## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00018

- CR No. 02

- 22

- 00019

- CR

___________________________

On Appeal from the 235th District Court Cooke County, Texas Trial C ourt No s . C R21

- 00132, CR21

- 00133
Before Kerr, Birdwell, and Wallach, JJ. M emorandum Opinion by Justice Wallach 

### T HE 

### S TATE OF 

### T EXAS V 

### . J OSEPH 

### T URNER 

### , Appellee2 MEMO RANDUM OPINION The State appeals from the trial court ’ s order granting Appellee Joseph Turner ’ s motion s to suppress evidence. The State ar gues in two issues that the trial court erred in granting Turner ’ s motion s because (1) there was reasonable suspicion
t o stop Turner ’ s car, (2) there was reasonable su spicion to justify prolong in g the detention in order to have a drug dog sniff Turner ’ s ca r , and ( 3 ) Turner consented to

a n open
- air sniff by a drug dog. We af firm. I. Background Off ic er S t rickland and his p artner were sitting in their patrol car just north of Gainesville High School observing northbound traffic on I

- 35
. S t rickland noticed a Nissan Al tim a that was, acco rding to Strickland, traveling in the lef t

- hand lane de s pite th e fact that there were “ no cars on his right

- hand lane, where he was able

– obstructing him from being able to get back in the prop er lane witho ut passing. ” Turner was the driver of the Altima. S trickland pulled ou t onto I

- 35 and fo llowed Turner
. In Strickl a nd ’ s opinion, Turner ’ s car started to go faster. He testified that Turner continued tra veling in the left lane despite there being no cars in the right lane. Strickland also said there are signs on the highway indicating th at the left la n e is for passing only. However, Strickland could not “ necessarily say if ” Turner was on I

- 35 w here those signs were posted. In any event, there was a “ left lane for passing only ” sign about a mile before traffic would ha ve reach ed Str i ckland ’ s stationar y position.3 S tr ickland followed Turner for about a mile before making a traffic stop. He told Turner the reason for the stop, did his “ typical interview, ” and asked Turner to
st ep out of his car while h e completed a w arning for the violation of driving in the left lane without passing. S t rickland asked Turner if he had any large amounts of U. S. currency or was carrying any drugs. According to Strickla nd, when he spe cifically asked T urner about ma r ijuana, Turner ’ s voice changed and h e rea cted differently
. When Strickland asked Turner for consent to search his car, Turner to ld him no. Strickland also asked him if a drug dog would alert to Turner ’ s car. T urner told him

“ you can go get the dog. ” Strickland called another deputy to bring a dog to sniff Turner ’ s car. T he drug dog “ alerted ” on Turner ’ s car, and Strickland searched it. He found a backpack and a fanny pack, c on taining a combined t otal of over $52,000 in cash. He also found an MDMA pill and a small amount of marijuana in the tr unk. Turner w as
arre sted for possession of the MDMA and marijuana. Two videos were admitted at t he suppres s ion hearing. The first was Officer Strickland ’ s dashcam , the second his body cam. T he dashcam shows the highway from O fficer Strickl and ’ s point of view as he faces it. Turner ’ s gr ay Nissa n is seen traveling past Strick land ’ s fie l d of vi sion in the left lane of the highway. Several other c a rs are pres ent including, significantly, cars tra veling in the right lane. A s t he Nissan passes by, Strickland ca n be seen enteri ng the highway and be gin ning his pursuit in the le f t lane. Turner ’ s car cannot be seen again until about 30 seconds lat er, and there are two4 other cars between Str ickland ’ s cruiser and Turn er ’ s Altima. The A ltima appears to pass a t least tw o cars before it is again obs cured from view. Nearly a minute later, Turner ’ s car can again be seen. Turner then drives in the left lane for about forty more
se conds ( this time without passing any other cars in the right lane ) until he changes lan es . Tu rne r r e turns to the left lane, this time passing both a pickup truck and an eig hteen

