Reverse and Remand and Opinion Filed February 24, 2020




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-18-01457-CR
                                      No. 05-18-01458-CR
                                      No. 05-18-01459-CR
                           THE STATE OF TEXAS, Appellant
                                       V.
                        CHRISTIAN SORTOVILLATORO, Appellee

                     On Appeal from the 194th Judicial District Court
                                  Dallas County, Texas
            Trial Court Cause Nos. F17-57360-M, F17-57361-M & F17-57362-M

                             MEMORANDUM OPINION
                          Before Justices Molberg, Reichek, and Evans
                                  Opinion by Justice Molberg


       During a traffic stop in August 2017, officers seized items from a vehicle driven by appellee

Christian Sortovillatoro. The State charged Sortovillatoro with knowingly possessing with intent

to deliver certain controlled substances in violation of Texas Health & Safety Code § 481.112(c)

and (d) (specifically, cocaine under subsection (c) and both heroin and methamphetamine under

subsection (d)). Sortovillatoro filed a motion to suppress the evidence obtained in the stop. The

trial court granted the motion. The State appeals.

       We reverse for the reasons that follow.
                                  STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review, where fact findings are reviewed for abuse of discretion and applications of law are

reviewed de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019) (citing Turrubiate

v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). We will sustain a trial court’s application

of the law if it is correct on any applicable theory and is reasonably supported by the record. Id.

(citing Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex. Crim. App. 2010)).

       When supported by the record, we give near total deference to the trial court’s

determinations of historical fact and to mixed questions of law and fact that turn on witness

credibility. See State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).

       We review de novo questions of law and other applications of law to fact, id., including

whether the facts add up to reasonable suspicion or probable cause in any given case. Lerma v.

State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); State v. Ford, 537 S.W.3d 19, 23 (Tex. Crim.

App. 2017).

                                        BACKGROUND

       The trial court made the following findings of fact, to which we defer when supported by

the record:

       1.      Dallas Police Officer Landan Cooksey was a member of the uniformed
       squad for narcotics and while on patrol was asked by another DPD officer to
       conduct a traffic stop of a white Nissan sedan. The reason for the stop was solely
       to identify an individual and according to Cooksey’s testimony neither reasonable
       suspicion nor probable cause existed for the stop of the vehicle. Additionally, no
       other description of the vehicle was provided to Cooksey.

       2.      Cooksey positioned his patrol car on a side street in a residential
       neighborhood adjacent to Edgefield in order to observe the traffic without being
       seen. After observing a white Nissan sedan, Cooksey got behind the defendant’s
       vehicle and ran a license check of the vehicle on NCIC. After receiving information
       that the license plate was expired, Cooksey initiated a traffic stop.



                                               –2–
         3.      When he approached the vehicle, Cooksey detected the order [sic] of
         marijuana coming from the vehicle. Cooksey also observed razor blades with a
         black like substance[1] he believed to be drug paraphernalia.

         4.      The driver of the vehicle, Sortovillatoro, did not have any identification but
         gave Cooksey his name and informed Cooksey that he had a firearm in the vehicle.
         At this time, Cooksey noticed the registration sticker on the vehicle indicated that
         the registration of the vehicle was actually current.

         5.     For his protection, Cooksey had Sortovillatoro removed from the vehicle
         and handcuffed him. Cooksey then observed a silver canister in between the seat
         and the area where the door would be that appeared to be looked like [sic] a
         marijuana grinder. The vehicle was then searched.

The trial court also issued the following conclusions of law:

                 Law enforcement officers may stop and briefly detain persons of suspected
         criminal activity on less information that [sic] probable cause to arrest. Flores v.
         State, 895 S.W.2d 435, 440 (Tex. App.—San Antonio 1995, no pet.) (citing Terry
         v. Ohio, 392 U.S. 1 (1968)). An officer may stop a vehicle for investigative
         purposes when they have specific articulable facts which considering the officer’s
         experience and inferences from those facts would reasonably warrant an intrusion
         on the freedom of the citizen. Terry, 392 U.S. at 21.

                 By his own testimony, Officer Cooksey lacked reasonable suspicion to
         focus on the vehicle Sortovillatoro was driving. But for the request of a fellow
         officer (which was also void of reasonable suspicion), Cooksey had no reason to
         focus on Sortovillatoro’s vehicle. Moreover, although Cooksey testified that he
         observed the canister in the vehicle, there was no testimony with respect to the
         contents of the canister.

