Opinion issued July 14, 2015




                                     In The

                               Court of Appeals
                                     For The

                            First District of Texas
                             ————————————
                               NO. 01-14-00072-CR
                               NO. 01-14-00073-CR
                             ———————————
                    LARRY WAYNE RICHARD, Appellant
                                       V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 185th District Court
                             Harris County, Texas
                   Trial Court Case Nos. 1233998 and 1401120


                            MEMORANDUM OPINION

      Appellant,    Larry    Wayne   Richard,   with   an   agreed   punishment

recommendation from the State, pleaded guilty to the offense of possession with

intent to deliver a controlled substance, namely, methylone, weighing more than
four grams and less than two hundred grams. 1           In accordance with the plea

agreement, the trial court assessed his punishment at confinement for seven years.

The State also moved to adjudicate appellant’s guilt for the offense of aggravated

assault of a family member, 2 for which appellant had been previously placed on

community supervision. The trial court granted the State’s motion to adjudicate

and assessed appellant’s punishment at confinement for seven years, with the

sentence to run concurrently with that for the offense of possession with intent to

deliver a controlled substance. In his sole issue, appellant contends that the trial

court erred in denying his motion to suppress evidence, which he made in both

cases.

         We affirm.

                                     Background

         In April 2010, appellant, without an agreed punishment recommendation

from the State, pleaded guilty to the offense of aggravated assault of a family

member. The trial court deferred adjudication of appellant’s guilt and placed him

on community supervision for six years.

         In October 2013, a Harris County grand jury issued a true bill of indictment,

accusing appellant of the offense of possession with intent to deliver a controlled
1
         See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103, 481.113 (Vernon Supp.
         2014); appellate cause no. 01-14-00073-CR; trial court cause no. 1401120.
2
         See TEX. PENAL CODE ANN. § 22.02(b) (Vernon 2011); appellate cause no. 01-14-
         00072-CR; trial court cause no. 1233998.

                                           2
substance, namely, methylone, weighing more than four grams but less than two

hundred grams. The State then filed a motion to adjudicate appellant’s guilt in his

aggravated assault case, alleging that he had violated a term of his community

supervision, namely, that he “[c]ommit no offense against the laws of this or any

other State or of the United States.” The State further alleged that appellant had

violated the terms of his community supervision by failing to submit to random

urine specimen analysis and pay certain assessed fees. Appellant then filed a

motion to suppress evidence in both cases.

      At the hearing on appellant’s motion to suppress evidence and the State’s

motion to adjudicate guilt, Jacinto City Police Department (“JCPD”) Officer T.

Sandoval testified that on September 12, 2013, while he was on duty in his patrol

car “running stationary radar,” he saw appellant driving a brown Buick at fifty

miles per hour in a thirty-five-mile-per-hour zone.       Sandoval activated his

emergency lights and siren, and he followed appellant into the parking lot of an

apartment complex, where appellant stopped. As Sandoval approached appellant,

he saw appellant making “furtive movements towards his leg area.” After he

directed appellant and his two passengers to exit the car “for officer safety,” he

conducted a protective frisk of each of them and searched the car “for weapons.”

As Sandoval was “frisking [appellant], searching him for weapons,” he saw a

“little clear plastic baggie,” “like, a sandwich bag,” “hanging out of his shoe.”



                                        3
Sandoval explained that, based on his experience, it is “typical” for people to place

“drugs . . . inside a clear plastic bag to keep it dry.” Sandoval then asked appellant

to remove his shoes, and, after appellant complied, Sandoval saw that the clear

plastic bag contained a “powdery substance.” Appellant then “kind of moved

back,” and Sandoval had to restrain him. Sandoval conducted a field test of the

substance in the bag, which tested positive for methamphetamine.

      The trial court admitted into evidence a dash-camera videotape from the

patrol car of a back-up officer who later arrived on the scene. The videotape

shows that upon the back-up officer’s arrival, Officer Sandoval began searching

appellant’s car through the door on the driver’s side, and he continued his search

for approximately twenty seconds. Sandoval next went over to one of appellant’s

passengers, lifted the passenger’s pant leg out of his tennis shoe, viewed the area

around his ankles, and directed him to remove his shoes. Sandoval then went to

appellant, who was wearing long shorts that covered his legs and high-top tennis

shoes, and who was standing with his hands on the trunk of his car. Sandoval

placed a hand on appellant’s back and used his foot to separate appellant’s feet.

