Date: 11-27-2016

Case Style:

Case Number: 01-16-00331-CR

Judge: Jane Bland

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Andreea Ionescu
Alan Keith Curry
Devon Anderson

Defendant's Attorney:

Timmy Donahue

Description: In May 2014, Deputy Hebert, an employee of the County Sheriff’s Office
Crime Control Division, was traveling north on Homestead Road. Hebert spotted a
vehicle with no front license plate and dark tinted windshield and front side
windows. He executed a traffic stop. Hebert asked Chatmon, the driver, for his
driver’s license and proof of insurance. Chatmon gave Hebert his driver’s license
and informed Hebert that he did not have proof of insurance because the car was a
rental. Hebert checked the tint on the windows and ran a warrant check. The
warrant check revealed that Chatmon had a previous charge for unlawfully
carrying a weapon, multiple charges for burglary of a motor vehicle, and other
misdemeanor and felony cases. But Hebert found no open warrants for Chatmon’s
arrest.
Hebert issued citations for the offenses of (1) attempted window material—
wrong color; (2) affixing light-altering material to the window; and (3) no seat
belt—driver. Hebert asked Chatmon if he had any weapons in his vehicle. After
Chatmon responded “no,” Hebert asked for permission to search Chatmon’s
vehicle. Chatmon agreed.
Hebert recovered approximately 100 gift cards from the center console and
three cell phones. He also found a pair of black gloves, a sling shot, four
flashlights, two screwdrivers, and a pair of binoculars. Screwdrivers and
binoculars are typically used in the burglary of motor vehicles. Without seeking
additional consent, Hebert then searched the contents of Chatmon’s cell phone. He
discovered numerous photos of random individuals at gas stations. Hebert then
continued the search of the vehicle. He found a loaded Glock 27 hidden under the
steering column behind the plastic covering.
The trial court overruled Chatmon’s motion to suppress evidence of the gun.
Chatmon then pleaded guilty and was sentenced to three years’ confinement in the
Institutional Division of the Texas Department of Criminal Justice.
DISCUSSION
I. Standard of Review and Applicable Law
A trial court’s ruling on a motion to suppress evidence will not be set aside
unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134,
138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—
Houston [1st Dist.] 1997, pet. ref’d). We defer to a trial court’s determination of


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facts supported by the record, especially when the findings are based on the
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997); Spight v. State, 76 S.W.3d 761, 765 (Tex. App.—Houston [1st
Dist.] 2002, no pet.).
A traffic stop is a detention and must be reasonable. Davis v. State,
947 S.W.2d 240, 244 (Tex. Crim. App. 1997). To be reasonable, a traffic stop
must have been justified when the person was stopped and the detention must not
be longer than necessary to effectuate the purpose of the stop. Florida v. Royer,
460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Davis, 947 S.W.2d at 245. Once
the reason for the stop has been satisfied, police officers may not use the stop as a
fishing expedition for unrelated criminal activity. Davis, 947 S.W.2d at 243;
Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015). An officer may request
consent to search a vehicle during or after a completed traffic stop, but the officer
may not detain the occupant if consent is refused, unless there is reasonable
suspicion of some criminal activity. Levi v. State, 147 S.W.3d 541, 544 (Tex.
App.—Waco 2004, pet. ref’d); Spight, 76 S.W.3d at 768; Simpson v. State,
29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).


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II. Analysis
A. Length of the Detention
Chatmon contends that the police unlawfully extended the traffic stop by
asking to search the vehicle after the stop had been completed. Chatmon cites
Chavez-Villarreal and Portillo-Aguirre as persuasive authority that police may not
request consent to search a vehicle after a completed traffic stop. See United States
v. Chavez-Villarreal, 3 F.3d 124, 128 (5th Cir. 1993); United States v. Portillo
Aguirre, 311 F.3d 647, 659 (5th Cir. 2002). In each of these cases, however,
reasonable suspicion did not support the stop. See Chavez-Villarreal, 3 F.3d at 127
(officer did not have reasonable suspicion to execute traffic stop or continue
detention); Portillo-Aguirre, 311 F.3d at 650 (bus was routinely stopped at
immigration checkpoint; passenger presented proof of immigration status and
agent nevertheless extended detention and asked to search bag containing
narcotics). In contrast, in this case, Deputy Hebert had reasonable suspicion to
conduct a traffic stop because the tint on the vehicle’s windows violated traffic
law, and Chatmon did not present proof of insurance; thus, the detention was legal.
See Magana v. State, 177 S.W.3d 670, 673 (Tex. App.—Houston [1st Dist.] 2005,
no pet.); Levi, 147 S.W.3d at 544; Spight, 76 S.W.3d at 768; Simpson, 29 S.W.3d
at 328. The detention was not prolonged, as Deputy Hebert asked for consent after
checking information about the vehicle and Chatmon’s criminal history and issuing


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citations. Caraway v. State, 255 S.W.3d 302, 308 (Tex. App.—Eastland 2008, no
pet.); Spight, 76 S.W.3d at 768. We hold that the trial court did not abuse its
discretion in denying Chatmon’s motion to suppress on the basis that the deputy
unlawfully prolonged the traffic stop when he requested consent to search the
vehicle.
B. Taint of the Cell Phone Search
Chatmon further argues that the search of his cell phone was illegal and
unreasonably delayed his detention and tainted his consent to search the vehicle.
An officer may not search the contents of a cell phone absent specific consent to
search the phone, a warrant, or probable cause to search it. Riley v. California, 134
S. Ct. 2473, 2485 (2014). Nothing in the cell phone search, however, contributed
to Deputy Hebert’s discovery of the weapon behind the steering column. In
addition, Chatmon had already consented to the search of the vehicle before the
deputy searched the cell phone; thus, the cell phone search did not prompt the
consent to search the car. Because the cell phone search did not affect Chatmon’s
consent to search the vehicle, which led to the discovery of the weapon, the
deputy’s search of the phone does not vitiate Chatmon’s consent to the search of
his vehicle. See Wehrenberg v. State, 416 S.W.3d 458, 468 (Tex. Crim. App.
2013) (holding that, “if there is no causal connection, then the evidence cannot be
said to have been ‘obtained’ in violation of the law and thus is not subject to


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exclusion.”). Because Chatmon did not restrict or limit his consent to search the
vehicle and the search of the cell phone did not contribute to either the consent or
the search, the trial court acted within its discretion in concluding that Chatmon’s
consent to the search was not vitiated by the cell phone search. See id.; see also
Simpson, 29 S.W.3d at 330 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.
Ct. 1801, 1803 (1991) (holding that consent to search authorized search of the
trunk absent indication that the consent was more limited).

Outcome:

We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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