State v. Gonzales

676 S.W.3d 261

STATE of Texas, Appellant

v.Christian Bruce GONZALES, Appellee

No. 05-22-01154-CR

No. 05-22-01155-CR

Court of Appeals of Texas, Dallas.

Opinion Filed October 12, 2023

Libby Joy Lange, Assistant District Attorney, McKinney, Greg A. Willis, Collin County District Attorney, Mckinney, Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, for Appellant.

Gregg M. Gibbs, Gibbs Nolte Robison Rose, PLLC, McKinney, Mitchell R. Nolte, Gibbs, Nolte, Campos PLLC, McKinney, for Appellee.

Before Justices Carlyle, Smith, and Kennedy

OPINION

Opinion by Justice Kennedy

The State appeals the trial court's orders granting Christian Bruce Gonzales's motions to suppress evidence seized without a warrant. The State contends the trial court erred in concluding Allen Police Department officers did not have probable cause to conduct the warrantless search. We reverse the trial court's orders granting Gonzales's motions to suppress and remand the cases for further proceedings.

BACKGROUND

On December 5, 2021, at approximately 9:20 p.m., Allen Police Department Officers Richard Caldwell and Joshua Robbins were on patrol in separate vehicles. The officers were sitting in their parked vehicles conversing with each other through open windows when a pickup truck drove past them. As the truck passed by, both officers detected the strong odor of marijuana emanating from it. The odor dissipated as the truck drove away. The officers followed the truck to a nearby gas station. When they arrived, the truck was parked at a gas pump. The driver and front-seat passenger were still in the vehicle and the back-seat passengers, Gonzales and his girlfriend, had exited the vehicle and were walking into the gas station's convenience store. Officer Robbins followed Gonzales and his girlfriend into the store and ordered them to return to the truck. In the meantime, Officer Caldwell approached the truck as the driver and the front-seat passenger exited the vehicle. As he did so, he immediately detected a strong odor of marijuana. When Officer Robbins returned to the truck with Gonzales and his girlfriend, he also detected the odor of marijuana. Based on the odor, Officer Robbins searched the truck and, in doing so, he found a green leafy plant in the backseat's right-door pocket. He believed the substance was marijuana. He also found a polymer 80 handgun in the map pocket behind the front passenger seat. At some point during the encounter, Gonzales told the officers he had been sitting in the backseat on the right side. Officer Robbins then arrested Gonzales for unlawful possession and carrying of a firearm. During a search incident to the arrest, Officer Robbins found marijuana on Gonzales's person.

A grand jury indicted Gonzales for the third-degree felony offense of unlawful possession of a firearm by a felon and the second-degree felony offense of unlawful carrying of a weapon with a felony conviction. TEX. PENAL CODE ANN. §§ 46.04(e), 46.02(e)(1). Gonzales filed motions seeking to suppress evidence asserting the officers lacked probable cause to conduct the warrantless search of the truck.

The trial court held a hearing on Gonzales's motions to suppress. At the hearing, the State called Officers Caldwell and Robbins to testify. Gonzales did not testify or call any witnesses. The officers indicated they conducted the warrantless search based upon the odor of marijuana. Both officers established that they were trained and experienced in detecting the odor of marijuana. They acknowledged that they could not tell whether the substance they smelled was marijuana or hemp without a lab test to differentiate the tetrahydrocannabinol (THC) concentration of the substance.¹ Gonzales challenged whether police officers could still rely on their training and experience and senses of sight and smell to establish probable cause for marijuana possession, as a basis to conduct a warrantless search, since hemp, which comes from the same plant as marijuana, has become legal and can be easily confused for marijuana. He urged there was insufficient probable cause to support a lawful search of the truck during which the officers discovered the firearm that led to the charges against him in the unlawful possession and carrying cases.

The trial court entered orders granting Gonzales's motions to suppress and issued the following findings of fact:

1. On December 5, 2021 at 9:00 p.m., Allen Police Officers Richard Caldwell and Joshua Robbins were on patrol duty in the city of Allen, Collin County, Texas. Both officers are certified police officers and have training and experience in the detection of illegal drugs.

