TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Case Number: 03-16-00055-CR

Judge: Bob Pemberton

Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, TRAVIS COUNTY

Plaintiff's Attorney: Stacey M. Soule and John C. Prezas

Defendant's Attorney: Lisa Marie Mims

Description: At the hearing on the motion to suppress, the district court heard evidence that on the
night of February 9, 2015, at approximately 10:08 p.m., Officer Josh Chadney of the Round Rock
Police Department initiated a traffic stop on a vehicle after having observed it “displaying a defective
license plate light.” Chadney recounted that he made contact with the driver, later identified as 2
Oden, and asked her from where she had been coming. Oden, Chadney continued, told him that “she
just left the Candlewood Suites” hotel, which Chadney knew to be a “high crime area known for
narcotics use and many other different crimes.” Chadney explained that his knowledge of the hotel
was based on his “personally hav[ing] made several arrests coming out of that hotel and inside that
hotel for narcotics-related cases,” as well as the hotel’s “well-known” reputation within the Round
Rock Police Department as a location for narcotics activity.
Chadney then asked Oden “if she’d ever been arrested for anything.” According to
Chadney, Oden “told me she had been arrested for, I think, possession of stolen property but never
mentioned anything about a narcotics arrest.” However, upon checking her criminal history,
Chadney discovered that Oden had prior arrests for multiple narcotics offenses, both in Texas and
other states. When Chadney asked Oden “directly about narcotics,” he claimed to have noticed that
her “demeanor changed,” that she became “more nervous” and began “to breathe more heavily,” and
that the artery on the left side of her neck “began to pulsate more rapidly,” which Chadney perceived
based on his training and experience to indicate that her heart rate was increasing. When asked how
he was able to differentiate between Oden’s level of nervousness and the “general nervousness”
commonly associated with police encounters, Chadney testified that he had encountered Oden two
weeks prior to the traffic stop, when she had been involved in an automobile accident with an
The traffic stop was recorded by Chadney’s patrol-car dash camera, and a copy of the2 recording was admitted into evidence at the hearing. 2
intoxicated driver, and that during that encounter with the police, Oden “wasn’t nervous at all” and
“was very calm, polite, [and] had a great demeanor.” When asked if, during the traffic stop, he had
noticed a “change in [Oden’s] demeanor” at the point when he asked her “specifically about whether
or not she had drugs or narcotics with her,” Chadney testified that he had.
Chadney also spoke with the passenger in the vehicle, identified as Audra Browning.
Chadney testified that when he “asked her about narcotics specifically,” Browning exhibited “the
same demeanor” and “nervous behavior” that Oden had exhibited. Chadney added that Browning
informed him that she had prior arrests for marihuana and methamphetamine possession, which
Chadney confirmed when he ran a check on Browning’s criminal history.
Chadney further testified that, based on his observations up to that point, he decided
to search the vehicle. After asking for Oden’s consent to search, which she refused, Chadney called
dispatch and requested the assistance of a canine unit. Approximately fifteen minutes later (and
approximately 30 minutes after the traffic stop had been initiated), the canine unit arrived at the
scene and the canine “indicated a positive alert for narcotics” upon sniffing the exterior of the
vehicle. Chadney then proceeded to search the interior of the vehicle and found methamphetamine
“under the seat where Ms. Oden had been sitting,” as well as additional methamphetamine “in a bag
that belonged to Ms. Browning.”
At the conclusion of the hearing, Oden argued that the evidence found during the
search should be suppressed because Chadney did not have reasonable suspicion of criminal activity
beyond the traffic violation so as to justify prolonging the detention to conduct a canine search.
After taking the matter under advisement, the district court denied the motion to suppress and later
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made findings of fact and conclusions of law. Following the denial of her motion to suppress, Oden
pleaded guilty to possession of a controlled substance and was placed on community supervision for
six years, as noted above. This appeal followed.
STANDARD OF REVIEW
We review a trial court’s ruling on a motion to suppress evidence for an abuse of
discretion and overturn the ruling only if it is arbitrary, unreasonable, or “outside the zone of
reasonable disagreement.” When a trial court makes explicit fact findings, we determine whether 3
the evidence viewed in the light most favorable to the trial court’s ruling supports those findings. 4
We give almost complete deference to the trial court’s determination of historical facts, but we
review de novo the court’s application of the law to those facts.5
ANALYSIS
Initial traffic stop
In her first point of error, Oden asserts that the initial traffic stop was unlawful.
Specifically, Oden claims that the record does not support the district court’s finding that Officer
Chadney observed Oden commit a traffic offense.
State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); State v. Dixon, 206 S.W.3d 587,3 590 (Tex. Crim. App. 2006). Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). 4 Story, 445 S.W.3d at 732; Dixon, 206 S.W.3d at 590.5 4
To conduct a lawful traffic stop, an officer must have reasonable suspicion to believe
that a traffic offense has been committed. “Reasonable suspicion exists ‘when an officer is aware 6
of “specific articulable facts that, when combined with rational inferences from those facts, would
lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging
in criminal activity.”’” “The reasonable suspicion standard is wholly objective; the subjective intent 7
of the officer conducting the investigation is irrelevant.” “The standard requires only ‘some 8
