RANDOLPH IRWIN, Appellant, v. THE STATE OF TEXAS, Appellee.
We issued our original opinion in this cause on April 13, 2017. The State filed a motion for rehearing. After due consideration, and within our plenary power, we sua sponte withdraw our previous opinion and judgment and substitute the following opinion and accompanying judgment in their place. See TEX. R. APP. P. 19.1. The State's motion for rehearing is denied as moot.
By one issue, appellant Randolph Irwin appeals the trial court's denial of his motion to suppress evidence. Irwin was charged with possession of a controlled substance, penalty group one, in an amount less than one gram, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West, Westlaw through 2015 R.S.). Following the denial of his motion to suppress, Irwin pleaded guilty. We reverse and remand.
Corpus Christi Police Officer Eduardo Tagle testified that on November 11, 2012, he executed a stop on Irwin's vehicle for a defective tail light. Officer Tagle stated that as he approached Irwin's vehicle he noticed Irwin making furtive movements inside the vehicle. Officer Tagle observed that Irwin was jittery, extremely nervous, and shaking as he spoke to Officer Tagle. Officer Tagle stated these actions made him concerned for his safety and the possible destruction of evidence, so he ordered Irwin to step out of the vehicle.
Officer Tagle also spoke with a female passenger in Irwin's vehicle who he also described as very nervous. Officer Tagle asked Irwin and his passenger if there was anything illegal in the vehicle, but neither gave him a definitive answer.
Officer Tagle testified that the traffic stop took about twenty minutes, and he determined that Irwin had a clear license and no warrants. When his backup arrived, Officer Tagle advised the officer that he was going to search Irwin's vehicle. Irwin did not give consent to search the vehicle. Irwin's vehicle was very clean, other than an Altoids tin that was located between the center console and driver's seat. Officer Tagle said he knew it was common for individuals to store drugs in similar tins.1 Due to this knowledge, he opened the Altoids tin, and inside, he found what he believed was a bag containing crystal methamphetamine. Irwin was arrested for possession of a controlled substance immediately following the discovery. See id.
On cross-examination, Officer Tagle agreed that Irwin was detained and not free to leave when he was removed from the vehicle, and once he determined the tail light was defective, there was no additional investigation needed. It was Irwin's furtive movements and nervousness at the outset of their interaction that concerned Officer Tagle initially but he developed no further facts to indicate criminal activity. Officer Tagle conducted a pat down of Irwin for his safety upon removing him from the vehicle and found no contraband. Based on the dispatch logs, Irwin established that the traffic stop was initiated at 4:20 PM, backup arrived at 4:27 PM, the clear warrant return occurred at 4:29 PM, and Irwin was taken into custody at 4:40 PM.
After hearing from both sides, the trial court denied the motion to suppress without issuing findings of fact or conclusions of law.2 Irwin pleaded guilty, but the trial court allowed him to retain his right to appeal the ruling on his pre-trial motion. This appeal followed.
II. RIGHT TO APPEAL
The State argues in its brief that Irwin has waived his right to appeal based on his plea of guilty and that the trial court certification allowing the appeal of any pre-trial motions heard by the trial court was a mistake. We disagree.
The Texas Rules of Appellate Procedure provide that “[t]he trial court should enter a certification of the defendant's right to appeal each time it enters a judgment of guilt or other appealable order.” Jones v. State, 488 S.W.3d 801, 804 (Tex. Crim. App. 2016) (quoting TEX. R. APP. P. 25.2(a)(2)). “The appeal must be dismissed if a certification that shows the defendant has the right to appeal has not been made part of the record under these rules.” Id. (quoting TEX. R. APP. P. 25.2(d)). If the trial court certification is defective, the clerk must notify the parties so that they can correct any mistakes. See id. The court of criminal appeals has held that a “defective certification includes one that is ‘correct in form but which, when compared with the record before the court, proves to be inaccurate.’ ” Id. (quoting Dears v. State, 154 S.W.3d 610, 614 (Tex. Crim. App. 2005)). “An appellate court is obligated to review the record to determine if the certification is contrary to the record and therefore defective.” Id. at 805. “In determining whether a defendant has validly waived his right to appeal pursuant to a plea agreement, we look to the written agreement, as well as to the formal record, to determine the terms of the agreement.” Id.
