Fourth Court of Appeals San Antonio, Texas

Case Number: 03-17-00867-CR

Judge: Irene Rios

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney: Nicholas A. LaHood
Joshua Somers

Defendant's Attorney: Sean Keane-Dawes

Description: On May 14, 2015, Officers Nieto and Vader of the San Antonio Police Department
conducted a traffic stop of Torres’s vehicle based on the vehicle’s expired registration. Officer
Nieto approached the vehicle on the passenger side, and as he made contact with the passenger, he
smelled the odor of marijuana coming from the vehicle. The officers placed both Torres and the
passenger in handcuffs after removing them from the vehicle. Officer Vader arrested Torres for
driving without a license.
Officer Nieto saw a plastic bag with white residue on it in plain view on the center console.
Officer Nieto recognized the residue as methamphetamine. Additionally, Officer Nieto viewed an
open container of beer inside the vehicle. Officer Nieto then searched the vehicle, including the
trunk, for narcotics, based on smelling the marijuana odor and seeing the methamphetamine
residue and open beer container. The officers seized from the trunk a glass narcotics pipe and a
large zip-top bag filled with what was later identified as 3.4 grams of methamphetamine.
A grand jury indicted Torres for the offenses of possession of a controlled substance,
methamphetamine, with intent to deliver between one and four grams and possession of a
controlled substance, methamphetamine, weighing between one and four grams. Torres filed a
motion to suppress all tangible evidence seized; all statements made at the time of and subsequent
to the vehicle stop, arrest, and search of Torres and the vehicle; and law enforcement officers’
testimony. Torres argued the warrantless search of the vehicle, specifically the vehicle’s trunk,
was unreasonable. The trial court denied Torres’s motion to suppress and entered findings of fact
and conclusions of law.
Thereafter, Torres pleaded nolo contendere and was sentenced to five years’ imprisonment,
probated for five years, with a fine of $1,500. This appeal followed.
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STANDARD OF REVIEW We review a trial court’s denial of a motion to suppress under a bifurcated standard of
review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). In reviewing the trial
court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539,
543 (Tex. Crim. App. 1990). The trial judge is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given to their testimony. Turrubiate, 399 S.W.3d at 150. 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. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2014). However, we review
de novo mixed questions of law and fact that do not depend upon credibility and demeanor.
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). Accordingly, the question of
whether a certain set of historical facts gives rise to reasonable suspicion is one which we review
de novo. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).
When reviewing the trial court’s ruling on a motion to suppress, we view the evidence in
the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007). When the trial court makes explicit fact findings, we determine whether the evidence,
when viewed in the light most favorable to the trial court’s ruling, supports those fact findings.
State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). We then review the trial court’s
legal ruling de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Id. at 818. We uphold the trial court’s ruling if it is supported by the
record and correct under any theory of law applicable to the case even if the trial court gave the
wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
The defendant in a criminal proceeding who alleges a Fourth Amendment violation bears
the burden of producing some evidence that rebuts the presumption of proper police conduct.
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Amador, 221 S.W.3d at 672. 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. In this
case, the police searched Torres’s vehicle without a warrant, and thus the State had the burden to
show an exception to the warrant requirement existed. Daves v. State, 327 S.W.3d 289, 292 (Tex.
App.—Eastland 2010, no pet.).
DISCUSSION Torres contends the trial court erred by denying his motion to suppress the evidence found
in the vehicle’s trunk. Torres argues that Officer Nieto’s warrantless search of the vehicle was
unreasonable as a search incident to a lawful arrest and that Officer Nieto lacked probable cause
to conduct a search of the vehicle.
Torres argues Officer Nieto’s search of the vehicle was unreasonable under the search
incident-to-arrest exception to the warrant requirement in light of the United States Supreme
Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the Supreme Court held that an
officer may conduct a warrantless search of the passenger compartment of a vehicle incident to an
arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the
search or that the vehicle contains evidence of the offense of arrest. Gant, 556 U.S. at 335.
Although Gant limited the search-incident-to-arrest exception, other exceptions to the
warrant requirement, such as the automobile exception, remained unaffected. See Gant, 556 U.S.
at 347. “Under the automobile exception, law enforcement officials may conduct a warrantless
search of a vehicle if it is readily mobile and there is probable cause to believe that it contains
contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). Given that Torres was
driving the vehicle at the time of the traffic stop, there is no dispute the vehicle was “readily
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mobile.” See id. Therefore, the only remaining inquiry is whether the officers had probable cause
to believe the vehicle contained contraband. See id.
“Probable cause exists when reasonably trustworthy circumstances within the knowledge
of the police officer on the scene would lead him to reasonably believe that evidence of a crime
will be found.” Turrubiate, 399 S.W.3d at 151. When probable cause exists to search a vehicle,
“the police may search ‘every part of the vehicle and its contents that may conceal the object of
the search.’” Neal v. State, 256 S.W.3d 264, 282 (Tex. Crim. App. 2008) (quoting United States v.
Ross, 456 U.S. 798, 825 (1982)).
The facts before us are similar to other cases in which Texas courts have held that the odor
of marijuana alone is sufficient to give an officer probable cause to search a vehicle. See Parker v.
State, 206 S.W.3d 593, 597 n.11 (Tex. Crim. App. 2006); Moulden v. State, 576 S.W.2d 817, 818–
20 (Tex. Crim. App. 1978); Brenes v. State, 488 S.W.3d 384, 390 (Tex. App.—Texarkana 2016,
pet. ref’d). Texas courts have also held that observing drugs in plain view provides probable cause
to search all parts of a vehicle. See Barnes v. State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo
2014, no pet.) (holding that an officer had probable cause to search an entire vehicle upon seeing
a glass jar containing a green leafy substance in the vehicle); Alcorta v. State, 699 S.W.2d 605,
607 (Tex. App.—Waco 1985, no writ) (holding an officer had probable cause to search an entire
vehicle upon seeing a marijuana cigarette in the vehicle).
In this case, Officer Nieto smelled the odor of marijuana and saw a plastic bag with what
Nieto recognized as methamphetamine residue on it in plain view. Based on his observations,
Officer Nieto reasonably believed the vehicle contained contraband.
Accordingly, we hold the search of Torres’s vehicle was supported by probable cause and
the trial court correctly denied his motion to suppress.

Outcome: Based on the foregoing reasons, we affirm the judgment of the trial court.

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