No. 03-16-00055-CR In the Court of Appeals for the Third District of Texas at Austin

___________________________ No. 15-0302-K26 In the 26th Judicial District Court Williamson County, Texas

____________________________ SUSAN ODEN Appellant v. THE STATE OF TEXAS Appellee

_____________________________

STATE’S BRIEF IN RESPONSE

_____________________________ Jana Duty District Attorney Williamson County, Texas Daniel Sakaida State Bar No: 24084601 Assistant District Attorney 405 Martin Luther King, Box 1 Georgetown, Texas 78626 (512) 943-1234 (512) 943-1255 (fax) Daniel.sakaida@wilco.org

ORAL ARGUMENT NOT REQUESTED ACCEPTED 03-16-00055-CR 13798038 THIRD COURT OF APPEALS

AUSTIN, TEXAS 11/15/2016 12:27:41 PM JEFFREY D. KYLE

CLERKii STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument as the issues presented in this appeal are not novel and the record is straightforw ard. However, if th e Court believes that oral argument would help resolve the matter, the State would request the opportunity to appear and argue.iii TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUM ENT .............................................. ii TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUT HORITIES .................................................................................... iv STATEMENT OF FACTS ........................................................................................ 1 SUMMARY OF THE ARGUMENT ........................................................................ 7 ARGUMENT ............................................................................................................. 7 I. There was reasonable suspicion fo r the underlying traffic stop ....................... 9 A. Appellant did not clearly preserve this issue for appellate review ........... 10 B. Even if preserved, there are suffi cient facts to support the trial court’s finding that there was objectively reasona ble suspicion of a traffic offense for the underlying traffic stop ................................................................... 12 II. Officers had reasonable suspici on that Appellant possessed drugs to temporarily detain Appellant while wa iting for a canine unit to arrive ........ 15 A. Evidence gained during the duration of an otherwise justifiable temporary detention may give rise to reasonable suspicion of a different offense ... 16 B. The officers in this case did ha ve reasonable suspicion to extend the temporary detention to wait for a canine unit in light of location, Appellant’s dishonesty about her narcotics history, her visible nervousness starting after being asked about narcotics, and he r passenger’s substantial narcotics hi story ........................................................................................ 17 PRAYER .................................................................................................................. 22 CERTIFICATE OF CO MPLIANCE ....................................................................... 23 CERTIFICATE OF SERVICE ................................................................................ 23iv INDEX OF AUTHORITIES
Cases Anderson v. State , 701 S.W.2d 868 (Tex. Cr im. App. 1985) .................................. 12 Arguellez v. State , 409 S.W.3d 657 (Tex. Crim. App. 2013) .................................... 8 Atwater v. City of Largo Vista , 532 U.S. 318 (2 001) .............................................. 12 Bouchillon v. State , 540 S.W.2d 319 (Tex. Cr im. App. 1976) ................................ 10 Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010) ...................................... 7 Crittenden v. State , 899 S.W.2d 668 (Tex. Crim . App. 1995) ........................... 9, 15 Darcy v. State , 488 S.W.3d 325 (Tex. Cr im. App. 2016) ........................................ 10 Elizondo-Vasquez v. State , No. 03-12-00774-CR, 2014 Te x. App. LEXIS 9174 (Tex. App.—Austin Aug. 20, 2014, pet. ref'd) (mem. op., not designated for publication) .................................................................................................... 13 Floyd v. State , No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413 (Tex. App.— Tyler July 23 2008, no pet.) (mem. op., not designated for publication) ...... 12 Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) .................................. 8 Gougeau v. State , 209 S.W.3d 713 (Tex. App.—Houst on [14th Dist.] 2006, no pet.) ....................................................................................................................... 17 Hamal v. State , 390 S.W.3d 302 (Tex. Crim . App 2012) ................................. 19, 20 Illinois v. Wardlow , 528 U.S. 119 (2 00) .................................................................. 19 Indianapolis v. Edmond , 531 U.S. 32 ( 2000) .......................................................... 16 Moreno v. State , No. 03-14-00596-CR, 2016 Tex. App. LEXIS 6868 (Tex. App.— Austin June 30, 2016, no pet.) (mem. op., not designated for publication) .. 17 Moses v. State , 105 S.W.3d 622 (Tex. Cr im. App. 2003) ......................................... 8 Olguin v. State , No. 06-13-00171-CR, 2014 Tex. App. LEXIS 1272 (Tex. App.— Texarkana Feb. 25, 2014, pet. ref'd) (mem. op., not designated for publication) ....................................................................................................................... 12v Rodriguez v. United States , 135 S.Ct. 1609 (2 015) .......................................... 16, 18 State v. Ross , 32 S.W.3d 853 (Tex. Crim. A pp. 2000) ............................. 7, 8, 15, 20 Terry v. Ohio , 392 U.S. 1 ( 1968) ............................................................................... 8 Turrubiate v. State , 399 S.W.3d 147 (Tex. Crim . App. 2013) ........................... 8, 20 United States v. Arvizu , 534 U.S. 266 (2002) ............................................... 8, 19, 21 Wade v. State , 422 S.W.3d 661 (Tex. Cr im. App. 2013) .......................................... 9 Zillender v. State , 557 S.W.2d 515 (Tex. Cr im. App. 1977) ................................... 10

