                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00119-CR
                               __________________

               BRENDA AMAZE UHUNMWANGHO, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 75th District Court
                       Liberty County, Texas
                      Trial Cause No. CR33117
__________________________________________________________________

                           MEMORANDUM OPINION

      Appellant Brenda Amaze Uhunmwangho appeals the trial court’s denial of

her motions to suppress. In a single issue, she argues that Carpenter v. United States,

138 S. Ct. 2206 (2018) applies to this case, and she contends the State’s warrantless

search of a database of stored photos of license plates taken by license plate reader

cameras on Highway 59 violated her Fourth Amendment rights. We affirm.



                                          1
                                    Background

      A grand jury indicted Uhunmwangho for money laundering in an amount of

$150,000 or more but less than $300,000, with an allegation of a prior felony

conviction. According to the officers who testified at the suppression hearings,

Uhunmwangho was initially stopped for speeding on Highway 59, the police

questioned Uhunmwangho and learned from her that she had just traveled to and

from Memphis, Tennessee, and she showed signs of nervousness, and gave the

officers inconsistent information, and the Officers asked her for permission to search

her vehicle and she consented to the search. 1 The police also ran her license plate

through the license plate reader database and obtained a photograph of her license

plate. After searching her vehicle, a large amount of cash was discovered hidden in

a secret compartment of Uhunmwangho’s vehicle.

      In Uhunmwangho’s first motion to suppress she argued that the traffic stop

that resulted in her arrest was not supported by a warrant or probable cause, that her

detention after the police discovered she had no outstanding warrants was

unconstitutional, and that her vehicle was illegally searched without a warrant. The

court held a hearing on the initial motion to suppress and denied the motion.



      1
        Uhunmwangho argued in her first motion to suppress that she did not consent
to the search, but she does not make this argument on appeal.
                                          2
Uhunmwangho filed a second motion to suppress and an amended second motion to

suppress, restating her original arguments, and also arguing that law enforcement’s

use of license plate reader cameras is an unconstitutional violation of privacy. The

trial court held another hearing on the second and amended second motion and

denied the motion. Thereafter, the United States Supreme Court issued its opinion

in Carpenter v. United States, in which the Court held that CSLI (cell-site location

information) records carry an expectation of privacy and the Fourth Amendment

requires that law enforcement must generally obtain a search warrant supported by

probable cause for CSLI associated with a history of the user’s physical location.

See 138 S. Ct. at 2221. Uhunmwangho filed a motion for reconsideration requesting

that the trial court reconsider its ruling in light of Carpenter, and the trial court

denied the motion to reconsider. Uhunmwangho then pleaded guilty, and the trial

court sentenced her to ten years’ imprisonment suspended for eight years of

community supervision. This appeal followed.

      On appeal, Uhunmwangho argues in a single issue that the trial court erred in

denying her motions to suppress and that “the use of the license plate reader was a

search” that was done without a warrant and without exigent circumstances.

According to Uhunmwangho, while she was being questioned after the initial traffic

stop, the officer “had no reasonable suspicion of any criminal activity being afoot[.]”

                                          3
Uhunmwangho argues that because the officer lacked reasonable suspicion, he

searched the license plate reader information to see when Uhunmwangho’s car had

passed through the area. Uhunmwangho argues that the photos taken by the license

plate reader cameras “give[] rise to location at a particular time much like the cell

tower gave location information in Carpenter[]” and that “people maintain a

legitimate expectation of privacy in the record of their physical movement.”

      The State responds that Uhunmwangho failed to establish that she had an

expectation of privacy in her movements while driving on public roads. The State

further argues that because a police officer’s observation of a license plate that is

viewable on a public street would not constitute a search, then the use of a license

plate reader to “enhance” an officer’s observation should not cause the observation

to become a search for the purposes of the Fourth Amendment.

