“Although nervousness alone is not sufficient to establish reasonable suspicion for an investigative detention, it can do so in combination with other factors.”
How later courts described this case
- “Although nervousness alone is not sufficient to establish reasonable suspicion for an investigative detention, it can do so in combination with other factors.”
Written by the judges who cited it.
The opinion
Opinion issued December 30, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00705-CR
———————————
MARIO SHANE ROWLAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th Criminal District Court
Harris County, Texas
Trial Court Case No. 1347277
MEMORANDUM OPINION
A jury convicted appellant Mario Rowland of possession of at least 400
grams of cocaine with intent to deliver. See TEX. HEALTH & SAFETY CODE §§
481.102(3)(D); 481.112(a), (f). The jury assessed punishment at 26.5 years in
prison and a $500 fine. On appeal, Rowland contends that the trial court abused its
discretion when it denied his motion to suppress evidence gathered from his car
after he was stopped by the police. We affirm.
Background
Houston Police Department Officer M. Sinegal, an undercover narcotics
officer, began surveillance of a house after he was advised by a confidential
informant that drugs were being sold there. Sinegal had worked with this particular
informant several times, and on those occasions the informant’s information
proved correct.
Over a two-month surveillance investigation, Sinegal observed several
people arriving at the residence and staying for 10 to 20 minutes before leaving,
including one identified by the Drug Enforcement Agency as a drug-trafficking
suspect. Sinegal’s surveillance was directed at a particular “main target” and the
individual identified by the DEA was suspected to be the main target’s supplier.
In Sinegal’s twelve years of experience, the pattern of observed activity was
consistent with a narcotics trafficking. During the initial investigation, Sinegal did
not make any arrests of people coming out of the house because he “didn’t want to
do something too soon that would . . . pretty much spook the house.”
For reasons not explained in the record, on the day of Rowland’s arrest,
Sinegal decided to begin stopping and identifying certain individuals if the
opportunity presented itself. While surveilling the house, Sinegal observed
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Rowland arrive in a red minivan with Illinois license plates. To this point, Sinegal
had never seen Rowland there and had not received a tip from the informant about
him. Approximately 15 minutes after entering the house empty-handed, Rowland
returned to the minivan carrying a brown paper bag, accompanied by another man
carrying a box. The two men placed both items in the trunk, and Rowland drove
away in the red minivan.
Sinegal followed, and when he saw the minivan making a left turn without
its turn signal activated, he asked that it be stopped by a marked patrol unit. HPD
Officer Curtis received the request and made the stop at approximately 4:50 p.m.
Curtis asked for consent to search the vehicle, but Rowland refused and appeared
nervous.
Approximately 35 minutes after the initial stop, Sinegal learned that
Rowland refused consent to a search, and he called for a canine narcotics unit. The
canine unit arrived at the scene at 6:22 p.m., nearly 90 minutes after the detention
was initiated. Once at the scene, the dog alerted to the presence of narcotics within
the minivan, and a subsequent search revealed nearly four kilograms of cocaine in
the brown bag and box in the trunk.
Rowland was charged with possession of a controlled substance with intent
to deliver. Following conviction by a jury, he was sentenced to 26.5 years’
imprisonment and fined $500. Rowland now appeals his conviction.
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Analysis
In his sole appellate issue, Rowland contends that the trial court erred by
denying his motion to suppress evidence discovered during the search of his
vehicle. Specifically, he asserts that the trial court abused its discretion by finding
that Officer Sinegal had a reasonable suspicion to request a stop of the minivan and
that the time it took for the canine unit to arrive was reasonable.
In reviewing a trial court’s ruling on a motion to suppress evidence, we
apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327
(Tex. Crim. App. 2000); Wiley v. State, 388 S.W.3d 807, 815 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d). We give almost total deference to the trial
court’s determination of historical facts that depend on credibility, and we conduct
a de novo review of the trial court’s application of the law to those facts.
