Canales v. State

221 S.W.3d 194

Ismael Eric CANALES, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-00772-CR.

Court of Appeals of Texas, Houston (1st Dist.).

July 27, 2006.

Steven Abramowitz, Houston, for Appellant.

Lori Deangelo Fix, Assistant District Atty., Houston, for Appellee.

Panel consists of Chief Justice RADACK and Justices JENNINGS and ALCALA.

OPINION

TERRY JENNINGS, Justice.

After the trial court denied his motion to suppress evidence, appellant, Ismael Eric Canales, pleaded guilty, with an agreed punishment recommendation from the State, to the offense of possession of marihuana of less than two ounces.¹ In accordance with the plea agreement, the trial court sentenced appellant to confinement for 30 days in the Harris County Jail. In his sole issue, appellant contends that the trial court erred in denying his motion to suppress. We reverse and remand.

Factual and Procedural Background

Houston Police Officer Chris Cayton testified that on April 28, 2005 at approximately 1:00 a.m., while checking "hot spots" known for criminal activity, he saw appellant sitting in the driver's seat of a car parked in the parking lot of a Mobil convenience store. Cayton routinely checked the parking lot as a "hot spot" because it is a location where there have been "a lot of arrests" and "a lot of citizen complaints" related to trespassing, prostitution, and narcotics. The parking lot was empty that morning, except for appellant's car, which was "on the east side of the location near the rear of the store." Cayton, who was in his patrol car with his partner Robert Teweleit, watched appellant's car "for three to four minutes" to see whether the car left the lot or if anyone entered or exited the car. After watching the car and seeing no activity, Cayton drove through the store's parking lot, exited the lot, made a u-turn, came back into the parking lot, and pulled in behind appellant's car. Appellant's car attracted Cayton's attention because it was parked toward the "side and rear" of the station, the lights were out, the windows were down, the engine was not running, and there were two males in the car. Cayton noticed that the passenger "was looking around watching everything" and was "extremely nervous" and that as Cayton initially drove through the parking lot, the passenger watched him the whole time.

Cayton decided to approach the car and talk to appellant and the passenger "to make sure they weren't broke down" and to "see what they were waiting for." Cayton approached the driver's side of appellant's car as Teweleit approached the passenger's side. As he approached the car, Cayton noticed that "right outside the driver's window, which was down, there was a pile of — pieces of cigar," indicating that a cigar had been torn apart. Based on Cayton's training and experience, he knew that "people will buy cigars, empty them out, and then fill them with marihuana." There were also pieces of cigar on the car window, and, when Cayton looked in the car, he noticed pieces of the cigar inside the car and on the leg and lap of appellant.

Cayton asked appellant general questions concerning "what was going on" and also "ran the [license] plate" on appellant's car. Cayton noted that the plate indicated that the car was from LaPorte, "which [was] nowhere near" the area and stated that he "wanted to make sure [appellant] wasn't having car trouble and just find out what was going on, if he needed anything." Appellant seemed "a little nervous" and the passenger seemed "extremely nervous." Appellant did not provide Cayton with "definitive answers," and appellant told Cayton that he was "hanging out in the area with his home boy."

At some point during Cayton's exchange with appellant, Teweleit, who was on the other side of the car, told appellant to show his hands and exit the car. Cayton took appellant to the back of the car, conducted a quick pat down "to search for weapons," and found nothing on appellant. After patting down appellant, and as Cayton was standing at the rear of the car and "talking to [appellant]," Teweleit walked around in front of appellant's car, leaned inside, and came back out with a small bag containing a green, leafy substance that Cayton knew, based on his training and experience, to be marihuana. Teweleit also recovered a cigar that had been shelled out and had marihuana inside of it.

Teweleit did not testify at the hearing, and Cayton testified that he did not know why Teweleit had asked appellant to exit his car. However, Teweleit told Cayton that when Teweleit had approached appellant's car, he saw appellant "put his right hand between the seat and the console and that's when he had [appellant] exit the vehicle." When appellant exited the car and Cayton took appellant to the rear of the car, Teweleit "immediately stepped around, reached down into the area where he saw [appellant] put his hand, pulled out a small baggy" of marihuana, and walked to the rear of the car with it. The passenger subsequently exited the car and after the officers "ran [a computer check on] him," they released him.

On cross-examination, Cayton testified that appellant was parked "in an area where people would park ordinarily" to go into the convenience store and that the store was open at the time. Cayton stated that he stops people in the store's parking lot "quite a bit" and that he would drive by the station every day that he was on duty. He also stated that neither he nor Teweleit asked appellant for his consent to search the car.

Standard of Review

The appropriate standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002). In reviewing a ruling on a question of the application of law to facts, we review the evidence in the light most favorable to the trial court's ruling. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). However, we review de novo a trial court's determination of reasonable suspicion and probable cause. Id. at 87; Spight v. State, 76 S.W.3d 761, 765 (Tex.App.-Houston [1st Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Here, the trial court denied appellant's motion to suppress without stating the basis for its order. The parties did not request, and the trial court did not make, findings of fact and conclusions of law. When a trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Id.

Reasonable Suspicion and Probable Cause

In his sole issue, appellant argues, under the United States and Texas Constitutions,² that a Terry³ detention was not justified and that the officers did not have the authority to conduct a warrantless search of his car because the officers did not have probable cause to believe that the car contained evidence of a crime. The State contends that the trial court properly denied the motion to suppress because the officers had reasonable suspicion to justify an investigative detention and probable cause to search appellant's car after Teweleit saw appellant put his hand between the seat and the center console of the car. The parties agreed during the hearing on the motion to suppress that this case presented the issue of a warrantless detention and search.

Circumstances short of probable cause may justify a temporary investigative detention. Terry v. Ohio, 392 U.S. 1, 15, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889(1968); Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986).⁴ A peace officer may make a temporary investigative detention of an individual if the officer has a reasonable suspicion "that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime." Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997) (citations omitted). The test for reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the time of the stop. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim.App.1997). The reasonableness of a temporary detention "will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity." Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). These facts must amount to more than a mere hunch, a guess, or a vague suspicion. Guevara v. State, 6 S.W.3d 759, 763 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). A detention not based on reasonable suspicion is unreasonable and violates the Fourth Amendment. Davis, 947 S.W.2d at 243. Investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances that justified the interference in the first place. Id. at 244. Thus, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop and, once the reason for the detention has been satisfied, the detention may not be used as a "fishing expedition for unrelated criminal activity." Id. at 243.

A warrantless search of an automobile is not unreasonable under the Fourth Amendment when there is probable cause to believe that the vehicle contains contraband or evidence of a crime. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925); ...