in the Matter of Jose Esquivel

• Court: Court of Appeals of Texas
• Decided: August 19, 2004
• Docket: 14-03-00646-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 19, 2004

Affirmed and Memorandum Opinion filed August 19, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00646-CR

IN THE MATTER OF JOSE ESQUIVEL

_________________________________________________________

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 516-J-02

M E M O R A N D U M   O P I N I O N

Appellant, Jose Esquivel, pleaded guilty to possession of marijuana in an amount less than two ounces.  The court placed appellant on probation until his eighteenth birthday, which was approximately twelve months after sentencing.  In two issues, appellant contends the trial court erred in denying his motion to suppress because (1) the investigative detention should have ceased after the search of the vehicle and the passengers riding in it proved fruitless and (2) he was illegally detained.  We affirm.

I.  Factual and Procedural Background

On November 29, 2002, Officer Blake Vincent of the Bryan Police Department stopped a pickup truck because individuals who appeared to be under the age of eighteen were riding in its bed.  When Officer Vincent approached the driver of the truck, the officer smelled the odor of burnt marijuana.

Officer Vincent asked for permission to search the truck, which the driver gave.  Officer Vincent=s search of the truck did not reveal any marijuana, nor did his subsequent search of the driver and three of the passengers.

Officer Gabriel Alvarez arrived at the scene and Officer Vincent asked him to search appellant, who had been riding in the bed of the truck along with others.  When appellant stepped down from the truck=s bed, Officer Alvarez smelled the odor of burnt marijuana coming from him and noticed that he appeared nervous.  Officer Alvarez began searching appellant, who attempted to flee during the search.  Officer Alvarez restrained him and recovered a plastic bag containing marijuana.

Appellant was arrested and charged with possession of marijuana in an amount less than two ounces.  Prior to his guilty plea, appellant filed a motion to suppress evidence of the marijuana.  The trial court denied appellant=s pretrial motion to suppress, prompting this appeal.

II.  Standard of Review

We review a trial court=s ruling on a motion to suppress using a bifurcated standard of review.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  First, we give almost total deference to a trial court=s determination of historical facts and the application of the law to fact questions that turn on credibility and demeanor of the witnesses.  Id.; Joseph v. State, 3 S.W.3d 627, 633 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Second, we review de novo application of the law to fact questions that do not turn on credibility or demeanor.  Carmouche, 10 S.W.3d at 327.  When the trial court does not issue any findings of fact, we review the evidence in a light most favorable to the trial court=s ruling.  Id. at 328.

Here, the trial court denied appellant=s motion to suppress and did not make any explicit findings of fact.  Therefore, we review the evidence in the light most favorable to the court=s ruling.  We will uphold this ruling if it is supported by any applicable legal theory.  Romeo v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Dickey v. State, 96 S.W.3d 610, 612 (Tex. App.CHouston [1st Dist.] 2002, no pet.).

III.  Length of Detention

In his first issue, appellant contends the search was unlawful because the investigative detention should have ceased after the search of the vehicle and the passengers riding in its interior proved fruitless.

An officer may conduct an investigative detention when he has reasonable suspicion that an individual is, has been, or soon will be engaged in criminal activity.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  The investigative detention must be temporary and last no longer than necessary.  Id. at 770 (citing Florida v. Royer, 460 U.S. 491, 500 (1983)).  The officer must diligently pursue a means of investigation that is likely to confirm or dispel his suspicions quickly.  Id.  If the original purpose of the detention has been effectuated, any continued detention must be supported by some additional reasonable suspicion.  Simpson v. State, 29 S.W.3d 324, 327 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Appellant argues that the original purpose of the stop was exhausted after the search of the truck and the interior passengers did not produce any marijuana.  However, although no marijuana was located inside the truck or on the interior passengers, both officers testified that they smelled burnt marijuana.  Thus, it was a reasonable deduction that marijuana may have been in the possession of appellant.  See Hitchcock v. State, 118 S.W.3d 844, 850 (Tex. App.CTexarkana 2003, pet. ref=d) (AWhen Gipson=s subsequent search of the car produced alcohol but no usable quantity of drugs, he reasonably deduced that Hitchcock and the female passenger might have concealed marihuana on their persons.@).

