COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-141-CR
HAROLD DEW AYNE FERGUSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
MEMORANDUM OPINION 1
I. Introduction
After reserving his right to appeal the trial court’s denial of his pretrial motion
to suppress, Appellant Harold Dewayne Ferguson pleaded guilty to a felony drug
offense. He now appeals the denial of his motion to suppress. W e affirm.
1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background
A deputy sheriff found methamphetamine hidden in Ferguson’s boot during
a pat-down search after a stop for a traffic violation. The grand jury indicted
Ferguson for possessing at least four grams but less than two hundred grams of
methamphetamine with intent to deliver, enhanced with prior felony convictions.
Ferguson filed a motion to suppress, asserting that his detention, arrest, search, and
seizure violated the state and federal constitutions.
At the pretrial hearing, Ferguson limited the scope of his motion to suppress:
Basically, my motion’s going to be around the initial stop. And we’re not necessarily contesting the reason for the stop, but for the – – I guess the intrusion that was made during the stop.
The officer had Mr. Ferguson get out of the car. I think that’s the issue that we’re going to be dealing with today, was whether or not he – – that part of the seizure was going to be valid as per case law.
Deputy Sheriff Luis Montanez, was the only witness at the hearing. He
testified that around 9:00 p.m. on July 26, 2008, while patrolling a rural part of the
county, he saw a red Chevrolet pickup truck approach an intersection and turn left
without signaling. He pulled in behind the truck and activated his emergency lights.
Through the back window of the pickup, Deputy Montanez saw the driver dip his
right shoulder down toward his leg area and thought he was going for a weapon.
The driver, Ferguson, was the only person in the truck. W hen he brought it
to a stop, the deputy approached and identified him by license and proof of
insurance. Deputy Montanez testified that Ferguson seemed “very nervous” and that
2 his responses to questions were unusual. For instance, when asked where he was
going, Ferguson replied that he was going to a friend’s house, although he could not
give an address despite claiming that he had known the friend for about eight years.
Deputy Montanez asked Ferguson to step out of the truck and stand between
their two vehicles while he ran his license for outstanding warrants. The process took
approximately four minutes. During that time, the deputy asked Ferguson if he had
any weapons on him. Ferguson replied that he had a pocket knife and began to
reach inside his pants pocket. Montanez asked him to keep his hands out of his
pockets and to turn around and put his hands behind his head so that he could pat
him down for officer safety. In so doing, the deputy retrieved the knife from
Ferguson’s pocket and continued to pat down the rest of his leg. W hen he got to
Ferguson’s boot, he felt a “rather large” bulge, which he thought might be a weapon.
He pulled the pant leg up, revealing a partially unzipped black leather case with a
plastic bag hanging out. He inquired of the bag’s contents, to which Ferguson replied
that he did not know.
Deputy Montanez asked if he could retrieve the bag and look inside. Ferguson
said yes. Inside, the deputy found a glass pipe and a crystal-like substance that
looked like methamphetamine. Ferguson was placed under arrest and into the back
of the patrol car. Then, as required by sheriff’s department policy, the deputy
conducted an inventory search of Ferguson’s truck, whereupon he discovered
3 another black case, another glass pipe, cash, plastic bags, cell phones, and
information the deputy referred to as “dope notes.”
At the end of the hearing, the trial court denied Ferguson’s motion to
suppress. Ferguson subsequently entered into a plea bargain agreement, and
reserving his right to appeal the denial of his motion to suppress, he pleaded guilty
to possessing less than a gram of methamphetamine with intent to deliver. He also
pleaded true to two of the indictment’s enhancement paragraphs. The trial court
accepted the terms of the plea bargain and sentenced Ferguson to thirty-eight years’
confinement. This appeal followed.
III. Discussion
Ferguson concedes the validity of the initial traffic stop for failing to signal a
left turn. In a single point, he complains of the subsequent detention and searches,
contending that the trial court erred by denying his motion to suppress because
Deputy Montanez had neither probable cause nor reasonable suspicion to detain
him or to search his person or his truck.
