### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00365- CR

Tony Keith Wells, Appellan t

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 3 O F B ELL COUNTY NO. 2C08- 0090 2, H ONO RAB LE GERALD M. B ROW N, JUDGE P RESIDING

M E M O R AN D U M O P I N I O N

A j u ry convicted Tony Keith W ells of t he mi sdemea nor offense of possessing le s s than two ounces of marihuana and imposed a $1,500 fine. I n his sole issue on appea l, Wells asser ts that the trial cour

t erre d in deny ing his motion to suppress evidenc e of the m arihua na found in his trac tor trailer, contending that the evidenc e is the product of an unlawfully prolong ed detention and involuntary

consent to sea

rch. We will aff

irm the judg ment of convic tion.

BACK GR OUND A t a p r e tr ia l s u

p p r e s s io n h ear ing, the trial court hear d evidenc e that Texas Dep a r tm e n t of Public Sa fe t y T rooper Donnie Ray Carter , J r. stopped Wells on I nterstate Hig hway 35 in Be ll County beca

use the trac tor trailer that Wells was driving had mud flaps that wer e too short. See Tex. Transp. C o d e Ann. § 547.606(a) (West 1999) (re quiring truck-tr actor in combination withsemitrailer to have flaps that are within eig ht inches of highw ay surfa ce)

. When Carter approa ched

the vehicle, he noticed that Wells’s ey es appea red g lassy , his pupils wer e very small, and he seeme d to be “under the influence of something.” Carter informed Wells of these observa tions, and Wells denied being on any medication. Whil e Carter wrote a war ning citation for the mud flap violation,

a dispatcher rela

y ed the results of Wells’s criminal-history ch ec k and his lack of outstanding 1

war rants. Be fore g iving the written war ning to Wells, Carter asked for consent to sear ch his truck. Fr om this poi nt forwa

rd, Wells’s and Carter ’s ac counts of eve nts conflict. I n addition to heari n g W el l s ’s and Carter ’s testimony , the trial court revie wed a patrol-c ar video rec ording of the traff ic s t o p t h at broadc ast intermittent audio from Carter ’s body microphone. Po rt i o n s of the conver sation betwee n Wells and Carter wer e broadc ast from Carter ’s body microphone to the patrol car rec ording , but the rec ording is sporadic beca use of the microphone’ s failing battery

. The rec ording did not captur e any discussion about consent to sear ch the truck, thus the witnesses’ conflicting testimony was the only

evidenc e bef

ore the trial court on the issue of c onsent.

Wells testified in i t i al l y that he did not g ive Carter any ty pe of consent to sear ch the truck. He then testified that h e g ave Carter limit ed consent to walk around the vehicle with a “drug dog .” Wells knew the rea sons for the sear ch request bec ause Car ter e x presse d conce rns to 2 him. Wells stated that Carter wanted to sear ch the truck beca use Wells’s ey es wer e g lassy and beca use of the possibility

that Wells was “under

the influenc e of something .”
The trial c ourt suppressed e vidence of the off enses of injury to a child and possession of 1 narc otics that were reve aled in the dispatc her’ s repor t of Wells’s criminal history

. The re cord doe s not refle ct that a dr ug dog was summoned or use d. 2 2Carter testified unequivoca lly that Wells consente d to the sear ch of the truck. He

rec alled t h at Wells had g lassy ey es with very small pupils, that he appea red to be “under the influence of some t h i n g ,” and that he g ave unusually short response s during their conver sation. Carter then asked Wells whether there was any thing illega l in the truck and whether he could sear ch it. For Wells’s safe ty and his own, C arte r di d not beg in searc hing the truck unti l a backup officer

arr ived and Wells was seate d in the front passeng er s i d e o f t h e patrol car . Carter proce eded to 3

sear ch the cab of the truck, wher e he saw a black shaving kit on the sleepe r. I nside the kit, he found a pil l bottle containing a rolled “ciga re t t e” that appea red to be marihuana. Carter testified t hat he returne d t o t h e patrol car with the pill bottle and asked Wells about the contents, which Wells identified as “a littl e bit of marihuana .” Carter then arr ested Wells for possession of marihuana and g ave Wells his Miranda wa rning s. See M

iranda v. Arizona , 384 U.S. 436, 479 (1966). 4 At the conclu sion of the hear ing, the trial court denied the motion to suppress evidenc e of the marihuana , and the case proce eded to trial. Trooper Carter and Starla Copeland, a 5 forse nsic scientist with the Texas Depa rtment of Public Safety ’s crime lab, wer e the only witnesses called to te stify