When appellant attempted to back up, Sandoval restrained him against the trunk of

the car.

      On cross-examination, Officer Sandoval testified, in pertinent part, as

follows:



                                          4
[Defense counsel]:   So, after you searched the vehicle and you
                     don’t find any weapons or any drugs, then you
                     come out of the car and you approach the three
                     occupants, correct?
[Sandoval]:          Yes, ma’am.

[Defense counsel]:   And you’re searching for—you’re frisking
                     them for weapons at that point in time for
                     officers’ safety, right?

[Sandoval]:          Yes, ma’am, yes, ma’am.

[Defense counsel]:   So, you start searching them at their ankles,
                     correct?

[Sandoval]:          Yes, ma’am.

[Defense counsel]:   Okay. Now, you never at any point on the
                     video pat down the other two occupants at their
                     waist or their pockets, correct?

[Sandoval]:          I did before the other officer showed up . . . .

....

[Sandoval]:          So, the second time that you’re patting them
                     down it’s not for officers’ safety. You’re
                     looking for drugs, correct?

[Sandoval]:          At that time—I guess you could say that, yes,
                     ma’am, I was.

[Defense counsel]:   Okay. Well, is that what happened? Is that what
                     you were doing? Because you started at their
                     ankles, correct?

....

[Sandoval]:          Okay. Yes.



                                  5
      [Defense counsel]:      So you’re looking for drugs at that point in
                              time?

      [Sandoval]:             Possibly. He could have a pocketknife down
                              there. You just never know. If they might have
                              a weapon down there, you just never know.

      ....

                              Well, you usually find drugs, sometimes you do
                              find drugs down there while you’re searching
                              for weapons.

On re-direct, Sandoval testified, in pertinent part, as follows:

      [State]:                Was your main concern weapons?

      [Sandoval]:             Yes.

      ....

      [State]:                Okay. I want to make sure we understand this,
                              Officer. At this point you have already patted
                              down these guys for weapons?

      [Sandoval]:             Yes, sir.

      [State]:                Right? Just a general pat-down?

      [Sandoval]:             Just a general pat-down.

      [State]:                Okay. At this point you didn’t see anything?

      [Sandoval]:             No, sir, I didn’t.

      ....




                                           6
[State]:      Okay. Now, you started searching the vehicle
              while your partner, the second officer, was at
              the scene, right?

[State]:      Yes, sir.
....

[State]:      Okay. Okay. So, at this point you’ve searched
              them once; you went up to this other guy who
              wasn’t arrested, right?

[Sandoval]:   Yes, sir.

[State]:      And you asked to see what’s on his ankles?

[Sandoval]:   Yes, sir.

[State]:      Okay. This would be the second search defense
              counsel’s talking about?

[Sandoval]:   Yes. . . .

....

[State]:      Okay. Now, right here at this point, you put
              your hand on the defendant and you moved
              your foot near his foot?

[Sandoval]:   Yes, I did.

[State]:      Were you patting him down right here at this
              point?

[Sandoval]:   Yes. At that point, no, I was not. I had my hand
              on him and I was spreading his legs, yes.

[State]:      Okay. At this point, is this where you saw the
              plastic bag hanging out of his shoe?



                            7
      [Sandoval]:            Yes.

      [State]:               At that point you hadn’t actually patted him
                             down a second time?

      [Sandoval]:            No, I have not.

      [State]:               Okay. Now, when you saw that plastic bag
                             hanging out of his shoe, what did you think that
                             was?

      [State]:               Possibly narcotics.

Finally, on re-cross, Sandoval explained that he waited for the backup officer to

arrive before patting down appellant lower on his legs because he was alone and

“you never want to search down low while you’re by yourself.”