Further, as we discuss more thoroughly in Section IV, Officer Alvarez had additional reasonable suspicion to detain appellant.  Officer Alvarez smelled the odor of burnt marijuana coming directly from appellant, and he noticed appellant behaving in a furtive manner, unlike the other occupants of the truck=s bed.  Based on his observations, Officer Alvarez reasonably suspected that appellant possessed marijuana.  Thus, the continued detention of appellant was justified.  See Simpson, 29 S.W.3d at 327.

We overrule appellant=s first issue.

IV.  Probable Cause

In his second point of error, appellant contends the search was unlawful because he was illegally detained.  Appellant argues that, while the officers may have had probable cause to search the truck and the interior passengers, they did not have probable cause to search the passengers riding in the truck=s bed.

Probable cause exists when the facts and circumstances within an officer=s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense.  Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).  In determining whether probable cause for a warrantless search and seizure exists, courts look to the totality of the circumstances.  Id.  Texas courts have found probable cause for a warrantless search based on the smell of marijuana alone.  Dickey v. State, 96 S.W.3d at 613 (citing Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979); Joseph v. State, 3 S.W.3d 627, 634 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Taylor v. State, 20 S.W.3d 51, 55 (Tex. App.CTexarkana 2000, pet. ref=d)).

Appellant cites State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002), for the proposition that the smell of marijuana alone does not justify a search.  In Steelman, the Court of Criminal Appeals held that A[t]he odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.@  Id. at 108.  However, the protection against a warrantless search and seizure in a home does not extend to vehicles; a vehicle may be searched without a warrant in circumstances in which a home could not be searched without a warrant.  Dickey, 96 S.W.3d at 613B14 (citing Chambers v. Maroney, 399 U.S. 42, 48 (1970)).  Thus, the odor of marijuana alone will authorize the warrantless search of a motor vehicle and its passengers.  See id.; see also State v. Crawford, 120 S.W.3d 508, 510 n.1 (Tex. App.CDallas 2003, no pet.).

Officer Alvarez was able to smell the odor of burnt marijuana coming directly from appellant.  He testified:

A.        I asked if [appellant] had anything on him.  He said, ANo.@  The odor of marijuanaConce he stood in front of me, he was a foot-and-a-half from me, I could smell the real strong odor of burnt marijuana off his clothing.

Q.        Coming off his clothing?

A.        Coming off of himCspecifically from him.  I could smell it when he was in front of me. . . .

Based on the smell of burnt marijuana alone, Officer Alvarez had probable cause to search appellant.  See Dickey, 96 S.W.3d at 613; Joseph, 3 S.W.3d at 634; Taylor, 20 S.W.3d at 55.

Additionally, Officer Alvarez noticed that, unlike the other passengers in the truck=s bed, appellant was visibly nervous and appeared to be ready to flee.  He testified:

A.        [Appellant] wouldn=t make eye contact, and he starts looking from side to side.

Q.        In your experience have you seen people do this in the past, looking from side to side?

A.        On many occasions.  Usually that=s an indicator that they=re preparing to run.  Many times they=re looking for a way to run, which is the best route to take.  That concerned me.  He wouldn=t look at me; that=s another concern.  A lot of times they do that.

Q.        Was this different from the other two fellows in the back of the truck?

A.        Yes, they were very cooperative; he was not.  He wasn=t belligerent in any way; he was just nervous; just nervous behavior. . . .

Although appellant=s furtive gestures alone may not have justified the search, they provided additional support for it.  See Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991); Cunningham v. State, 11 S.W.3d 436, 439B40 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  Thus, Officer Alvarez had sufficient cause to search appellant.  We overrule appellant=s second point of error.

We affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 19, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Publish C Tex. R. App. P. 47.2(b).