Ramon Pena v. State ( 2018 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
RAMON PEÑA, No. 08-16-00028-CR
Appellant, §
Appeal from the
v. §
County Court at Law No. 1
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20140C07272)
§
OPINION
Ramon Peña appeals the trial court’s denial of his motion to suppress his arrest and physical
evidence found in his vehicle following a traffic stop conducted by the El Paso Police Department.
In his sole issue for review, Appellant claims the trial court erred by denying his motion to suppress
because reasonable suspicion to conduct a traffic stop did not exist.
BACKGROUND
At 10:30 in the evening on July 2, 2014, El Paso Police Department Officer Fred Arias and
his partner, Officer Acosta, were working in uniform and in a marked unit with the Pebble Hills
Gang Unit. Officer Arias and his partner were traveling westbound in the left lane on Vista Del
Sol, an area of high narcotic activity, when they observed a vehicle pass them in the Vista Del Sol
and Zaragosa intersection going eastbound. Once the vehicle passed the patrol unit, the officers
saw the vehicle did not have a rear license plate light, in violation of the Texas Transportation
Code. While in the left-turn lane, the officers made a U-turn at the Vista Del Sol and Zaragosa
intersection to further inspect the vehicle. As the officers made the U-turn, they witnessed the
vehicle make an abrupt, unsafe lane change to the outside left lane—a second violation of the
Texas Transportation Code. Then, the vehicle cut again into the turning lane and turned left on
Diego Rivera Street without signaling—the vehicle’s third violation of the Texas Transportation
Code. The officers turned on the patrol unit’s siren and lights to initiate a traffic stop. Although
it was safe for the vehicle to pull over, the vehicle continued traveling north on Diego Rivera,
maintaining its speed. Officer Arias hit the electronic horn several times, but the vehicle did not
pull over and continued driving for about two blocks. The vehicle abruptly stopped by pulling
halfway into a residential driveway, blocking the sidewalk. Officer Arias and Officer Acosta
approached the vehicle. Officer Arias spoke to Appellant, the driver. Officer Arias explained to
Appellant the reason for the stop and asked him why he failed to initially pull over; Appellant did
not respond. Appellant provided his driver’s license upon Officer Arias’s request. Officer Arias
asked Appellant to step out of the vehicle for officer safety and ensure he would not have the
opportunity to flee. Appellant accompanied Officer Arias to the rear of the vehicle where Officer
Arias conducted a pat-down. After not finding anything on Appellant’s person, Officer Arias ran
his driver’s license number and discovered Appellant had fifteen outstanding traffic warrants.
Appellant was subsequently placed under arrest because of the warrants. Officer Arias sat
Appellant on the curb between the patrol unit and the vehicle. Officer Arias returned to his partner
who was making contact with the passenger of the vehicle. The passenger was also placed under
arrest because of his outstanding warrants.
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Officer Acosta detected an odor of marijuana emanating from the vehicle and brought it to
Officer Arias’s attention. While Officer Acosta proceeded with his investigation, Officer Arias
asked Appellant where the marijuana odor was coming from; Appellant denied a marijuana odor
existed. At this point, Officer Acosta searched the vehicle while Officer Arias stood over him.
Officer Acosta found a cigarillo pack and a small plastic bag of marijuana located in the center
console. Officer Acosta also found a small plastic bag of what he believed to be marijuana wax
located in the passenger side door pocket.1 With both Appellant and the passenger under arrest,
the officers waited for a wrecker to arrive and proceeded with Appellant and the passenger to the
El Paso Police Department at Pebble Hills.
Appellant was indicted for possession of marijuana in the amount of two ounces or less.
He filed a pretrial motion to suppress, alleging officers lacked probable cause and reasonable
suspicion to conduct a traffic stop and search his vehicle. The trial court denied Appellant’s
motion to suppress. Appellant subsequently pleaded guilty to the offense of Possession of Drug
Paraphernalia, a Class C Misdemeanor. This appeal followed.
DISCUSSION
Reasonable Suspicion
In his sole issue, Appellant contends the traffic stop was conducted without reasonable
suspicion of criminal wrongdoing in violation of his Fourth Amendment rights. Specifically,
Appellant contends the traffic stop was illegal because the officers lacked specific, articulable facts
to support his engagement in criminal activity—here, his violation of the Transportation Code—
which the Supreme Court concluded in Terry v. Ohio violates the Fourth Amendment’s prohibition
1 Was the charging instrument for the passenger and is not challenged here.
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against unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879,
20 L. Ed. 2d 889 (1968). A “reasonable-suspicion determination is made by considering the
totality of the circumstances.” Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App. 2005).
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Lerma v. State, 543 S.W.3d 184, 189-90 (Tex.Crim.App. 2018). Almost complete
deference is afforded to the trial court in determining historical facts, credibility, and demeanor
that is supported by the record. Id., at 190. Whether the facts are sufficient to give rise to
reasonable suspicion is reviewed de novo. Id. Evidence that the trial court did not make explicit
findings of fact is reviewed in the light most favorable to the trial court’s ruling, and we assume
the trial court made implicit findings of fact supporting the ruling. Id.
