      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00729-CR



                                  Billy Joe Hamilton, Appellant

                                                  v.

                                   The State of Texas, Appellee


                  FROM THE COUNTY COURT OF COKE COUNTY, TEXAS
                 NO. 06-4123, HONORABLE ROY BLAIR, JUDGE PRESIDING



                           MEMORANDUM OPINION


               After he unsuccessfully moved to suppress evidence of marihuana discovered by law

enforcement during a warrantless vehicle search incident to a traffic stop, Billy Joe Hamilton pleaded

no contest to a charge of possessing a usable quantity of marihuana in an amount of two ounces or

less, a Class B misdemeanor, and was convicted. See Tex. Health & Safety Code Ann. § 481.121(a),

(b)(1) (West 2003). In his sole issue, Hamilton contends that the trial court erred in denying his

motion to suppress because there was no probable cause to justify the search. See U.S. Const.

amend. IV. On this record, we conclude that the search was justified by probable cause that

Hamilton’s vehicle contained evidence of a crime and affirm the judgment of the trial court.
                                          BACKGROUND

               The pertinent facts are summarized in the trial court’s detailed findings of facts

concerning the evidence presented at the suppression hearing:


!      Department of Public Safety officer Scott Frasier stopped Hamilton and a co-worker, Roger
       Villarreal,1 “for speeding 76 in a 70 mph area zone on US - 277 in Coke County, Texas.”

!      “Defendants were making suspicious, unexplained movements in the front of the vehicle as
       Officer Frasier stopped them.”

!      “Defendants had not located insurance papers by the time the vehicle was stopped and
       offered no explanation for said movements when questioned on the stand.”

!      “Upon stopping the vehicle, the driver [Villarreal] stepped out of the vehicle at officer’s
       request, and officer observed a marihuana seed on the driver’s seat. Officer knew the seed
       to be a marihuana seed from his training and experience. The officer’s ability to identify a
       marihuana seed was not questioned.”

!      “As proof of insurance was being provided from the center console, officer observed a
       cigarette lighter on the front center console in plain view.”

!      “Officer asked the passenger, Mr. Hamilton, who smoked, and was told that neither he nor
       the driver did. He then asked defendant Villarreal who smoked and was again told that
       neither did.”

!      “Officer testified that the defendants appeared nervous.”

!      “Believing that the defendants’ movements in the front of the truck while being pulled over,
       coupled with the plain view of the marihuana seed and a cigarette lighter when no one
       admitted smoking, and given the nervous appearance of the defendants presented probable
       cause that a crime was being committed, Officer Frasier searched the vehicle. Officer Fraiser
       emphasized that no one thing, but the totality of the circumstances gave rise to probable
       cause.”2

       1
         Hamilton and Villarreal were each charged with marihuana possession and filed a joint
motion to suppress; thus, the trial court’s findings reference “defendants.”
        2
          Officer Frasier testified, “Going with the movement that I saw as they stopped and as the
vehicle came to a stop, the fact that there was a cigarette lighter in there and both of them telling me

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!      “The officer found a small amount of marihuana residue on the kick plate of the front door,
       marihuana in the console in a container, and marihuana inside two Styrofoam cups in the
       center console.”

!      “Defendants put on evidence that a fellow worker who sometimes rode in the vehicle smoked
       cigarettes, a carton of which were in the back of the truck.”

!      “Defendants put on evidence that a cigarette lighter might have been used to heat a fitting
       used in their work, an explanation which the Court finds unconvincing.”

!      “The Court found the testimony of Officer Frasier convincing and truthful” and that “Officer
       Frasier has more than 15 years of law enforcement experience and an excellent reputation
       . . . for veracity and detail.”

!      “The Court found the testimony of defendants regarding the use of the cigarette lighter as a
       working tool not convincing.”


               The trial court concluded that “(1) furtive movements by defendants while being

pulled over, (2) a marihuana seed on the driver’s seat in plain view, (3) a cigarette lighter on the

middle console in plain view, and (4) nervous behavior by defendants during the temporary detention

for a lawful traffic stop” “together, looking at the totality of the circumstances, did give rise to

probable cause to conduct the search.”



                                          DISCUSSION

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

of review, giving almost total deference to a trial court’s determination of historical facts and

reviewing de novo the court’s application of the law. See Wiede v. State, 214 S.W.3d 17, 24-25




they don’t smoke and the fact that I saw a marihuana seed in the front driver’s seat, I believed I had
probable cause to believe [there] was probably marihuana in that car.”

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(Tex. Crim. App. 2007); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman

v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). If the ruling on the motion to suppress is

reasonably supported by the record and is correct under any theory of law applicable to the case, we

must uphold the ruling. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) (citing

Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990)).

               Once a defendant proves that a search occurred without a warrant, the burden shifts

to the State to prove the reasonableness of the search. Russell v. State, 717 S.W.2d 7, 9-10

(Tex. Crim. App. 1986) (en banc); White v. State, 201 S.W.3d 233, 240 (Tex. App.—Fort Worth

2006, pet ref’d). In determining the reasonableness of a search or seizure, the actions of police are

judged by balancing the individual’s privacy interest against the State’s interest in law enforcement.

Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007); Schenekl v. State, 30 S.W.3d 412,

413 (Tex. Crim. App. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 654 (1979)). The balancing

test is utilized to ensure that an individual’s Fourth Amendment rights are not subjected to “arbitrary

invasions at the unfettered discretion of officers in the field.” Gutierrez, 221 S.W.3d at 685;

Schenekl, 30 S.W.3d at 413; see Prouse, 440 U.S. at 654.

               The “automobile exception” permits officers to conduct a warrantless search of a

motor vehicle if the officer has probable cause to believe that the vehicle contains evidence of a

crime. Chambers v. Maroney, 399 U.S. 42, 48-49 (1970); Powell v. State, 898 S.W.2d 821, 827

(Tex. Crim. App.1994). The rationale for this exception is twofold: (1) “the inherent mobility of

automobiles creates circumstances of such exigency that, as a practical necessity, rigorous

enforcement of the warrant requirement is impossible,” and (2) “the expectation of privacy with



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respect to one’s automobile is significantly less than that relating to one’s home or office.” South

Dakota v. Opperman, 428 U.S. 364, 367 (1976). Accordingly, where there is probable cause to

search a vehicle, exigent circumstances to justify a warrantless search are not required. State

v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998). If probable cause justifies the search of

a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may

conceal the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982).

                Probable cause to search or arrest exists when reasonably trustworthy facts and

circumstances within the knowledge of the officer on the scene would lead persons of reasonable

prudence to believe that an instrumentality of a crime or evidence pertaining to a crime will be

found. Gutierrez, 221 S.W.3d at 685; Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App.

2005); McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991); Washington v. State,

660 S.W.2d 533, 535 (Tex. Crim. App. 1983); Barber v. State, 611 S.W.2d 67, 68 (Tex. Crim. App.

1981). We apply the “totality of the circumstances” test for determining probable cause for a

warrantless search. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Florida

v. Royer, 460 U.S. 491, 500 (1983)); see Terry v. Ohio, 392 U.S. 1, 19-21 (1968). The totality of

the circumstances analysis is fact-specific. See Kothe, S.W.3d at 63.

                The trial court explicitly found Officer Frasier credible and concluded that, based on

the totality of the circumstances, Frasier had probable cause to search the vehicle, specifically relying

on the combination of (1) furtive movements made by defendants in the vehicle as they were being

stopped, (2) a marihuana seed on the driver’s seat in plain view, (3) a cigarette lighter in plain view

on the front console, with defendants claiming that neither of them smoked, and (4) defendants’



                                                    5
nervous behavior during the stop. We agree that these facts constitute probable cause that the

vehicle contained evidence of crime.

               In Adams v. State, 634 S.W.2d 785, 793-94 (Tex. App.—Austin 1982, no pet.), this

Court held that probable cause existed to justify a warrantless vehicle search where an officer saw

marihuana seeds in the driver’s seat during a traffic stop. It held that the search—which uncovered

nine bags of marihuana in a closed ice cooler in the backseat of the car—was reasonable because the

officer had observed the marihuana seeds in plain view, giving him probable cause to search the

vehicle, and that the driver did not have an expectation of privacy in his ice cooler. Id. Similarly,

in Gillard v. State, the Beaumont Court of Appeals held that a police officer had probable cause to

search a vehicle when the officer saw leafy marihuana in plain view during a routine traffic stop.

662 S.W.2d 34, 36 (Tex. App.—Beaumont 1983, no writ).

               Here, Officer Frasier not only witnessed a marihuana seed in plain view in the driver’s

seat, but witnessed furtive movements during the stop, nervous behavior, and dubious denials that

the vehicle occupants used a cigarette lighter in plain view to smoke. See United States v. Fishel,

467 F.3d 855, 856 (5th Cir. 2006) (during traffic stop, search of vehicle justified by suspect’s

nervous behavior combined with other factors); Smith v. State, 542 S.W.2d 420, 421-22 (Tex. Crim.

App. 1976) (furtive movements or gestures are valid indicia of mens rea and, although alone

insufficient, when combined with other suspicious circumstances, may give rise to probable cause);

Cunningham v. State, 11 S.W.3d 436, 440 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (finding

small amount of marihuana in vehicle, together with furtive gestures of occupant, gave police officer

probable cause to search entire vehicle, believing it contained larger quantities of marihuana); but



                                                 6
see Wiede v. State, 157 S.W.3d 87, 98 (Tex. App.—Austin 2005, pet. ref’d) (furtive gesture alone,

made while person is stopped for traffic offense, does not establish probable cause for search).

               Hamilton attempts to equate this case to Wilkins v. State, 829 S.W.2d 818

(Tex. App.—Austin 1992, no pet.), in which this Court held that law enforcement lacked probable

cause to search a pornography viewing booth and violated the defendant’s expectation of privacy

where the search was based solely upon hearing moaning noises from within the booth. Wilkins is

clearly distinguishable from this case, which involves a warrantless search under the “automobile

exception,” a marihuana seed in plain view, and suspicious behavior by the vehicle occupants.


                                          CONCLUSION

               Based on this record, we agree with the trial court that Officer Frasier’s vehicle search

was supported by probable cause and was reasonable. Accordingly, the trial court did not err in

denying Hamilton’s motion to suppress. We overrule Hamilton’s issue and affirm the trial court’s

judgment.



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: August 31, 2007

Do Not Publish




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