The State argues that the plea agreement states that the “State will ask that defendant not be given the right to appeal pretrial denial of motion to suppress” and was signed by Irwin and his counsel, therefore waiving Irwin's right to pursue an appeal on his motion to suppress. However, within the written admonishments by the trial court, Irwin initialed that he understood he would not be allowed to appeal the judgment of the trial court “unless the Court gives me permission to appeal or except on those matters raised by pretrial motion and ruled upon by the Court.” Also contained on the same admonishments is a section regarding waiver of appeal, which was crossed out and not initialed by Irwin. The trial court's certification of defendant's right to appeal states that Irwin's case is a “plea bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the Defendant has the right of appeal.” Additionally, the transcript from the plea hearing on March 10, 2015 shows the trial court stated:
My understanding is there's a plea bargain. Normally you would waived your right to appeal, but we're not going to do that in this case because your attorney has filed a written motion in regards to a motion to suppress. We've had that hearing, and so I'm going to allow you to appeal that issue, okay?
We hold, based on the evidence contained in the trial court's record, that Irwin did not waive his right to appeal the pre-trial motion to suppress when he pleaded guilty to the offense. Therefore, the trial court was not mistaken in certifying Irwin's right to appeal this ruling on his pretrial motion and this Court retains jurisdiction to consider his appeal.
III. MOTION TO SUPPRESS
By his sole issue, Irwin argues the trial court erred by denying his motion to suppress.
A. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard. Gonzalez v. State, 501 S.W.3d 283, 285 (Tex. App.—Corpus Christi 2016, no pet.). We give the trial court almost complete deference in its determination of historical facts, especially if they are based on an assessment of credibility and demeanor. Id. We afford the trial court the same deference on its rulings on the application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor. Id. However, for mixed questions of law and fact that do not fall within that category, we conduct a de novo review. Id.
A traffic stop is a detention for Fourth Amendment purposes. Gonzalez v. State, ___ S.W.3d ___, ___, No 13-13-00427-CR, 2014 WL 4049800, *5 (Tex. App.—Corpus Christi 2014, pet. ref'd). We analyze the legality of traffic stops under the standard articulated by the United State Supreme Court in Terry v. Ohio. 392 U.S. 1, 21–22 (1968); see United States v. Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc). Under this standard, we make a two-part inquiry: first, examining whether the officer's decision to stop the vehicle was justified at its inception and second, determining whether the officer's subsequent actions were reasonably related in scope to the circumstances that caused him to stop the vehicle in the first place. Gonzalez, 501 S.W.3d at 285.
Where a trial judge does not enter findings of fact, as in this case, a reviewing court must “view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.” Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007).
B. Applicable Law and Discussion
In its brief, the State initially argues Irwin lacked standing to challenge the search of the vehicle in his motion to suppress, which is an issue now being raised for the first time on appeal.3 “Although we defer to the trial court's factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.” Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).
“The party bringing the motion to suppress bears the burden of establishing all of the elements of h[is] Fourth Amendment claim.” State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc). “The rights secured by the Fourth Amendment and Article 1, Section 9, are personal, and accordingly, an accused has standing to challenge the admission of evidence obtained by ‘unlawful’ search or seizure only if he had a legitimate expectation of privacy in the place invaded.” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). “To determine if appellee had a legitimate expectation of privacy, we first determine whether appellee demonstrated an actual subjective expectation of privacy.” State v. Millard Mall Serv., Inc., 352 S.W.3d 251, 253 (Tex. App.—Houston [14th Dist.] 2011, no pet.). “If so, then we decide whether appellee's subjective expectation of privacy was one that society was prepared to regard as objectively reasonable.” Id.
“By raising the issue of standing for the first time on appeal, the State was not actually raising a new issue, but rather challenging ‘the trial court's holding that [Irwin] met [his] burden of establishing that the government violated [his] reasonable expectation of privacy.” Mercado, 972 S.W.2d at 78. Once the defendant filing a motion to suppress “has established the basis for a Fourth Amendment claim, the burden shifts to the prosecution to establish the validity of the search under the applicable theory of law.” Id.
In this case, as in Kothe, the State failed to challenge Irwin's standing to complain about the search and seizure in the trial court. See Kothe, 152 S.W.3d at 60. However, as the court of criminal appeals has determined, “because standing is an element of a Fourth Amendment claim, the State may raise the issue of standing for the first time on appeal, even when the defendant is the prevailing party in the trial court.” Id. Additionally, the “appellate court may raise the issue of standing on its own; it may analyze that issue as part of the Fourth Amendment claim presented; or it may conclude that the State has forfeited that argument because it failed to raise it in the trial court.” Id. However, the State “may still forfeit standing issues through its assertions, concessions, and acquiescence in the course of litigation.” State v. Klima, 934 S.W.2d 109, 110 n.1 (Tex. Crim. App. 1996) (en banc).
