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Date: 12-14-2017

Case Style:

Melanie Kaye Smith v. The State of Texas

Court of Appeals Ninth District of Texas at Beaumont

Case Number: 09-15-00461-CR

Judge: Hollis Horton

Court:

Plaintiff's Attorney: William J. Delmore III

Defendant's Attorney: Robert S. Bartlett

Description: In April 2014, police arrested two individuals on warrants from another
county charging them with credit card abuse. The man worked for a traveling
carnival, which at that time was being operated at the Montgomery County
fairgrounds. The other person who was arrested was the man’s girlfriend, who was
living with him. Department of Public Safety Sergeant Josh Pullen interviewed the
two separately. During these interviews, both individuals stated that they knew of
methamphetamine being sold at the carnival by a woman named “Melanie” and a
man called “New York Tony.” The methamphetamine was being kept in an off
white motor home and sold from a carnival game booth.


3

Following the interviews, Sergeant Pullen contacted the Conroe Police
Department, which sent other police officers to the fairgrounds to investigate the
information given to them by Sergeant Pullen. Officers from the Conroe Police
Department went to the fairgrounds one morning before the carnival opened for the
day, and located the off-white motor home where they found Melanie Smith and
Anthony Stable inside. While the officers were at the motor home, a carnival
manager in charge of the carnival game where Smith worked gave the police
permission to search that booth. Some of the officers went to the booth and searched
it, but they did not find any drugs there. Shortly after the officers completed their
search of the booth, a canine unit arrived at the scene and the dog assigned to the
unit was used to sniff the motor home. After the drug dog alerted on the motor home,
the officers searched it and found methamphetamine inside. See Tex. Health &
Safety Code Ann. § 481.112(a), (c) (West 2017). The police arrested Smith and
Stable.1 Subsequently, both were indicted for possession with intent to deliver
methamphetamine that weighed between one and four grams. See id.
Prior to her trial, Smith filed a motion to suppress. In her motion, Smith asked
the trial court to suppress the evidence that police recovered in their search of the

1 The proceedings in Smith’s case reflect that Stable died while he was on his way to court on the day before the court conducted the hearing on Smith’s motion to suppress.


4

motor home. In the hearing on Smith’s motion, Smith argued that the motor home
was improperly subjected to a warrantless search and that the police should have
obtained a search warrant before searching the motor home, which she claimed was
the equivalent of her residence. In the alternative, Smith argued that should the motor
home be treated as a vehicle for the purposes of the search, the evidence failed to
demonstrate that the police had reasonable suspicion to search the motor home given
the information that police received from the trooper who interviewed the
individuals who were arrested for credit card abuse. Additionally, Smith argued that
even if reasonable suspicion existed that justified the search, she was detained longer
than reasonably required for police to investigate whether she was selling drugs at
the fair.
Four witnesses, three law enforcement officers and Smith, testified during the
hearing on Smith’s motion to suppress. Sergeant Pullen, the trooper who interviewed
the two individuals for credit card abuse, was the first witness who testified in the
hearing. Sergeant Pullen explained that in early April 2014, he received information
from another Department of Public Safety Officer in the Austin area that a man and
a woman believed to be with a traveling carnival operating at the Montgomery
County fairgrounds had outstanding warrants authorizing their arrests on charges of


5

credit card abuse. According to Sergeant Pullen, he went to the Montgomery County
fairgrounds and arrested both individuals.
After arresting the individuals, Sergeant Pullen interviewed them. According
to Sergeant Pullen, both of the individuals, in separate interviews, told him that
methamphetamine was being sold at the carnival by an individual named “Melanie,”
a carnival game worker, and another individual named “New York Tony,” a carnival
manager. According to Sergeant Pullen, one of the individuals that he interviewed
told him that “Melanie” was selling methamphetamine “in the balloon activities
there at the carnival ground.” Both individuals told Sergeant Pullen that Melanie and
Tony were living in a moveable vehicle, which one described as an “RV” and the
other as a “dirty white” motor home. Both of the individuals told Sergeant Pullen
that Melanie and Tony were living together in the vehicle on the grounds of the fair,
and that Melanie and Tony kept their drugs inside the vehicle.
Sergeant Pullen further testified that he passed the information about the
claimed drug activity at the fair to the Conroe Police Department. According to
Sergeant Pullen, he never promised any leniency or made any deals with the
individuals he interviewed in return for the information he was given during the
interviews. We note that the transcript from the hearing on Smith’s motion to
suppress reflects that the interviews of the individuals Sergeant Pullen conducted


