Opinion filed September 2, 2021

In The

Eleventh Court of Appeals __________

No. 11-20-00144-CR

__________

THE STATE OF TEXAS, Appellant

V.

BRANDON NICHOLAS MARTINEZ, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR26667

O P I N I O N

On June 25, 2018, after a traffic stop, Appellee, Brandon Nicholas Martinez, 

was arrested, and later indicted by a grand jury, for possession of a controlled 

substance, namely Tetrahydrocannabinol (THC), other than marihuana, in an 

amount of less than one gram. See TEX.HEALTH &SAFETY CODE ANN. § 481.116(a), 

(b) (West 2017). Appellee filed a motion to suppress and contended that the actions 

taken by law enforcement personnel in seizing THC from the vehicle that he had 
2

operated on that date violated his Fourth Amendment rights. After a hearing and 

considering the evidence, the trial court granted Appellee’s motion. 

The State now appeals the trial court’s grant of Appellee’s motion to suppress 

evidence.1 In two issues, the State asserts that the trial court erred when it 

(1) determined that “there were no separate articulable facts supporting reasonable 

suspicion or probable cause of any other crime apart from the traffic infraction” and 

(2) created a “per se” time limitation for the arrival of a canine unit and then ruled 

on this issue after it was raised for the first time by Appellee’s trial counsel during 

his closing argument. For the reasons discussed below, we reverse and remand.

I. Factual Background

On the day of Appellee’s arrest, Officer Roberto Rodriguez, a four-year 

veteran of the Brownwood Police Department, observed Appellee driving a vehicle 

on Highway 377 in Brownwood. Officer Rodriguez was familiar with Appellee

because he had, within the past year, arrested Appellee for possession of marihuana.

Appellee pulled into a gas station, and Officer Rodriguez followed in his patrol unit.

Appellee did not exit the vehicle that he was driving; rather, he left and drove to 

another gas station that was approximately one-half of a mile away. According to 

Officer Rodriguez, Appellee committed a traffic violation when he failed to signal 

his intention to turn at least one hundred feet before turning left onto the premises of

the second gas station. See TEX. TRANSP. CODE ANN. § 545.104(b) (West 2011).

Upon observing Appellee’s traffic violation, Officer Rodriguez activated his 

emergency overhead lights and initiated a traffic stop; the vehicle operated by 

Appellee eventually stopped at one of the fuel pumps, with the vehicle’s fuel cap

facing away from the pump. Appellee immediately exited the vehicle that he had 

been driving without being prompted to so do, which Officer Rodriguez testified 

1

In a criminal case, the State is entitled to appeal an order of a trial court if the order grants a motion 

to suppress evidence, the prosecuting attorney certifies to the trial court that the appeal is not taken for the 

purpose of delay, and the suppressed evidence is of substantial importance in the case. TEX. CODE CRIM.

PROC. ANN. art. 44.01(a)(5).
3

was a very unusual gesture given the circumstances. Officer Rodriguez then exited 

his patrol unit, approached Appellee, and introduced himself. Before Officer 

Rodriguez could explain the reason for the traffic stop, Appellee interrupted and

thanked Officer Rodriguez for arresting him previously because, according to 

Appellee, the arrest had changed his life. Another Brownwood police officer, 

Officer Patrick Weaver, arrived shortly thereafter as backup to Officer Rodriguez.

After Appellee had spoken to Officer Rodriguez for almost an entire minute, Officer 

Rodriguez explained the reason for the traffic stop to Appellee and asked Appellee 

to produce his driver’s license, vehicle registration, and proof of insurance. As 

Appellee retrieved these items, he continued to speak about his previous arrest by 

Officer Rodriguez, how the arrest had affected his life, and the probation that he was 

still serving because of the arrest.

Meanwhile, Officer Rodriguez was informed by dispatch that the vehicle 

Appellee had been driving was registered to someone other than Appellee. When 

confronted with this information, Appellee claimed that he had purchased the vehicle 

several years prior but could not explain why it was still registered to someone else.

After Officer Rodriguez told Appellee that he would only receive a warning, and not 

a traffic citation, Officer Rodriguez asked Appellee if he had anything illegal in the 

vehicle. Appellee stated that he did not. Officer Rodriguez then requested, and 

received, consent to search Appellee. Subsequent to the search of Appellee’s person, 

Officer Rodriguez requested, and received, consent to search the vehicle that 

Appellee had been driving. However, immediately after consenting to the search of 

the vehicle, Appellee, who was now speaking to both Officer Weaver and Officer 

Rodriguez, stated that he believed that Officer Rodriguez had violated his rights and 

had intended to follow him from the first gas station to the second gas station.

