                                                                         ACCEPTED
                                                                     03-16-00055-CR
                                                                           13798038
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                              11/15/2016 12:27:41 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK
            No. 03-16-00055-CR

            In the Court of Appeals                  FILED IN
                                              3rd COURT OF APPEALS
        for the Third District of Texas           AUSTIN, TEXAS
                    at Austin                11/15/2016 12:27:41 PM
       ___________________________              JEFFREY D. KYLE
                                                      Clerk
               No. 15-0302-K26
       In the 26th Judicial District Court
           Williamson County, Texas
      ____________________________ 

              SUSAN ODEN
                 Appellant
                    v.
          THE STATE OF TEXAS
                 Appellee
      _____________________________ 

       STATE’S BRIEF IN RESPONSE
      _____________________________ 

                                                      Jana Duty
                                               District Attorney
                                      Williamson County, Texas

                                                  Daniel Sakaida
                                        State Bar No: 24084601
                                      Assistant District Attorney
                                  405 Martin Luther King, Box 1
                                      Georgetown, Texas 78626
                                                 (512) 943-1234
                                           (512) 943-1255 (fax)
                                      Daniel.sakaida@wilco.org




    ORAL ARGUMENT NOT REQUESTED
                        
 
 


               STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument as the issues presented in this appeal

are not novel and the record is straightforward. However, if the Court believes that

oral argument would help resolve the matter, the State would request the opportunity

to appear and argue.




                                         ii
 


                                          TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT .............................................. ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... iv
STATEMENT OF FACTS ........................................................................................1
SUMMARY OF THE ARGUMENT ........................................................................7
ARGUMENT .............................................................................................................7
    I. There was reasonable suspicion for the underlying traffic stop .......................9
       A. Appellant did not clearly preserve this issue for appellate review...........10
       B.     Even if preserved, there are sufficient facts to support the trial court’s
              finding that there was objectively reasonable suspicion of a traffic offense
              for the underlying traffic stop ...................................................................12
    II. Officers had reasonable suspicion that Appellant possessed drugs to
        temporarily detain Appellant while waiting for a canine unit to arrive ........15
       A. Evidence gained during the duration of an otherwise justifiable temporary
          detention may give rise to reasonable suspicion of a different offense ...16
       B.     The officers in this case did have reasonable suspicion to extend the
              temporary detention to wait for a canine unit in light of location,
              Appellant’s dishonesty about her narcotics history, her visible nervousness
              starting after being asked about narcotics, and her passenger’s substantial
              narcotics history........................................................................................17
PRAYER ..................................................................................................................22
CERTIFICATE OF COMPLIANCE .......................................................................23
CERTIFICATE OF SERVICE ................................................................................23


 




                                                            iii
 


                                         INDEX OF AUTHORITIES

Cases
Anderson v. State, 701 S.W.2d 868 (Tex. Crim. App. 1985) ..................................12

Arguellez v. State, 409 S.W.3d 657 (Tex. Crim. App. 2013) ....................................8

Atwater v. City of Largo Vista, 532 U.S. 318 (2001) ..............................................12

Bouchillon v. State, 540 S.W.2d 319 (Tex. Crim. App. 1976) ................................10

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010) ......................................7

Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995) ........................... 9, 15

Darcy v. State, 488 S.W.3d 325 (Tex. Crim. App. 2016)........................................10

Elizondo-Vasquez v. State, No. 03-12-00774-CR, 2014 Tex. App. LEXIS 9174 (Tex.
      App.—Austin Aug. 20, 2014, pet. ref'd) (mem. op., not designated for
      publication) ....................................................................................................13

Floyd v. State, No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413 (Tex. App.—
      Tyler July 23 2008, no pet.) (mem. op., not designated for publication) ......12

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) ..................................8

Gougeau v. State, 209 S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
     .......................................................................................................................17

Hamal v. State, 390 S.W.3d 302 (Tex. Crim. App 2012)................................. 19, 20

Illinois v. Wardlow, 528 U.S. 119 (200) ..................................................................19

Indianapolis v. Edmond, 531 U.S. 32 (2000) ..........................................................16

Moreno v. State, No. 03-14-00596-CR, 2016 Tex. App. LEXIS 6868 (Tex. App.—
     Austin June 30, 2016, no pet.) (mem. op., not designated for publication) ..17

Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) .........................................8

