### 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. 03-13-00724- CR
Stephen Tracy Mer edith, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B URNET COUNTY , 424 TH JUDICI AL DISTRICT

NO. 412 86, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Following the t rial court’s denial of appellant St ephen Trac y Mere dith’s motion to suppress, a jury convicted appellant of possession of less than one g ram of coca ine, a state-jail felony , which was enhanc ed to a third-deg ree felony due to appellant’ s two previous state-jail felony convictions. The jury assessed punishment at six y ear s’ imprisonment and a $6,000 fine. I n a single issue, appellant challeng es the trial court’s denial of his motion to suppress. We will aff irm the trial court’s judg ment.
BACK GR OUND

The rec ord shows that on J une 7, 2012, investiga tors with the Bur net Police Depa rtment observe d appellan t i n a ca r wa i ting at a g as pump in Marble Fa lls for a man whom office rs knew to be the subject of narc otics investiga tions. I nvestig ators observe d eac h of the men drive awa y in separ ate car s but in the same direc tion. One of the investiga tors identified both menby sight and then used a databa se to chec k the status of the men’s driver’ s licenses. The investigator

deter mined that neither appellant nor the other man had a valid driver’ s license. As a result, investiga tors stopped both men. I nvestig ators arr ested appellant for driving without a valid driver’ s license and then conducte d an inventory of his vehicle. During the sear ch, they found a pipe that was known by investiga

tors as one commonly used to smoke cra ck coca ine and two bag g ies containing residue from an u n known substance. After the completion of the inventory sear ch, office rs impounded appellant’ s car .

That same day , whil e appellant’s car was in the impound lot, an office r broug ht a trained police dog to circ le the car and indicate if the dog detec ted narc otics. The dog aler ted to the prese nce of narc otics near the driver’ s side door. Ba sed on the dog ’s aler t, office rs sear ched the car but did not find any

narc otics. I n the day s following the sea rch, a ppellant made se vera l c alls to the impound lot to

arr ang e to pic k up his c ar, but he could not af ford to g et his car rele ased. I nstead, he asked that he be allowed to g o to the impound lot and remove cer tain persona l items from the car . Approxim ately ten day s afte r the impoundment of the car , appellant went to the impound lot with a friend to g et the persona l items. The owner of the impound lot, Gar ry Adams, was prese nt at the time. Adams was also a lawenfor ceme nt office r and w as cur rently serving as a c onstable in Bur net County

. Adams observe d appellant g et into the passeng er seat of the car and take items from the car while appella n t’s friend took items from the back of the car . Adams further observe d appellant tugg ing at the ce iling of the car betwee n the driver’s s eat and passeng er seat. Appellant

seeme d to be try ing to pull down the console itself, at the spot wher e the console met th e ce i l i ng

2upholstery

. Adams observed t hat ap p el l an t seeme d “kind of nervous” as he continued to g o back

to that same spot afte r intermittently looking in other are as of the car and looking at Adams. Adams twice asked appellant to stop pulling at the upholstery of the car beca use Adams did not want the car to be damag ed while it was in his posse ssion. Appellant eventua lly stopped pulling on the ceiling , g ather ed items from the c ar, and left with his friend. A fter a ppellant left, Ada

ms contacte d police office rs and told them he believed that appellant had been try ing to acc ess contra band hidden in the ceiling of the car . Offic ers arr ived at the lot the following day

. They pulled at the same spot in the

ce i ling wher e appellant had been pulling, and a small bag containing an off- white-c olored ro ck

s u bstance beca

me vi sible. Offic ers sent the s ubstance to the l ab for testing, and the l ab identified the substance as 0.14 g rams of c ocaine

.

The S tate subsequently char g ed appellant with possession of less than one g ram of

coca ine. I n a pre- trial hear ing, appellant urg ed his motion to suppress, which the trial court denied. After a trial, a jury convicted appellant of the char g ed offe nse, found two previous state-jail felony convictions true, sentenc ed appellant to six y ear s in prison, and assesse d a $6,000 fine. Appellant appea ls from the trial cour t’s denial of his motion to suppress.