minimal level of objective justification’ for the stop.” “Whether the facts known to the officer 9
amount to reasonable suspicion is a mixed question of law and fact subject to de novo review.”10
To the extent that Oden preserved this issue in the court below, we cannot conclude 11
on this record that the district court erred in determining that the initial traffic stop was lawful. Oden
Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (citing York v. State,6 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)). Id.7 Id.8 Id. (citing Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)).9 Id. (citing State v. Mendoza, 365 S.W.3d 666, 669-70 (Tex. Crim. App. 2012)).1 0 The State asserts in its brief that Oden failed to preserve error because she did not argue1 1 the legality of the initial traffic stop at the hearing on the motion to suppress. It is true that, during the suppression hearing, Oden limited her argument to the legality of the prolonged detention following the initial stop. We note, however, that the district court, in its findings of fact and conclusions of law, specifically addressed the lawfulness of the initial stop, finding that “Officer Chadney observed that Defendant’s license plate was insufficiently illuminated” and that the licenseplate lights “were not emitting enough light to make the license plate visible from 50 feet away.” Based on these findings, the district court concluded that “Officer Chadney’s testimony coupled with the video admitted into evidence does demonstrate the reasonable suspicion necessary to render lawful the initial traffic stop he made.” 5
was suspected of violating section 547.322 of the Transportation Code, which requires that “[a]
taillamp or a separate lamp shall be constructed and mounted to emit a white light that:
(1) illuminates the rear license plate; and (2) makes the plate clearly legible at a distance of 50 feet
from the rear.” Officer Chadney testified that he had observed Oden’s vehicle “displaying a 12
defective license plate light.” When asked how he was able to determine that the license plate was
not visible from 50 feet behind the vehicle, Chadney testified, “You can see [in the video] when I’m
behind the vehicle. I actually turned my headlights off in order to give them the benefit of the doubt
and verify that, you know, it’s not emitting enough light to be—to be seen by 50 feet.” On cross
examination, Chadney agreed with Oden’s characterization of the license-plate lights as “working,”
i.e., providing some illumination to the license plate, but he added that “they weren’t emitting
enough light” to sufficiently illuminate the license plate from 50 feet behind the vehicle. It would
not be outside the zone of reasonable disagreement for the district court to credit Chadney’s
testimony and find that it was corroborated by the video recording of the traffic stop, which showed
Chadney following behind Oden’s vehicle in his patrol car and turning off his car’s headlights for
several seconds during the pursuit.
When viewed in the light most favorable to the district court’s ruling, the above
evidence supports the district court’s findings that Officer Chadney observed the license plate to be
insufficiently illuminated and that the license-plate lights “were not emitting enough light to make
the license plate visible from 50 feet away” as required by the Transportation Code. Accordingly,
See Tex. Transp. Code § 547.322(f).1 2
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we cannot conclude that the district court erred in determining that Chadney had reasonable
suspicion that Oden had committed a traffic offense and in initiating the traffic stop on that basis.
We overrule Oden’s first point of error.
Prolonged detention following stop
In her second point of error, Oden asserts that Officer Chadney was not justified in
prolonging the detention to await the arrival of a canine unit. According to Oden, Chadney did not
have reasonable suspicion to believe that she had committed a narcotics offense and thus should have
released Oden after issuing her a citation for the traffic violation.
“A seizure for a traffic violation justifies a police investigation of that violation.” 13
“Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined
by the seizure’s ‘mission’—to address the traffic violation that warranted the stop and attend to
related safety concerns.” “Because addressing the infraction is the purpose of the stop, it may ‘last 14
no longer than is necessary to effectuate th[at] purpose.’” “Authority for the seizure thus ends when 15
tasks tied to the traffic infraction are—or reasonably should have been—completed.” Thus, the 16
Fourth Amendment prohibits an officer from prolonging a traffic stop to conduct a canine search,
“absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”17
Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).1 3 Id. (internal citations omitted); see Terry v. Ohio, 392 U.S. 1 (1968).1 4 Rodriguez, 135 S. Ct. at 1614 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).1 5 Id. (citing United States v. Sharpe, 470 U.S. 675, 686 (1985)).1 6 Id. at 1615.1 7 7
In this case, we cannot conclude that the district court erred in concluding that Officer
Chadney had reasonable suspicion that Oden had committed a narcotics offense. The reasonable
suspicion inquiry “looks to the totality of the circumstances; those circumstances may all seem
innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal
conduct, an investigative detention is justified.” Moreover, “the relevant inquiry is not whether 18
particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular types
of non-criminal acts.” “The process does not deal with hard certainties, but with probabilities. 19
Long before the law of probabilities was articulated as such, practical people formulated certain
common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the
same—and so are law enforcement officers.”20
Here, when asked to summarize the “articulable facts” that led him to suspect that
Oden was engaged in narcotics activity on the night in question, Chadney testified as follows:
