                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-342-CR


JIM DON MCANALLY                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant Jim Don McAnally appeals his conviction for possession of less

than one gram of methamphetamine. In a single point, McAnally argues that

the trial court erred by denying his motion to suppress. We will affirm.




      1
          … See Tex. R. App. P. 47.4.
                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Officer Jeffrey Chase of the Northlake Police Department was driving on

Interstate 35 in Northlake early one morning when he saw McAnally’s vehicle

fail to maintain a single lane and saw McAnally flick a cigarette out of the

vehicle.   He also noticed that McAnally appeared to be trying to hide

something. Officer Chase pulled over McAnally at 1:53 a.m. A camera in the

officer’s vehicle videotaped the stop.

      When Officer Chase approached the vehicle, he noticed a cardboard box

labeled “hydrochloric acid” with a shirt tucked inside it on the passenger-side

floorboard. He also noticed “numerous” paper matchbooks and the backers of

those matchbooks scattered all over the floorboard and center console of the

vehicle. He testified that, based on his training and experience with narcotics

investigations,   red   phosphorus   strips   from   matchbooks   are   used   in

methamphetamine production. 2

      Officer Chase asked McAnally to step out of the vehicle and asked him

a series of questions. When asked general questions not related to drug usage,

McAnally would look Officer Chase in the eyes and answer quickly, but when



      2
       … Officer Chase did not testify that hydrochloric acid is commonly used
in production of methamphetamine, but he explained that he was suspicious
that McAnally was trying to hide something inside the box by the way the shirt
completely covered its contents.

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asked about illegal drugs, McAnally would avoid eye contact. Officer Chase

also noticed that McAnally “was very ungroomed, unkempt,” had red, heavy

eyes, appeared not to have slept in days, and looked “strung out.” The officer

requested consent to search McAnally’s vehicle, and McAnally refused.

      At 1:59 a.m., Officer Chase told McAnally that he was going to call for

a K-9 unit to conduct a “sniff search” of his vehicle and that he was not free

to leave. Officer Chase contacted Denton County dispatch and several other

K-9 officers, but they were unavailable. He then contacted the Fort Worth

Police Department, and it sent a K-9 unit to the scene. Officer Chase testified

that approximately thirty minutes passed between when he stopped McAnally

and when he learned that a K-9 unit was on its way.

      The K-9 unit arrived at approximately 3:11 a.m., over seventy minutes

after Officer Chase told McAnally that he was not free to leave and returned to

his squad car to call for a K-9 unit. The drug dog alerted on McAnally’s vehicle,

and a search of the vehicle revealed a pipe loaded with methamphetamine, a

straw with residue, and a baggie of what was later determined to be

methamphetamine.

                            III. M OTION TO S UPPRESS

      In his sole point, McAnally argues that the trial court erred by denying his

motion to suppress because Officer Chase lacked reasonable suspicion to

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initiate a traffic stop, because Officer Chase lacked reasonable suspicion to

continue detaining McAnally to wait for a K-9 unit, and because the extended

detention of McAnally while awaiting the K-9 unit was unreasonable.

                             A. Standard of Review

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

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

                                         4
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party

timely requested findings and conclusions from the trial court, we imply the

necessary fact findings that would support the trial court’s ruling if the

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

those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal

ruling de novo unless the implied fact findings supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 819.

                B. Reasonable Suspicion for Initial Traffic Stop

      A police officer has the authority to stop and temporarily detain a driver

who has violated a traffic law. See Garcia v. State, 827 S.W.2d 937, 944

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(Tex. Crim. App. 1992); Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim.

App. 1982). An automobile stop is justified when an officer has reasonable

suspicion to believe that a traffic violation has occurred. Goudeau v. State,

209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

Reasonable suspicion exists if the officer has specific, articulable facts that,

combined with rational inferences from those facts, would lead him to

reasonably conclude that a particular person actually is, has been, or will soon

be engaged in criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex.

Crim. App. 2007). This is an objective standard that disregards any subjective

intent of the officer making the stop and looks solely to whether an objective

basis for the stop exists. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim.

App. 2005). Thus, when stopping vehicles for an investigative detention based

on a traffic violation, the State need not prove that the detainee actually

committed a traffic violation. See Drago v. State, 553 S.W.2d 375, 377 (Tex.

Crim. App. 1977).