                             First Suppression Hearing

Testimony of Deputy Timothy Niemeyer

      Deputy Niemeyer testified that on June 7, 2016, he stopped Uhunmwangho

after he observed her vehicle on Highway 59 appear to be speeding—an assessment

that he based on numerous traffic stops he had conducted and his experience

observing vehicles traveling at a speed that he thought were speeding that he later

confirmed by radar. According to Niemeyer, his radar confirmed that

                                         4
Uhunmwangho was traveling at a speed of seventy-one miles an hour, and the speed

limit in the area was sixty-five miles an hour. After activating his lights, he pulled

Uhunmwangho over for speeding, but he agreed he did not give Uhunmwangho a

ticket for speeding. Niemeyer identified State’s Exhibit 1 as a video recording made

from his vehicle’s in-dash or in-car camera and that the recording was an accurate

depiction of events that day, and State’s Exhibit 1 was played. Niemeyer testified

that the traffic offense of speeding occurred before the video started.

      After the stop, Uhunmwangho produced her driver’s license to Niemeyer and

Niemeyer observed luggage sitting in the second row of the vehicle, which he

regarded as “a little suspicious[.]” After a few minutes, Deputy Fasolino arrived at

the scene, and Niemeyer showed Uhunmwangho’s driver’s license to Fasolino to

conduct an in-car computer check on the validity of her license and whether there

are any “wants or warrants.” Niemeyer agreed that Uhunmwangho told him she had

gone to Tennessee for three or four days but testified that Uhunmwangho later denied

that she had been to Memphis for three to four days and told Niemeyer that she had

driven to Memphis that morning. Niemeyer testified that, in his experience working

in interdiction, Memphis is sometimes “a destination city for contraband[,]” Houston

is “known as a hub for narcotics[]” and “a source destination city for drugs to go to



                                          5
from Houston[,]” and a typical route from Houston to Memphis would be Highway

59.

      At one point during the playback of the video, Niemeyer explained that a

clicking sound was the mouse for his in-car computer, and he testified that he was

“accessing the license plate readers that we have in Liberty County on U.S. 59 [that]

capture license plates [and] the reader with cameras [] documents the time it crossed

and the date that it crossed.” According to Niemeyer, he accessed information from

the license plate readers “through the company’s Web site where the information is

stored.” Niemeyer testified that

      we have two license plates readers, one for the northbound lanes and
      one for the southbound lanes. The northbound lane reader is located on
      U.S. 59 northbound I would say right around the 105 turnaround where
      you turn around to go back south to take 105.

Niemeyer testified that the northbound license plate readers had observed

Uhunmwangho’s license plate earlier that morning. State’s Exhibit 2 was admitted

into evidence, which Niemeyer agreed was a true and accurate depiction of what he

saw when he checked license plate information for Uhunmwangho’s vehicle. Exhibit

2 was titled “LEARN Detection Record Detail” and the report also portrayed the

names “Law Enforcement Archival & Reporting Network” and “Vigilant[.]”

Niemeyer testified that the license plate reader reported that Uhunmwangho’s

vehicle crossed the area at 1:00 a.m. on June 7, 2016, and that he made the traffic
                                         6
stop about 9:00 p.m. the same day. Niemeyer agreed that at that point he believed

that something other than a speeding violation had occurred.

      Niemeyer testified that dispatch provided vehicle information for the license

plate, and Niemeyer also requested criminal history information. Niemeyer agreed

that the inquiry determined Uhunmwangho was “clear of warrants[.]” According to

Niemeyer, Uhunmwangho was “very nervous” when he was speaking with her, she

rubbed her face, and she “was breathing very hard, breathing very fast.” Based on

his training and experience, he regarded Uhunmwangho’s rubbing her face, playing

with her hair, and muscle twitches as signs of stress. Niemeyer also agreed that, by

the time he got the results from the license plate reader, he believed that

Uhunmwangho had told him something that was not true.

      According to the deputy, Uhunmwangho told him “You can go ahead and

search the vehicle[]” and at no time did she ever withdraw her consent. Niemeyer

testified that neither he nor Deputy Fasolino exhibited any force, threat, or coercion

against   Uhunmwangho.       Niemeyer    testified   that   during   the   search   of

Uhunmwangho’s vehicle, he found: “[f]ive large gallon size zip lock bags containing

a large amount of U.S. currency [] contained in a hidden aftermarket compartment

that was built into the vehicle.” The officers seized the money and the vehicle, and

Niemeyer took photos of the vehicle and the money. Niemeyer testified that at that

                                          7
point, Uhunmwangho was detained for suspicion of being involved in criminal

activity.

