                                NUMBER 13-15-00372-CR

                                    COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                           Appellant,

                                                      v.

CARLOS CANTU,                                                                                 Appellee.


                         On appeal from the 93rd District Court
                              of Hidalgo County, Texas.


                                MEMORANDUM OPINION

                Before Justices Rodriguez, Benavides and Perkes
                    Memorandum Opinion by Justice Perkes

        The State appeals the trial court’s granting of appellee Carlos Cantu’s motion to

suppress evidence.1 Cantu was indicted on one count of possession of marijuana, in an


        1 This appeal is brought pursuant to Texas Code of Criminal Procedure article 44.01(a)(5), which

authorizes the State to appeal an order of a court in a criminal case if the order . . . grants a motion to
suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the
prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that
the evidence, confession, or admission is of substantial importance in the case[.] TEX. CODE CRIM. PROC.
amount of 2,000 pounds or less but more than 50 pounds, a second-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(5) (West, Westlaw through 2015

R.S.). By one issue, the State argues the trial court abused its discretion in granting

Cantu’s motion to suppress because the investigator had reasonable suspicion to extend

the traffic stop. We affirm.

                                        I.      BACKGROUND

        Investigator Horacio Requenez received an anonymous tip that there was

suspicious vehicular traffic at a residence located at 1313 Heron, McAllen, Texas.2 The

residence was a known drug stash house, and previously, officers seized more than 300

kilograms of cocaine from the premises. Investigator Requenez checked the utility bills

and found no change in ownership since the previous investigation.                           Given this

information, Investigator Requenez began surveillance.                 He was about eight houses

away from the residence. After several hours of uneventful surveillance, Investigator

Requenez observed a small SUV arrive from which Cantu exited the passenger side while

carrying an empty satchel. After approximately twenty minutes, Cantu left the residence

with the satchel full, re-entered the passenger side of the vehicle, and drove away.

Investigators Requenez and Ricardo Ruiz asked through dispatch for Officer Ramon

Garcia to stop the suspicious vehicle.




ANN. art. 44.01(a)(5) (West, Westlaw through 2015 R.S.).

          2 Investigator Ruiz explained that the tip came from a Pharr Police Department investigator who

received information that a vehicle pulled up to the front of the residence and that two males—who did not
live at the residence—opened the trunk and unloaded a heavy looking suitcase and took it into the house.
                                                    2
       Officer Garcia observed the vehicle fail to signal a turn, and initiated a traffic stop.

At the time of the stop, appellant was riding in the passenger side of the vehicle and his

wife was driving. Officer Garcia took both appellant’s and his wife’s drivers licenses to

check for outstanding warrants.                Investigator Requenez also observed the traffic

violation, and, based on Officer Garcia’s report to them that Cruz was acting “extremely

nervous,” arrived at the scene. Officer Garcia found no outstanding warrants and, after

speaking with Investigator Requenez, ended his involvement with the traffic stop. 3

       Investigators Requenez and Ruiz then approached the passenger side of the

vehicle and began questioning Cantu about his presence at the Heron house. Cantu

admitted to coming from the Heron house, but said it was his wife’s friend’s residence.

Investigator Ruiz asked why Cantu was the only one to enter the residence if they were

there to see his wife’s friend. Cantu responded that he was speaking with the friend’s

husband, who was at the Heron house. Investigator Requenez asked Cantu about the

satchel, but Cantu denied any knowledge of it. Investigator Requenez obtained oral

consent to search the vehicle, and, during the search, they located a satchel under the

seat. Inside the satchel were two plastic bags containing approximately $14,000 in cash.

Investigator Requenez asked Cantu about the money, and Cantu replied that the money

was for building a swimming pool.

       After his discovery of the satchel, Investigator Requenez called for a canine unit to

ascertain the presence of narcotics. The canine unit arrived five to ten minutes later and

alerted to the presence of narcotics on the satchel; but it did not alert to the presence of



       3   The record does not reflect whether Officer Garcia issued a citation for any traffic infraction.
                                                       3
any additional narcotics. The investigators informed Cantu of the canine’s alert on the

money bag, and then placed Cantu in the back of their police cruiser. Cantu asked the

officers not to arrest his wife, and then informed the investigators of approximately “a

thousand pounds” of marijuana at a different location—3509 Pelican, McAllen, Texas.

The Pelican address matched the address on Cantu’s driver’s license. The investigation

then moved to the Pelican and Heron houses. The investigators received consent to

search both residences by individuals at each residence.       Investigators discovered

marijuana at the Pelican house, and drug ledgers were discovered at the Heron house.

The investigators detained Cantu for between 45 minutes and an hour while the houses

were searched.

