Kerwin Simpson v. State

Opinion issued April 26, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00726-CR ——————————— Kerwin Darvell Simpson, Appellant V. State of Texas, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1199359 MEMORANDUM OPINION Appellant Kerwin Darvell Simpson was charged by indictment with possession with intent to deliver a controlled substance weighing more than four grams but less than two hundred grams. See Tex. Health & Safety Code Ann. § 481.1121 (West 2010). Following the trial court’s denial of Simpson’s pre-trial motion to suppress, Simpson pleaded nolo contendre to a lesser charge of possession with intent to deliver a controlled substance with an aggregate weight of one gram but less than four grams. Id. The trial court sentenced Simpson to two years in prison. In his sole issue on appeal, Simpson contends that the trial court erred in overruling his pre-trial motion to suppress. We affirm. Background Simpson filed a pre-trial motion to suppress evidence recovered by the police during a traffic stop.[1] Simpson argued that because the police officers did not have probable cause to stop his car or detain and search his person, the cocaine and money recovered by the police during the search were inadmissible. During a hearing on the motion to suppress, Lieutenant J. Crowson of the Houston Police Department testified that on January 15, 2009 he was on patrol in an unmarked police vehicle in the Sunny Food Store parking lot near the 4100 block of West Bellfort. Crowson was surveilling the parking lot in response to reports of narcotics and prostitution activity. Crowson observed Simpson, George Robinson, Warren Robinson, and two women move back and forth between two cars in the parking lot. Crowson testified that he became suspicious of their activity because the two cars were parked away from the door of the Food Mart, the occupants moved between the cars with frequency and only one member of the group, a woman, actually entered the Food Mart. Crowson radioed Officers Tabor and Rippey, who were nearby in a marked police unit. Crowson asked Tabor and Rippey to be ready to assist him if necessary. After about twenty minutes, Simpson, Warren, and George left the parking lot in a Dodge Magnum and the women left in a separate car. As he drove out of the parking lot, Simpson failed to make a turn that was as close as practicable to the right-hand curb. As Crowson followed the Magnum he saw Simpson make a left turn from a lane other than the extreme left-hand lane that was lawfully available. Crowson testified that both the right turn out of the parking lot and Simpson’s left turn from a lane other than the extreme left-hand lane were traffic violations. Crowson radioed to Officers Tabor and Rippey and asked them to stop the Magnum. Crowson, who was in plainclothes, remained in his vehicle during the initial stop and waited until the officers began to detain Simpson, Warren, and George before assisting at the scene. Crowson decided to help with the detention once he observed that one of the men, George, appeared to be wandering away from the car. Crowson testified that as he approached the Magnum he could smell the odor of marijuana. Crowson did not participate in the search of the vehicle or the men. Officer Tabor testified that he did not personally observe the same traffic violations as Crowson, but began to follow the Magnum at Crowson’s request. While driving behind the Magnum, Tabor noticed that the Magnum’s paper license plate was missing a date of sale and that it lacked a required Texas emblem. Following Crowson’s instructions, Tabor and Rippey activated their emergency lights and pulled the car over. The officers saw Simpson sitting in the driver’s seat, George sitting in the front passenger seat, and Warren in the back seat. Tabor testified that both he and Rippey approached the vehicle and asked that all of the windows be rolled down. According to Tabor, after all of the windows had been rolled down he could smell the odor of bulk, unburned marijuana. Tabor and Rippey asked the three occupants to step out of the car and all three men were put in handcuffs. Tabor testified that the officers patted down George, Warren, and Simpson and found a large amount of money in each of their pockets. The officers did not locate any weapons or hard objects on the men. The officers placed the money on the front seat of the police vehicle. Tabor also stated that for safety reasons, while the officers searched the car, they detained the men by putting two in the back of the police car and having George stand handcuffed on the side of the road. Tabor testified that while searching under the driver’s side front seat of the car he located a plastic bag that contained smaller bags. Tabor observed a white powdery substance inside the smaller bags. Tabor also found, under the back side of the same seat, a glass beaker containing a liquid and white powdery substance and a whisk. The white powdery substance tested positive for cocaine in a field test. Tabor testified that the officers did not recover any marijuana inside of the car or on George, Warren, or Simpson. According to Tabor, because the odor of marijuana had been so strong but the officers could not locate the source during their search, they radioed for the assistance of a canine unit to aid in locating a hidden compartment or hiding place. Although the dog searched the car, Tabor testified that it did not alert the officers to the presence of marijuana. The officers seized the money and arrested all three men for possession of a controlled substance. According to Tabor, only two minutes passed between the start of the detention and the discovery of the cocaine. The trial court overruled Robinson’s motion to suppress and made findings of fact and conclusions of law. Consistent with the officers’ testimony, the trial court found that Simpson violated a traffic law by making a left turn from a lane other than the extreme left lane. The court thus found that the stop was reasonable. The court found that the officers smelled marijuana when they made contact with the occupants of the car. It also found that all three men were involved in suspicious activity outside the Sunny Food Store, that the activity occurred just a few minutes before the officers smelled the marijuana coming from the car, and that the Sunny Food Store was known for being a place where illegal narcotic activity occurs. Accordingly, the trial court concluded that the officers had probable cause to search the vehicle. The trial court found that the seizure of the money from the men’s pockets was unjustified and granted the motion to suppress the seized money. However, the trial court denied the motion to suppress the cocaine and paraphernalia discovered in the search. Simpson entered a plea of nolo contendre to the charge of possession with intent to deliver a controlled substance with an aggregate weight of one gram but less than four grams and was sentenced to two years in prison. This appeal followed. Standard of Review “In review of a trial court’s ruling on a motion to suppress, an appellate court must apply a standard of abuse of discretion and overturn the trial court’s ruling only if it is outside the zone of reasonable disagreement.” Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We use a bifurcated standard of review, giving almost total deference to a trial court’s determination of historic facts and mixed questions of law and fact that rely upon the credibility of a witness, but applying a de novo standard of review to pure questions of law and mixed questions that do not depend on credibility determinations. Id. at 922–23. In a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). “When the trial court does file findings of fact with its ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court’s fact findings.” Flores v. State, 177 S.W.3d 8, 13–14 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Romero State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Under this deferential standard of review, an appellate court should only disturb a trial court’s findings of fact if they are clearly erroneous. See Manzi v. State, 88 S.W.3d 240, 243 (Tex. Crim. App. 2002) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S. Ct. 1504 (1985)). “To determine whether a fact finder’s decision is ‘clearly erroneous,’ appellate courts examine the record to see whether the ruling leaves them with the ‘definite and firm conviction that a mistake has been committed.’” Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002) (citing and quoting U.S. v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989)). Analysis Simpson’s sole argument on appeal is the trial court abused its discretion by finding that the officers had probable cause to search the vehicle based on the odor of marijuana when a trained police dog with a superior sense of smell, which arrived at the scene sometime after the search, did not alert to the presence of marijuana in the vehicle. Probable cause to believe a vehicle contains evidence of a crime is sufficient to justify a search of a vehicle. Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994). Probable cause exists when the facts and circumstances, within the knowledge of the officer, would lead a person of reasonable caution and prudence to believe that an instrumentality of a crime or evidence will be found. McNairy v. State, 835, S.W.2d. 101, 106 (Tex. Crim. App. 1991); Autry v. State, 21 S.W.3d 590, 592 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978)). “When determining probable cause, the focus is on the facts and circumstances known to law enforcement officials at the time of the search.” Wiede v. State, 214 S.W.3d 17, 26 (Tex. Crim. App. 2007). Texas courts, including the Court of Criminal Appeals, have held that an officer has probable cause to search a vehicle based solely on the smell of marijuana. See Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984) (evidence sufficient to show probable cause for search when officer testified that he smelled marijuana as he approached appellant’s vehicle); Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979) (odor of marijuana provided probable cause to search appellant’s vehicle); Dickey v. State, 96 S.W.3d 610, 613 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (officer who testified that he smelled odor of raw marijuana when he opened appellant’s car door had probable cause to search vehicle); Taylor v. State, 20 S.W.3d 51, 55 (Tex. App.—Texarkana 2000, pet. ref’d) (concluding same). We therefore reject Simpson’s contention that an officer’s testimony that he smelled marijuana is a problematic, tenuous ground for probable cause to search a vehicle. We likewise reject Simpson’s contention that the trial court abused its discretion by crediting the officer’s testimony that he smelled marijuana and therefore had probable cause to search the vehicle, because the trial court’s finding that there was an odor of marijuana is supported by the record. See Flores v. State, 177 S.W.3d at 13–14. Specifically, the trial court found that the “officers immediately developed probable cause to search for marijuana because they smelled the strong odor of marijuana emanating from the vehicle as soon as the occupants rolled down their windows to give the officers their information.” This is supported by Tabor’s testimony that although he did not notice the odor of marijuana when only the driver’s side window was rolled down, he did smell the odor of marijuana when Simpson and the other occupants unrolled the remaining windows. The trial court’s finding that the odor of marijuana was emanating from the vehicle is also supported by Crowson’s testimony that he did not smell the odor of marijuana until he was standing less than two or three feet away from the vehicle. The fact that the trained canine, which arrived at the scene sometime after the search, did not alert the officers to the presence of marijuana does not change our conclusion, because whether probable cause exists is determined from the facts and circumstances known to the officers at the time of their search, not after it. See Wiede, 214 S.W.3d at 26. We conclude that trial court’s finding that the officers smelled marijuana emanating from the vehicle was not clearly erroneous. Manzi, 88 S.W.3d at 254 (quoting Anderson, 470 U.S. 564, 105 S. Ct. 1504). Accordingly, we conclude that the trial court did not err in denying Simpson’s motion to suppress the drugs and paraphernalia. See Dickey, 96 S.W.3d at 613 (officer who testified he smelled odor of raw marijuana when he opened appellant’s car door had probable cause to search vehicle); see Williams v. State, No. 14-01-01250-CR, 2002 WL 31426293, at *3 (Tex. App.—Houston [14th Dist.] Oct. 10, 2002, no pet.) (trial court did not err in denying motion to suppress PCP found in appellant’s car when officer searched car based on odor of marijuana even though no marijuana was found in vehicle). We overrule Simpson’s sole point of error. Conclusion We affirm the judgment of the trial court. Rebeca Huddle Justice Panel consists of Justices Jennings, Massengale, and Huddle. Do not publish. Tex. R. App. P. 47.2(b). [1] The two occupants of the vehicle, George Robinson and Warren Robinson, also moved to suppress this evidence. The trial court heard the motions simultaneously. George Robinson’s appeal, 01-10-00727-CR, and Warren Robinson’s appeal, 01-10-00728-CR, are also before this court.