                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00717-CR

                                     Wayne Edward WEIRICH,
                                            Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                        Trial Court No. 6261
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: September 5, 2018

AFFIRMED

           Appellant Wayne Edward Weirich (“Weirich”) appeals from the trial court’s order denying

his motion to suppress evidence. We affirm the trial court’s judgment.

                                            Background

           On November 13, 2016, Gillespie County Sheriff’s Deputy Nick Moellering was on patrol

when he observed a pickup truck driven by Weirich. Deputy Moellering recognized Weirich and

the two passengers in the truck, and he knew both passengers were narcotics users with narcotics

charges pending against them. Because he believed one of the passengers (Emily Schmidt) had
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active arrest warrants, Deputy Moellering stopped Weirich’s truck. A dash-cam recording of the

encounter was made from Deputy Moellering’s patrol vehicle.

       At 20:05:45 on the dash-cam recording, Deputy Moellering approached Weirich’s truck

and told him: “The reason I’m stopping you is because Emily has warrants. . . . Or at least she did

on Friday.” The traffic stop took place on a Sunday. Schmidt argued with Deputy Moellering,

claiming she did not have any active warrants. At 20:06:36, Deputy Moellering asked Weirich and

the two passengers to step outside of the truck and then radioed dispatch to confirm Schmidt had

active warrants. Deputy Moellering testified Schmidt was under arrest at this point, although he

did not place her in handcuffs or in the backseat of his police vehicle so that she could smoke a

cigarette before going to jail. Deputy Moellering also ran warrant checks on Weirich and the other

passenger.

       At 20:11:05, Deputy Moellering asked Weirich to step aside and began questioning him.

Deputy Moellering asked Weirich if he had any weapons on his person and patted him down. At

20:12:23, Deputy Moellering told Weirich that one of Schmidt’s warrants was for possession of

narcotics and asked: “Do you mind if I take a quick look in your car?” Deputy Moellering testified

that Weirich “said something like, no, I don’t mind” in response. The trial court acknowledged

that the dash-cam audio recording at this point of the encounter “isn’t clear,” but concluded: “I

think I heard [Weirich] say something to the effect of, no, I don’t mind, or something like that.”

Deputy Moellering testified he had not yet confirmed whether Weirich had outstanding warrants

at the time he asked for Weirich’s consent to search the truck.

       Deputy Moellering searched the truck and found a glass pipe containing methamphetamine

in the center console area. After Deputy Moellering found the pipe, Schmidt stated: “I didn’t give

you consent to search my stuff.” Deputy Moellering then asked Weirich, “But you said I could



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look, right?” At 20:17:40, Weirich responded affirmatively. Deputy Moellering arrested Weirich

for possession of methamphetamine in an amount less than one gram.

       Weirich filed a motion to suppress evidence obtained as a result of the arrest. After a

hearing at which Deputy Moellering was the sole witness to testify, the trial court denied the

motion. Weirich pleaded guilty to possession of methamphetamine in an amount less than one

gram, and the trial court sentenced him to eighteen months’ imprisonment. Weirich appeals the

trial court’s order denying the motion to suppress.

                                            Discussion

A.     Standard of review

       We review a trial court’s denial of a motion to suppress using a bifurcated standard of

review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016). We defer to the trial court’s

determination of historical facts and rulings on mixed questions of law and fact. Id.; Guzman v.

State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). We review de novo the trial court’s application

of the law to the facts. Furr, 499 S.W.3d at 877.

       Where, as here, the trial court does not make express findings of fact, we review the

evidence in the light most favorable to the trial court’s ruling and assume it made implicit findings

supported by the record. Id. We will sustain the trial court’s ruling if it is correct under any

applicable theory of law. Id.

B.     Analysis

       The Fourth Amendment protects individuals from unreasonable search and seizure. See

Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). We analyze the legality of traffic stops

for Fourth Amendment purposes using the standard set forth in Terry v. Ohio, 392 U.S. 1 (1968).

