Buquo, Rickie Louis v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 6, 2006

Affirmed and Memorandum Opinion filed April 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00956-CR

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RICKIE LOUIS BUQUO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 988,732

M E M O R A N D U M   O P I N I O N

Appellant, Rickie Louis Buquo, appeals the trial court=s denial of his motion to suppress evidence.  In two points of error, he challenges the legality of the search of his person.  We affirm.

In the early morning hours of May 24, 2004, Harris County Deputy Constable Ben Katrib observed the front tire of a newer-model Ford Focus almost hit a curb after the driver made a wide left turn.  Deputy Katrib used his radar equipment to determine the driver was traveling fifteen miles per hour over the speed limit, and he stopped the car. Appellant, the driver and sole occupant of the vehicle, got out of the car before Katrib approached.  According to Deputy Katrib, appellant appeared Aextremely fidgety and nervous@ and kept moving his hands around, rubbing his face, and putting his hands in his pockets. Deputy Katrib told appellant to return to his seat, and repeatedly told him to keep his hands still and out of his pockets.

Deputy Katrib returned to his vehicle to run a check on the driver=s license number.  During this time, Katrib observed Aa lot of movement@ in the Ford Focus.  Deputy Katrib walked back to the Ford and asked appellant to get out and place his hands on the trunk.  Katrib performed a pat down search for weapons and found none.  However, during the pat down, Deputy Katrib smelled the strong odor of burnt marijuana.  When asked about the smell, appellant explained that he had been at a friend=s house Aand they were smoking marijuana.@ Deputy Katrib testified:  AAfter the burnt marijuana smell was detected that=s when I decided to go inside his pockets because I had the belief that he might have narcotics on his person.@ Katrib reached into one of appellant=s pockets and retrieved a pack of cigarettes with what he recognized as fresh leaf marijuana residue inside.  He then reached into appellant=s other pocket and retrieved a small plastic wrapper containing black tar heroin. Deputy Katrib then placed appellant under arrest and conducted a search of appellant=s car.

Appellant filed a motion to suppress the heroin and other items found from the search of his person and vehicle.  At the hearing on the motion to suppress, appellant argued that, although the deputy had the authority to detain, question, and pat down his body to search for weapons, the intensive search of his clothing was without consent, warrant, or probable cause.  He also argued that the smell of marijuana alone does not give rise to probable cause to search beyond a Terry^[1] pat down, especially after he had provided an explanation for the smell.  The trial court denied appellant=s motion.  Appellant pled guilty to the state jail felony of possession of less than one gram of heroin and was sentenced to one year in jail pursuant to a plea bargain.

In his first point of error, appellant claims the trial court erred by denying his motion to suppress evidence.^[2]  In a closely related point of error, appellant also contends the warrantless search of his person was unreasonable and violated Article I, Section 9 of the Texas Constitution.  Appellant does not advance arguments directed in support of specific points of error; but rather, makes four arguments in support of his general request for a new trial. Accordingly, we will address appellant=s first and second points together and examine each of his arguments in turn.

Specifically, appellant contends (1) the length of his detention was unreasonable and exceeded the scope of the traffic stop, (2) the State failed to sustain its burden to justify a search for weapons, and (3) the warrantless search of his pockets exceeded the scope of the limited Terry pat down, and (4) the search was not supported by probable cause.^[3]  Of these four arguments, the State contends appellant has failed to preserve the first two for appeal.  We agree.

A motion to suppress is a specialized objection to the admissibility of evidence. Porath v. State, 148 S.W.3d 402, 413 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  Therefore, it must meet all of the requirements of an objection, that is, it must be timely and sufficiently specific to inform the trial court of the complaint.  Id. An objection on one legal basis may not be used to support a different legal theory on appeal.  Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).  Appellant conceded in his motion to suppress and at the subsequent hearing on the motion that the officer was within his authority to detain, question, and conduct a pat down search for weapons.  Also, appellant never presented to the trial court his argument that the length of his detention was unreasonable and exceeded the scope of a valid traffic stop. Accordingly, he has waived his first two arguments.  Id. at 870B71.