Olguin v. State, No. 06-13-00171-CR, 2014 Tex. App. LEXIS 1272 (Tex. App.—
      Texarkana Feb. 25, 2014, pet. ref'd) (mem. op., not designated for publication)
      .......................................................................................................................12
                                                              iv
 


Rodriguez v. United States, 135 S.Ct. 1609 (2015) .......................................... 16, 18

State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) ............................. 7, 8, 15, 20

Terry v. Ohio, 392 U.S. 1 (1968) ...............................................................................8

Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) ........................... 8, 20

United States v. Arvizu, 534 U.S. 266 (2002) ............................................... 8, 19, 21

Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013) ..........................................9

Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977) ...................................10



Statutes

Tex. Transp. Code § 547.322 ...................................................................................12



Rules
Tex. R. App. P. 33.1.................................................................................................10




                                                          v
 


TO THE HONORABLE COURT OF APPEALS:


                                                               STATEMENT OF FACTS

              The State wishes to clarify the following facts to supplement those addressed

in Appellant’s brief.



                                                                 Procedural History

              Prior to Appellant’s plea and this appeal, she filed a motion to suppress on

July 20, 2014, and a hearing on that motion was held on September 4, 2015.1 At that

hearing, the State only called one witness, Round Rock Police Officer Josh Chadney,

and submitted a video recording from the cameras mounted to Officer Chadney’s

patrol vehicle.2 The trial court denied Appellant’s motion to suppressing a written

motion entered on October 12, 2015,3 Appellant plead guilty on November 12,

2015,4 while reserving the right to appeal the suppression issue,5 and this appeal

follows.




                                                            
1
    CR 3.
2
 RR II, State’s Exhibits 1 (video marked as “Joshua Chadney, 11-0079, 2015-02-09 22:08:07” in
player provided on disk in 1, which is contained in case marked State’s Exhibit 1A).
3
    CR 20.
4
    CR 22-23.
5
    CR 22-23, 30; RR IV:6.

                                                                         1
 


                                                               Traffic Violation

              On February 9, 2015, Officer Chadney was on patrol in Round Rock, in a

marked patrol vehicle, when he first caught sight of Appellant’s vehicle, a 2001

Dodge pickup, at about 10 in the evening.6 Officer Chadney observed Appellant

leaving Candlewood Suites, which he knew from his experience to be a “high crime

area known for narcotics use.”7 Shortly thereafter, Officer Chadney observed that

Appellant’s license plate was insufficiently illuminated, and while on the frontage

road for I-35, he turned off the headlights on his patrol car to confirm his initial

observation.8 He specifically testified that while the vehicle had two lights which

were supposed to illuminate the license plate, they were not emitting enough light to

make the license plate visible at 50 feet away.9 Barely a minute after the recording

begins, Officer Chadney activated his overhead lights and initiated his traffic stop of

Appellant from the number one lane on I-35, with Appellant subsequently exiting




                                                            
6
 RR II:6; see also State’s Exhibit 1 with the video beginning at 22:08:07 (time on this exhibit is
notated in absolute time, on a 24-hour clock).
7
  RR II:6-8 (Officer Chadney noting that he had personally made narcotics related arrests in and
around that hotel).
8
  RR II:25; see also State’s Exhibit 1 from roughly 22:08:12 to 22:08:19 (showing Appellant’s
truck ahead and to the left of Officer Chadney’s patrol vehicle with Officer Chadney’s headlights
clearly turned off at the beginning, and back on at the end).
9
    RR II:30-31.

                                                                      2
 


the interstate, and coming to a stop in a parking lot off the frontage road barely two

minutes after the start of the video.10



                                                               Traffic Stop and Investigation

              Officer Chadney’s lapel microphone was not recording for the first few

minutes of the traffic stop, but was turned on about six minutes after the stop.11

However, he testified at the suppression hearing that when he first made contact with

Appellant, he essentially conducted the encounter as a routine traffic stop, including

requesting Appellant’s driver’s license, proof of insurance, and what Appellant was

doing that night.12 Appellant confirmed that she had just left Candlewood Suites, and

stated that while she had been previously arrested, it was only for possession of

stolen items.13 When he sought to confirm this, dispatch advised that her criminal

history indicated that she had been previously arrested for narcotics.14

              Once asking Appellant if she had any narcotics on her, Officer Chadney

observed that she became “more nervous.”15 Officer Chadney testified that he had

met Appellant “a couple weeks prior” when she was struck by a drunk driver, and

                                                            
10
     RR II:6-7; State’s Exhibit 1 at 22:09:00 (lights initiated), and 22:10:09 (vehicles stopped).
11
     State’s Exhibit 1 at 22:15:45.
12
     RR II:8.
13
     RR II:8-9.
14
     RR II:10.
15
     RR II:10.