      R. Theodore, a chemist at the Harris County Institute of Forensic Sciences,

testified that the bag that Officer Sandoval seized from appellant contained 11.947

grams of methylone. And J. Fuentes, a Harris County community supervision

officer, testified that appellant had violated the terms of his community supervision

by failing to submit to drug testing on July 6, 2010 and pay certain assessed fees.

      The trial court denied appellant’s motion to suppress, explaining:

      . . . [I]n reviewing the testimony from [Officer Sandoval], the Court is
      going to deny the motion to suppress based on the fact that the officer
      —based on the officer observing, as he was—the defendant speeding,
      the driver of the vehicle that was speeding, 50 in a 35-mile-an-hour
      zone and that he observed the driver, as he was attempting to pull the
      car over, making furtive movements towards—particularly, I wrote
      down in my notes, toward his leg area, and that based on that, after
      stopping the car and being a one-man unit, got the three occupants
      out, that at the time—I just don’t think the search of the car is an issue

                                          8
      at all because obviously no drugs were found and it really didn’t lead
      to anything. But I do find that once he observed the plastic bag and
      based on his testimony that he knew that drugs could be held in plastic
      bags and that he had seen the defendant reaching towards the area of
      his ankle, that he had probable cause to believe that that plastic bag
      had some sort of contraband in it. Based on that, the Court is going to
      deny the motion to suppress.

It then adjudicated appellant’s guilt of the offense of aggravated assault of a family

member, noting:

            And based on . . . that, the Court then finds the allegation of the
      defendant possessed a controlled substance, on September 12th of
      2013, weighing more than 4 grams and less than 200 grams by
      aggregate weight, including any adulterants and dilutants, to be true.

             Realistically I agree with the defense that we dealt with the
      other two issues previously as far as the failing to leave a UA and
      we’ve been dealing with the fee issues for quite some time, along with
      the other issues in the original—and I don’t mean the original motion
      that was filed at this time but the previous motion to file.

             And based on finding those true, . . . [t]he Court having heard
      the evidence presented in the motion to adjudicate and finding the
      allegation you possessed a controlled substance, 4 to 200 grams
      methylone, to be true, the Court finds you guilty . . . .

      After the trial court denied appellant’s motion to suppress evidence and

adjudicated his guilt for the offense of aggravated assault of a family member,

appellant then pleaded guilty to the offense of possession with intent to deliver a

controlled substance. The trial court subsequently made and filed findings of fact

and conclusions of law.




                                          9
                                Standard of Review

      We review a trial court’s denial of a motion to suppress evidence under a

bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.

Crim. App. 2013). “We review the trial court’s factual findings for an abuse of

discretion, but review the trial court’s application of law to the facts de novo.” Id.

We give almost total deference to a trial court’s determination of historical facts,

especially if those determinations turn on witness credibility or demeanor, and we

review de novo the trial court’s application of the law to facts not based on an

evaluation of credibility and demeanor. Gonzales v. State, 369 S.W.3d 851, 854

(Tex. Crim. App. 2012); Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.

2008). At a suppression hearing, the trial court is the sole and exclusive trier of

fact and judge of the witnesses’ credibility and may choose to believe or disbelieve

all or any part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000). When, as here, the trial court makes findings of fact, we determine whether

the evidence, when viewed in the light most favorable to the trial court’s ruling,

supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). We review the trial court’s legal ruling de novo unless its explicit findings

that are supported by the record are also dispositive of the legal ruling. Id. We




                                         10
will sustain the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. Ross, 32 S.W.3d at 855–56.

                           Motion to Suppress Evidence

      In his sole issue, appellant argues that the trial court erred in denying his

motion to suppress the methylone seized from his shoe because, under the United

States and Texas Constitutions, the officer did not have “reasonable suspicion to

search [him] a second time” and “was not in a position to trigger the ‘plain view’

exception to a search without a warrant.” See U.S. CONST. amend. IV; TEX.

