      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00475-CR



                                 Jody Keith Chasteen, Appellant

                                                 v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
           NO. 31915, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                 Jody Keith Chasteen appeals his conviction for possession of methamphetamine in an

amount less than one gram. See Tex. Health & Safety Code Ann. § 481.102(6) (West Supp. 2006),

§ 481.115(b) (West 2003). In a single issue, appellant contends that the trial court erred in denying

his motion to suppress evidence because his detention was illegal and the arresting officer lacked

probable cause to search his vehicle. Because the detention was supported by reasonable suspicion

and the officer had probable cause to search appellant’s vehicle, we affirm the judgment

of conviction.


                                         BACKGROUND

                 On January 5, 2005, at approximately 10:30 p.m., Deputy Steve Koenning of the

Burnet County Sheriff’s Office was conducting a routine patrol in the Kingsland area of Burnet

County when he encountered appellant at a roadside park on Highway F.M. 1431. A sign posted at
the park states that there is no parking allowed between 10:00 p.m. and 6:00 a.m.1 Koenning

testified that he observed appellant’s maroon Ranger pickup truck at the location with the engine off

and no interior or exterior lights on. There was no lighting at the park, and no other persons or

vehicles were present at the location.

                Koenning approached appellant, who was in the driver’s seat, requested identification,

and asked him what he was doing. Appellant gave his name and driver’s license number to the

officer and explained that he was waiting for a girl to come from a nearby Kingsland motel. As

appellant began looking for his driver’s license and insurance, Koenning observed two knives in the

passenger seat: one was a large type of pocket knife, and the other was a utility knife. Appellant

appeared to be searching for his billfold as he kept reaching in different locations. When appellant

reached in the vicinity of the knives a second time, Koenning asked him to exit the vehicle, seeking

to distance appellant from the knives. Appellant produced an insurance card but was unable to

produce a driver’s license. Koenning contacted his dispatcher and requested a check on the

identifying information that appellant had provided orally. The officer testified that he requested a

backup officer by radio and patted appellant down to check for weapons.

                As Koenning conducted the pat-down search, he felt an object in the pocket of

appellant’s jacket. After discovering the object but before removing it from the jacket, Koenning

asked appellant what he had in his pocket. Appellant told Koenning that it was a syringe. Koenning

asked him if he was diabetic. Appellant explained that he used to do drugs and had forgotten to

take the syringe out of his jacket. After removing the syringe from appellant’s pocket and advising


       1
           See Tex. Transp. Code Ann. § 545.302 (West Supp. 2006).

                                                  2
him that he was not under arrest, Koenning placed handcuffs on appellant as he waited for another

deputy to arrive.

                 Koenning asked appellant if he could search the vehicle; appellant responded, “I’d

rather that you didn’t.” Koenning then requested a canine unit, which arrived eighteen minutes after

the initial encounter began. The dog alerted to the driver’s door of the vehicle, and officers retrieved

a clear plastic-type jar from the door pocket on the driver’s door with the lid removed. The jar

contained a powdery substance that later tested positive for methamphetamine. The lid to the jar was

found on the driver’s side floorboard underneath the steering wheel. Another syringe was located

inside the vehicle behind the driver’s seat.

                 Appellant was indicted for possession of methamphetamine. After appellant’s motion

to suppress the evidence seized following his detention was denied by the trial court,2 he pleaded not

guilty and proceeded to trial. A jury found appellant guilty.


                                               ANALYSIS

                 Appellant contends that the trial court erred in denying his motion to suppress

evidence obtained in violation of his rights under the United States and Texas Constitutions.3 He

        2
            The parties did not request and the trial court did not make findings of fact.
        3
           Appellant claims that the trial court’s denial of his motion violated his rights under article
I, section 9 of the Texas Constitution and articles 38.22 and 38.23 of the Texas Code of Criminal
Procedure. See Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. arts. 38.22-.23 (West 2005).
Because appellant does not differentiate between his state and federal issues and does not assert that
the Texas Constitution requires more than the Fourth Amendment, we will address them together.
See Heitman v. State, 815 S.W.2d 681, 690 n.22 (Tex. Crim. App. 1991) (requiring separate
authority and argument to distinguish state constitutional claims from federal claims or court may
overrule issue as multifarious). Moreover, in regard to a temporary investigative stop of a vehicle,
article I, section 9 of the Texas Constitution does not afford a more stringent standard than the

                                                    3
argues that his detention was illegal and the officer did not have probable cause to search his vehicle.

