                                    NUMBERS
                                  13-14-00183-CR
                                  13-14-00184-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JAMES THOMAS JONES II,                                                   Appellant,


                                          v.


THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 221st District Court
                       of Montgomery County, Texas.


                                    OPINION

            Before Justices Benavides, Perkes, and Longoria
                      Opinion by Justice Longoria

      By two issues, appellant, James Thomas Jones II, challenges his conviction for

possession with intent to deliver 2.62 pounds of cocaine and possession of 76 pounds of
marijuana. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(f); 481.121(b)(5) (West,

Westlaw through 2013 3d C.S.). We affirm.1

                                             I. BACKGROUND

        On April 29, 2013, a group of ten Texas Highway Patrol officers performed a drug

interdiction at a bus station located in front of a gas station on Frazier Street in Conroe,

Texas.      The officers were not in uniform but most wore body armor with markings

identifying them as police and displayed their badges on chains around their necks. Some

of the officers wore visible sidearms. Officer Brian Inhen (“Inhen”)2 was there with his

trained drug-detection dog, Femke. Inhen testified that his role in these types of

operations was to “run” Femke over the luggage that had already been loaded onto the

bus to see if Femke would alert to the presence of illegal narcotics. Inhen does not usually

run Femke on people because she bites, scratches, and attempts to jump when she

alerts. In contrast to the other officers present, Inhen was in full uniform with a sidearm

visible on his belt.

        Appellant was standing near the gas pumps with three new-looking suitcases.

Lieutenant Kyle Matheson (“Matheson”) approached appellant and “struck up a

conversation with him.” Matheson testified that he talked with appellant for “maybe a

minute” about his travel plans. Appellant told him that he was headed to Tyler, Texas,

and then onto Meridian, Mississippi.           Matheson discovered that the name on the bus

ticket did not match appellant’s name. Matheson identified himself as a police officer and



        1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant

to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2013 3d C.S.).
        2  Officer Inhen is referred to as “Ihnen” in the reporter’s record.   We will assume that is a
transcription error and use the spelling in the parties’ briefs.

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explained what the officers were doing. At this time, Inhen and Femke came around the

back of the bus from where Inhen had parked on the other side. Inhen stated that when

appellant saw Inhen and Femke, appellant “gave me like a blank stare” and then

immediately looked away. Inhen approached appellant and Matheson backed several

feet away.

       While Inhen approached, Femke began to alert on appellant by sniffing the air and

looking around. Inhen asked appellant for his identification as Femke became more

agitated. Inhen asked appellant if he had any illegal narcotics on his person. Appellant

denied that he was carrying any, but he agreed to Inhen’s next request to empty his

pockets. While appellant was in the process of emptying his pockets, Femke’s alert

strengthened, and she attempted to bite, scratch, and jump on appellant. Inhen noticed

a bulge in the watch pocket of appellant’s pants and thought that appellant was trying to

cover it. At this time, Inhen touched the bulge and “knew it was marijuana.” Inhen

removed the bulge from appellant’s pants pocket and discovered it to be a sealed bag

containing 6.5 grams of marijuana. Inhen told appellant to drop the bags he was carrying.

The officers searched the bags and recovered 76 pounds of marijuana and 2.62 pounds

of cocaine.

       Appellant made a motion to suppress on the grounds that the dog sniff was a

search under the Fourth Amendment and that it was not supported by reasonable

suspicion. He also asserted that he was detained without reasonable suspicion from the

onset of the encounter. The trial court judge denied the motion. Appellant unsuccessfully

reurged his motion before the jury during the trial.3 The jury returned a verdict of guilty


       3 Because the parties reurged the suppression issue before the jury, we take the foregoing facts
both from the evidence presented to the judge during the suppression hearing and the evidence presented

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on both counts. See id. The trial court judge assessed concurrent sentences of thirty-

five years’ imprisonment in the Texas Department of Criminal Justice—Institutional

Division.

                         II. STANDARD OF REVIEW FOR A MOTION TO SUPPRESS

        We review a trial court’s ruling on a motion to suppress 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. When, as here, the trial court does not issue findings of fact, we imply all necessary

findings in support of the trial court’s ruling if the evidence, viewed in the light most

favorable to the ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex.

Crim. App. 2006). However, we review de novo questions of law and mixed questions of

law and fact which do not rely on credibility determinations. Kerwick, 393 S.W.3d at 273.

We afford the party that prevailed in the trial court the strongest legitimate view of the

evidence and all reasonable inferences that may be drawn from it. Wade v. State, 422

S.W.3d 661, 666–67 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is

reasonably supported by the record and correct on any applicable theory of law.

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).