Officer Rodriguez then opened the vehicle’s driver’s side door, but, before 

proceeding further, he noticed that Appellee was still slightly agitated and 

was continuing to complain to Officer Weaver. Consequently, Officer Rodriguez 
4

asked: “Do you want me to stop?” Appellee nodded and responded with a gesture 

that indicated to Officer Rodriguez that he should move away from the vehicle, 

which he immediately did. 

Officer Rodriguez then asked Appellee if he would roll down one of the 

vehicle’s windows. Appellee refused and predicted that, if he did roll down a 

window, Officer Rodriguez would have a canine called to the scene to “sniff” the 

vehicle and that Officer Rodriguez would then find a reason to search it. Based on 

the nature of his encounter with Appellee and the suspicions that he had developed, 

Officer Rodriguez called in a request for a canine unit. According to Officer 

Rodriguez’s testimony and the reproduced copy of the dashcam video from his patrol 

unit that was admitted at the suppression hearing, no more than ten or eleven minutes 

had elapsed from the time that Officer Rodriguez initiated the traffic stop to the time 

that he requested a canine unit. 

At the time, the closest available canine unit was in the neighboring town of 

Early. Thirty-eight minutes later, the canine unit from Early arrived, and the canine

immediately proceeded to conduct an open-air sniff around the vehicle that Appellee 

had been driving. The canine alerted on the vehicle in less than one minute, and the 

officers thereafter searched the vehicle. During the search, Officer Rodriguez 

mirandized2 Appellee and later asked him if there was any marihuana in the vehicle. 

Appellee stated that he had smoked marihuana in that vehicle for years, and that he 

was sure there were either trace amounts, resin, or a “roach” inside the vehicle. As 

a result of the search, THC was discovered in the vehicle by the officers.

II. Standard of Review

We review a trial 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). In 

reviewing a ruling on a motion to suppress, we apply a bifurcated standard of review. 

2

See Miranda v. Arizona, 384 U.S. 436 (1966).
5

Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Martinez, 348 

S.W.3d at 922–23. We give almost total deference to the trial court’s determination 

of the historical facts that the record supports, especially when the trial court’s fact 

findings are based on an evaluation of credibility and demeanor. Derichsweiler v. 

State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011); Amador v. State, 221 S.W.3d 

666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. 

Crim. App. 1997)). We also defer to the trial court’s findings as to questions of fact 

and mixed questions of law and fact that turn on the weight or credibility of the 

evidence. Brodnex, 485 S.W.3d at 436; Wade v. State, 422 S.W.3d 661, 666–67

(Tex. Crim. App. 2013); Derichsweiler, 348 S.W.3d at 913.

We review de novo the trial court’s determination of pure questions of law,

the application of the law to established facts, and the legal significance of those 

facts. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Wade, 422 

S.W.3d at 667; Derichsweiler, 348 S.W.3d at 913; Kothe v. State, 152 S.W.3d 54, 

62 (Tex. Crim. App. 2004) (citing United States v. Sharpe, 470 U.S. 675, 682 

(1985)). We also review de novo mixed questions of law and fact that are not 

dependent upon credibility determinations. Brodnex, 485 S.W.3d at 436; 

Derichsweiler, 348 S.W.3d at 913 (citing Amador, 221 S.W.3d at 673). 

When, as in this case, the trial court makes explicit findings of fact, we 

determine whether the evidence, when viewed in the light most favorable to the trial 

court’s ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. 

Crim. App. 2006). In that context, we review a trial court’s ruling on a motion to 

suppress in the light most favorable to the trial court’s decision, regardless of 

whether the trial court granted or denied the motion. Wade, 422 S.W.3d at 666 

(citing State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011)); Wiede v. 

State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). As such, we will sustain the trial 

court’s ruling if it is supported by the record and if it is correct under any applicable 

legal theory. Lerma, 543 S.W.3d at 190.
6

III. Analysis

The Fourth Amendment to the United States Constitution guarantees 

protection against unreasonable searches and seizures. U.S. CONST. amend. IV; 

Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). These constitutional

protections extend to investigatory stops of persons or vehicles that fall short of a 

traditional arrest. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 

2017) (citing United States v. Arvizu, 534 U.S. 266, 273 (2002)). A warrantless 

traffic stop by law enforcement personnel to address traffic violations constitutes a 

seizure within the meaning of the Fourth Amendment and is tantamount to a 

temporary detention; therefore, the traffic stop must be justified and supported by 

reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7 (1989); Berkemer v. 

McCarty, 468 U.S. 420, 439 (1984); see Derichsweiler, 348 S.W.3d at 914 (citing 

Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005)). 

