AFFIRM; and Opinion Filed February 9, 2015.




                                           S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-14-00144-CR

                                 RICHARD CRUZ, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 5
                                    Dallas County, Texas
                            Trial Court Cause No. F-11-41612-L

                              MEMORANDUM OPINION
              Before Chief Justice Wright, Justice Lang-Miers, and Justice Fillmore
                                   Opinion by Justice Fillmore
        After the trial court denied his motion to suppress evidence, Richard Cruz pleaded guilty

to possession of a controlled substance. Pursuant to a plea bargain agreement, the trial court

assessed punishment of two years’ confinement in a state jail facility. In one issue, Cruz

contends the trial court erred by denying his motion to suppress all evidence found during a

warrantless search of his vehicle. We affirm the trial court’s judgment.

                                            Background

        Mesquite Police Officer Ian Purdue saw Cruz commit a traffic violation, specifically,

failing to signal the intent to turn prior to 100 feet of an intersection, and initiated a traffic stop.

Purdue requested that both Cruz and the front seat passenger, Christopher Cruz, identify

themselves. Purdue ran an “NCIC” check on both Cruz and Christopher and discovered there

were multiple warrants from the City of Mesquite for Christopher’s arrest. Purdue began the
“confirmation process” on the warrants and requested that a backup officer come to the scene.

According to Purdue, for purposes of officer safety, standard protocol is to request a backup

officer when an arrest is being made.

       While Purdue was waiting for the warrants to be confirmed and for the backup officer to

arrive, he requested that Cruz get out of the car. Purdue asked Cruz a number of questions,

including a series of questions about whether there was contraband in the car. Cruz responded

“no” to Purdue’s questions about whether there was cocaine, heroin, methamphetamine, or

marijuana in the car.    However, when Purdue asked if there was a gun in the car, Cruz

responded, “not that I know of.” Based on his training and experience, Purdue suspected this

deviation in Cruz’s answer indicated deception.

       After five or ten minutes, the warrants were confirmed and Purdue’s backup officer

arrived. The backup officer stayed with Cruz at the rear of the car while Purdue approached the

front passenger door and asked Christopher to get out of the car. As Christopher did so, he

dropped his cell phone on the ground. Christopher tried to pick up the cell phone, but Purdue

told Christopher that he would take care of it. Purdue handcuffed and searched Christopher.

Purdue then bent down to pick up the cell phone, intending to place it onto the front seat of the

car. When Purdue bent down, he saw what he believed to be the butt of a pistol sticking out

from underneath the front passenger seat. According to Perdue, the passenger door was open

and, from where he was standing, he could plainly see the butt of the pistol.

       Purdue placed Christopher in the back of the patrol car and returned to Cruz’s car to

confirm he saw the butt of a pistol. While standing outside the car, Purdue confirmed he had

seen the butt of a pistol and also noticed a large amount of marijuana seeds and stems on the

floorboard and front passenger seat of the car. Purdue also smelled marijuana.




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       After removing a small child from the back seat of the car, Purdue searched the car. He

found a gun underneath the front passenger seat, some loose marijuana in the front passenger

seat, and a small baggie of what he believed to be cocaine in a magnetic “hide-away-key” under

the front driver’s seat. Purdue testified he did not have consent to search the car and the search

was not an inventory search. Rather, he searched the car after he observed contraband.

       Cruz was charged with possession of the cocaine. He moved to suppress all evidence

found during the search of the car on grounds Purdue had neither reasonable suspicion to stop

him nor probable cause to arrest him for failing to signal his intent to make the turn. Following

the hearing on the motion to suppress, the trial court made written findings of fact that (1)

without entering the car, Purdue was able to confirm there was a gun in the car, saw marijuana,

as well as marijuana seeds and stems, in the car, and smelled marijuana emanating from the car,

and (2) Purdue’s search of the car occurred after he saw contraband, consisting of a gun and

marijuana, in plain view. The trial court concluded the search was a “valid search” and denied

the motion to suppress.

                                       Standard of Review

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

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). 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. Id. We give almost total deference to the trial court’s determination of

historical facts, particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (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 mixed questions of law and fact that do not turn on credibility and

                                                –3–
demeanor as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410

(Tex. Crim. App. 2011).