                                                                             3
 


even after that accident, she “wasn’t nervous at all.”16 Likewise, Appellant was not

nervous the night of the instant offense until Officer Chadney specifically brought

up the subject of narcotics.17 At that point, Officer Chadney also observed her heart

begin to race, specifically seeing the artery on the left of Appellant’s neck pulsating

more rapidly.18 Officer Chadney testified that he was trained to specifically look for

that artery to see a rising heart rate, particularly since it is easily visible while

standing outside a driver’s door during a traffic stop, as in the instant stop.19 While

Appellant attacked how visible the artery should have been given Appellant’s hair,

the video exhibit is not of a high enough quality to determine if the artery was

actually visible, and Officer Chadney did not recant his testimony.20

              Officer Chadney returned to his vehicle briefly, at which point he “finagled”

with the recording equipment to get his lapel microphone recording shortly before

10:16.21 Then, he had Appellant exit her vehicle and observe for herself the defective

lights. He informed Appellant that her aftermarket license plate lights were not




                                                            
16
     RR II:12.
17
  RR II:12; see also State’s Exhibit 1 at 22:20:30 (several minutes after the initial interview,
Officer Chadney directly asked Appellant why she was so nervous).
18
     RR II:10-11.
19
     RR II:10-11.
20
     RR II:27.
21
     RR II:16; State’s Exhibit 1 at 22:15:45.

                                                               4
 


emitting enough light, and she replied “oh yeah, they’re not.”22 He also informed her

that by statute the lights are required to illuminate the plate so that it is clearly legible

from 50 feet away, and she affirmed that she could see how dim at least one of the

lights was.23 Officers were still waiting on driver license returns after this

conversation.24

              Officer Chadney then started questioning Ms. Browning, Appellant’s

passenger.25 Ms. Browning advised that she had been arrested for possession of

marijuana and possession of methamphetamine.26 Her demeanor also became much

more nervous when Officer Chadney directly asked if there were narcotics in the

vehicle.27 Officer Chadney was able to run Ms. Browning’s criminal history, and

found that she had been arrested on multiple occasions for possessing controlled

substances.28

              At about 10:25, after being denied consent to search the truck, Officer

Chadney told Appellant that he was calling a drug dog, and that she was not free to


                                                            
22
     State’s Exhibit 1 at 22:17:00.
23
     State’s Exhibit 1 at 22:17:00.
24
     State’s Exhibit 1 at 22:17:30.
25
     RR II:12-13; State’s Exhibit 1 at 22:21:00.
26
     RR II:13.
27
  RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous
behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so
nervous).
28
     RR II:13.

                                                               5
 


leave the scene.29 This was barely 15 minutes after Appellant was pulled over by

Officer Chadney at 10:10.30 When the dog arrived, it gave a positive alert for the

presence of drugs. The ensuing search of the truck and Appellant’s purse revealed

methamphetamine,31 and Appellant was arrested for possession of the same. A

search of Ms. Browning’s person uncovered more methamphetamine.32

 




                                                            
29
     RR II:15; State’s Exhibit 1 at 22:25:00.
30
     State’s Exhibit 1 at 22:10:09 (vehicles stopped).
31
     RR II:19-21.
32
     RR II:21-22.

                                                               6
 


                                                     SUMMARY OF THE ARGUMENT

              First, the trial court was entitled to conclude that Officer Chadney had

sufficient reasonable suspicion to initiate the traffic stop based on insufficient

illumination of Appellant’s rear license plate. The video admitted into evidence of

Appellant’s interaction with Officer Chadney corroborates his testimony, even if

Appellant’s assertion that it was a “pretextual” stop was true. Second, the trial court

was also entitled to conclude that Officer Chadney had sufficient reasonable

suspicion to detain Appellant while waiting for a canine unit to arrive and perform

an open air sniff for the odor of controlled substances.



                                                               ARGUMENT

              This Court should review a trial court’s denial of a motion to suppress for an

abuse of discretion, and apply a bifurcated standard of review, affording almost

complete deference to the trial court’s determination of historical facts, particularly

when based on assessments of credibility and demeanor.33 However, this Court

should review de novo whether the facts are sufficient to give rise to reasonable

suspicion.34 Reversal of a trial court decision regarding admissibility of evidence



                                                            
33
  Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Ross, 32 S.W.3d 853 (Tex.
Crim. App. 2000) (trial judge may believe or disbelieve all or some of a witness’s testimony).
34
     Id.

