MEMORANDUM OPINION
BILL VANCE, Justice.
On January 31, 2000, Officer Hugh Curry, an investigator with a drug task force, was patrolling on the highway in uniform and in a marked police vehicle, performing drug interdiction. After he met Damasio Conde’s van, he saw that the light over the [254]*254van’s rear license plate was not on, so he pursued Conde and pulled him over. Curry testified that, before the cars stopped, the license-plate light was on, but he stopped Conde anyway because he surmised that the light must have been coming off and on, a violation of the traffic laws.
Curry contacted his dispatcher, got Conde out of the van, and began to make routine inquiries. Curry verified Conde’s drivers license and insurance, but learned that the van was not registered to Conde, who explained that he had purchased it for cash one week earlier. Conde produced a sales contract for purchase of the van but said he paid $6,000 for it, although the sales contract stated $4,500. In addition, Conde said he and his wife, who was the passenger, were on a three-week trip from the Mexican border to Arkansas, but Curry saw only two small bags with clothing in the van. Curry also said Conde offered too much unsolicited information. Curry smelled the odor of raw gasoline coming from the van when he first approached it. His further inspection showed a leak around the gas tank and what he described as fresh tool marks on the tank. He also smelled a strong odor of air freshener inside the van. Curry testified he concluded that he had probable cause to seize the van and search it without a warrant because:
My training, experience and knowing that gas tanks are commonly used to transport illegal drugs, contraband, money from the border states of Texas to other points, the smell of raw gas. There was obviously some reason why the gas tank was leaking. The obvious deception that is being displayed by Mr. Conde and actually the non-questions. The dishonesty to my questions, his demeanor, his physical actions, and the three main factors are obvious fresh tool marks, the smell of the raw gasoline, obviously had a gas tank with something wrong with it, and his dishonesty [about how much he paid for the van].
Alternatively, Curry testified that Conde gave him consent to search the van at the scene, and later gave consent to seize the van and drop the gas tank and search it. Without a warrant, Curry took the van to a garage where a drug-sniffing dog “alerted” to the van. The gas tank was removed, and inside Curry found 50 pounds of marihuana. Conde and his wife were then arrested.
Conde filed a motion to suppress the evidence, which the trial court denied. A jury found him guilty and assessed punishment at ten years in prison.
The Issue on Appeal
In a single issue, Conde says the trial court erred in denying his motion to suppress evidence because of: (1) an absence of probable cause for the traffic stop, (2) an absence of reasonable suspicion to temporarily detain him, and (3) the illegality of the seizure of the van and search of the gas tank.
Standard of Review
We will apply the general rule that “appellate courts should afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.” Brown v. State, 115 S.W.3d 633, 635 (Tex.App.-Waco 2003, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)).
The Traffic Stop
We agree that Curry had a reasonable suspicion of a traffic violation. As we have noted, “When a traffic violation is committed within an officer’s view, the offi[255]*255cer may lawfully stop and detain a person for the traffic violation.” Bellard v. State, 101 S.W.3d 594, 600 (Tex.App.-Waco 2003, pet. refd). Also, we find that Curry had reasonable suspicion to temporarily detain Conde for further inquiry after noticing the smell of raw gasoline, observing Conde’s demeanor, and learning about the discrepancies in the price of the van and the stated purpose of the trip. Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex.Crim.App.2000). Our inquiry, therefore, will focus on (1) whether Conde voluntarily consented to the preliminary search of the van and (2) whether the officer developed probable cause to seize the van, transport it to a garage, and search it further.
Consent to Search
A voluntary consensual search is an exception to the probable cause and warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000). The State has the burden to prove by clear-and-convincing evidence that consent was freely and voluntarily given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App.1997). While we defer to the trial court for fact findings, we review de novo the legal question of whether consent was voluntary. Vargas v. State, 18 S.W.3d 247, 253 (Tex.App.-Waco 2000, pet. refd).
