
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-02-00419-CR


William Douglas Ellard II, Appellant

v.

The State of Texas, Appellee






FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY,
NO. 01-5510-2, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	William Douglas Ellard II was charged with possessing a usable quantity of
marihuana weighing two ounces or less.  See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1)
(West Supp. 2003).  After his motion to suppress evidence was denied, Ellard entered a plea of no
contest, reserving his right to appeal the court's ruling on the motion to suppress.  The trial court
found Ellard guilty and assessed punishment at imprisonment for 180 days and a $2,000 fine.  The
sentence was probated for twenty-one months, as was $1,000 of the fine, with three days
confinement as a condition of probation.  In three issues, Ellard contests the validity of the roadside
search of his person.
BACKGROUND	Kelsey Rich was pulled over by a Williamson County deputy sheriff in October 2001
after committing a minor traffic violation.  Appellant William Ellard was a passenger in the car.  The
deputy, Officer Vivas, was operating alone that evening.
	When Officer Vivas approached Rich, he noticed that one of her hands was visibly
shaking on the steering wheel.  Alerted by her unusual nervousness, Officer Vivas asked Rich to step
out of the vehicle.  While they stood behind her car, Officer Vivas asked her questions and learned
from Rich that there "might be" marihuana in the car.  Officer Vivas asked whether Ellard smoked
marihuana; Rich replied that he did.  Rich also told Officer Vivas that Ellard was "probably" in
possession of marihuana.  Rich consented to a search of the vehicle, at which point Officer Vivas
asked Ellard to step out of the car.  The car search did not uncover any contraband, but Officer Vivas
smelled marihuana on Ellard, a smell Ellard attributed to being around friends who were smoking
earlier that night.  Without Ellard's consent, Officer Vivas then conducted a pat-down search of
Ellard and felt a "lump" above Ellard's crotch.  He asked Ellard to show his waistband and
discovered a small bag of marihuana.  Ellard was then arrested.