                                                                  7
 


should be rare “and only after a clear abuse of discretion.”35 This Court should give

“almost total deference” to the trial court, particularly when the only witness at the

suppression hearing was the arresting officer, and did not make written finding or

conclusions.36 When the trial court does not make express findings of fact, this Court

reviews the evidence in the light most favorable to the trial court’s ruling, assuming

it made findings that are consistent with its ruling and are supported by the record.37

Finally, the trial court’s ruling should be upheld under any applicable theory of law.38

              United States courts permit law enforcement officers to stop and briefly detain

a person for investigative purposes on the basis of reasonable suspicion without

violating the protections of the Fourth Amendment.39 In Texas, reasonable suspicion

exists where the officer has “specific articulable facts that, when combined with

rational inferences from those facts, would lead him to reasonably suspect that a

particular person has engaged or is (or soon will be) engaging in criminal activity.”40

This standard is wholly objective, made by evaluating the totality of the

circumstances,41 and specifically disregards the subjective intent and motives of the


                                                            
35
     Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
36
     Ross, 32 S.W.3d at 855-56.
37
     Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
38
     Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013).
39
     Terry v. Ohio, 392 U.S. 1 (1968).
40
     Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
41
     United States v. Arvizu, 534 U.S. 266, 273 (2002).

                                                               8
 


officer.42 Contrary to Appellant’s claims,43 this is true even if the encounter is

“pretextual” and the officer effectuated the stop for a purely ulterior motive so long

as there is an objectively valid basis for the stop.44


 
I. There was reasonable suspicion for the underlying traffic stop

              In her first claimed ground for relief, Appellant claims that the traffic stop in

this case was illegal. Specifically, Appellant argues that “there does not appear to

have been a traffic stop based on the fifty food rule for license plate visibility.”45 It

appears that Appellant claims that the only reason that she was pulled over was

because she was in a “high crime area.”46 This is false.




                                                            
42
     Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013).
43
  Brief for Appellant at 11 (“Just as federal case law does not allow pretext stops, state law also
does not allow evidence from a pretext stop to be admitted”).
44
  Crittenden v. State, 899 S.W.2d 668, 673-74 (Tex. Crim. App. 1995) (holding that, “a stop will
not be invalidated based on the subjective motivation of a police officer so long as there is an
objectively valid basis for the stop,” and, “an objectively valid traffic stop is not unlawful under
Article I, § 9, just because the detaining officer had some ulterior motive for making it”).
45
     Brief for Appellant at 9.
46
     Brief for Appellant at 10-11.

                                                               9
 


              A. Appellant did not clearly preserve this issue for appellate review

              It is not clear from the record that Appellant preserved this claim at the trial

court. To preserve a claim for appeal, the objecting party must enter a timely, specific

objection, and obtain an adverse ruling from the lower court.47 This requirement

affords the trial judge an opportunity to review the objection, and may also afford

opposing counsel an opportunity to remove the objection.48 Given the fundamental

and systemic nature of preservation, an appellate court “may not reverse a judgement

of conviction without first addressing any issue of error preservation.”49

              In this case, the broiler plate motion to suppress presented to the trial court,

its accompanying memorandum of law, and the arguments made at the suppression

hearing all centered on the reasonableness of Appellant’s detention while waiting

for the drug dog, not the reasonableness of the underlying traffic stop.50 The trial

brief discussed reasonable suspicion, but mostly in the context of anonymous tips.51

In arguments at the suppression hearing, Appellant never argued that the traffic stop




                                                            
47
  Tex. R. App. P. 33.1; see also Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977);
Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976) (objection that argument went
outside the record was not sufficient to preserve an appellate claim that the argument was a
comment on appellant’s failure to testify).
48
     Zillender, 557 S.W.2d at 517.
49
     Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016) (emphasis in original).
50
     See CR 15 (Motion to Suppress, filed July 20, 2015), CR 18 (Trial Brief, filed on Sep., 04, 2015).
51
     CR 18-19.