       When the trial court makes specific findings of fact, we determine whether the evidence

supports those findings. Valtierra, 310 S.W.3d at 447. As a general rule, we view the evidence

in the light most favorable to the trial court’s ruling and will reverse the judgment “only if it is

arbitrary, unreasonable, or ‘outside the zone of reasonable disagreement.’” State v. Story, 445

S.W.3d 729, 732 (Tex. Crim. App. 2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex.

Crim. App. 2006)). 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 on any theory of law applicable to the case. Story, 445

S.W.3d at 732; Turrubiate, 399 S.W.3d at 150.

                                             Analysis

       In his sole issue on appeal, Cruz contends the trial court improperly applied the plain

view doctrine in denying the motion to suppress. Cruz specifically asserts the pistol was not in

plain view and no exception to the Fourth Amendment’s warrant requirement allowed Purdue to

search the entire vehicle.

       The Fourth Amendment guarantees that people shall be “secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. A

search conducted without a warrant issued upon probable cause is per se unreasonable unless it

falls within one of the well-established exceptions to the warrant requirement.          Mincey v.

Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967));

Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).




                                                –4–
          A person must have a legitimate expectation of privacy in the invaded space in order to

claim the protection of the Fourth Amendment. Minnesota v. Carter, 525 U.S. 83, 88 (1988)

(quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)); Walter v. State, 28 S.W.3d 538, 541 (Tex.

Crim. App. 2000). However, if an article is in plain view, neither its observation nor its seizure

involves any invasion of privacy. Horton v. California, 496 U.S. 128, 133 (1990); Walter, 28

S.W.3d at 541; see also State v. Dobbs, 323 S.W.3d 184, 188 n.11 (Tex. Crim. App. 2010) (“An

investigation that does not impinge upon a defendant’s legitimate privacy or possessory interest

does not implicate Fourth Amendment protections.”). A seizure of an article is lawful under the

plain view doctrine if (1) the police officer is lawfully where the article can be “plainly viewed”;

(2) the incriminating character of the article in plain view is immediately apparent to the officer;

and (3) the officer has the right to access the article. Keehn v. State, 279 S.W.3d 330, 334 (Tex.

Crim. App. 2009); see also Horton, 496 U.S. at 136–37; State v. Betts, 397 S.W.3d 198, 206

(Tex. Crim. App. 2013).

          Cruz first argues the gun was not in plain view because Perdue had to look under the

front passenger seat of the car to see it. We construe this argument as a challenge to whether

Perdue was lawfully where the butt of the gun could be plainly viewed. 1 In determining whether

the officer had a right to be where he was, we look at whether the officer violated the Fourth

Amendment in arriving at the place from which the article could be plainly viewed. Walter, 28

S.W.3d at 541. “There is no legitimate expectation of privacy shielding that portion of the

interior of an automobile which may be viewed from outside the vehicle by either inquisitive

passersby or diligent police officers.” Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality op.)

(internal citations omitted); see also Walter, 28 S.W.3d at 544. An officer looking inside a


     1
        Cruz does not contend on appeal that his rights under the Fourth Amendment were violated by either the initial traffic stop or by the
length of the stop. Rather, he contends Perdue could not permissibly look under the front passenger seat of the car.



                                                                   –5–
vehicle from a lawful vantage point does not implicate Fourth Amendment protections. Walter,

28 S.W.3d at 543–44; see also Swarb v. State, 125 S.W.3d 672, 680 (Tex. App.—Houston [1st

Dist.] 2003, pet. dism’d). Further, whether the officer changed his position or bent down at an

angle to change his view of the interior of the vehicle is irrelevant to the Fourth Amendment

analysis. Brown, 460 U.S. at 740; Cummings v. State, 727 S.W.2d 348, 350 (Tex. App.—

Houston [1st Dist.] 1987, pet ref’d).

       Perdue testified the passenger door of the car was open and, when he bent down to

retrieve Christopher’s cell phone, he saw the butt of the gun protruding from under the front

passenger seat of the car. He also saw, while outside the car, marijuana on the front passenger

seat and marijuana seeds and stems in the floorboard. Viewing the evidence in the light most

favorable to the trial court’s ruling, we conclude the trial court could have reasonably determined

the butt of the pistol, the marijuana, and the marijuana seeds and stems were in plain view. See

Walter, 28 S.W.3d at 544 (noting police officer had every right, just like any private citizen, to

stand on park property and look into vehicle whose doors were wide open).

