                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00207-CR

                                            Roel CANTU,
                                              Appellant

                                               v.
                                            The State
                                       The STATE of Texas,
                                             Appellee

                    From the 81st Judicial District Court, Atascosa County, Texas
                                  Trial Court No. 11-11-0261-CRA
                              Honorable Stella Saxon, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 27, 2014

AFFIRMED

           A jury convicted Roel Cantu of possession of marijuana in an amount of 2,000 pounds or

less but more than 50 pounds. On appeal, Cantu challenges the trial court’s denial of his motion to

suppress evidence, arguing (1) any evidence obtained in a vehicle search should have been

suppressed because the detention of the vehicle was not supported by reasonable suspicion of

criminal activity beyond the initial traffic violation; (2) consent to search the vehicle was invalid

because it was not free and voluntary; and (3) he has standing to object to the search of the vehicle
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because his constitutional rights were violated by the illegal detention of the vehicle and the search

of his person. We affirm.

                                           STANDARD OF REVIEW

        We review a trial court’s ruling on a motion to suppress for an abuse of discretion. State v.

Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). “We view the record in the light most

favorable to the trial court’s conclusion and reverse the judgment only if it is outside the zone of

reasonable disagreement.” Id. “We give almost total deference to the trial court’s express or

implied determination of historical facts and review de novo the court’s application of the law of

search and seizure to those facts.” Id.

        Generally, we limit our review to the evidence adduced at the suppression hearing;

however, when, as here, the suppression issues are re-litigated at the trial on the merits, we consider

the evidence from both the pretrial hearing and the trial on the merits in reviewing the trial court’s

suppression ruling. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Arizpe v.

State, 308 S.W.3d 89, 91 (Tex. App.—San Antonio 2010, no pet.).

                                               THE EVIDENCE

        Cody Wallace, a Texas Department of Public Safety officer was the primary witness to

testify at the suppression hearing and at trial. 1 According to Wallace, Cantu was a passenger in a

pickup truck that he stopped on June 8, 2011, at 6:20 p.m., a Wednesday evening. The truck was

heading northbound on Interstate Highway 37 in Atascosa County, Texas. Wallace directed the

truck’s driver, who was later identified as Christina Naranjo, to exit the truck and come behind the

truck to talk to him. Wallace explained to Naranjo that he had stopped her because the truck had



1
 The stop and subsequent detention were recorded by a video camera that was attached to Wallace’s patrol car. This
video recording was admitted into evidence.


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veered onto the improved shoulder three times, which was prohibited under the circumstances. In

response, Naranjo explained that the truck’s steering was hard and that she planned to stop soon

to buy some power steering fluid. Naranjo handed Wallace her driver’s license. Wallace noticed

that Naranjo’s hand was shaking uncontrollably, which he considered to be a sign of extreme

nervousness. Naranjo then walked over to the passenger side of the truck and obtained proof of

insurance from a man who was sitting in the passenger seat. The man was later identified as Cantu.

When Naranjo returned, Wallace informed Naranjo that she was going to be given a warning for

the traffic violation. At this point, Wallace noticed that Naranjo’s cheeks were also shaking

uncontrollably. Wallace considered this to be another sign of extreme nervousness. Wallace found

Naranjo’s extreme nervousness to be unusual. In Wallace’s experience, most drivers are relieved

to learn they are getting only a warning.

       Wallace also recognized Naranjo from a traffic stop that had occurred about two months

earlier near Alice, Texas. Wallace had not initiated the prior stop; he had appeared at the scene to

assist another trooper. Wallace noticed that the truck Naranjo was currently driving was the same

type of truck that had been involved in the prior stop. The prior stop had resulted in the seizure of

approximately fifty pounds of marijuana, which was hidden in the truck. In the previous case,

Naranjo was a passenger and the driver of the truck was a man.