       Cantu filed a motion to suppress “any and all evidence obtained . . . .” In his

motion, Cantu alleged the “searches were made based on evidence obtained in violation

of the laws of the State of Texas.” Cantu’s motion to suppress sought to exclude his

statements made to police and the marijuana discovered in the Pelican house. After a

hearing, the trial court granted Cantu’s motion to suppress based on the alleged

prolonged length of the detention after the traffic stop. This appeal ensued.

                             II.    PROLONGED DETENTION

       The State argues the trial court erred in granting Cantu’s motion to suppress.

Specifically, the State alleges that two of the trial court’s conclusions of law lack

evidentiary support and further argues that the officers had reasonable suspicion to

prolong the traffic stop.

A.     Standard of Review


                                            4
       We review a trial court’s ruling on a motion to suppress evidence for an abuse of

discretion, using a bifurcated standard. See Valtierra v. State, 310 S.W.3d 442, 447

(Tex. Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997)

(en banc). The trial court’s ruling is overturned only if it is “outside the zone of reasonable

disagreement.” Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011).

We view all of the evidence in the light most favorable to the trial court’s ruling. State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The trial court’s role as the

sole trier of fact and judge of the credibility of the witnesses and the weight to be given

their testimony is almost totally deferential. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2008); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing

Guzman, 995 S.W.2d at 89). “This is so because it is the trial court that observes first-

hand the demeanor and appearance of a witness, as opposed to an appellate court which

can read only an impersonal record.” State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000) (en banc); see Wiede, 214 S.W.3d at 24. We give almost total deference,

considered in the light most favorable to the trial court, to the trial court’s findings of

explicit, historical fact that are supported by the record and to mixed questions of law and

fact that turn on an evaluation of credibility and demeanor. Miller v. State, 393 S.W.3d

255, 263 (Tex. Crim. App. 2012); see Amador, 221 S.W.3d at 673 (citing Guzman, 995

S.W.2d at 89).

       We “review de novo ‘mixed questions of law and fact’ that do not depend upon

credibility and demeanor.” Amador, 221 S.W.3d at 673 (quoting Montanez v. State, 195

S.W.3d 101, 107 (Tex. Crim. App. 2006)). We review the trial court’s legal rulings de


                                              5
novo unless its supported-by-the-record explicit fact findings are dispositive of the legal

ruling. State v. Kelley, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Therefore, we

review de novo whether a certain set of historical facts gives rise to reasonable suspicion.

Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013); see Davis v. State, 947

S.W.2d 240, 249 (Tex. Crim. App. 1997) (en banc) (Keller, J., concurring); Madden v.

State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007) (legal question of whether totality of

circumstances is sufficient to support officer’s reasonable suspicion is reviewed de novo).

B.     Applicable Law

       The Fourth Amendment, made applicable to the states by the due process clause

of the Fourteenth Amendment, guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. CONST. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961). A warrantless

traffic stop is a Fourth Amendment seizure equivalent to a temporary detention, and it

must therefore be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420,

439 (1984); State v. Nelson, 228 S.W.3d 899, 902 (Tex. App.—Austin 2007, no pet.).

Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead the officer to reasonably

conclude that a particular person actually is, has been, or soon will be engaged in criminal

activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); see Ford v. State,

158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The burden is on the State to elicit

testimony showing sufficient facts to create a reasonable suspicion. Garcia, 43 S.W.3d

at 530. The totality of the suspicious circumstances that an officer relies on “must be


                                             6
sufficiently distinguishable from that of innocent people under the same circumstances as

to clearly, if not conclusively, set the suspect apart from them.” Wade, 422 S.W.3d at

671. We give due weight not to the officer’s inchoate and unparticularized suspicion or

“hunch,” but to specific reasonable inferences that he was entitled to draw from the facts

in light of his experience. See Davis, 947 S.W.2d at 242.

       We analyze the legality of traffic stops under the standard articulated by the United

States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21–22 (1968); see United States v.

Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc); see also United States v. Pack,

612 F.3d 341, 349–50 (5th Cir. 2010); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App.

2004). Under this standard, we make a two-part inquiry. Brigham, 382 F.3d at 506.

First, we examine whether or not the officer’s decision to stop the vehicle was justified at

its inception. Id. Second, we determine whether or not the officer’s subsequent actions

were reasonably related in scope to the circumstances that caused him to stop the vehicle

in the first place. Id.

       An officer’s subsequent actions are not reasonably related in scope to the

circumstances that caused him to stop the vehicle if he detains its occupant beyond the

time needed to investigate the circumstances that caused the stop, unless the officer

develops a reasonable suspicion of additional criminal activity in the meantime. Id. at

507. The United States Supreme Court has expressly rejected placing any rigid time

limitations on Terry stops; instead, the issue is “whether the police diligently pursued a

means of investigation that was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.” Id. at 64 (quoting United State v.


