                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00181-CR
         ______________________________


        ERIC DEWAYNE MATHIS, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 35513-B




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                    MEMORANDUM OPINION

       Eric Dewayne Mathis appeals his conviction for possession of a controlled substance,

alleging his detention and search were improper and therefore the trial court erred in denying his

motion to suppress the evidence. We affirm the judgment of the trial court.

I.     Factual and Procedural Background

       While responding to a report of a disturbance with several other officers, Officer Kirk Rhodes

observed a green Honda that appeared to be driven at an unsafe speed in a residential area. Rhodes

signaled with his hands and his flashlight for the driver to slow down. Either interpreting Rhodes'

signals as a request to stop or for some other reason, the driver stopped the vehicle on the side of the

road. When Rhodes approached the vehicle, he detected the distinctive odor of marihuana. Rhodes

requested the driver, Mathis, to exit the vehicle, ordering him to "keep his hands up where [Rhodes]

could see them." As Mathis exited the vehicle, he reached "for the front of his pants or around his

pockets." Believing Mathis might have a weapon or was attempting to conceal something, Rhodes

conducted a search of Mathis. During the search, another officer observed Mathis drop something.

A bag containing cocaine was discovered near Mathis' feet. After the trial court denied Mathis'

motion to suppress, Mathis pled guilty to possession of a controlled substance and signed a

stipulation of the evidence. The trial court found Mathis guilty and sentenced him to seven years'

imprisonment.




                                                   2
II.    Reasonableness of the Detention

       Mathis' first argument is that the stop was unreasonable. According to Mathis, Officer

Rhodes lacked probable cause or reasonable suspicion to detain Mathis because there was no

"objective basis" for the officer's conclusion that Mathis was speeding. Mathis argues there is no

evidence Rhodes clocked Mathis' speed with a radar gun and the State failed to introduce any

evidence that Rhodes had specialized training that would allow him to evaluate the speed of a

vehicle without the use of radar. The State responds that the stop was a consensual encounter or, in

the alternative, Rhodes had specific, articulable facts to justify the detention.

       A.      Standard of Review

       We review the trial court's decision on a motion to suppress evidence by applying a

bifurcated standard of review deferring to the trial court's determination of historical facts that

depend on credibility, but review de novo the trial court's application of the law. Wiede v. State, 214

S.W.3d 17, 25 (Tex. Crim. App. 2007); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). The trial court's evidentiary ruling "will be upheld on appeal if it is correct on any theory of

law that finds support in the record." Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.

2006); see Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Generally, we review

de novo determinations of probable cause or reasonable suspicion after granting deference to the trial

court's determination of historical facts. Guzman, 955 S.W.2d at 87.




                                                   3
       The defendant alleging a Fourth Amendment violation bears the burden of producing some

evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666,

672 (Tex. Crim. App. 2007). "A defendant meets his initial burden of proof by establishing that a

search or seizure occurred without a warrant." Id. The burden then shifts to the State to prove that

the search or seizure was nonetheless reasonable under the totality of the circumstances. Id. at

672–73.

       The first step in our analysis is to determine the nature of the interaction between Officer

Rhodes and Mathis. "[N]ot all seizures of the person must be justified by probable cause to arrest

for a crime." Florida v. Royer, 460 U.S. 491, 498 (1983). The parties do not agree concerning how

we should characterize the interaction. Mathis argues the interaction was an arrest or, alternatively,

a temporary detention. The State argues the interaction was an encounter or, alternatively, a

temporary detention.

       B.      Detention Was Not an Arrest

       Mathis impliedly argues the interaction was an arrest.1 An individual is arrested when he or

she has been actually placed under restraint or taken into custody. TEX . CODE CRIM . PROC. ANN . art.




       1
         Mathis argues "[n]o reasonable person would have felt he was free to leave in these
circumstances" and that the officer lacked probable cause to stop Mathis. Because these standards
are pertinent to arrests, we presume Mathis is arguing the original interaction was an arrest. We
note, in Texas, a police officer must promptly release a person accused of speeding from custody
if the person executes a written promise to appear in court. TEX . TRANSP . CODE ANN . §§ 543.004,
543.005 (Vernon Supp. 2007). But see Virginia v. Moore, No. 06-1082, 2008 U.S. LEXIS 3674
(U.S. Apr. 23, 2008).
                                                 4
15.22 (Vernon 2005). "A person is in 'custody' only if, under the circumstances, a reasonable person

would believe that his freedom of movement was restrained to the degree associated with a formal

arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). At least four general

situations may constitute custody: 1) the suspect is physically deprived of his or her freedom of

action in any significant way, 2) a law enforcement officer tells the suspect that he or she cannot

leave, 3) law enforcement officers create a situation that would lead a reasonable person to believe

that his or her freedom of movement has been significantly restricted, and 4) there is probable cause

to arrest and law enforcement officers do not tell the suspect that he or she is free to leave. Id. at

255. At the time of the stop, Mathis had not been physically restrained and had not been told he was

under arrest. The record does not support a conclusion that, under the circumstances, a reasonable

person would believe that his or her freedom of movement was restrained to the degree associated

with a formal arrest. There is no evidence the officer's knowledge of probable cause was manifested

to the suspect. The stop was not an arrest.

