                       NUMBERS 13-14-00237-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                        Appellant,

                                          v.

ISAAC SASTAITA,                                                            Appellee.


                  On appeal from the 105th District Court
                        of Kleberg County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Perkes
               Memorandum Opinion by Justice Perkes
      The State appeals the trial court’s granting of appellee Isaac Sastaita’s motion to

suppress. Sastaita was arrested for possession of marijuana, a state jail felony. See

TEX. HEALTH & SAFETY CODE ANN. § 481.115 (a), (b) (West, Westlaw through 2015 R.S.).

By one issue, the State argues that because the arresting officer reasonably suspected
that Sastaita was, or soon would be, engaged in criminal activity, the trial court abused

its discretion in granting Sastaita’s motion to suppress. We affirm.

                                           I.       BACKGROUND

        Following his arrest for drug possession, Sastaita filed a motion to suppress.

Kingsville Police Officer Ernie Martinez testified during the hearing that he stopped

Sastaita for a speeding violation. As he approached Sastaita’s car, he observed that

Sastaita’s face was pale, that he was visibly shaking, and that he was extremely nervous.

When he asked Sastaita for his driver’s license, he was still shaking.1 Officer Martinez

concluded “something [was] not right” and called Officer Daniel Gonzalez for backup and

to conduct additional inquiry.            After calling for backup, Officer Martinez spoke with

Sastaita and asked about car insurance—Sastaita stated that he had none. Officer

Martinez also asked about Sastaita’s prior criminal history—Sastaita replied that he had

none. Officer Martinez, however, later discovered Sastaita had a prior arrest for drug

possession. Officer Gonzalez arrived approximately three to four minutes after receiving

the call, while Officer Martinez was working on issuing the traffic citation.

        Officer Gonzalez testified that, upon his arrival, he “made contact with the initiating

officer for the traffic stop, and . . . gathered details of the traffic stop and what he had at

hand and why he requested back-up.” Officer Gonzalez asked Sastaita if he would be

willing to talk to him, and Sastaita said yes. Officer Gonzalez observed Sastaita was




         1 During a routine stop for a traffic violation by the driver, officers may question the driver; request

his license, insurance papers, and information on ownership of the vehicle; and ask about the driver's
destination and the trip's purpose. See St. George v. State, 197 S.W.3d 806, 817–18 (Tex. App.—Fort
Worth 2006, pet. granted), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2006).

                                                       2
“overly nervous.” Officer Gonzalez questioned Sastaita about his travels and whether

he possessed narcotics or illegal weapons. Officer Gonzalez stated that when he asked

Sastaita about drugs, Sastaita became “extremely nervous” and his voice was shaking.

According to Officer Gonzalez, Sastaita also behaved oddly by “pat-searching” himself in

response to questions about drugs and weapons. Based upon what he had been told

and his observations, Officer Gonzalez believed that “deception . . . not just nervousness”

was transpiring.       Based on Sastaita’s behavior, Officer Gonzalez claimed that he

reasonably suspected Sastaita was involved in criminal activity and requested to search

Sastaita’s vehicle. When Sastaita declined, Officer Gonzalez told Sastaita that he was

being detained and that he would have to wait for the arrival of a canine unit. At that

point, Sastaita admitted he had marijuana inside the vehicle. He was subsequently

arrested.

       During the hearing, Sastaita’s sole argument was that the stop was illegally

prolonged beyond the initial justification for the traffic stop without reasonable suspicion.

After the trial court granted Sastaita’s motion to suppress, the State requested findings of

fact and conclusions of law. None were issued. We granted the State’s motion to abate

the appeal and remanded the case to the trial court for the entry of findings of fact and

conclusions of law. See TEX. R. APP. P. 44.4. The trial court adopted the following

findings of fact and conclusions of law:

       1.        Isaac Sustaita [sic] was stop [sic] for a traffic violation. Isaac Sustaita
                 [sic] presented the Officer Ruben Trevino[2] with his driver's license.



       2   The record is devoid of any reference or evidence regarding a person named “Ruben Trevino.”

                                                   3
        2.      Officer Ruben Trevino then began a fishing expedition by asking
                questions of Isaac Sustaita [sic].

        3.      Officer Martinez asks dispatch if either Detective Tamez[ 3 ] or
                Detective Gonzalez were on duty to continue the investigation of Mr.
                Sustaita [sic].

        4.      Officer Martinez issues Mr. Sustaita [sic] a citation for speeding and
                failing to display proof of finical [sic] responsibility.