6

were recorded, and that the trial court reviewed the video recordings before it ruled
on Smith’s motion.
The second witness who testified at the hearing was the Conroe Police
Department narcotics officer who led the investigation that ensued following
Sergeant Pullen’s report about drugs being sold at the fair. The narcotics officer
testified that in April 2014, he received a tip from Sergeant Pullen that a female
named Melanie and a male named Tony were staying at the carnival in an off-white
motor home and selling methamphetamine out of their motor home and from a
carnival game. The narcotics officer explained that after receiving the tip, he and the
two other Conroe Police Department officers went to the fairgrounds. After locating
the off-white motor home, which the narcotics officer indicated appeared to be in a
drivable condition, the police knocked on the door of the motor home. A man came
to the door who identified himself as Tony.2 Tony told the officer that he traveled
with the carnival, and that Smith was inside. When Smith came outside, she provided
the officer with her name and date of birth, and stated that she had previously been
arrested for driving under the influence.
The narcotics officer explained that after he spoke to Smith, the Conroe Police
Department advised him that Smith had previously been arrested on a charge of

2 Subsequently, Tony told the officers that his name was Anthony Stable.


7

possession of methamphetamine. The officer explained that after he established that
Stable owned the motor home, Stable refused to allow the police to search it. While
the officers were attempting to obtain permission to search the motor home, a
carnival manager approached the officers and gave them permission to search the
carnival booth where Smith worked. Before searching the booth, the police
requested that the Conroe Police Department send a canine unit to Stable’s motor
home.
When the search of the carnival booth where Smith worked was not fruitful,
the narcotics officer returned to the motor home. Smith and Stable were detained
outside the motor home by police during the period that the narcotics officer
searched the booth. Just as the narcotics officer was returning to the motor home, the
canine unit arrived. According to the narcotics officer, he watched the canine unit as
it conducted a search around the exterior of the motor home, and he saw the unit’s
drug dog, Ninja, alert on the motor home. After Ninja alerted outside the motor
home, the police went inside, searched the motor home for drugs, and found some
methamphetamine inside.
On cross-examination, the narcotics officer agreed that Smith was detained by
police from the point that she came outside the motor home until she was arrested.
The narcotics officer’s testimony indicates that in the entire period that Smith was


8

detained, the police were investigating the tip they received from Sergeant Pullen
that Smith was selling methamphetamine on the fairgrounds.
The third witness in the hearing was Joe Foxworth, an officer with the Conroe
Police Department assigned to the canine unit. Officer Foxworth is Ninja’s handler,
and he explained that he brought Ninja to the fairgrounds in response to the narcotics
officer’s request. Officer Foxworth described Ninja’s training, and he explained the
process used in having Ninja sniff the motor home. According to Officer Foxworth,
Ninja alerted while standing in front of two of the doors to the motor home. Ninja’s
alerts on the motor home indicated to him that Ninja smelled narcotics inside the
motor home.
After the State rested, Smith’s attorney called Smith to establish that the motor
home was being used as Smith’s home on the day the motor home was searched.
Smith testified that the motor home was parked in a fenced area of the fairgrounds,
and that it was located in an area shared with fifty or sixty other motor homes, house
trailers, and recreational vehicles. According to Smith, she slept and ate in the motor
home while traveling and working with the carnival, which traveled between several
states. Smith testified that in Montgomery County, the motor home was in an area
where utilities were provided to carnival workers who wanted to live on the
fairgrounds in return for paying a fee. Smith also explained that on the day the search