Statutes Tex. Transp. Code § 547.322 ................................................................................... 12

Rules Tex. R. App. P. 33.1 ................................................................................................. 101 TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF FACTS The State wishes to clarif y the following facts to supplement those addressed in Appellant’s brief.

Procedural History Prior to Appellant’s plea and this app eal, she filed a motion to suppress on July 20, 2014, and a hearing on that motion was held on September 4, 2015. 1 At that hearing, the State only called one witness, Round Rock Police Offi cer Josh Chadney, and submitted a video recording from the cameras mounted to Officer Chadney’s patrol vehicle. 2 The trial court denied Appellant ’s motion to suppressing a written motion entered on October 12, 2015, 3 Appellant plead guilty on November 12, 2015, 4 while reserving the right to appeal the suppression issue, 5 and this appeal follows.

1 CR 3. 2 RR II, State’s Exhibits 1 (video marked as “Joshua Chadney, 11-0079, 2015-02-09 22:08:07” in player provided on disk in 1, which is cont ained in case marked State’s Exhibit 1A). 3 CR 20. 4 CR 22-23. 5 CR 22-23, 30; RR IV:6.2 Traffic Violation On February 9, 2015, Officer Chadne y was on patrol in Round Rock, in a marked patrol vehicle, when he first caught sight of Appellant’s vehicle, a 2001 Dodge pickup, at about 10 in the evening. 6 Officer Chadney observed Appellant leaving Candlewood Suites, which he knew fro m his experience to be a “high crime area known for narcotics use.” 7 Shortly thereafter, Officer Chadney observed that Appellant’s license plate was insufficien tly illuminated, and while on the frontage road for I-35, he turned off the headlight s on his patrol car to confirm his initial observation. 8 He specifically testified that wh ile the vehicle had two lights which were supposed to illuminate the license pl ate, they were not emitting enough light to make the license plate visible at 50 feet away. 9 Barely a minute after the recording begins, Officer Chadney activated his overh ead lights and initiated his traffic stop of Appellant from the number one lane on I- 35, with Appellant subsequently exiting

6 RR II:6; see also State’s Exhibit 1 with the video beginning at 22:08:07 (t ime on this exhibit is notated in absolute tim e, on a 24-hour clock).
7 RR II:6-8 (Officer Chadney noting that he had personally made na rcotics related arrests in and around that hotel). 8 RR II:25; see also State’s Exhibit 1 from roughly 22:08:12 to 22:08 :19 (showing Appellant’s truck ahead and to the le ft of Officer Chadney’s patrol vehi cle with Officer Chadney’s headlights clearly turned off at the begi nning, and back on at the end). 9 RR II:30-31.3 the interstate, and coming to a stop in a pa rking lot off the frontage road barely two minutes after the start of the video. 10

Traffic Stop and Investigation Officer Chadney’s lapel microphone wa s not recording for the first few minutes of the traffic stop, but was turned on about six minutes after the stop. 11 However, he testified at the suppression hearing that when he first made contact with Appellant, he essentially conducted the enc ounter as a routine traffic stop, including requesting Appellant’s driver’s license, proof of insurance, and what Appellant was doing that night. 12 Appellant confirmed that she ha d just left Candlewood Suites, and stated that while she had been previous ly arrested, it was only for possession of stolen items. 13 When he sought to confirm this, di spatch advised that her criminal history indicated that she had been previously arrested for narcotics. 14 Once asking Appellant if she had a ny narcotics on her, Officer Chadney observed that she became “more nervous.” 15 Officer Chadney testified that he had met Appellant “a couple weeks prior” when she was struck by a drunk driver, and