. Copeland confirme d that the substance in the rolled up cig are tte was marihuana , and a jury found Wells g uilty of the offe nse of possessi n g l es s t h an two ounces of marihuana ,

Acc ording t o W el l s , there was an eig ht minute wait betwee n the reque st for consent to 3 sear ch and the backup of

fice r’s a rrival. An audio rec ording ref

lects that while alone in the patrol car , Wells mused aloud whether 4 he should have eate n the marihua na. The t ri al court suppressed portions of audio from the patrol-c ar video containing the 5 dispatcher ’s repor

t of Wells’s criminal history and the dispatcher ’s conver sations with police about other drive r’s lice nse and c riminal history chec ks unrelate d to this case. 3assessing a $1,500 fine as punishment. See Tex. Hea lth & Safety Code Ann. § 481.121(a) , (b)( 1)

(West 2010). Wells now appeals.

ANALYSIS

Wells challeng es the trial court’s refu s al to suppress the marihuana evidenc e discovere d in his truck beca use it was the product of an unlawfully prolong ed deten t i o n after the mud-flap violation was resolved and beca use his consent to sear ch the truck was involuntary

. We 6 disag ree . Stan dard of rev iew

When revie wing the denial of a motion to suppress, we apply a bifurcated standard. State v. Valtierra , 310 S.W .3d 442, 447 (T ex . C rim. App. 2010). First, we aff ord almost total defe renc e to the trial court’s deter mination of historical fac ts. Id

. The trial judge , who observe s the witnesses’ appea

ranc e and demea

nor firsthand, is the sole trier of fac t and best suited to g aug e the witnesses’ cre dibilit y and the weig ht to be g iven their testimony

. Id

. When, as here , the trial court d o es n o t en ter finding s of fac t, we “must view the evidenc e ‘in the light most favor able t o t h e trial court’s ruling ’ and ‘assume that the trial court made implicit finding s of fac t that support its ruling as long as those finding s are supported by the rec ord

. ’” Id. (quoting State v. Ross , 32 S.W .3d 853, 855 (Tex. Crim. App. 2000)). Second, we revie w de novo a trial court’s application of the l aw o f s ear ch and seizure to the fac ts. Id

. I f the ruling on the motion to suppress is “r ea s o n ab l y

Wells does not challeng e the validity of the initial stop and detention for the trailer’ s mud- 6 flap violation. 4supported by the rec ord and is corr ect under any theory of law applicable to the case ,” the ruling will

be sustained. Id. at 447-48 (quoting State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)).

Duration of dete ntion

We first addre ss Wells’s contention that the sear ch that p ro d u ced the marihuana evidenc e was the result of an unlawfully prolong ed detention. The Four th Amendment’s protec tion ag ainst unrea sonable sea rc h es and seizures extends to all seizures of the person, including those t h at i n v o lve only a brief detention. United States v. Mende nhall , 446 U.S. 544, 551 (1980); see L each v. State , 35 S.W .3d 232, 235-36 (Tex. App.—Austin 2000, no pet.); see also U.S

. C o n s t
. amend. I V. An office r conducts a lawful temporar y detention when he has rea sonable suspicion to believe that a p er s o n i s v i o l ating the law. Ford v. State , 158 S.W .3d 488, 492 (Tex. Crim. App. 2005). I nvest i gative detentions such as traff ic stops must be temporar y and last no longe r than necessar

y to eff ectua te t he purpose of t he st op. Florida v. Royer , 460 U.S

. 4 9 1 , 5 0 0 (1983); Kothe v. State , 152 S.W .3d 54, 63 (Tex. Crim. App. 2004). The United States Supreme Court ha s reje cted rig id tim e l i m i t ations on investiga tive detentions, instead asking “whe ther the police diligently pursued a means of investiga tion that was li k el y t o co n firm or dispel their suspicions quickly , during which time it was nece ssary to detain the defe ndant.” Kothe , 152 S.W .3d at 64-65 (quoting United States v. Sharpe , 470 U.S. 675, 685-86 (1985) (re fusing to “ establish a per se rule that a 20-minute detention is too long” )). An o fficer who has conclude d an investiga tion of the conduct that initiated the stop may continue to detain a person only if there is rea sonable suspicion to believe that another offe nse has been or is being committed. Davis v. State , 947 S.W .2d 240, 245
5(Tex. Crim. App. 1997). Put differ ently , “once the orig inal purpose for the stop is exhausted, police

may not unnece

ssarily detain drivers solely in hopes of finding evidenc e of some ot h er crime.” Kothe , 152 S.W .3d at 64.