During the motion to suppress hearing, the State stipulated to the warrantless arrest and presented its evidence to justify Irwin's arrest. When approached by Officer Tagle, Irwin was driving the vehicle, and could reasonably be found to have care, custody, and control of the vehicle. See State v. Allen, 53 S.W.3d 731, 732–34 (Tex. App.—Houston [1st. Dist.] 2001, no pet.); see also Wilson v. State, 692 S.W.2d 661 (Tex. Crim. App. 1984) (en banc). There was no testimony given that Irwin did not claim to own the vehicle, that he was asked questions regarding the vehicle's ownership, or that a search of his license plates showed a different owner of the vehicle.
The State argues that because Irwin did not claim to own the vehicle, he failed to meet the threshold burden of showing standing. However, the State went forward with the motion to suppress hearing without challenging Irwin's standing. The State is now challenging Irwin's standing to go forward on a motion to suppress that the trial court denied. There is nothing in the record which makes it apparent that Irwin did not have standing to contest the evidence. See Kothe, 152 S.W.3d at 60. We hold the State has forfeited this issue by failing to raise it at the trial court due to the lack of evidence to defeat standing and acquiescence to standing during the motion to suppress hearing. See id.
2. Automobile Exception
Now that we have determined Irwin had standing to challenge the stop, Irwin argues the State did not have probable cause for the warrantless search under the automobile exception to the warrant requirement.4
The Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution guarantees the right to be secure against unreasonable searches. U.S. CONST. amend. IV; TEX. CONST. art. 1, § 9. A search or seizure conducted without a warrant is per se unreasonable absent a recognized exception to the warrant requirement. Katz v. United States, 389 U.S. 347, 357 (1967); see Tollefson v. State, 352 S.W.3d 816, 819 (Tex. App.—San Antonio 2011, pet. ref'd). “The touchstone of the Fourth Amendment is reasonableness.” State v. Villarreal, 475 S.W.3d 784, 795 (Tex. Crim. App. 2015).
Since a traffic stop is considered a detention, “Fourth Amendment scrutiny is necessary—it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.” State v. Castleberry, 332 S.W.3d 460, 467 (Tex. Crim. App. 2011). Under the Fourth Amendment, police officers have reasonable suspicion to detain a citizen when they are aware of “specific, articulable facts which, when combined with rational inferences from those facts, would lead the officer to conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” Gonzalez, 2014 WL 4049800 at *5 (quoting Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)). These facts must “amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a crime was in progress.” Crain, 315 S.W.3d at 52.
“This is an objective standard that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). “The standard also looks to the totality of the circumstances; individual circumstances may seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.” Id.; see Canales v. State, 221 S.W.3d 194, 198–99 (Tex. App.—Houston [1st Dist.] 2006, no pet). “Thus, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop, and once the reason for the detention has been satisfied, the detention may not be used as a ‘fishing expedition for unrelated criminal activity.’ ” Canales, 221 S.W.3d at 199.
Officer Tagle initially stopped Irwin for a burnt out tail light, a violation of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 547.322 (West, Westlaw through 2015 R.S.). Neither party argues that the initial stop was not valid. Officer Tagle was justified to ask for Irwin's driver's license and insurance at the time of the stop as well. See State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). However, any continued detention past the verification of his license required reasonable suspicion. See Wade, 422 S.W.3d at 668. Officer Tagle testified that he thought “something was up” so he continued his investigation. However, Officer Tagle did not articulate that he developed any additional information throughout the course of this detention to continue to hold Irwin. However, even if there was justification for a continued detention, the State must also show that a search of Irwin's vehicle was justified under an exception to the warrant requirement.
“Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Since Irwin was driving an automobile at the time of stop, the automobile exception would apply if probable cause existed. “Probable cause to search [under this exception] exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe the instrumentality of a crime or evidence will be found.” Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005). The Supreme Court has held that “if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” U.S. v. Ross, 456 U.S. 798, 825 (1982).
Officer Tagle testified that he believed he was justified in searching Irwin's vehicle because of his observations of Irwin's behavior. Officer Tagle felt that Irwin's “furtive movements,” extreme nervousness, and evasive answers to questions were enough to establish probable cause to search. However, the court of criminal appeals “has repeatedly held that a ‘furtive gesture’ ․ made while a person is stopped for a traffic offense does not establish probable cause for a search.” Wiede v. State, 157 S.W.3d 87, 98 (Tex. App.—Austin 2005, pet ref'd.) (citing Howard v. State, 599 S.W.2d 597, 604–05 (Tex. Crim. App. 1979)). Additionally, “nervousness is not sufficient to establish reasonable suspicion” but can be used as a relevant factor in determining if a Terry stop and frisk is warranted. Wade, 422 S.W.3d at 670. Nervousness is not “particularly probative because ‘most citizens with nothing to hide will nonetheless manifest an understandable nervousness in the presence of an officer.’ ” Id. (quoting Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984)). These factors are not to be evaluated individually but in their totality. See id. at 668.