9

occurred, the motor home was connected to sewer, water, and electrical utilities that
were provided for carnival workers living at the fairgrounds. Smith also described
the procedure that was required to prepare the motor home to be moved. According
to Smith, the procedure required to move the motor home took approximately thirty
minutes to an hour. Smith admitted during the hearing that police found
methamphetamine inside the motor home when it was searched, but she denied that
she knew where the methamphetamine was located when it was discovered.
At the conclusion of the hearing, the trial court advised the parties that it had
decided to deny the motion to suppress. The trial court explained that from the
evidence, the court had concluded that the motor home was readily mobile. The
record does not show that the trial court reduced its findings to writing following the
hearing, nor does it show that any of the parties requested the trial court to make any
written findings.3
After the trial court denied Smith’s motion to suppress, Smith agreed to plead
guilty to possession with intent to deliver, between one and four grams of
methamphetamine, based on the terms of a plea bargain that allowed her to appeal
the trial court’s ruling on her motion to suppress. Under the plea agreement, the trial

3 On a motion to suppress evidence, a trial court must state its findings of fact and conclusions of law upon the losing party’s request. State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006). However, Smith apparently made no such request.


10

court deferred making a finding on Smith’s guilt, placed Smith on community
supervision for seven years, and ordered her to pay a $1,500 fine, court costs, and
restitution. Subsequently, Smith exercised her right to appeal the trial court’s ruling
on the motion to suppress.
Standard of Review
We use a bifurcated standard when reviewing a trial court’s ruling on a motion
to suppress. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). In our review, we
give the trial court’s findings of historical fact almost total deference when the
findings are supported by the record. Id. When the issues being reviewed involve
findings that were based on the trial court’s resolution of mixed questions of law and
fact, the findings are given almost total deference if the findings turn on the trial
court’s evaluation of the credibility and demeanor of any witnesses. Id. In contrast,
when the trial court’s findings are based on its evaluation of a mixed question of law
and fact that do not depend on the trial court’s evaluation of the credibility or
demeanor of the witnesses or their testimony, the ruling is reviewed using a de novo
standard. Id. (citing Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App.
2006)); Guzman, 955 S.W.2d at 89. If no findings of fact are requested or filed
following a hearing on a motion to suppress, which is the situation in Smith’s case,


11

we “impl[y] the necessary fact findings that would support the trial court’s ruling if
the evidence (viewed in the light most favorable to the trial court’s ruling) supports
these implied fact findings.” State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim.
App. 2006); accord State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Warrantless Search
In issue one, Smith argues the trial court erred by treating the motor home as
a vehicle and not a residence for the purpose of determining if the search was
reasonable. According to Smith, because she was using the motor home as her
residence, the police were required to obtain a search warrant to conduct a lawful
search.
In support of her argument, Smith points to the evidence from the suppression
hearing that tends to show the motor home, when it was searched, was in an area
that was fenced. Smith also points to the evidence, her testimony, which tends to
show the motor home was connected to water, sewer, and electric utilities when the
search occurred. Smith disputes the trial court’s conclusion that the motor home was
readily moveable, and she relies on her testimony that moving the motor home could
take up to an hour.
In its brief, the State argues that the trial court did not abuse its discretion
based on the evidence presented in the hearing in concluding that the motor home


12

was readily moveable. Generally, absent one of several possible exceptions, the
Fourth Amendment protects citizens against searches and seizures by government
officials unless the official obtains a search warrant. U.S. CONST. amend. IV. There
are several recognized exceptions to the requirement that government officials
obtain a search warrant before conducting a search. These include the consent
exception, the exigency exception, the automobile exception, the search-incident-to
arrest exception, and the special-needs exception. State v. Rodriguez, 521 S.W.3d 1,
9-10 (Tex. Crim. App. 2017) (citing O’Connor v. Ortega, 480 U.S. 709 (1987);
California v. Carney, 471 U.S. 386 (1985); Mincey v. Arizona, 437 U.S. 385 (1978);
Schneckloth v. Bustamonte, 412 U.S. 218 (1973); United States v. Robinson, 414
U.S. 218 (1973)). In Smith’s case, the issue is whether the trial court properly applied
the automobile exception to a motor home under circumstances where Smith was
using the motor home as a place to live while working for a traveling carnival.
In Carroll v. United States, 267 U.S. 132 (1925), the United States Supreme
Court first recognized the automobile exception to the Fourth Amendment’s general
requirement that a search warrant is needed to authorize a search conducted by police
because a “vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.” Id. at 153. In Carney, the Court extended the exception
to a motor home parked in a parking lot, explaining that the motor home was readily