                The Court finds that there existed no reasonable suspicion to warrant Officer
         Cooksey initiating contact with the vehicle driven by the defendant; the defendant’s
         motion to suppress is GRANTED.

         Generally speaking, the trial court’s findings of fact are supported by the record; however,

its first finding is inconsistent with Officer Cooksey’s actual testimony in stating that “according

to Cooksey’s testimony neither reasonable suspicion nor probable cause existed for the stop of the

vehicle.” In fact, Officer Cooksey testified as follows:




    1
       The trial court used the phrase “black like substance” but the record reflects the officer testified it was a black-
tar-like substance.
                                                           –3–
       Q And what, if anything, were you doing that morning?

       A That morning I was asked to help conduct a traffic stop to identify an individual.

       Q And you were asked this by other DPD officers?

       A Correct.

       Q And as far as you understood, the point of your contact was solely to make an
         identification?

       A Yes.

       Q Did you receive reasonable suspicion or probable cause from those officers at
         that time?

       A No, I did not.

       Q Therefore, you were tasked with locating, if you could, your own reason to
         make contact with this vehicle?

       A Correct.

       The trial court’s statement in its first finding of fact, that “according to Cooksey’s

testimony neither reasonable suspicion nor probable cause existed for the stop of the vehicle,” is

consistent with Officer Cooksey’s testimony that he did not receive reasonable suspicion or

probable cause from the officers who initially spoke with him. However, the statement is

inconsistent in finding that Officer Cooksey lacked either reasonable suspicion or probable cause

by and at the time of the stop.

       The latter issue is addressed by the trial court’s second finding of fact, which is consistent

with Officer Cooksey’s testimony regarding what he did after observing the vehicle before he

stopped it. He testified:

       Q What did you do after observing this vehicle?

       A We pulled in behind it. We ran the plate and saw that it was expired, the
         registration was expired. And so we conducted a traffic stop on the vehicle.

       Q I would like to talk a little bit about how you run licenses or license plates. What
         system is it that you use to run or check a license plate?
                                                –4–
       A It is called NCIC.

Officer Cooksey’s partner, Ana Vasquez, also testified about this, stating:

       Q And for this particular traffic stop, did you and Officer Cooksey enter a license
         plate into the NCIC data base in order to get information on a vehicle?

       A Yes, ma’am.

       Q And what did the return show?

       A It showed an expired registration.

       Q What did you do, based on getting a return of an expired registration?

       A We initiated a traffic stop.

       It is evident from the findings and conclusions quoted above that the trial court did not

question the reliability of the NCIC information that precipitated the traffic stop. However, as the

court’s third finding of fact suggests, the record does reflect that Officer Cooksey later observed a

valid registration sticker on the vehicle as he talked to Sortovillatoro, after he smelled the odor of

marijuana and observed drug paraphernalia. Officer Cooksey testified:

       Q And at that time did you let him know that you had pulled him over to the [sic]
         expired registration, but that you now see he has a sticker that is valid?

       A Correct.

       Q And then based on the smell of marijuana and your observation of the drug
         paraphernalia, did you continue contact or investigation for other purposes?

       A Yes, I did.

                                               ANALYSIS

       We consider whether the trial court abused its discretion in granting Sortovillatoro’s

motion to suppress. As discussed below, based on the record here, we conclude the trial court did

so, and we reverse the trial court’s ruling.




                                                 –5–
                                      General Requirements

       Three distinct categories of interactions between police officers and citizens exist:

encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim.

App. 2002). Encounters require no justification, detentions require reasonable suspicion, and

arrests require probable cause. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App.1995).

                                Reasonable Suspicion for the Stop

       At issue here is whether the officers had reasonable suspicion for the stop. Traffic stops

are temporary detentions that may be justified under the Fourth Amendment based on reasonable

suspicion that criminal activity is afoot. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Hamal

v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). In Derishsweiler v. State, 348 S.W.3d 906

(Tex. Crim. App. 2011), the Texas Court of Criminal Appeals stated:

       A police officer has reasonable suspicion to detain if he has 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. This standard is an objective one that disregards the
       actual subjective intent of the arresting officer and looks, instead, to whether there
       was an objectively justifiable basis for the detention. It also looks to the totality of
       the circumstances; those circumstances may all seem innocent enough in isolation,
       but if they combine to reasonably suggest the imminence of criminal conduct, an
       investigative detention is justified.