        5.      Detective Gonzalez then arrived on location and began to integrate
                [sic] Mr. Sustiata [sic] after the citation was issued.

        6.      Isaac Sustaita [sic] then refuses to consent to a search of his vehicle.

The trial court concluded:

        The legal justification or purpose of the stop was to warn or cite the driver
        for a traffic violation. In the case at bar the officer engaged in a fishing
        expedition. Law enforcement officers are not allowed to engage in a
        “fishing expedition to determine whether there were drugs” in the vehicle by
        prolonging an investigatory detention without reasonable suspicion
        “sufficient to continue the dentition [sic] and prolong the traffic stop for the
        purposes of conducting a drug investigation.[”]

                                         II.     DISCUSSION

        By its sole issue, the State argues that the trial court erred by granting Sastaita’s

motion to suppress. Specifically, the State contends the arresting officer had specific,

articulable facts that, when combined with rational inferences from those facts, would lead

him to reasonably suspect Sastaita had engaged in or was, or soon would be, engaged

in criminal activity. We disagree.

A.      Standard of Review




        3 Michael Tamez is a Criminal Interdiction Officer with the Kingsville Police Department. He was

not present during the traffic stop but testified during the hearing regarding investigative techniques.

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       We review a trial court's ruling on a motion to suppress for an abuse of discretion.

Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In reviewing a trial court's

ruling on a motion to suppress evidence, we use a bifurcated standard. State v. Ross,

32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955

S.W.2d 85, 88 (Tex. Crim. App. 1997) (en banc)). We give almost total deference to the

trial court's findings of historical fact that are supported by the record and to mixed

questions of law and fact that turn on an evaluation of credibility and demeanor. Amador

v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89).

We “review de novo ‘mixed questions of law and fact’ that do not depend upon credibility

and demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App.

2006)); Guzman, 995 S.W.2d at 89.

       However, as with the question of whether a consensual encounter has become a

Fourth Amendment detention, the question of whether a certain set of historical facts

gives rise to reasonable suspicion is reviewed de novo. Wade v. State, 422 S.W.3d 661,

668 (Tex. Crim. App. 2013); see Davis v. State, 947 S.W.2d 240, 249 (Tex. Crim. App.

1997) (en banc) (Keller, J., concurring); see also Madden v. State, 242 S.W.3d 504, 517

(Tex. Crim. App. 2007) (providing that we review the legal question of whether totality of

circumstances is sufficient to support officer's reasonable suspicion de novo). We will

affirm the trial court's ruling excluding the evidence if the ruling is reasonably supported

by the record and correct on any theory of law applicable to the case. See State v. Dixon,

206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under this rule, we must “determine

whether the trial court could have reasonably [ruled as it did] given the record evidence


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and given the applicable federal and state law.” State v. White, 306 S.W.3d 753, 757

n.10 (Tex. Crim. App. 2010) (citing Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim.

App. 2003)).

B.      Applicable Law

        The Fourth Amendment, made applicable to the states by the due process clause

of the Fourteenth Amendment, guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

Mapp v. Ohio, 367 U.S. 643, 655 (1961).4 The Fourth Amendment is implicated because

whenever a government official directs a vehicle to stop, however briefly, he has thereby

“seized” the occupant, for the stop inevitably restrains that person's freedom of

movement. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990). We

analyze the legality of traffic stops for Fourth Amendment purposes under the standard

articulated by the United States Supreme Court in Terry v. Ohio. See United States v.

Brigham, 382 F.3d 500, 507–08 (5th Cir. 2004) (en banc); see also Terry, 392 U.S. 1, 21–

22 (1968); United States v. Pack, 612 F.3d 341, 349–50 (5th Cir. 2010); Kothe v. State,

152 S.W.3d 54, 63 (Tex. Crim. App. 2004). Under this standard, we make a two-part

inquiry.   Brigham, 382 F.3d at 506.             First, we examine whether or not the officer's

decision to stop the vehicle was justified at its inception. Id. Second, we determine




        4 In analyzing and interpreting article one, section nine of the Texas Constitution, we are not bound

by United States Supreme Court decisions that address the Fourth Amendment. Heitman v. State, 815
S.W.2d 681, 690 (Tex. Crim. App. 1991) (en banc). However, the interpretation of Texas search and
seizure law is currently the same as the Supreme Court's interpretation of the Fourth Amendment. See
Johnson v. State, 912 S.W.2d 227, 233–34 (Tex. Crim. App. 1991) (en banc).
                                                     6
whether or not the officer's subsequent actions were reasonably related in scope to the

circumstances that caused him to stop the vehicle in the first place. Id.

