Affirmed and Opinion Filed April 11, 2014




                                            SIn The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01086-CR

                             DANIEL RUBIN HILLIN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                            Trial Court Cause No. F12-34374

                             MEMORANDUM OPINION
                          Before Justices Bridges, O'Neill, and Brown
                                  Opinion by Justice Bridges
       Appellant Daniel Rubin Hillin appeals from the trial court’s denial of his motion to

suppress. In a single issue, appellant argues the trial court abused its discretion in denying his

motion to suppress when officers did not have the right to be where they were at the time they

initiated a dog sniff of his vehicle, because his car was not parked in a public parking lot. Based

on appellant’s plea of guilty, the trial court found him guilty of unlawful possession of

methamphetamine in an amount greater than 4 grams but less than 200 grams and sentenced him

to ten years’ imprisonment. For the reasons stated in this opinion, we affirm the trial court’s

denial of appellant’s motion to suppress.
                                                            Background

          On June 13, 2012, Officer Jeff Allen observed a car parked in a car wash parking lot in

Irving, Texas. Allen approached the vehicle and its occupant, appellant. Allen then asked

appellant for permission to search the vehicle, which appellant granted. Allen searched the entire

vehicle, except under the hood.

          When Allen asked for permission to search under the hood, appellant denied permission.

Appellant then walked away and abandoned his vehicle in the parking lot. Allen thereafter

requested a K-9 dog sniff. The K-9 sniffed the exterior of the car’s front right wheel near the

hood of the vehicle and alerted.

          Allen concluded he had probable cause to search the vehicle and contacted the Narcotics

Division. Officer Andrew Bah of the Irving Police Department applied for the search warrant of

appellant’s vehicle. In his affidavit for search warrant, Bah indicated Allen (and the other officer

on the scene) knew appellant “to be a narcotics dealer and knew he had four narcotics related

charges on his criminal history.”1 In addition, appellant stated that, when Allen asked appellant

to open the hood of his vehicle, appellant “became agitated, withdrew his consent and then

locked up the vehicle and left the location on foot.”

          While awaiting the search warrant, Allen followed appellant’s car as it was towed to the

police station. The search warrant issued, and the search revealed the drugs that subsequently led

to appellant’s arrest and indictment in this case.

                                                               Analysis

          In a single issue, appellant argues the trial court abused its discretion in denying his

motion to suppress when officers did not have the right to be where they were at the time they


     1
       The record before us shows appellant received three separate convictions for possession of a controlled substance on May 25, 2007 and
received a two-year sentence in each case.



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initiated a dog sniff of his vehicle, because his car was not parked in a public parking lot. 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).

       We first note that a dog sniff is not a search, and it is generally accepted that a positive

alert by a certified drug dog is usually enough, by itself, to give officers probable cause to search.

State v. Weaver, 349 S.W.3d 521, 527-28 (Tex. Crim. App. 2011) (citing United States v.

Parada, 577 F.3d 1275, 1282 (10th Cir. 2009)). However, if the area of the search is not a

“public” area, officers conducting the dog sniff must obtain permission to be in that area. See

Weaver at 528. Appellant, therefore, argues that “because there is no evidence in the record that

it was a public parking lot, and the officers did not have consent to be standing beside the vehicle

in the parking lot, the officers were not entitled to be in the parking lot at the time they conducted

the dog sniff.”

       Because the trial court’s ruling must be upheld if it is correct under any theory of law that

finds support in the record, we turn to the record before us. See Gonzalez, 195 S.W.3d at 126.

At the hearing on the motion to suppress, Allen testified appellant’s car was “parked at the Joans

car wash on Shady Grove.” When defense counsel asked if it was parked in a “private” car wash

parking lot, Allen responded: “It was parked in a parking lot.” When defense counsel asked if,

when appellant left the scene, the car was parked on “private property,” Allen responded: “Well,

a public car wash.” Finally, when defense counsel asked if he was correct that the car was towed

                                                 –3–
from “private property” to the police impound in Irving, Allen responded: “It was towed because

the dog alerted.” Bah’s affidavit for search warrant simply lists the area at issue as a “parking

lot” without designating it as public or private. Therefore, there is no evidence on the record

before us that the parking lot was private property. We overrule appellant’s sole issue and affirm

the judgment of the trial court.2 See Weaver, 349 S.W.3d at 527-28; Gonzalez, 195 S.W.3d at

126.



Do Not Publish
TEX. R. APP. P. 47.2
131086F.U05                                                                /David L. Bridges/
                                                                           DAVID L. BRIDGES
                                                                           JUSTICE




           2
              Bah’s affidavit demonstrates the canine that conducted the sniff was certified by the National Narcotic Detector Dog Association in
compliance with Weaver. See State v. Weaver, 349 S.W.3d at 527-28 (noting a positive alert by a certified drug dog is usually enough, by itself,
to give officers probable cause to search).




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DANIEL RUBIN HILLIN, Appellant                     On Appeal from the Criminal District Court
                                                   No. 4, Dallas County, Texas
No. 05-13-01086-CR        V.                       Trial Court Cause No. F12-34374.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices O'Neill and Brown participating.

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


Judgment entered April 11, 2014




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE




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