       C.      An Encounter

       The State claims the interaction was an encounter which does not require reasonable

suspicion. Not every interaction between police and citizens implicates the Fourth Amendment. The

law authorizes a police officer to stop and ask questions of a citizen. These encounters are

consensual as long as the person would feel free to go about his or her business. Hunter v. State, 955

S.W.2d 102, 104 (Tex. Crim. App. 1997); see Florida v. Bostick, 501 U.S. 429, 434 (1991);

California v. Hodari D., 499 U.S. 621 (1991). Even when officers have no basis to suspect an
                                                  5
individual, they may ask questions of that individual, ask to examine that person's identification, and

request to search such person's luggage, so long as the police do not by their actions actually inform

the person that compliance with their requests is required. Bostick, 501 U.S. at 434–35; Hunter, 955

S.W.2d at 104.

       A seizure of the person occurs when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen. Bostick, 501 U.S. at 434. Rhodes

testified he did not intend for his signal to be interpreted as a command to stop and, when the car

stopped, he believed the driver "wanted to speak to [him]." The State argues Mathis could have

rolled up his window and continued driving. Rhodes testified he signaled with his hands and his

flashlight for the car to slow down. While conceding it was possible a person would interpret the

signal as an indication he wanted the individual to stop, Rhodes claimed the signal was a common

signal meaning to slow down. Rhodes agreed a "conscientious person who wants to be sure he

doesn't disobey an order" might interpret his signals as a command to stop. Even if the initial police

intervention is considered an investigative detention, we believe such a detention was proper.

       D.        Terry Detention

       We believe the interaction is best characterized as an investigative detention. "A routine

traffic stop resembles an investigative detention." State v. Cardenas, 36 S.W.3d 243, 246 (Tex.

App.—Houston [1st Dist.] 2001, pet. ref'd). The United States Supreme Court in Terry v. Ohio

established the test for investigative detentions.      Terry established a two-pronged test for

investigative detentions. Terry v. Ohio, 392 U.S. 1, 19–20 (1968). To determine the reasonableness
                                                  6
of an investigative detention, the court must inquire: "(1) whether the officer's action was

justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances

which justified the interference in the first place." Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim.

App. 1997); see Terry, 392 U.S. at 19–20.

        "Under the first prong, 'the police officer must be able to point to specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant that

intrusion.'" Davis, 947 S.W.2d at 242 (quoting Terry, 392 U.S. at 21). The specific, articulable

facts, along with rational inferences from those facts, must allow the officer to reasonably conclude

the person detained actually is, has been, or soon will be engaged in criminal activity. United States

v. Sokolow, 490 U.S. 1, 10 (1989). The second prong of Terry requires the scope of the detention

to be "like any other search, . . . strictly circumscribed by the exigencies which justify its initiation."

Davis, 947 S.W.2d at 243 (quoting Terry, 392 U.S. at 25). The officer must diligently pursue a

means of investigation that lasts no longer than is necessary and should be the "least intrusive means

reasonably available." Id. at 245. Mathis only challenges the first prong of the test.

        A law enforcement officer may lawfully stop and detain a person for a traffic violation

committed in the presence of the officer. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App.

1992); Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref'd). "The offense

of speeding requires, in general, proof that the vehicle's speed was not reasonable and prudent."

Tollett v. State, 219 S.W.3d 593, 598 (Tex. App.—Texarkana 2007, pet. ref'd). Section 545.351 of

the Texas Transportation Code provides: "[a]n operator may not drive at a speed greater than is
                                                    7
reasonable and prudent under the circumstances then existing." TEX . TRANSP . CODE

ANN . § 545.351(a), (b) (Vernon 1999). A posted speed limit is merely "prima facie evidence that

the speed is not reasonable and prudent and that the speed is unlawful." TEX . TRANSP . CODE ANN .

§ 545.352 (Vernon Supp. 2007); see also TEX . TRANSP . CODE ANN . §§ 545.353, 545.355, 545.356

(Vernon Supp. 2007).