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); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
4 demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,
154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,
652–53 (Tex. Crim. App. 2002). The issue of whether a search is reasonable under
our state and federal constitutions is a question of law that we review de novo.
Kothe v. State, 152 S.W .3d 54, 62 (Tex. Crim. App. 2004).
B. Analysis
Although Ferguson concedes that the officer had the right to issue a citation
for a traffic violation, he argues that there was no basis for the detention after the
stop, the pat-down search of his person, the search of the black case found inside
his boot, or the search of his vehicle.
1. Detention Between the Stop and the Discovery of Contraband
During a traffic stop, an officer is authorized to ask the driver for identification,
a valid driver’s license, information concerning ownership of the vehicle, proof of
insurance, and information concerning the destination and purpose of the trip.
Kothe, 152 S.W .3d at 63; Davis v. State, 947 S.W .2d 240, 245 n.6 (Tex. Crim. App.
1997); Caraway v. State, 255 S.W .3d 302, 307 (Tex. App.— Eastland 2008, no pet.);
Lambeth v. State, 221 S.W .3d 831, 836 (Tex. App.—Fort W orth 2007, pet. ref’d).
The officer may also check for outstanding warrants. Kothe, 152 S.W .3d at 63;
Caraway, 255 S.W .3d at 308. The process in this case lasted approximately four
5 minutes. W e hold that this was reasonable and overrule this part of Ferguson’s sole
point.
2. Pat-down Search for Weapons
It is undisputed that Deputy Montanez performed a pat-down search on
Ferguson.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-09-141-CR
HAROLD DEW AYNE FERGUSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
MEMORANDUM OPINION 1
I. Introduction
After reserving his right to appeal the trial court’s denial of his pretrial motion
to suppress, Appellant Harold Dewayne Ferguson pleaded guilty to a felony drug
offense. He now appeals the denial of his motion to suppress. W e affirm.
1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background
A deputy sheriff found methamphetamine hidden in Ferguson’s boot during
a pat-down search after a stop for a traffic violation. The grand jury indicted
Ferguson for possessing at least four grams but less than two hundred grams of
methamphetamine with intent to deliver, enhanced with prior felony convictions.
Ferguson filed a motion to suppress, asserting that his detention, arrest, search, and
seizure violated the state and federal constitutions.
At the pretrial hearing, Ferguson limited the scope of his motion to suppress:
Basically, my motion’s going to be around the initial stop. And we’re not necessarily contesting the reason for the stop, but for the – – I guess the intrusion that was made during the stop.
The officer had Mr. Ferguson get out of the car. I think that’s the issue that we’re going to be dealing with today, was whether or not he – – that part of the seizure was going to be valid as per case law.
Deputy Sheriff Luis Montanez, was the only witness at the hearing. He
testified that around 9:00 p.m. on July 26, 2008, while patrolling a rural part of the
county, he saw a red Chevrolet pickup truck approach an intersection and turn left
without signaling. He pulled in behind the truck and activated his emergency lights.
Through the back window of the pickup, Deputy Montanez saw the driver dip his
right shoulder down toward his leg area and thought he was going for a weapon.
The driver, Ferguson, was the only person in the truck. W hen he brought it
to a stop, the deputy approached and identified him by license and proof of
insurance. Deputy Montanez testified that Ferguson seemed “very nervous” and that
2 his responses to questions were unusual. For instance, when asked where he was
going, Ferguson replied that he was going to a friend’s house, although he could not
give an address despite claiming that he had known the friend for about eight years.
Deputy Montanez asked Ferguson to step out of the truck and stand between
their two vehicles while he ran his license for outstanding warrants. The process took
approximately four minutes. During that time, the deputy asked Ferguson if he had
any weapons on him. Ferguson replied that he had a pocket knife and began to
reach inside his pants pocket. Montanez asked him to keep his hands out of his
pockets and to turn around and put his hands behind his head so that he could pat
him down for officer safety. In so doing, the deputy retrieved the knife from
Ferguson’s pocket and continued to pat down the rest of his leg. W hen he got to
Ferguson’s boot, he felt a “rather large” bulge, which he thought might be a weapon.