      Section 365.012(a) of the Texas Health and Safety Code provides that

a person commits an offense if he “disposes . . . of litter or other solid waste

at a place that is not an approved solid waste site, including a place on or

within 300 feet of a public highway.”      Tex. Health & Safety Code Ann. §

365.012(a) (Vernon Supp. 2009). Litter includes “nondecayable solid waste,

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except ashes, that consists of . . . combustible waste material, including paper,

rags, . . . , or similar materials.” Id. § 365.011(6)(B) (Vernon 2001).

      In the present case, Officer Chase testified that he saw McAnally “appear

to flick a lit cigarette” out of the driver’s side window and that it “came back

towards [the officer’s] car.” McAnally argues that Officer Chase’s testimony

shows that he was unsure of what he saw and that he could have seen

cigarette ashes, which are excluded from the definition of “litter” under the

statute. See id. Nevertheless, the State needed to prove only that Officer

Chase had a reasonable suspicion that McAnally had littered; it did not have to

prove that McAnally actually had committed the offense of littering.         See

Drago, 553 S.W.2d at 377.         We hold that Officer Chase had reasonable

suspicion to stop McAnally for littering. 3

              C. Reasonable Suspicion for Continued Detention

      Having determined that Officer Chase had reasonable suspicion to stop

McAnally, we must now decide whether the officer had reasonable suspicion

to continue detaining McAnally.




      3
      … Having found a basis for reasonable suspicion to stop McAnally, we
need not address whether Officer Chase had reasonable suspicion to stop
McAnally for the offense of failure to maintain a single lane.

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      If, during a valid traffic stop and detention, the officer develops

reasonable suspicion that the detainee is engaged in criminal activity, prolonged

or continued detention is justified. Davis v. State, 947 S.W.2d 240, 243–44

(Tex. Crim. App. 1997); McQuarters v. State, 58 S.W.3d 250, 256 (Tex.

App.—Fort Worth 2001, pet. ref’d). More specifically, if a valid traffic stop

evolves into an investigative detention of other criminal activity (such as

possession of a controlled substance) so that a canine sniff can take place,

reasonable suspicion is required to prolong the detention and refusal to consent

to search does not, in and of itself, establish that requirement.     Sieffert v.

State, 290 S.W.3d 478, 484 (Tex. App.—Amarillo 2009, no pet.); Green v.

State, 256 S.W.3d 456, 462 (Tex. App.—Waco 2008, no pet.).

      Here, several facts led Officer Chase to suspect that drugs were inside

McAnally’s vehicle, including the box labeled “hydrochloric acid” with a shirt

covering its contents, the paper matchbooks, and the paper backers to those

matchbooks inside McAnally’s vehicle, McAnally’s appearance, and McAnally’s

mannerisms when he answered the officer’s questions. 4 Consequently, we hold



      4
        … Viewed in isolation, some of these facts might not support a
reasonable suspicion finding. For example, as McAnally points out on appeal,
Officer Chase testified on cross-examination that hydrochloric acid could be
used to clean swimming pools. However, conduct that may be innocent when
viewed in isolation may give rise to reasonable suspicion when viewed in the
light of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38

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that, based on the totality of the circumstances, Officer Chase testified to

specific, articulable facts that, when combined with rational inferences from

those facts, would lead him to conclude that McAnally was engaged in criminal

activity. See Castro, 227 S.W.3d at 741; Davis, 947 S.W.2d at 243–44;

McQuarters, 58 S.W.3d at 256. Accordingly, we hold that Officer Chase had

reasonable suspicion to continue his detention of McAnally.

                 D. Reasonableness of Continued Detention

      We must now address whether the length of McAnally’s detention was

reasonable. A detention based on reasonable suspicion must be temporary and

last no longer than is necessary to effectuate the purpose of the stop. Florida

v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983). Although the

length of a detention may render a traffic stop unreasonable, there is no rigid,

bright-line time limitation. United States v. Sharpe, 470 U.S. 675, 685, 105

S. Ct. 1568, 1575 (1985); Love v. State, 252 S.W.3d 684, 687 (Tex.

App.—Texarkana 2008, pet. ref’d); Belcher v. State, 244 S.W.3d 531, 539

(Tex. App.—Fort Worth 2007, no pet.). The reasonableness of the duration of

a detention depends on whether the police diligently pursued a means of

investigation that was likely to confirm or dispel any suspicions quickly, during



(Tex. Crim. App. 1997); Parker v. State, No. 11-08-00214-CR, 2009 WL
2883423, at *7 (Tex. App.—Eastland Sept. 10, 2009, no pet. h.).