10 RR II:6-7; State’s Exhibit 1 at 22:09:00 (lights initiated), and 22:10:09 (vehicles stopped).
11 State’s Exhibit 1 at 22:15:45.
12 RR II:8. 13 RR II:8-9. 14 RR II:10. 15 RR II:10.4 even after that accident, sh e “wasn’t nervous at all.” 16 Likewise, Appellant was not nervous the night of the instant offense until Officer Chadney specifically brought up the subject of narcotics. 17 At that point, Officer Chadney also observed her heart begin to race, specifically seeing the artery on the left of Appellant’s neck pulsating more rapidly. 18 Officer Chadney testified that he was trained to specifically look for that artery to see a rising heart rate, pa rticularly since it is easily visible while standing outside a driver’s door during a traffic stop, as in the instant stop. 19 While Appellant attacked how visible the artery should have been given Appellant’s hair, the video exhibit is not of a high enough quality to determine if the artery was actually visible, and Officer Cha dney did not recant his testimony. 20 Officer Chadney returned to his vehicle briefly, at which point he “finagled” with the recording equipment to get his lapel microphone recording shortly before
10:16. 21 Then, he had Appellant exit her vehicl e and observe for herself the defective lights. He informed Appellant that her aftermarket license plate lights were not

16 RR II:12. 17 RR II:12; see also State’s Exhibit 1 at 22:20:30 (several minutes after the initial interview, Officer Chadney directly asked A ppellant why she was so nervous). 18 RR II:10-11. 19 RR II:10-11. 20 RR II:27. 21 RR II:16; State’s Exhibit 1 at 22:15:45.5 emitting enough light, and she replied “oh yeah, they’re not.” 22 He also informed her that by statute the lights are required to illumina te the plate so that it is clearly legible from 50 feet away, and she affi rmed that she could see how dim at least one of the lights was. 23 Officers were still waiting on driv er license returns after this conversation. 24 Officer Chadney then started ques tioning Ms. Browning, Appellant’s
passenger. 25 Ms. Browning advised that she ha d been arrested for possession of marijuana and possession of methamphetamine. 26 Her demeanor also became much more nervous when Officer Ch adney directly asked if th ere were narcotics in the vehicle. 27 Officer Chadney was able to run Ms . Browning’s criminal history, and found that she had been arrested on mu ltiple occasions for possessing controlled substances. 28 At about 10:25, after being denied co nsent to search the truck, Officer Chadney told Appellant that he was calling a drug dog, a nd that she was not free to

22 State’s Exhibit 1 at 22:17:00. 23 State’s Exhibit 1 at 22:17:00.
24 State’s Exhibit 1 at 22:17:30. 25 RR II:12-13; State’s Exhibit 1 at 22:21:00. 26 RR II:13. 27 RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so nervous). 28 RR II:13.6 leave the scene. 29 This was barely 15 minutes af ter Appellant wa s pulled over by Officer Chadney at 10:10. 30 When the dog arrived, it gave a positive alert for the presence of drugs. The ensuing search of the truck and Appellant’s purse revealed methamphetamine, 31 and Appellant was arrested for possession of the same. A search of Ms. Browning’s person uncovered more methamphetamine. 32

29 RR II:15; State’s Exhibit 1 at 22:25:00. 30 State’s Exhibit 1 at 22: 10:09 (vehicles stopped). 31 RR II:19-21. 32 RR II:21-22.7 SUMMARY OF THE ARGUMENT First, the trial court was entitled to conclude that Officer Chadney had sufficient reasonable suspicion to initia te the traffic stop based on insufficient illumination of Appellant’s rear license pl ate. The video admitted into evidence of Appellant’s interaction with Officer Cha dney corroborates his testimony, even if Appellant’s assertion that it was a “pretextual” stop was true. Sec ond, the trial court was also entitled to conclude that O fficer Chadney had sufficient reasonable suspicion to detain Appella nt while waiting for a canine unit to arrive and perform an open air sniff for the odor of controlled substances.

