                                     NUMBER

                                 13-14-00413-CR

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                      Appellant,


                                          v.


MARON SMITH,                                                             Appellee.


              On appeal from the County Court at Law No. 1
                       of Victoria County, Texas.


                       MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
             Memorandum Opinion by Justice Longoria

      The State brings this accelerated interlocutory appeal of the trial court’s order

granting appellee Maron Smith’s (“Maron”) motion to suppress marijuana found during a
search of his vehicle. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw

through 2013 3d C.S.) (permitting the State to appeal a pretrial order granting a motion

to suppress). We affirm.

                                               I. BACKGROUND1

        On the night of February 4, 2014, Officer Jason Stover of the Victoria Police

Department was patrolling the Queen City neighborhood of Victoria in a marked police

unit. At approximately 9:00 p.m., Officer Stover observed an unfamiliar car parked in a

parking lot shared between a duplex residence located at 2300 North Louis and several

businesses. Officer Stover knew from past experience that one of the residents of the

duplex was Karon Smith (“Karon”), who had been present when the police recovered a

“substantial amount of marijuana” from a vehicle.

        Officer Stover described the duplex as a “known drug location” because he had

made “four or five” traffic stops of vehicles coming from that location in the two and a half

months prior to arresting Maron. Officer Stover began all of the previous stops because

he observed traffic violations. His subsequent searches of those vehicles yielded either

marijuana or synthetic marijuana. Officer Stover had observed each of the cars from the

previous stops parked in the same area of the parking lot.

        On the occasion in question, Officer Stover reasoned that the driver of the parked

car was visiting one of the residents of the duplex because most of the businesses that

shared the parking lot were closed at the time and because there were no other cars


        1 Maron opted not to file a brief to assist us in the disposition of this appeal. In a criminal case, we
treat the appellee’s failure to file a brief as a confession of error. State v. Fielder, 376 S.W.3d 784, 785
(Tex. App.—Waco 2011, no pet.). The confession is not conclusive, and we must make an independent
examination of the merits of the claim of error. Id.; Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—
Corpus Christi 2002, no pet.). Our examination is necessarily limited to the arguments advanced in the trial
court because we may not advance arguments on behalf of the parties. See Fielder, 376 S.W.3d at 785;
Siverand, 89 S.W.3d at 220.

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parked in that area of the lot. Officer Stover did not actually witness Maron enter or leave

the duplex because the reverse lights on Maron’s vehicle activated almost immediately

after Officer Stover noticed it. Officer Stover drove farther down the street, turned around,

and followed the vehicle. Less than a minute later, Maron began to pull over to the side

of the road. Officer Stover did not activate his emergency lights or siren, but he did shine

his spotlight onto the front driver’s side of Maron’s car while Maron was in the process of

pulling over.

       Officer Stover approached the car, and Maron rolled down the window. Officer

Stover asked to see Maron’s identification and asked Maron if he knew why Officer Stover

was making contact with him. Maron replied that he was returning from visiting Karon,

his brother, and that he did not know why Officer Stover wanted to speak with him. Officer

Stover ran a check on Maron’s license and discovered no outstanding warrants. He then

requested that Maron consent to a search of the car. Maron consented, and Officer

Stover directed him to exit the vehicle and wait behind it. Maron complied, and Officer

Stover’s search revealed a small amount of marijuana on the floorboards of the car.

Officer Stover placed Maron under arrest.

       The State charged Maron with possession of less than two ounces of marijuana,

a Class B misdemeanor. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (West,

Westlaw through 2013 3d C.S.). Maron’s trial counsel filed a general motion to suppress

alleging that Officer Stover’s actions violated Maron’s rights under the Fourth, Fifth, Sixth,

and Fourteenth Amendments to the United States Constitution, Article I, Section 9 of the

Texas Constitution, and his statutory rights under article 38.23 of the code of criminal

procedure. Officer Stover was the only witness to testify at the suppression hearing.



                                              3
Maron’s counsel cross-examined Officer Stover but called no witnesses on Maron’s

behalf. The trial judge took the matter under advisement and later granted the motion to

suppress by written order. At the State’s request, the trial judge filed the following findings

of fact and conclusions of law:

                                         Findings of Fact

       1. [On] February 4, 2014 at around 9:00p.m. Victoria Police Officer Jason
          Stover (hereinafter Officer Stover) stopped a tan 1986 Oldsmobile
          bearing TXLP#829-SXK at 1000 E. Lorna Vista.