CONST. art. I, § 9; see also Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877

(1968); Texas v. Brown, 460 U.S. 730, 741–42, 103 S. Ct. 1535, 1543 (1983).3

      “A ‘stop’ and ‘frisk’ by law enforcement personnel amounts to a sufficient

intrusion on an individual’s privacy to implicate the Fourth Amendment’s

protections.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000)

(citing Terry, 392 U.S. at 16, 88 S. Ct. at 1877). Under an exception to the Fourth

Amendment’s warrant requirement, however, an officer may generally be justified

in briefly detaining an individual on less than probable cause for the purpose of

investigating “possibly[]criminal behavior.” Id. (citing Terry, 392 U.S. at 21, 88 S.

Ct. at 1880; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (“Texas

3
      Because appellant does not provide argument or authority that the Texas
      Constitution is more comprehensive than its federal counterpart, we will limit our
      analysis to the Fourth Amendment’s protections. See Carmouche v. State, 10
      S.W.3d 323, 326 (Tex. Crim. App. 2000).

                                          11
courts require reasonable suspicion before a seizure of the person or property can

occur.”)).

      To determine the reasonableness of an investigative detention, we consider

whether the officer’s action was (1) justified at its inception and (2) reasonably

related in scope to the circumstances that justified the interference. Terry, 392

U.S. at 19–20, 88 S. Ct. at 1879; Davis, 947 S.W.2d at 242. Under the first prong,

an officer is generally justified in briefly detaining an individual on less than

probable cause for the purpose of investigating “possibly [] criminal behavior,”

where the officer has “specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant [the] intrusion.” Terry,

392 U.S. at 21, 88 S. Ct. at 1880; Carmouche, 10 S.W.3d at 328. Reasonable

suspicion must be based on more than a non-specific suspicion or mere “hunch” of

criminal activity. Terry, 392 U.S. at 22, 88 S. Ct. at 1880. The officer must have

had an objective basis for the stop; the officer’s subjective intent is irrelevant.

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). We look only to the

facts known to the officer at the inception of the stop; an initially unlawful stop is

not validated by a subsequent discovery of criminal activity. See Wong Sun v.

United States, 371 U.S. 471, 484, 83 S. Ct. 407, 415 (1963).

      Under the second prong, an investigative detention must be temporary and

last no longer than is necessary to effectuate the purpose of the stop. Davis, 947



                                         12
S.W.2d at 245. The reasonableness of the detention depends on whether law

enforcement officers diligently pursued a means of investigation that was likely to

dispel or confirm their suspicions quickly. Id.    For instance, in a routine traffic

stop, a police officer may order the driver and occupants out of the car without

violating the Fourth Amendment. O’Hara v. State, 27 S.W.3d 548, 553 (Tex.

Crim. App. 2000); Champenois v. State, 874 S.W.2d 254, 257 (Tex. App.—

Houston [1st Dist.] 1994, pet. ref’d) (citing Pennsylvania v. Mimms, 434 U.S. 106,

109–111, 98 S. Ct. 330, 332, 333 (1977)).           And an officer may request

identification and insurance information from the detainee and conduct a computer

verification. Kothe v. State, 152 S.W.3d 54, 63–64 (Tex. Crim. App. 2004); see

Davis, 947 S.W.2d at 245 n.6. The investigation is not complete until such check

is completed and the officer confirms that the person has no outstanding warrants.

Kothe, 152 S.W.3d at 63–64. Once the purpose of the initial stop has been

effectuated, however, “the stop may not be used as a ‘fishing expedition for

unrelated criminal activity.’”    Davis, 947 S.W.2d at 243 (quoting Ohio v.

Robinette, 519 U.S. 33, 41, 117 S. Ct. 417, 422 (1996) (Ginsberg, J., concurring)).

      Further, a law enforcement officer who has lawfully detained a person for

investigation may conduct a protective search of the detainee’s outer clothing for

weapons, even in the absence of probable cause, if the officer reasonably believes

that the suspect is armed and dangerous. See Terry, 392 U.S. at 27, 88 S. Ct. at



                                        13
1883; Davis, 829 S.W.2d at 220. However, “‘[t]he purpose of a limited search

after [an] investigatory stop is not to discover evidence of a crime, but to allow the

peace officer to pursue investigation without fear of violence.’” Carmouche, 10

S.W.3d at 329 (quoting Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App.

