Montanez v. State

211 S.W.3d 412, 2006 Tex. App. LEXIS 9751, 2006 WL 3233876
CourtCourt of Appeals of Texas
DecidedNovember 8, 2006
Docket10-02-00274-CR
StatusPublished
Cited by12 cases

This text of 211 S.W.3d 412 (Montanez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montanez v. State, 211 S.W.3d 412, 2006 Tex. App. LEXIS 9751, 2006 WL 3233876 (Tex. Ct. App. 2006).

Opinions

OPINION ON REMAND

FELIPE REYNA, Justice.

Aníbal Montanez appeals the denial of a suppression motion in his prosecution for possession of more than 400 grams of cocaine. Montanez argues in his sole issue that the court abused its discretion by overruling the motion because: (1) there was no lawful basis for the stop of his vehicle; (2) his consent to search the vehicle was not freely and voluntarily given and; (3) alternatively, the search exceeded the scope of consent given. We will affirm.

On original submission, a majority of this Court held that the State failed to prove by clear and convincing evidence that Montanez freely and voluntarily consented to the search. See Montanez v. State, 143 S.W.3d 344, 348 (Tex.App.-Waco 2004). The Court of Criminal Appeals reversed and remanded because the majority “applied the incorrect standard of review.” Montanez v. State, 195 S.W.3d 101, 109 (Tex.Crim.App.2006).

Background

Investigator Jason Bridges of the Deep East Texas Regional Narcotics Task Force stopped Montanez’s Nissan Pathfinder because his license plate was obscured and the license plate light was not working. The entire encounter was recorded on a videotape which was admitted at the suppression hearing.

Bridges explained the violations to Mon-tanez and asked for his driver’s license. Montanez provided a Massachusetts license, and Bridges asked where he was coming from. Montanez told Bridges he had been in Houston for four days visiting his uncle, friends, and his “primo.” Mon-tanez explained that he was returning home to Massachusetts. When Bridges asked about the Pathfinder, which had New Hampshire plates, Montanez said it belonged to a friend. Bridges “assumed that [Montanez] borrowed it.” After speaking with Montanez for a few minutes, Bridges asked the passenger, Francisco Martinez, about the trip.

After talking with the two men, Bridges “felt like some type of illegal activity was occurring” because the Pathfinder was owned by an out-of-state third party, because Montanez and Martinez “were unsure” about the purpose for their trip, and because they did not know each other’s names. Bridges asked for Montanez’s consent to search the Pathfinder about eleven minutes after stopping Montanez. The videotape depicts the following exchange between Bridges and Montanez:

Bridges: Can I search?
Montanez: Excúseme?
Bridges: Can I search your vehicle?
Montanez: Repeat please?
Bridges: You understood everything else I asked you. Can I search your car? Can I look?
Montanez: Oh, yeah. No problem.
Bridges: Do you comprende?
Montanez: You check out the car?
[414]*414Bridges: Si.
Montanez: Yeah, no problem.
Bridges: No problem? Do you com-prende?
Montanez: Yeah.
Bridges: Okay. It’s okay?
Montanez: Yeah.
Bridges: Okay.

Bridges noticed that “a brand-new, large duffle bag” in the Pathfinder contained nothing but neatly folded clothes which did not appear to have been worn. He thought this was unusual because he would have anticipated finding dirty clothes in the luggage if Montanez and Martinez had been in Houston four days as they had said.

He “then started a basic search of the vehicle.” He first looked at the undercarriage of the Pathfinder and noticed a fresh coat of paint, which he testified is “unheard of on older model vehicles.” He testified that based on his experience this “usually” indicates the existence of a false compartment, which is a “common concealment method” for sports utility vehicles. Because the occupants said they were traveling from Houston, Bridges’s suspicions were further aroused because that city “is a major origin city” for contraband being sent to northern states. Bridges then searched other areas of the Pathfinder to try to isolate the location of the suspected compartment.

When he lifted the carpeting in the rear of the van, he noticed “a lot of screws missing that shouldn’t have been missing” and “brand-new bolts” in two areas. These alterations provided further suspicion to Bridges that there was a hidden compartment underneath, “probably in the gas tank, and it was not feasible to drop a gas tank on the side of the road.” Thus, Bridges requested for a canine unit to confirm his suspicions.

Bridges told the canine handler, Brian Holley, that he knew there were drugs in the car but could not find any. When the drug dog approached the taillight area, he began to give positive alerts. Holley suggested that Bridges search the mounted spare tire on the back of the vehicle, but they took the tire off and found nothing. Bridges testified that, based on the dog’s alerts, he felt he had probable cause to believe that narcotics were hidden in the tank.

Bridges told Montanez and Martinez that he had reason to believe their gas tank had been tampered with. He informed them that the dog had alerted on the vehicle and that they would have to follow Bridges back to Nacogdoches so he could inspect the gas tank. Bridges stated, ‘You have to follow me. If you go any other direction, you will be under arrest. You are under arrest right now. You com-prende?” Montanez replied that he understood. According to Bridges, Montanez did not indicate in any way at this point that he wanted to withdraw his consent to search.

The entire roadside encounter lasted about one and one-half hours. At the task force headquarters in Nacogdoches, they removed the gas tank and found a hidden compartment containing seven kilograms of cocaine.

Standard of Review

According to the Court of Criminal Appeals,

The issue is whether, after affording almost total deference to the trial court’s determination of historical facts that are supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing [415]*415evidence that Montanez voluntarily consented to the search of the vehicle.

Montanez, 195 S.W.3d at 108.

Basis for Stop

Montanez first contends that Bridges did not have a lawful basis to stop him on the date in question. Bridges testified that he stopped Montanez because: (1) the cover around the edge of the license plate obscured the name of the issuing state; and (2) the license plate light was not working.

The latter stated basis for the stop constitutes a violation of section 547.322(f) of the Transportation Code which provides:

[a] taillamp or a separate lamp shall be constructed and mounted to emit a white light that:
(1) illuminates the rear license plate; and
(2) makes the plate clearly legible at a distance of 50 feet from the rear.

Tex. TraNSP. Code Ann. § 547.322(f) (Vernon 1999).1

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Montanez v. State
211 S.W.3d 412 (Court of Appeals of Texas, 2006)

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Bluebook (online)
211 S.W.3d 412, 2006 Tex. App. LEXIS 9751, 2006 WL 3233876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montanez-v-state-texapp-2006.