       Wallace questioned Naranjo about her trip and the truck’s ownership. Naranjo stated that

she and Cantu were cousins and they were traveling from Rio Grande City to Austin to visit their

uncle, who was sick. She explained that her uncle had been in hospice, but then his health improved

so he was moved back home where he was more comfortable. The truck belonged to her uncle and

she was taking it to him because he needed transportation. Naranjo stated that her uncle’s name

was “Vicente Cantu.” Naranjo explained that she and Cantu would be returning to Rio Grande

City by bus in a few days.
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       Wallace then walked over to Cantu, who remained seated in the truck. Wallace asked Cantu

if he had any identification on him, and Cantu produced an identification card. Wallace noticed

that Cantu’s leg was shaking uncontrollably. Wallace asked Cantu to exit the truck, and Cantu

complied. Standing near the front of the truck, Wallace asked Cantu about the purpose of his trip,

his destination, and his occupation. Cantu said he had worked on an oil rig in Zapata, but he was

now unemployed and indicated it was because of the economy. Cantu also said that he currently

had a landscaping business in Rio Grande City. When Wallace asked Cantu who the truck belonged

to, Cantu hesitated, then said it belonged to his uncle, “Theodore Cantu.” Cantu’s responses raised

Wallace’s suspicions for several reasons. First, the oil industry was currently booming in South

Texas. Second, the first name Cantu provided for his uncle and the owner of the truck was different

from the first name provided by Naranjo.

       Furthermore, Wallace noticed that when Naranjo and Cantu spoke, and in particular when

providing details, they failed to maintain eye contact with him. Based on Naranjo’s and Cantu’s

conduct and their answers to his questions, Wallace felt the need to investigate possible criminal

activity. At this juncture, Wallace was the only officer present. Wallace asked Cantu if he had any

weapons on him and Cantu denied that he did. When Wallace asked Cantu if he could conduct a

pat down search to ensure that Cantu had no weapons, Cantu stated that he could. In conducting

the pat down search of Cantu, Wallace found no weapons, but when he momentarily placed his

hand over Cantu’s heart he could tell it was beating very fast. Wallace considered this to be another

sign of extreme nervousness. Wallace also felt a small bulge in Cantu’s rear pant pocket. Wallace

asked Cantu what was in his pocket, and Cantu pulled out a small statue of Santa Muerte. Before

Wallace asked any questions about the statue, Cantu told Wallace that he had found the statue at a

gas station. Wallace testified that during his criminal interdiction training he learned that some

people involved in the drug trade carry Santa Muerte items with them while transporting drugs
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because they believe it will protect them and their drug loads. Wallace considered the presence of

the Santa Muerte statue to be another indicator that criminal activity was taking place.

       Once again, Wallace told Naranjo that she was going to get a warning. Wallace returned to

his vehicle to start typing out the warning. While typing out the warning, Wallace asked Naranjo

if she had anything illegal in the truck, to which Naranjo answered, “No, sir. You can go ahead

and check.” Wallace asked Naranjo if she was giving him permission to search the truck, to which

she responded, “Sure.” Wallace then conducted a search of the truck. A second trooper appeared

on the scene at the beginning of the search.

       During the search, Wallace looked inside the truck cab and noticed that the seat bolts had

fresh gray paint on them. Wallace explained that seat bolts are often painted by drug traffickers to

cover up tool marks. After Wallace saw the freshly-painted bolts, he placed a hand under the seat

and a hand on top of the seat and felt a bundle inside of the seat. Wallace found a total of ten

bundles of marijuana hidden inside of the truck’s seat. Wallace and the other trooper arrested

Naranjo and Cantu for possession of marijuana.

       At the conclusion of the suppression hearing, the trial court stated:

       [T]he stop was good because the driver drove on the []improved shoulder and did
       not [fall within any of the exceptions] . . . . So once the stop was good, then the
       questioning—first of all, the questioning of the driver and nervousness being
       detected there allowed a further continued investigation, and so on down the line,
       step by step, Trooper Wallace conducted his investigation and each time that there
       was continued—continuation of the stop, he was gathering additional information
       which gave him reasonable suspicion. And so, under the totality of the
       circumstances, the time in which the defendant and the driver were kept by the side
       of the road before the consent was given was a reasonable amount of time. The
       consent that was given was unequivocal and the search was good.

The trial court also stated that Cantu had no standing to challenge the search of the truck because

he was not the owner or the driver of the truck, and he had no possessory interest in the truck. The

trial court then denied Cantu’s motion to suppress.


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                              EXISTENCE OF REASONABLE SUSPICION

        Cantu’s primary argument on appeal is that any evidence obtained in the search of the truck

should have been suppressed because the continued detention of the truck was not supported by

reasonable suspicion of criminal activity beyond the initial traffic violation. To support his

argument, Cantu cites both the federal and state constitutions. Cantu does not challenge the

lawfulness of the initial stop.