DISCUSSION
	Ellard argues that the court's denial of his motion to suppress was an abuse of
discretion.  He contends that the search of his person violated his right to be free from unreasonable
search and seizure under the U.S. Constitution.  See U.S. Const. amend. IV.  He also claims that the
search was a violation of his rights under Article I, Section Nine of the Texas Constitution.  See Tex.
Const. art. I, § 9.  Since Ellard does not provide any substantive analysis or argument showing how
the protection offered by the Texas Constitution differs from that provided by the U.S. Constitution,
we only review his federal constitutional claim.  See Norris v. State, 902 S.W.2d 428, 446 n.22 (Tex.
Crim. App. 1995); Morehead v. State, 807 S.W.2d 577, 579 n.1 (Tex. Crim. App. 1991).  Evidence
obtained in violation of constitutional rights is not admissible against the accused.  See Tex. Code
Crim. Proc. Ann. art. 38.23(a) (West Supp. 2003).  Ellard claims that the search violated the
constitution because Officer Vivas lacked probable cause to search him for drugs and was not
justified in searching him for weapons under the Terry v. Ohio exception to the probable-cause
requirement.  See 392 U.S. 1 (1968).  For reasons explained below, we hold that the officer's search
did not violate Ellard's constitutional rights.
	The ruling on a motion to suppress evidence presents a mixed question of law and
fact.  As a general rule, we defer to the trial court's determination of the historical facts, as supported
by the record, especially when the trial court's factual findings are based on an evaluation of
credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  At a
suppression-of-evidence hearing, the judge is the exclusive trier of fact and evaluator of the
credibility and weight of the evidence.  An appellate court must therefore view the record and draw
all reasonable factual inferences in a light that is most favorable to the judge's ruling.  Villarreal v.
State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  We also defer to the trial court's application
of the law to fact issues if the resolution of those issues is tied to an evaluation of credibility and
demeanor.  Guzman, 955 S.W.2d at 89.  However, when the resolution of a mixed question of law
and fact does not involve an evaluation of credibility and demeanor, we review the issue de novo.
Id.  
	A warrantless search violates the constitutional protection against unreasonable
searches unless there is probable cause to conduct the search and obtaining a warrant at the time is
impracticable.  Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983); Barber v. State,
611 S.W.2d 67, 69 (Tex. Crim. App. [Panel Op.] 1981).  Ellard does not dispute the impracticability
of obtaining a warrant in this case.  He only argues that Officer Vivas lacked probable cause.  
	The standard for probable cause is no less stringent in a warrantless search than that
required to be shown to support the issuance of a search warrant.  Washington, 660 S.W.2d at 535. 
Probable cause to search exists when reasonably trustworthy facts and circumstances within the
knowledge of the officer on the scene would lead a person of reasonable prudence to believe that the
instrumentality of a crime or evidence pertaining to a crime will be found.  McNairy v. State, 835
S.W.2d 101, 106 (Tex. Crim. App. 1991). 
	The odor of marihuana generally provides probable cause to search for evidence of
criminal activity.  See Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); Small v. State,
977 S.W.2d 771, 774 (Tex. App.--Fort Worth 1998, no pet.); cf. Isam v. State, 582 S.W.2d 441, 444
(Tex. Crim. App. [Panel Op.] 1979).  In cases with similar facts to those in this case, other courts
of appeal have upheld findings of probable cause.  In Small v. State, after seeing "rolling papers" on 
a car dashboard, an arresting officer was found to have probable cause to search a passenger who
smelled of marihuana and made "furtive movements" as the officer approached the car.  Small, 977
S.W.2d at 774; see also Cooper v. State, 629 S.W.2d 69, 71 (Tex. App.--Dallas 1982), rev'd on
other grounds, 648 S.W.2d 315 (smell of marihuana gave officer probable cause to search for drug).
	In the present case, Officer Vivas's observation of Rich's nervous behavior was his
first signal of suspicious activity.  He then learned from her that Ellard was "probably" in possession
of marihuana. (1)  When he asked Ellard to step out of the car, he smelled a strong odor of marihuana. 
These circumstances would warrant a reasonable and prudent officer to believe that Ellard had
committed or was committing a crime, namely possession of marihuana.  See, e.g., Small, 977
S.W.2d at 775.  We are satisfied that Officer Vivas had probable cause to search Ellard. (2)
	Because we hold that Officer Vivas had probable cause to search Ellard for drugs, we
need not address the question of whether he was justified in searching Ellard for weapons under the
Terry v. Ohio exception to the probable-cause requirement.  

CONCLUSION
	The trial court did not err in failing to suppress the marihuana evidence.  Based on
the facts and circumstances at the time, the arresting officer had probable cause to search Ellard for
drugs.  The trial-court judgment is affirmed.


 __________________________________________
					Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed:   May 8, 2003
Do Not Publish
1. 	Ellard claims that the officer had no right to rely on Rich's statement because her veracity
was not verified, citing Adair v. State, 482 S.W.2d 247 (Tex. Crim. App. 1972).  Adair is not on
point.  It concerns the narrow question of what extra information a magistrate must have to issue a
search warrant that is otherwise based entirely on an affidavit reciting information received from 
an informer.  Id. at 249.  We are not concerned here with the question of whether a police officer's
hearsay statements concerning what an informer told him would alone create probable cause; instead
we must determine whether Officer Vivas's partial reliance on Rich's statement was reasonable and
appropriate in the circumstances of this case.  Given the totality of the circumstances, it
unquestionably was. 
2. 	Officer Vivas testified that he was actually searching for weapons and did not himself
believe that he had probable cause to search Ellard for drugs.  However, a police officer's subjective
motive will never invalidate objectively justifiable behavior under the Fourth Amendment.  Walter
v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).  Subjective intentions play no role in an
ordinary, probable-cause Fourth Amendment analysis.  Id. 
