NO. 07-04-0406-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B MAY 31, 2006

______________________________ RICARDO SERBANTEZ, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 121 ST DISTRIC T COURT O F TERRY COUNT Y; NO. 5065; HON ORABLE KELLY G . MOORE, JU DGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION Appellant

Ricar do Serbantez appeal s the trial court’s deni al of his motion to suppress evidence of

the cocaine found i n his vehi cle. We will affirm the dec ision of the trial cour t. Appellant

was stopped by Officer Torr es of the Brow nfiel d Po lice Depart ment for speedi ng. Officer Torres a sked appellant for his driver’s license and proof of insur ance. W hile appellant sear

ched for the documents, Torres noted appellant l ooked nervous and2

appellant

was shaking w hen he ha nde d the off icer h is lice nse. Torre s fu rthe r not ed th e two passengers in appellant’ s vehicl e would not look at him. H e recognized one of the passengers , D ebbie DeLeon, from a pr evious ar rest for drug -related char ges. Torres asked appellant to ex it the vehicle be c ause he was acting nerv ous and noted appell ant paced nervous ly as they spoke. Officer Torres th en questioned M s. DeLeon about the purpose of their t rip and asked her

if there wasany ill egal contra band. DeLeon hesi tated, then respond ed, “Not on me.” The officer returne d to appellant and requested permis sion to search the vehicle. Appellant

refused. Torresthen detained appel lant and his passengers for approximately ten to fifteen minutes unti l Corporal Cavat ar rived w ith a canine trained to detect drugs by scent. During the open air sni ff around appellant’s vehicle, the dog alerted to the vehic le. Officer Torres and Corporal Cavat then searched th e vehicle and found two bag gies containing a white pow dery substance later confirmed to be cocaine. Torres pl aced appellant under a rrest for poss ession of a contr olled substance. The trial court held a hearing on appellant’s mot ion to suppress evidence obtained as a result of the de tention and searc h of the vehicl e. After hearing testimony of w itnesses and argument, the court de nied appellant’s motion . In so doing, the trial court entered a finding on the record that “the inflec tion in the officer’s voice when he testified the words, ‘Not on me’ that [Ms. DeLeon] related to him led me to believe t hat he believed and it wa s reasonable for him to believ e that she was telling him that they were in there b ut not on her

. . . ,” a nd “so I am go ing to go ahead and make a finding that I believe the way the statement

came to the off icer he was reasonable in believi ng that she w as indicatin g to him1 Appellant does n ot contest the pr opriety of the original stop of the vehi cle. 3 thatthere were dru gs in the vehicle. ” Appellant p led guilty to possession of a controlled sub stan ce and was assessed a sentence by the court that included seven years confinement in the Ins titutional D ivisio n of the Texas Depar tment of Criminal Justice.
In review ing a rul ing on a motion to suppress, we give “almost total deference to a trial court’s determination ofthe historical facts that the reco rd supports especially when the tr ial c ourt’s fact findi ngs are based on an evaluat ion of credibil ity and demeanor .” Guzman v. State , 955 S. W.2d 85, 89 ( Tex. Crim. App. 1997 ). W e revie w de novo the court’s application of the law of search and sei zure. Carmouch e v. State , 10 S.W.3d 323, 327 (Tex.Cr im.App. 2000).
In general, t he decision to stop an automobile is reasonable when t he po lice h ave probable cause to believe a traffic viol ation has occurred. Wolf v. State , 137 S.W.3d 797, 801 (Tex.App.–Waco 2004, no pet.). In th is ca se, the stop was appropriate because appellant

was trav

eling 37 mile s per hour i n a posted 30 mile per hour z one. 1 However, an investi gative d etention must be tempor ary and last no longer tha n is necessar y to effectuate the purpose of the stop. Davis v. St

ate , 947 S.W.2d 240, 243 (Tex.Cri m.App. 1997). Once the reas on for the stop has b een satisfied, the stop may not be us ed as a fishing ex pedition for unrel ated criminal activit y. Id

. Appellant arg ues the continued detention for ten tofifteen minutes after the i nitial pu rpose of the stop ended was unreasonable. He also conte nds the decisi on to detai n them to wait for t he ca nineuni t w as “ base d upo n thener vou snes s of A ppe llant and his4

passenger

and the passeng er’s respons e to questions from the officer.” Appellant ar gues nervousness is insufficient to justify detention. We agree that nerv ousness may

be a weak indicator of hidden narcotic

s. M cQ uarters v. S tate , 58 S.W .3d 250, 257 (Tex.App. –Fort Worth 2001, pet. ref’d). However, our agreement w ith appellant en ds there.
An officer is generally justified in briefly detaining an individual on less than probable cause fo r t he purposes of investigating possible criminal behav ior wher e the officer can “point to specific and articulablefacts, whic h, taken together with r ational inference s from those facts, reasonabl y warrant [the] intrusion.” Carmouch e , 10 S.W .3d at 3 28 (citin g Terry
v. Ohio , 392 U.S. 1, 16 (1968)); see also Mohmed v. State , 977 S .W.2d 624, 628 (Tex.App.–Fort Worth 1998, pet. ref’d) (an officer is entitled to rely o n all of the informati on obtained during the course of contact w ith the citi zen in developing the articul able facts that would justify a continued investigatory detention). “A stop may notexceed its permissible durat ion unless the officer ha s reasonable suspicion ofcriminal activity . . . if the in itial , routine questioning generates reasonable suspicion of other crimi nal activ ity, the s top may be lengthened to a ccommodate its new justificati on.” Wolf

, 137 S.W.3d at 803-04 (citing United States v. Portillo-Aguirre , 311 F.3d 647, 653 (5 th Cir. 2002) ); see also McQuarters , 58 S.W.3d at 260 (stating “additional facts and information di scovered by an officer during a lawful detention may form th e basis for a reasonable suspicion that an other offen se has been or is being committed”). In this case, the initial rout ine questioning of appellant’s passenger

generated a r

easonable suspic ion of other criminal activit

y. Id . W e lend almost total deference to the trial court’s finding that the manner i n which th e statement “Not on me” came across to O fficer Torres provided him an objectivel y reasonabl e basis for5

believing that Ms. DeLeon was i ndicating to him that there w ere drugs in the vehi cle. Guzman , 955 S.W.2d at 89.
Asniff of the outside of a vehicle by a trained canine is not a se arch w ithin the meaning of

the Fourth Amendment. Mohmed, 977 S.W .2d at 628. Thus, the temporary detention of a vehicle to allow an olfactory inspection by a police dog trained to detect the odor of illegal drugs is not offensive to the Fourth Amendment w hen based on a reasonable suspicion t hat the automobile contains narcoti cs. Id . Under the c ircumstances present here, Officer Torres held a reaso nable suspicion the vehicle contain ed illegal drugs based on DeLeon’s statement. Overrul ing appellan t’s sole i ssue, we affirm the judgment of the t rial court

.

James T. Campbell Justice
Do not publish

.