Reasonable suspicion for a detention exists if a law enforcement officer has 

specific, articulable facts, in light of his experience and personal knowledge,

combined with rational inferences from those facts, that would lead the officer to 

reasonably conclude that the person detained has engaged in, is presently engaging 

in, or soon will engage in criminal activity. Derichsweiler, 348 S.W.3d at 914 (citing 

Sokolow, 490 U.S. at 7); Crain v. State, 315 S.W.3d 43, 52–53 (Tex. Crim. App. 

2010); see Terry v. Ohio, 392 U.S. 1, 21–22 (1968). This is an objective standard 

that disregards the actual subjective intent of the detaining officer and focuses, 

instead, on whether there was an objectively justifiable basis for the detention. 

Terry, 392 U.S. at 21–22; York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 

2011); Derichsweiler, 348 S.W.3d at 914. When we evaluate whether reasonable 

suspicion exists, we consider the totality of the circumstances from an objective 

standpoint and whether the totality of the objective information available to the 

detaining officer indicates that the officer had a particularized and objective basis to 

suspect wrongdoing. Ramirez-Tamayo, 537 S.W.3d at 36; Derichsweiler, 348 
7

S.W.3d at 914–916 (citing United States v. Cortez, 449 U.S. 411, 417–18 (1981)); 

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). This consideration 

includes “both the content of information possessed by police and its degree of 

reliability.” Alabama v. White, 496 U.S. 325, 330 (1990).

We may not use a “divide and conquer” approach, in which we disregard some 

individual circumstances as not being suspicious; instead, we must consider the 

cumulative force of all the circumstances. Furr v. State, 499 S.W.3d 872, 880 n.8 

(Tex. Crim. App. 2016) (citing Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. 

App. 2015)). As such, whether the facts known to the officer rise to the level of 

reasonable suspicion is a mixed question of law and fact that we review de novo. 

State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App. 2012).

An officer need not develop a suspicion that a particular crime has been or 

will be committed; rather, he need only suspect that something “of an apparently 

criminal nature is brewing.” Derichsweiler, 348 S.W.3d at 916–17 (citing White,

496 U.S. at 330). In other words, it is sufficient if the officer’s action is supported 

by reasonable suspicion to believe that criminal activity “may be afoot.” RamirezTamayo, 537 S.W.3d at 36 (quoting Arvizu, 534 U.S. at 273); see Terry, 392 U.S. at 

30. This requires that the information available to the officer supports more than a 

mere hunch or intuition. Ramirez-Tamayo, 537 S.W.3d at 36; Wade, 422 S.W.3d at 

668. The officer may then pursue multiple plausible theories in an attempt to resolve 

hissuspicion. United States v. Pack, 612 F.3d 341, 355 (5th Cir. 2010) (citing United 

States v. Brigham, 382 F.3d 500, 509 (5th Cir. 2004)). Therefore, even when 

circumstances seem innocent in isolation, an investigative detention is justified if the 

circumstances combine to reasonably suggest that criminal conduct is afoot or 

imminent. See Furr, 499 S.W.3d at 880 n.8; Murray, 457 S.W.3d at 448; see also 

Derichsweiler, 348 S.W.3d at 917. Further, we may consider an officer’s ability to 

“draw on his own experience and specialized training to make inferences from and 

deductions about the cumulative information available to him that might well elude 
8

an untrained person.” Ramirez-Tamayo, 537 S.W.3d at 36 (citing Arvizu, 534 U.S.

at 273).

A. The Traffic Stop

In its first issue, the State argues that the trial court erred when it held that 

“there were no separate articulable facts supporting reasonable suspicion or probable 

cause of any other crime apart from the traffic infraction.” Specifically, the State 

asserts that (1) Officer Rodriguez testified to a multitude of specific, articulable facts 

that supported his reasonable suspicion that other criminal activity, independent of 

Appellee’s traffic violation, was occurring or had occurred and (2) the actions of 

Officer Rodriguez did not unduly prolong or delay the continuation of the traffic 

stop. We agree with the State.

At the outset we note that, in its Findings of Fact and Conclusions of Law, the 

trial court recited two findings of fact that should be designated as conclusions of 

law. In its Findings of Fact, the trial court found that:

12. Officer Rodriguez prolonged the traffic stop beyond the time needed to 

complete his traffic-based inquiries.3

13. There were no separate articulable facts supporting reasonable suspicion 

or probable cause of any other crime apart from the traffic infraction to allow 

the detention to continue after the conclusion of the traffic investigation.

