Reversed and Remanded; Opinion Filed January 7, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01627-CR THE STATE OF TEXAS, Appellant V. LUIS LOPEZ, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F12-59529 

### MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Bridges The State of Texas appeals from the trial c ourt’s decision to grant appellee Luis Lopez’s motion to suppress. In a single issue, the Stat e argues the trial court e rred by granting the motion to suppress, because the police did not violate ap pellee’s rights by asking appellee to exit the car for the purpose of conducti ng an investigation and a Terry frisk. We reverse and remand. Background Officer Brandon Stephens of the Dallas Police Department testified he made a traffic stop on a silver Dodge Charger at approximately 3: 30 a.m. on August 26, 2012. Stephens explained he stopped the Charger because it was operating on a public roadway with blue headlights, a violation of the transportation code. 1 When he saw the blue lights, Stephens got behind the

1 See T EX . T RANSP . C ODE A NN . §547.326.–2– Charger and ran the license plate because “[he] knew [he] was going to stop the vehicle.” When the license plate came back clea r, Stephens activated his emerge ncy equipment. The driver of the Charger then pulled to the ri ght-hand lane, traveled two or th ree blocks, and pulled into the driveway of a church. When the car pulled over, St ephens testified he “could s ee the driver moving around, reaching from. . . the backseat back to his left down on the side like reaching toward the map pocket.” There were four occupants inside the car. Stephens explained no one else was making gestures or movements. Stephens testified that, when he and his partner approached the vehicle, he knew he wanted to pull the driver out of the vehicle to “do a pat-down on him and the lounge area around him to make sure he wasn’t concealing a weapon.” After he approached the vehicle, Stephens identified the driver and obtained his identificati on to run his name in the police database. He also obtained the name of appell ee, one of the backseat passengers. Appellee was sitting directly behind the driver. Stephens tes tified appellee was not w earing a seatbelt, and he was prepared to issue appellee a citation for th e failure to wear a seatbelt. 2
After he secured the name of the driver and the name provided by appellee, Stephens went back to his police car and first ran the driv er’s name in the computer. The driver’s name came back clear. He then ran the name provi ded by appellee, but nothing came back on him. Stephens explained the fact appellee’s name did not come back could “mean a lot of things.” Specifically, he said it could mean appellee was lying or that he did not yet have an I.D. At this point, Stephens testified everyone was still inside the Ch arger, and our review of the dash camera

2 On cross-examination, Stephens admitted that at the time he saw appellee was not wearing his seatbelt, the car was already pa rked, appellee was sitting in the back seat, and the vehicle was not movi ng. Stephens conceded there was no violation “as far as [he knew].”–3– video confirms this. Stephens then testified, “After I ran the names, I was going to go back up and perform the Terry frisk of the driver and the back le ft passenger.” (emphasis added). Stephens explained he asked th e driver if there were any weapons in the car, and the driver responded, “not that I know of.” At that point, Stephens explained he was suspicious and brought the driver out of the vehicle and conducted a Terry frisk on him. After completing the frisk of the driver, Stephens sat the driver on the curb. After Stephens sat the driver on the curb, he stated he “immediately went to the back left door of the car, opened the car door, [and] asked [a ppellee] to step out.” As appellee stepped out, he lunged toward the back of the car, but Stephens grabbed onto his shir t and a knife fell to the ground beside the car. The kn ife was the size of a steak knife. 3 Stephens arrested appellee for carrying a prohibited weapon and transported him to jail, where drugs were also found on appellee. Stephens later learned appellee had not given his true name when asked. 4 Appellee was indicted for the offense of pos session of a controlled substance, to wit: cocaine in an amount of less than 1 gram. Appe llee filed his motion to suppress evidence. After hearing the evidence on the motion to suppre ss, the trial court stated on the record: [T]he Court finds that the stopping of th e vehicle was indeed proper, given the fact that the driver had committed an offe nse. However, the Court does find that there are no specific articulable facts re garding the questioning of [appellee], who was a passenger in the rear seat. In th is matter, the Court does note the officer testified it appeared that the driver made the furtive gestures , but there was no testimony with respect to [appellee]. The trial court then granted appellee’s motion to suppress. Analysis In a single issue, the State contends the tr ial court erred in granting appellee’s motion to suppress when “the police failed to violate appellee’s rights by asking appellee to exit the