Analysis
Reasonable suspicion exists when a “police officer has ‘specific, articulable facts that,
when combined with rational inferences from those facts, would lead him to reasonably conclude
that the person detained is, has been, or soon will be engaged in criminal activity.’” Furr v. State,
499 S.W.3d 872, 878 (Tex.Crim.App. 2016)(quoting Wade v. State, 422 S.W.3d 661, 668
(Tex.Crim.App. 2013)). A reasonable suspicion determination is an objective standard, and an
“objectively justifiable basis for the detention” must be established. Wade, 422 S.W.3d at 668.
The standard also requires a reviewing court to assess the totality of the circumstances to determine
whether the officer had an objective suspicion of criminal activity. Id. To find that reasonable
suspicion exists, the “legality of a traffic stop based on reasonable suspicion does not depend upon
a showing that an actual offense was committed; it is sufficient to show that the officer reasonably
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believed that an offense was in progress.” State v. Torrez, 490 S.W.3d 279, 283 (Tex.App.--Fort
Worth 2016, pet. ref’d).
In Wehring v. State, the court held that reasonable suspicion to initiate a traffic stop exists
when an officer reasonably believes that a traffic violation has occurred. Wehring v. State, 276
S.W.3d 666, 668 (Tex.App.--Texarkana 2008, no pet.). There, an officer observed the defendant
driving over the speed limit. Id., at 668. Since the officer did not have a radar unit that could
register the vehicle’s speed, he continued to follow the vehicle and observed the defendant make
a right turn without signaling. Id. The officer conducted a traffic stop because the defendant’s
failure to signal intent to turn was a violation of Section 545.104 of the Texas Transportation Code.
Id. The traffic stop resulted in a DWI arrest and the defendant filed a motion to suppress. Id.
The court concluded the traffic stop was proper because the officer believed the defendant’s failure
to signal was a traffic violation, and “‘[i]f an officer has a reasonable basis for suspecting that a
person has committed a traffic offense, the officer may legally initiate a traffic stop.’” Id., at 669,
(quoting Zervos v. State, 15 S.W.3d 146, 151 (Tex.App.--Texarkana 2000, pet. ref’d)). The court
held the denial of the motion to suppress the evidence relating to the DWI was proper because it
was gathered after the lawful traffic stop. Id., at 671.
Here, viewing the facts in the light most favorable to the ruling, as we are required to do,
Officer Arias, a twenty-eight-year law enforcement veteran, pulled Appellant over after observing
him commit three traffic violations. First, Officer Arias and his partner observed Peña’s vehicle
without its rear license plate illuminated, which is a violation of the Texas Transportation Code.
See TEX.TRANSP. CODE ANN. § 547.322(f)(West 2011). The officers observed this at about 10:30
p.m., which made the non-illuminated license plate readily observable. Second, Officer Arias and
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his partner observed the vehicle make an abrupt, unsafe lane change as it cut across the lane of
travel and in front of another vehicle, which is also a violation of the Texas Transportation Code.
See TEX.TRANSP. CODE ANN. § 545.060(a)(2)(West 2011). Third, Peña’s vehicle was in the left
lane and turned left onto Diego Rivera Street without signaling, also a violation of the Texas
Transportation Code. See TEX.TRANSP. CODE ANN. § 545.104(a)(West 2011). The trial court
included these facts in its Findings of Fact, which as a reviewing court we must accept as true
because of the “‘longstanding rule that appellate courts should show almost total deference to a
trial court's findings of fact[.]’” State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.
2006)(quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); As a result of these
traffic violations, Officer Arias initiated a traffic stop and turned on his patrol unit’s siren and
lights, and then hit the electronic horn several times because Peña would not pull over. After
about two blocks, Peña abruptly stopped halfway up a residential driveway.
Under the totality of the circumstances presented, Officer Arias had an objective basis for
suspecting criminal wrongdoing, thus allowing him to initiate a traffic stop. See Wehring, 276
S.W.3d at 669. The appellant in Wehring was observed committing one traffic violation, which
the court found to be sufficient for initiating a traffic stop. Id., at 671. Unlike the appellant in
Wehring, Appellant was observed committing not just one, but three traffic violations. This is
sufficient to support Officer Arias’s reasonable suspicion of a traffic violation because “[w]hen a
traffic offense is committed in the presence of a peace officer, the detention is reasonable.” Id.,
(citing Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992)). Moreover, Officer Arias
initiated the traffic stop by turning on his patrol unit’s lights and sirens, and had to hit the electronic
horn several times because of Appellant’s failure to pull over, which created further suspicion of
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criminal activity. Appellant contends the State did not provide evidence to support reasonable
suspicion to effectuate a traffic stop because he was not cited for the traffic violations; however,
issued citations are not necessary to establish reasonable suspicion. Kelly v. State, 331 S.W.3d
541, 550 (Tex.App.--Houston [14th Dist.] 2011, pet. ref’d)(“Although the trial court was free to
consider the failure to issue a written citation . . . this evidence does not mean the officers lacked
reasonable suspicion as a matter of law.”).