These findings (whether reasonable suspicion of other criminal activity existed and 

whether the traffic stop was unduly prolonged or delayed) constitute legal 

conclusions. See Lerma, 543 S.W.3d at 192–94 (citing Rodriguez v. United States, 

575 U.S. 348 (2015)); Kothe, 152 S.W.3d at 63. As we have said, in this context we 

review legal conclusions de novo. Wade, 422 S.W.3d at 667; Derichsweiler, 348 

S.W.3d at 913; Kothe, 517 S.W.3d at 62–63.

3

The exact sentence is also recited in the trial court’s conclusions of law.
9

1. Specific, Articulable Facts of Other Criminal Activity

Officer Rodriguez testified at the suppression hearing and articulated an 

abundance of facts regarding his interaction with and observations of Appellee that, 

taken together, sufficiently establish reasonable suspicion that a separate crime,

other than the traffic violation committed by Appellee that justified the traffic stop,

had occurred or was occurring. Officer Rodriguez’s articulated facts, although not

exhaustive, included that: (1) Appellee had a recent criminal history—Officer 

Rodriguez knew Appellee and had previously arrested Appellee for other drug 

offenses; (2) Appellee drove away from the first gas station and drove directly to 

another, but parked the vehicle he had been driving next to a gas pump with the gas 

tank cap facing away from the pump; (3) when Officer Rodriguez’s patrol unit 

stopped behind him, Appellee immediately exited the vehicle that he had been 

driving rather than waiting for Officer Rodriguez to approach—conduct that Officer 

Rodriguez stated was unusual and suspicious; (4) Appellee interrupted Officer 

Rodriguez’s explanation of the basis for the traffic stop and began discussing a 

previous incident in which he had been arrested by Officer Rodriquez—Officer 

Rodriguez testified that, in his experience, this was a common deflection tactic;

(5) Appellee was not the registered owner of the vehicle that he had been driving

and could not explain the discrepancy; (6) Appellee’s attitude toward Officer 

Rodriguez shifted dramatically after the arrival of other officers—from jovial and 

cooperative to agitated and accusatory; (7) Appellee withdrew his consent for 

Officer Rodriguez to search the vehicle that Appellee had been driving only after the 

arrival of the other officers; and (8) in response to Officer Rodriguez’s request that 

Appellee roll down one of the vehicle’s windows, Appellee stated that if he complied 

with Officer Rodriguez’s request he predicted that Officer Rodriguez would call for 

a canine unit to sniff for drugs—an indicator to Officer Rodriguez that Appellee 

expected that something illegal would be discovered if he had consented to a search 

of the vehicle. 
10

Here, the trial court concluded that there were no “separate,” articulable facts 

expressed by Officer Rodriguez to support his stated reasonable suspicion of the 

occurrence of any other crime, independent of Appellee’straffic violation; therefore,

the detention of Appellee should not have continued beyond the scope of the initial 

traffic investigation. Viewed in isolation, some of the above stated facts may 

arguably not support a finding of reasonable suspicion. Nevertheless, we must 

consider the cumulative force of all the circumstances in determining whether 

reasonable suspicion existed. Furr, 499 S.W.3d at 880 n.8 (citing Murray, 457 

S.W.3d at 448); see Wade, 422 S.W.3d at 670.

The significance of the lions’ share of the facts articulated by Officer 

Rodriguez is a question of law, rather than a mixed question of law and fact. For 

instance, the trial court found that Appellee did not exhibit any signs of extreme 

nervousness. Because this finding constitutes a mixed question of law and fact that 

turns on a determination of the witness’s credibility and demeanor, we defer to the 

trial court’s finding on this point.4

 See Amador, 221 S.W.3d at 673. However, the 

significance of other facts articulated by Officer Rodriguez—including 

(1) Appellee’s recent criminal history involving narcotics (which Appellee 

repeatedly articulated), (2) the discrepancy of the ownership of the vehicle that 

Appellee had been driving, (3) Appellee’s withdrawal of his consent to the vehicle 

search, and (4) Appellee’s unsolicited prediction of the deployment of a canine and 

its purpose—are not questions upon which we owe deference to the trial court. 

Lerma, 543 S.W.3d at 190; see Derichsweiler, 348 S.W.3d at 913; Amador, 221 

S.W.3d at 673; see also United States v. Vazquez, 555 F.3d 923, 929 (10th Cir. 2009) 

(holding that a discrepancy between the driver of a vehicle and the registered owner 

of the same vehicle establishes reasonable suspicion); Wade, 422 S.W.3d at 674–75 

4

Notably, although the State asserted that “nervousness” was a specific, articulable fact to support 

reasonable suspicion in its brief in opposition to Appellee’s motion to suppress, it does not advance that 

argument on appeal.
11

(holding that even though a person’s withdrawal of consent to a search cannot be the 

“prominent factor” in determining reasonable suspicion, it can be a factor in the 

determination when combined with other suspicious factors); Hamal v. State, 390 

S.W.3d 302, 308 (Tex. Crim. App. 2012) (holding that a person’s criminal history 

of recent offenses can establish reasonable suspicion when viewed together with 

other factors).