ARGUMENT This Court should review a trial court’ s denial of a motion to suppress for an abuse of discretion, and apply a bifurcated standard of review, affording almost complete deference to the tria l court’s determination of hist orical facts, particularly when based on assessments of credibility and demeanor. 33 However, this Court should review de novo whether the facts ar e sufficient to give rise to reasonable suspicion. 34 Reversal of a trial court decision regarding admissibility of evidence

33 Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Ross , 32 S.W.3d 853 (Tex. Crim. App. 2000) (trial judge may believe or disbelieve all or some of a witness’s testimony). 34 Id.8 should be rare “and only after a clear abuse of discretion.” 35 This Court should give “almost total deference” to th e trial court, particularly when the only witness at the suppression hearing was the arresting of ficer, and did not make written finding or conclusions. 36 When the trial court does not make express findings of fact, this Court reviews the evidence in the lig ht most favorable to the tr ial court’s ruling, assuming it made findings that are consistent with its ruling and are supported by the record. 37 Finally, the trial court’s ruling should be upheld under any applicable theory of law. 38 United States courts permit law enforc ement officers to stop and briefly detain a person for investigative purposes on the basis of reasonable suspicion without violating the protections of the Fourth Amendment. 39 In Texas, reasonable suspicion exists where the officer has “specific arti culable facts that, when combined with rational inferences from those facts, woul d lead him to reasona bly suspect that a particular person has engage d or is (or soon will be) e ngaging in criminal activity.” 40 This standard is wholly objective, made by evaluating the totality of the circumstances, 41 and specifically disregards the s ubjective intent and motives of the

35 Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)

. 36 Ross , 32 S.W.3d at 855-56. 37 Turrubiate v. State , 399 S.W.3d 147, 150 (T ex. Crim. App. 2013). 38 Arguellez v. State , 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013). 39 Terry v. Ohio , 392 U.S. 1 (1968). 40 Garcia v. State , 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
41 United States v. Arvizu , 534 U.S. 266, 273 (2002).9 officer. 42 Contrary to Appellant’s claims, 43 this is true even if the encounter is “pretextual” and the officer effectuated the stop for a purely ulterior motive so long as there is an objectively valid basis for the stop. 44

I. There was reasonable suspicion for the underlying traffic stop In her first claimed ground for relief, Ap pellant claims that the traffic stop in this case was illegal. Specifically, Appellant argues that “there does not appear to have been a traffic stop based on the fi fty food rule for license plate visibility.” 45 It appears that Appellant clai ms that the only reason that she was pulled over was because she was in a “high crime area.” 46 This is false.

42 Wade v. State , 422 S.W.3d 661 (Tex. Crim. App. 2013). 43 Brief for Appellant at 11 (“Just as federal cas e law does not allow pretex t stops, state law also does not allow evidence from a pretext stop to be admitted”).
44 Crittenden v. State , 899 S.W.2d 668, 673-74 (Tex. Crim. Ap p. 1995) (holding that, “a stop will not be invalidated based on the subjective motivati on of a police officer so long as there is an objectively valid basis for the stop, ” and, “an objectively valid tra ffic stop is not unlawful under Article I, § 9, just because the detaining offi cer had some ulterior motive for making it”). 45 Brief for Appellant at 9. 46 Brief for Appellant at 10-11.10 A. Appellant did not clearly preserve this issue for appellate review It is not clear from the record that Appe llant preserved this claim at the trial court. To preserve a claim fo r appeal, the objecting party must enter a timely, specific objection, and obtain an advers e ruling from the lower court. 47 This requirement affords the trial judge an opportunity to re view the objection, and may also afford opposing counsel an opportunity to remove the objection. 48 Given the fundamental and systemic nature of preservati on, an appellate court “may not reverse a judgement of conviction without first addressi ng any issue of error preservation.” 49 In this case, the broiler plate motion to suppress presented to the trial court, its accompanying memorandum of law, and the arguments made at the suppression hearing all centered on the reasonableness of Appellant’s detention while waiting for the drug dog, not the reasonablene ss of the underlying traffic stop. 50 The trial brief discussed reasonable susp icion, but mostly in the context of anonymous tips. 51 In arguments at the suppression hearing, A ppellant never argued th at the traffic stop

