State v. Carlos Cantu ( 2016 )

NUMBER 13-15-00372-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
CARLOS CANTU, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides and Perkes
Memorandum Opinion by Justice Perkes
The State appeals the trial court’s granting of appellee Carlos Cantu’s motion to
suppress evidence.1 Cantu was indicted on one count of possession of marijuana, in an
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.
amount of 2,000 pounds or less but more than 50 pounds, a second-degree felony. See
TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (West, Westlaw through 2015
R.S.). By one issue, the State argues the trial court abused its discretion in granting
Cantu’s motion to suppress because the investigator had reasonable suspicion to extend
the traffic stop. We affirm.
I. BACKGROUND
Investigator Horacio Requenez received an anonymous tip that there was
suspicious vehicular traffic at a residence located at 1313 Heron, McAllen, Texas.2 The
residence was a known drug stash house, and previously, officers seized more than 300
kilograms of cocaine from the premises. Investigator Requenez checked the utility bills
and found no change in ownership since the previous investigation. Given this
information, Investigator Requenez began surveillance. He was about eight houses
away from the residence. After several hours of uneventful surveillance, Investigator
Requenez observed a small SUV arrive from which Cantu exited the passenger side while
carrying an empty satchel. After approximately twenty minutes, Cantu left the residence
with the satchel full, re-entered the passenger side of the vehicle, and drove away.
Investigators Requenez and Ricardo Ruiz asked through dispatch for Officer Ramon
Garcia to stop the suspicious vehicle.
ANN. art. 44.01(a)(5) (West, Westlaw through 2015 R.S.).
2 Investigator Ruiz explained that the tip came from a Pharr Police Department investigator who
received information that a vehicle pulled up to the front of the residence and that two males—who did not
live at the residence—opened the trunk and unloaded a heavy looking suitcase and took it into the house.
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Officer Garcia observed the vehicle fail to signal a turn, and initiated a traffic stop.
At the time of the stop, appellant was riding in the passenger side of the vehicle and his
wife was driving. Officer Garcia took both appellant’s and his wife’s drivers licenses to
check for outstanding warrants. Investigator Requenez also observed the traffic
violation, and, based on Officer Garcia’s report to them that Cruz was acting “extremely
nervous,” arrived at the scene. Officer Garcia found no outstanding warrants and, after
speaking with Investigator Requenez, ended his involvement with the traffic stop. 3
Investigators Requenez and Ruiz then approached the passenger side of the
vehicle and began questioning Cantu about his presence at the Heron house. Cantu
admitted to coming from the Heron house, but said it was his wife’s friend’s residence.
Investigator Ruiz asked why Cantu was the only one to enter the residence if they were
there to see his wife’s friend. Cantu responded that he was speaking with the friend’s
husband, who was at the Heron house. Investigator Requenez asked Cantu about the
satchel, but Cantu denied any knowledge of it. Investigator Requenez obtained oral
consent to search the vehicle, and, during the search, they located a satchel under the
seat. Inside the satchel were two plastic bags containing approximately $14,000 in cash.
Investigator Requenez asked Cantu about the money, and Cantu replied that the money
was for building a swimming pool.
After his discovery of the satchel, Investigator Requenez called for a canine unit to
ascertain the presence of narcotics. The canine unit arrived five to ten minutes later and
alerted to the presence of narcotics on the satchel; but it did not alert to the presence of
3 The record does not reflect whether Officer Garcia issued a citation for any traffic infraction.
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any additional narcotics. The investigators informed Cantu of the canine’s alert on the
money bag, and then placed Cantu in the back of their police cruiser. Cantu asked the
officers not to arrest his wife, and then informed the investigators of approximately “a
thousand pounds” of marijuana at a different location—3509 Pelican, McAllen, Texas.
The Pelican address matched the address on Cantu’s driver’s license. The investigation
then moved to the Pelican and Heron houses. The investigators received consent to
search both residences by individuals at each residence. Investigators discovered
marijuana at the Pelican house, and drug ledgers were discovered at the Heron house.
The investigators detained Cantu for between 45 minutes and an hour while the houses
were searched.
Cantu filed a motion to suppress “any and all evidence obtained . . . .” In his
motion, Cantu alleged the “searches were made based on evidence obtained in violation
of the laws of the State of Texas.” Cantu’s motion to suppress sought to exclude his
statements made to police and the marijuana discovered in the Pelican house. After a
hearing, the trial court granted Cantu’s motion to suppress based on the alleged
prolonged length of the detention after the traffic stop. This appeal ensued.