Based on the specific, articulated facts discussed above, and the relevant 

factors and circumstances in this case when considered cumulatively, Officer 

Rodriguez, in relying on his experience as a law enforcement officer, could 

reasonably have suspected that other criminal activity, independent of Appellee’s 

observed traffic violation, had occurred or was afoot. As such, we hold that a 

sufficient and justifiable basis for reasonable suspicion existed for the officers to 

investigate Appellee for other criminal activity. 

2. Unduly or Unreasonably Delayed or Prolonged Detention?

The State further asserts in its first issue that Officer Rodriguez’s actions did 

not unduly delay or prolong the traffic stop. Whether a traffic stop was unduly

delayed or prolonged by the actions of a law enforcement officer is a question of 

reasonableness that we review de novo. Lerma, 543 S.W.3d at 190, 194; Kothe, 

152 S.W.3d at 62–63; see also Sharpe, 470 U.S. at 679.

A person may be detained upon reasonable suspicion that the person 

committed a traffic violation. Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. 

App. 2014). Once initiated, a traffic stop (an investigative stop) may not last longer

than “necessary to effectuate the purpose of the stop.” Lerma, 543 S.W.3d at 193 

(citing Rodriguez, 575 U.S. at 354); see Sharpe, 470 U.S. at 685. Therefore, after 

the reason for the traffic stop has been resolved, the stop may not then be used by 

law enforcement as a fishing expedition for unrelated criminal activity. Davis v. 

State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997) (citing Ohio v. Robinette, 519 

U.S. 33, 41 (1996) (Ginsburg, J., concurring)). 
12

In a traffic stop setting, in addition to determining whether to issue a traffic 

citation, while the investigation is ongoing a law enforcement officer may 

appropriately request and verify (1) the driver’s license and proof of insurance, 

(2) the driver’s destination and purpose of the trip, (3) the driver’s history for 

outstanding warrants, and (4) the vehicle’s ownership and registration. Lerma, 

543 S.W.3d at 193 (citing Rodriguez, 575 U.S. at 355); Kothe, 152 S.W.3d at 63. 

Further, an officer may inquire into matters unrelated to the purpose of the traffic 

stop provided those inquiries do not unreasonably extend the duration of the stop. 

See Kothe, 152 S.W.3d at 64–65; Parker v. State, 297 S.W.3d 803, 812 (Tex. App.—

Eastland 2009, pet. ref’d) (citing Sharpe, 470 U.S. at 686). Nevertheless, reasonable 

suspicion that another offense was or is being committed is required in order to delay 

or prolong the duration of the driver’s initial 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.—Fort Worth 2001, pet. ref’d). As such, if during his 

investigation of the circumstances that precipitated the traffic stop the detaining 

officer develops reasonable suspicion that other criminal activity has occurred or is 

occurring, the scope of the initial investigation may expand to include the other 

offense and the officer may further detain the driver for a reasonable period of time 

in order to dispel or confirm the officer’s reasonable suspicion of other criminal 

activity. Lerma, 543 S.W.3d at 191; Smith v. State, No. 02-15-00426-CR, 2017 WL 

1289354, at *4 (Tex. App.—Fort Worth Apr. 6, 2017, pet. ref’d) (mem. op., not 

designated for publication). 

For purposes of our review, we have outlined above what is pertinent to our 

disposition of the State’s first issue on appeal. As relevant to the traffic stop, the 

trial court found that the officers’ investigation of Appellee’s traffic violation had 

concluded when Officer Rodriguez stated—at approximately 15:54:53 of the video 

timestamp—that Appellee would only receive a warning for the observed traffic 
13

offense.5 Importantly, the duration of the traffic stop’s initial purpose lasted no more 

than six or seven minutes in its entirety. Furthermore, several minutes of the stop’s 

duration were consumed by Appellee’s ongoing discussion of his previous encounter

with Officer Rodriguez that had resulted in his arrest for drug possession. In light 

of all of the circumstances, when considered collectively, the manner in which 

Officer Rodriguez conducted the investigation of Appellee’s traffic violation was 

efficient and appropriate and did not unreasonably or unduly delay or prolong the 

traffic stop. The trial court erred in finding otherwise. Therefore, we hold that:

(1) Officer Rodriguez developed reasonable suspicion that other criminal activity,

independent of the purpose of the traffic stop, was afoot or had occurred; (2) because 

of Officer Rodriguez’s reasonable suspicion, the continued detention of Appellee 

was justified; and (3) Officer Rodriguez’s actions or conduct did not unreasonably 

or unduly delay or prolong the extended duration of the traffic stop. Accordingly, 

we sustain the State’s first issue on appeal.