                         III. WAS THE DOG SNIFF AN UNREASONABLE SEARCH?

        By his first issue, appellant argues that Femke’s sniff of his person was a search

under the Fourth Amendment, and that the search was not supported by reasonable



to the jury during the trial on the merits. See Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012)
(observing that the court of appeals’ review of a trial court’s ruling on a motion to suppress is not limited to
the record before the court at the time of the suppression hearing when the issue is consensually reurged
in front of the jury).

                                                       4
suspicion.   Appellant’s issue actually presents two questions:       whether the sniff of

appellant’s person was a search governed by the Fourth Amendment and, if so, whether

the search was reasonable.

       We first address whether the dog sniff of appellant’s person was a search. A

“search” within the meaning of the Fourth Amendment occurs “when the government

violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo

v. United States, 533 U.S. 27, 33 (2001). If the defendant’s expectation of privacy was

not one society was prepared to recognize as legitimate, then the Fourth Amendment

provides no protection. In the words of the Texas Court of Criminal Appeals:

       a ‘legitimate’ expectation of privacy by definition means more than a
       subjective expectation of not being discovered. A burglar plying his trade
       in a summer cabin during the off season may have a thoroughly justified
       subjective expectation of privacy, but it is not one which the law recognizes
       as ‘legitimate.’

State v. Granville, 423 S.W.3d 399, 407 (Tex. Crim. App. 2014) (quoting Rakas v. Illinois,

439 U.S. 128, 143 n.12 (1978)). The United States Supreme Court has ruled that there

is no legitimate expectation of privacy in the possession of contraband such as illegal

narcotics. Illinois v. Caballes, 543 U.S. 405, 408 (2005) (citing United States v. Jacobsen,

466 U.S. 109, 123 (1984)). Therefore, “governmental conduct that only reveals the

possession of contraband compromises no legitimate privacy interest” and is not a

“search” for purposes of the Fourth Amendment. Id. (citing Jacobsen, 466 U.S. at 123);

see State v. Dobbs, 323 S.W.3d 184, 188 n.11 (Tex. Crim. App. 2010). Applying this

principle, the Caballes Court held that because a dog sniff could reveal only the presence

of contraband, and there is no legitimate privacy interest in the possession of contraband,

a sniff by a trained drug-detection dog of the exterior of a vehicle was “generally” not a



                                             5
Fourth Amendment search. Caballes, 543 U.S. at 409. In similar cases involving dog

sniffs of vehicles, the Texas Court of Criminal Appeals and the courts of appeals have

held that officers initiating a dog sniff must only “have the right to be where they are at

the time they initiate a dog sniff.” State v. Weaver, 349 S.W.3d 521, 529 (Tex. Crim. App.

2011); accord Branch v. State, 335 S.W.3d 893, 900 (Tex. App.—Austin 2011, pet. ref'd);

Johnson v. State, 323 S.W.3d 561, 564 (Tex. App.—Eastland 2010, pet. ref'd). Our

research has not revealed any Texas state cases evaluating the dog sniff of a person

outside of the context of a vehicle or a home,4 but the Fifth Circuit Court of Appeals has

twice addressed the issue. In Horton v. Goose Creek Independent School District, the

court held that intentional dog sniffs where the dogs’ noses touched the bodies of the

students was a “search” within the meaning of the Fourth Amendment. 690 F.2d 470,

479 (5th Cir. 1982). The Horton Court reasoned that “intentional close proximity sniffing

of the person” was a Fourth Amendment search, but reserved for another case the

question of whether “the use of dogs to sniff people in some other manner, e.g., at some

distance, is a search.” Id. The Fifth Circuit later held that a sniff by a narcotics-detection

dog “four to five feet away” from the defendant when the dog handler did not intend for




          4 The United States Supreme Court recently decided that police officers violated the Fourth

Amendment when they ran a drug dog in the area immediately surrounding the defendant’s house and the
dog alerted on the defendant’s front door. Florida v. Jardines, 133 S.Ct. 1409, 1413 (2013). However, the
holding in that case is based on the special protection the Fourth Amendment law affords to a person’s
home and the curtilage, the area immediately surrounding and associated with it. Id. at 1414. Because the
officers’ investigation took place in this protected area and they had no license to be there, the sniff was an
unreasonable search. Id. at 1415–16. The Court expressly based its holding on the defendant’s property
rights and stated that it was not considering whether the sniff violated the defendant’s legitimate
expectations of privacy. Id. at 1417. The Court distinguished Caballes, United States v. Place, 462 U.S.
696 (1983), and United States v. Jacobsen, 466 U.S. 109 (1984), as relying on the “reasonable expectations
of privacy” test that was not at issue in the case. Id. Accordingly, Jardines is not relevant to this case
because appellant was not on his property at the time. See id.