Officer Tagle testified that he had observed these circumstances upon approaching Irwin's vehicle and establishing contact with Irwin. An officer may be justified in “briefly detaining an individual on less than probable cause for the purposes of investigating possibly-criminal behavior where the officer can ‘point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (quoting Terry, 392 U.S. at 21). “The facts that an officer relies on to raise suspicion that illegal conduct is afoot need not be criminal in themselves; ‘they may include any facts which in some measure render the likelihood of criminal conduct greater than it would otherwise be.’ ” Wade, 422 S.W.3d at 670 (quoting Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991)). “But the totality of the suspicious circumstances that an officer relies on ‘must be sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set the suspect apart from them.’ ” Id. (quoting Crockett, 803 S.W.2d at 311).
Officer Tagle did not state he observed any additional facts as the stop progressed that would have established the probability of possible criminal behavior; in fact, he stated he noticed all the factors he considered as he approached Irwin's vehicle and made the determination of illegality within the first ten minutes of the stop. Even though Irwin's license and warrant check came back clear ten minutes into the stop, Officer Tagle prolonged the stop for another ten minutes in order to continue to investigate, because he thought “something was up.” Officer Tagle's “inarticulate hunch” is not enough to distinguish Irwin's behavior from that of an innocent person and therefore, did not justify the continued intrusion without more detail. See id.
Irwin cites a similar but distinguishable case, Canales v. State, where police officers approached a vehicle in an area known for criminal activity because they saw two men who appeared very nervous, and who, upon questioning, provided vague answers. 221 S.W.3d at 197. However, in Canales, the officer noticed a pile of cigar leaf pieces (the outside of a cigar) directly outside the vehicle window, which he testified was consistent with drug consumption. See id. The officer testified that his partner saw Canales make a movement towards the console before exiting the vehicle, which the partner used to justify the intrusion into the vehicle. See id. The Houston Court of Appeals held that observation of a furtive gesture alone by the partner, disregarding the pile of cigar, was not enough to justify the search of a vehicle and reversed the trial court's ruling on the motion to suppress. Id. at 204.
Irwin's case shows even less probable cause to justify a search of the vehicle than the officers had in Canales. Officer Tagle testified Irwin was detained for an extinguished tail lamp. There was no evidence that Irwin had been seen in a high crime area or leaving a suspicious home. See id. at 197. Officer Tagle saw Irwin make what Tagle described as a “furtive movement” towards the console of the vehicle, but furtive movements alone are not enough justification to search a vehicle. See Wiede, 157 S.W.3d at 98. Officer Tagle testified that he had seen all the factors he used to detain Irwin upon approaching Irwin's vehicle, and that no evidence of additional factors developed throughout the course of his investigation.
We hold Officer Tagle did not establish there was probable cause to continue to detain Irwin and search his vehicle.5 We sustain Irwin's sole issue.
We reverse the ruling of the trial court and remand for proceedings consistent with this opinion.
1. Even though no objection was made to this testimony, we note that no foundation was laid for this opinion testimony. See Osbourn v. State, 92 S.W.3d 531, 535–36 (Tex. Crim. App. 2002).
2. Neither party requested findings of fact or conclusions of law.
3. Standing can be asserted for the first time on appeal by the State. See State v. Klima, 934 S.W.2d 109, 110 (Tex. Crim. App. 1996) (en banc).
4. Both parties stipulated that this was a warrantless arrest, and the burden shifted to the State to show an exception to the warrant requirement.
5. In its brief, the State asserts any error in the trial court's denial of Irwin's motion to suppress is harmless based on Irwin's plea of guilty. In its analysis, the State refers to Officer Tagle's probable cause affidavit submitted to the trial court during the plea hearing as State's Exhibit #2. In that affidavit, Officer Tagle states that Irwin gave him consent to search the vehicle. However, this testimony was not raised or developed during the motion to suppress hearing. Because this appeal deals solely with the motion to suppress hearing, the affidavit is not properly before this Court as an exhibit in the plea hearing. Therefore, we will not consider any alleged consent given by Irwin as referenced in the State's brief since there was no evidence regarding consent previously developed.
GINA M. BENAVIDES, Justice