B. Per Se Time Limit for the Arrival of the Canine Unit

We turn now to the State’s second issue, which is two-fold, that the trial court 

erred when it (1) created a “per se” time limitation for the arrival of a canine unit 

and (2) thereafter ruled on this issue after it was first raised by Appellee’s trial 

counsel in his closing argument.

6 In its Findings of Fact and Conclusions of Law, 

the trial court concluded that the duration from when the traffic stop had ended until 

5

This opinion addresses the State’s issues and sub-issues as presented in its brief. However, the 

question of whether Appellee’s entire detention was justified turns on whether reasonable suspicion existed 

to allow Officer Rodriguez to detain Appellee in order to investigate suspected criminal activity that 

occurred outside the scope of the traffic violation for which Appellee was initially stopped. See Lerma, 

543 S.W.3d at 193 (citing Rodriguez, 575 U.S. at 354); see also Sharpe, 470 U.S. at 679. The question 

does not turn on whether Officer Rodriguez investigated the other, suspected, criminal activity during or 

after the purpose of the traffic stop was completed. See Lerma, 543 S.W.3d at 194; Kothe, 152 S.W.3d at 

58, 63; see also Rodriguez, 575 U.S. at 354. 

6

Although the State complains that this issue was first raised during the closing argument presented 

by Appellee’s trial counsel, we note that the issue was first addressed by the State in its closing argument.

Further, because the timing of the canine unit’s arrival is related to the overall question of the reasonableness 

of Appellee’s detention, we will address this issue on the merits.
14

the canine unit arrived at the scene was “per se” unreasonable and constituted an

illegal detention under the Fourth Amendment. We disagree.

As we have said, once a detention is extended beyond the purpose of the initial 

traffic stop, a law enforcement officer must have reasonable suspicion that illegal 

activity, such as the presence of narcotics in the vehicle that has been stopped, is 

imminent or afoot in order to justify the continuation of the detention. Illinois v. 

Caballes, 543 U.S. 405, 409 (2005); see Lerma, 543 S.W.3d at 193 (citing 

Rodriguez, 575 U.S. at 354). Here, thirty-eight minutes elapsed from when the initial 

purpose of the traffic stop had concluded until the canine unit arrived at the scene. 

Appellee suggests that such a delay constitutes an unreasonable detention. Indeed, 

there is no rigid time frame or bright-line rule that governs the acceptable duration 

of a temporary detention. See Sharpe, 470 U.S. at 685–86 (expressly rejecting the 

adoption of a “hard-and-fast” time limitation for permissible traffic stops). In fact, 

no requirement exists that a canine unit must arrive at the location of the traffic stop 

within a certain period of time; it is only necessary that the timing of the canine 

unit’s arrival is not unreasonable under the circumstances. Strauss v. State, 121 

S.W.3d 486, 492 (Tex. App.—Amarillo 2003, pet. ref’d). Based on the 

circumstances presented in this case, we cannot say that a thirty-eight-minute 

detention to await the arrival of a canine unit is unreasonable “per se.” See, e.g.,

Matthews v. State, 431 S.W.3d 596, 605–06 n.36 (Tex. Crim. App. 2014); Parker, 

297 S.W.3d at 812 (holding that a seventy-minute detention following a traffic stop 

until the canine alerted on the defendant’s vehicle is not unreasonable per se); 

Strauss, 121 S.W.3d at 492 (holding that a seventy-five-minute detention from the 

traffic stop until the arrival of canine unit is not unreasonable); Josey v. State, 981 

S.W.2d 831, 840–41 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding 

that a ninety-minute detention from the time of the stop until the officers searched

the vehicle was not unreasonable). 
15

The reasonableness of the duration of Appellee’s extended detention depends 

on whether Officer Rodriguez diligently pursued a means of investigation that was 

likely to confirm or dispel his suspicions quickly. See Sharpe, 470 U.S. at 686; 

Parker, 297 S.W.3d at 812. Therefore, a temporary detention may continue for a 

reasonable period of time until the officer either confirms or dispels his original 

suspicion that criminal activity is afoot. Matthews, 431 S.W.3d at 603. 