                                             7
Sharpe, 470 U.S. 675, 685–86 (1985) (declining to “establish per se rule that 20-minute

detention is too long” under Terry)). A detention may not be unnecessarily prolonged

solely in hopes of finding evidence of some other crime. Kothe, 152 S.W.3d at 64. But

if reasonable suspicion 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. Davis, 947 S.W.2d at 243; see

Madden, 242 S.W.3d at 516–17 (facts determined prior to and during stop provided

sufficient reasonable suspicion for continued detention).

C.     Analysis

       According to the State’s first argument, the trial court abused its discretion by

making conclusions of law which are unsupported by its findings of fact. The State

challenges the trial court’s following conclusions of law:

       10. The investigators requested for the canine to arrive on scene.
           However, the narcotics canine did not alert to the presence of narcotics.
           Instead, the canine found money. The investigator’s testimony was not
           reliable as he indicated he had seen the money in plain view and then
           called a canine to the location on that basis.

       11. CANTU told the investigator that the money was going to be used to buy
           a pool. The investigator did not continue the investigation to whether
           the money would be used for a pool or not. The investigator assumed
           that the money was derived from illegal activity, which he had not seen
           personally. The investigator had only conducted surveillance on 1313
           Heron for two hours prior to observing CANTU arrive on location.

According to the State, these conclusions are at odds with the trial court’s specific findings

of fact, in particular:

       16. Investigator Requenez asked CANTU for permission to search the
           vehicle. CANTU denied signing a written consent form, but Investigator
           Requenez states that he gave a verbal consent. Investigator Ruiz

                                              8
          stated they asked to search the vehicle because he observed CANTU
          walking in and out of the 1313 Heron residence earlier with the bag.

       17. Investigator Requenez searched the vehicle and found a bag
           underneath the passenger seat. He did not see the bag until he
           searched the vehicle. Investigator Ruiz stated he asked CANTU to exit
           the vehicle and he saw Cantu stuff the bag in plain view under his seat
           and Investigator Ruiz observed the money in the bag at that time. I did
           not find Investigator Ruiz’s testimony credible in that Investigator
           Requenez stated that the bag of money was not discovered until the
           officers searched the vehicle. Further, when Investigator Requenez
           opened the passenger door, he testified he could not see the bag under
           the seat.

       18. Investigator Requenez called dispatch to request a canine unit to search
           the vehicle. At the same time, investigator asked CANTU what the
           money was for.

       The State contends that the record shows Investigator Requenez discovered the

money prior to the canine’s arrival, not the other way around.            The State further

complains about the trial court’s ignoring the officer’s discretion to decide whether or not

to believe appellant’s story about the purpose for the money, apparently finding fault with

what the trial court’s conclusion omitted rather than what it included.

       In challenged conclusion of law number 10—which we construe more as a finding

of fact—the trial court stated that the canine did not alert on any narcotics, but “found

money.” By saying the canine “found” the money, we understand that the trial court

meant the canine alerted on the satchel containing the money. The trial court’s next

sentence is an unambiguous credibility determination concerning Investigator Ruiz. The

trial court did not believe Investigator’s Ruiz claims of spotting the satchel with money

prior to the search of the vehicle.      Such a finding is consistent with Investigator

Requenez’s testimony stating that he found the satchel in conducting the vehicle search.


                                             9
We find no discrepancy between the trial court’s findings of fact and the challenged

conclusion of law number 10.

        Challenged conclusion of law number 11—again construed as a finding of fact—

is an accurate statement supported by the record.                      According to the record, the

investigators did not investigate the truthfulness of Cantu’s claims about the purpose for

the money, nor did they personally witness any overtly illegal activity at the Heron house

prior to Cantu’s detention and arrest. That the State disputes the truthfulness of Cantu’s

stated purpose for the money does not impact the accuracy of the trial court’s findings.

        We conclude the challenged conclusions have evidentiary support and do not

constitute an abuse of discretion. See Miller, 393 S.W.3d at 263.

        The State also challenges the trial court’s conclusion that the officers did not have

reasonable suspicion to continue Cantu’s detention past the completion of the traffic stop.

In arguing the police officers acquired reasonable suspicion to extend the duration of the

traffic stop, the State points to: (1) the anonymous tip of suspicious vehicular traffic at

the Heron house; (2) previous known drug activity at the Heron house; (3) the residents

involved in the previous drug activity lived in the Heron house at the time of Cantu’s visit;

(4) Cantu’s possession of the satchel during his visit to the Heron house; (5) Cantu’s

nervousness; (6) Cantu’s alleged evasive answers to police questioning; and (7) the

discovery of the satchel filled with money.