The fact that she was leaving a known drug area, high crime area, the fact that when she was asked directly about, you know, her criminal history, she—she lied about that and intentionally left out the drug-related cases. And also when asked—when asked about the—if there were any narcotics in the vehicle her demeanor changed, and she became increasingly more nervous.
Based on this and other evidence, the district court made the following fact findings
relevant to the reasonable-suspicion inquiry:
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).1 8 Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (citing United States v.1 9 Sokolow, 490 U.S. 1, 10 (1989)). Sokolow, 490 U.S. at 8.2 0 8
• Officer Chadney observed Defendant leaving Candlewood Suites, which he knew from his experience to be a “high crime area known for narcotics use.” Officer Chadney has personally arrested persons leaving this hotel for narcotics-related criminal activity.
• Candlewood Suites’s status as a high-crime area known for narcotics activity is well known within the Round Rock Police Department.
• When answering Officer Chadney’s questions, Defendant confirmed that she had indeed just left Candlewood Suites. Defendant also said that while she had been previously arrested, it was only for possession of stolen items. When Officer Chadney sought to confirm this, the police dispatch advised him that her criminal history indicated that Defendant had been previously arrested for narcotics.
• When Officer Chadney asked Defendant if she had any narcotics on her, he observed that she became “more nervous.” Officer Chadney found this reaction noteworthy, as does this Court, because he had met Defendant “a couple weeks prior” to the date of the search contested in this cause when Defendant was struck by a drunk driver. At that time, even after that collision, she “wasn’t nervous at all. . . . was very calm, had a great demeanor about her.”
• Defendant showed that same lack of nervousness on the night of the instant offense until Officer Chadney specifically brought up the subject of narcotics.
• At that point, Officer Chadney also observed Defendant’s heart begin to race, and specifically noted that the artery on the left side of Defendant’s neck was pulsating more rapidly. Officer Chadney credibly testified that he was trained to specifically look for activity in that artery to see a rising heart rate, particularly since it is easily visible while standing outside a driver’s door during a traffic stop, as it was in this case. It is observable on the video that the Defendant’s hair, while long, is pulled back on the sides.
• Officer Chadney also observed other signs of Defendant’s increased nervousness including that she began to breathe more heavily and her demeanor became more “antsy.”
• Officer Chadney credibly testified that he was able to differentiate between the general nervousness from encounters with a police officer and Defendant’s nervousness here based on the difference in his interaction with Defendant in this case versus his previous interaction with her after the earlier collision.
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• Officer Chadney then began questioning Ms. Browning, Defendant’s passenger. Ms. Browning admitted that she had been arrested for possession of marijuana and possession of methamphetamine.
• Officer Chadney observed that Ms. Browning’s demeanor also became much more nervous when he asked directly if there were narcotics in the vehicle. Officer Chadney ran Ms. Browning’s criminal history, and found that she had been arrested on multiple occasions for possessing controlled substances.
The district court’s findings are supported by the evidence in the record, summarized above, and we
cannot conclude that the district court erred in determining that the above circumstances, when
considered in their totality, provided Officer Chadney with reasonable suspicion that Oden had
committed a narcotics offense so as to justify prolonging the detention to wait for the arrival of a
canine unit.21
See Matthews v. State, 431 S.W.3d 596, 603-04 (Tex. Crim. App. 2014); see also Furr2 1 v. State, 499 S.W.3d 872, 880 (Tex. Crim. App. 2016) (concluding that suspect’s presence in location known to be a “high drug, high crime area,” combined with other circumstances, including police observations of suspect’s “nervous” behavior, provided officers with reasonable suspicion to detain suspect and investigate possible drug use); Hamal, 390 S.W.3d at 308 (“Although nervousness alone is not sufficient to establish reasonable suspicion for an investigative detention, it can do so in combination with other factors. Likewise, a prior criminal record does not by itself establish reasonable suspicion but is a factor that may be considered. Deception regarding one’s own criminal record has also been recognized as a factor that can contribute to reasonable suspicion.”); Foster v. State, 326 S.W.3d 609, 613 n.10 (Tex. Crim. App. 2010) (“Time and location are relevant and appropriate considerations when doing a totality of the circumstances review to determine whether or not reasonable suspicion exists.”); Bolle v. State, No. 05-16-01127-CR, 2017 Tex. App. LEXIS 7952, at *12 (Tex. App.—Dallas Aug. 18, 2017, no pet. h.) (mem. op., not designated for publication) (“Given Bolle’s present appearance, unusual nervousness, and prior reports of association with illegal drugs, it is at least rational to infer she was continuing to use illegal drugs and could have such drugs in her possession even if she was not intoxicated at the time of the stop. These articulable facts, taken with rational inferences therefrom, supported a reasonable suspicion that Bolle was in possession of narcotics.”); Valentine v. State, No. 04-16-00397-CR, 2017 Tex. App. LEXIS 4249, at *4-8 (Tex. App.—San Antonio May 10, 2017, no pet.) (mem. op., not designated for publication) (concluding that totality of circumstances, including defendant 10
We overrule Oden’s second point of error.

Outcome: We affirm the order of deferred adjudication.

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