STANDARD OF REVIEW We revie w a trial court’s ruling on a motion to suppress under an abuse of discretion standard. Crain v. State , 31 5 S

. W

. 3 d 43, 48 (Tex. Crim. App. 2010). I n doing so, we view the evidenc e in the l ight most favor able to the t rial court’s ruling

. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013). We g ive defe renc e to the trial court’s deter mination of historical fac ts, espec ially if those are based on an assessme n t o f cre dibilit y and demea nor. Arguellez v. State , 3409 S.W .3d 657, 662 (Tex. Crim. App. 2013). We aff ord the same defe renc e to ruling s on application of the law to questions of fac t and to mix ed questions of law and fac t if resolution of those questions depends on an assessment of cre dibilit y and demea nor of witnesses. Id

. We revie w de novo pure questions of law and mix ed questions of law and fac t that do not depend on evalua ting

cre dibilit y

and deme anor. Martinez v. State , 348 S.W .3d 919, 923 (Tex. Crim. App. 2011).

WARRAN TLE SS S EARCH Evidence seized by police without a war rant is admissible only if an exception to the Four th Amendment’s war

rant require ment applies. Neal v. State , 256 S.W .3d 264, 282 (Tex. Crim. App. 2008). I t is undisputed that the final sear ch of appellant’ s car was conducte d without a war rant. Acc ording ly , the burden shifts to the State to prove the applicability of an exception to the war rant require ment. See W

i ed e v. State , 214 S.W .3d 17, 24 (Tex. Crim. App. 2007); Russell v. State , 717 S.W .2d 7, 9-10 (T ex . C ri m. App. 1986) , disapproved on other grounds by Handy v. State , 189 S.W .3d 296 (Tex. Crim. App. 2006).

I f there is probable cause to believe a car contains evidenc e of cr iminal activity , office rs may proper ly sear ch any ar ea o f the car in which the evidenc e may be found. Arizona

v. Gant , 556 U.S. 332, 347 (2009). We use a totality -of- the-c ircumstance s analy sis in deter mining whether probable cause exis ts. See W iede , 214 S.W .3d at 25; W haley v. State , 686 S.W .2d 950, 951 (Tex. Crim. App. 1985). I n revie wing whether the office rs here had probable cause , we defe r to the trial court’s express or implied deter mination of historical fac ts, an d we revie w de novo the trial court’s a pplication of the lawto the fac ts. See W iede , 214 S.W .3d at 25.

4Probable cause exis ts wh en the totality of fac ts and circ umstances known to the

office rs is sufficie nt to war rant a belief by a p erson of rea sonable prudenc e that contra band or evidenc e of a crime will be found in the place to be sear ched. See id

. at 24. Fa cts and circ umstances persona lly known to an office r encompa ss the office r’s “tra ining, knowledg e, and experience .” See id

. Probable c ause ma

y be based on an office r’s training and investiga tive experience

. See Keehn

v. State , 279 S.W .3d 330, 336 (Tex. Crim. App. 2009). Whil e furtive g estures alone do not establish probable cause , a combination of furtive g estures and other fac ts can establish probable cause under the totality -of- the-c ircumstance s analy sis. See W iede , 214 S

. W

. 3d at 25-28; Smith v. State , 542 S.W .2d 420, 421-22 (Te x . Crim. App. 1976).

DISCUSSIO N Appellant conce des that the police had probable cause to sear ch his car afte r the dog aler ted to the prese nce of narc otics but arg ues that the probable cause beca me stale during the approximately ten day s that passed betwee n the dog ’s aler t and appellant ’s furtive g estures. Appellant contends that the office rs wer e there fore require d to obtain a sear ch war rant befor e conducting a fur

ther sea rch of the ca r. Appellant is corr ect that the officers had probable cause to search his car when the dog aler ted to the prese nce of narc otics in the car . See Parker v. State , 182 S.W .3d 923, 924 (Tex. Crim. App. 2006); Branch v. State , 335 S.W .3d 893, 901 (Tex. App.—Austin 2011, pet. ref ’d) (“The law is well es t ablished t hat as soon as a drug -dete ction dog aler ts on a car, officer s have probable

cause to sear ch the car without a war rant.” ). Fur

ther, the fac t that a car is impounded at the time that

5probable cause develops does not inhibit an officer ’s right t o conduct the warrantless searc h. See

Florida v. Mey ers , 466 U.S. 380, 382 (1984); Michigan v. Thomas , 458 U.S. 259, 261 (1982) (noting that “the justification to conduct

. . . a war rantless sear ch does not vanish once the car has been immobiliz ed”)

.