47 Tex. R. App. P. 33.1; see also Zillender v. State , 557 S.W.2d 515, 517 (Tex. Crim. App. 1977); Bouchillon v. State , 540 S.W.2d 319, 322 (Tex. Cr im. App. 1976) (objection that argument went outside the record was not suffici ent to preserve an appellate claim that the argument was a comment on appellant’s failure to testify). 48 Zillender , 557 S.W.2d at 517. 49 Darcy v. State , 488 S.W.3d 325, 327-28 (Tex. Crim. A pp. 2016) (emphasis in original). 50 See CR 15 (Motion to Suppress, filed July 20, 2015) , CR 18 (Trial Brief, filed on Sep., 04, 2015). 51 CR 18-19.11 itself was problematic, and essentially con ceded that the traffi c stop was legitimate. 52 In fact, after briefly discussing the re asonable suspicion standard, instead of discussing the reasonable suspicion for th e precipitating traffic stop, Appellant’s attorney immediately argued that, “in this case there’s only three things that the officer relied on for reasonable suspicion and detained Ms. Oden and her passenger after the initial traffic stop.” 53 Likewise, he closed w ith the following argument, essentially conceding the lega lity of the traffic stop: So the way this should have gone dow n, he should have pulled her over. He should have written he r a ticket for the defective license plate light and moved on because the questions th at he asked her certainly didn't rise to the level and create a reasonabl e suspicion to detain her after that point. 54 Appellant’s codefendant’s attorney then gave the trial court a review of Rodriguez and argued about the reasonableness of ex tending the detention, again without disputing the legality of the underlying traffic stop. 55 Therefore, the nature of Appellant’s motion and argument were not sufficiently specific enough to demonstrate to the trial court or to the Stat e that Appellant was objecting to the traffic stop in this case and not merely the extens ion of the detention while waiting for drug dog.

52 See RR II:45-50. 53 RR II:45-46. 54 RR II:46. 55 RR II:47-50.12 B. Even if preserved, there are sufficient facts to support the trial court’s finding that there was objectively reasonable suspicion of a traffic offense for the underlying traffic stop Even if preserved, Appellant failed to make a sufficient reco rd for this Court to overturn the trial court’s implicit ruling that the traffic stop was constitutional. Traffic violations are sufficient grounds fo r a traffic stop, temporary detention to investigate the violation, and in some cases even arrest. 56 The Texas Transportation Code requires that rear license plates be clearly illuminated and legible. Specifically, (f) A taillamp or a separate lamp sh all be constructe d and mounted to emit a white light that: (1) illuminates the rear license plate; and (2) makes the plate clearly legible at a distance of 50 feet from the rear. 57 The plain language of the statute indicates that there is an offense even if the vehicle has functional lights installed, but they fail to illuminate the plate so that it is clearly legible at the prescribed distance. 58 A vehicle does not become immune to a drug

56 See Atwater v. City of Largo Vista , 532 U.S. 318 (2001) (stop and ar rest for the Class C fineonly offense of driving wit hout a seatbelt was reasonabl e under the circumstances); Anderson v. State , 701 S.W.2d 868 (Tex. Crim. App. 1985) (upholding traffi c stop for driving without headlights). 57 Tex. Transp. Code § 547.322. 58 See Tex. Transp. Code § 547.322(f)(2); see, e.g. , Olguin v. State , No. 06-13-00171-CR, 2014 Tex. App. LEXIS 1272 (Tex. App.—Texarkana Feb. 25, 2014, pet. ref’d) (mem. op., not designated for publication) (while Lexis may indi cate that this opinion was withdrawn later, the February 25 th opinion is the final one by th e court) (not binding, but pers uasive in that the court upheld a traffic stop even when the vehicle had a functional but insuffici ent light on the license plate); Floyd v. State , No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413, at *6-7 (Tex. App.— Tyler July 23 2008, no pet.) (mem. op., not designate d for publication) (no contested fact issue when officer testified that there was a very dim light on the license plate, and that it was not legible from 50 feet away).13 investigation simply because it is initia lly stopped because of a defective license plate light. 59
The issue in this case is not whether Appellant’s lights were functional or not, it is that the lights were simply not bright enough to fully illuminate the license plate to make it legible from 50 f eet. Officer Chadney testified that he initiated the traffic stop because of the defective license plate light. 60 He also testified and Appellant herself confirmed on the video that, “oh yeah, they’re not” emitting enough light. 61 Appellant asserts that Officer Chadne y could not possibly have pulled her over for this reason as he followed her tr uck for “five minutes” without any action. 62 Instead, the record reflects that less than a minute elapses between the start of the video, 63 where Appellant is seen driving on th e frontage road making her way to the Interstate, and when Offi cer Chadney initiates his ove rhead lights immediately behind Appellant on the Interstate. 64 Likewise, while Appellant incorrectly

