                                   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




                                              2
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


                                             3
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


                                              4
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



        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 . . . .” T EX. R. APP. P. 33.1(a)(1)(A).

                                                      5
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.




        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.

                                                     6
        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.


        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.

                                                        7
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


                                             8
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.




        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).

                                                    9