                                                               10
 


itself was problematic, and essentially conceded that the traffic stop was legitimate.52

In fact, after briefly discussing the reasonable suspicion standard, instead of

discussing the reasonable suspicion for the precipitating traffic stop, Appellant’s

attorney immediately argued that, “in this case there’s only three things that the

officer relied on for reasonable suspicion and detained Ms. Oden and her passenger

after the initial traffic stop.”53 Likewise, he closed with the following argument,

essentially conceding the legality of the traffic stop:

              So the way this should have gone down, he should have pulled her over.
              He should have written her a ticket for the defective license plate light
              and moved on because the questions that he asked her certainly didn't
              rise to the level and create a reasonable suspicion to detain her after that
              point.54

Appellant’s codefendant’s attorney then gave the trial court a review of Rodriguez

and argued about the reasonableness of extending the detention, again without

disputing the legality of the underlying traffic stop.55 Therefore, the nature of

Appellant’s motion and argument were not sufficiently specific enough to

demonstrate to the trial court or to the State that Appellant was objecting to the traffic

stop in this case and not merely the extension of the detention while waiting for drug

dog.

                                                            
52
     See RR II:45-50.
53
     RR II:45-46.
54
     RR II:46.
55
     RR II:47-50.

                                                               11
 


              B. Even if preserved, there are sufficient facts to support the trial court’s
                 finding that there was objectively reasonable suspicion of a traffic
                 offense for the underlying traffic stop
 
              Even if preserved, Appellant failed to make a sufficient record for this Court

to overturn the trial court’s implicit ruling that the traffic stop was constitutional.

Traffic violations are sufficient grounds for a traffic stop, temporary detention to

investigate the violation, and in some cases even arrest.56 The Texas Transportation

Code requires that rear license plates be clearly illuminated and legible. Specifically,

              (f) A taillamp or a separate lamp shall be constructed and mounted to
              emit a white light that:
                  (1) illuminates the rear license plate; and
                  (2) makes the plate clearly legible at a distance of 50 feet from the
                  rear.57

The plain language of the statute indicates that there is an offense even if the vehicle

has functional lights installed, but they fail to illuminate the plate so that it is clearly

legible at the prescribed distance.58 A vehicle does not become immune to a drug

                                                            
56
  See Atwater v. City of Largo Vista, 532 U.S. 318 (2001) (stop and arrest for the Class C fine-
only offense of driving without a seatbelt was reasonable under the circumstances); Anderson v.
State, 701 S.W.2d 868 (Tex. Crim. App. 1985) (upholding traffic stop for driving without
headlights).
57
     Tex. Transp. Code § 547.322.
58
   See Tex. Transp. Code § 547.322(f)(2); see, e.g., Olguin v. State, No. 06-13-00171-CR, 2014
Tex. App. LEXIS 1272 (Tex. App.—Texarkana Feb. 25, 2014, pet. ref’d) (mem. op., not
designated for publication) (while Lexis may indicate that this opinion was withdrawn later, the
February 25th opinion is the final one by the court) (not binding, but persuasive in that the court
upheld a traffic stop even when the vehicle had a functional but insufficient light on the license
plate); Floyd v. State, No. 12-07-00391-CR, 2008 Tex. App. LEXIS 5413, at *6-7 (Tex. App.—
Tyler July 23 2008, no pet.) (mem. op., not designated for publication) (no contested fact issue
when officer testified that there was a very dim light on the license plate, and that it was not legible
from 50 feet away).

                                                               12
 


investigation simply because it is initially stopped because of a defective license

plate light.59

              The issue in this case is not whether Appellant’s lights were functional or not,

it is that the lights were simply not bright enough to fully illuminate the license plate

to make it legible from 50 feet. Officer Chadney testified that he initiated the traffic

stop because of the defective license plate light.60 He also testified and Appellant

herself confirmed on the video that, “oh yeah, they’re not” emitting enough light.61

              Appellant asserts that Officer Chadney could not possibly have pulled her

over for this reason as he followed her truck for “five minutes” without any action.62

Instead, the record reflects that less than a minute elapses between the start of the

video,63 where Appellant is seen driving on the frontage road making her way to the

Interstate, and when Officer Chadney initiates his overhead lights immediately

behind Appellant on the Interstate.64 Likewise, while Appellant incorrectly



                                                            
59
  See, e.g., Elizondo-Vasquez v. State, No. 03-12-00774-CR, 2014 Tex. App. LEXIS 9174 (Tex.
App.—Austin Aug. 20, 2014, pet. ref’d) (mem. op., not designated for publication) (not binding,
but persuasive in that this Court upheld a stop for defective license plate illumination which
resulted in finding 190 pounds of marijuana).
60
   RR II:6-7 (on direct examination); RR II:30-31 (on cross examination, stating that while both
lights were working, “they weren’t emitting enough light that would cover them under the Texas
state statute”).
61
     State’s Exhibit 1 at 22:17:00.
62
     Brief for Appellant at 10.
63
     State’s Exhibit 1 at 22:08:07.
64
     State’s Exhibit 1 at 22:09:00.