2. While parked in an empty parking lot at 840 W. Stacy Road, both officers observed a moving vehicle drive by them from approximately 30-50 feet away. Both officers testified they smelled what they believed to be the odor of marijuana emanating from the vehicle.

3. Both officers began following the vehicle in their separate patrol vehicles. Officer Robbins followed directly behind the vehicle and testified he detected the same odor while he and Defendants [sic] vehicles [sic] were still in transit.

4. The vehicle pulled into a nearby gas station. Both officers parked near the vehicle and began an encounter with the vehicle's four occupants, including the defendant. Both officers testified they detected the same odor of what they believed to be marijuana while next to the vehicle.

5. The officers testified there were no other factors of criminality present, and [they] had no reason to perform a traffic stop.

6. Based on his belief the odor of marijuana was emanating from the vehicle, Officer Robbins performed a warrantless search of the vehicle. He found a polymer SS80 firearm with no serial number and approximately 0.8 ounces of a substance he believed to be marijuana. These objects were found in close proximity to the seat the Defendant was understood to have been seated in.

7. While searching the Defendant's person, Officer Robbins found what the Defendant admitted to be marijuana in his sock.

8. The Defendant was then placed under arrest for Unlawful Possession of a Firearm by a Felon, Unlawful Carrying of a Weapons with a Felony Conviction, and Possession of Marijuana.

9. Both officers testified that they are unable to discern the difference between the odor of marijuana and the odor of hemp and a lab test was required to differentiate the THC concentration of either substance.

In addition, the trial court issued the following conclusions of law:

1. The encounter occurred in Collin County, State of Texas.

2. An officer has probable cause to perform a warrantless search if reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence of a crime will be found. Courts have previously held that the odor of marijuana is sufficient probable cause for a peace officer to perform a warrantless search of the vehicle from which the odor came.

3. These holdings were abrogated by Texas House Bill 1325, signed into law June 2019, which changed the definition of "marihuana" and excluded "hemp."

4. Based on the testimony and evidence admitted at the hearing, the court finds Officer Joshua Robbins did not have probable cause to perform a warrantless search of the vehicle.

This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(5) (State entitled to appeal an order of a court in a criminal case if the order grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for purpose of delay and that the evidence, confession, or admission is of substantial importance in the case).²

DISCUSSION

I. Standard of Review

In reviewing a trial court's ruling on a motion to suppress, an appellate court applies a bifurcated standard of review. See State v. Hardin , 664 S.W.3d 867, 871 (Tex. Crim. App. 2022). An appellate court gives almost total deference to the trial court's determination of historical facts. See id. Likewise, an appellate court affords almost total deference to a trial court's ruling on mixed questions of law and fact if the resolution to those questions turns on the evaluation of credibility and demeanor. See id. at 872. And an appellate court reviews the trial court's legal ruling on a motion to suppress de novo, unless its specific fact findings that are supported by the record are also dispositive of the legal ruling. See Abney v. State , 394 S.W.3d 542, 548 (Tex. Crim. App. 2013). Here, the State challenges the trial court's conclusion of law with respect to the effect of the legislature's enactment of the Texas Hemp Farming Act and its impact on probable cause and warrantless searches. Thus, our review of the issue presented is de novo.

II. Warrantless Searches and Probable Cause

The Fourth Amendment protects against unreasonable searches and seizures conducted by governmental officials. U.S. CONST. amend. IV ; Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Generally, a warrantless search is per se unreasonable unless it falls within one of the few specifically defined and well established exceptions to the warrant requirement. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; McGee v. State , 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).

One exception to the warrant requirement is the automobile exception. See Marcopoulos v. State , 538 S.W.3d 596, 599 (Tex. Crim. App. 2017). The automobile exception allows police officers to conduct a warrantless search of an automobile if the vehicle is readily mobile and the officer has probable cause to believe that the vehicle contains contraband. Id. The two justifications for the automobile exception are the automobile's ready mobility and the lower expectation of privacy in an automobile because it...