             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-19-00038-CR
      ___________________________

      TENDO EDMOND, Appellant

                     V.

          THE STATE OF TEXAS


On Appeal from County Criminal Court No. 4
          Denton County, Texas
    Trial Court No. CR-2018-07211-D


Before Sudderth, C.J.; Womack and Wallach, JJ.
  Memorandum Opinion by Justice Wallach
                           MEMORANDUM OPINION

      Appellant Tendo Edmond pled nolo contendre to possessing under two

ounces of marijuana in exchange for sixty days in jail, and the trial court convicted

him and sentenced him accordingly.             See Tex. Health & Safety Code Ann.

§ 481.121(a)(b)(1); Tex. Penal Code Ann. § 12.22. Appellant preserved his right to

appeal the trial court’s pretrial denial of his motion to suppress and timely appealed.

In one issue, Appellant contends that the trial court erred by denying his motion to

suppress the warrantless search of his car because the State forfeited any argument

based on the automobile exception. Alternatively, he argues that the automobile

exception did not justify the search because his car was not readily mobile. We hold

that the preservation rules did not apply to the State, who prevailed in the trial court,

and that the automobile exception justified the search. We therefore uphold the trial

court’s denial of Appellant’s motion to suppress and affirm the trial court’s judgment.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

      During a traffic stop based on unconfirmed insurance and a warrant “hit”

related to Appellant’s Nissan Sentra’s license plate number, Carrollton police smelled

the odor of marijuana coming from the car. The police arrested Appellant after

confirming active arrest warrants and placed him in a patrol car. They then searched

his car and found marijuana inside a black box in the front passenger seat.

      Appellant was later charged with possessing less than two ounces of marijuana,

and he filed a motion to suppress the warrantless search, arguing that it violated

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Arizona v. Gant’s proscription of searches incident to arrest, 556 U.S. 332, 351, 129 S.

Ct. 1710, 1723–24 (2009); exceeded a limited search allowed in a Terry stop, Terry v.

Ohio, 392 U.S. 1, 30–31, 88 S. Ct. 1868, 1884–85 (1968); was not a lawful inventory

search; and was not justified by the automobile exception (although he cited

impoundment inventory-search cases—South Dakota v. Opperman, 428 U.S. 364, 375–

76, 96 S. Ct. 3092, 3100 (1976), and Benavides v. State, 600 S.W.2d 809, 812 (Tex. Crim.

App. 1980), not cases based on the automobile exception grounded in probable

cause).

       At the hearing on Appellant’s motion to suppress, the two Carrollton police

officers involved in his arrest and the car search testified, and the trial court admitted

the audio-video recording of the detention and search. In her closing argument, the

prosecutor conceded that the inventory-search and search-incident-to-arrest

exceptions did not apply but argued that “it’s well settled that smelling marijuana gives

officers the ability to search a vehicle” and “[t]hat’s an exception to a warrant. If you

have probable cause to search you don’t need a warrant.” The prosecutor did not use

the term automobile exception.

       The trial court issued the following written findings after denying the motion to

suppress:

       1. Sgt. Christopher Gent and Officer Micah Goodman are both
          certified peace officers in the State of Texas and work for the
          Carrollton Police Department.



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2. Sgt. Gent and Officer Goodman testified before this Court at a
   hearing on Defendant’s Motion to Suppress on January 24, 2019.
   The Court finds the testimony of both witnesses to be credible in all
   regards.
3. On November 22, 2018 at around 11:02 PM, Sgt. Gent was
   conducting routine patrol on Frankford Road, Carrollton, Denton
   County, Texas.
4. Sgt. Gent conducted a traffic stop on the defendant’s black Nissan
   Sentra for unconfirmed insurance and warrants attached to the
   vehicle.
5. The driver, and only occupant of the vehicle, was identified as Tendo
   Edmond, the defendant in this case.
6. Sgt. Gent did not initially smell an odor of marijuana coming from
   the vehicle because he was congested from being ill and his sense of
   smell was compromised, which was apparent from the video
   evidence.
7. Sgt. Gent confirmed that the defendant had active warrants from
   three different agencies, which included two felony warrants from the
   Dallas County Sheriff’s Office.
8. Once Sgt. Gent confirmed the defendant’s warrants, he called for a
   back-up unit since his vehicle was not equipped for prisoner
   transport. Officer Goodman arrived to backup Sgt. Gent.
9. Sgt. Gent testified that he smelled the odor of marijuana on his
   second approach of the defendant’s vehicle.
10. Sgt. Gent testified that based on his training and experience, he is
   familiar with the odor of marijuana.
11. Officer Goodman testified that he smelled the odor of marijuana
    coming from the defendant’s vehicle while he was still several feet
    away from the vehicle.
12. Officer Goodman testified that based on his training and experience,
    he is familiar with the odor of marijuana.