Testimony of Deputy Stefan Fasolino

       Stefan Fasolino, an officer with the Galveston Police Department, testified

that on June 7, 2016, he was a deputy with the Liberty County Sheriff’s Office and

he had worked in criminal interdiction. Fasolino testified that he rode with Sergeant

Niemeyer that day in the same vehicle. According to Fasolino a “quick turn-around

trip” from one place to another with a short stay before returning is a “clue” that

some criminal activity was going on.

       Fasolino testified that Niemeyer stopped Uhunmwangho for speeding. As the

video in State’s Exhibit 1 was played, Fasolino identified a point where Niemeyer

handed him Uhunmwangho’s driver’s license, and Fasolino testified he then went to

the patrol vehicle to check the computer. According to Fasolino, the TCIC and NCIC

systems did not show any warrants for Uhunmwangho, and the driver’s license

appeared to be valid. Fasolino also identified a point in the video where Niemeyer

“was going over the plate scans[]” on the computer in his vehicle. At another point

in the video, Fasolino explained that he could hear Uhunmwangho say “You can

search the vehicle.” Fasolino denied exhibiting any force or coercion or drawing his



                                         8
weapon, pepper spray, or handcuffs, and he testified that Uhunmwangho never

withdrew her consent.

      The trial court asked the prosecutor when during the events captured on the

video on State’s Exhibit 1 were the results of the license plate readers obtained, and

Deputy Fasolino explained that at about four-and-a-half to five minutes into the

video Deputy Niemeyer obtained the license plate reader results. Fasolino also

agreed that at about four minutes into the video, he had received information from

TCIC and NCIC that Uhunmwangho did not have any warrants and her license was

valid. According to Fasolino, Niemeyer had asked dispatch to run Uhunmwangho’s

license plate prior to pulling Uhunmwangho over, and he obtained the results of the

license plate reader cameras after pulling Uhunmwangho over.

      The trial court denied the motion to suppress and added:

      If there is an issue to be addressed in this case, that issue may be the
      license plate reader itself and the manner of its use by law enforcement
      and the extent to which it may violate a fundamental constitutional right;
      that is, to travel about the United States freely without suspicion . . . .

                            Second Suppression Hearing

      At the hearing on Uhunmwangho’s second motion to suppress, defense

counsel stated the issue was whether “the license plate reader that the county has on

Highway 59 in the Cleveland area is a violation of the Fourth Amendment right of

privacy.” According to the defense, the police used the license plate readers
                                      9
unconstitutionally and would not have been able to get a warrant because the officer

“wouldn’t have been able to state specifically what crime had taken place[,]” and the

use of the license plate readers was a “fishing expedition.” Defense counsel agreed

it was not revisiting whether there was probable cause for the initial detention.

Testimony of Officer Paul Young

         Officer Paul Young testified that on June 7, 2016, the Liberty County Sheriff’s

Department owned and operated two license place readers in the county. According

to Young, the readers attempt to take a photo of every license plate that passes

through the reader’s location, then the photos are saved of the vehicle and license

plate, and then sent to Vigilant Solutions, and law enforcement has access to the

stored information. Young testified that typically the plate readers “show[] a pattern

sometimes of where the vehicle goes to and travels” and the data is used for recovery

of stolen vehicles, warrants, Amber alerts, missing persons, and interdiction. Young

further testified that some tow trucks have plate readers. According to Young, the

information stored in the Vigilant system is accessed through the internet using pass

codes.

         On cross-examination, Young testified that no notice is posted on Highway

59 about the cameras and that travelers do not consent to their use nor contract with

Vigilant. According to Young, the only information stored is a photograph of the

                                           10
vehicle and license plate, and the system does not store names or addresses. Young

testified that when a person is pulled over, the officer can run the driver’s license

through the state system, but the Vigilant system is a different system, although the

Vigilant system is “tied to the DPS state system[]” and can provide an alert if a

vehicle has been reported stolen. Young agreed it is not against the law for a person

to lie about where they have traveled.