II. PROLONGED DETENTION
The State argues the trial court erred in granting Cantu’s motion to suppress.
Specifically, the State alleges that two of the trial court’s conclusions of law lack
evidentiary support and further argues that the officers had reasonable suspicion to
prolong the traffic stop.
A. Standard of Review
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We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion, using a bifurcated standard. See Valtierra v. State, 310 S.W.3d 442, 447
(Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997)
(en banc). The trial court’s ruling is overturned only if it is “outside the zone of reasonable
disagreement.” Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011).
We view all of the evidence in the light most favorable to the trial court’s ruling. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial court’s role as the
sole trier of fact and judge of the credibility of the witnesses and the weight to be given
their testimony is almost totally deferential. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2008); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing
Guzman, 995 S.W.2d at 89). “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 read only an impersonal record.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000) (en banc); see Wiede, 214 S.W.3d at 24. We give almost total deference,
considered in the light most favorable to the trial court, to the trial court’s findings of
explicit, 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. Miller v. State, 393 S.W.3d
255, 263 (Tex. Crim. App. 2012); see Amador, 221 S.W.3d at 673 (citing Guzman, 995
S.W.2d at 89).
We “review de novo ‘mixed questions of law and fact’ that do not depend upon
credibility and demeanor.” Amador, 221 S.W.3d at 673 (quoting Montanez v. State, 195
S.W.3d 101, 107 (Tex. Crim. App. 2006)). We review the trial court’s legal rulings de
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novo unless its supported-by-the-record explicit fact findings are dispositive of the legal
ruling. State v. Kelley, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Therefore, we
review de novo whether a certain set of historical facts gives rise to reasonable suspicion.
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); Madden v.
State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007) (legal question of whether totality of
circumstances is sufficient to support officer’s reasonable suspicion is reviewed de novo).
B. Applicable Law
The Fourth Amendment, made applicable to the states by the due process clause
of the Fourteenth Amendment, guarantees “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
U.S. CONST. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961). A warrantless
traffic stop is a Fourth Amendment seizure equivalent to a temporary detention, and it
must therefore be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420,
439 (1984); State v. Nelson, 228 S.W.3d 899, 902 (Tex. App.—Austin 2007, no pet.).
Reasonable suspicion exists if the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead the officer to reasonably
conclude that a particular person actually is, has been, or soon will be engaged in criminal
activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); see Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The burden is on the State to elicit
testimony showing sufficient facts to create a reasonable suspicion. Garcia, 43 S.W.3d
at 530. The totality of the suspicious circumstances that an officer relies on “must be
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sufficiently distinguishable from that of innocent people under the same circumstances as
to clearly, if not conclusively, set the suspect apart from them.” Wade, 422 S.W.3d at
671. We give due weight not to the officer’s inchoate and unparticularized suspicion or
“hunch,” but to specific reasonable inferences that he was entitled to draw from the facts
in light of his experience. See Davis, 947 S.W.2d at 242.
We analyze the legality of traffic stops under the standard articulated by the United
States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21–22 (1968); see United States v.
Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc); see also United States v. Pack,
612 F.3d 341, 349–50 (5th Cir. 2010); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App.
2004). Under this standard, we make a two-part inquiry. Brigham, 382 F.3d at 506.
First, we examine whether or not the officer’s decision to stop the vehicle was justified at
its inception. Id. Second, we determine whether or not the officer’s subsequent actions
were reasonably related in scope to the circumstances that caused him to stop the vehicle
in the first place. Id.
An officer’s subsequent actions are not reasonably related in scope to the
circumstances that caused him to stop the vehicle if he detains its occupant beyond the
time needed to investigate the circumstances that caused the stop, unless the officer
develops a reasonable suspicion of additional criminal activity in the meantime. Id. at
507. The United States Supreme Court has expressly rejected placing any rigid time
limitations on Terry stops; instead, 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 State v.
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Sharpe, 470 U.S. 675, 685–86 (1985) (declining to “establish per se rule that 20-minute
detention is too long” under Terry)). A detention may not be unnecessarily prolonged
solely in hopes of finding evidence of some other crime. Kothe, 152 S.W.3d at 64. But
if reasonable suspicion of additional criminal activity arises in the course of a stop and
before the purpose of the stop is fulfilled, then a continued detention may be justified until
the new suspicion has been confirmed or dispelled. Davis, 947 S.W.2d at 243; see
Madden, 242 S.W.3d at 516–17 (facts determined prior to and during stop provided
sufficient reasonable suspicion for continued detention).