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      13. The defendant was placed under arrest for his warrants and placed in
          the back of Officer Goodman’s vehicle.
      14. Sgt. Gent and Officer Goodman then conducted a probable cause
          search of the defendant’s vehicle based on the smell of marijuana
          coming from the vehicle.
      15. Marijuana was located inside the defendant’s vehicle in a black box
          sitting in the passenger’s seat.
      The trial court concluded that the automobile exception justified the

warrantless search.

                          II. STANDARDS OF REVIEW

      We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress evidence. 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). While we give great

deference to a trial court’s rulings on questions of historical fact and application-of-

law-to-fact questions that turn on evaluating credibility and demeanor, we review

de novo application-of-law-to-fact questions that do not turn on credibility and

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

Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

Even if the trial court gave the wrong reason for its ruling, we must uphold the ruling

if it is both supported by the record and correct under any applicable legal theory.

State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State,

123 S.W.3d 401, 404 (Tex. Crim. App. 2003).




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      Whether a warrantless search is reasonable is a question of law that we review

de novo, measuring reasonableness by examining the totality of the circumstances.

Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). In the process we must

balance the public interest and the individual’s right to be free from arbitrary

detentions and intrusions. Id. at 63.

                                  III. DISCUSSION

      In his sole issue, Appellant complains that the trial court erred by denying his

motion to suppress because the State did not raise the automobile exception in the

trial court and therefore forfeited it. Alternatively, Appellant complains that the

automobile exception did not apply because his car was not readily mobile, as he was

already in custody at the time of the search.

           A. The State had no duty to raise the automobile exception.

      Appellant argues that the State did not argue the automobile exception in the

trial court and therefore forfeited its appellate argument based on it. As the prevailing

party in the trial court, the State was not subject to the rules of procedural default. See

Alford v. State, 400 S.W.3d 924, 928 (Tex. Crim. App. 2013). The case Appellant relies

on does not state otherwise. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.

2002) (holding that the court of appeals correctly declined to consider the appellant

State’s argument not made in the trial court). We review the trial court’s legal rulings

de novo, upholding them under any correct legal theory. Alford, 400 S.W.3d at 929.

Nevertheless, in the interest of justice, we point out that the State here did argue the

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automobile exception in the trial court, albeit not by name. In her closing argument,

the prosecutor alluded to the automobile exception by stating that “smelling

marijuana gives officers the ability to search a vehicle” and “[t]hat’s an exception to a

warrant. If you have probable cause to search you don’t need a warrant.” Further,

Appellant mentioned the term automobile exception in his motion to suppress, and the

trial court based its denial of Appellant’s motion to suppress on the automobile

exception. This is therefore not a case where Appellant was sandbagged on appeal

with a legal theory he had no opportunity to argue against in the trial court. But see

State v. Esparza, 413 S.W.3d 81, 85 (Tex. Crim. App. 2013) (upholding the

intermediate appellate court’s reversal of the trial court’s suppression order without

addressing Rule 702 theory because neither the suppression motion nor the

suppression hearing gave the State or the trial court any notice that the challenged

breath-test results could be excluded on that basis). We therefore reject this portion

of Appellant’s issue.

          B. The automobile exception justifies the warrantless search.

      The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17,

24 (Tex. Crim. App. 2007). A warrantless search is per se unreasonable unless it falls

within one of the “specifically defined and well established” exceptions to the warrant

requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003) (footnote



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and internal quotation marks omitted); see Best v. State, 118 S.W.3d 857, 862 (Tex.

App.—Fort Worth 2003, no pet.).

      Under the automobile exception to the warrant requirement, police may search

a vehicle without a warrant if it is readily mobile and they have probable cause to

believe the vehicle contains contraband. Pennsylvania v. Labron, 518 U.S. 938, 940,

116 S. Ct. 2485, 2487 (1996); California v. Carney, 471 U.S. 386, 393, 105 S. Ct. 2066,

2070 (1985); Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); Wiede,

214 S.W.3d at 24.     The two justifications for the automobile exception are the

automobile’s ready mobility and the lower expectation of privacy in an automobile in

contrast to a home or office. Carney, 471 U.S. at 391, 105 S. Ct. at 2069; Keehn,

279 S.W.3d at 335. Exigent circumstances are not a requirement of the automobile

exception. Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014 (1999); Neal v.