Generally, an open-air sniff of a vehicle’s exterior by a trained canine is not a 

search within the meaning of the Fourth Amendment. Johnson v. State, 323 S.W.3d 

561, 563–64 (Tex. App.—Eastland 2010, pet. ref’d); 1979 Pontiac Auto. v. State, 

988 S.W.2d 241, 243 (Tex. App.—Eastland 1998, no pet.); Mohmed v. State, 977 

S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d). This is because the use 

of a trained canine unit is recognized as a minimally intrusive method of 

investigation for a law enforcement officer to either confirm or dispel his suspicions 

of the presence of narcotics. Parker, 297 S.W.3d at 812; see Strauss, 121 S.W.3d at 

492, Josey, 981 S.W.2d at 841. Consequently, if an officer temporarily detains “an 

automobile to allow an olfactory inspection by a police dog trained to detect the odor 

of illegal drugs,” that detention “is not offensive to the Fourth Amendment when 

based on a reasonable suspicion that the automobile contains narcotics.” Mohmed, 

977 S.W.2d at 628. However, reasonable suspicion is required to prolong a 

detention so that a canine sniff can occur. Kothe ̧152 S.W.3d at 63–64; see Haas v. 

State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d). Nevertheless, a

canine sniff that results from an unreasonably prolonged traffic stop is invalid under 

the Fourth Amendment. See Haas, 172 S.W.3d at 52.

We have already discussed the facts articulated by Officer Rodriguez that 

support his reasonable suspicion that other criminal activity, independent of the 

purpose of the traffic stop, was occurring or had occurred, including Appellee’s 

recent criminal history that involved the possession of narcotics and the unexplained 

discrepancy of the ownership of the vehicle that he had been driving. Importantly, 
16

those facts existed, or were discovered, either prior to or during the duration of the 

initial traffic stop and Officer Rodriguez’s initial investigation—thus, reasonable 

suspicion had been developed and existed during the officers’ initial traffic stop 

investigation. Moreover, based on that reasonable suspicion, Officer Rodriguez was 

justified in requesting the assistance of a canine unit and extending the duration of 

Appellee’s detention in light of Appellee’s (1) “about face” refusal to consent to a 

search of the vehicle that he had been driving, which occurred only seventeen 

seconds after the initial traffic stop investigation had concluded, and (2) reaction to 

Officer Rodriguez’s suggestion that, in lieu of a search, Appellee roll down one of 

the vehicle’s windows (including Appellee’s stated prediction that if he complied 

with Officer Rodriguez’s request a canine would then be summoned to “sniff” the 

vehicle he had been driving, giving Officer Rodriguez a reason to search it).

Appellee cites to Rodriguez v. United States, State v. Tucker, and 

Richardson v. State in support of his contention that Officer Rodriguez did not have 

reasonable suspicion to extend the duration of Appellee’s detention until the canine 

unit arrived in order to investigate Officer Rodriguez’s suspicions of other criminal 

activity. See Rodriguez, 575 U.S. 348; State v. Tucker, No. 13-15-00491-CR, 2016 

WL 2609310 (Tex. App.—Corpus Christi-Edinburg, May 5, 2016, pet. ref’d) 

(mem. op., not designated for publication); Richardson v. State, 494 S.W.3d 302 

(Tex. App.—Waco 2015, no pet.). Each case relied on by Appellee is 

distinguishable. 

Although the facts in Rodriguez are similar to facts in this case, the Supreme 

Court’s holding turned on the question of whether law enforcement’s extension of a 

traffic stop in order to conduct a canine sniff violated the Fourth Amendment absent

reasonable suspicion. See Rodriguez, 575 U.S. at 356–58. As such, the Court did 

not address whether reasonable suspicion existed based on the facts of that case. Id. 

In Tucker, the Corpus Christi–Edinburg Court of Appeals affirmed the grant 

of defendant’s motion to suppress because the facts articulated by law 
17

enforcement—that the defendant’s vehicle stopped briefly in front of a known “drug 

house,” that the defendant did not immediately pull his vehicle over when the officer 

activated his emergency lights, that the defendant appeared slightly nervous, and that 

the defendant’s explanation that he was at the house to pick up an acquaintance—

were mixed questions of law and fact that turned on a determination of witness 

credibility and demeanor and thus required deference to the trial court’s findings. 

Tucker, 2016 WL 2609310, at *6–8 (citing Amador, 221 S.W.3d at 673). 

Nevertheless, and as we have explained, not all of the facts in the case before us 

require deference to the trial court’s rulings. Furthermore, we have held that the 

facts in this case clearly support Officer Rodriguez’s reasonable suspicion of other 

criminal activity.