      In announcing its ruling from the bench, the court stated that the State’s use

of license plate readers was troubling, but the court denied the motion and stated:

             . . . The question is [whether] it [is] constitutionally incorrect to
      engage in this practice.
             I cannot equate any right of privacy in and to a license plate. It is
      no different than an officer taking a photograph of an individual to show
      that an individual was at a particular location.
             That does not involve a constitutional invasion of rights of
      privacy because anything you display to the public at large is subject to
      being photographed. The problem would come in[,] in my opinion[,] in
      the use of this data.
             If law enforcement used this data solely to support a reasonable
      suspicion for the initial detention, then I think we may have a serious
      issue to be argued about.
             We don’t have that in this case because reasonable suspicion was
      supported and found in the last hearing, and that is exceeding the speed
      limit. I don’t see a Fourth Amendment issue, and I don’t see a
      constitutional issue.
             Had it been that the argument being that the data and how law
      enforcement used this data rather than acquiring this data, we may have
      a different situation. Law enforcement did not rely solely on this data
      to justify the initial detention of your client.


                                          11
                                  Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

We review the trial court’s factual findings for an abuse of discretion but review the

trial court’s application of the law to the facts de novo. Turrubiate v. State, 399

S.W.3d 147, 150 (Tex. Crim. App. 2013).

      At a suppression hearing, 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, and a trial

court may choose to believe or disbelieve all or any part of a witness’s testimony.

Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim.

App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999));

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When reviewing a trial

court’s ruling, the appellate court does not engage in its own factual review. St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total

deference to the trial court’s determination of historical facts, “especially if those are

based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d

43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court’s

conclusions with respect to mixed questions of law and fact that turn on credibility

or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We

                                           12
review purely legal questions de novo as well as mixed questions of law and fact

that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404,

410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.

      When, as here, there are no findings of fact and none were requested, an

appellate court must presume that the trial court implicitly resolved all issues of

historical fact and witness credibility in the light most favorable to its ultimate ruling.

State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d

at 857). We will uphold the trial court’s ruling if it is reasonably supported by the

record and is correct on any theory of law applicable to the case. State v. Story, 445

S.W.3d 729, 732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-

63 (Tex. Crim. App. 2013); State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006).

      Traffic stops require an officer to have a reasonable suspicion that the person

detained is, has been, or will soon engage in criminal activity. Jaganathan v. State,

479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Crockett v. State, 803 S.W.2d 308,

311 (Tex. Crim. App. 1991). The standard is whether, based on facts articulated by

the officer and the totality of the circumstances, an objectively reasonable officer

would have developed suspicion that an offense was in progress or had occurred.

See Martinez v. State, 500 S.W.3d 456, 465 (Tex. App.—Beaumont 2016, pet. ref’d)

                                            13
(citing Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005)). We review

de novo “whether the totality of [the] circumstances is sufficient to support an

officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d at 48-49.

                              Expectation of Privacy

      “Whether society is willing to recognize a particular set of circumstances as

involving a reasonable expectation of privacy has always been treated as a question

of law by the United States Supreme Court.” Villarreal v. State, 935 S.W.2d 134,

146 (Tex. Crim. App. 1996) (Keller, J., concurring). “[A]n accused has standing to

challenge the admission of evidence obtained by an ‘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) (citing Rakas v. Illinois, 439 U.S. 128,

139 (1978)). Because she has greater access to relevant evidence, a defendant who

challenges a search has the burden of proving facts establishing a legitimate

expectation of privacy. Villarreal, 935 S.W.2d at 138.

      Under the privacy-based model of the Fourth Amendment set forth by Katz v.

United States, a person has standing to contest a search when the person has a

legitimate expectation of privacy in the space being invaded by government agents.

See 389 U.S. 347, 350-51 (1967); see also Rakas, 439 U.S. at 149; Granados v.