13

moveable and that it was being used when the search occurred for the purpose of
transportation. 471 U.S. at 394. The Texas Court of Criminal Appeals has also
applied the automobile exception to a motor home where the circumstances showed
that the motor home was being used primarily as a vehicle, not a residence. See
Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994).
In Smith’s case, Smith relies primarily on her testimony in the suppression
hearing to establish that she was using the motor home as a residence on the day the
search occurred. Although Smith testified that the motor home was hooked up to
water, sewer and electric utilities that day, a photograph of the motor home that was
in evidence in the hearing does not show the utility connections that Smith described.
While a large black cord on the ground near the motor home can be seen in the photo,
and the cord appears to be an electrical extension cord of some type, the photograph
does not show whether the cord was connected or disconnected from the motor home
when the search occurred. Additionally, the photograph of the motor home does not
show whether any of the other utilities Smith described were connected to the motor
home on the day the search occurred. Although Smith claimed that carnival workers
were billed for utilities, the record contains no bills showing that Smith or Stable
were being charged for utilities that Smith claimed were provided by the fair.


14

In Smith’s case, the mobility of the motor home at the time the search
occurred was the issue in dispute. The trial court was not required to believe Smith’s
testimony, so it was not required to believe that the motor home had been hooked up
to utilities on the day the search occurred. See Ross, 32 S.W.3d at 855 (permitting a
trial judge, as the trier of fact and judge of witness’s credibility, to believe or
disbelieve the testimony of a witness at a suppression hearing). In Smith’s case, no
one associated with the organization in charge of the fair testified in the hearing on
the motion to suppress about whether utilities were provided to carnival workers
who were living at the fair, and no bills for utilities were admitted in the hearing to
show that Smith or Stable were being charged for water, sewer, or electricity on the
day the search occurred. In the absence of objective evidence showing that the motor
home was attached to the electrical, water and sewer utilities, the trial court was not
required to believe Smith’s suggestion that the motor home could not be moved
easily because it was attached to various utilities that would have complicated the
movement of the motor home on the day it was searched. Id.
Importantly, none of the testimony in the hearing shows that the motor home
was blocked into the location where it was found on the day it was searched.
Generally, the evidence introduced during the hearing shows that the motor home
had an engine that worked and tires that were inflated on the day the search occurred.


15

These facts, together with the trial court’s right to disregard Smith’s testimony as
not credible, and the absence of any other evidence showing that the motor home
could not be readily moved on the day of the search allowed the trial court to exercise
its discretion and find that the motor home was readily moveable on the day the
search occurred.
Viewed with the deference required by the standard of review that applies to
motions to suppress, the trial court could reasonably conclude from the evidence
admitted during the hearing that the motor home had a working engine, that it had
inflated tires, that it was parked in a public place and not a residential area, that the
motor home did not have any utilities attached to it in a manner to impede the motor
home’s quick movement, and that Smith and Stable, on the day of the search, were
using the motor home primarily as transportation to move between cities while
working for a traveling carnival. Giving the trial court the deference that we must
when reviewing mixed questions of law and fact, we hold the trial court did not
abuse its discretion by concluding that the automobile exception applied to the motor
home. See Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (noting that
reviewing courts afford almost total deference to a trial court’s determination of a
mixed question of law and fact if its resolution turned on the evaluation of credibility


