable. See Davis, 947 S.W.2d at 242.
14
Therefore, any evidence obtained as a result of the subsequent free air sniff of Bland’s
vehicle is inadmissible as “fruit of the poisonous tree.” See Sieffert, 290 S.W.3d at 488;
see also TEX. CODE CRIM. PROC. ANN. art. 38.23(a).
We overrule the State’s sixth issue.
III. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of October, 2016.
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