Carmouche, 10 S.W.3d at 327.
When a trial court does not make explicit findings of historical fact, we
review the evidence in the light most favorable to the trial court’s ruling. Id. That
is, we will assume that the trial court made implicit findings of fact supported by
the record that support its conclusion. Id.
I. Reasonableness of suspicion of drug trafficking
Generally, interactions between police officers and civilians can be
categorized as: (1) consensual encounters, (2) investigative detentions, and
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(3) arrests. State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). It is
undisputed that Rowland was subjected to an investigative detention when his
minivan was stopped by the police. An investigative detention implicates the
Fourth Amendment’s protections against unreasonable searches and seizures. State
v. Garcia-Cantu, 253 S.W.3d 236, 238 (Tex. Crim. App. 2008). Therefore, a police
officer may stop and briefly detain a person for investigative purposes only if the
officer, in light of his experience, has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1,
30, 88 S. Ct. 1868, 1884–85 (1968); see also Ford v. State, 158 S.W.3d 488, 492
(Tex. Crim. App. 2005). Whether a temporary investigative detention is reasonable
depends on the totality of the circumstances. See Ford, 158 S.W.3d at 492–93.
Rowland contends that the trial court abused its discretion when it found
reasonable suspicion necessary to detain him for a narcotics investigation, noting
that Sinegal testified on cross-examination that he would have had no choice but to
let Rowland leave had he not witnessed a traffic violation. Rowland contends that
this testimony acknowledged that there was no other basis giving rise to reasonable
suspicion for a detention. However, Sinegal also testified to the contrary on direct
examination when he stated that he “knew . . . [he] could have” stopped Rowland
for reasonable suspicion of possession of narcotics.
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In a hearing on a motion to suppress, the trial court may choose to believe or
disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). More to the point, the standard for determining
reasonable suspicion is “an objective one that disregards the actual subjective
intent of the officer and looks, instead, to whether there was an objectively
justifiable basis for the detention.” Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011) (citing Terry, 392 U.S. at 21-22); Simmons v. State, 288
S.W.3d 72, 75 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Thus our inquiry
is not whether Sinegal subjectively intended a traffic stop or believed he had
reasonable suspicion to stop Rowland for possession of narcotics, but instead
whether the facts and circumstances known to him objectively supported such a
reasonable suspicion.
Rowland also asserts that the facts and circumstances known to Sinegal
could not support a reasonable suspicion of narcotics trafficking because he had
“no information specific to” Rowland. Based on the totality of the circumstances,
however, we conclude that the trial court did not err in finding that Sinegal, in light
of his experience and observations, had reasonable suspicion to detain Rowland to
investigate whether he was trafficking narcotics. Sinegal had 12 years of
experience as a narcotics officer, which included surveilling suspected drug houses
“hundreds of times,” resulting in numerous arrests. He began surveillance of the
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house because an informant, known to be reputable, advised him that it served as a
location for many drug transactions. Over the course of the investigation, Sinegal
observed several men arriving at the location and staying for brief periods of time,
including one individual who the Drug Enforcement Agency suspected was
supplying Sinegal’s main target with cocaine. Sinegal testified that this pattern of
activity was consistent with a “dope stash house,” and his conclusion was bolstered
by a further investigation which had revealed that “at least 90 percent” of the
individuals observed visiting the location had prior drug arrests. On the day
Rowland was arrested, he arrived at the house soon after Sinegal’s main target and
the individual suspected as the target’s supplier. Rowland drove a rented minivan
with out-of-state license plates and, in Sinegal’s experience, such vehicles are
frequently used to transport narcotics. After entering the house empty-handed,
Rowland and another man returned to load a brown bag and box into the minivan.
We conclude that the trial court did not abuse its discretion by concluding
that these articulable facts, coupled with rational inferences, would lead Sinegal to
reasonably suspect that Rowland was, or soon would be, trafficking narcotics.