- wheeler. Strickland the n activ ates hi s light s and pull s Turner over. Officer Strickland ’ s bodycam recorded hi s conversation wit h Turn e r. In it, Strickland asks Turner general questi ons about where he lived and his travel plans. Strickland then explain s to Turn er that his partner “ works narcotics ” and that Strickland was “ helping him out. ” He a s k s Tu rner if he had any weapons, drugs, or large s ums of cash in his car. Turner den ie s having any of those things. St rickland then ask s about Turner ’ s car
— Turner t ells him it was rented by a friend of his. Strickland al s o ask s Turner for consent to search his car , to which Turner replies that
t here is “ no need ” to search it, but that Str ickl and could “ put a canine on my vehicle if you want to put a canine on it
. ” Fourteen minutes into the bo d ycam video , Officer Strickla nd call s for a drug dog. While they wait , Strickland continue s to question Turner about the ca r he was driving and explai n s that the place he was stopped was a “ high

- traffic ” drug area
. Wh e n the canine officer arriv e s , Strickland explain s his suspicions about Turner to him. The dog , accor ding to Strickland and his partner, mak es a positive alert on the

car. St rickland then s earch es Turner ’ s car.5 Turner was in d icted both for possession of MDMA and money laund ering
. He moved to suppress the evidence found in his car. A fter hearing the evidence, the trial
court granted Turner ’ s motions. T he tr i al court made findings of fact , s pe cifically finding that “ [ t]he record is void of testimony regarding when Joseph Turner entered I

- 35, ” a nd that Offi cer S trickland “ was not in sufficient position for a sufficient length of time to observe whe ther Joseph T urner was driving in the left lane not passing. ” Further, the trial court found that Turner was “ in the process of passing ano ther vehic le ” at the time that h is car first appeared in Strickland ’ s dashcam. As for what occurred after the traffic stop, the trial court found that (1) Strickland asked for consent to search Turner ’ s car after he had gathered information in order to issue a written warning to Turner , (2) Tu rner refused consent to search his car but consented to a drug dog t o “ run. . . on the veh icle, ” ( 3 ) it was fourteen minutes be f ore Strickland called for a K

- 9 officer to come to the scene, and (4) it was t wenty

- eight minut es into the traffic stop that the drug dog arrived. The trial court concluded that Offic e r Strickland did not have reason able suspicion to believe t hat Turner h ad committed a traffic violation, that Strickla nd had had sufficien t time to compl et e the t raffic s top by the time he asked Turner for consent to search the car, that there was no prob a bl e ca use to e xtend the length of the traffic stop, and tha t Turner sho uld have been free to leave w hen he denied Strickland ’ s request to search the car.6 II. Standard of Review We apply a bifurcated standard of review to a trial court’s rulin g on a motion to suppress evidence. State v. Martinez , 570 S.W.3d 278, 281 (Tex. Cri m. A pp. 2019)
. Beca use t he trial judge is the sole tr ier of fact and j udge of the witnesses’ credibility and the weight to be given their testimony , Wiede v. State , 214 S
. W.3d 17, 24

– 25 (Tex. Crim. App. 2007) , we defer almost tota lly to a trial court’s rul ings on questions o f historical fact and application

- of

- law

- to

- fact qu estions that turn on evaluating credibility and demeanor, but we review de novo application

- of

- law

- t o - fact questions that do not turn on credibility and demeano r , Martinez , 570 S.W.3d at 281
. When the tria l court makes explicit fact findin gs, we determine whether the evidence, when viewed in the light most favorable to the trial court’s ruling, supports
t hose findings. Johnson v. State , 414 S.W.3d 184, 192 (Tex. Crim. App. 2013)
. We then review the trial court’s legal ruling de novo unles s its explicit fa ct findings that are supported by the record are also dispositive of the legal ruling. State v. Kel l y , 204 S.W.3d 808, 818 (Tex. Cri m. App. 2006)
. III. Applic able L aw The Fourth Amendment protects against unreasonable searches and seizur es by government officials. U.S. Const. amend. IV; Wiede , 214 S.W.3d at 24. A defendant seeking to suppress evidenc e on Fourth Amendm ent grounds bears the initial burden to pr oduce some evidence that the g overnment conducted a warrantless search or seizu re that he has st anding to contest
. Rawlings v. Kentucky , 448 U.S. 98,7 104