       An officer's subsequent actions are not reasonably related in scope to the

circumstances that caused him to stop the vehicle if he detains its occupant beyond the

time needed to investigate the circumstances that caused the stop, unless the officer

develops a reasonable suspicion of additional criminal activity in the meantime. Id. at

507. The United States Supreme Court has expressly rejected placing any rigid time

limitations on Terry stops; instead, the issue is “whether the police diligently pursued a

means of investigation that was likely to confirm or dispel their suspicions quickly, during

which time it was necessary to detain the defendant.” Kothe, 152 S.W.3d at 64 (quoting

United States v. Sharpe, 470 U.S. 675, 685–86 (1985) (declining to “establish per se rule

that 20–minute detention is too long” under Terry)).

       A detention may not be unnecessarily prolonged solely in hopes of finding

evidence of some other crime. Id. The stop may not be used as a “fishing expedition

for unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519

U.S. 33, 41 (1996) (Ginsberg, J., concurring)). But if reasonable suspicion of additional

criminal activity arises in the course of a stop and before the purpose of the stop is fulfilled,

then a continued detention may be justified until the new suspicion has been confirmed

or dispelled. Id; see Perales v. State, 117 S.W.3d 434, 439 (Tex. App.—Corpus Christi,

2003, pet. ref’d).

       Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead the officer to reasonably


                                               7
conclude that a particular person actually is, has been, or soon will be engaged in criminal

activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); see Ford v. State,

158 S.W.3d 488, 492 (Tex. Crim. App. 2005).            After the initial detention, various

combinations of factors will support a reasonable suspicion of criminal activity, sufficient

to justify continued detention independent of the initial detention. See Sims v. State, 98

S.W.3d 292, 296 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (determining that there

was reasonable suspicion to justify continued detention where another car of same make

and model traveled erratically in front of defendant; defendant’s car contained “large

amount” of air fresheners; defendant was extremely nervous; defendant hesitated as she

spoke; defendant put her hands up when asked to step out of the car; and defendant was

driving rental car without rental agreement); Powell v. State, 5 S.W.3d 369, 377 (Tex.

App.—Texarkana 1999, pet. ref'd) (concluding that reasonable suspicion premised upon

nervousness, conflicting information, prior drug arrests, and lying about prior arrests);

Fields v. State, 932 S.W.2d 97, 105 (Tex. App.—Tyler 1996, pet. ref'd) (explaining that

reasonable suspicion existed to detain car that had been stopped for speeding based

upon extreme nervousness of driver; driving with suspended license; passenger's history

of drug offenses; and occupants’ inconsistent versions of recent activities).

       The burden is on the State to elicit testimony showing sufficient facts to create a

reasonable suspicion.     Garcia, 43 S.W.3d at 530.        The totality of the suspicious

circumstances that an officer relies on “must be sufficiently distinguishable from that of

innocent people under the same circumstances as to clearly, if not conclusively, set the

suspect apart from them.” Wade v. State, 422 S.W.3d 661, 671 (Tex. Crim. App. 2013).


                                             8
In our determination regarding whether reasonable suspicion existed for prolonging a

traffic stop, we give due weight not to the officer's inchoate and unparticularized suspicion

or “hunch,” but to the specific reasonable inferences that he was entitled to draw from the

facts in light of his experience.         See Davis, 947 S.W.2d at 242.               Any investigative

detention that is not based on reasonable suspicion is unreasonable and violates the

Fourth Amendment. Id.

C.      Analysis

        The parties do not contest the reasonableness of the stop; consequentially, the

analysis turns on the second prong of the Terry analysis.5 The trial court did not indicate

what facts, if any, the police officers relied upon to justify a continued detention. Instead,

the State argues that Officer Gonzalez was justified in detaining Sastaita because

Sastaita had a prior criminal arrest for drug possession and lied about it, Sastaita was

extremely nervous, and Sastaita exhibited some deception when answering Gonzalez’s

questions about drugs.