3 Our review of the police dash cam video reveals Stephens indicated the knife’s blade was over 6 inches long. 4 Our review of the video reveals appe llee gave a false name, Ramon Martinez.–4– Charger” and when there was “reasonable suspicion for the arresting officer to detain appellee temporarily for the purpose of c onducting an investigation and ‘ Terry Frisk.’” We apply a bifurcated standard of review to the trial court’s ruling on a motion to suppress evidence. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to the trial court’s de termination of historical facts and apply a de novo review to the trial court’s application of the law to the facts. Id. The trial court is the sole trier of fact, the judge of witness credibilit y, and the weight to be gi ven to witness testimony. Id. The trial court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (T ex. Crim. App. 2006). The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution protect against unreasonable sear ches and seizures by government officials. Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Atkins v. State , 882 S.W.2d 910, 912 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Absent a few specifically established and well-delineated exceptions, a warrantless search is per se unreasonable. Arizona v. Gant , 556 U.S. 332, 338 (2009). One of these exceptions is “search incide nt to arrest.” See Chimel v. California , 395 U.S. 752, 763 (1969). “Search of the person becomes lawful [without a warrant] when grounds for arrest and accusation have been discovered. . . .” United States v. Robinson , 414 U.S. 218, 232 (1973); see also Busby v. State , 990 S.W.2d 263, 270 (Tex. Crim. App. 1999) (once a suspect is validly arrest ed, he may be properly search ed incident to the arrest). The State provided the dash camera video to th e trial court, which is also a part of our record. The video shows Stephens approached the vehicle, asked for the occupants’ names, and then returned to his vehicle to run the names th rough the police database. Stephens testified he decided to conduct a Terry frisk on appellee after he ran his name through the database and–5– nothing came back. Appellee argues the decision to conduct a Terry frisk of him at that point was improper. But Stephens never conducted a Terry frisk of appellee. Inst ead, after running the names through the database, Stephens returned to the ca r and frisked the driver. After completing the frisk of the driver, he then opened the back pa ssenger door and asked appellee to step out of the vehicle. We conclude it was proper for Stephe ns to ask appellee to step out of the car. See Maryland v. Wilson , 519 U.S. 408, 410 (1997) (police officer may order passenger to exit vehicle as a matter of course). When aske d to step out of the vehicle, a ppellee attempted to run. At that point, the knife he was concealing fell to the gr ound. Our review of the video shows that, after Stephens and another officer had handcuffed appelle e, Stephens indicated he would be arresting appellee for carrying a prohibited weapon. Appellee was then placed in the back of the police car. After appellee was transporte d to jail, he was searched a nd, only then, were the drugs at issue found on his person. At the hearing on the motion to suppress, the trial court first found the stop of the vehicle was proper, and we agree with the trial court’s conclusion. 5 The trial court al so found there were no specific articulable facts regarding the quest ioning of appellee, who was a passenger in the rear seat, and no evidence of furtiv e gestures by appellee to justify a Terry frisk. Here, however,

no Terry frisk of appellee took place. We concl ude the evidence at i ssue here was properly obtained under a search incident to arrest and, therefore, the trial court improperly granted appellee’s motion to suppress. See Busby v. State , 990 S.W.2d at 270.

5 We conclude Stephens had reasonable su spicion that a traffic offense had been committed, and thus the stop was proper. See T EX . T RANSP . C ODE A NN . §547.326.–6– We reverse the trial court’s order granting a ppellee’s motion to suppress and remand this cause for further proceedings.

Do Not Publish T EX . R. A PP . P. 47 121627F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE STATE OF TEXAS, Appellant No. 05-12-01627-CR V. LUIS LOPEZ, Appellee On Appeal from the 194th Judicial District Court, Dallas County, Texas Trial Court Cause No. F12-59529. Opinion delivered by Justice Bridges. Justices Fillmore and Lewis participating. Based on the Court’s opinion of this da te, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

Judgment entered this January 7, 2014

/David L. Bridges/ DAVID L. BRIDGES JUSTICE