                                                               13
 


maintains that “the officer did not turn off his lights at any point during the time he

was following the truck,”65 Officer Chadney explicitly testified that he did exactly

that.66 The record supports his testimony: the following image extracted from his

dash camera recording demonstrates that Officer Chadney did in fact have his

headlights off for several seconds while following Appellant.67 Appellant’s vehicle

can be seen slightly ahead and to the left in the following image:68




                                                            
65
     Brief for Appellant at 10.
66
  RR II:25-26 (Officer Chadney testifying: “I actually turned my headlights off in order to give
them the benefit of the doubt and verify that, you know, it’s not emitting enough light to be – to
be seen by 50 feet”).
67
     State’s Exhibit 1 at 22:08:12 to 22:08:19.
68
  Extracted from State’s Exhibit 1 at 22:08:17, without adjusting the software’s quality settings
for contrast or brightness.

                                                               14
 


Due to the resolution of the video and the light distortion inherent in filming at night,

it is not possible to clearly determine from the footage how legible Appellant’s rear

license plate actually was. It does, however, corroborate Officer Chadney’s

testimony regarding his actions and Appellant’s admission of the offense, and does

not contradict the trial court’s implicit finding that he had reasonable suspicion to

initiate a traffic stop on Appellant’s truck.

              In this case, Officer Chadney had sufficient, articulable facts that Appellant’s

license plate was not sufficiently illuminated, and that it was not clearly legible at a

distance of 50 feet. The trial court was entitled to find credible his testimony that he

directly observed said violation as well as Appellant’s admission. Even if this was a

pretextual stop, there still is an objectively reasonable basis for the stop,69 and

therefore, the trial court properly denied Applicant’s motion to suppress as to the

traffic stop in this case.70



II. Officers had reasonable suspicion that Appellant possessed drugs to
    temporarily detain Appellant while waiting for a canine unit to arrive
 
              In her second alleged ground for relief, Appellant asserts that this Court

should disregard Texas cases regarding drug dog sniff searches and find that the drug


                                                            
69
  Crittenden v. State, 899 S.W.2d 668, 673-74 (Tex. Crim. App. 1995) (pretext stops with an
objectively reasonable purpose are permissible).
70
     See Ross, 32 S.W.3d at 855-56 (trial court should be afforded almost total deference on appeal).

                                                               15
 


dog search was unconstitutional as because it “was not justified by reasonable

suspicion related to the license plate light” and “calling in a drug dog is not

reasonably related to a license plate light.”71 The State construes these arguments to

mean that Appellant is asserting that the officers did not have reasonable suspicion

to detain her while waiting for a drug dog to arrive and perform an open-air sniff

search. Her arguments are misplaced, and in any case fail under the facts of this case.



              A. Evidence gained during the duration of an otherwise justifiable
                 temporary detention may give rise to reasonable suspicion of a
                 different offense

              As an initial matter, reasonable suspicion of one offense may be developed

during a traffic stop for another offense, so long as they do not extend the detention

to do so. Appellant seems to argue that the dog sniff and extension for it was

unreasonable because it was not justified given the reason for the stop.72

              “Beyond determining whether to issue a traffic ticket, an officer’s mission

includes ‘ordinary inquiries incident to [the traffic] stop’.”73 However, officers are

not prohibited from exploring any new offenses they may discover during the stop.

To the contrary, during the time it takes to complete those inquiries, an officer may


                                                            
71
     Brief for Appellant at 14.
72
     Brief for Appellant at 14.
73
  Rodriguez v. United States, 135 S.Ct. 1609, 1615 (2015) (quoting Indianapolis v. Edmond, 531
U.S. 32, 40-41 (2000)).

                                                               16
 


also develop reasonable suspicion of another offense, thereby expanding the scope

of the investigation to include the new offense.74

              In this case, Officer Chadney’s investigation included those sorts of “ordinary

inquiries” regarding the insufficiently illuminated license plate until at least the point

where he received driver license returns.75 During that time, he made most if not all

of the observations justifying extending the detention pending a canine unit.

Therefore, Officer Chadney rightly expanded the scope of his investigation from the

traffic offense to a narcotics-related investigation.



