
NO. 07-02-0453-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

OCTOBER 31, 2003
______________________________

JAI B. STRAUSS,




		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 6121; HON. LEE WATERS, PRESIDING
_______________________________
 
Opinion
______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.
	Jai B. Strauss appeals his conviction for possessing marijuana.  Through four
issues he contends that the trial court erred in denying his motions to suppress evidence
and to dismiss the cause.  He believed the evidence was subject to suppression and the
cause subject to dismissal because his detention and the ensuing search of his van were
illegal.  We affirm the judgment.

Background
	In pertinent part, the record illustrates that appellant and a passenger were stopped
on I-40 outside McLean, Texas, for speeding.  The two were in a Chevrolet van with Ohio
plates, which van appellant drove at the time. The officer who made the stop asked for
appellant's identification and about the identity of the individual who owned the van.  The
latter did not belong to appellant, and though appellant said the owner was a friend, he
could not recall his name.  Furthermore, appellant and his passenger gave the officer
conflicting stories about the location at which they previously stayed.  This caused the
officer to ask if appellant possessed drugs and to request permission to search the van. 
Appellant consented to the request.  
	As he searched the vehicle, the officer discovered a shaving bag, opened it, and
smelled burnt marijuana.  Thereafter, appellant informed the officer that he (appellant) had
smoked some marijuana earlier.  The officer continued his search and noticed laundry
detergent scattered about the rear floor of the van.  Laundry detergent was commonly used
to mask the odor of drugs, according to the officer.  Further investigation revealed a
compartment in the rear of the vehicle wherein tools were commonly stored.  Upon
opening it, the officer smelled the scent of fresh marijuana.  At that point he decided to call
for a drug dog to sniff the vehicle to confirm his suspicion that marijuana was present and
determine its location.  The dog was in the possession of authorities in Shamrock, a
neighboring town, and was not immediately available.  Nonetheless, arrangements were
made for the dog and the officer to meet in the town of McLean.  Apparently, the officer
thought it safer to continue the search at a location off the highway.  So, he asked
appellant to drive the van to a service station in town.  Appellant agreed to do so.
	After the group arrived at the service station, the officer informed appellant and his
passenger that they were not under arrest and were free to leave.  However, they were
denied the opportunity to drive away in the van.  The officer opted to retain control over
the vehicle until his investigation was completed.  Shortly thereafter, appellant and his
passenger asked for permission to go to a nearby convenience store to obtain cigarettes. 
The officer acquiesced.  The two left afoot but did not return.    
	The drug dog arrived about an hour and fifteen minutes after appellant's initial stop
on the highway.  It sniffed the vehicle and indicated that drugs were present in the vicinity
of the van wherein the officer smelled raw marijuana.  Ultimately, 60 pounds of the
substance was discovered in the van, and appellant was arrested after being found
running down the highway some eight hours later.
Issue Two - Consent to Search
	We initially address appellant's second issue, the matter of his consent to search
the van.  He alleges that the State failed to prove it was voluntarily given.  We overrule the
point for it was waived. 
	Via his written motion to suppress, appellant questioned the validity of his consent. 
That is, he alleged that the officers entered upon and searched "premises" and seized
materials "without lawful consent or lawful authority and without a search warrant."  Yet,
the validity of his consent was not mentioned by appellant orally at hearing upon his
motions.  Nor did he orally mention it after the hearing when the trial judge returned to the
courtroom to clarify the issues the parties wanted him to consider.  At that time, appellant
informed the trial court that he believed the case "turns on whether or not you can seize
a vehicle without seizing people." His silence about the question of consent may stem from
comments made to the trial court via the "Trial Brief in Support of Motion to Dismiss" that
he previously tendered to the court.  Therein, appellant expressly represented that while
he thought it "doubtful that the consent to search . . . was voluntary," the "issue does not
have to be decided" since the prior arrest was unlawful.  
	It is clear that to preserve error one must contemporaneously inform the trial court
not only of the objectionable matter but also of the specific grounds underlying the
objection. Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985); Villareal v. State,
811 S.W.2d 212, 217 (Tex. App.-Houston [14th Dist.] 1991, no pet.).  Similarly clear is that
an objection can be waived.  For instance, if one moves to suppress evidence and the
motion is denied, uttering the phrase "no objection" when the evidence is tendered at trial
results in the loss of appellant's complaint viz the motion to suppress.  Moraguez v. State,
701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (en banc).
	Here, while appellant may have mentioned the validity of his consent in his motion
to suppress, he said nothing about it during his argument at the subsequent hearing.  Nor
did he broach the topic when the trial court inquired about the pivotal issues in the dispute. 
By that time, he had already told the judge in writing that the issue of consent did not have
to be decided.   
	We are troubled with the prospect that an appellant can urge an objection on
particular grounds in a written motion, later inform the trial court to disregard one or more
of those grounds, and then contend, on appeal, that one of those very grounds which the
trial court was directed to ignore actually warrants reversal of the judgment.  See Prystash
v. State, 3 S.W.3d 522, 531-32 (Tex. Crim. App. 1999) (stating that under the doctrine of
invited error, one is estopped from complaining about that which he induced).  Under those
circumstances, the appellant hardly complies with the spirit of Texas Rule of Appellate
Procedure 33.1. (1)  Indicating that one ground for objection need not be addressed falls
short of informing the trial court, with sufficient specificity, of all the grounds upon which
the appellant relies in asserting his complaint.  And, because it does, we conclude that an
appellant cannot assert, on appeal, the ground that he told the court need not be decided. 
 So, having told the trial court that it need not address consent, the appellant at bar cannot
raise that issue on appeal as grounds for reversal.
Issues One, Three and Four