16

and demeanor); see also Carney, 471 U.S. at 392-94; Powell, 898 S.W.2d at 827.
We overrule Smith’s first issue.
Initial Detention and Reasonable Suspicion
In issue two, Smith argues the State failed to prove during the hearing on the
motion to suppress that the officers who detained her had a reasonable suspicion that
she was, had been, or would soon be engaged in criminal activity. According to
Smith, the tip the narcotics officer received from Sergeant Pullen was insufficient to
establish that sufficient suspicion existed to justify the decision made by the
narcotics officer to detain Smith after she came outside the motor home. Relying on
State v. Hill, 299 S.W.3d 240, 246 (Tex. Crim. App. 2009), Smith argues that the
information Sergeant Pullen obtained by interviewing the individuals he arrested for
credit card abuse did not give the police the reasonable suspicion needed to justify
their search.
In our opinion, Hill is distinguishable from Smith’s case on its facts. Id. at
242. In Hill, the Court of Criminal Appeals considered whether the four corners of
an affidavit contained sufficient information to justify a magistrate’s decision to
issue a search warrant. Id. In contrast, Smith’s case does not involve a magistrate’s
review of information that is confined to the four corners of an affidavit. In Smith’s
case, the trial court based its determination on its evaluation of the credibility and


17

demeanor of the witnesses who testified and its evaluation of the credibility of the
informants from the video recordings that it reviewed of their interviews. Unlike
Hill, the trial court in Smith’s case had information that allowed it to independently
assess the credibility of the informants who were interviewed by Sergeant Pullen.
Id.
Under the Fourth Amendment, a police officer can stop and briefly detain a
person for investigative purposes when the officer has a reasonable suspicion
supported by articulable facts that the person was or soon would be involved in
criminal activity. Terry v. Ohio, 392 U.S. 1, 29 (1968); Woods v. State, 956 S.W.2d
33, 35 (Tex. Crim. App. 1997). Reasonable suspicion, not probable cause, is the
standard that applies when an officer briefly detains an individual for the purpose of
investigating the existence of possible criminal activity. Id. The parties do not
dispute that Smith’s detention occurred because the police were investigating
whether she was involved in selling drugs. According to the State, Smith’s detention
was reasonably justified based on the information that police obtained from the
individuals who claimed that Smith was involved in selling methamphetamine at the
fair.
In determining if reasonable suspicion exists, courts should consider “‘the
cumulative information known to the cooperating officers at the time of the stop[.]’”


18

Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Hoag
v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987)). In this case, the tip conveyed
to the narcotics officer by Sergeant Pullen was not from an anonymous source, as
the identities of the individuals who provided Sergeant Pullen with the information
that led to the search of the motor home were known. When information is provided
by citizens who are identified, the citizens can be held accountable for the accuracy
and veracity of their reports. Derichsweiler, 348 S.W.3d at 914-15. Consequently,
the police, and the trial court, may regard information about criminal activity that is
provided by such individuals as being reliable. Id.
Additionally, in deciding a motion to suppress, a trial court is required to
determine “whether the information that the known citizen-informant provide[d],
viewed through the prism of the detaining officer’s particular level of knowledge
and experience, objectively supports a reasonable suspicion to believe that criminal
activity is afoot.” Id. at 915. An objective standard is employed to determine whether
a police officer developed a reasonable suspicion justifying further investigation into
alleged criminal activity, and in reviewing an officer’s decision to continue the
investigation, courts evaluate whether the facts available to the officer would
“‘warrant a man of reasonable caution in the belief’ that the action taken was
appropriate[.]” Terry, 392 U.S. at 21-22 (quoting Carroll, 267 U.S. at 162);