State, 256 S.W.3d 264, 283 (Tex. Crim. App. 2008); State v. Guzman, 959 S.W.2d 631,

633 (Tex. Crim. App. 1998) (overruling the lower court’s decision that because a car

in police custody could not be moved without the police’s permission, the automobile

exception did not apply).

      As for Appellant’s claim that his car was not readily mobile when it was

searched because he was sitting handcuffed in the police car, neither case cited by

Appellant in his brief stands for that proposition. See Marcopoulos v. State, 538 S.W.3d

596, 600–04 (Tex. Crim. App. 2017) (holding the automobile exception did not justify

the warrantless search of defendant’s car because police lacked probable cause); Keehn,

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279 S.W.3d at 335–36 (holding the automobile exception justified the search of

defendant’s van parked in his driveway while officers were interviewing him inside his

home).

      Further, courts, including this one, have already rejected the mobility argument

Appellant raises.   See Rogers v. State, No. 02-15-00160-CR, 2016 WL 299752, at

*4 (Tex. App.—Fort Worth Jan. 14, 2016, pet. ref’d) (mem. op., not designated for

publication) (stating, in case in which the driver was arrested, handcuffed, and placed

in a patrol car before the search of his vehicle culminating in the defendant

passenger’s arrest, “There is no question that [the] vehicle was readily mobile as it was

being driven by [the driver] immediately prior to the search.”); see also State v. Pena,

No. 03-18-00765-CR, 2019 WL 3786570, at *11–12 (Tex. App.—Austin Aug. 13,

2019, pet. filed) (citing Rogers for the proposition that the car was readily mobile and

rejecting the defendant’s assertion that the automobile exception did not apply

because he had already been handcuffed and placed in a patrol car before the search

of his car); cf. Neal, 256 S.W.3d at 283 (rejecting defendant’s assertion that the

automobile exception did not apply because he was already in police custody and

therefore there was no risk of the evidence in his truck being lost or destroyed). But

see State v. Elias, 339 S.W.3d 667, 678 (Tex. Crim. App. 2011) (stating in dicta that “it

could perhaps be debated whether the automobile exception to the warrant

requirement ought properly to be applied” in case in which defendant was arrested

before the search of his van) (citing Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim.

                                           9
App. 1991)); Amos, 810 S.W.2d at 161 (stating in dicta, “It may be that where police

come upon an automobile that is parked, and a suspect is in custody, something more

than the inherent mobility of the vehicle is needed to establish exigency to justify a

warrantless search,” but recognizing that the United States Supreme Court indicated

otherwise in Carney, 471 U.S. at 392–93, 105 S. Ct. at 2070).

      Despite the dicta of the Texas Court of Criminal Appeals, the United States

Supreme Court has made clear that a car does not lose its ready mobility after its

occupant’s arrest. In Michigan v. Thomas, 458 U.S. 259, 102 S. Ct. 3079 (1982), the

minor driver who was cited for driving without a license and the passenger owner of

the car—the adult defendant who was arrested for having an open bottle of malt

liquor in the car—were taken to a patrol car before the police searched the

defendant’s car and found two bags of marijuana and a loaded revolver in the air

vents under the dashboard. The United States Supreme Court reversed a lower

court’s conclusion that because the car and its occupants were in custody by the time

of the warrantless search, no exigency justified it. Id. at 261, 102 S. Ct. at 3080–81.

The Court stated,

      It is . . . clear that the justification to conduct . . . a warrantless search
      [under the automobile exception] does not vanish once the car has been
      immobilized; nor does it depend upon a reviewing court’s assessment of
      the likelihood in each particular case that the car would have been driven
      away, or that its contents would have been tampered with, during the
      period required for the police to obtain a warrant.

Id.


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      Accordingly, we hold that the trial court correctly determined that the

automobile exception justified the warrantless search of Appellant’s car. We overrule

the remainder of his issue.

                               IV. CONCLUSION

      Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.




                                                     /s/ Mike Wallach
                                                     Mike Wallach
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 14, 2019




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