      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00724-CR



                               Stephen Tracy Meredith, Appellant

                                                   v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
          NO. 41286, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Following the trial court’s denial of appellant Stephen Tracy Meredith’s motion to

suppress, a jury convicted appellant of possession of less than one gram of cocaine, a state-jail

felony, which was enhanced to a third-degree felony due to appellant’s two previous state-jail felony

convictions. The jury assessed punishment at six years’ imprisonment and a $6,000 fine. In a single

issue, appellant challenges the trial court’s denial of his motion to suppress. We will affirm the trial

court’s judgment.


                                          BACKGROUND

                The record shows that on June 7, 2012, investigators with the Burnet Police

Department observed appellant in a car waiting at a gas pump in Marble Falls for a man whom

officers knew to be the subject of narcotics investigations. Investigators observed each of the men

drive away in separate cars but in the same direction. One of the investigators identified both men
by sight and then used a database to check the status of the men’s driver’s licenses. The investigator

determined that neither appellant nor the other man had a valid driver’s license. As a result,

investigators stopped both men. Investigators arrested appellant for driving without a valid driver’s

license and then conducted an inventory of his vehicle. During the search, they found a pipe that was

known by investigators as one commonly used to smoke crack cocaine and two baggies containing

residue from an unknown substance. After the completion of the inventory search, officers

impounded appellant’s car.

               That same day, while appellant’s car was in the impound lot, an officer brought a

trained police dog to circle the car and indicate if the dog detected narcotics. The dog alerted to the

presence of narcotics near the driver’s side door. Based on the dog’s alert, officers searched the car

but did not find any narcotics.

               In the days following the search, appellant made several calls to the impound lot to

arrange to pick up his car, but he could not afford to get his car released. Instead, he asked that he

be allowed to go to the impound lot and remove certain personal items from the car. Approximately

ten days after the impoundment of the car, appellant went to the impound lot with a friend to get the

personal items. The owner of the impound lot, Garry Adams, was present at the time. Adams was

also a law enforcement officer and was currently serving as a constable in Burnet County.

               Adams observed appellant get into the passenger seat of the car and take items from

the car while appellant’s friend took items from the back of the car. Adams further observed

appellant tugging at the ceiling of the car between the driver’s seat and passenger seat. Appellant

seemed to be trying to pull down the console itself, at the spot where the console met the ceiling



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upholstery. Adams observed that appellant seemed “kind of nervous” as he continued to go back

to that same spot after intermittently looking in other areas of the car and looking at Adams. Adams

twice asked appellant to stop pulling at the upholstery of the car because Adams did not want the car

to be damaged while it was in his possession. Appellant eventually stopped pulling on the ceiling,

gathered items from the car, and left with his friend. After appellant left, Adams contacted police

officers and told them he believed that appellant had been trying to access contraband hidden in the

ceiling of the car. Officers arrived at the lot the following day. They pulled at the same spot in the

ceiling where appellant had been pulling, and a small bag containing an off-white-colored rock

substance became visible. Officers sent the substance to the lab for testing, and the lab identified

the substance as 0.14 grams of cocaine.

               The State subsequently charged appellant with possession of less than one gram of

cocaine. In a pre-trial hearing, appellant urged his motion to suppress, which the trial court denied.

After a trial, a jury convicted appellant of the charged offense, found two previous state-jail felony

convictions true, sentenced appellant to six years in prison, and assessed a $6,000 fine. Appellant

appeals from the trial court’s denial of his motion to suppress.


                                   STANDARD OF REVIEW

               We review a trial court’s ruling on a motion to suppress under an abuse of discretion

standard. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In doing so, we view the

evidence in the light most favorable to the trial court’s ruling. Johnson v. State, 414 S.W.3d 184,

192 (Tex. Crim. App. 2013). We give deference to the trial court’s determination of historical facts,

especially if those are based on an assessment of credibility and demeanor. Arguellez v. State,

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409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We afford the same deference to rulings on

application of the law to questions of fact and to mixed questions of law and fact if resolution of

those questions depends on an assessment of credibility and demeanor of witnesses. Id. We review

de novo pure questions of law and mixed questions of law and fact that do not depend on evaluating

credibility and demeanor. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).


                                   WARRANTLESS SEARCH

               Evidence seized by police without a warrant is admissible only if an exception to the

Fourth Amendment’s warrant requirement applies. Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim.

App. 2008). It is undisputed that the final search of appellant’s car was conducted without a warrant.

Accordingly, the burden shifts to the State to prove the applicability of an exception to the warrant

requirement. See Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Russell v. State,

717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986), disapproved on other grounds by Handy v. State,

189 S.W.3d 296 (Tex. Crim. App. 2006).

               If there is probable cause to believe a car contains evidence of criminal activity,

officers may properly search any area of the car in which the evidence may be found. Arizona

v. Gant, 556 U.S. 332, 347 (2009). We use a totality-of-the-circumstances analysis in determining

whether probable cause exists. See Wiede, 214 S.W.3d at 25; Whaley v. State, 686 S.W.2d 950, 951

(Tex. Crim. App. 1985). In reviewing whether the officers here had probable cause, we defer to the

trial court’s express or implied determination of historical facts, and we review de novo the trial

court’s application of the law to the facts. See Wiede, 214 S.W.3d at 25.




