                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-17-00144-CR
                            ____________________

                        CHADWICK SMITH, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 356th District Court
                           Hardin County, Texas
                           Trial Cause No. 23828


                          MEMORANDUM OPINION

      A grand jury indicted Appellant Chadwick Smith for the offense of possession

of a controlled substance, namely methamphetamine, in an amount of four grams or

more but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115 (West

2017).1 Smith filed a motion to suppress, and after a hearing, the trial court denied

the motion. Thereafter, Smith pleaded guilty. The trial court assessed punishment at


      1
        We cite to the current version of the statute as subsequent amendments do
not affect our disposition.
                                         1
eleven years’ confinement. In a single issue, Smith appeals the trial court’s denial of

his motion to suppress. We affirm.

                           Hearing on Motion to Suppress

      In his motion to suppress, Smith alleged that the evidence was seized pursuant

to an “illegal stop, detention and/or arrest.” According to Smith, the stop was without

probable cause or reasonable suspicion and any evidence seized or statements made

should be suppressed as fruits of an unlawful search and seizure.

      At the suppression hearing, the State conceded that there was no warrant for

the search. Officer Justin Holt (the “Officer”) with the Silsbee Police Department

testified that he stopped a motorcycle on the evening of June 3, 2015, because he

could not see a legible license plate on the motorcycle. The Officer also explained

that the paper tags “were all crinkled up and folded and dirty[,]” and although the

motorcycle had a buyer’s tag, the tag was not legible due to its condition and how it

was fastened. Upon further investigation, after stopping the motorcycle the Officer

also noticed other violations. The Officer observed that the rear tire was extremely

underinflated and the tread was wearing through to the cords. At the hearing, the

Officer identified Smith as the person he stopped.

      The Officer explained that, upon stopping Smith, he also noted that “[t]he

ignition wires appeared to have been cut, VIN numbers were ground down[]” and

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the seat and fuel tank were not bolted down, and that he investigated whether the

vehicle was stolen. Once he stopped the motorcycle, he could see that the front tire

was also severely worn and was very slick. According to the Officer, he had dealt

with Smith a couple of months earlier in a matter regarding methamphetamines and

he had “firsthand knowledge” that he had “arrested the subject before with narcotics

and with a weapon.” The Officer also explained that he communicated by radio with

a sergeant at the Hardin County Sheriff’s Office Narcotics Division, and he recalled

that the sergeant warned him of a possible weapon. According to the Officer, he also

observed a rag or paper towel shoved into the “ram air induction system[.]” The

Officer explained that nothing should have been in the air intake because that is

where the air would channel into the air filter. Based on his observations of the

vehicle, his knowledge of the suspect’s past history, plus his conversation with the

Narcotics Division, the Officer was looking at “possible concealment of narcotics[]”

and a “possible stolen vehicle.”

      The Officer “ran” the tags for the motorcycle, and the vehicle appeared to

belong to Triangle Motors. The motorcycle plates were from Triangle Motors, and

at the time of the stop, the Officer had an open investigation into Triangle Motors

for illegal distribution of plates and narcotics. When he asked Smith where he got

the motorcycle, Smith told the Officer that the motorcycle was acquired “from a

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Harris County police auction.” And, Smith later told the Officer that his wife had a

receipt for the motorcycle.

      The Officer testified that he asked Smith for consent to search the rear

compartment of the motorcycle, or the area under the seat, and Smith gave consent.

The Officer found a purple container that he felt may have been used to conceal

narcotics but that he did not find any narcotics inside the container. The Officer

explained that he then confronted Smith about what might be underneath the fuel

tank, and Smith did not give him a direct answer. According to the Officer, Smith

was very nervous and sweating profusely. Smith removed the rear seat, and the

Officer removed the fuel tank, after which the Officer located a “little side box . . .

inside the air box.” Inside the air box the Officer found approximately ten grams of

methamphetamine.

      The Officer testified that he believed he had probable cause to search more

than the rear compartment of the motorcycle based on his prior knowledge of Smith

with drugs and guns, a radio communication from another officer to be on the

lookout for Smith with drugs, a “paper towel wadded up in the air box that [he could]

visually see[,]” his experience with motorcycles, the fact that Smith was sweating

profusely, and the fact that Smith was in an “excited state[]” when he responded to

the Officer’s questions. The Officer testified that he was personally familiar with the

                                          4
model of the motorcycle that Smith was riding, and he explained as follows: “I have

rebuilt them; repaired them; disassembled them down to motors, frames, swing arms,

subframes, forks, front ends, wheels, the entire -- there is not a screw that I haven’t

undone or put back together.” The State also offered into evidence a copy of the

video of the stop taken from the Officer’s patrol vehicle.