State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002). A defendant has the burden

                                        14
to prove that a legitimate expectation of privacy existed, and must do so by

demonstrating that (1) by her conduct, she exhibited an actual intention to preserve

something as private, and (2) this subjective expectation of privacy is one that

society is prepared to recognize as reasonable. State v. Granville, 423 S.W.3d 399,

418 (Tex. Crim. App. 2014) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979);

Oles v. State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999)). Factors courts use in

deciding whether a person has a reasonable expectation of privacy in the place or

object searched include: (1) whether the defendant had a proprietary or possessory

interest in the place or object searched; (2) whether the defendant’s presence in or

on the place searched was legitimate; (3) whether the defendant had a right to

exclude others from the place or object; (4) whether the defendant took normal

precautions, prior to the search, which are customarily taken to protect privacy in

the place or object; (5) whether the place or object searched was put to a private use;

(6) whether the defendant’s claim of privacy is consistent with historical notion of

privacy. See id. at 407-08 (citing Granados, 85 S.W.3d at 223).

                                      Analysis

      The officers testified that two license plate reader cameras on Highway 59 in

Liberty County took photographs of vehicles’ license plates, that the images were

stored by Vigilant Solutions, and that law enforcement could access the photographs

                                          15
by use of log-in pass codes. In this case, Officer Niemeyer’s search of the Vigilant

Solutions database yielded a photograph of Uhunmwangho’s vehicle taken at about

1:00 a.m. in the morning on June 7, 2016, and Uhunmwangho was stopped for

speeding at about 9:00 p.m. on June 7. Uhunmwangho argues that the search of the

third-party Vigilant Solutions database violated her Fourth Amendment rights

because “people maintain a legitimate expectation of privacy in the record of their

physical movement.” Therefore, she must demonstrate that she has an expectation

of privacy in the photographs of her license plate that were stored in the Vigilant

Solutions database.

      A car’s license plate is exposed to public view. The license plate displayed on

a vehicle while traveling on a public roadway is not typically an area where a person

has a reasonable expectation of privacy, and we conclude that taking a picture of a

license plate displayed on a vehicle that is traveling on a public road would not be

subject to Fourth Amendment protection nor would it constitute a search. See Katz,

389 U.S. at 351; Michalec v. State, No. 03-11-00104-CR, 2013 Tex. App. LEXIS

6431, at **10-11 (Tex. App.—Austin May 24, 2013, no pet.) (mem. op., not

designated for publication) (citing Wood v. State, 632 S.W.2d 734, 741-42 (Tex.

Crim. App. 1982); Turner v. State, No. 05-99-01246-CR, 2000 Tex. App. LEXIS

7746, at *2 (Tex. App.—Dallas Nov. 15, 2000, no pet.) (mem. op., not designated

                                         16
for publication)). On this record, we cannot say that Uhunmwangho has

demonstrated any conduct by her that exhibited “an actual intention to preserve [] as

private[]” a photograph of her vehicle and its license plate taken while she was

driving on Highway 59. See Granville, 423 S.W.3d at 418.

      Uhunmwangho does not challenge the license plate reader taking a picture of

her license plate on the public highway, but she argues that a warrant was required

for a search of the license plate photo database because the license plate readers in

this case, like the cell-phone location data in Carpenter, store data that then produces

a record of her location and that is something in which she has a privacy interest. In

Carpenter, the defendant was charged with six counts of robbery and six counts of

carrying a firearm during a federal crime of violence. See 138 S. Ct. at 2212. Among

the evidence prosecutors obtained from the cell phone carrier by subpoena were

“12,898 location points” from Carpenter’s cell phone records that catalogued

Carpenter’s movements. See id. From this evidence, the FBI produced a map that

placed Carpenter’s phone near four of the charged robberies. See id. at 2212-13. The

Supreme Court held that the Government’s acquisition of the cell-site records was a

search within the meaning of the Fourth Amendment for which a warrant supported

by probable cause was required. See id. at 2220-21. The Court explained:

      Mapping a cell phone’s location over the course of 127 days provides
      an all-encompassing record of the holder’s whereabouts. As with GPS
                                       17
      information, the time-stamped data provides an intimate window into a
      person’s life, revealing not only his particular movements, but through
      them his “familial, political, professional, religious, and sexual
      associations.” These location records “hold for many Americans the
      ‘privacies of life.’”
      ...
      A cell phone faithfully follows its owner beyond public thoroughfares
      and into private residences, doctor’s offices, political headquarters, and
      other potentially revealing locales.