        The Fourth Amendment of the U.S. Constitution and Article I, Section 9 of the Texas

Constitution protect individuals against unreasonable searches and seizures. State v. Betts, 397

S.W.3d 198, 203 (Tex. Crim. App. 2013). A traffic stop is reasonable if the police officer was

justified in making the stop and his actions during the stop were limited in length and scope to

those necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.

App. 2004); Davis v. State, 947 S.W.2d 243, 245 (Tex. Crim. App. 1997). During the stop, an

officer may request identification, proof of insurance, and vehicle registration; check on

outstanding warrants; verify that the vehicle is not stolen; and ask about the purpose of the trip and

the intended destination. Kothe, 152 S.W.3d at 63; Estrada v. State, 30 S.W.3d 599, 603 (Tex.

App.—Austin 2000, pet. ref’d); Ortiz v. State, 930 S.W.2d 849, 856 (Tex. App.—Tyler 1996, no

pet.). The officer may seek this information from not only from the driver, but also from any

passengers. Kothe, 152 S.W.3d at 64 n.36; St. George v. State, 197 S.W.3d 806, 817-18 (Tex.

App.—Fort Worth 2006), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007); Freeman v. State, 62

S.W.3d 883, 888 (Tex. App.—Texarkana 2001, pet. ref’d). Although no rigid time limitation exists

on its duration, a traffic stop may last no longer than is necessary to effectuate its purpose. Kothe,

152 S.W.3d at 63-65 n.43. When the reason for the traffic stop has been satisfied, the stop may not

be used as a “fishing expedition” for unrelated criminal activity. Davis, 947 S.W.2d at 243; Parker

v. State, 297 S.W.3d 803, 810 (Tex. App.—Eastland 2009, pet. ref’d). “But if reasonable suspicion
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of additional criminal activity arises in the course of a stop and before the purpose of the stop is

fulfilled, then a continued detention may be justified until the new suspicion has been confirmed

or dispelled.” St. George, 197 S.W.3d at 817.

        Reasonable suspicion exists if the officer has specific, articulable facts which, premised

upon the officer’s experience and personal knowledge, and coupled with rational inferences from

those facts, reasonably warrant the intrusion caused by the continued detention. Davis, 947 S.W.2d

at 244; Parker, 297 S.W.3d at 810. The articulable facts must amount to more than a mere hunch

or suspicion. Davis, 947 S.W.2d at 244. The articulable facts must create some reasonable

suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to

connect the detainee with the unusual activity, and some indication that the unusual activity is

related to crime. Id.

        The determination of reasonable suspicion is “based on commonsense judgments and

inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). The standard is

an objective one that disregards the actual subjective intent of the officer and looks to whether

there was an objectively justifiable basis for the detention. Derichsweiler v. State, 348 S.W.3d 906,

914 (Tex. Crim. App. 2011). “It also looks to the totality of the circumstances; those circumstances

may all seem innocent enough in isolation, but if they combine to reasonably suggest the

imminence of criminal conduct, an investigative detention is justified.” Id.

        Cantu argues that Wallace did not have reasonable suspicion to justify the continued

detention of the truck. Cantu maintains that the continued detention of the truck was based solely

on Wallace’s inarticulate hunch that Naranjo and Cantu were involved in criminal activity.

According to Cantu, Wallace observed no more than signs of nervousness. However, the evidence

shows otherwise. Although Wallace testified that he observed signs of extreme nervousness in

both Naranjo and Cantu, he also testified about other observations he made and he placed these
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observations in the context of his training and experience. “Although nervousness alone is not

sufficient to establish reasonable suspicion for an investigative detention, it can do so in

combination with other factors.” Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012).

         Here, Wallace testified that he recognized Naranjo from a traffic stop that occurred two

months ago. During the prior traffic stop, marijuana was found hidden in a truck. The truck Naranjo

was driving was the same type of truck used in the previous case. Naranjo and Cantu each provided

a different first name for their uncle, and they both claimed that their uncle was the owner of the

truck. 2 Given the current status of the oil industry in South Texas, Wallace disbelieved Cantu’s

claim that he lost his job because of the economy. And, according to Wallace, Naranjo’s and

Cantu’s statements that they planned to leave the truck in Austin and to return home on a bus was

consistent with illegal trafficking. Finally, Cantu was carrying a statue of Santa Muerte. Wallace

learned in his criminal interdiction training that people involved in the drug trade sometimes carry

such an item with them because they believe it will protect them and their drug loads. In light of

this combination of factors, we conclude that Wallace had reasonable suspicion to continue to

detain the truck and its occupants.