       2. Officer Stover was conducting “rolling surveillance” in the area in a
          marked Victoria Police Department vehicle.

       3. Officer Stover observed the 1986 Oldsmobile leave 2300 N. Louis.

       4. Officer Stover followed the 1986 Oldsmobile to 1000 E. Lorna Vista
          where the Defendant pulled over in front of his house.

       5. Officer Stover claim[s] that he had reasonable suspicion to detain the
          Defendant for illegal drug possession based on his training and
          experience and four or five prior stops of vehicles leaving the alleged
          drug house in the preceding two months.

          a. Officer Stover could only specifically remember one of those stops
             which did not result in illegal drug possession.
          b. Officer Stover did not observe the Defendant commit any traffic
             violations.

          c. Officer Stover did not observe the Defendant walk to or from 2300
             N. Louis.

          d. Officer Stover did not know how long the 1986 Oldsmobile had been
             parked at the location.

          e. Officer Stover did not know the address or owner of the house.

                                       Conclusions of Law

       1. "Reasonable suspicion" for a lawful temporary detention exists if the
          officer has specific, articulable facts that, when combined with rational
          inferences from those facts, would lead him to reasonably conclude that
          a particular person actually is, has been, or soon will be engaged in
          criminal activity. U.S.C.A. Const. Amend. 4.

                                              4
        2. An officer conducts a lawful temporary detention when he has reasonable
           suspicion to believe that an individual is violating the law. Balentine v.
           State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).

        3. A reasonable-suspicion determination is made by considering the totality
           of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.
           App. 2001).

        4. Mere opinions are ineffective substitutes for specific, articulable facts in
           a reasonable-suspicion analysis. Ford v. State, 158 S.W.3d 488, 493
           (Tex. Crim. App. 2005).

        5. Mere presence in a high-crime area cannot serve as the sole basis for a
           Terry stop. Gurrola v. State, 877 S.W.2d 300 ([Tex. Crim. App.]1994).

        6. Officer Stover did not have reasonable suspicion to stop the vehicle,
           therefore his search of the vehicle violated the Fourth Amendment of the
           U.S. Constitution and Article 1, Section 9 of the Texas Constitution.

        7. In accordance with Article 38.23 of the Texas Code of Criminal
           Procedure, the evidence of Marijuana is inadmissible.

        The State appealed, and raised two issues: (1) Officer Stover had reasonable

suspicion to temporarily detain Maron; and (2) Maron consented to the search of his

vehicle.2

                        II. STANDARD OF REVIEW AND APPLICABLE LAW

        We review a trial court’s ruling on a motion to suppress for abuse of discretion

using a bifurcated standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim.

App. 2013). We give almost total deference to the trial judge’s determination of historical

facts and of mixed questions of law and fact that rely on credibility determinations if they

are supported by the record. Id. We afford the prevailing party the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn from it. Wade v.


        2The State listed its discussion of the standard of review as its first issue. As we discuss further
below, we agree that the proper standard of review regarding whether the detention was supported by
reasonable suspicion is de novo.

                                                     5
State, 422 S.W.3d 661, 666–67 (Tex. Crim. App. 2013). We review de novo the trial

court’s application of law to a particular set of facts. Id. at 667. We will uphold the trial

judge’s ruling if it is correct on any theory of law reasonably supported by the record. Id.

The defendant bears the initial burden of producing evidence to rebut the presumption of

proper police conduct. Ford, 158 S.W.3d at 492. The defendant satisfies this burden by

showing that the search or seizure occurred without a warrant, shifting the burden to the

State to show either the existence of a warrant or that the search or seizure was

reasonable. Id.

       Texas courts recognize three distinct categories of police-citizen interactions:

consensual encounters; investigative detentions; and arrests. Johnson v. State, 414

S.W.3d 184, 191 (Tex. Crim. App. 2013). A consensual encounter between police and a

citizen does not implicate Fourth Amendment protections. Id.; see Florida v. Bostick, 501

U.S. 429, 434 (1991) (observing that “a seizure does not occur simply because a police

officer approaches an individual and asks a few questions”). However, a detention is a

seizure under the Fourth Amendment and must be supported by reasonable suspicion.