19

Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998, pet. ref’d)
(citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)).
In Smith’s case, the video recordings of the interviews of the two individuals
arrested for credit card abuse were admitted into evidence without objection. The
record shows the trial court reviewed the recordings of the interviews. The
recordings confirm Sergeant Pullen’s account that the interviews were conducted
separately, that both of the individuals who were interviewed identified Smith as a
person who was selling methamphetamine at the fair, and that both of the individuals
indicated that methamphetamine might be found either where Smith worked or in
the motor home. Since the trial court reviewed the recordings of the interviews and
the names of the individuals that Sergeant Pullen interviewed were not confidential
sources, it was reasonable for the trial court to view the individuals that Sergeant
Pullen interviewed as citizen informants who could be held accountable for the
information they were providing to the police. See Derichsweiler, 348 S.W.3d at
914.
Viewing the evidence before the trial court objectively, we conclude the trial
court did not abuse its discretion by viewing the information that Sergeant Pullen
obtained from the individuals he interviewed as sufficient justification to detain
Smith to allow police to conduct an investigation into the claim made by the


20

individuals that Smith was selling drugs at the fair. Id. We overrule Smith’s second
issue.
Unduly Prolonged Detention
In her third issue, Smith argues that her detention was unduly prolonged
because she was detained longer than necessary for police to complete their
investigation into whether she was selling drugs at the fair. A police officer is
allowed to detain a person on a temporary basis to investigate the officer’s
reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 29; Woods,
956 S.W.2d at 35. The reasonableness of the duration of the detention depends on
whether the police diligently pursued the investigation in a manner that was likely
to confirm or dispel any suspicions quickly while detaining the defendant. United
States v. Sharpe, 470 U.S. 675, 686 (1985); see also Belcher v. State, 244 S.W.3d
531, 539 (Tex. App.—Fort Worth 2007, no pet.). It is unlawful for police officers to
prolong a stop beyond the time reasonably required to complete the purpose of the
stop. Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015). Factors that are
considered in deciding whether a person has been detained for an unreasonable
period of time include whether a legitimate need for law enforcement was served by
any delays that were attendant to the investigation. Belcher, 244 S.W.3d at 539.


21

Generally, if the evidence in a suppression hearing shows that police acted
swiftly to a developing situation, an appellate court should not indulge in unrealistic
second-guessing. See Sharpe, 470 U.S. at 686. In Smith’s case, the narcotics officer
discussed in detail the choices he made to investigate the claim that Smith was
involved in selling drugs at the fair. During the hearing, the narcotics officer
indicated he located the motor home described by the informants at the fairgrounds,
he identified Smith and Stable as the individuals who were inside, and after
contacting Smith and Stable, he requested their criminal histories from dispatch.
According to the narcotics officer, within twenty minutes after the police arrived at
the motor home, Stable refused to allow the motor home to be searched. At that
point, the narcotics officer requested that a canine unit be sent to the fairgrounds,
and he described how he obtained permission from a carnival manger to conduct a
search of the location where Smith worked, another of the locations that police had
reason to believe that Smith might be storing illegal drugs. After searching the
carnival booth, the narcotics officer returned to the motor home. At that point, the
canine unit that the officer requested earlier that morning arrived at the fair. The
police radio log that was relevant to the investigation the police conducted at the
fairgrounds was admitted into evidence during the hearing. The times on the log


22

indicate that the canine unit arrived on the fairgrounds approximately 33 minutes
after the narcotics officer first arrived there.
The record shows that the narcotics officer’s request for a canine unit was a
step taken in the investigation that furthered a legitimate need for law enforcement
because it was designed under the circumstances of this case to quickly dispel the
suspicion formed by police that Smith was selling drugs at the fair. The evidence
allowed the trial court to conclude the request for the canine unit was made in a
timely fashion, and that the canine unit arrived within a reasonable period after the
narcotics officer requested the unit. See Sharpe, 470 U.S. at 686. In our opinion, the
record supports the trial court’s conclusion that the police diligently pursued their
investigation into whether Smith was selling drugs at the fair, and that the
investigation was pursued in a reasonable and timely fashion in a way that was
designed to quickly resolve whether Smith had committed a crime. Id.; see also
Belcher, 244 S.W.3d at 539. We overrule Smith’s complaint that her detention was
unduly prolonged.

Outcome: Having carefully considered Smith’s arguments, we hold the trial court did
not abuse its discretion by denying Smith’s motion to suppress. We overrule Smith’s issues, and we affirm her conviction.

Plaintiff's Experts:

Defendant's Experts:

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