Appellant also argues the trial court erred in denying his motion to suppress because the
evidence seized was the result of a warrantless search that occurred without his consent.
However, in its Findings of Fact and Conclusions of Law, the trial court correctly found that
Appellant’s outstanding traffic warrants subjected him to lawful arrest. During a traffic stop,
“law-enforcement officers may request information such as a driver's license and vehicle
registration, and may conduct a computer check of that information.” Kelly, 331 S.W.3d at 549.
Officer Arias did just this and discovered Appellant had fifteen outstanding warrants, which
established probable cause for lawful arrest. See Hayley v. State, 480 S.W.2d 644, 645
(Tex.Crim.App. 1972). The defense attempted to discredit Appellant’s outstanding warrants by
arguing Officer Arias failed to include this information in his complaint affidavit, thus making it
unclear whether the warrants existed. Nonetheless, in its Findings of Fact and Conclusions of
Law, the trial court found Officer Arias’s testimony regarding Appellant’s warrants credible,
which was a determination for the fact finder to make. See Dewberry v. State, 4 S.W.3d 735, 740
(Tex.Crim.App. 1999)(“[Reviewing courts] may not re-evaluate the weight and credibility of the
record evidence and thereby substitute our judgment for that of the fact-finder.).
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In addition, a warrantless search is considered “per se unreasonable . . . subject only to a
few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357, 88
S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). The search of Appellant’s vehicle is proper under the
automobile exception. “Law enforcement officials may conduct a warrantless search of a vehicle
if it is readily mobile and there is probable cause to believe that it contains contraband.” Keehn
v. State, 279 S.W.3d 330, 335 (Tex.Crim.App. 2009). “[P]robable cause 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 . . . or evidence of a crime will be
found.’” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007)(quoting Estrada v. State,
154 S.W.3d 604, 609 (Tex.Crim.App. 2005).
The trial court found in its Findings of Fact that the search was conducted because of the
odor of marijuana emanating from Appellant’s vehicle. During a traffic stop, “if an officer
develops reasonable suspicion that another violation has occurred, the scope of the initial
investigation expands to include the new offense.” Goudeau v. State, 209 S.W.3d 713, 719
(Tex.App.--Houston [14th Dist.] 2006, no pet.); see also Sims v. State, 98 S.W.3d 292, 295–97
(Tex.App.--Houston [1st Dist.] 2003, pet. ref'd)(finding the officer had reasonable suspicion to
investigate criminal activity beyond the reason for the stop). Because both officers had
independent recollections of a marijuana odor, sufficient probable cause to conduct a search of the
vehicle existed. See United States v. Johns, 469 U.S. 478, 482, 105 S. Ct. 881, 884, 83 L. Ed. 2d
890 (1985)(“After the officers came closer and detected the distinct odor of marihuana, they had
probable cause to believe that the vehicles contained contraband.”); Mohmed v. State, 977 S.W.2d
624, 628 (Tex.App.--Fort Worth 1998, pet. ref'd)(holding that the officer’s further investigation of
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appellant’s vehicle during a traffic stop “was supported by a reasonable suspicion because the
officer smelled . . . marihuana emanating from the car.”). Although the odor of marijuana alone
gave the officers probable cause to search Appellant’s vehicle, Peña’s failure to stop, and the ready
mobility of the vehicle, created further suspicion of criminal activity. Keehn, 279 S.W.3d at 335
(‘“ready mobility” of a vehicle creates “an exigency”’)(quoting Pennsylvania v. Labron, 518 U.S.
938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031 (1996)). Appellant failed to pull over after the
officers turned on the patrol unit’s lights and sirens, although it was safe for him to do so. It was
only after about two blocks and after Officer Arias hit the electronic horn several times that
Appellant finally stopped his vehicle, which he did in an abrupt manner by pulling halfway into a
residential driveway. This occurred in an area known for high narcotic activity, and although an
“area of expected criminal activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime . . . officers are not required to ignore
the relevant characteristics of a location in determining whether the circumstances are sufficiently
suspicious to warrant further investigation.” [Citation omitted]. Illinois v. Wardlow, 528 U.S.
119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000). Under the totality of the circumstances,
the officers possessed reasonable suspicion based on objective facts to detain Appellant, and
because the search of Appellant’s vehicle was authorized under the automobile exception, the trial
court did not err in denying his motion to suppress. Accordingly, Appellant’s sole issue is
overruled.
CONCLUSION
Having overruled the sole issue presented for review, the judgment of the trial court is
affirmed.
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July 25, 2018
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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