Id. at 2217-18 (citing Riley v. California, 573 U.S. 373, 403 (2014); Katz, 389 U.S.

at 415). The Court concluded that the retrospective quality of cell phone location

data creates the ability to reconstruct a person’s movements and possibly results in

“tireless and absolute surveillance.” Id. at 2218.

      By contrast, the Court explained, “‘[a] car has little capacity for escaping

public scrutiny.’” Id. (quoting Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality

opinion)). “What a person knowingly exposes to the public . . . is not a subject of

Fourth Amendment protection.” Katz, 389 U.S. at 351. In Chaney v. City of Albany,

No. 6:16-CV-1185, 2019 U.S. Dist. LEXIS 143055 (N.D.N.Y. Aug. 16, 2019), the

trial court faced a Fourth Amendment challenge concerning fixed license plate

readers that recorded twenty-four hours a day. Id. at **21-22. Chaney alleged that

the use of cameras throughout the city operated like a tracking device, which resulted

in a “‘massive invasion of [his] privacy.’” Id. The New York federal court noted that



                                          18
courts have consistently upheld the use of license plate readers and similar

technology by law enforcement agencies. Id. at **22-23.2 The court explained:

      Because the purpose of a license plate is to readily facilitate the
      identification of the registered owner of the vehicle for the
      administration of public safety, a person has no reasonable expectation
      of privacy in the information acquired by the State for this purpose and
      contained in a law enforcement or DMV database.

Id. at *23 (quoting People v. Bushey, 29 N.Y.3d 158, 163 (2017)). The New York

federal court noted that the fixed cameras “indiscriminately recorded 24-hours a day,

without any particular focus on specific individuals,” and because Chaney had no

reasonable expectation of privacy in his license plate information while traveling on

public roads, no Fourth Amendment violation had occurred. Id. at **25-26.

      A Vigilant Solutions license plate reader system was also challenged in United

States v. Yang, No. 2:16-cr-231-RFB, 2018 U.S. Dist. LEXIS 11967 (D. Nev. Jan.

25, 2018). In that case, the license plate readers were mounted on tow trucks,


      2
         See, e.g., United States v. Miranda-Sotolongo, 827 F.3d 663, 668 (7th Cir.
2016) (“Because the police conducted a check of a database containing only non-
private information and did so using only registration information that could be seen
by any member of the public, the police did not conduct a Fourth Amendment
search.”); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007)
(stating that “when police officers see a license plate in plain view, and then use that
plate to access additional non-private information about the car and its owner, they
do not conduct a Fourth Amendment search.”); United States v. Ellison, 462 F.3d
557, 563 (6th Cir. 2006) (“Thus, so long as the officer had a right to be in a position
to observe the defendant’s license plate, any such observation and corresponding use
of the information on the plate does not violate the Fourth Amendment”).
                                           19
vehicles used by repossession companies, and law enforcement vehicles that drove

around the city. Id. at **4-5. The Nevada federal district court explained:

             The observations of license plate locations noted in the [Vigilant]
      database do not rely upon invasive technology allowing law
      enforcement officers to essentially peer into the private property of
      individuals. The [Vigilant] database relies upon random observations
      of license plates by digital cameras placed on tow trucks or other
      vehicles for repossession companies and on some law enforcement
      vehicles. The digital cameras capture images of license plates when the
      vehicle with a mounted camera drives past or near another vehicle with
      a license plate. The program is not designed to and does not track an
      individual’s movements or an individual automobile’s movements
      continuously or even regularly. The program does not permit a law
      enforcement client to direct that a vehicle with a [Vigilant] digital
      camera follow and continuously record the location of a particular
      automobile. The [Vigilant] database can but does not regularly provide
      contemporaneous location information.

             [][T]he Court finds that the technology associated with the digital
      camera for [Vigilant] does not permit advanced or invasive surveillance
      of individuals or individual automobiles. The [Vigilant] digital cameras
      do not have the capability of capturing images through solid barriers
      such as walls erected to protect the privacy of personal property or
      individual movements. The technology does not have the capability of
      taking photos of license plates from a significant distance—that is
      beyond two to three standard lanes of a street. The cameras cannot be
      readily or easily manipulated while the vehicle upon which the camera
      is mounted is moving.