59 See, e.g. , Elizondo-Vasquez v. State , No. 03-12-00774-CR, 2014 Te x. App. LEXIS 9174 (Tex. App.—Austin Aug. 20, 2014, pet. ref’d) (mem. op., not designated for publication) (not binding, but persuasive in that this Court upheld a st op for defective license plate illumination which resulted in finding 190 pounds of marijuana). 60 RR II:6-7 (on direct examinati on); RR II:30-31 (on cross examin ation, stating that while both lights were working, “they weren’t emitting enough light that would cove r them under the Texas state statute”). 61 State’s Exhibit 1 at 22:17:00. 62 Brief for Appellant at 10. 63 State’s Exhibit 1 at 22:08:07. 64 State’s Exhibit 1 at 22:09:00.14 maintains that “the officer did not turn of f his lights at any point during the time he was following the truck,” 65 Officer Chadney explicitly te stified that he did exactly that. 66 The record supports his testimony: the following image extracted from his dash camera recording demonstrates that Officer Chadney did in fact have his headlights off for several sec onds while following Appellant. 67 Appellant’s vehicle can be seen slightly ahead and to the left in the following image: 68

65 Brief for Appellant at 10.
66 RR II:25-26 (Officer Chadney testifying: “I actua lly turned my headlights off in order to give them the benefit of the doubt and verify that, you know, it’s not emitting enough light to be – to be seen by 50 feet”).
67 State’s Exhibit 1 at 22:08:12 to 22:08:19. 68 Extracted from State’s Exhibit 1 at 22:08:17, without adjusting th e software’s quality settings for contrast or brightness.15 Due to the resolution of the video and the li ght distortion inherent in filming at night, it is not possible to clearly determine from the footage how legibl e Appellant’s rear license plate actually was. It does, however, corroborate Officer Chadney’s testimony regarding his actions and Appellant’s admission of the offense, and does not contradict the trial court’s implicit fi nding that he had reasonable suspicion to initiate a traffic stop on Appellant’s truck. In this case, Officer Chadney had suffici ent, articulable facts that Appellant’s license plate was not sufficiently illuminated, and that it was not clearly legible at a distance of 50 feet. The trial court was entitled to find credible his testimony that he directly observed said violation as well as Appellant’s admission. Even if this was a pretextual stop, there still is an objectively reasonable basis for the stop, 69 and therefore, the trial court properly denied Applicant’s motion to suppress as to the traffic stop in this case. 70

II. Officers had reasonable suspicio n that Appellant possessed drugs to temporarily detain Appella nt while waiting for a canine unit to arrive In her second alleged ground for relief, Appellant asserts that this Court should disregard Texas cases regarding drug dog sniff searches and find that the drug

69 Crittenden v. State , 899 S.W.2d 668, 673-74 (Tex. Crim. A pp. 1995) (pretext stops with an objectively reasonable purpose are permissible). 70 See Ross , 32 S.W.3d at 855-56 (trial c ourt should be afforded almost total deference on appeal).16 dog search was unconstitutional as becaus e it “was not justified by reasonable suspicion related to the license plate light” and “calling in a drug dog is not reasonably related to a license plate light.” 71 The State construes these arguments to mean that Appellant is asserting that th e officers did not have reasonable suspicion to detain her while waiting for a drug dog to arrive a nd perform an open-air sniff search. Her arguments are misplaced, and in any case fail under the facts of this case.

A. Evidence gained during the duratio n of an otherwise justifiable temporary detention may give rise to reasonable suspicion of a different offense As an initial matter, reasonable suspic ion of one offense may be developed during a traffic stop for anothe r offense, so long as they do not extend the detention to do so. Appellant seems to argue that the dog sniff and extension for it was unreasonable because it was not justified given the reason for the stop. 72 “Beyond determining whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident to [the traffic] stop’.” 73 However, officers are not prohibited from exploring any new offenses they ma y discover during the stop. To the contrary, during the time it takes to complete those inquiries, an officer may

71 Brief for Appellant at 14. 72 Brief for Appellant at 14. 73 Rodriguez v. United States , 135 S.Ct. 1609, 1615 (2015) (quoting Indianapolis v. Edmond , 531 U.S. 32, 40-41 (2000)).17 also develop reasonable suspicion of anot her offense, thereby expanding the scope of the investigation to include the new offense. 74 In this case, Officer Chadney’s investig ation included those sorts of “ordinary inquiries” regarding the insufficiently illumina ted license plate until at least the point where he received driver license returns. 75 During that time, he made most if not all of the observations justifying extending the detention pending a canine unit. Therefore, Officer Chadney ri ghtly expanded the scope of his investigation from the traffic offense to a narcotic s-related investigation.