       The El Paso Court of Appeals has concluded an investigative detention for speeding may be

reasonable even in the absence of a measurement of the speed by radar. Heredia v. State,

No. 08-06-00011-CR, 2007 Tex. App. LEXIS 4638 (Tex. App.—El Paso June 14, 2007, no pet.)

(mem. op., not designated for publication) (estimated speed with police car's speedometer).

Although Rhodes did not use the words "reasonable and prudent," a reasonable deduction from his

testimony would be that the speed was not reasonable or prudent. Rhodes testified the car "appeared

to be traveling above the speed limit" and the speed "presented a danger" to several police officers

and juveniles near the road.

       Even though there is no evidence Mathis' speed was measured with radar, Rhodes had

reasonable suspicion that Mathis' speed was not reasonable and prudent. The trial court did not err

in determining the original detention of Mathis' vehicle for the traffic offense of speeding was

reasonable.

III.   Probable Cause to Search

       Mathis also argues the evidence should have been suppressed because Rhodes lacked

probable cause to search Mathis. We note that the cocaine was found by Mathis' feet. As such, the
                                                 8
cocaine may have been abandoned. There is no seizure under the Fourth Amendment if the

defendant "intended to abandon the property and his decision to abandon it was not due to police

misconduct." McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997). Mathis appears to

argue that the abandonment of the substance was occasioned by the search. We will assume, without

deciding, that whether the officer had probable cause to search Mathis' person is relevant to whether

there was a seizure under the Fourth Amendment. Because the facts are not developed sufficiently,

we will also assume the search did not constitute a pat-down search.2

       In determining probable cause, we must consider the totality of the circumstances. Angulo

v. State, 727 S.W.2d 276, 278 (Tex. Crim. App. 1987). Although probable cause requires more than

mere suspicion, it requires far less evidence than is needed to support a conviction or even a finding

by a preponderance of the evidence. Middleton v. State, 125 S.W.3d 450, 459 (Tex. Crim. App.

2003). Probable cause exists where officers have reasonably trustworthy information sufficient to

warrant a reasonable belief that an offense has been or is being committed. McGee v. State, 105




       2
         The State characterizes the search as a "weapons frisk" or "pat-down" search. Rhodes
testified he asked Mathis to exit the car for a "preliminary weapons frisk." Throughout the rest of
the hearing, Rhodes described the search merely as a "search." The record does not contain any
details concerning how the search was conducted or how intensive the search was. We note "[l]aw
enforcement personnel may conduct a limited search for weapons of a suspect's outer clothing, even
in the absence of probable cause, where an officer reasonably believes that the suspect is armed and
dangerous." Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). Because the State
had the burden to show the warrantless search was reasonable, we will assume—in the absence of
a sufficient record—the search exceeded the scope permitted by a "pat-down" or "frisk" search for
weapons.
                                                   9
S.W.3d 609, 614 (Tex. Crim. App. 2003); see Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim.

App. 2005).

       Mathis argues, if the odor of marihuana has any relevance to probable cause, it merely

provides probable cause to search the automobile. We have recently held the odor of marihuana is

an important factor in determining whether an officer had probable cause to search an automobile.

See Martin v. State, No. 06-07-00104-CR, 2008 Tex. App. LEXIS 2167 (Tex. App.—Texarkana

Mar. 27, 2008, no pet.) (mem. op., not designated for publication); see also Parker v. State, 206

S.W.3d 593, 599 (Tex. Crim. App. 2006); Moulden v. State, 576 S.W.2d 817, 819–20 (Tex. Crim.

App. [Panel Op.] 1978). However, the odor, under the facts of this case, is also an important factor

in determining whether the officer had probable cause to search Mathis' person. Rhodes specifically

testified that the odor of marihuana was coming from both Mathis and the car. This Court has held

the odor of marihuana, under the appropriate circumstances, can be sufficient to constitute probable

cause to search a defendant's person. See Hitchcock v. State, 118 S.W.3d 844, 851 (Tex.

App.—Texarkana 2003, pet. ref'd) (officer believed occupants of car had been smoking marihuana

based on smoke and strong odor inside car); see also Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim.

App. 1972). In addition, Rhodes testified Mathis reached "for the front of his pants or around his

pockets" after being ordered to "keep his hands up where [Rhodes] could see them." Rhodes

concluded from this gesture that Mathis might have a weapon or was attempting to conceal

something. Giving due deference to the trial court's determination of historical facts, we conclude



                                                10
Rhodes had probable cause, under the circumstances of this case, to search Mathis' person. The trial

court did not err in denying the motion to suppress.




                                                11
      For the reasons stated, we affirm the judgment of the trial court.




                                                    Jack Carter
                                                    Justice

Date Submitted:      May 14, 2008
Date Decided:        May 15, 2008

Do Not Publish




                                               12