             [][T]here is no evidence in this case to suggest that law
      enforcement officers used the [Vigilant] database to regularly or
      continuously monitor the movements of Yang[.]
             ...
             [T]he Court does not find that there was any form of “electronic
      trespass” that might implicate a reasonable expectation of privacy. The
      location information in this case was not generated by Yang
                                         20
      electronically or digitally surrendering private or confidential
      information to a third-party working in cooperation with law
      enforcement. The location information for the [vehicle] was not
      identified by use of any invasive digital technology regarding its
      whereabouts or those of Yang. The location information was obtained
      through random observation(s) recorded on public streets.

Id. at **15-16, 18-19. The Nevada federal district court concluded that the officers

had not used an invasive vehicle location tracking technology for which a warrant

was required. Id. at **14-15.

      On this record, we cannot say that the trial court erred in concluding that

Uhunmwangho failed to demonstrate that she had a privacy interest in the retrieval

of the data and a photograph of Uhunmwangho’s license plate and vehicle when it

was traveling on Highway 59. The trial court did not err in concluding that no

warrant was required. 3 We find Carpenter factually distinguishable. Carpenter

involved a search of the information generated by Carpenter’s personal cell phone

over a lengthy period of time that was then used to reconstruct Carpenter’s

movements and location. Here, the police stopped Uhunmwangho for speeding and

visually observed the license plate on her vehicle, and then the police ran her license



      3
         Uhunmwangho did not make a trespass argument nor does she assert any
challenge under the Texas Constitution or under any other provision of the United
States Constitution. Cf. United States v. Jones, 565 U.S. 400, 404-05 (2012) (a
plurality of the Supreme Court ruled that the physical attachment of a GPS tracking
device on Jones’s automobile was a trespass, and an unconstitutional search).
                                         21
plate in the license plate reader database and retrieved a single photograph taken

while Uhunmwangho was driving on a public roadway. Therefore, we find

Carpenter factually distinguishable. 4

      That said, even assuming without deciding that Uhunmwangho had a privacy

interest in the photograph retrieved from the license plate reader, Uhunmwangho

herself told Niemeyer that she had driven to Memphis that morning. Niemeyer

testified that he stopped Uhunmwangho for speeding, that Uhunmwangho displayed

signs of nervousness, and that Uhunmwangho initially lied about her trip. Based on

his experience working in interdiction, Niemeyer had suspicions because

Uhunmwangho had indicated she just returned from Memphis, which he testified is

“a destination city for contraband[.]” Uhunmwangho then consented to the search of

her vehicle, and she does not challenge the search of her vehicle in this appeal. A

traffic violation committed in an officer’s presence is sufficient to authorize an initial

traffic stop. See Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000). And

consent to search is one of the well-established exceptions to the constitutional



      4
        See also Sims v. State, 569 S.W.3d 634, 645-46 (Tex. Crim. App. 2019)
(examining Carpenter and concluding that appellant did not have a reasonable
expectation of privacy in his physical movements or location as reflected in less than
three hours of real-time CSLI records the police accessed by pinging appellant’s
phone fewer than five times) (citing Carpenter v. United States, 138 S. Ct. 2206,
2014-2021 (2018)).
                                         22
requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412

U.S. 218, 219 (1973); Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App.

2011); Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010).

      On this record, we cannot say the trial court erred in concluding that no Fourth

Amendment violation occurred and that, based on the totality of the circumstances,

the officers had reasonable suspicion based on articulable facts that would

reasonably lead them to conclude that Uhunmwangho was, had been, or would soon

be engaged in criminal activity. See Ford, 158 S.W.3d at 492-93.

      We overrule Uhunmwangho’s issue and affirm the trial court’s judgment.

      AFFIRMED.

                                                    _________________________
                                                        LEANNE JOHNSON
                                                              Justice

Submitted on February 25, 2020
Opinion Delivered March 25, 2020
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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