                                  NO. 07-06-0451-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 AUGUST 8, 2007
                         ______________________________

                         LARRY DARNELL MCKELLAR, JR.,

                                                                    Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                                    Appellee
                       _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                    NO. 52,950-E; HON. ABE LOPEZ, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Larry Darnell McKellar, Jr. appeals from an order deferring his adjudication for

possessing a controlled substance, namely cocaine. He contends that the trial court erred

in denying his motion to suppress. We overrule the issue and affirm the judgment.

      Background

      On January 4, 2006, around 1:30 a.m., Officer Michael Rolland and several other

police officers were conducting surveillance of an apartment complex in Amarillo. This
complex was a known site from which illegal drug transactions and arrests related thereto

had occurred in the recent past. During their 30-minute surveillance of the locale, the

officers observed seven or eight different people enter one particular apartment, stay

momentarily, and then leave. This activity likened to conduct undertaken in the drug trade,

according to Rolland.

      Eventually, appellant and another man were seen leaving the same apartment and

walking toward a cab. The two wore coats and baggy clothing and headed toward a waiting

taxi. At that point, the officers decided to approach them. Simultaneously with their

encountering the two individuals, one of the officers recognized appellant’s companion; he

had been arrested at the same apartment complex the week before for possessing

cocaine. Given 1) his knowledge that appellant’s companion had a history of drug

involvement, 2) the activity occurring in the apartment, 3) the exodus of appellant and his

companion from the apartment under surveillance, 4) the hour of night, 5) the nature of the

clothes being worn by the two, and 6) the officers’ prior knowledge that those involved in

drug trafficking often carry weapons, appellant and his companion were patted down for

weapons. During the pat-down of appellant, Rolland smelled the odor of marijuana coming

from his clothes. At that point, appellant admitted that he had just smoked marijuana in

the apartment. The officer then conducted a full search of appellant and his companion

and discovered both cocaine and marijuana on their person.

      Applicable Law

      The standard of review for refusing to grant a motion to suppress is one of abused

discretion. Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.–Amarillo 1999, pet. ref’d). We



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refer the parties to Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) for an

explanation of it.

       Next, police officers, like anyone else, are free to approach persons in a public place

and ask questions, so long as the persons are free to leave. Barnes v. State, 870 S.W.2d

74, 77 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). Neither probable cause nor

reasonable suspicion is required to do so. However, to temporarily detain someone

against his will, an officer must have a reasonable suspicion supported by articulable facts

that criminal activity is afoot. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

       Additionally, the purpose of a pat-down search is to secure officer safety. O’Hara

v. State, 27 S.W.3d 548, 555 (Tex. Crim. App. 2000). So, officers may conduct a limited

search of a suspect’s outer clothing when they reasonably believe that the suspect is

armed and dangerous. Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000).

Moreover, the officer does not have to feel personally threatened or be absolutely certain

that a suspect is armed. Glazner v. State, 175 S.W.3d 262, 265 (Tex. Crim. App. 2005).

Finally, it is objectively reasonable for a policeman to believe that persons involved in the

drug business are armed and dangerous. Griffin v. State, 215 S.W.3d 403, 409 (Tex.

Crim. App. 2006); see also Wilson v. State, 132 S.W.3d 695, 698 (Tex. App.–Amarillo

2004, pet. ref’d) (holding that encountering someone who is reasonably suspected of

engaging in drug activity can justify a brief and minimally invasive frisk of his person).

       Application of Law to Facts

Appellant contends that the officers lacked reasonable suspicion to initially detain and pat

him down for weapons. Thus, evidence regarding the officer’s perception of the marijuana

odor and eventual discovery of the cocaine allegedly had to be suppressed. We disagree.


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       The surveillance undertaken by the officers, the criminal history surrounding the

locale, the officers’ perception of what was occurring at the apartment, their interpretation

of that activity given their experience, the involvement of appellant’s companion with drugs

(and the officers’ knowledge of that), and the time of night were circumstances upon which

an officer could reasonably infer that criminal activity (i.e. drug trafficking) was afoot.

Those same indicia coupled with the nature of the clothes being worn (i.e. clothes that

were sufficiently baggy to facilitate the hiding of weapons) also comprised evidence from

which an officer could reasonably infer that the detainees may be armed. Because the

record permits such inferences, we cannot say the trial court abused its discretion in

denying the motion to suppress. Accordingly, appellant’s issue is overruled, and the order

placing him on deferred adjudication is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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