II. Reasonableness of duration of detention
Rowland further contends that the trial court erred by denying his motion to
suppress because the detention was unreasonably prolonged for over an hour while
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the officers waited for the canine unit to arrive. His appellate argument in this
regard is entirely premised on his characterization of his detention as a traffic stop.
A traffic stop is analogous to an investigative detention, and therefore
invokes the same Fourth Amendment protections. Berkemer v. McCarty, 468 U.S.
420, 439, 104 S. Ct. 3138, 3150 (1984). The search and seizure must be reasonably
related to the circumstances that justified the stop in the first place. Kothe v. State,
152 S.W.3d 54, 63 (Tex. Crim. App. 2004). In other words, a traffic stop may last
no longer than necessary to effectuate its purpose. Id. Thus once a “computer
check is completed, and the officer knows that this driver has a currently valid
license, no outstanding warrants, and the car is not stolen,” the traffic-stop
investigation has been fully resolved. Id. at 63–64. Once the investigation has been
concluded, continued detention of a person is permitted only if there is a
reasonable suspicion to believe another offense has been or is being committed.
See id. at 62–63.
Rowland was detained at 4:50 p.m. Approximately 35 minutes later, after
Rowland refused to consent to a search of the vehicle, Sinegal called for a drug-
sniffing dog, which arrived at 6:22 p.m., about 90 minutes after the detention was
initiated.
Based on these facts, Rowland contends that this case is identical to Carillo
v. State, No. 05-12-00544-CR, 2014 WL 465424 (Tex. App.—Dallas Feb. 4, 2014,
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no pet.) (mem. op., not designated for publication), in which officers detained the
defendant for a traffic stop after observing him arrive at a mobile home, which a
“tip” had indicated was involved in narcotics transactions. Carillo, 2014 WL
465424 at *1. The defendant had stayed inside the mobile home for roughly 15
minutes before leaving. Id. After following him for 30 minutes, the officers
stopped the defendant for a traffic violation. Id. He was calm and cooperative,
answered the officers’ questions, and provided his license. Id. After a warrant
check came back clear, the officers asked for consent to search the defendant’s
vehicle, which he refused. Id. He was then detained at the scene for nearly an hour
while the officers waited for a canine unit to arrive. Id. The Carillo court
determined that the officers prolonged the detention longer than necessary to
effectuate the purpose of a traffic stop. Id. at *3. The court further determined that
the State had failed to establish that the officers had reasonable suspicion that the
defendant was or would be engaged in other criminal activity; therefore, the
prolonged detention was unjustified. Id. at *6.
Unlike in Carillo, the continued detention of Rowland after the initial stage
of investigation had concluded was justified by the officer’s reasonable suspicion
that Rowland was engaged in narcotics trafficking. As noted above, Sinegal had
surveilled the home for months and determined, based on his experience, that
activity at the house was consistent with drug trafficking. Most visitors observed at
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the house had prior drug arrests. On the day of the arrest, Rowland was observed
driving an out-of-state rental van and entering the house after two other individuals
who were identified as suspects of drug trafficking. As explained above, these
articulable facts known to the police supported a reasonable suspicion that
Rowland was involved in narcotics trafficking. Moreover, while the defendant in
Carillo calmly cooperated with the police during the traffic stop, Rowland
appeared visibly nervous. See Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim.
App. 2012) (“Although nervousness alone is not sufficient to establish reasonable
suspicion for an investigative detention, it can do so in combination with other
factors.”). Therefore, the continued detention of Rowland was justified to allow
inspection by the canine narcotics unit. See Kothe, 152 S.W.3d at 62–63; Sims v.
State, 98 S.W.3d 292, 296 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
We conclude that the trial court did not abuse its discretion by denying
Rowland’s motion to suppress. We overrule Rowland’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Michael Massengale
Justice
Panel consists of Justices Jennings, Sharp, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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