Appellant does not challenge the sufficiency of the evidence.

                When reviewing a trial court’s decision on a motion to suppress, we apply a

bifurcated standard of review, giving almost total deference to a trial court’s determination of

historical facts and reviewing the court’s application of law de novo. Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997).

Where the trial court did not make explicit findings of historical facts, as here, we review the

evidence in a light most favorable to the trial court’s ruling and assume that the trial court made

implicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28

(Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of the witnesses and their

testimony. Maxwell, 73 S.W.3d at 281. Where the record does not reflect the trial court’s legal

theory for denying the motion to suppress evidence, the ruling must be affirmed if it is reasonably

supported by the record and can be upheld on any valid theory of law applicable to the case. State

v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).

                An officer may conduct a brief investigative detention if he has a reasonable suspicion

to believe that an individual is involved in criminal activity. Carmouche, 10 S.W.3d at 328. The

reasonableness of a temporary detention must be examined in terms of the totality of the

circumstances at its inception and will only be justified if the officer can point to specific articulable




Federal Constitution. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). Therefore, if
the stop and the subsequent actions of the officer are not in violation of the federal standard under
Terry v. Ohio, 392 U.S. 1 (1968), they do not violate article I, section 9 of the Texas Constitution.
Rhodes, 945 S.W.2d at 117.

                                                    4
facts that, when combined with rational inferences from those facts, would lead him to reasonably

suspect that a specific person had engaged in or soon would be engaging in criminal activity. Garcia

v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Reasonable suspicion to justify an

investigative detention must be based on facts more substantial than an unparticularized suspicion

or mere “hunch” of criminal activity. Terry v. Ohio, 392 U.S. 1, 27 (1968). There must be an

objective basis for the stop. Garcia, 43 S.W.3d at 530. The subjective intent of the officer

conducting the stop is irrelevant. Id.

               The defendant in a criminal proceeding who alleges a Fourth Amendment violation

bears the burden of producing some evidence that rebuts the presumption of proper police conduct.

Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). Once the defendant has made a showing

that a search or seizure occurred without a warrant, as the defendant did here, the burden is on

the State to prove that the detention was nonetheless reasonable under the totality of the

circumstances. Amador v. State, No. PD-0786-06, 2007 Tex. Crim. App. LEXIS 501, at *12

(Tex. Crim. App. Apr. 25, 2007); Garcia, 43 S.W.3d at 530; see also Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005). We look only at those facts known to the officer at the inception of the

stop—a stop or search unlawful at its inception may not be validated by subsequent events. See

Wong Sun v. United States, 371 U.S. 471, 484 (1963). If an officer stops an individual based merely

on a hunch that the individual is “up to no good,” the fact that the hunch turns out to be correct does

not retroactively validate the stop. See id.

               An investigative detention is distinguishable from a consensual encounter, which does

not infringe on a constitutional right and requires no justification. Florida v. Royer, 460 U.S. 491,



                                                  5
497-98 (1983). An officer without reasonable suspicion of criminal activity may question an

individual during a consensual encounter, “[a]s long as the person to whom questions are put

remains free to disregard the questions and walk away.” United States v. Mendenhall, 446 U.S. 544,

554 (1980). However, an investigative detention occurs when a person’s freedom of movement is

restrained, either by physical force or a show of authority. An investigative detention constitutes a

seizure and invokes constitutional safeguards. Id. at 553; Johnson v. State, 912 S.W.2d 227, 236

(Tex. Crim. App. 1995).

                Under Terry, a temporary investigative detention—a Fourth Amendment seizure—is

reasonable, and therefore constitutional, if the officer’s action was justified at the detention’s

inception and the detention was reasonably related in scope to the circumstances that justified the

interference in the first place. 392 U.S. at 19-20. For the officer’s initial action to be justified under

the first Terry prong, we ask whether there existed specific, articulable facts that, taken together with

rational inferences from those facts, reasonably warranted that intrusion. Id. at 21.

                A seizure that is reasonable at its inception may violate the Fourth Amendment by

virtue of its excessive intensity and scope. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App.

1997). Thus, under the second Terry prong, an investigative detention must be temporary and last

no longer than is necessary to effectuate the purpose of the stop. See Royer, 460 U.S. at 500. Once

the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for

unrelated criminal activity.” Davis, 947 S.W.3d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41

(1996) (Ginsberg, J., concurring)).




                                                    6
               The scope of the seizure must be restricted to that necessary to fulfill the seizure’s

purpose. Royer, 460 U.S. at 500. “There is, however, no constitutional stopwatch on traffic stops.