We now turn to appellant=s remaining contentions that the evidence should have been suppressed because the deputy=s warrantless search of his pockets exceeded the scope of a Terry pat down and was not supported by probable cause.

We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  We consider de novo issues that are purely questions of law, such as whether probable cause existed.  Weems v. State, 167 S.W.3d 350, 354B55 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d), petition for cert. filed, ‑‑‑ U.S.L.W. ‑‑‑ (U.S. Mar. 3, 2006) (No. 05‑9656).  At a suppression hearing, the trial court is the exclusive trier of fact.  Id.  If the trial court=s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, it will be sustained. Id.  Because the trial court did not make explicit findings of fact, we  review the evidence in a light most favorable to the trial court's ruling.  See State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999).  At a hearing on a motion to suppress, the accused bears the burden of rebutting the presumption that police conduct was proper.  McGee v. State, 105 S.W.3d 609, 613 (Tex. Crim. App. 2003). This burden is satisfied by showing the search occurred without a warrant.  Id.  The burden of proof then shifts to the State to produce a warrant, or to prove the reasonableness of the disputed conduct.  Id.

The Texas Constitution does not prohibit every search, only unreasonable searches. Tex. Const. art. I, ' 9; Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000).  A warrantless search is reasonable and, therefore, valid under the Texas Constitution if probable cause exists at the time of the search and there are circumstances making the procurement of a warrant impracticable.  Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972). Probable cause is a Apractical, nontechnical concept.@  Johnson v. State, 171 S.W.3d 643, 648B49 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). It exists when reasonably trustworthy facts and circumstances within the officer=s knowledge would lead a person 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) (quoting McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991)).  We look to the totality of the circumstances to determine whether probable cause existed to substantiate a warrantless search.  Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).

In his third argument, appellant contends that as part of a Afrisk@ for weapons the deputy went into appellant=s pocket and removed a plastic wrapper containing heroin. The record shows, however, that this occurred only after the Terry pat down for weapons had concluded, and the deputy was already assured that appellant posed no threat to his safety. The search of appellant=s pockets, therefore, was not conducted as part of a Terry search for weapons.  We overrule appellant=s contention and proceed to address his final argument regarding whether the deputyr was justified in searching appellant=s person.

A peace officer may arrest an offender without a warrant for any offense committed in the officer=s presence or view.  Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005).  Therefore, if an officer, during a legitimate detention, acquires probable cause to believe a more serious crime is being committed in his presence, the officer is justified in conducting a search.  Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979 [Panel Op.]) (finding search of vehicle was proper after officer detected strong odor of marijuana emitting from trunk).  Several Texas courts have recognized that the odor of marijuana can be a strong a factor in determining whether a police officer has probable cause to search a person, vehicle, or objects within the vehicle.^[4]  At least one court has determined that the smell of marijuana alone is sufficient to constitute probable cause to search a person, vehicle, or objects within the vehicle. See Hitchcock v. State, 118 S.W.3d 844, 851 (Tex. App.CTexarkana 2003, pet. ref=d) (finding odor of marijuana gave officer probable cause to search appellant=s pockets following a Terry pat down that revealed no weapons, and search was also proper due to the presence of exigent circumstances in that appellant could destroy drugs in the time it would take to procure a warrant).

Appellant contends the search was unreasonable when considering the totality of the circumstances.  Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (plurality op.). He cites to State v. Steelman to support his argument that A[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.@  93 S.W.3d 102, 108 (Tex. Crim. App. 2002).  Steelman does, in fact, hold that odor alone does not authorize the warrantless search of a home.  Id.^[5]  This does not mean, however, that the odor of marijuana is not a significant factor when evaluating the existence of probable cause.  Estrada, 154 S.W.3d at 608.