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).             Reasonable

suspicion existed if the officer possessed “specific, articulable facts that, combined with

rational inferences from those facts, would lead him reasonably to conclude that the

person detained is, has been, or soon will be engaged in criminal activity.” Id. The facts

in the officer’s possession must add up to more than a mere inarticulate hunch, suspicion,

or good-faith belief of criminal activity. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App.

2010). This is an objective standard that looks to the totality of the circumstances and

disregards the subjective intent of the detaining officer. Wade, 422 S.W.3d at 668.



                                             6
                   III. WAS THE SEIZURE SUPPORTED BY REASONABLE SUSPICION?

        The State stipulated that Maron was not detained pursuant to a warrant, shifting

the burden to the State to show reasonable suspicion. See Ford, 158 S.W.3d at 492.

The State argued that reasonable suspicion arose from the totality of the following

circumstances: (1) in the past two and a half months, Officer Stover had personally

performed four to five traffic stops of vehicles coming from the duplex, all of which yielded

marijuana; (2) Officer Stover observed that Maron’s car was parked in the same general

area of the parking lot as the cars in the previous stops; (3) Officer Stover knew that one

of the residents of the duplex was Karon, who had been present at the scene of an earlier

raid when police seized a “substantial amount” of marijuana; (4) Maron was nervous

enough at the sight of the police vehicle to pull over to the side of the road even though

Officer Stover did not activate his emergency lights or siren; and (5) Maron appeared

nervous during the initial interaction.

        Based on the totality of the objective circumstances available to the officer at the

time, we conclude that the trial court did not abuse its discretion by granting Maron’s

motion to suppress because he had no reasonable suspicion to detain Maron. 3 While

having performed “four or five” traffic stops of vehicles coming from a particular location

that yielded marijuana may be enough to support a surmise or “mere suspicion” that the

driver of a vehicle coming from the same location is carrying drugs, Officer Stover did not

testify that he observed any activity that would allow him to infer that the driver of Maron’s


        3 The State takes issue with the trial court’s finding that Officer Stover “stop[ped] the vehicle” but
does not contest that the Officer Stover detained Maron once they began speaking. We agree that Officer
Stover made no showing of authority to require Maron to stop, but this does not affect our analysis because
both parties agree that Officer Stover nevertheless seized Maron before Maron gave consent to the search.
See Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013) (reiterating the rule that appellate courts
must uphold the trial court’s ruling on a motion to suppress if it is correct on any theory of law applicable to
the case).

                                                       7
vehicle was involved in any illicit activity. Officer Stover observed Maron’s vehicle parked

near Karon’s residence and observed that the vehicle was unfamiliar from his patrols of

the area, but these are not facts giving rise to reasonable suspicion of illegal activity.

Officer Stover did not know the length of time that Maron had been inside the duplex,

which resident of the duplex he was visiting, or how long Maron had been at that location.

Cf. Jenkins v. State, No. 05-05-00608-CR, 2006 WL 234389, at *3 (Tex. App.—Dallas

Feb. 1, 2006, no pet.) (mem. op., not designated for publication) (holding that police had

reasonable suspicion to stop the defendant when, in the thirty minutes before the stop of

the defendant, they observed approximately twenty other people drive up the apartment,

make contact with a person and be directed by that person to a particular apartment,

remain there for less than five minutes, and then leave, and appellant followed the same

pattern). The State also argues that Maron was nervous enough to pull over to the side

of the road without a signal from Officer Stover and that he appeared nervous during

Officer Stover’s initial questions. The Texas Court of Criminal Appeals has held that

“nervous or evasive behavior is a relevant factor” in establishing reasonable suspicion,

but that nervousness “is not particularly probative.” Wade, 422 S.W.3d at 671. In these

circumstances, especially with the lack of any other immediate information from which he

could infer that Maron was involved in criminal activity, the trial court could have fairly

concluded that Maron’s behavior, combined with the remainder of the objective

circumstances, were not sufficient to raise reasonable suspicion. See id.

       In sum, we conclude that the foregoing facts do not amount to more than a surmise

or suspicion that Maron was carrying illegal drugs. See Crain, 315 S.W.3d at 52. We




                                             8
hold that the trial court did not abuse its discretion by granting Maron’s motion to suppress

on this ground. The State’s first issue is overruled.