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                Probable cause exists when the totality of facts and circumstances known to the

officers is sufficient to warrant a belief by a person of reasonable prudence that contraband or

evidence of a crime will be found in the place to be searched. See id. at 24. Facts and circumstances

personally known to an officer encompass the officer’s “training, knowledge, and experience.” See

id. Probable cause may be based on an officer’s training and investigative experience. See Keehn

v. State, 279 S.W.3d 330, 336 (Tex. Crim. App. 2009). While furtive gestures alone do not establish

probable cause, a combination of furtive gestures and other facts can establish probable cause under

the totality-of-the-circumstances analysis. See Wiede, 214 S.W.3d at 25-28; Smith v. State,

542 S.W.2d 420, 421-22 (Tex. Crim. App. 1976).


                                           DISCUSSION

                Appellant concedes that the police had probable cause to search his car after the dog

alerted to the presence of narcotics but argues that the probable cause became stale during the

approximately ten days that passed between the dog’s alert and appellant’s furtive gestures.

Appellant contends that the officers were therefore required to obtain a search warrant before

conducting a further search of the car.

                Appellant is correct that the officers had probable cause to search his car when the

dog alerted to the presence of narcotics in the car. See Parker v. State, 182 S.W.3d 923, 924 (Tex.

Crim. App. 2006); Branch v. State, 335 S.W.3d 893, 901 (Tex. App.—Austin 2011, pet. ref’d) (“The

law is well established that as soon as a drug-detection dog alerts on a car, officers have probable

cause to search the car without a warrant.”). Further, the fact that a car is impounded at the time that




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probable cause develops does not inhibit an officer’s right to conduct the warrantless search. See

Florida v. Meyers, 466 U.S. 380, 382 (1984); Michigan v. Thomas, 458 U.S. 259, 261 (1982) (noting

that “the justification to conduct . . . a warrantless search does not vanish once the car has

been immobilized”).

               Here, the evidence shows that a trained police dog alerted to the presence of narcotics

in the car after the car was towed to the impound lot. A subsequent search of all of the typical

compartments of the car did not yield narcotics, but appellant later went to the impound lot and was

observed by a trained peace officer to be nervous and pulling on an area of the ceiling that was not

a typical compartment opening. Adams, the impound-lot owner, testified that he had been a certified

peace officer since 1993. Among other law-enforcement jobs he held during his career, Adams had

worked for the Burnet County Sheriff’s Office for approximately eight years and the Burnet Police

Department for approximately eight years. During his years in law enforcement, Adams had stopped

numerous people who were concealing drugs in hidden compartments in their cars. He testified that

such hidden compartments were “pretty typical.”

               Adams testified that his towing business and impound lot are regulated by the Texas

Department of Licenses and Regulations and that all cars towed to his impound lot are required to

be locked and secured in a fenced, restricted area. He testified that he keeps all of the car keys for

the impounded cars in a lockbox in his business office.

               Given the totality of the circumstances—including the dog’s alert indicating the

presence of narcotics; the car’s secure location in a restricted area with the keys in a lock box;

appellant’s furtive gestures indicating to Adams, a trained police officer, that the narcotics were



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located in a hidden compartment; Adams’s observation of appellant leaving without removing any

items from the suspected hidden compartment; and the car’s continued secure location in a restricted

area with the car keys in a lock box—the evidence is sufficient to warrant a belief by a person of

reasonable prudence that contraband would be found in appellant’s car at the time of the final search

of the car. See Parker, 182 S.W.3d at 924 (dog’s alert creates probable cause to search); Keehn,

279 S.W.3d at 336 (probable cause may be based on officer’s training and investigative experience);

Smith, 542 S.W.2d at 421-22 (furtive gestures can combine with other facts to create probable

cause). The circumstance that appellant relies on so heavily in his brief—that approximately ten

days passed between the dog’s alert and appellant’s furtive gestures—does not change the result of

our totality-of-the-circumstances analysis because the evidence shows that the car was locked and

secured in an impound lot the entire time.1 Accordingly, officers had probable cause to search




       1
            Appellant cites State v. Clack, No. 13-13-00345-CR, 2014 WL 4494512 (Tex.
App.—Corpus Christi, Sept. 11, 2014, pet. ref’d) (mem. op., not designated for publication) in
support of his argument that the probable cause that arose due to the dog alert became stale by the
time of the final search of his car. However, Clack is distinguishable from this case. In Clack, the
court granted the suspect’s motion to dismiss because the only evidence supporting a belief that
evidence of a crime would be discovered in the suspect’s car was evidence that the suspect was seen
driving in the car more than two weeks before his arrest with items that could be evidence of a crime
and then was seen driving in the car one more time. Id. at *6. At the time of the arrest, the suspect’s
car was not near him and was parked in a parking lot. Id. at *2. There was no evidence of where
the car had been in more than two weeks other than the two sightings of the suspect driving the car.
Given the evidence in Clack, the court determined that a reasonable officer could not expect that the
car would still contain evidence of a crime that occurred more than two weeks earlier. Id. at *6.
         Here, as explained above, appellant’s car remained within a secure impound lot during the
entire time between the dog’s alert and appellant’s furtive gestures. Appellant’s car then further
remained secure within the impound lot between the time of appellant’s furtive gestures and the final
search of the car. Unlike the officers in Clack, the officers here had every reason to believe that
contraband would still be present in appellant’s car.

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appellant’s car after appellant was observed making furtive gestures, and the trial court did not abuse

its discretion in denying appellant’s motion to suppress.


                                          CONCLUSION

               Because we conclude that the trial court did not err in denying appellant’s motion

to suppress, we affirm the trial court’s judgment of conviction.



                                                       _______________________________
                                                       Cindy Olson Bourland, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: October 15, 2015

Do Not Publish




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