       Cruz next argues that, even if the plain view doctrine applies to the pistol, the marijuana,

and the marijuana seeds and stems, Perdue was not permitted to search the entire vehicle. In the

absence of exigent circumstances, the plain view doctrine “can never justify a search and seizure

without a warrant when law enforcement officials have no lawful right to access an object.”

Keehn, 279 S.W.3d at 335. However, the automobile exception to the warrant requirement

provides that a law enforcement officer may conduct a warrantless search of a motor vehicle if it

is readily mobile and the officer has probable cause to believe the vehicle contains contraband.

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam); Keehn, 279 S.W.3d at 335; see

also Arizona v. Gant, 556 U.S. 332, 346–47 (2009) (noting automobile exception is recognized

exception to warrant requirement); State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *8

                                               –6–
(Tex. Crim. App. Nov. 26, 2014) (same). Probable cause to search exists when reasonably

trustworthy facts and circumstances within the officer’s knowledge would lead persons of

reasonable prudence to believe that an instrumentality of a crime or evidence pertaining to a

crime will be found. Guiterrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) (quoting

Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2009)). The officer may rely on

training and experience to draw inferences and make deductions as to the nature of the item seen.

Hill v. State, 303 S.W.3d 863, 873–74 (Tex. App.—Fort Worth 2009, pet. ef’d) (citing Nichols v.

State, 886 S.W.2d 324, 325–26 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d)). An officer’s

observation of contraband or evidence of a crime in plain view inside a vehicle can be used to

establish probable cause to seize the contraband or evidence. Dahlem, II v. State, 322 S.W.3d

685, 689 (Tex. App.—Fort Worth 2010, pet. ref’d) (citing Colorado v. Bannister, 449 U.S. 1, 4

(1980) (per curiam)). 2

          The trial court specifically found that, without entering the car, Perdue smelled marijuana

emanating from the car and saw marijuana inside the car. Either seeing marijuana in plain view

in an automobile or smelling the odor of marijuana emanating from an automobile is sufficient to

constitute probable cause to search the vehicle. Miller v. State, 608 S.W.2d 684, 685 (Tex. Crim.

App. [Panel Op.] 1980) (smelling odor of marijuana emanating from car and seeing marijuana

seeds in plain view in car was sufficient probable cause to allow search of entire vehicle);

Moulden v. State, 576 S.W.2d 817, 820 (Tex. Crim. App. [Panel Op.] 1978) (detecting odor of

burnt marijuana provided probable cause to search entire vehicle); Barnes v. State, 424 S.W.3d

218, 225 (Tex. App.—Amarillo 2014, no pet.) (seeing marijuana in plain view in car was

sufficient probable cause to allow search of entire vehicle); see also Parker v. State, 206 S.W.3d


     2
        See also Adkins v. State, No. 01-13-00627-CR, 2014 WL 5465701, at *5 (Tex. App.—Houston [1st Dist.] Oct. 28, 2014, no pet.) (mem.
op., not designated for publication).



                                                                 –7–
593, 597 n.11 (Tex. Crim. App. 2006); Sheldon v. State, 510 S.W.2d 936, 938 (Tex Crim. App.

1974). “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search

of every part of the vehicle and its contents that may conceal the object of the search.” United

States v. Ross, 456 U.S. 798, 825 (1982); see also Neal v. State, 256 S.W.3d 264, 282 (Tex.

Crim. App. 2008). Accordingly, Perdue had probable cause to search every part of the vehicle

that might conceal marijuana, including the “hide-away-key” underneath the front driver’s seat

where the cocaine was found. See Miller, 608 S.W.2d at 685; Moulden, 576 S.W.2d at 820; see

also Ross, 456 U.S. at 825; Neal, 256 S.W.3d at 282.

       We conclude the trial court did not err by denying Cruz’s motion to suppress. We

resolve Cruz’s issue against him and affirm the trial court’s judgment.




                                                      /Robert M. Fillmore/
                                                      ROBERT M. FILLMORE
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47

140144F.U05




                                                –8–
                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RICHARD CRUZ, Appellant                            On Appeal from the Criminal District Court
                                                   No. 5, Dallas County, Texas,
No. 05-14-00144-CR        V.                       Trial Court Cause No. F11-41612-L.
                                                   Opinion delivered by Justice Fillmore, Chief
THE STATE OF TEXAS, Appellee                       Justice Wright and Justice Lang-Miers
                                                   participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 9th day of February, 2015.




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