      The trial court denied the motion to suppress. The court did not enter findings

of fact and conclusions of law, and the appellate record does not reflect that any were

requested. Smith pleaded guilty and filed a motion for new trial that was overruled

as a matter of law.

                                        Issue

      In a single issue, Appellant argues that the trial court abused its discretion by

denying his motion to suppress. According to the Appellant, his detention was

unlawful under the Fourth Amendment and Article I, section 9 of the Texas

Constitution because the search was based on the detaining officer’s “inarticulate

hunches” that narcotics were being concealed on the motorcycle and, therefore, the

officer lacked probable cause to search the motorcycle.

                                 Standard of Review

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

standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App.

                                          5
2010). We review the trial court’s factual findings for an abuse of discretion, but

review the trial court’s application of the law to the facts de novo. Turrubiate v.

State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). At a suppression hearing, the

trial court is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony, and a trial court may choose to believe or to

disbelieve all or any part of a witness’s testimony. Valtierra, 310 S.W.3d at 447;

Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (quoting State v.

Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)); State v. Ross, 32 S.W.3d

853, 855 (Tex. Crim. App. 2000).

       In reviewing a trial court’s ruling, the appellate court does not engage in its

own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App.

2007). We give almost total deference to the trial court’s determination of historical

facts, “especially if those are based on an assessment of credibility and demeanor.”

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We give the same

deference to the trial court’s conclusions with respect to mixed questions of law and

fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex.

Crim. App. 2012). We review purely legal questions de novo as well as mixed

questions of law and fact that do not turn on credibility and demeanor. State v.

Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.

                                            6
We also review de novo “whether the totality of [the] circumstances is sufficient to

support an officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d

at 48-49.

      In the absence of any findings of fact, either because none were requested or

none were spontaneously made by the trial court, an appellate court must presume

that the trial court implicitly resolved all issues of historical fact and witness

credibility in the light most favorable to its ultimate ruling. State v. Elias, 339 S.W.3d

667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d at 856); see also Aguirre

v. State, 402 S.W.3d 664, 667 (Tex. Crim. App. 2013) (Cochran, J., concurring) (“in

the absence of specific findings, an appellate court’s hands are tied, giving it little

choice but to ‘view the evidence in the light most favorable to the trial court’s ruling

and assume that the trial court made implicit findings of fact that support its ruling

as long as those findings are supported by the record[]’”) (quoting Ross, 32 S.W.3d

at 855). We afford the prevailing party the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn from that evidence. State v. Duran,

396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling

if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014);



                                            7
Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013); Ross, 32

S.W.3d at 855.

                                   Applicable Law

      Pursuant to the Fourth Amendment, a warrantless search is per se

unreasonable unless it falls within an exception to the requirement for a warrant.

Arizona v. Gant, 556 U.S. 332, 338 (2009); McGee v. State, 105 S.W.3d 609, 615

(Tex. Crim. App. 2003). The “automobile exception” allows for the warrantless

search of a vehicle “if it is readily mobile and there is probable cause to believe that

it contains contraband.” See Marcopoulos v. State, 538 S.W.3d 596, 599 (Tex. Crim.

App. 2017); Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009); see also

United States v. Ross, 456 U.S. 798, 825 (1982) (police may search a vehicle if they

have probable cause to believe it contains evidence of a crime). The Officer testified

that he observed Smith’s motorcycle in motion, and the State offered video evidence

of the motorcycle in motion. See California v. Carney, 471 U.S. 386, 391-92 (1985)

(explaining that the “automobile exception” to the requirement of a warrant applies

when a vehicle is being used on the highways). The Appellant does not challenge

the fact that his vehicle was “readily mobile.” Rather, he contends that the trial court

erred because the search was based on the detaining officer’s “inarticulate hunches”



                                           8
that narcotics were being concealed on the motorcycle and, therefore, the officer

lacked probable cause to search the motorcycle.