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which time it was necessary to detain the defendant. Sharpe, 470 U.S. at 686,

105 S. Ct. at 1575; Love, 252 S.W.3d at 687; Belcher, 244 S.W.3d at 539.

Fourth Amendment reasonableness requires a balance between serving the

interest of the public as weighed against the individual’s right to be free from

arbitrary detentions and intrusions. Kothe v. State, 152 S.W.3d 54, 63 (Tex.

Crim. App. 2004).

      Here, the videotape of the stop shows that Officer Chase activated his

lights and pulled over McAnally at 1:53 a.m. Officer Chase returned to his

vehicle at 1:59 a.m. to request a K-9 unit.     The audio on the videotape is

intermittent, and there is no audio of Officer Chase requesting a K-9 unit.

However, Officer Chase testified that he called Denton County dispatch to

request a K-9 unit and that “because of the heavy call load they’re under

dispatching for the entire county,” he also called “at least” two or three other

K-9 officers on his personal cell phone. He left several messages and heard

back from one officer who said he was not on duty.

      Officer Chase testified that he “got word” that a K-9 unit from the Fort

Worth Police Department was on its way at 2:26 a.m., but the video shows

that at 2:15 a.m., he told McAnally that the Fort Worth Police Department

would be there “in a couple of minutes.” He also offered to get McAnally a




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jacket that he saw inside his vehicle. 5 Twenty-three minutes later, at 2:38

a.m., Officer Chase got out of his vehicle, told McAnally that the K-9 unit was

on its way, and offered for McAnally to sit in his squad car until the K-9 unit

arrived. McAnally agreed to wait inside the squad car. Minutes later, Officer

Chase told McAnally that he had called the K-9 unit again and that it was in

route. The K-9 unit arrived at approximately 3:11 a.m., seventy-two minutes

after Officer Chase told McAnally that he was not free to leave and went to his

vehicle to call for a K-9 unit.

      We agree with McAnally that his continued detention for over seventy

minutes while waiting for a K-9 unit to arrive appears unreasonable at first

glance, but applying the fact-specific Fourth Amendment standard for

reasonableness, as we must, we note that Officer Chase’s testimony shows

that he was diligent in pursuing a K-9 unit. See Sharpe, 470 U.S. at 686, 105

S. Ct. at 1575; Love, 252 S.W.3d at 687; Belcher, 244 S.W.3d at 539.

Officer Chase’s testimony demonstrates that he diligently searched for an

available K-9 unit for twenty to thirty minutes until he secured one from a

neighboring county in the early morning hours. See Love, 252 S.W.3d at 688

(holding that twenty-minute detention for K-9 unit to arrive was not only



      5
      … Officer Chase testified that the temperature was between 30 and 50
degrees that night.

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reasonable but expeditious considering that it had to come from neighboring

county at night). He also called to check on the status of the K-9 unit at least

once during the approximately thirty minutes that he waited for its arrival.

Additionally, Officer Chase offered to get McAnally a jacket while he waited

and allowed McAnally to wait inside the squad car, thus reducing at least to

some extent the level of intrusion generated by the detention. See Belcher,

244 S.W.3d at 542 (considering fact that officer permitted defendant to smoke

and answer his cell phone during twenty-seven minute detention while awaiting

K-9 unit as reducing to some extent level of intrusion).

      Balancing the public interest served with McAnally’s Fourth Amendment

right to be free from arbitrary detentions and intrusions and viewing all of the

evidence in the light most favorable to the trial court’s ruling, we cannot

conclude that, based on the totality of the circumstances, McAnally’s detention

for approximately seventy minutes while Officer Chase located a K-9 unit and

awaited its arrival was unreasonable. See Kothe, 152 S.W.3d at 63; Parker,

2009 WL 2883423, at *4, 8 (holding continued detention reasonable where

officer attempted to locate K-9 unit for eighteen minutes and unit arrived forty

minutes later); Strauss v. State, 121 S.W.3d 486, 492 (Tex. App.—Amarillo

2003, pet. ref’d) (holding seventy-five-minute detention from stop until drug

dog arrived was not unreasonable); Josey v. State, 981 S.W.2d 831, 840–41

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(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d) (holding ninety-minute

detention from stop until officers searched vehicle was reasonable).

Accordingly, we overrule McAnally’s sole point.

                              IV. C ONCLUSION

     Having overruled McAnally’s sole point, we affirm the trial court’s

judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 19, 2009




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