              B. The officers in this case did have reasonable suspicion to extend the
                 temporary detention to wait for a canine unit in light of location,
                 Appellant’s dishonesty about her narcotics history, her visible
                 nervousness starting after being asked about narcotics, and her
                 passenger’s substantial narcotics history
 
              Secondly, officers did have reasonable suspicion to believe that drugs were

present in the vehicle, and that reasonable suspicion provided them with a basis to

extend the stop to wait for a drug dog to arrive and perform an open-air sniff search

in compliance with Rodriguez. While a dog sniff is not the sort of “ordinary inquiry,”



                                                            
74
  See, e.g., Gougeau v. State, 209 S.W.3d 713, 719 (Tex. App.—Houston [14th Dist.] 2006, no
pet.) (not binding, but persuasive in that it reaches this conclusion after summarizing the law from
other cases, and has been cited for this principle by this Court in Moreno v. State, No. 03-14-
00596-CR, 2016 Tex. App. LEXIS 6868, at *6 (Tex. App.—Austin June 30, 2016, no pet.) (mem.
op., not designated for publication)).
75
     State’s Exhibit 1 at 22:17:30 (officers still waiting on driver license returns).

                                                               17
 


normally relevant to a traffic stop, one may be conducted so long as it does not

“prolong” the traffic stop or when the officer has developed reasonable suspicion

that there are illicit substances in the vehicle.76 In other words, Rodriguez only

prohibits drug dog sniffs if they extend an otherwise-completed traffic stop where

no other reasonable suspicion exists which would justify the drug dog sniff.77 When

an officer develops reasonable suspicion that controlled substances may be in a

vehicle before extending a traffic stop, he may so extend the stop for a reasonable

length of time to wait for a canine unit to arrive and conduct a sniff around the

vehicle.

              In the instant case, Officer Chadney observed and testified about numerous

observations he used to form reasonable suspicion that there were illegal drugs in

Appellant’s truck the night of the instant offense. For example;

               First, Officer Chadney initially observed Appellant’s truck leaving

                      Candlewood Suites, an area “well known” to law enforcement to be a “high

                      crime area known for narcotics use.”78 Officer Chadney himself had made

                      arrests coming out of that hotel for narcotics-related activity.79 While


                                                            
76
  Rodriguez, 135 S.Ct. at 1616-17 (explicitly remanding the case back to the Eighth Circuit to
determine if there was individualized suspicion to extend the detention).
77
     Rodriguez, 135 S.Ct. at 1614.
78
     RR II:8-9.
79
     RR II:8-9.

                                                               18
 


                      Appellant is correct that this fact alone would not give him reasonable

                      suspicion to imitate or extend the traffic stop, it may be considered as one

                      of the facts he was aware of at the initiation of the detention.80

               Second, Appellant lied about her criminal history, intentionally omitting

                      any reference to her narcotics arrest, and drawing attention to her arrest for

                      a theft-related offense.81

               Third, Appellant became visibly nervous only after Officer Chadney

                      inquired as to the presence of illegal narcotics in the truck.82 This

                      observation was bolstered by his testimony that he had encountered

                      Appellant only a couple of weeks before the instant stop when her truck

                      had been struck by a drunk driver. In that encounter Appellant “wasn’t

                      nervous at all,” and was calm, even after being involved in a traffic

                      accident.83 The night of the instant offense, Appellant’s demeanor only

                      changed after Officer Chadney asked if she had narcotics with her.84

                                                            
80
   See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123-24 (200) (location in a “high crime area”
considered as a factor in upholding traffic stop); United States v. Arvizu, 534 U.S. 266, 273 (2002)
(in evaluating reasonable suspicion, courts may allow officers to draw on their own training and
experience).
81
   RR II:9-10 (Officer Chadney only found out about the narcotics history after requesting
Appellant’s history from dispatch); see e.g. Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App
2012) (“Deception regarding one’s own criminal record has also been recognized as a factor that
can contribute to reasonable suspicion,”)
82
     RR II:11-12.
83
     RR II:12.
84
     RR II:12.