Here, the record shows appellant was nervous and fidgety, he continued to place his hands in his pockets after being told not to, he told Deputy Katrib he had been at a friend=s house that night where Athey@ had smoked marijuana, and Katrib smelled the strong odor of burnt marijuana directly on appellant=s person while conducting a pat down search for weapons.  We find from the totality of the circumstances that Deputy Katrib=s search was supported by probable cause.  Because the deputy was also faced with the possibility that appellant could destroy evidence in the time it would take to procure a search warrant, the intrusion into appellant=s pockets was minimal when weighed against the importance of preserving evidence of a crime.  See Hitchcock, 118 S.W.3d at 850B51 (quoting Hernandez v. State, 548 S.W.2d 904, 905 (Tex. Crim. App. 1977)) (stating officer who has probable cause to believe offense is being committed in his presence can take reasonable measures to ensure evidence is not destroyed, and search of vehicle=s occupants after officer detected odor of marijuana in car was minimal intrusion when weighed against need to preserve evidence); Moulden, 576 S.W.2d at 819 (stating on-the-stop warrantless searches are a lesser intrusion upon individual=s privacy expectations).  The trial court did not abuse its discretion by denying appellant=s motion to suppress evidence.

Accordingly, we overrule appellant=s first and second points of error.  The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed April 6, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Terry v. Ohio, 392 U.S. 1, 21 (1968).

^[2]  The State contends appellant has waived any complaint about the trial court=s refusal to suppress evidence by pleading guilty.  We disagree.  The Texas Code of Criminal Procedure states that a defendant may appeal issues raised by pretrial motion after that defendant has pled guilty pursuant to a plea bargain, as appellant has done.  Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 1979).  A valid guilty plea does not waive a defendant=s right to appeal unless the judgment of guilt is rendered independently of the error asserted.  Young v. State, 8 S.W.3d 656, 666B67 (Tex. Crim. App. 2000).  Because the suppression of evidence was material to appellant=s subsequent guilty plea and conviction, he has not waived this complaint on appeal.  See McKenna v. State, 780 S.W.2d 797, 800 (Tex. Crim. App. 1989) (stating denial of motion to suppress is not immaterial to the validity of the guilty plea and, thus, the tainted evidence contributed in some measure to the State=s leverage in plea bargaining).

^[3]  Appellant limits his fourth argument to a violation of the Texas Constitution only.

^[4]  See Estrada, 154 S.W.3d at 609 (stating odor of illegal substance may be a factor used by police to determine probable cause that offense has been or is being committed); Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App. [Panel Op.] 1979) (finding sufficient probable cause to arrest appellant after officers observed appellant smoking what appeared to be a marijuana cigarette and smelled odor of marijuana when they approached vehicle); Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972) (finding sufficient probable cause to search after tire tool observed in back seat, strong odor of marijuana in vehicle, and car=s two occupants appeared lethargic); Johnson v. State, 146 S.W.3d 719, 723 (Tex. App.CTexarkana 2004, no pet.) (stating simultaneous pat down for weapons and search for drugs is properly supported by probable cause because of odor of marijuana in vehicle, appellant was only occupant, and officer knew appellant to have been involved with illegal drugs for some time); Small v. State, 977 S.W.2d 771, 774  (Tex. App.CFort Worth  1998, no pet.) (finding odor of marijuana sufficient to constitute probable cause to search outer clothing for contraband after officer noticed appellant=s furtive hand movement toward his trousers where drugs were concealed); Howard v. State, No. 14-99-00913-CR, 2000 WL 991857, at *4 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (not designated for publication) (finding strong odor of marijuana, discovery of marijuana cigarette on front seat, and appellant=s admission there was more marijuana in the car gave officer probable cause to search entire vehicle); Hudson v. State, No. 01-97-01213-CR, 1998 WL 862496, at *1 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (not designated for publication) (finding strong odor of marijuana, zig-zag rolling papers on floorboard of vehicle, and bulge in appellant=s crotch area constituted probable cause to search appellant=s person for drugs).

^[5]  The Texas Court of Criminal Appeals found, in Moulden, that officers had probable cause to search a vehicle and a bag inside the vehicle Aafter detecting the odor of burnt marijuana.@  Moulden v. State, 576 S.W.2d 817,  820 (Tex. Crim. App. 1978 [Panel Op.]).  The Moulden opinion distinguishes between a constitutional preference for warrants and what Aspecific facts, observations, or circumstances@ constitute probable cause; it also found the necessary exigent circumstance was present due to the mobility of the vehicle searched.  Id. at 819.