C. Analysis
According to the State’s first argument, the trial court abused its discretion by
making conclusions of law which are unsupported by its findings of fact. The State
challenges the trial court’s following conclusions of law:
10. The investigators requested for the canine to arrive on scene.
However, the narcotics canine did not alert to the presence of narcotics.
Instead, the canine found money. The investigator’s testimony was not
reliable as he indicated he had seen the money in plain view and then
called a canine to the location on that basis.
11. CANTU told the investigator that the money was going to be used to buy
a pool. The investigator did not continue the investigation to whether
the money would be used for a pool or not. The investigator assumed
that the money was derived from illegal activity, which he had not seen
personally. The investigator had only conducted surveillance on 1313
Heron for two hours prior to observing CANTU arrive on location.
According to the State, these conclusions are at odds with the trial court’s specific findings
of fact, in particular:
16. Investigator Requenez asked CANTU for permission to search the
vehicle. CANTU denied signing a written consent form, but Investigator
Requenez states that he gave a verbal consent. Investigator Ruiz
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stated they asked to search the vehicle because he observed CANTU
walking in and out of the 1313 Heron residence earlier with the bag.
17. Investigator Requenez searched the vehicle and found a bag
underneath the passenger seat. He did not see the bag until he
searched the vehicle. Investigator Ruiz stated he asked CANTU to exit
the vehicle and he saw Cantu stuff the bag in plain view under his seat
and Investigator Ruiz observed the money in the bag at that time. I did
not find Investigator Ruiz’s testimony credible in that Investigator
Requenez stated that the bag of money was not discovered until the
officers searched the vehicle. Further, when Investigator Requenez
opened the passenger door, he testified he could not see the bag under
the seat.
18. Investigator Requenez called dispatch to request a canine unit to search
the vehicle. At the same time, investigator asked CANTU what the
money was for.
The State contends that the record shows Investigator Requenez discovered the
money prior to the canine’s arrival, not the other way around. The State further
complains about the trial court’s ignoring the officer’s discretion to decide whether or not
to believe appellant’s story about the purpose for the money, apparently finding fault with
what the trial court’s conclusion omitted rather than what it included.
In challenged conclusion of law number 10—which we construe more as a finding
of fact—the trial court stated that the canine did not alert on any narcotics, but “found
money.” By saying the canine “found” the money, we understand that the trial court
meant the canine alerted on the satchel containing the money. The trial court’s next
sentence is an unambiguous credibility determination concerning Investigator Ruiz. The
trial court did not believe Investigator’s Ruiz claims of spotting the satchel with money
prior to the search of the vehicle. Such a finding is consistent with Investigator
Requenez’s testimony stating that he found the satchel in conducting the vehicle search.
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We find no discrepancy between the trial court’s findings of fact and the challenged
conclusion of law number 10.
Challenged conclusion of law number 11—again construed as a finding of fact—
is an accurate statement supported by the record. According to the record, the
investigators did not investigate the truthfulness of Cantu’s claims about the purpose for
the money, nor did they personally witness any overtly illegal activity at the Heron house
prior to Cantu’s detention and arrest. That the State disputes the truthfulness of Cantu’s
stated purpose for the money does not impact the accuracy of the trial court’s findings.
We conclude the challenged conclusions have evidentiary support and do not
constitute an abuse of discretion. See Miller, 393 S.W.3d at 263.
The State also challenges the trial court’s conclusion that the officers did not have
reasonable suspicion to continue Cantu’s detention past the completion of the traffic stop.
In arguing the police officers acquired reasonable suspicion to extend the duration of the
traffic stop, the State points to: (1) the anonymous tip of suspicious vehicular traffic at
the Heron house; (2) previous known drug activity at the Heron house; (3) the residents
involved in the previous drug activity lived in the Heron house at the time of Cantu’s visit;
(4) Cantu’s possession of the satchel during his visit to the Heron house; (5) Cantu’s
nervousness; (6) Cantu’s alleged evasive answers to police questioning; and (7) the
discovery of the satchel filled with money.