Whether reasonable suspicion exis ts is deter mined by considering the fact s known to the office r at the time of the detention. See Terry v. Ohi o , 3 9 2 U. S. 1, 21-22 (1968); Davis , 947 S.W .2d at 243. Reasonable suspicion exis ts if the office r has specific , articula ble fac ts that, when combined with rational infere nces from those fac ts, wo u ld lead him to rea sonably conclude that the person deta i n ed i s , has been, or soon will be eng ag ed in criminal activity

. Derichsweiler v. State , No. PD-0176-10, 2011 Tex. Crim. App. L EXI S 112, at *15-16 (Tex. Crim. App. J an. 26, 2011); Ford , 158 S.W .3d at 492; see also Terry , 392 U.S. at 2 1 -2 2

. This is an

o bjective standard, applied by considering the totality of the circ umstances. Derichs w ei l er , 2011 Tex. Crim . App. L EXI S at *16.

Wells contends that the purpose of Carter ’s stop was complete afte r rec eipt of the “all cl ear” on the warrants check and notes that almost twenty -seve n minutes elapse d from his stop to his arre st. He conte nds specific ally that the reque st to searc h the truck w as an unjustified de lay in his detention beca

use Carter did not have any re asonable suspicion that Wells was impaired. 7 At the s u p p re s s ion hear ing, however , Wells acknow ledg ed that Carter told him on the sce ne that his possible impairment was a basis for the r equest to sea rch: Q. Okay

. Be cause of the look of y our ey es, Trooper Carter asked to sear ch the vehicle?

Carter testified that he did not believe Wells was intox icated. 7 6A. Yes.

Q. I s that y our under standing —the only

— A. That’s why

— Q. —rea son why ? A. —my

understanding

. Q. I s that the only rea son why he wanted to sear ch y our vehicle, beca use of y ou r ey es? A. And may

be I was unde r the influenc e of something

. Q. Did he express that to y ou? A. Yes.

Carter ’s testimony indicated specific observa tions of Wells during the t ra ff ic stop which, along with rational infere nces, would support a rea sonable suspicion that W ell s had been opera ting the trac tor trailer whi le under the i nfluenc e of an il leg al s ubstance

. Carter noticed t h at W el l s ’s ey es were glassy and his pupils wer e constricted. He eng ag ed W ells in conver sation to de termine whether he was under the influence but was only able to elicit abrupt answe rs. Wells denied taking any

medication, and Ca

rter did not suspec t alcohol intox ication. Additionally , the duration of Wells’s detention was not unrea sonable. Carter soug ht Wells’s consent to sear ch the truck and reque sted backup just three m i n utes afte r t he dis patche r’s “all clear” repor

t. Carter testified that Wells consente d to the s ear ch of the t ruck. Then, as Wells notes, a sec ond office r wa s at the sce ne eig ht minutes after the reque st to searc h.

7Ba sed on this rec ord, we conclude that th e marihuana was not the product of an

u n la w f ully prolong ed detention. Carter had rea sonable suspicion of Wells’s involvement in crimin a l activity to justify the temporar y det en t i o n , and he diligently pursued a course of investiga tion to confirm or

dispel his reasona

ble suspicion in a timely

manner .
V olun tarin ess of c onsent

Having con cl u d ed that Carter had rea sonable suspicion to detain Wells, we must

now consider whether Wells conse nted voluntarily to the sear ch, making his c onsent valid and the discovere d marihuana evidenc e admissible. See Gutierrez v. State , 221 S.W

. 3 d 6 8 0 , 686 (Tex. Crim. App. 2007). Searc h by consent is a well-e stablished exception to the war rant and probable cause require ments of the Four th Amendment. Schne ck loth v. Bustamonte , 412 U.S. 218, 219 (1973); Gutierrez , 221 S.W .3d at 686. A sear ch made afte r voluntary consent is not unrea sonable

. Reasor v. State , 12 S.W .3d 813, 818 (Tex. Crim. App. 2000).

The validity of a consensua l sear ch is a fac t question. Gutierrez , 221 S.W .3d at 686. The State bear s the burden of proving by clea r-a nd-convinc ing evidenc e that t h e co n sent was obtained voluntarily , including proof that the consent was not the product of duress or coer cion. Id

. Deter mining whether thi s burden is met require s examina tion of t he tot ality of t he circumstance s. Id

. 686-87. When there is clea r and convincing evidence in the rec ord supporting a finding that

cons en t t o s earch was fre ely and voluntarily g iven, we will not disturb that finding

. Carmouche v. State , 10 S.W .3d 323, 331 (Tex. Crim. App. 2000).