        1. Timeline

        We first examine the scope of the initial detention, noting that we are not permitted

to weigh the credibility of the witnesses. See Villarreal v. State, 631 S.W.2d 205, 206

(Tex. App.—Corpus Christi 1982, no pet.) (“The trial court, in deciding whether to

suppress evidence, is the sole judge of the witnesses' credibility[.]”) Officer Martinez



        5It is undisputed that Sastaita was stopped for a speeding violation. See TEX. TRANSP. CODE ANN.
§ 545.351 (West, Westlaw through 2015 R.S.). In Texas, a police officer may lawfully stop and detain a
person for a traffic violation. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).
Accordingly, we conclude that it was reasonable for Officer Martinez to stop Sastaita. See id; see also TEX.
TRANSP. CODE ANN. § 545.351.

                                                     9
stopped appellant to investigate the speeding violation.          Once he concluded that

investigation, he could not detain Sastaita any longer without a reasonable suspicion that

another offense was being committed. Perales, 117 S.W.3d at 439; see Freeman v.

State, 62 S.W.3d 883, 887 (Tex. App.—Texarkana 2001, pet. ref'd). Contrary to the trial

court’s findings of fact, we are unable to determine from the record precisely when certain

events transpired, including the time when Officer Martinez concluded his investigation of

the traffic violation. When asked about the citation, Officer Martinez testified:

       Q.     You said that you called for an interdiction officer to come to the
              scene. Do you recall how long it took for Officer Gonzalez to arrive
              on-scene?

       A.     Not very long, maybe three to four minutes, not long at all.

       Q.     What were you doing during this time?

       A.     Issuing citation.

       Q.     Okay. How long does that process usually take, to enter the
              information and print out a ticket?

       A.     Maybe two to three minutes.

       Q.     So—

       A.     Sometimes it could take longer, depending on the actual system
              itself, if it's running slow. It depends.

       Q.     And what were you doing after Officer Gonzalez arrived?

       A.     I stayed back. I continued—as he—as he rolled up, as he arrived on
              location, I was still issuing the citation, so I stayed back and did what
              I needed to do.

As a result, we are unable to determine whether Officer Gonzalez developed reasonable

suspicion to prolong the detention before the purpose for the initial stop ended. See


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Seiffert v. State, 290 S.W.3d 478, 483 (Tex. App.—Amarillo 2009, no pet.) (“Although no

rigid time limitation exists on its length, a traffic stop is temporary and may last no longer

than necessary to effectuate its purpose.”)

       Further, the record is silent concerning when Officer Martinez learned of Sastaita’s

prior drug arrest. Officer Martinez testified during direct examination:

       Q.     Do you recall whether or not you asked the driver if he had any
              criminal history?

       A.     I do.

       Q.     Do you recall his answer?

       A.     He advised that he did not.

       Q.     And did you later find out from dispatch that that was incorrect?

       A.     That he did have a—

       Q.     How did you find that out?

       A.     Dispatch advised me.

       Q.     And how much time does something like that take?

       A.     Approximately two minutes.

       Q.     Were you also able to observe his behavior during that time?

       A.     While I was—while I was in the driver's side, yes, I was able to
              observe it.

Consequently, we are unable to determine whether or not either officer learned about the

prior arrest before or after the detention became prolonged. If neither officer found out

about Sastaita’s prior arrest until after they prolonged the detention, then the information




                                              11
collectively known to the officers would not include the information about Sastaita’s

criminal history.

       2. Criminal History

       There is nothing in the record to indicate that Officer Gonzalez was aware of the

“lie” when he informed Sastaita that he had a reasonable suspicion to continue the

investigation. In fact, Officer Gonzalez does not even mention the lie in his testimony.

Officer Gonzalez testified that Officer Martinez:

       Called [him] because [Officer Martinez] told [him] that when [Officer
       Martinez] made contact with [Sastaita] and [Officer Martinez] was talking to
       [Sastaita], [Officer Martinez] noticed that he was acting very differently from
       other people that [Officer Martinez] stopped. [Officer Martinez] said that
       [Sastaita] . . . was extremely nervous and that he was acting very different.
       And [Officer Martinez] asked if I could speak with him to see if . . . I felt there
       was anything else going on.

       Officer Gonzalez further testified that upon arriving at the scene, he “made contact

with the initiating officer for the traffic stop, and [he] gathered details of the traffic stop and

what [Officer Martinez] had at hand and why [Officer Martinez] requested backup.”

Officer Martinez testified at the suppression hearing that he told Officer Gonzalez that the

“main reason [he] needed [Officer Gonzalez] was because “[Sastaita] appeared to be

“very nervous” or exhibited “extreme nervousness.” There was no testimony that Officer

Martinez informed Officer Gonzalez that Sastaita “lied” in response to Officer Martinez’s

criminal history question. See Arguellez v. State, 409 S.W.3d 657, 663 (Tex. Crim. App.