1974)). A pat-down search is not justified on the basis that an officer has a

“reasonable suspicion to believe that [a detainee is] involved in criminal activity.”

Id. (distinguishing legal standard justifying initial detention from legal authority to

conduct “frisk”).    “[T]he ‘exigencies’ [that] permit the additional search are

generated strictly by a concern for the safety of the officers.” Id. (citing Terry, 392

U.S. at 25–26, 88 S. Ct. at 1882). And the “additional intrusion that accompanies a

Terry frisk is only justified where the officer can point to specific and articulable

facts which reasonably lead him to conclude that the suspect might possess a

weapon.” Id. (citing Terry, 392 U.S. at 26–27, 88 S. Ct. at 1882–83; Worthey v.

State, 805 S.W.2d 435, 438 (Tex. Crim. App. 1991)).

      Officer Sandoval testified that he initially detained appellant because he saw

him exceeding the posted speed limit. See TEX. TRANSP. CODE ANN. § 545.351

(Vernon 2011).4 Sandoval, at that point, was afforded enough time to effectuate

the purpose of the stop. See Davis, 947 S.W.2d at 245. As Sandoval approached

4
      A peace officer may arrest without a warrant a person found committing a traffic
      violation, with exceptions including speeding. TEX. TRANSP. CODE ANN.
      §§ 543.001, .004(a)(1) (Vernon 2011) (providing officer shall issue written notice
      rather than arrest).

                                          14
appellant’s car, however, he saw appellant making “a lot of furtive movements . . .

towards the floor area and towards his leg area.” Although the stop took place

during the daytime, Sandoval noted that there was known “drug trafficking” in the

area. And he asked appellant and his two passengers to exit the car. See O’Hara,

27 S.W.3d at 553 (noting, in routine traffic stop, officer may order driver and

occupants out of car); Champenois, 874 S.W.2d at 257. Sandoval then performed

a protective search of their waists “for weapons.” See Terry, 392 U.S. at 27, 88 S.

Ct. at 1883; Davis, 829 S.W.2d at 220. Furtive movement during a police stop is a

factor that can give rise to reasonable suspicion justifying a continued investigatory

detention. See Kelly v. State, 331 S.W.3d 541, 549–50 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d); LeBlanc v. State, 138 S.W.3d 603, 608 & n.5 (Tex. App.—

Houston [14th Dist.] 2004, no pet.). And Sandoval explained that he waited for a

back-up officer to arrive before performing a pat-down on the lower legs of the

detainees because he was alone with them and “you never want to search down

low when you’re by yourself.” The initial pat-down is not on the videotape in

evidence, which was produced from the patrol car of the back-up officer, who

arrived later. Sandoval did not explain whether, at that point, he had obtained

appellant’s license information, checked the information against his computer, or

written a citation. See Kothe, 152 S.W.3d at 63–64.




                                         15
      The videotape does show that once the second officer arrived, Officer

Sandoval searched appellant’s car through the door of the driver’s side for

approximately twenty seconds. He then walked over to one of the passengers,

lifted the passenger’s pant leg out of his tennis shoe, viewed the area around his

ankles, and directed him to remove his shoes. Sandoval then went to appellant,

who was wearing long shorts, that draped over his ankles and covered his legs, and

high-top tennis shoes, and who was standing with his hands on the trunk of his car.

Sandoval placed a hand on appellant’s back and used his foot to separate

appellant’s feet. Sandoval testified, and the video supports, that although he had

intended to pat down appellant on his lower legs, he had not yet done so when he

saw, partially hanging out of appellant’s shoe, a clear, plastic bag, which he

suspected, based on his experience and training, contained narcotics.        When

appellant began to back up, Sandoval restrained him against the trunk. He then

directed appellant to remove his shoes and saw that the bag contained a white,

powdery substance.

      The State asserts that Officer Sandoval’s search of appellant’s ankle area

was justified based on his earlier “furtive movements” and Sandoval was not

required to terminate his protective search just because his earlier search of

appellant’s waist did not yield a weapon. It further asserts that Sandoval could




                                        16
resume his pat-down until he “satisfie[d] himself that [appellant] ha[d] no

weapons.” See Lippert v. State, 664 S.W.2d 712, 721 (Tex. Crim. App. 1984).