Instead, the relevant question in assessing whether a detention extends beyond a reasonable duration

is ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel

their suspicions quickly.’” United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (en banc)

(quoting United States v. Sharpe, 470 U.S. 675, 686 (1985)). An investigative detention “may last

as long as is reasonably necessary to effectuate the purpose of the stop, including the resolution of

reasonable suspicion, supported by articulable facts within the officer’s professional judgment, that

emerges during the stop.” Id. at 512. The Supreme Court has expressly rejected placing a rigid

limitation on investigative detentions. Sharpe, 470 U.S. at 685-86 (declining to establish a per se

rule that a 20-minute detention is too long under Terry); see also Kothe v. State, 152 S.W.3d 54, 64-

65 (Tex. Crim. App. 2004).

               Once the initial investigation that is justified is concluded, the officer may no longer

detain the driver, who must be permitted to leave. Kothe, 152 S.W.3d at 63-64. An officer may

request consent to search a vehicle after the purpose of the detention has been accomplished, as long

as the request is reasonable under the circumstances and the officer has not conveyed a message that

compliance with the officer’s request is required. Leach v. State, 35 S.W.3d 232, 235-36

(Tex. App.—Austin 2000, no pet.); Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston

[14th Dist.] 2000, pet. ref’d). But if consent is refused, the officer must have reasonable suspicion

to continue to detain the person stopped. Simpson, 29 S.W.3d at 328.




                                                  7
               A law enforcement officer may conduct a limited search of a suspect’s outer clothing

for weapons, even in the absence of probable cause, when the officer reasonably believes that the

suspect is armed and dangerous. Carmouche, 10 S.W.3d at 329 (citing Terry, 392 U.S. at 27); Davis

v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992). The purpose of this limited search is to allow

the officer to pursue an investigation without fear of violence, not to discover evidence. Carmouche,

10 S.W.3d at 329. The officer need not be absolutely certain that an individual is armed; the issue

is whether a reasonably prudent person would justifiably believe that his safety or that of others was

in danger. O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000). A frisk is justified when

the officer can point to specific and articulable facts that reasonably lead him to conclude that the

suspect might possess a weapon. Carmouche, 10 S.W.3d at 329. Under the “plain-feel” exception

to the Fourth Amendment’s warrant requirement, “if a police officer lawfully pats down a suspect’s

outer clothing and feels an object whose contour or mass makes its identity immediately apparent,

there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s

search for weapons.” Id. at 330 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375 (1993)). If a

protective frisk goes beyond what is necessary to determine if the suspect is armed, the frisk is no

longer valid under Terry and its fruits will be suppressed. Id.

               If, during a valid detention, the officer develops reasonable suspicion that the detainee

is engaged in criminal activity, continued detention is justified. See Davis, 947 S.W.2d at 244.

Additional facts and information discovered by an officer during a lawful detention may form the

basis for a reasonable suspicion that another offense has been or is being committed. Razo v. State,

577 S.W.2d 709, 711 (Tex. Crim. App. [Panel Op.] 1979); Powell v. State, 5 S.W.3d 369, 377



                                                  8
(Tex. App.—Texarkana 1999, pet. ref’d). If the valid detention evolves into an investigative

detention of other criminal activity (such as transporting illegal drugs) so that a canine sniff can

take place, reasonable suspicion is required to prolong the detention. Davis, 947 S.W.2d at 243; Hill

v. State, 135 S.W.3d 267, 269 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). But even in the

absence of reasonable suspicion, a sniff of the outside of a vehicle by a trained canine during a valid

detention is not a search within the meaning of the Fourth Amendment. Illinois v. Caballes,

543 U.S. 405, 409 (2005).

               This case is distinguishable from those in which a citizen is pulled over for a traffic

violation. See, e.g., Corbin v. State, 85 S.W.3d 272, 274-75 (Tex. Crim. App. 2002). Deputy

Koenning did not initiate a stop. He approached the vehicle because it was unlawfully parked at an

hour that violated the posted sign. As an initial matter, Koenning was entitled to approach and make

the inquiry as he did. But this does not end our inquiry. Here, a seizure took place when Koenning

observed the knives, instructed appellant to exit the vehicle, and appellant yielded to Koenning’s

show of authority.

               Appellant does not dispute the validity of the initial encounter resulting from

appellant’s parking or curfew violation. He contends, however, that once Koenning requested

appellant’s identification and requested a warrants check that the officer was not justified in

detaining him when the dispatcher reported back to Koenning that no warrants existed.