He pulled the pant leg up, revealing a partially unzipped black leather case with a
plastic bag hanging out. He inquired of the bag’s contents, to which Ferguson replied
that he did not know.
Deputy Montanez asked if he could retrieve the bag and look inside. Ferguson
said yes. Inside, the deputy found a glass pipe and a crystal-like substance that
looked like methamphetamine. Ferguson was placed under arrest and into the back
of the patrol car. Then, as required by sheriff’s department policy, the deputy
conducted an inventory search of Ferguson’s truck, whereupon he discovered
3 another black case, another glass pipe, cash, plastic bags, cell phones, and
information the deputy referred to as “dope notes.”
At the end of the hearing, the trial court denied Ferguson’s motion to
suppress. Ferguson subsequently entered into a plea bargain agreement, and
reserving his right to appeal the denial of his motion to suppress, he pleaded guilty
to possessing less than a gram of methamphetamine with intent to deliver. He also
pleaded true to two of the indictment’s enhancement paragraphs. The trial court
accepted the terms of the plea bargain and sentenced Ferguson to thirty-eight years’
confinement. This appeal followed.
III. Discussion
Ferguson concedes the validity of the initial traffic stop for failing to signal a
left turn. In a single point, he complains of the subsequent detention and searches,
contending that the trial court erred by denying his motion to suppress because
Deputy Montanez had neither probable cause nor reasonable suspicion to detain
him or to search his person or his truck.
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); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
4 demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,
154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,
652–53 (Tex. Crim. App. 2002). The issue of whether a search is reasonable under
our state and federal constitutions is a question of law that we review de novo.
Kothe v. State, 152 S.W .3d 54, 62 (Tex. Crim. App. 2004).
B. Analysis
Although Ferguson concedes that the officer had the right to issue a citation
for a traffic violation, he argues that there was no basis for the detention after the
stop, the pat-down search of his person, the search of the black case found inside
his boot, or the search of his vehicle.
1. Detention Between the Stop and the Discovery of Contraband
During a traffic stop, an officer is authorized to ask the driver for identification,
a valid driver’s license, information concerning ownership of the vehicle, proof of
insurance, and information concerning the destination and purpose of the trip.
Kothe, 152 S.W .3d at 63; Davis v. State, 947 S.W .2d 240, 245 n.6 (Tex. Crim. App.
1997); Caraway v. State, 255 S.W .3d 302, 307 (Tex. App.— Eastland 2008, no pet.);
Lambeth v. State, 221 S.W .3d 831, 836 (Tex. App.—Fort W orth 2007, pet. ref’d).
The officer may also check for outstanding warrants. Kothe, 152 S.W .3d at 63;
Caraway, 255 S.W .3d at 308. The process in this case lasted approximately four
5 minutes. W e hold that this was reasonable and overrule this part of Ferguson’s sole
point.
2. Pat-down Search for Weapons
It is undisputed that Deputy Montanez performed a pat-down search on
Ferguson. A pat-down search is substantially less intrusive than a standard search
requiring probable cause. O'Hara v. State, 27 S.W .3d 548, 550–51 (Tex. Crim. App.
2000). Its purpose is officer safety. Id. at 555. A pat-down search for officer safety
will be justified only when the officer can point to specific and articulable facts that
reasonably lead him to conclude that the suspect might possess a weapon. See
Carmouche v. State, 10 S.W .3d 323, 329 (Tex. Crim. App. 2000).
Once an officer has stopped a person, he may conduct a pat-down search for
weapons to maintain officer safety if he is justified in believing the person might be
armed. Terry v. Ohio, 392 U.S. 1, 21, 27, 88 S. Ct. 1868, 1883 (1968); O'Hara, 27
S.W.3d at 550.
Here, there is no question that Ferguson was armed. As the officer was
waiting for dispatch to return a warrant check on Ferguson’s license, he asked
Ferguson if he had any weapons. Ferguson admitted that he had a pocket knife.