Consent must not be the product of duress or coercion, express or implied. Reasor, 12 S.W.3d at 817 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973)). It must be positive and unequivocal, and it is not shown by acquiescence to a claim of lawful authority. Carmouche, 10 S.W.3d at 331. Whether consent was voluntary is determined from the totality of the circumstances. Reasor, 12 S.W.3d at 818.
Officer Curry testified that Conde consented to his searching the van. Our review of the videotape shows that Officer Curry had only mild difficulty in communicating with Conde and his wife. It is apparent from the videotape that Conde understood the nature of the request that Curry made to search the van. Giving almost total deference to the trial court’s findings, we conclude from a review of the record of the suppression hearing that the trial court could have found by clear-and-convincing evidence that Conde freely and voluntarily consented to the search. Id.
Officer Curry’s search on the highway did not reveal the presence of drugs, however, and he told Conde that he needed to take the van to a garage and examine it further. Rather than reviewing whether Conde freely and voluntarily consented to moving the van, we will examine whether Curry had probable cause to seize the van for an additional search. See Cardenas v. State, 857 S.W.2d 707, 715 (Tex.App.Houston [14th Dist.] 1993, pet. refd).
Probable Cause to Seize the Van
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM OPINION
BILL VANCE, Justice.
On January 31, 2000, Officer Hugh Curry, an investigator with a drug task force, was patrolling on the highway in uniform and in a marked police vehicle, performing drug interdiction. After he met Damasio Conde’s van, he saw that the light over the [254]*254van’s rear license plate was not on, so he pursued Conde and pulled him over. Curry testified that, before the cars stopped, the license-plate light was on, but he stopped Conde anyway because he surmised that the light must have been coming off and on, a violation of the traffic laws.
Curry contacted his dispatcher, got Conde out of the van, and began to make routine inquiries. Curry verified Conde’s drivers license and insurance, but learned that the van was not registered to Conde, who explained that he had purchased it for cash one week earlier. Conde produced a sales contract for purchase of the van but said he paid $6,000 for it, although the sales contract stated $4,500. In addition, Conde said he and his wife, who was the passenger, were on a three-week trip from the Mexican border to Arkansas, but Curry saw only two small bags with clothing in the van. Curry also said Conde offered too much unsolicited information. Curry smelled the odor of raw gasoline coming from the van when he first approached it. His further inspection showed a leak around the gas tank and what he described as fresh tool marks on the tank. He also smelled a strong odor of air freshener inside the van. Curry testified he concluded that he had probable cause to seize the van and search it without a warrant because:
My training, experience and knowing that gas tanks are commonly used to transport illegal drugs, contraband, money from the border states of Texas to other points, the smell of raw gas. There was obviously some reason why the gas tank was leaking. The obvious deception that is being displayed by Mr. Conde and actually the non-questions. The dishonesty to my questions, his demeanor, his physical actions, and the three main factors are obvious fresh tool marks, the smell of the raw gasoline, obviously had a gas tank with something wrong with it, and his dishonesty [about how much he paid for the van].
Alternatively, Curry testified that Conde gave him consent to search the van at the scene, and later gave consent to seize the van and drop the gas tank and search it. Without a warrant, Curry took the van to a garage where a drug-sniffing dog “alerted” to the van. The gas tank was removed, and inside Curry found 50 pounds of marihuana. Conde and his wife were then arrested.
Conde filed a motion to suppress the evidence, which the trial court denied. A jury found him guilty and assessed punishment at ten years in prison.
The Issue on Appeal
In a single issue, Conde says the trial court erred in denying his motion to suppress evidence because of: (1) an absence of probable cause for the traffic stop, (2) an absence of reasonable suspicion to temporarily detain him, and (3) the illegality of the seizure of the van and search of the gas tank.
Standard of Review
We will apply the general rule that “appellate courts should afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.” Brown v. State, 115 S.W.3d 633, 635 (Tex.App.-Waco 2003, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)).