                                                      6
the dog to sniff the defendant was not a Fourth Amendment search. United States v.

Reyes, 349 F.3d 219, 224 (5th Cir. 2003).

       Appellant argues that this case is different from Reyes because Inhen intended for

Femke to sniff appellant, or at least Inhen knew that Femke sniffing appellant was a

natural consequence of walking over to him accompanied by Femke. By contrast, the

dog handler in Reyes was simply waiting for the passengers to exit the bus so that he

could run his dog through the passenger compartment. Id. at 223.

       Assuming for the sake of argument that Inhen intended for Femke to sniff

appellant, we have found no authority that the officer’s intention in performing an action

determines whether it is a search for purposes of the Fourth Amendment. A governmental

action is a “search” governed by the Fourth Amendment when it compromises a citizen’s

legitimate expectation of privacy. Caballes, 543 U.S. at 408; Kyllo, 533 U.S. at 33; Reyes,

349 F.3d at 223. And there is no legitimate privacy interest in possessing the contraband

that dogs such as Femke are trained to detect. Caballes, 543 U.S. at 408–09. Applying

this law to the present case, we find no reason to distinguish the drug-dog sniffs approved

in Caballes from the sniff of appellant. Similar to the vehicle sniffs approved in Caballes,

a non-contact sniff of a person by a trained drug-detection dog generally would reveal

only the presence of contraband and would not expose non-contraband items that would

otherwise be hidden from view. See Caballes, 543 U.S. at 409 (citing United States v.

Place, 462 U.S. 696, 707 (1983)); see also Weaver, 349 S.W.3d at 528. Appellant also

argues that he was only “an arm’s length” away from Femke as she was attempting to

bite, scratch, and jump on him. While Femke may have been closer to appellant than the

dog was to the defendant in Reyes, appellant does not argue that Femke ever touched



                                             7
him. All of the cases cited by the Fifth Circuit in Horton that found that a drug-dog sniff

was a search focused on the physical contact between the dogs and the persons being

sniffed, while the one case which found that it was not a search did not involve physical

contact. See Horton, 690 F.2d at 477–78; see also United States v. Kelly, 128 F.Supp.2d

1021, 1024–25 (S.D. Tex. 2001), aff'd, 302 F.3d 291 (5th Cir. 2002) (holding that a contact

dog sniff at the national border was a search for purposes of the Fourth Amendment).

Unlike the dog sniffs at issue in Horton, the non-contact sniff of appellant in this case was

“only minimally intrusive” because it did not involve physical contact. See Reyes, 349

F.3d at 224.

        In sum, because a non-contact dog sniff of a person will not reveal anything but

the presence of contraband, and there is no legitimate expectation of privacy in

concealing contraband, we hold that a non-contact sniff of a person in a public place by

a trained drug-detection dog is generally not a search for purposes of the Fourth

Amendment. See Caballes, 543 U.S. at 409. Because we have concluded that the drug

dog sniff of appellant was not a search within the meaning of the Fourth Amendment, we

do not need to consider whether it was reasonable. See TEX. R. APP. P. 47.1. We

overrule appellant’s first issue.5

                     IV. WAS APPELLANT DETAINED BEFORE THE DOG ALERTED?

        By his second issue, appellant argues that Matheson and Inhen illegally detained

him before Femke alerted to the presence of narcotics. We disagree.




        5 We emphasize that our holding is limited to the operative facts of this case: a non-contact sniff by
a trained drug dog in a public place. We leave for a different case the question whether a contact dog sniff
such as the one in Horton is a search.

                                                      8
      A. Applicable Law

      Texas courts have divided police-citizen interactions into three distinct types:

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 and therefore does not require

reasonable suspicion. 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 Fourth Amendment seizure that

must be supported by reasonable suspicion. Johnson, 414 S.W.3d at 191; State v.

Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011) (internal footnotes omitted).

      Whether a person was “detained” within the meaning of the Fourth Amendment is

a mixed question that we review de novo. Vargas v. State, 18 S.W.3d 247, 251 (Tex.

App.—Waco 2000, pet. ref’d). A consensual encounter becomes a detention when an

officer “by means of physical force or show of authority, has in some way restrained the

liberty of a citizen.” State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008).

There is no bright-line rule to guide courts in determining when a consensual encounter

becomes a detention. Wade, 422 S.W.3d at 667. Instead, courts look at the totality of

the circumstances and determine whether a reasonable person would have felt free to

ignore the police officer’s request or terminate the encounter. Id. We take into account

factors such as the time, place, and other circumstances surrounding the interaction, but

the most important factor is the conduct of the officers. Castleberry, 332 S.W.3d at 467.

