Opinion filed July 25, 201 3



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 11

- 00 1 9 3

- CR

__________ CARL DARHAL EVANS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 350 th District Court
Taylor County, Texas

Trial Court Cause No . 9597

- D

M E M O R A N D U M O P I N I O N The jury convicted Carl Darhal Evans of possession of a controlled substance and assessed his punishment at twenty years ’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000
fine. In his sole issue on appeal, A ppellant complains that the trial court erred in denying his motion to suppress. We affirm.2 Background Facts
Officer Christopher Collins of the Abilene Police Departm ent testified that
he observed A ppellant parked outside a residence at 1:30 a.m. on April 2, 2010.
O fficer Collins testified that the residence is well known as a location where the trafficking of illegal na rcotics occurs. Appellant was sitting inside his car talking
to a male outside of the residence. As A ppellant drove away from the residence,
Officer Collins observed him commit two traffic violations. Officer Colli ns initiated a traffic stop of A ppellan t upon observing the traffic violations. He
testified that
, at the time of the stop , he suspected that Appellant was engaging in illegal drug activity. Appellant drove ten blocks before stopping his vehicle. After
A ppellant came to a stop, Officer Collins called for Officer Thomas Joel Peavy III , a “K

- 9” officer, to report to the scene to conduct an open air search of A ppellant’s vehicle with a drug

- detection dog. Officer Peavy had the dog conduct an open air
search around the vehicle, and the dog alerted on the driver’s side door of the vehicle. Officer Peavy testified that he searched the vehicle and found a rock of
crack cocaine located within a s lit in the driver’s side seat. Standard of Review
We review a tri al court’s ruling on a motion to suppress for an abuse of
discretion. Martinez v. State , 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Lujan v. State , 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). In reviewing a ruling on a motion to suppress, we apply a bif urcated standard of review.
Martinez , 348 S.W.3d at 922

– 23; Hubert v. State , 312 S.W.3d 554, 559 (Tex.
Crim. App. 2010). First, we afford almost total deference to the trial court’s determination of historical facts and of mixed questions of law and fact that turn on the weight or credibility of the evidence. Martinez , 348 S.W.3d at 922

– 23; Lujan , 331 S.W.3d at 771. Second, we review de novo the trial court’s determination of pure questions of law and mixed questions of law and fact that do not depend o n3 credibility determinations. Martinez , 348 S.W.3d at 923. Thus, we review de novo the issue of whether the totality of the circumstances was sufficient to support an officer’s reasonable suspicion to make a stop. Madden v. State , 242 S.W.3d 504, 517 (T ex. Crim. App. 2007). Analysis Appellant does not challenge Officer Collins’s basis for initiating the traffic stop in light of the evidence that the officer observed A ppellant commit two traffic
violations. A law enforcement officer may lawfully stop a motorist who commits a
traffic violation. Garcia v. State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992);
Haas v. State , 172 S.W.3d 42, 50 (Tex. App.

— Waco 2005, pet. ref’d). In general, the decision to stop an au tomobile is reasonable when an officer has probable
cause to believe that a traffic violation has occurred. Walter v. State , 28 S.W.3d 538, 542 (Tex. Crim. App. 2000); Haas , 172 S.W.3d at 50. Appellant complains that Officer Collins did not have a valid ba sis to request an open air sniff by a drug

- detection dog. We addressed a similar
contention in Johnson v. State , 323 S.W.3d 561, 563

– 64 (Tex. App.

— Eastland 2010, pet. ref’d). Citing Illinois v. Caballes , 543 U.S. 405 (2005), we held that a
canine sniff conducted during a lawful traffic stop is not a search under either the Fourth Amendment or Article I, section 9 of the Texas c onstitution. Accordingly, an officer is not required to have reasonable suspicion justifying a canine sniff during a lawful tra ffic stop. Caballes , 543 U.S. at 409; s ee Johnson , 323 S.W.3d at
563

– 64. Appellant additionally contends that Officer Collins did not have a sufficient basis for continuing to detain him until the K

- 9 officer arrived. An investigatory
detention is reas onable, and therefore constitutional, if (1) the officer’s action was justified at the detention’s inception and (2) the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Terry v.4 Ohio , 392 U.S. 1, 19

– 20 (1968). The second prong of Terry deals with the scope
of the detention: “[A]n investigative detention, ‘like any other search, must be strictly circumscribed by the exigencies which justify its initiation.’” Davis v.
State , 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (quoting Terry , 392 U.S. at
25

– 26) . A routine traffic stop includes investigation of the suspected offense as
well as a license and warrant check. Kothe v. State , 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). A traffic

- stop investigation is not fully resolved until after a computer check of the license and warrant status of the driver is completed and the officer
knows that this driver has a valid license and no outstanding warrants and that the
car is not stolen. Kothe , 15 2 S.W.3d at 63

– 64, 65. Once the reason for a routine traffic stop is resolved, the stop may not then be used as a fishing expedition for unrelated criminal activity. Davis , 947 S.W.2d at 243 ( citing Ohio v. Robinette
, 519 U.S. 33, 41 (1996) (Ginsburg, J. , concurring)). R easonable suspicion that another offense was or is being committed is required to prolong the detention.
Lambeth v. State , 221 S.W.3d 831, 836 (Tex. App.

— Fort Worth 2007, pet. ref ’ d); McQuarters v. State , 58 S.W.3d 250, 256 (Tex. App.

— For t Worth 2001, pet.
ref ’d).
A review of the video taken of Officer Collins’s traffic stop of A ppellant
reveals that he followed A ppellant for approximatel y twenty

- five seconds prior to
A ppellant stopping. Officer Peavy arrived at the location within three minutes of
Officer Collin s ’s initial contact with A ppellant
, and Officer Peavy conducted the open air sniff within approximately thirty seconds of arriving at the scene. During the few minutes prior to Officer Peavy’s arrival, the video depicts Offic er Collins making contact with A ppella nt, obtaining information from A ppellant, and returning to his patrol unit. Appellant testified at the suppression heari ng that he
did not have a valid driver’s license. Accordingly, t he evidence shows that Officer
Collins’s traffic

- stop investigation was not fully resolved prior to the open air sniff5 conducted by Officer Peavy’s dru g

- detection dog. W e conclude that the duration of the stop was not unduly prolonged prior to the open a ir sniff and the subsequent discovery of a controlled substance within Appellant’s vehicle. Appellant’s sole
issue is overruled. This Court’s Ruling
We affirm the judgment of the trial court

.

TERRY McCALL
JUSTICE

July 25 , 2013 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson , J.