The Traffic Stop
We agree that Curry had a reasonable suspicion of a traffic violation. As we have noted, “When a traffic violation is committed within an officer’s view, the offi[255]*255cer may lawfully stop and detain a person for the traffic violation.” Bellard v. State, 101 S.W.3d 594, 600 (Tex.App.-Waco 2003, pet. refd). Also, we find that Curry had reasonable suspicion to temporarily detain Conde for further inquiry after noticing the smell of raw gasoline, observing Conde’s demeanor, and learning about the discrepancies in the price of the van and the stated purpose of the trip. Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex.Crim.App.2000). Our inquiry, therefore, will focus on (1) whether Conde voluntarily consented to the preliminary search of the van and (2) whether the officer developed probable cause to seize the van, transport it to a garage, and search it further.
Consent to Search
A voluntary consensual search is an exception to the probable cause and warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App.2000). The State has the burden to prove by clear-and-convincing evidence that consent was freely and voluntarily given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App.1997). While we defer to the trial court for fact findings, we review de novo the legal question of whether consent was voluntary. Vargas v. State, 18 S.W.3d 247, 253 (Tex.App.-Waco 2000, pet. refd).
Consent must not be the product of duress or coercion, express or implied. Reasor, 12 S.W.3d at 817 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973)). It must be positive and unequivocal, and it is not shown by acquiescence to a claim of lawful authority. Carmouche, 10 S.W.3d at 331. Whether consent was voluntary is determined from the totality of the circumstances. Reasor, 12 S.W.3d at 818.
Officer Curry testified that Conde consented to his searching the van. Our review of the videotape shows that Officer Curry had only mild difficulty in communicating with Conde and his wife. It is apparent from the videotape that Conde understood the nature of the request that Curry made to search the van. Giving almost total deference to the trial court’s findings, we conclude from a review of the record of the suppression hearing that the trial court could have found by clear-and-convincing evidence that Conde freely and voluntarily consented to the search. Id.
Officer Curry’s search on the highway did not reveal the presence of drugs, however, and he told Conde that he needed to take the van to a garage and examine it further. Rather than reviewing whether Conde freely and voluntarily consented to moving the van, we will examine whether Curry had probable cause to seize the van for an additional search. See Cardenas v. State, 857 S.W.2d 707, 715 (Tex.App.Houston [14th Dist.] 1993, pet. refd).
Probable Cause to Seize the Van
To justify a warrantless search, the State must show that probable cause existed at the time the search was made and the existence of exigent circumstances that made the procurement of a warrant prior to the search impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead an officer of reasonable prudence to believe that evidence of a crime will be found. Id. Courts determine probable cause for a warrantless search by assessing the “totality of the circumstances.” Amos v. State, 819 S.W.2d 156, 161 (Tex.Crim.App.1991). Officers are permitted to draw logical inferences and make intelligent deductions [256]*256from the totality of the circumstances. Jackson v. State, 745 S.W.2d 4, 10 (Tex.Crim.App.1988).
Curry testified about facts that led him to believe that evidence of a crime would be found: the smell of raw gasoline when he first approached the van, Conde’s statements about the purchase and ownership of the van did not match his paperwork, Conde’s demeanor, fresh tool marks on the gasoline tank, the fuel gauge reading that did not match Conde’s statement about when and where he had purchased gasoline, and the origin of Conde’s trip— the Rio Grande Valley. Based on these facts, we find that a reasonably cautious and prudent officer with Curry’s training and experience could have concluded that probable cause existed for a seizure and further search of the van. See McNairy, 835 S.W.2d at 106.
Conclusion
Officer Curry legally stopped Conde and detained him; Conde consented to the initial search of the van on the highway; and probable cause existed for the seizure of the van for further examination. We overrule Conde’s issue and affirm the judgment.
Chief Justice GRAY concurring.