      Probable cause exists when “the facts and circumstances within the

knowledge of the arresting officer and of which he has reasonably trustworthy

information would warrant a reasonable and prudent man in believing that a

particular person has committed or is committing a crime.” Brown v. State, 481

S.W.2d 106, 110 (Tex. Crim. App. 1972); see also Amores v. State, 816 S.W.2d 407,

413 (Tex. Crim. App. 1991). “Probable cause requires an evaluation of probabilities,

and probabilities ‘are the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act.’” Wiede, 214 S.W.3d

at 24 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). If the totality

of the circumstances demonstrate a “fair probability” of finding evidence at the

location being searched, then the probable cause standard is met. Dixon v. State, 206

S.W.3d 613, 616 (Tex. Crim. App. 2006). A court may consider “the training,

knowledge, and experience of law enforcement officials” involved in the warrantless

search. See Wiede, 214 S.W.3d at 25. Only a “minimal level of objective

justification” on the part of the officer is required, and our “determination of

reasonable suspicion must be based upon commonsense judgments and inferences

about human behavior.” See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); United

                                         9
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Immigration & Naturalization Serv.

v. Dalgado, 466 U.S. 210, 217 (1984)).

                                      Analysis

      In this case, the Officer testified that he made the initial stop based on his

visual observation that the motorcycle lacked legible tags and that he also visually

determined that the motorcycle had seriously worn tires. Once he stopped Smith, the

Officer testified that he observed that the motorcycle’s VIN numbers had been

ground down, and that he suspected the vehicle might be stolen. Furthermore, the

Officer explained that he personally knew Smith to have a history of involvement

with methamphetamines, and that Smith was very nervous, sweating profusely, and

in an excited state. The Officer testified that he observed something stuffed into the

air intake of the motorcycle, that the seat of the motorcycle and fuel tank were not

bolted down, and that based on his knowledge of motorcycles, he knew that nothing

should be stuffed into the intake area. He also testified that he had been working an

open investigation with Triangle Motors for distribution of illegal narcotics and that

the temporary plate on the motorcycle indicated the motorcycle came from Triangle

Motors.

      In Marcopoulous, the Court determined that a suspect’s furtive gestures,

including his visits to a bar known for involvement with narcotics sales, were

                                         10
insufficient to establish probable cause to search the suspect’s vehicle under the

“automobile exception.” See 538 S.W.3d at 603-04. The Court explained that an

officer’s observations about the suspect may have provided reasonable suspicion to

justify a temporary investigative detention, but that additional “indicators of drug

activity” were necessary to tip the scale in favor of finding probable cause to search

the vehicle. Id. at 604. By contrast, the record in this case includes evidence of

numerous additional facts that provided additional indicators of drug activity beyond

the arresting officer’s initial basis for stopping Smith. Among other things, the

Officer was very familiar with motorcycles, including the particular model Smith

was driving, and the Officer had observed several indicators from the motorcycle

and the suspect. For example, the Officer noticed something unusual stuffed into the

air intake of the motorcycle. The Officer also observed that the motorcycle showed

that it was registered to Triangle Motors, an entity the Officer personally knew to be

associated with an open narcotics sales investigation, the Officer had specific

knowledge that the suspect had previously been linked to narcotics, the suspect was

nervous and sweating, and failed to give direct answers to certain questions, and the

motorcycle’s seat and gas tank appeared to be inadequately secured indicating to the

Officer that contraband could be hidden in the motorcycle. Such “additional



                                         11
indicators” of drug activity factually distinguish this case from Marcopoulous and

would tip the scale in favor of finding probable cause. See id.

      Considering the totality of the circumstances, the trial court could have

reasonably concluded that the facts and circumstances within the knowledge of the

Officer and of which the Officer had reasonably trustworthy information would

warrant a reasonable and prudent man in believing that Smith had committed or was

committing a crime or that the motorcycle contained contraband. See Keehn, 279

S.W.3d at 335; Brown, 481 S.W.2d at 110. The trial court could have reasonably

concluded based upon the record that the Officer’s warrantless search of the

motorcycle was justified under the “automobile exception.” See Ross, 456 U.S. at

825; Story, 445 S.W.3d at 732. Viewing the evidence in a light most favorable to the

trial court’s ruling, we conclude that the trial court did not err in finding that the

State met its burden to demonstrate at least a minimal level of objective justification

to justify the search of Smith’s motorcycle. See Sokolow, 490 U.S. at 7; Keehn, 279

S.W.3d at 336. Accordingly, we overrule the Appellant’s issue and affirm the trial

court’s order.

      AFFIRMED.


                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice
                                          12
Submitted on March 30, 2018
Opinion Delivered June 13, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




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