Her e, the evidenc e shows that a trained police dog aler ted to the prese nce of narc otics in the car afte r the car was towed to the impound lot. A subsequent sear ch of all of the ty pical compar tments of the car did not y ield narc otics, but appellant later went to the impound lot and was observe d by a trained peac e office r to be nervous and pulling on an are a of the ceiling that was not

a ty pical compar

tment opening

. Adams, the impound-lot owner , testified that he had been a cer tified peac e office r since 1993. Among other law-e nforc ement jobs he held during his car eer , Adams had worke d for the Bur

net County Sheriff’ s Offic e for approximately eig ht y ear s and the Bur net Police Depa rtment for approximately eig ht y ear s. During his y ear s in law enfor ceme nt, Adams had stopped

numerous people who wer e conce aling drug s in hidden compar tments in their car s. He testified that such hidden c ompartments wer e “pr etty ty pical.” Adams testified that his towing business and impound lot are reg ulated by the Texas Depa rtment of L icense s and Reg ulations and that all ca rs towed to his impound lot are require d to be locked and secur ed in a fenc ed, restric ted are a. He testified that he kee ps all of the ca r key s for the impounded ca

rs in a lockbox in his business office

. Given the tot al i t y of the circ umstances—including the dog ’s aler t indicating the prese nce of narc otics; the car ’s secur e location in a restric ted are a with the key s in a lock box ; appellant’ s furtive g estures indicating to Adams, a trained police office r, that the narc otics wer e

6located in a hidden compar tment; Adams’s observa tion of appellant leaving without removing any items from the suspected hidden compar tment; and the car ’s continued secur e location in a restric ted

are a with the car key s in a lock box —the evidenc e is su ff i ci en t t o war

rant a belief by a person of

rea sonable prudenc e that contra band would be found in appellant’ s car at the time of the final sear ch of the car . See Parker , 182 S.W .3d at 924 (dog ’s aler t cre ate s p ro b ab le cause to sear ch); Keehn , 279 S.W .3d at 336 (proba

ble cause may be based on office r’s training and investiga tive experience ); Smith , 542 S.W .2d at 421-22 (fur tive g estures can combine with other fac t s t o create probable

cause ). The circ umstance that appellant relies on so heavily in his brief—tha t approximat el y t en day s passed betwee n the dog ’s aler t and appellant’ s furtive g estures—doe s not chang e the result of our totality -of- the-c ircumstance s analy sis because the evidenc e shows that the c ar w as locke d and

secur ed in an impound lot the entire time. Acc ording ly , office rs had probable cause to sear ch 1

Appellant cites Stat e v. C l a ck , No. 13-13-00345- CR, 2014 WL 4494512 (Tex. 1 App.—Corpus Christi, Sept. 11, 2014, pet. ref ’d) (mem. op., not desig nated for p u b l i cation) in support of his arg ument that the proba ble ca use that arose due to the dog aler t became stale by

the time of the final sear ch of his car . Howeve r, Clack is disting uishable from this c ase. I n Clack , the court g rante d the suspect’s motion to dismiss b ec au s e t h e only evidenc e supporting a belief that evidenc e of a crime would be discovere d in the suspect’s car was evidenc e that the suspect was seen driving in the car more than two wee ks befor e his arr est with items that could be evidenc e of a crime and then was seen driving in the car one more time. Id

. at *6. At the time of the arr est, the suspect’s car was not near him and was parke d in a parking lot. Id

. at *2. There was no evidenc e of wher e the car had been in more than two wee ks other than the two sighting s of the suspect driving the car . Given the evidenc e in Clack , the court deter mined that a rea sonable office r could not expect that the car would still contain evide nce of a cr ime that occur

red more than two wee ks ear lier. Id . at *6. Her e, as explained a

bove, appe llant’s car

rema ined within a sec ure impound lot dur ing the entire time betwee n the dog ’s aler t and appellant’ s furtive g estu re s . Appellant’s car then further rema ined secur e within the impound lot betwee n the time of appellant’ s furtive g estures and the final sear ch of the car . Unlike the office rs i n C lack , the office rs here had ever y rea son to believe that contra band would still be prese nt in appellant’s ca r. 7appellant’ s car afte r appellant was observe d making furtive g estures, and the trial court did not abuse

its discretion in deny ing a ppellant’s motion to suppress.

CONCLUSION Be cause we c onclude that the tr ial court did not err in deny ing a

ppellant’s motion to suppress, we a ffirm the tria l court’s judg ment of convic tion.

_______________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Oc tober 15, 2015 Do Not Publish

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