	Through his remaining three issues, appellant asserts that the officer had no
legitimate basis to detain and search the van after being stopped for speeding.  We
overrule these points as well.
	It is clear that an officer who witnesses a traffic violation has sufficient authority to
stop the vehicle.  Nuttall v. State, 87 S.W.3d 219, 222 (Tex. App.--Amarillo 2002, no pet.); 
Josey v. State, 981 S.W.2d 831, 837 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd). 
Admittedly, during that stop both the vehicle and its occupants are considered seized. 
Spright v. State, 76 S.W.3d 761, 766 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (stating
that a routine traffic stop is a detention).  And, while the seizure may last no longer than
necessary to effectuate the purpose of the initial stop, Davis v. State, 947 S.W.2d 240,
244-45 (Tex. Crim. App. 1997), the officer is nonetheless entitled to conduct a brief and
minimally intrusive investigation.  For instance, he may require the detainee to identify
himself and produce a valid driver's license and proof of insurance.  Spright v. State, 76
S.W.3d at 766.  So too may the officer check for outstanding warrants, Davis v. State, 947
S.W.2d at 245 n.6, ask about the driver's destination and purpose for the trip, Nuttall v.
State, 87 S.W.3d at 222; Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.--Austin 2000,
pet. ref'd.), and direct the driver to step out from the vehicle.  Estrada v. State, 30 S.W.3d
at 603. (2)  Indeed, when justified by safety and security concerns, the officer may also
require the detainee to move from one location to another during the investigatory stop. 
Josey v. State, 981 S.W.2d at 841.  And, most importantly, once the purpose of the stop
has been effectuated and the officer's suspicions allayed, he may still ask the driver if he
possesses any illegal contraband and then solicit his voluntary consent to search the
vehicle.  Spright v. State, 76 S.W.3d at 767-68. (3)  If consent is withheld, then further
detention of either the individual or chattel becomes improper.    
	Here, the record depicts that the officer stopped appellant for speeding and asked
him to identify himself.  While that was occurring, appellant was also asked about the
ownership of the van and the destination from whence he came.  The same was asked of
the passenger.  The two individuals gave conflicting responses.  See Estrada v. State, 30
S.W.3d at 603 (considering the utterance of contradictory stories by occupants of a vehicle
as articulable facts which a court can consider in determining the existence of reasonable
suspicion).  Furthermore, appellant informed the officer that though the owner of the van
(which vehicle was registered in Ohio) was a friend, he did not recall his name. (4) 
Thereafter, the officer asked if appellant was carrying drugs and obtained consent to
search the van. (5)  While conducting that search, he saw a large quantity of detergent
scattered about, recalled that detergent is used as a masking agent to cover the odor of
drugs, see Estrada v. State, supra (recognizing the presence of odor-masking agents as
another articulable fact suggestive of criminality), smelled the odor of burnt marijuana, was
told by appellant that he had smoked marijuana earlier, and smelled the odor of raw
marijuana after opening a compartment of the vehicle.  These circumstances, at the very
least, constitute articulable facts from which a reasonable officer can reasonably infer that
appellant may be transporting contraband.  So, they justified further investigation.  
	Due to his concern about unduly de-constructing the vehicle to confirm or negate
his suspicions, the officer then decided to secure the use of a drug dog.  See Davis v.
State, 947 S.W.2d at 245 (requiring that the investigative methods employed be the least
intrusive means reasonably available to verify or dispel the suspicion).  Such a method of
investigation has been deemed to be minimally intrusive.  Josey v. State, 981 S.W.2d at
841.  Additionally, the idea of conducting a further search on an interstate also raised
some safety concerns for the officer.  So, he asked appellant to drive the van into town,
and appellant agreed.  To reiterate, safety and security reasons may justify moving a
suspect from one location to another.
	Eventually, the drug dog arrived and indicated that drugs were present in the
vehicle.  Upon the dog so indicating, the officer's reasonable suspicion ripened into
probable cause not only to seize the vehicle but also arrest its driver.  Glenn v. State, 967
S.W.2d 467, 472 (Tex. App.--Amarillo 1998, pet. dism'd).  That approximately 75 minutes
lapsed between the time the officer first stopped appellant and the dog arrived did not per
se render the detention unreasonable.  See id. (holding that a 90-minute delay was not per
se unreasonable); accord, Josey v. State, supra (holding that the detention was not
unreasonable even though the officers had to wait 90 minutes for the drug dog to arrive). 
The record illustrates that the animal had to be secured from a law enforcement agency
in a neighboring community.  Furthermore, it was not immediately available.  And, while
I-40 may be considered to be a thoroughfare over which drugs are often transported, the
record does not suggest that the officer 1) knew appellant would be traveling through the
area or 2) suspected him of carrying contraband prior to the time of the initial stop.  See
United States v. Place, 462 U.S. 696, 710, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (wherein
the Supreme Court found the investigatory detention unreasonable because, among other
things, the investigators previously knew of the time the suspect was to appear and could
have arranged to have the dog present at that time).
	Finally, that the officer detained the van while informing appellant and his
passenger that they were free to leave is of no import.  Officers have the authority to
temporarily detain for investigatory purposes either people or personalty.  Davis v. State,
947 S.W.2d at 243-44.  So, as long as reasonable suspicion exists indicating that the
chattel is linked to criminal activity, the officer is free to detain only the chattel. (6)
	In sum, and after reviewing the totality of the circumstances, we cannot say that the
trial court abused its discretion in concluding that the initial stop, subsequent search of the
vehicle, and ultimate arrest of appellant were lawful.  Accordingly, we affirm its judgment.