         In conjunction with his argument about a lack of reasonable suspicion, Cantu complains

that the pat down search of his person was unreasonable. We disagree. A valid investigative

detention can confer upon an officer the authority to pat down the suspect for weapons. Baldwin

v. State, 278 S.W.3d 367, 371 (Tex. Crim. App. 2009). A law enforcement officer may conduct a

limited search for weapons of the suspect’s outer clothing, even in the absence of probable cause,

when the officer reasonably believes that the suspect is armed and dangerous. Balentine v. State,



2
 Wallace also testified that before initiating the stop, he ran a computer check of the truck’s license plate number. The
computer check showed that the truck was not stolen; however, it also showed the truck’s owner was neither a Vicente
nor a Theodore Cantu.

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71 S.W.3d 763, 769 (Tex. Crim. App. 2002). The officer need not be absolutely certain that an

individual is armed; the question is whether a reasonably prudent person would believe that he or

others were in danger. Id. The Texas Court of Criminal Appeals has recognized that roadside

encounters are especially hazardous for law enforcement. Carmouche v. State, 10 S.W.3d 323, 330

(Tex. Crim. App. 2000). The Court has further acknowledged that an officer’s reasonable belief

that a suspect is armed and dangerous may be predicated on the nature of the suspected criminal

activity, and that weapons and violence are frequently associated with drug transactions. Id.

Furthermore, consent to search is a well-established exception to the requirements of both a

warrant and probable cause. Id. at 331.

       We first note that the evidence showed that Wallace asked for and was given consent to

conduct the pat down search. In addition to this consent, Wallace testified that his experience has

taught him that drug traffickers are often armed and dangerous. Wallace also observed extreme

nervousness in Naranjo and Cantu, and recognized Naranjo from a prior traffic stop in which

marijuana was found hidden in a truck. Moreover, at the time Cantu’s pat down search took place,

Wallace was the only officer present. Under these circumstances, Cantu’s pat down search was

reasonable.

       Because the continued detention was supported by reasonable suspicion of criminal activity

beyond the initial traffic violation, and because Cantu’s pat down search was reasonable under the

circumstances, the trial court properly denied Cantu’s motion to suppress.

                                    REMAINING ARGUMENTS

       Cantu argues that the search of the truck was unlawful because Naranjo’s consent to search

the truck was not freely and voluntarily given. Cantu further argues that he has standing to object

to the search of the truck because his own constitutional rights were violated by his continued

detention and the pat down search of his person.
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       To establish standing to contest a search, a defendant must show he had a legitimate

expectation of privacy in the area searched. Trinh v. State, 974 S.W.2d 872, 874 (Tex. App.—

Houston [14th Dist.] 1998, no pet.) (citing Metoyer v. State, 860 S.W.2d 673, 677 (Tex. App.—

Fort Worth 1993, pet. ref’d)). Generally, a mere passenger in a vehicle does not have a legitimate

expectation of privacy in a vehicle when he fails to assert a possessory interest in the vehicle or

the property seized. Id. (citing Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App. 1985)).

However, a mere passenger may challenge the search of a vehicle if the search resulted from a

violation of his own constitutional rights. Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App.

1984); id.; see also Betts, 397 S.W.3d at 203 (noting that the rights secured by the Fourth

Amendment of U.S. Constitution and Article I, Section 9 of the Texas Constitution are personal).

       As previously discussed, Cantu’s constitutional rights were not violated by the continued

detention or the pat down search. Thus, the search of the truck in no way resulted from a violation

of Cantu’s constitutional rights. Moreover, Cantu does not assert a possessory interest in the truck

or the property seized. Therefore, Cantu lacks standing to challenge the search of the truck. See

Meeks, 692 S.W.2d at 510 (holding that, even when the driver’s consent to search the vehicle was

involuntary, a passenger who failed to assert a possessory interest in the vehicle or the property

seized lacked standing to challenge the search of the vehicle).

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                          Karen Angelini, Justice


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