Id. at 916. The reasonable suspicion inquiry does not “look behind an objectively reasonable

traffic stop to determine whether racial profiling or a desire to investigate other potential crimes

was the real motive.” Ashcroft v. al-Kidd, 563 U.S. 731, 739 (2011) (describing Whren v. U.S.,

517 U.S. 806, 813 (1996), as unanimously holding such).




                                                 –6–
       In its second finding of fact, the trial court stated:

       Cooksey positioned his patrol car on a side street in a residential neighborhood
       adjacent to Edgefield in order to observe the traffic without being seen. After
       observing a white Nissan sedan, Cooksey got behind the defendant’s vehicle and
       ran a license check of the vehicle on NCIC. After receiving information that the
       license plate was expired, Cooksey initiated a traffic stop.

       However, in its conclusions of law, the trial court found that the officer “lacked reasonable

suspicion to focus on the vehicle Sortovillatoro was driving” and that “there existed no reasonable

suspicion to warrant [the officer] initiating contact with the vehicle” being driven by him.

       The State argues that the trial court abused its discretion by applying the Fourth

Amendment’s reasonable suspicion requirements to the police officers’ initial “focus” as opposed

to the uncontroverted evidence of what triggered their stop of the vehicle. The State asks us to

reverse the trial court’s ruling because the NCIC information the officers obtained showing the

license plate was expired established the reasonable suspicion necessary for the stop.

       In contrast, Sortovillatoro argues that although the trial court mentioned the NCIC

information in its findings, it excluded the information from its conclusions of law as an implicit

rejection of the credibility or weight of the information. Sortovillatoro urges us to either affirm

the trial court’s ruling or to remand for additional findings regarding the credibility and weight to

be afforded to the NCIC information.

       We agree with the State’s arguments regarding the stop and conclude that the trial court

abused its discretion in applying the law to the facts here. By basing its conclusions on the officer’s

initial focus on the vehicle, we believe the trial court improperly examined the officers’ subjective,

initial intent for the stop rather than the objective reasons the officers had for carrying it out,

namely, the NCIC information they received showing the vehicle registration had expired, which

provided specific, articulable facts supporting their reasonable suspicion of criminal activity. See

Whren v. U.S., 517 U.S. 806, 813 (1996) (“[s]ubjective intentions play no role in ordinary

                                                  –7–
probable-cause Fourth Amendment analysis;” affirming lower courts’ conclusion that stop was

justified); Lerma, 543 S.W.3d at 190 (“In the context of a traffic stop, police officers are justified

in stopping a vehicle when the officers have reasonable suspicion to believe that a traffic violation

has occurred.”); Brown v. State, 986 S.W.2d 50, 52–54 (Tex. App.—Dallas 1999, no pet.)

(concluding stop was proper when officer testified that vehicle was stopped based on car’s

inclusion on police department’s “hot sheet” which listed cars reported to be stolen and based on

NCIC report confirming that vehicle had been reported stolen). See also TEX. TRANSP. CODE

§§ 502.040, .471–.473 (listing various requirements and offenses relating to improper vehicle

registration).2

         Moreover, there is no indication the trial court implicitly rejected the credibility of the

NCIC testimony. To the contrary, the trial court found in its second finding that the NCIC report

was the basis of the stop. Despite Sortovillatoro’s suggestion that we remand to the trial court for

additional findings regarding the credibility or weight to be afforded to the NCIC information, we

believe a remand is unnecessary based on the record here. First, in contrast to the trial court’s

findings at issue in State v. Mendoza, the trial court’s findings here are not ambiguous, do not

contain “weasel words,” and do not require us to make any implied findings to support reversal.

See State v. Mendoza, 365 S.W.3d 666, 668–69, 671–72 (Tex. Crim. App. 2012) (remanding to

the trial court for additional findings, noting that the initial findings contain several “weasel words”

and juxtapositions of phrases and facts that create ambiguity in the findings and call into question

the appellate court’s implied finding that the trial judge believed the officer).




    2
      See also Delaware v. Prouse, 440 U.S. 648, 663 (1979) (stopping vehicles and detaining drivers to check driver’s
licenses and automobile registration are unreasonable under Fourth Amendment except in situations where there is at
least articulable reasonable suspicion that a motorist is unlicensed, an automobile is not registered, or that either the
vehicle or an occupant is otherwise subject to seizure for violation of law).
                                                          –8–
        Second, remanding the case to the trial court under the circumstances here would suggest

to the trial court, the parties, and others that a trial court must do more than what is required by

State v. Cullen, which states:

        Effective from the date of this opinion, the requirement is: upon the request of the
        losing party on a motion to suppress evidence, the trial court shall state its essential
        findings. By “essential findings,” we mean that the trial court must make findings
        of fact and conclusions of law adequate to provide an appellate court with a basis
        upon which to review the trial court’s application of the law to the facts.