B. The officers in this case did have reasonable suspicion to extend the temporary detention to wait for a canine unit in light of location, Appellant’s dishonesty about her narcotics history, her visible nervousness starting after being asked about narcotics, and her passenger’s substantial narcotics history Secondly, officers did have reasonable su spicion to believe that drugs were present in the vehicle, and that reasonable suspicion provided them with a basis to extend the stop to wait for a drug dog to arri ve and perform an open-air sniff search in compliance with Rodriguez . While a dog sniff is not the sort of “ordinary inquiry,”

74 See, e.g. , Gougeau v. State , 209 S.W.3d 713, 719 (Tex. App.—H ouston [14th Dist.] 2006, no pet.) (not binding, but persuasive in that it reaches this conclusion after su mmarizing the law from other cases, and has been cited for this principle by this Court in Moreno v. State , No. 03-14- 00596-CR, 2016 Tex. App. LEXIS 6868, at *6 (Tex. App.—Austin June 30, 2016, no pet.) (mem. op., not designated fo r publication)). 75 State’s Exhibit 1 at 22:17:30 (officers st ill waiting on driver license returns).18 normally relevant to a traffic stop, one may be conducted so long as it does not “prolong” the traffic stop or when the of ficer has developed reasonable suspicion that there are illicit subs tances in the vehicle. 76 In other words, Rodriguez only prohibits drug dog sniffs if they extend an otherwise-completed traffic stop where no other reasonable suspicion exists wh ich would justify the drug dog sniff. 77 When an officer develops reasonable suspicion that controlled substances may be in a vehicle before extending a traffic stop, he may so extend the stop for a reasonable length of time to wait for a canine unit to arrive and conduct a sniff around the vehicle. In the instant case, Officer Chadney observed and testified about numerous observations he used to form reasonable su spicion that there were illegal drugs in Appellant’s truck the night of the instant offense. For example;

 First, Officer Chadney initially obs erved Appellant’s truck leaving Candlewood Suites, an area “well known” to law enforcement to be a “high crime area known for narcotics use.” 78 Officer Chadney himself had made arrests coming out of that hotel for narcotics-related activity. 79 While

76 Rodriguez , 135 S.Ct. at 1616-17 (explicitly remanding the case back to the Eighth Circuit to determine if there was individualized suspicion to extend the detention).
77 Rodriguez , 135 S.Ct. at 1614. 78 RR II:8-9. 79 RR II:8-9.19 Appellant is correct that this fact alone would not give him reasonable suspicion to imitate or extend the tra ffic stop, it may be considered as one of the facts he was aware of at the initiation of the detention. 80

 Second, Appellant lied a bout her criminal histor y, intentionally omitting any reference to her narcotics arrest, and drawing attention to her arrest for a theft-related offense. 81

 Third, Appellant became visibly nervous only after Officer Chadney inquired as to the presence of illegal narcotics in the truck. 82 This observation was bolstered by his te stimony that he had encountered Appellant only a couple of weeks befo re the instant stop when her truck had been struck by a drunk driver. In that encounter Appellant “wasn’t nervous at all,” and was calm, even after being involved in a traffic accident. 83 The night of the instant offe nse, Appellant’s demeanor only changed after Officer Ch adney asked if she ha d narcotics with her. 84

80 See, e.g. , Illinois v. Wardlow , 528 U.S. 119, 123-24 (200) (loca tion in a “high crime area” considered as a factor in upholding traffic stop); United States v. Arvizu , 534 U.S. 266, 273 (2002) (in evaluating reasonable suspicion, courts may al low officers to draw on their own training and experience). 81 RR II:9-10 (Officer Chadney only found out a bout the narcotics hist ory after requesting Appellant’s history from dispatch); see e.g. Hamal v. State , 390 S.W.3d 302, 308 (Tex. Crim. App 2012) (“Deception regarding one’s own criminal reco rd has also been recognized as a factor that can contribute to r easonable suspicion,”) 82 RR II:11-12. 83 RR II:12. 84 RR II:12.20 Officer Chadney directly questione d Appellant on he r nervousness on video that night, and Appellant expressed that she just wanted to leave. 85