      The scope of a protective “Terry frisk” is a narrow one. When a protective

search is warranted, the search must be carefully limited to that which is necessary

to discover weapons that could reasonably harm the police officers or others.

Terry, 392 U.S. at 25–26, 88 S. Ct. 1882. Generally, “once [a] pat down and

search of [a defendant’s] person produce[s] neither drugs nor weapons, the limit of

the investigatory detention [is] reached, and further detention” of a defendant is

“impermissible.” Autry v. State, 21 S.W.3d 590, 592 (Tex. App.—Houston [1st

Dist.] 2000, no pet.). The safety justification for a continued search disappears

once an officer knows or concludes that the relevant portion of clothing “contain[s]

no weapon.” Clark v. State, 444 S.W.3d 671, 676 (Tex. App.—Houston [14th

Dist.] 2014, pet. ref’d).

      In Terry, the United States Supreme Court also noted, however, that “[w]hen

an officer is justified in believing that the individual whose suspicious behavior he

is investigating at close range is armed and presently dangerous . . . , it would

appear to be clearly unreasonable to deny the officer the power to take necessary

measures to determine whether the person is in fact carrying a weapon and to

neutralize the threat of physical harm.” 392 U.S. at 24, 88 S. Ct. at 1881. The

Texas Court of Criminal Appeals has commented that “[i]f in the course of a pat-



                                         17
down frisk the officer satisfies himself that the suspect has no weapons, the officer

has no valid reason to further invade the suspect’s right to be free of police

intrusion absent probable cause to arrest.” Lippert, 664 S.W.2d at 721. Notably,

one court has interpreted this to mean that “[t]he converse is also true; that is, if the

officer has not satisfied his reasonable suspicion that the suspect is armed, then he

has a right to make a more intrusive search to ensure that no weapon is accessible.”

McAllister v. State, 34 S.W.3d 346, 353 (Tex. App.—Texarkana 2000, pet. ref’d).

      In Spight v. State, this Court recognized that, under some circumstances, a

second search for weapons is permissible. 76 S.W.3d 761, 770 (Tex. App.—

Houston [1st Dist.] 2002, no pet.). In Spight, a state trooper conducted a traffic

stop of a defendant for speeding. Id. at 764. The trooper noted that it was late in

the evening, the defendant seemed nervous, and he had been previously arrested on

a weapons charge. Id. The trooper conducted a brief pat-down of the defendant

for weapons and found a knife in his pocket. Id. A consensual search of the

defendant’s car yielded a large sum of money and, “[b]ased on [the defendant’s]

behavior,” the trooper had a “heightened concern for his personal safety”; he, then,

conducted a more thorough pat-down search of the defendant. Id. at 765, 771. We

held that the subsequent pat-down search was not unreasonable under the United

States and Texas constitutions. Id. at 771.




                                           18
      Here, Officer Sandoval explained after he had seen appellant making “a lot

of furtive movement . . . towards his leg area,” he did not initially complete a pat-

down search of appellant’s lower body because it was dangerous for him to do so

while he was alone with three detainees. Thus, he decided that it was safer for him

to wait for a back-up officer to arrive. And, after the back-up officer arrived,

Sandoval began to resume his pat-down. However, Sandoval testified, and the

videotape shows, that he had not actually patted-down appellant’s legs before he

saw the baggie hanging out of appellant’s shoe. Rather, in order to facilitate a

search, Sandoval merely used his foot to separate appellant’s feet.

      Appellant does not assert that Officer Sandoval had previously patted-down

his legs. And this case does not present a situation in which an officer has

conducted an exceedingly intrusive search. See Clark, 444 S.W.3d at 676 (noting

safety justification for continued search disappears when officer “already knew” or

“ha[d] concluded” that the relevant portion of clothing “contained no weapon”);

see also Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992) (holding

officer not justified in opening matchbox under guise of searching for weapons).