Id. at 63. The Terry analysis has two prongs: (1) whether the officer’s action was justified at its

inception, and (2) whether the search and seizure were reasonably related in scope to the
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circumstances that justified the stop in the first place. Terry, 392 U.S. at 19–20. Here, Weirich

challenges both Terry prongs. We address each separately.

        1. The traffic stop was justified in order to execute an outstanding arrest warrant.

        Police may execute an outstanding arrest warrant at any time and place they choose. Greer

v. State, 436 S.W.3d 1, 7 (Tex. App.—Waco 2014, no pet.). This means police may initiate a traffic

stop in order to execute an outstanding arrest warrant for a passenger. See id. (holding traffic stop

to execute arrest warrants for driver and passenger was lawful).

        Weirich argues the traffic stop was not justified because Deputy Moellering did not know

there was an active arrest warrant for Schmidt at the time he pulled over Weirich’s truck. However,

Deputy Moellering testified he stopped Weirich’s truck in order to execute outstanding arrest

warrants for Schmidt. Although Deputy Moellering called dispatch to confirm the warrants were

outstanding after Schmidt argued with him, he testified he was aware at the time he stopped

Weirich’s truck that Schmidt had active, outstanding arrest warrants as of “Friday.” When Deputy

Moellering initially approached Weirich’s truck, he told Weirich: “The reason I’m stopping you is

because Emily has warrants.” Therefore, because the stop was initiated for the lawful purpose of

executing an outstanding arrest warrant, we conclude the traffic stop was justified at its inception

and satisfies the first Terry prong.

        2. Because the traffic stop was not unreasonably extended, consent to search was
           not rendered involuntary.

        Weirich argues that even if the stop initially was lawful, his consent to search was rendered

involuntary because the stop was unreasonably extended beyond the circumstances that justified

it in the first place. “[T]he general rule is that an investigative stop can last no longer than necessary

to effect the purpose of the stop.” Kothe, 152 S.W.3d at 63. For instance, if a driver is stopped on

suspicion of driving while intoxicated, he must be released promptly as soon as the police officer


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determines he is not impaired. Id. However, “[o]n a routine traffic stop, police officers may request

certain information from a driver, such as a driver’s license and car registration, and may conduct

a computer check on that information.” Id. A traffic stop is not fully resolved until the computer

check is complete and the officer knows the driver has a currently valid license and no outstanding

warrants and the car is not stolen. Id. at 63–64.

          In this case, Deputy Moellering testified he requested a warrant check for Weirich, which

was not complete at the time Weirich consented to a search of the truck. Therefore, although the

initial purpose of the stop was complete upon Schmidt’s arrest, the stop was not yet fully resolved

at the time Deputy Moellering asked Weirich: “Do you mind if I take a quick look in your car?”

See id.

          A police officer may ask for consent to search a vehicle even without probable cause so

long as he does not convey by words or deed that compliance is required. Tucker v. State, 369

S.W.3d 179, 185 (Tex. Crim. App. 2012) (holding consent involuntary if “it was coerced by threat

or force, given under duress, or given only in submission to a claim of lawful authority”);

Hernandez v. State, No. 04-05-00298-CR, 2006 WL 922704, at *1 (Tex. App.—San Antonio Apr.

5, 2006, no pet.) (mem. op.). We determine the voluntariness of consent to search by analyzing

“the totality of the circumstances of the situation from the point of view of an objectively

reasonable person.” Tucker, 369 S.W.3d at 185.

          Nothing in the record before us suggests Deputy Moellering conveyed either by words or

by deed that compliance with the request to search was required or that Weirich gave consent under

any coercion or duress. Weirich does not argue anything rendered his consent involuntary other

than the fact that, he argues, the traffic stop continued longer than necessary to arrest Schmidt.

Because Deputy Moellering did not unreasonably prolong the traffic stop or convey that Weirich



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was required to consent to search, we conclude the consent to search was given voluntarily under

the totality of the circumstances. Weirich’s sole issue on appeal is overruled.

                                            Conclusion

       Because we overrule Weirich’s sole issue on appeal, we affirm the trial court’s judgment.


                                                  Sandee Bryan Marion, Chief Justice

DO NOT PUBLISH




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