Fa ctors considere d in deter mining voluntariness include: (1) whether the consenting person was in custody ; (2) whether the person was arr ested at g unpoint; (3) whether the person had
8the option of ref using consent; (4) the const i t u tional advice g iven to the person; (5) the leng th of detention; (6) the repe titiveness of the questioning; and (7) the use of phy sical punishment

. Reasor , 12 S.W .3d at 818; Flores v. State , 172 S.W .3d 742, 749 (Tex. App.—Houston [14t h Dist.] 2005,

no pet.). Courts also consider the consenting person’ s ag e, education, and intelligenc e. Reasor , 12 S.W .3d at 818. Additional fac tors bear ing on the issue of voluntariness include whether the person was confr onted by multipl e office rs, see Carmouche , 10 S.W .3d at 332-33 , whether the office r retained the person’ s driver’ s license before obtaini n g co n s ent, see United States v. Jones , 234 F.3d 234, 243 ( 5th Cir. 2000), whether the person was informed of t he suspec ted offe nse, see Paulus v. State , 633 S.W .2d 827, 850 (Tex. Crim. App. 1982), whether the person knew the purpose of the sear ch, see May v. State , 618 S.W .2d 333, 345 (Tex. Crim. App. 198 1 ), an d wh ether the person kne w of the r ight to re fuse consent, see Carmouche , 10 S.W .3d at 332-33. As the rang e of these fact o rs demonstrates, an examination of the totality of the circ umstances includes all the cir cums tance s befor e the sear ch, the person’ s rea ction to pressure , and any other fac tor deeme d rele vant. Reasor , 12 S.W .3d at 818. Not all of these fac tors are addre ssed in this recor d.

I n support of his asser

tion that his consent was involuntary , Wells points to Carter ’s rete ntion of hi s insurance and driver’s li cense , see Jones , 234 F.3d at 243 (noting t hat coercion to consent could be inferr ed from office r’s rete ntion of driver’ s license and renta l-ca r ag ree ment), and arg ues that he inferr ed he was not fre e to g o when he g ave his consent. See Carmouche , 10 S.W .3d at 332-33. Howeve r, other rele vant fac tors in the rec ord support the trial court’s finding that Wells’s consent to sear ch was fre ely and voluntarily g iven. Wells was not handcuf fed, arr ested at g unpoint,

or subjected to phy sical punishment when Carter asked him for consent to sear ch the truck. He was

9not confr onted by multipl e police office rs when he was asked for consent to sear ch; Carter was the

only office r at the scene at that time. The patrol-c ar video does not g ive any indication that Carter behave d in such a way as to threa ten or coer ce Wells. The duration of the detention from rec eipt of the dispatcher ’s “all clea

r” repor t to Carter ’s request for a backup office r was only three minutes. Additionally , it can be inferr ed that Wells knew Carter would look for illega l substances, g iven that Carter had asked Wells whether he was on any medication and had convey ed the impression that Wells was “under the influence of som ething .” Wells was 41 y ear s old and familiar with the leg al sy stem, having been arr ested previously for possession of an illega l substance. Finally , Carter testified that Wells g ave consent to sear ch the vehicle, and there is no evidenc e in this rec ord that W el l s wa s u n aware of his rig ht to withhold consent. I n fac t, Wells testified initially at the motion to suppress hear ing that he did not consent, later testified that he g ave only limit ed consent, and now contends that any consent to sea

rch tha t may

be implied from the trial court’s ruling was obtained involuntarily

.

Considerin g t he totality of the circ umstances, we hold that the rec ord supports the trial court’s finding by clea r-a nd-convinc ing evidenc e that Wells’s consent to sear ch was fre ely and voluntarily g iven. After revie wing de novo the trial court’s application of sear ch and seizure law and g iving proper defe renc e to the trial court’s deter mination of fac ts that are s u p p o rt ed b y the

rec ord, we conclude that the trial court did not abuse its discretio n by deny ing Wells’s motion to suppress evidenc e of the marihuana that was found in the trac tor trailer. Acc ording ly , we overr ule Wells’s sole issue.

10CONCLUSION Having ov er ru l ed Wells’s sole issue, we aff irm the trial court’s judgme nt of conviction.

J eff Rose, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Apr il 21, 2011 Do Not Publish

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