2013) (noting that the officer was allowed to rely on information relayed to him from police

dispatcher in stopping the defendant); see also Derichsweiler v. State, 348 S.W.3d 906,




                                                12
914 (Tex. Crim. App. 2011). The record supports, at best, an inference that Officer

Martinez may have relayed Sastaita’s “lie” to Officer Gonzalez.

        Given the ambiguity in the record, we will analyze the factors that Officer Gonzalez

actually stated he relied on to develop reasonable suspicion. See Garcia, 43 S.W.3d at

530. Officer Gonzalez testified he developed his reasonable suspicion solely based on

appellee’s odd behavior, specifically the extreme nervousness—encompassing the

changes in tone, and the “self pat-down.”6

        3. Nervousness

        Officer Gonzalez testified that after he noticed appellee was “overly nervous,” he

began to question appellee about “different types of drugs and weapons that he might be

carrying on his person or inside the vehicle.” Officer Gonzalez stated that the purpose

of such routine questioning was to see “if I can detect any deception based on their body

language, based on their nervousness and, you know, to—if there's any reasonable

suspicion as to the fact that there might be contraband or not.” According to Officer

Gonzalez, he specifically looks for extreme nervousness when asking certain questions.

        Clearly a motorist stopped and questioned by police will be nervous. See id. at

671 (explaining that nervousness is not particularly probative because most citizens with

nothing to hide will nonetheless manifest understandable nervousness in the presence of

an officer) (citing Damato v. State, 64 P.3d 700, 709 (Wyo. 2003) (concluding that when

motorist refused to consent to a search of his car, and officer then asked “whether there


          6 According to Gonzalez’s testimony, appellee “showed deception” through changes in his tone of

voice when responding to police questioning. However, rather than being a separate indication of criminal
activity, changes in tones of voice are manifestations of nervousness. See United States v. Portillo-
Aguirre, 311 F.3d 647, 656 (5th Cir. 2002).
                                                   13
was some reason he did not want the officer looking in the car,” the motorist's extreme

nervousness, including “sweating heavily although it was a chilly day, his carotid artery

pulsating hard and fast, and an inability to keep eye contact,” was discounted because

“[r]ealistically, few citizens would not have become uncomfortable to some degree with

these questions”)).     In light of the foregoing, we are not persuaded that Sastaita’s

shaking body and voice, particularly in response to police scrutiny, are reliable indicators

of criminal activity in this case.

       4. “Odd Behavior”

       Officer Gonzalez characterized Sastaita’s self pat-down as “odd behavior.”

However,

       an officer and the Government must do more than simply label a behavior
       as “suspicious” to make it so. The Government must also be able to either
       articulate why a particular behavior is suspicious or logically demonstrate,
       given the surrounding circumstances, that the behavior is likely to be
       indicative of some more sinister activity than may appear at first glance.

Wade, 422 S.W.3d at 672 (citing United States v. Foster, 634 F.3d 243, 248–49 (4th Cir.

2011)). The State fails to explain in its brief, just as Officer Gonzalez failed to explain in

the record, how Sastaita’s self pat-down was suspicious. While Sastaita’s behavior may

have seemed odd to Officer Gonzalez, that is not enough. See Crockett v. State, 803

S.W.2d 308, 313 (Tex. Crim. App. 1991) (en banc). “What matters are the objective facts

that indicate criminal activity, not the officer's characterization of them.” Wade, 422

S.W.3d at 672 (citing Davis, 947 S.W.2d at 242) (emphasis added). Therefore, we

disagree that Sastaita’s purportedly odd behavior was probative in justifying Officer

Gonzalez’s reasonable suspicion.


                                             14
D.      Summary

        We conclude that Sastaita’s nervousness and “odd behavior” were insufficient to

constitute reasonable suspicion. Sastaita’s statement about marijuana in his car was

derived from Officer Gonzalez’s illegal detention and was “fruit of the poisonous tree” and

therefore that statement could not provide probable cause for searching appellee’s car.

See Wade, 422 S.W.3d at 675. The trial court correctly granted Sastaita’s motion to

suppress. The State’s sole issue is overruled.

                                      III.   CONCLUSION

     We affirm the trial court’s order.


                                                    GREGORY T. PERKES
                                                    Justice

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

Delivered and filed the
17th day of December, 2015.




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