        Cantu’s interaction with the police began with the traffic stop, initiated by Officer

Garcia.4 After he stopped Cantu’s wife, Officer Garcia asked for identification from Cantu


        4The parties do not dispute the legality of Officer Garcia’s traffic stop. We conclude Officer Garcia
had probable cause to stop the vehicle in which Cantu was a passenger. We will focus our analysis on
                                                    10
and his wife and checked for outstanding warrants.                    After finding no outstanding

warrants, Officer Garcia spoke with Investigator Requenez, explaining that Cantu seemed

nervous. According to the trial court’s findings of fact, after speaking with Investigator

Requenez, Officer Garcia ended his involvement with the traffic stop.                      There is no

testimony in the record regarding whether Officer Garcia began writing a traffic citation

while Investigator Requenez spoke with Cantu or whether a traffic citation was ever

issued. Moreover, it is unclear how long Officer Garcia’s investigation lasted before

Investigators Requenez and Ruiz arrived. Therefore, at the conclusion of the traffic stop,

Investigator Requenez knew: (1) Cantu stopped briefly at the Heron house carrying the

satchel; and (2) Cantu seemed nervous in his interaction with Officer Garcia.

        The facts that an officer relies on to raise suspicion that illegal conduct is afoot

need not be criminal in themselves; “they may include any facts which in some measure

render the likelihood of criminal conduct greater than it would otherwise be.” Wade v.

State, 422 S.W.3d 661, 670 (Tex. Crim. App. 2013) (quoting Crockett v. State, 803

S.W.2d 308, 311 (Tex. Crim. App. 1991)).                 However, the totality of the suspicious

circumstances that an officer relies upon “must be sufficiently distinguishable from that of

innocent people under the same circumstances as to clearly, if not conclusively, set the

suspect apart from them.” Id. (quoting Crockett, 803 S.W.3d at 311).

        We first examine whether Cantu’s presence at the Heron house, when combined

with permissible deductions, could create a legitimate basis for suspicion. See Ford, 158

S.W.3d at 492. According to Investigator Requenez, the Heron house was the location


whether the officer’s subsequent actions were reasonably related in scope to the circumstances that caused
the stop. See United States v. Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc).
                                                   11
of a prior drug bust resulting in the seizure of approximately three kilograms of cocaine.

He did not say how long before his latest surveillance the drug bust occurred, but he did

say that the house’s utilities were registered in the same name as during the bust.

Investigator Requenez believed the Heron house was still used for drug activity. By

watching Cantu enter the house with an empty satchel and leave approximately ten

minutes later with a full satchel, he linked Cantu to presumed drug activity.

         The record, however, is missing any testimony articulating why Cantu’s carrying a

satchel into and out of the Heron house was suspicious or any testimony linking Cantu’s

presence at the house to previous drug activity. Instead, Investigator Requenez merely

concluded that Cantu’s behavior was “suspicious.” An officer must do more than simply

label a behavior as “suspicious” to make it so. Wade, 422 S.W.3d at 672 (quoting United

States v. Foster, 634 F.3d 243, 248–49 (4th Cir. 2011)). There is nothing in the record,

other than Investigator Requenez’s own subjective belief, that would characterize Cantu’s

conduct at the Heron house as indicative of criminal activity.

         Investigator Requenez testified Officer Garcia told him Cantu was acting “nervous.”

While nervousness is a factor, it is not particularly probative because “most citizens with

nothing to hide will nonetheless manifest an understandable nervousness in the presence

of the officer.” Id. (quoting Glass v. State, 681 S.W.2d 599, 602 (Tex. Crim. App. 1984)

(en banc)); see Sieffert v. State, 290 S.W.3d 478, 481 (Tex. App.—Amarillo 2009, no

pet.).

         The circumstances do not constitute specific and articulable facts—combined with

rational inferences—to justify a reasonable suspicion on the part of the officers that


                                             12
criminal activity was afoot.    See Terry, 392 U.S. at 20; Wade, 422 S.W.3d at 672.

Investigator Requenez does not explain his reasoning for labeling Cantu’s behavior at the

Heron house as “suspicious.”          While we acknowledge the Heron house’s drug

connection history, we are unable to determine the proximity of that history to Cantu’s

presence.    Investigators Requenez and Ruiz were not justified in their continued

detention of Cantu.     Cantu’s denial about the satchel’s existence, discovery of the

satchel containing money, and the canine alert on the satchel all came after Cantu’s initial

detention was illegally prolonged and therefore do not factor into our analysis.

       We hold that the trial court did not abuse its discretion in finding the officers violated

Cantu’s fourth amendment rights and in suppressing all evidence deriving from the

prolonged detention. See Valtierra, 310 S.W.3d at 447. The State’s issue is overruled.

                                         III. CONCLUSION

       We affirm the trial court’s judgment.




                                                      GREGORY T. PERKES
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
13th day of October, 2016.




                                               13