                                                               19
 


                      Officer Chadney directly questioned Appellant on her nervousness on

                      video that night, and Appellant expressed that she just wanted to leave.85

               Fourth, Officer Chadney testified that he observed Appellant’s pulse begin

                      to race at that point as well, most visibly seen in the artery on the left side

                      of her neck.86 Appellant attacks this observation at the hearing and on

                      appeal,87 but as referenced above, the video in this case is not of a high

                      enough quality to observe how Appellant’s hair was arranged while she

                      was seated in the truck, or indeed if it would have obscured Officer

                      Chadney’s view of her artery.88 Even if this is construed as a conflict in

                      the evidence, the trial court was entitled to resolve the conflict in favor of

                      Officer Chadney’s observation and testimony, particularly after being able

                      to determine that he was credible during live testimony.89

               Fifth, Appellant’s passenger and co-defendant also Ms. Browning was

                      initially compliant, but exhibited the same sort of nervousness and change


                                                            
85
     State’s Exhibit 1 at 22:20:30.
86
  RR II:10-11; see e.g. Hamal 390 S.W.3d at 308 (citing past case law to note that nervousness,
prior criminal record, and deception about that record are all factors that a court may consider in
evaluating reasonable suspicion).
87
     RR II:16; Brief for Appellant at 11.
88
     RR II:16; State’s Exhibit 1 at 22:15:45
89
   See, e.g., State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) (trial judge may believe or
disbelieve all or some of a witness’s testimony); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013) (reviewing courts should assume the trial court made findings consistent with
its ruling and supported by the record).

                                                               20
 


                      in demeanor when Officer Chadney asked her about narcotics, including

                      that her heart began to race and her breathing became labored.90

               Sixth, Ms. Browning also had a history of arrests, and “almost her entire

                      criminal history” was comprised of narcotics offenses, primarily

                      possession of marijuana and methamphetamine.91

              While none of these observations alone would constitute reasonable suspicion

of narcotics, when seen objectively in their totality,92 the trial court did not abuse its

discretion in ruling that there was reasonable suspicion for officers to extend the

temporary detention while waiting for a canine unit to arrive. Further, the total length

of detention was certainly reasonable, with less than thirty minutes passing between

the start of the traffic stop and the arrival of the drug dog.93 Similarly, only about

thirteen minutes elapsed between Officer Chadney telling Appellant he was calling

a canine unit and she was not free to leave, and when that unit began its sniff.94

Therefore, since the traffic stop in this case was proper and properly extended to

                                                            
90
  RR II:13 (Officer Chadney testifying that, “she exhibited signs that I know to be nervous
behavior”); State’s Exhibit 1 at 22:23:00 (Officer Chadney asking Ms. Browning why she was so
nervous).
91
     RR II:13.
92
  United States v. Arvizu, 534 U.S. 266, 273 (2002) (court must evaluate reasonable suspicion
under the totality of the circumstances, including allowing officers to draw on their own training
and experience).
93
  State’s Exhibit 1 at 22:09:00 (lights initiated), 22:10:09 (vehicles stopped); 22:17:30 (still
waiting on driver license returns); and 22:38:00 (drug dog begins sniff around truck).
94
  State’s Exhibit 1 at 22:25:00 (Appellant being detained pending canine unit); and 22:38:00 (drug
dog begins sniff around truck).

                                                               21
 


wait for a canine unit based on reasonable suspicion of possession of narcotics,

Appellant’s conviction should be affirmed on appeal.



                                   PRAYER

      Wherefore, the State respectfully requests that this Court affirm the

conviction.


                                                           Respectfully submitted,


                                                                       Jana Duty
                                                                 District Attorney
                                                        Williamson County, Texas


                                                                  /s/ Daniel Sakaida
                                                                      Daniel Sakaida
                                                         Assistant District Attorney
                                                       State Bar Number 24084601
                                                        405 Martin Luther King #1
                                                         Georgetown, Texas 78626
                                                                     (512) 943-1248
                                                               (512) 943-1255 (fax)
                                                          daniel.sakaida@wilco.org




                                       22
 


                        CERTIFICATE OF COMPLIANCE

      I certify that, after allowable exclusions, the State’s brief contains 4,901 words

in compliance with Rule 9.4 of the Texas Rules of Appellate Procedure.


                                               __/s/ Daniel Sakaida______________
                                               Daniel Sakaida



                           CERTIFICATE OF SERVICE

       I hereby certify that on November 15, 2016, I electronically filed the foregoing
document with the clerk of the court for the Texas Court of Criminal Appeals, using
the efile.txcourts.gov system. Via that system, a “Notice of Electronic Filing” was
sent to Appellee’s appellate attorney of record, Lisa Mims, P.O. Box 141218, Austin,
Texas, 78714-1218, at lisamariemims@gmail.com


                                               _/s/ Daniel Sakaida_______________
                                               Daniel Sakaida




                                          23