Cantu’s interaction with the police began with the traffic stop, initiated by Officer
Garcia.4 After he stopped Cantu’s wife, Officer Garcia asked for identification from Cantu
4The parties do not dispute the legality of Officer Garcia’s traffic stop. We conclude Officer Garcia
had probable cause to stop the vehicle in which Cantu was a passenger. We will focus our analysis on
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and his wife and checked for outstanding warrants. After finding no outstanding
warrants, Officer Garcia spoke with Investigator Requenez, explaining that Cantu seemed
nervous. According to the trial court’s findings of fact, after speaking with Investigator
Requenez, Officer Garcia ended his involvement with the traffic stop. There is no
testimony in the record regarding whether Officer Garcia began writing a traffic citation
while Investigator Requenez spoke with Cantu or whether a traffic citation was ever
issued. Moreover, it is unclear how long Officer Garcia’s investigation lasted before
Investigators Requenez and Ruiz arrived. Therefore, at the conclusion of the traffic stop,
Investigator Requenez knew: (1) Cantu stopped briefly at the Heron house carrying the
satchel; and (2) Cantu seemed nervous in his interaction with Officer Garcia.
The facts that an officer relies on to raise suspicion that illegal conduct is afoot
need not be criminal in themselves; “they may include any facts which in some measure
render the likelihood of criminal conduct greater than it would otherwise be.” Wade v.
State, 422 S.W.3d 661, 670 (Tex. Crim. App. 2013) (quoting Crockett v. State, 803
S.W.2d 308, 311 (Tex. Crim. App. 1991)). However, the totality of the suspicious
circumstances that an officer relies upon “must be sufficiently distinguishable from that of
innocent people under the same circumstances as to clearly, if not conclusively, set the
suspect apart from them.” Id. (quoting Crockett, 803 S.W.3d at 311).
We first examine whether Cantu’s presence at the Heron house, when combined
with permissible deductions, could create a legitimate basis for suspicion. See Ford, 158
S.W.3d at 492. According to Investigator Requenez, the Heron house was the location
whether the officer’s subsequent actions were reasonably related in scope to the circumstances that caused
the stop. See United States v. Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc).
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of a prior drug bust resulting in the seizure of approximately three kilograms of cocaine.
He did not say how long before his latest surveillance the drug bust occurred, but he did
say that the house’s utilities were registered in the same name as during the bust.
Investigator Requenez believed the Heron house was still used for drug activity. By
watching Cantu enter the house with an empty satchel and leave approximately ten
minutes later with a full satchel, he linked Cantu to presumed drug activity.
The record, however, is missing any testimony articulating why Cantu’s carrying a
satchel into and out of the Heron house was suspicious or any testimony linking Cantu’s
presence at the house to previous drug activity. Instead, Investigator Requenez merely
concluded that Cantu’s behavior was “suspicious.” An officer must do more than simply
label a behavior as “suspicious” to make it so. Wade, 422 S.W.3d at 672 (quoting United
States v. Foster, 634 F.3d 243, 248–49 (4th Cir. 2011)). There is nothing in the record,
other than Investigator Requenez’s own subjective belief, that would characterize Cantu’s
conduct at the Heron house as indicative of criminal activity.
Investigator Requenez testified Officer Garcia told him Cantu was acting “nervous.”
While nervousness is a factor, it is not particularly probative because “most citizens with
nothing to hide will nonetheless manifest an understandable nervousness in the presence
of the officer.” Id. (quoting Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984)
(en banc)); see Sieffert v. State, 290 S.W.3d 478, 481 (Tex. App.—Amarillo 2009, no
pet.).
The circumstances do not constitute specific and articulable facts—combined with
rational inferences—to justify a reasonable suspicion on the part of the officers that
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criminal activity was afoot. See Terry, 392 U.S. at 20; Wade, 422 S.W.3d at 672.
Investigator Requenez does not explain his reasoning for labeling Cantu’s behavior at the
Heron house as “suspicious.” While we acknowledge the Heron house’s drug
connection history, we are unable to determine the proximity of that history to Cantu’s
presence. Investigators Requenez and Ruiz were not justified in their continued
detention of Cantu. Cantu’s denial about the satchel’s existence, discovery of the
satchel containing money, and the canine alert on the satchel all came after Cantu’s initial
detention was illegally prolonged and therefore do not factor into our analysis.
We hold that the trial court did not abuse its discretion in finding the officers violated
Cantu’s fourth amendment rights and in suppressing all evidence deriving from the
prolonged detention. See Valtierra, 310 S.W.3d at 447. The State’s issue is overruled.
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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