                           IV. WAS MARON’S CONSENT TO SEARCH VALID?

        The State asserts by its second issue that Maron voluntarily consented to the

search of his car.4

        A. Applicable Law

        Voluntary consent to search operates as one of the few exceptions to the

constitutional rule that a warrantless search is per se unreasonable. Meekins v. State,

340 S.W.3d 454, 458 (Tex. Crim. App. 2011). Both the United States Supreme Court and

the Texas Court of Criminal Appeals have reiterated that consent must be voluntary and

may “not be coerced, by explicit or implicit means, by implied threat or covert force.” Id.

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). The validity of consent

is a question of fact. Id. The State bears the burden to prove by clear and convincing

evidence that the police did not obtain the consent through duress or coercion. Monge v.

State, 315 S.W.3d 35, 40 (Tex. Crim. App. 2010).

        The “fruit of the poisonous tree” doctrine generally precludes the use of evidence

obtained directly or indirectly from an illegal seizure. See Wong Sun v. United States,

371 U.S. 471, 484 (1963); Monge, 315 S.W.3d at 40. Evidence that is sufficiently

attenuated from the unlawful seizure is admissible because it is not considered to have

been obtained through the seizure. Monge, 315 S.W.3d at 40. Consent following an

illegal seizure may dissipate the taint of the illegality if (1) the consent was given


         4 The State argued several times to the trial court judge that Maron’s consent was free and

voluntary, but did not phrase its argument in the language of “attenuation of taint” or address the relevant
factors. See Pineda v. State, 444 S.W.3d 136, 144 (Tex. App.—San Antonio 2014, pet. ref’d). We assume
without deciding that the State properly preserved this issue in the trial court.

                                                     9
voluntarily and (2) the consent was an independent act of free will. Pineda v. State, 444

S.W.3d 136, 144 (Tex. App.—San Antonio 2014, pet. ref’d); Wolf v. State, 137 S.W.3d

797, 805 (Tex. App.—Waco 2004, no pet.). The State bears the burden to show that the

evidence is sufficiently attenuated from the unlawful seizure.

       B. Discussion

       We address the second prong first because it is dispositive. To determine whether

Maron’s consent was an independent act of free will, we consider three factors: (1) the

temporal proximity of the illegal seizure and the consent; (2) the presence of other

intervening circumstances attenuating the taint of the illegality; and (3) the purpose and

flagrancy of the initial misconduct. Pineda, 444 S.W.3d at 144. The Texas Court of

Criminal Appeals has explained that:

       When police find and seize physical evidence shortly after an illegal stop, in
       the absence of the discovery of an outstanding arrest warrant in between,
       that physical evidence should ordinarily be suppressed, even if the police
       misconduct is not highly purposeful or flagrantly abusive of Fourth
       Amendment rights. Under this scenario, temporal proximity is the
       paramount factor.

State v. Mazuca, 375 S.W.3d 294, 306 (Tex. Crim. App. 2012).

       The first factor weighs in Maron’s favor because he gave consent shortly after the

illegal seizure; Maron’s verbal consent is audible at approximately three and a half

minutes into the dashcam recording. See United States v. Portillo-Aguirre, 311 F.3d 647,

659 (5th Cir. 2002) (weighing the first factor in the defendant’s favor because the consent

came less than five minutes from the beginning of the illegally-prolonged seizure); Wolf,

137 S.W.3d at 805 (weighing the first factor in the defendant’s favor because a similar

amount of time had elapsed). The second factor also weighs in Maron’s favor because

there are no intervening circumstances that lessened the taint of the unlawful seizure and

                                            10
no indication that Maron felt free to leave. See Pineda, 44 S.W.3d at 144. The third factor

weighs against Maron because there is nothing to indicate that the seizure, although

illegal, was flagrant police misconduct. Based on the short amount of time that elapsed

between the beginning of the seizure and Maron’s consent, we conclude that Maron’s

consent was not sufficient to attenuate the taint of the illegal seizure. See Mazuca, 375

S.W.3d at 306. The trial court did not err in granting Maron’s motion to suppress on this

ground. We overrule appellant’s second issue.

                                        V. CONCLUSION

       We affirm the order of the trial court.




                                                  NORA L. LONGORIA
                                                  Justice

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

Delivered and filed the
26th day of March, 2015.




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