– 05, 100 S. Ct. 2556, 2561 (1980); State v
. Martinez , 569 S. W.3d 621, 623 (Tex. Crim. App. 2019)
. Onc e the defendant does so , the bur den shifts to the State to prove either that th e search or seizu re was con ducted pursuant to a warrant or, if warrantless, was otherwise reasonable. Martine z , 569 S.W.3d at 623. A detention, as opposed to an arrest, may be justified on less th an probable c ause if a person is

reaso nably suspected of cr iminal activity b ased on specific, articulable facts. Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); Jo h nson , 622 S.W. 3d at 384
. An officer conducts a lawful temp orary detention when he reasonably suspects that an individu al is violating the law. See Johnso n , 622 S.W.3d at 384
. Reasonable suspicion exists when, based on the totality of the circumstances, the officer ha s specific, articulable facts that, when comb ined with rational i nferences from th ose facts, would lead him to reasonably co nclude that a par ticular person is, has been, or soon will be engaged in criminal activity. Id
. This is an objectiv e standard that disregards the detaining officer’s subjectiv e intent and looks s olely to whether th e officer has an objectiv e basis for the stop. Ramirez

- T amayo v. State , 537 S.W.3d 29, 36 (Tex. Crim. App. 2017). IV. Analysis A. Officer Strickland did n o t have reasonable suspicion to detain T urner. Officer Strickland explained that he stopped Turner a fter o bserving him8 drivin g in the l eft lane without pass ing. 1 The Transportation Code states that “ [t ]he operator of a vehicle or streetcar shall comply wit h an app licable official traffic

control device placed as provided by this subtitle. ” Tex. Transp. C ode § 5 44 .00 4 (a)
. A lawfu lly placed s ig n is an “ official traffic

- control device. ” Id
. § 541.304(1). Additionall y, the Transportation Code empowers the relev a nt authority to place “ a sign that directs slower traffic to t ravel in a lane other than the f arthe st left lane ” “ on a highw ay having more than one lane wi th vehicles traveling in the same direction. ” Id . § 544.011. However, before an officer can i nitiate a traffic stop for failing to obey a

“ left lane for passing only ” sign, “ the officer must be aware of facts that support a

r easonable infe rence that the de fendant drove past the sign before being pulled over. ” Jag anathan v. State , 479 S.W.3d 244, 247 (Tex
. Crim. App. 2015) ; see also Abney v. State , 394 S.W.3d 542, 548 (Tex. Crim. App. 2013) (specif ying that without a “ left lane for passi ng o nly ” sign present with in a “ reasonable distance of the traffic stop, there is no offense ” ). Acc ording to the trial co u rt ’ s findings, S t rick land was parked at mile marker

1 Strickland also testified that his suspicions were aroused because , as Turner d rove by Strickland ’s car , he “kin d of positio ned himself where the B pill ar would be blocking him
. ” The trial court did not ma ke a finding o n e way or the other regarding this testimony. In addition, the dashcam video appears to refute Officer Str ickland ’s testimony

— Turner ’s head is visible as his car passes by. In a ny event, we do not consider this assertion in our r easonable sus picion analysis. See Tucker v. State , 369 S.W.3d 179, 185 (Tex. Crim. App. 2012) ( “ The court of appeal s should view the video in the li ght most fav orable to the trial court ’ s ruling and assume that the t rial court made implicit findings that support ” t h at ruli ng ).9 495 on I

- 35. The previous “ left lane for passin g only ” sign was positi on ed at mile marker 4 94 (i.e., upstream of the traffic flow). Further, as the court found, there was
no “ testi mony regarding when
. . . Turner entered I

