Reversed and Remanded; Opinion Filed January 7, 2014




                                                     S    In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                    No. 05-12-01627-CR

                                              THE STATE OF TEXAS, Appellant
                                                           V.
                                                   LUIS LOPEZ, Appellee

                                 On Appeal from the 194th Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. F12-59529

                                          MEMORANDUM OPINION
                                      Before Justices Bridges, Fillmore, and Lewis
                                              Opinion by Justice Bridges
           The State of Texas appeals from the trial court’s decision to grant appellee Luis Lopez’s

motion to suppress. In a single issue, the State argues the trial court erred by granting the motion

to suppress, because the police did not violate appellee’s rights by asking appellee to exit the car

for the purpose of conducting an investigation and a Terry frisk. We reverse and remand.

                                                       Background

           Officer Brandon Stephens of the Dallas Police Department testified he made a traffic stop

on a silver Dodge Charger at approximately 3:30 a.m. on August 26, 2012. Stephens explained

he stopped the Charger because it was operating on a public roadway with blue headlights, a

violation of the transportation code.1 When he saw the blue lights, Stephens got behind the

   1
       See TEX. TRANSP. CODE ANN. §547.326.
Charger and ran the license plate because “[he] knew [he] was going to stop the vehicle.” When

the license plate came back clear, Stephens activated his emergency equipment. The driver of

the Charger then pulled to the right-hand lane, traveled two or three blocks, and pulled into the

driveway of a church.

          When the car pulled over, Stephens testified he “could see the driver moving around,

reaching from. . . the backseat back to his left down on the side like reaching toward the map

pocket.” There were four occupants inside the car. Stephens explained no one else was making

gestures or movements.

          Stephens testified that, when he and his partner approached the vehicle, he knew he

wanted to pull the driver out of the vehicle to “do a pat-down on him and the lounge area around

him to make sure he wasn’t concealing a weapon.” After he approached the vehicle, Stephens

identified the driver and obtained his identification to run his name in the police database. He

also obtained the name of appellee, one of the backseat passengers. Appellee was sitting directly

behind the driver. Stephens testified appellee was not wearing a seatbelt, and he was prepared to

issue appellee a citation for the failure to wear a seatbelt.2

          After he secured the name of the driver and the name provided by appellee, Stephens

went back to his police car and first ran the driver’s name in the computer. The driver’s name

came back clear. He then ran the name provided by appellee, but nothing came back on him.

Stephens explained the fact appellee’s name did not come back could “mean a lot of things.”

Specifically, he said it could mean appellee was lying or that he did not yet have an I.D. At this

point, Stephens testified everyone was still inside the Charger, and our review of the dash camera




     2
        On cross-examination, Stephens admitted that at the time he saw appellee was not wearing his seatbelt, the car was already parked,
appellee was sitting in the back seat, and the vehicle was not moving. Stephens conceded there was no violation “as far as [he knew].”



                                                                  –2–
video confirms this. Stephens then testified, “After I ran the names, I was going to go back up

and perform the Terry frisk of the driver and the back left passenger.” (emphasis added).

          Stephens explained he asked the driver if there were any weapons in the car, and the

driver responded, “not that I know of.” At that point, Stephens explained he was suspicious and

brought the driver out of the vehicle and conducted a Terry frisk on him. After completing the

frisk of the driver, Stephens sat the driver on the curb.

          After Stephens sat the driver on the curb, he stated he “immediately went to the back left

door of the car, opened the car door, [and] asked [appellee] to step out.” As appellee stepped

out, he lunged toward the back of the car, but Stephens grabbed onto his shirt and a knife fell to

the ground beside the car. The knife was the size of a steak knife.3 Stephens arrested appellee

for carrying a prohibited weapon and transported him to jail, where drugs were also found on

appellee. Stephens later learned appellee had not given his true name when asked.4

          Appellee was indicted for the offense of possession of a controlled substance, to wit:

cocaine in an amount of less than 1 gram. Appellee filed his motion to suppress evidence. After

hearing the evidence on the motion to suppress, the trial court stated on the record:

          [T]he Court finds that the stopping of the vehicle was indeed proper, given the
          fact that the driver had committed an offense. However, the Court does find that
          there are no specific articulable facts regarding the questioning of [appellee], who
          was a passenger in the rear seat. In this matter, the Court does note the officer
          testified it appeared that the driver made the furtive gestures, but there was no
          testimony with respect to [appellee].