 Fourth, Officer Chadney testified that he observed Appella nt’s pulse begin to race at that point as well, most visi bly seen in the artery on the left side of her neck. 86 Appellant attacks this obser vation at the hearing and on appeal, 87 but as referenced above, the video in this case is not of a high enough quality to observe how Appella nt’s hair was arranged while she was seated in the truck, or indeed if it would have obscured Officer Chadney’s view of her artery. 88 Even if this is construed as a conflict in the evidence, the trial court was entitled to resolve the conflict in favor of Officer Chadney’s observation and testim ony, particularly after being able to determine that he was cr edible during live testimony. 89

 Fifth, Appellant’s passenger and co -defendant also Ms. Browning was initially compliant, but exhibited the sa me sort of ner vousness and change

85 State’s Exhibit 1 at 22:20:30. 86 RR II:10-11; see e.g. Hamal 390 S.W.3d at 308 (citing past cas e law to note that nervousness, prior criminal record, and deception about that reco rd are all factors that a court may consider in evaluating reasonable suspicion). 87 RR II:16; Brief for Appellant at 11. 88 RR II:16; State’s Exhibit 1 at 22:15:45 89 See, e.g. , State v. Ross , 32 S.W.3d 853 (Tex. Crim . App. 2000) (trial judge may believe or disbelieve all or some of a witness’s testimony); Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) (reviewing courts should assume the trial court ma de findings consistent with its ruling and supporte d by the record).21 in demeanor when Officer Chadney asked her about narcotics, including that her heart began to race and her breathing became labored. 90

 Sixth, Ms. Browning also had a histor y of arrests, and “almost her entire criminal history” was comprised of narcotics offenses, primarily possession of marijuana and methamphetamine. 91
While none of these observa tions alone would constitu te reasonable suspicion of narcotics, when seen objectively in their totality, 92 the trial court did not abuse its discretion in ruling that there was reasona ble suspicion for officers to extend the temporary detention while waiting for a canine unit to arrive. Furt her, the total length of detention was certainly reasonable, with less than thirty minutes passing between the start of the traffic stop and the arrival of the drug dog. 93 Similarly, only about thirteen minutes elapsed between Officer Chadney telling Appe llant he was calling a canine unit and she was not free to leav e, and when that unit began its sniff. 94 Therefore, since the traffic stop in this case was pr oper and properly extended to

90 RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so nervous). 91 RR II:13. 92 United States v. Arvizu , 534 U.S. 266, 273 (2002) (court must evaluate reasonable suspicion under the totality of the circumst ances, including allowing officer s to draw on their own training and experience). 93 State’s Exhibit 1 at 22:09:00 (lights initiated), 22: 10:09 (vehicles stoppe d); 22:17:30 (still waiting on driver license re turns); and 22:38:00 (drug dog begins sniff around truck). 94 State’s Exhibit 1 at 22:25:00 (Appellant being detained pending canine unit); and 22:38:00 (drug dog begins sniff around truck).22 wait for a canine unit based on reasonable suspicion of possession of narcotics, Appellant’s conviction shoul d be affirmed on appeal.

PRAYER Wherefore, the State respectfully re quests that this Court affirm the conviction.
Respectfully submitted,
Jana Duty District Attorney Williamson County, Texas

/s/ Daniel Sakaida Daniel Sakaida Assistant District Attorney State Bar Number 24084601

405 Martin Luther King #1

Georgetown, Texas 78626 (512) 943-1248 (512) 943-1255 (fax) daniel.sakaida@wilco.org23 CERTIFICATE OF COMPLIANCE I certify that, after allowable exclusions , the State’s brief contains 4,901 words in compliance with Rule 9.4 of the Texas Rules of A ppellate Procedure.

__/s/ Daniel Sakaida______________ Daniel Sakaida

CERTIFICATE OF SERVICE I hereby certify that on November 15, 201 6, I electronically filed the foregoing document with the clerk of the court for th e Texas Court of Criminal Appeals, using the efile.txcourts.gov system. Via that sy stem, a “Notice of Electronic Filing” was sent to Appellee’s appellate attorney of record, Lisa Mims, P.O. Box 141218, Austin, Texas, 78714-1218, at lisamariemims@gmail.com

_/s/ Daniel Sakaida_______________ Daniel Sakaida