- 35. ” And it is clear (both from the trial court ’ s findings and the dashc am v ideo ) that Turner was indeed in the left lane passing cars on his right when Strickland began to pursue him. Even allowing for a short length of time toward the end of the pursuit in which Turner was not passing cars, there are simply not enoug h facts from whi ch Strickland could have reasonably infer red that Turner drove past a “ left la ne for passing only ” sign and failed to obey it. Cf. Jag a nathan , 479 S.W.3d at 247

– 48 (affirming trial court ’ s overruling of supp ression motion wh ere evidence sho w ed defendant pa ssed “ left lane for passi ng only ” sign bu t failed to change lanes for at least 45 sec o nds). Applying the appropriate standard of review as set forth above , we hold that the trial court did not err in finding that Officer Str ickland lacked re asonable suspic ion to detain Turner for a traffic violation. The State also argues that reasonable s u spicion following the stop of Turner justified its extension to al low for a drug dog sniff. See Matthews v. State , 431 S.W.3d 596, 6 0 3

– 0 4 (Tex. Crim. App. 20 1 4) (holding that reasonable suspic ion of further criminal activity that devel o ps during a traffic stop may justify prolonging a dete ntion so that a canine sniff can occ ur). The extension of a n invalid traffic stop, o n the other hand, cannot be justified by an officer ’ s subseq uent suspicion , n o matter how seemingly reasona ble. See S t a te v. Bland , No. 13

- 15

- 00041

- CR, 2016 WL 5941846, at *7 (Tex. App.

— Corpus Christi

– Edinburg Oct. 13, 2016, no pet.) (mem. op., not for10 pub lication ) (h olding that any evidence of a drug dog s niff following an unreaso nable de tention was inadmissible as “ fru i t of the poiso nous tree ” ). B. The State has neither preserved nor briefed any claim that th e taint of the unlawful stop was attenuated. E ven when a t raffic stop is unlawful, a driver ’s cons ent to search a vehic le m ay at tenuate the taint of the unlawful d e tention and justify admission of the contested eviden ce. Wolf v. S tate , 13 7 S.W.3d 797 , 805 (Tex. App.

— Waco 2004, no pet.) ; see also Utah v. Strieff , 579 U.S. 232, 238, 136 S. Ct. 2056, 2061 (2016) ( “ Evidence is adm issible when the connection between unco n stitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance
. . . . ” )
. This is commonly known as “ at tenuation of the taint. ” See Massey v. S tate , 667 S.W.3d 784, 789 (Tex. Crim. App . 2023) ( laying out factors to use in analyzing attenuation

- of

taint). In this case, however, the State d id not argue at trial that an intervening event broke the “causal chain between th e unlawful stop and the discovery of drug

- related evi dence ” in Tu r ner ’s car. Strie ff

, 579 U.S. at 239, 136 S.Ct. at 2061. When the State is the appealing party, it may not raise an issue on appeal that it did not pre sent to the trial court. State v. Mercad o , 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) ; see also State v. St e elman , 93 S.W.3d 102, 1 06

– 07 (Tex. Crim. App. 2002) (holding State forfeited attenuation

- of

- taint argument on appeal where it failed to pr esent that a rgument to trial court). Neither do the Court ’ s findings raise the issue of at t enuation. And11 although the State ’ s brief on appeal discusses the fact that Turner appeared to acquiesce to the arrival of a drug dog , the State does not analyze the fact of cons ent under an attenuation theory. For the s e reasons, therefore, we will not consider that issu e in our opi n ion. V . C onclusion W e hold that there was no error in the trial court ’ s decision to grant Tur ner ’ s mot ion s to suppress. Accordingly, we overrule t h e State ’ s issues and affirm the trial

cou rt ’ s order s .

/s/ Mike Wallach Mike Wallach Justice Do Not Publish T ex. R. App. P
. 47.2(b) Delivered : June 29, 2023