 Brian Quinn
							    Justice


Publish.
1. Rule 33.1 obligates one to inform the trial court of the grounds underlying a complaint "with
sufficient specificity to make the trial court aware of the complaint . . . ."  Tex. R. App. P. 33.1(a)(1)(A). 
2. Given Estrada and Nuttall, appellant is mistaken when he posits that he was "under arrest" simply
because the officer asked him to exit the vehicle and would not allow him to leave.  (Emphasis added). 
Again, those are things that can occur during a temporary investigative detention.  Nor does the fact that an
officer may also pat down the suspect for weapons evince that the suspect has been arrested.  That too is
something that may be done during an investigatory detention.  Carmouche v. State, 10 S.W.3d 323, 329
(Tex. Crim. App. 2000). 
3. Given Spright, appellant also is mistaken when he argues that an officer can neither ask if the
detainee possesses contraband nor solicit consent to search his vehicle once the purposes of the initial
detention have been completed. 
4. It is not unreasonable to construe that response as suspicious.  Indeed, common sense suggests
that a detainee would normally know the name of a "friend" who authorized the detainee to drive the vehicle
across the United States.
5. As previously discussed, appellant failed to preserve any complaint he had about the validity of the
consent.
6. We do admit, though, that when the personalty is a car, detention of the vehicle may effectively
restrain the liberty of the driver as well.  Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).  