The trial court then granted appellee’s motion to suppress.

                                                                 Analysis

          In a single issue, the State contends the trial court erred in granting appellee’s motion to

suppress when “the police failed to violate appellee’s rights by asking appellee to exit the
   3
       Our review of the police dash cam video reveals Stephens indicated the knife’s blade was over 6 inches long.
   4
       Our review of the video reveals appellee gave a false name, Ramon Martinez.



                                                                     –3–
Charger” and when there was “reasonable suspicion for the arresting officer to detain appellee

temporarily for the purpose of conducting an investigation and ‘Terry Frisk.’” We apply a

bifurcated standard of review to the trial court’s ruling on a motion to suppress evidence.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total

deference to the trial court’s determination of historical facts and apply a de novo review to the

trial court’s application of the law to the facts. Id. The trial court is the sole trier of fact, the

judge of witness credibility, and the weight to be given to witness testimony. Id. The trial

court’s ruling “will be upheld on appeal if it is correct under any theory of law that finds support

in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).

       The Fourth Amendment of the United States Constitution and article I, section 9 of the

Texas Constitution protect against unreasonable searches and seizures by government officials.

Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); Atkins v. State, 882 S.W.2d 910, 912

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d.). Absent a few specifically established and

well-delineated exceptions, a warrantless search is per se unreasonable. Arizona v. Gant, 556

U.S. 332, 338 (2009). One of these exceptions is “search incident to arrest.” See Chimel v.

California, 395 U.S. 752, 763 (1969). “Search of the person becomes lawful [without a warrant]

when grounds for arrest and accusation have been discovered. . . .” United States v. Robinson,

414 U.S. 218, 232 (1973); see also Busby v. State, 990 S.W.2d 263, 270 (Tex. Crim. App. 1999)

(once a suspect is validly arrested, he may be properly searched incident to the arrest).

       The State provided the dash camera video to the trial court, which is also a part of our

record. The video shows Stephens approached the vehicle, asked for the occupants’ names, and

then returned to his vehicle to run the names through the police database. Stephens testified he

decided to conduct a Terry frisk on appellee after he ran his name through the database and




                                                –4–
nothing came back. Appellee argues the decision to conduct a Terry frisk of him at that point

was improper.

          But Stephens never conducted a Terry frisk of appellee. Instead, after running the names

through the database, Stephens returned to the car and frisked the driver. After completing the

frisk of the driver, he then opened the back passenger door and asked appellee to step out of the

vehicle. We conclude it was proper for Stephens to ask appellee to step out of the car. See

Maryland v. Wilson, 519 U.S. 408, 410 (1997) (police officer may order passenger to exit vehicle

as a matter of course). When asked to step out of the vehicle, appellee attempted to run. At that

point, the knife he was concealing fell to the ground. Our review of the video shows that, after

Stephens and another officer had handcuffed appellee, Stephens indicated he would be arresting

appellee for carrying a prohibited weapon. Appellee was then placed in the back of the police

car. After appellee was transported to jail, he was searched and, only then, were the drugs at

issue found on his person.

          At the hearing on the motion to suppress, the trial court first found the stop of the vehicle

was proper, and we agree with the trial court’s conclusion.5 The trial court also found there were

no specific articulable facts regarding the questioning of appellee, who was a passenger in the

rear seat, and no evidence of furtive gestures by appellee to justify a Terry frisk. Here, however,

no Terry frisk of appellee took place. We conclude the evidence at issue here was properly

obtained under a search incident to arrest and, therefore, the trial court improperly granted

appellee’s motion to suppress. See Busby v. State, 990 S.W.2d at 270.




     5
      We conclude Stephens had reasonable suspicion that a traffic offense had been committed, and thus the stop was proper. See TEX. TRANSP.
CODE ANN. §547.326.



                                                                   –5–
       We reverse the trial court’s order granting appellee’s motion to suppress and remand this

cause for further proceedings.




Do Not Publish
TEX. R. APP. P. 47
121627F.U05                                        /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE




                                             –6–
                                        S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                        JUDGMENT

THE STATE OF TEXAS, Appellant                      On Appeal from the 194th Judicial District
                                                   Court, Dallas County, Texas
No. 05-12-01627-CR        V.                       Trial Court Cause No. F12-59529.
                                                   Opinion delivered by Justice Bridges.
LUIS LOPEZ, Appellee                               Justices Fillmore and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this January 7, 2014




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE




                                             –7–