State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). We decline to make that suggestion

here. The trial court did what Cullen requires, namely, provide a clear, unambiguous indication

of how and why the trial court reached its conclusions. The trial court’s second conclusion of law

is inconsistent with the record and the law we discuss above, and the final conclusion is

inconsistent with the trial court’s second finding of fact.

        Based on the record before us, a reversal is appropriate to correct the trial court’s

application of the law to the officer’s initial focus on the vehicle rather than the officers’ objective

reasons for stopping it, and to correct the trial court’s misapplication of the law to the facts here.

Because the NCIC information the officers obtained establishes the reasonable suspicion necessary

to justify the stop, the trial court abused its discretion in concluding otherwise.

                                 Probable Cause for Vehicle Search

        In its third argument, the State also argues the trial court erred in suppressing the evidence

because officers had probable cause to search the vehicle after officers smelled the odor of

marijuana as they approached the vehicle and then saw tar-covered razor blades scattered inside.

Sortovillatoro does not argue otherwise; instead, he argues this issue is moot because the initial

detention was not supported by reasonable suspicion, a conclusion we have already rejected.

        We note that while the trial court did not state any conclusions regarding probable cause

for the search, consistent with the record, the trial court issued findings to the effect that, as one of

                                                  –9–
the officers approached the vehicle, he detected the odor of marijuana coming from it, and that

once at the vehicle, the officer observed razor blades with a black-tar-like substance he believed

to be drug paraphernalia and observed a silver canister that appeared to be a marijuana grinder.

         These findings are sufficient to support the State’s uncontroverted position (and

Sortovillatoro’s apparent concession below)3 that officers developed probable cause for the vehicle

search after the stop. See Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (officer may

conduct warrantless search of car during traffic stop if he develops probable cause to believe the

car contains contraband); Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978)

(probable cause exists when officer smells marijuana or observes drug paraphernalia); State v.

Crawford, 120 S.W.3d 508, 511 n.1 (Tex. App.—Dallas 2003, no pet.) (in a case involving only

an encounter, not a detention, court reversed trial court’s order granting motion to suppress when

officers immediately developed probable cause to believe car contained marijuana based on a

strong odor of marijuana coming from inside Crawford’s car as they talked to him).

                                     No Other Basis to Uphold Decision

         Although we may uphold the trial court’s ruling on any other theory of law applicable to

the case, State v. Copeland, 501 S.W.3d 610, 612–13 (Tex. Crim. App. 2016), we find none here.

                                                CONCLUSION

         Because the NCIC information provided specific, articulable facts supporting a reasonable

suspicion that the vehicle’s license plate was expired, and because the trial court found facts

sufficient to establish probable cause for the search after the vehicle was stopped, the trial court




    3
      In the motion to suppress hearing, Sortovillatoro’s counsel appeared to concede that probable cause for the
search existed once the officer was at the vehicle and smelled the odor of marijuana, stating, “There was no offense.
This officer would have never been in the position to smell marijuana. I know that once he smells marijuana, he is in.
But he would never have been in a position to smell marijuana had the NCIC database been accurate. There was no
offense. My client should not have been stopped.”
                                                       –10–
abused its discretion in granting Sortovillatoro’s motion to suppress. We reverse the trial court’s

order and remand the case for further proceedings consistent with this opinion.



                                                  /Ken Molberg/.
                                                  KEN MOLBERG
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)



181457f.u05




                                              –11–
                               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. 05-18-01457-CR                                 Trial Court Cause No. F-1757360-M
                                                    Opinion delivered by Justice Molberg.
       V.                                           Justices Reichek and Evans participating.

 CHRISTIAN SORTOVILLATORO,
 Appellee

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


Judgment entered this 24th day of February, 2020.




                                             –12–
                               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. 05-18-01458-CR                                 Trial Court Cause No. F-1757361-M
                                                    Opinion delivered by Justice Molberg.
       V.                                           Justices Reichek and Evans participating.

 CHRISTIAN SORTOVILLATORO,
 Appellee

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


Judgment entered this 24th day of February, 2020.




                                             –13–
                               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. 05-18-01459-CR                                 Trial Court Cause No. F-1757362-M
                                                    Opinion delivered by Justice Molberg.
       V.                                           Justices Reichek and Evans participating.

 CHRISTIAN SORTOVILLATORO,
 Appellee

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


Judgment entered this 24th day of February, 2020.




                                             –14–