Finally, in Richardson, the Waco Court of Appeals reversed the denial of a 

motion to suppress because the facts articulated by law enforcement as the basis for 

extending the defendant’s detention in order to deploy a canine unit were either 

unreliable or obtained after the traffic stop had concluded. Richardson, 494 S.W.3d 

at 305–06. Conversely, in this case, Officer Rodriguez knew of or had observed 

specific facts, which we have outlined above, before the purpose of the traffic stop

had concluded, and those facts justified his extension of Appellee’s detention.

Here, when viewed collectively, the circumstances known to Officer 

Rodriguez provided reasonable suspicion that justified the thirty-eight-minute wait 

for the canine unit to arrive at the scene. Pursuant to Officer Rodriguez’s request, 

Appellee consented to a search of his person and, at first, the vehicle that he had 

been driving. However, he quickly withdrew his consent to the search of the vehicle 

when Officer Rodriguez opened the driver’s door to that vehicle. Officer Rodriguez 

immediately terminated the vehicle search and then asked Appellee if he would roll 

down one of the vehicle’s windows. Appellee’s response to this request was to 

predict that, if he were to roll down any window, Officer Rodriguez would then 

summon a canine unit and find a reason to search the vehicle. Appellee’s unsolicited 
18

commentary, in addition to the facts already known to Officer Rodriguez, was 

sufficient to justify the further detention of Appellee until a canine unit arrived. 

According to Officer Rodriguez, although he called for and requested a canine unit, 

the closest available canine unit was stationed in the rural neighboring town of Early. 

The canine unit arrived at the scene thirty-eight minutes later. After its arrival the 

canine quickly alerted (in less than a minute) on the vehicle that Appellee had been 

driving and confirmed Officer Rodriguez’s suspicions. Once the canine alerted, 

Officer Rodriguez’s reasonable suspicion ripened into probable cause to search the 

vehicle. See State v. Weaver, 349 S.W.3d 521, 527–28 (Tex. Crim. App. 2011) 

(recognizing that a positive alert by a trained canine provides probable cause to 

search a vehicle); 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); Parker, 

297 S.W.3d at 812.

Smaller and more rural law enforcement departments often lack the resources 

that larger, more urban departments might possess; therefore, the sharing of

specialized departmental resources (such as canine units) can be a reasonable and 

necessary component of a rural law enforcement officer’s ability to perform his 

duties and investigations. See, e.g., Parker, 297 S.W.3d at 812 (holding that a

detention prolonged by over an hour to await the arrival of a canine unit that was

located thirty or forty minutes away was reasonable). In this instance, we conclude 

that Officer Rodriguez diligently pursued a means of investigation that was likely to 

confirm or dispel his suspicions quickly. It is undisputed that Officer Rodriguez 

immediately requested the presence of a canine unit once it became apparent to him 

that a canine sniff would be necessary to dispel or confirm his suspicion that 

Appellee had been, or was engaged in, other criminal activity, namely, the 

possession of drugs in the vehicle he had been driving. Therefore, the thirty-eightminute duration of Appellee’s further detention until the canine unit arrived at the 

scene was reasonable and not violative of Appellee’s Fourth Amendment rights. See
19

id. (citing Love v. State, 252 S.W.3d 684, 688 (Tex. App.—Texarkana 2008, pet. 

ref’d)); see also Lerma, 543 S.W.3d at 194–95.

We hold that the trial court erred when it concluded that the continued 

detention of Appellee until the canine unit arrived at the scene was “per se”

unreasonable. The specific facts articulated by Officer Rodriguez established the 

existence of an objectively reasonable, articulable suspicion of other criminal 

activity that was beyond the scope of Appellee’s traffic violation, which in turn 

justified the extended detention of Appellee and the vehicle he had been driving 

pending the arrival of the canine unit. As such, the thirty-eight-minute time period 

by which the duration of Appellee’s detention was extended was reasonable under 

the circumstances. Accordingly, we sustain the State’s second issue on appeal to the 

extent that it complains of the trial court’s determination that the continued detention 

of Appellee until the canine unit arrived at the scene was “per se” unreasonable. In 

light of our holding, we need not address the State’s sub-complaint regarding the 

timeliness of the trial court’s ruling on this issue. See TEX. R. APP. P. 47.1.

IV. This Court’s Ruling

We reverse the trial court’s order granting Appellee’s motion to suppress and 

remand this cause to the trial court for further proceedings consistent with this 

opinion.

W. STACY TROTTER

JUSTICE

September 2, 2021

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.