               The additional information that Koenning learned as the events unfolded formed the

basis for a continued detention and further investigation. Koenning approached a vehicle that was

parked in violation of a posted curfew regulation, with no interior lights observable, and with the



                                                  9
engine off.4 As appellant rummaged through “papers and other clutter” searching for his license,

Koenning observed knives on the seat. Having viewed the knives, Koenning was entitled to inquire

further, to distance appellant from the knives, and to conduct a pat-down for other weapons. In his

testimony, both at the suppression hearing and at trial, Koenning articulated the facts that led him

to ask appellant to exit the vehicle and to place him in handcuffs until another officer arrived. As

Koenning waited for a backup officer to arrive, he observed appellant exhibiting nervousness and

reaching into his pockets as he exited the vehicle. Given the late hour of the day and the secluded

nature of the roadside park, Koenning testified, “[I]t was just for officer safety that I got him out of

the vehicle so I could put more distance between him and the knives.” Under the evidence and

circumstances, we conclude that the trial court did not abuse its discretion in implicitly finding that

the pat-down was for officer safety and was not unreasonable.

                As Koenning conducted an external touching of appellant’s clothing, he felt an object

in appellant’s pocket. In response to Koenning’s inquiry as to what the object was, appellant

answered that it was a syringe and that he used to do drugs and had forgotten to take the syringe out

of his jacket. Appellant also volunteered that he was currently on parole for a previous drug

conviction. As Koenning waited for a backup officer, he placed handcuffs on appellant. After




        4
          At trial, Koenning also testified that appellant committed a further offense by failing to
produce a valid driver’s license. See Tex. Transp. Code Ann. § 521.025 (West 2007). Section
521.025 provides for a driver’s license to be carried by the driver while operating a motor vehicle
and exhibited upon demand by a peace officer. Id. § 521.025(a). “A peace officer may stop and
detain a person operating a motor vehicle to determine if the person has a driver’s license as required
by this section.” Id. § 521.025(b). On the facts of this case, Koenning had authority to request a
driver’s license. See Meeks v. State, 692 S.W.2d 504, 508 (Tex. Crim. App. 1985). Although
appellant gave his name and a license number, he failed to produce or display a license.

                                                  10
appellant denied having anything illegal in the vehicle in response to Koenning’s query, Koenning

asked appellant for his consent to search the vehicle to which appellant replied, “I’d rather that you

didn’t.” Koenning then requested a canine unit, which arrived from the Marble Falls Police

Department within twenty minutes after the initial encounter between appellant and Koenning began.

Having discovered the syringe during the pat-down and based on appellant’s own statements about

his prior drug use and conviction, Koenning was justified to further detain appellant and request a

canine unit to further investigate.

               Based on our review of the totality of the circumstances, in light of Koenning’s

experience and knowledge, we conclude that the trial court was justified in determining

that Koenning had reasonable suspicion to prolong appellant’s detention so that Koenning could

request a canine unit to conduct an external sniff on appellant’s car and that the detention was

reasonable in its scope.

               Courts must “consider the law enforcement purposes to be served by the stop as well

as the time reasonably needed to effectuate those purposes.” Sharpe, 470 U.S. at 685. Based on the

record in this case—Koenning’s diligence in the investigation and in requesting backup

assistance—the twenty-minute wait for backup to arrive and the canine sniff to begin was not

unreasonable. See, e.g., Sims v. State, 98 S.W.3d 292, 294 (Tex. App.—Houston [1st Dist.] 2003,

no pet.) (officer and driver waited twenty minutes for canine unit to arrive to conduct canine sniff);

see also Sharpe, 470 U.S. at 686-88 (twenty-minute detention was reasonable); but cf. United States

v. Place, 462 U.S. 696, 709-10 (1983) (ninety-minute detention of defendant’s luggage was

unreasonable when agents did not act diligently to minimize the delay). When the dog alerted to the



                                                 11
driver’s door of appellant’s vehicle, the officers had probable cause to search the vehicle for drug

contraband, which they found.


                                          CONCLUSION

                 Because the initial detention was no longer than was necessary to effectuate its

purpose, the extension of the detention was supported by reasonable suspicion, and the officer

had probable cause to search appellant’s vehicle, the trial court did not err or abuse its discretion in

denying appellant’s motion to suppress. We overrule appellant’s issue and affirm the judgment

of conviction.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: May 31, 2007

Do Not Publish




                                                  12