      Appellant notes that Officer Sandoval testified that he was not “worried

about” appellant. However, “there is no requirement that a police officer feel

personally threatened.” Glazner v. State, 175 S.W.3d 262, 265 (Tex. Crim. App.

2005). And Sandoval did testify that he waited to finish his pat-down until after



                                         19
the back-up officer arrived because it would have been dangerous for him to

proceed alone.

      Further, although Officer Sandoval testified that he was also looking for

“narcotics,” his subjective intent is irrelevant to our analysis. See Garcia, 43

S.W.3d at 530. That he may have had another subjective motive for searching

appellant does not make his objectively reasonable search unlawful. See State v.

Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005) (citing Whren v. United

States, 517 U.S. 806, 116 S. Ct. 1769 (1996); Crittenden v. State, 899 S.W.2d 668

(Tex. Crim. App. 1995)). Whether a Fourth Amendment violation has occurred

“turns on an objective assessment of the officer’s actions in light of the facts and

circumstances confronting him at the time, and not on the officer’s actual state of

mind at the time the challenged action was taken.” O’Hara, 27 S.W.3d at 551.

      Accordingly, we hold that the record supports the trial court’s reasonable

conclusion that Officer Sandoval’s search did not exceed the scope of that which

was necessary to determine whether appellant was armed. See Terry, 392 U.S. at

24, 88 S. Ct. at 1881.

      Appellant next argues that Officer Sandoval did not properly seize the

methylone from his shoe because he “was not in a position to trigger the ‘plain

view’ exception to a search without a warrant.” If, while conducting a legitimate

Terry search, an officer discovers contraband other than a weapon, “he clearly



                                        20
cannot be required to ignore the contraband, and the Fourth Amendment does not

require its suppression in such circumstances.” See Michigan v. Long, 463 U.S.

1032, 1050, 103 S. Ct. 3469, 3481 (1983). A seizure of an object is lawful under

the plain view exception if: (1) the law enforcement official is lawfully where the

object can be “plainly viewed,” (2) the “incriminating character” of the object in

plain view is immediately apparent to the official, and (3) the official may lawfully

“access the object.” Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009).

A law enforcement officer need not have actual knowledge that an observed item is

contraband in assessing whether it constitutes evidence of criminal activity, but he

must have probable cause to connect the item with criminal activity. Texas v.

Brown, 460 U.S. 730, 741–42, 103 S. Ct. 1535, 1543 (1983); Joseph v. State, 807

S.W.2d 303, 308 (Tex. Crim. App. 1991). The officer may use his training and

experience in determining whether an item seen in plain view constitutes

contraband. Brown, 460 U.S. at 746, 103 S. Ct. at 1545; Nichols v. State, 886

S.W.2d 324, 326 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

      Here, while conducting a valid protective search for weapons, Officer

Sandoval saw a “baggie,” in plain view, hanging out of appellant’s shoe. Thus,

Sandoval was lawfully where the baggie could be “plainly viewed,” and he could

lawfully “access the object.” See Keehn, 279 S.W.3d at 334. Sandoval testified

that he stopped appellant in an area known for “drug trafficking,” and, in his



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experience, it is “typical” for people to store narcotics in plastic bags to keep them

dry. He further noted that “[a] lot of times they do hide narcotics inside their

shoes.” Sandoval did not have to know that the baggie contained contraband

before seizing it; his reasonable belief that it contained contraband was sufficient.

Brown, 460 U.S. at 740–42, 103 S. Ct. at 1542–43; Joseph, 807 S.W.2d at 308.

Sandoval’s experience with narcotics, along with his testimony that he saw the

baggie during the traffic stop, supports the trial court’s finding that Sandoval saw

the bag in plain view and had probable cause to believe that the bag contained

narcotics. See Laws v. State, No. 01-09-00431-CR, 2010 WL 2133925, at *3 (Tex.

App.—Houston [1st Dist.] May 27, 2010, no pet.) (mem. op., not designated for

publication); see also Nichols, 886 S.W.2d at 326.

      Accordingly, we hold that the trial court did not err in denying appellant’s

motion to suppress evidence.

      We overrule appellant’s sole issue.




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                                   Conclusion

      We affirm the judgments of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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