At that point, the only question was to what degree was Ferguson armed. Deputy
Montanez testified that he thought Ferguson had been retrieving a weapon before
he pulled him over because as he followed behind his truck in the patrol car, he saw
Ferguson’s shoulder dip down toward his leg area. Moreover, once Ferguson
6 admitted that he had a knife, Deputy Montanez was justified in conducting a pat-
down search for officer safety. See O’Hara, 27 S.W .3d at 553. Furthermore, he was
justified in conducting a thorough pat-down. See id. at 554. Once an officer
conducting a pat-down search satisfies himself that a suspect has no weapons, and
the officer has no valid reason to further invade the suspect’s personal security, then
the corollary must be true also that until the officer is satisfied that the suspect has
no weapons—or in this case, no more weapons—he may continue the search. See
Stoker v. State, 170 S.W .3d 807, 813 (Tex. App.—Tyler 2005, no pet.); see also
Worthey v. State, 805 S.W .2d 435, 438–39 (Tex. Crim. App. 1991).
Accordingly, we hold that Deputy Montanez’s pat-down of Ferguson for officer
safety was reasonable and that it therefore comported with constitutional
safeguards. See Terry, 392 U.S. at 27, 88 S. Ct. at 1883 ; O'Hara, 27 S.W.3d at
550. W e overrule this part of Ferguson’s sole point.
3. Search of the Black Case in Ferguson’s Boot
Deputy Montanez retrieved the knife from Ferguson’s pocket and continued
patting down the rest of his leg. W hen he felt the “rather large” bulge in Ferguson’s
boot, he thought it contained a weapon. He pulled the pant leg up and observed a
partially unzipped black leather case with a plastic bag hanging out. He asked
Ferguson what was inside the bag, and Ferguson replied he did not know.
Montanez asked if he could retrieve the bag and look inside. Ferguson said yes.
7 Consent to search is one of the well-established exceptions to the
constitutional requirements of both a warrant and probable cause. See State v.
Ibarra, 953 S.W .2d 242, 243 (Tex. Crim. App. 1997). The consent must be voluntary,
and voluntariness is a question of fact to be determined from all the circumstances.
Carmouche, 10 S.W .3d at 331. To be voluntary, the consent must not be coerced,
by explicit or implicit means, by implied threat or covert force. Id. The federal
constitution requires the State to prove the voluntariness of consent only by a
preponderance of the evidence; the Texas constitution requires the State to show
by clear and convincing evidence that consent was freely given. See Ibarra, 953
S.W .2d at 243–45. Because voluntariness of consent is an issue of fact, we defer
to the trial court’s ruling if it is supported by the record. See Amador, 221 S.W .3d
at 673; Estrada, 154 S.W .3d at 607.
The only evidence in the record on the issue of Ferguson’s consent for the
deputy to search inside the bag found in his boot supports the trial court’s ruling.
Deputy Montanez testified that Ferguson told him he did not know what was inside
the bag in his boot and that he answered yes when the deputy asked if he could look
inside it. There is no evidence to the contrary. W e hold, therefore, that the record
is sufficient to support the trial court’s implied factual finding that Ferguson
voluntarily consented to the search of the bag. See Chavarria v. State, 876 S.W .2d
388, 392 (Tex. App.—El Paso 1994, no pet.). Because Ferguson voluntarily
consented to the search, we hold as a matter of law that the search of the black bag
8 was reasonable and therefore satisfied constitutional standards. Accordingly, we
overrule this part of Ferguson’s sole point.
4. Vehicle Search after Ferguson’s Arrest
Police may search a vehicle incident to a recent occupant’s arrest if it is
reasonable to believe that the vehicle contains evidence of the offense of arrest. See
Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009); see also Hill v. State, 303 S.W .3d
863, 874–76 (Tex. App.—Fort W orth 2009, pet. ref’d). Once the deputy arrested
Ferguson for possessing contraband found on his person, it was reasonable for the
deputy to search for more contraband in the vehicle Ferguson was driving. W e
IV. Conclusion
Having overruled each part of Ferguson’s sole point, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, W ALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: May 20, 2010