“At bottom the issue is whether the surroundings and the words or actions of the officer




                                           9
and his associates communicate the message of ‘We Who Must Be Obeyed.’” Garcia-

Cantu, 253 S.W.3d at 243.

        B. Discussion

        Appellant argues that he was unlawfully detained by Matheson and Inhen before

Femke alerted.6 Appellant points us to Hunter v. State, where the Texas Court of Criminal

Appeals held that a defendant was not detained when two officers dressed in plain clothes

and wearing concealed sidearms approached him to ask about his travel plans. 955

S.W.2d 102, 103 (Tex. Crim. App. 1997) (en banc). The first officer asked to see the

defendant’s bus ticket, returned it, and then asked to see the defendant’s identification.

Id. After the defendant replied that he did not have any identification, the officer asked if

he was carrying any narcotics. Id. The defendant denied that he was carrying illegal

drugs but agreed to permit the officer to search his luggage. Id. The officer specifically

told the defendant that he was not required to permit the search. Id. Only one of the

officers ever engaged with the defendant at any time, while the other stood eight to ten

feet away. Id. The Court relied on several factors in concluding that the defendant would

have felt free to decline the officer’s requests and walk away: (1) the officers were in plain

clothes and their weapons were not visible; (2) only one officer actually engaged with the

defendant; (3) the officer returned the defendant’s bus ticket; and (4) the officer

specifically told the defendant that he was not required to permit the officer to look into

his bag. Id. at 104. Appellant contrasts the facts of Hunter with the facts of this case:

most of the officers wore vests or badges identifying themselves as police officers, Inhen




        6Appellant does not contest that Femke’s alert gave the officers probable cause to detain him and
to search his person.

                                                   10
was in full uniform with a visible sidearm, and Femke was attempting to bite, scratch, and

leap onto appellant. Moreover, Inhen never returned appellant’s identification.

       Appellant’s attempts to distinguish Hunter are not persuasive. There were more

officers present at the bus station than the two officers in Hunter, but there is no evidence

that any officer except for Matheson and Inhen interacted with appellant or focused on

him. Matheson testified that the other officers were either talking with other passengers

and the bus driver, or watching the bus stop in general. Like the officer who began the

encounter in Hunter, Matheson questioned appellant and asked to see his ticket, but he

returned it to appellant. It is undisputed that Matheson did not touch appellant or block

any available exit. Like the first officer in Hunter, Matheson backed away several feet

once Inhen approached. Unlike in Hunter, Matheson and the other officers present wore

clothing or badges identifying themselves as police officers, and Inhen was in full police

uniform with a holstered sidearm. However, the mere fact that the officer questioning

appellant was in uniform and displaying a sidearm is not sufficient in these circumstances

to transform this interaction into a detention. See United States v. Drayton, 536 U.S. 194,

204–05 (2002) (holding that the “presence of a holstered firearm thus is unlikely to

contribute to the coerciveness of the encounter absent active brandishing of the

weapon”); accord Saldivar v. State, 209 S.W.3d 275, 284 (Tex. App.—Fort Worth 2006,

no pet.) (“Police uniforms and obvious sidearms, by themselves, are not necessarily

intimidating.”). Matheson asked appellant whether he was carrying narcotics, but neither

officer told him that they suspected him of carrying illegal drugs. See Hunter, 955 S.W.2d

at 104 (holding that the fact that the officers asked the defendant if he was smuggling

drugs but did not tell him that they suspected him of it was an indication of a consensual



                                             11
encounter). Unlike in Hunter, Inhen did not return appellant’s identification, but Femke

alerted to appellant almost immediately as Inhen approached. The trial court judge

observed that the entire exchange between Inhen and appellant “took seconds.” Once

Femke alerted on appellant, Inhen had reasonable suspicion to detain appellant to

perform a search of his person. See Matthews v. State, 431 S.W.3d 596, 603–04 (Tex.

Crim. App. 2014) (“If the dog alerts, the presence of the drugs is confirmed, and police

may make a warrantless search.”); accord Ivie v. State, 407 S.W.3d 305, 311 (Tex. App.—

Eastland 2013, pet. ref’d). Inhen simply did not have time to return the license before he

obtained reasonable suspicion to detain appellant. In sum, we conclude that the two

officers had not detained appellant until the time Femke alerted on appellant. We overrule

appellant’s second issue.

                                       V. CONCLUSION

       We affirm the judgment of the trial court.



                                                    NORA L. LONGORIA
                                                    Justice

Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
19th day of February, 2015.




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