Amelia Denise Johnson v. The State of Texas--Appeal from 27th District Court of Bell County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1992 » Amelia Denise Johnson v. The State of Texas--Appeal from 27th District Court of Bell County

State: Texas

Court: Texas Northern District Court

Docket No: 03-91-00524-CR

Case Date: 11/25/1992

Plaintiff: Amelia Denise Johnson

Defendant: The State of Texas--Appeal from 27th District Court of Bell County

Preview:Anibal Montanez a/k/a Ivan Montilla-Pena v. The State
of Texas--Appeal from 217th District Court of Angelina
County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-02-00274-CR
Anibal Montanez
a/k/a Ivan Montilla-Pena,
Appellant
v.
The State of Texas,
Appellee
From the 217th District Court
Angelina County, Texas
Trial Court No. 21844
Opinion on remand
Anibal Montanez appeals the denial of a suppression motion in his prosecution for possession of more than 400 grams
of cocaine. Montanez argues in his sole issue that the court abused its discretion by overruling the motion because: (1)
there was no lawful basis for the stop of his vehicle; (2) his consent to search the vehicle was not freely and voluntarily
given and; (3) alternatively, the search exceeded the scope of consent given. We will affirm.
On original submission, a majority of this Court held that the State failed to prove by clear and convincing evidence
that Montanez freely and voluntarily consented to the search. See Montanez v. State, 143 S.W.3d 344, 348 (Tex. App.
Waco 2004). The Court of Criminal Appeals reversed and remanded because the majority applied the incorrect
standard of review. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).
Background
Investigator Jason Bridges of the Deep East Texas Regional Narcotics Task Force stopped Montanez s Nissan
Pathfinder because his license plate was obscured and the license plate light was not working. The entire encounter
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was recorded on a videotape which was admitted at the suppression hearing.
Bridges explained the violations to Montanez and asked for his driver s license. Montanez provided a Massachusetts
license, and Bridges asked where he was coming from. Montanez told Bridges he had been in Houston for four days
visiting his uncle, friends, and his primo. Montanez explained that he was returning home to Massachusetts. When
Bridges asked about the Pathfinder, which had New Hampshire plates, Montanez said it belonged to a friend. Bridges
assumed that [Montanez] borrowed it. After speaking with Montanez for a few minutes, Bridges asked the passenger,
Francisco Martinez, about the trip.
After talking with the two men, Bridges felt like some type of illegal activity was occurring because the Pathfinder was
owned by an out-of-state third party, because Montanez and Martinez were unsure about the purpose for their trip, and
because they did not know each other s names. Bridges asked for Montanez s consent to search the Pathfinder about
eleven minutes after stopping Montanez. The videotape depicts the following exchange between Bridges and
Montanez:
Bridges: Can I search?
Montanez: Excuse me?
Bridges: Can I search your vehicle?
Montanez: Repeat please?
Bridges: You understood everything else I asked you. Can I search your
car? Can I look?
Montanez: Oh, yeah. No problem.
Bridges: Do you comprende?
Montanez: You check out the car?
Bridges: Si.
Montanez: Yeah, no problem.
Bridges: No problem? Do you comprende?
Montanez: Yeah.
Bridges: Okay. It s okay?
Montanez: Yeah.
Bridges: Okay.
Bridges noticed that a brand-new, large duffle bag in the Pathfinder contained nothing but neatly folded clothes which
did not appear to have been worn. He thought this was unusual because he would have anticipated finding dirty clothes
in the luggage if Montanez and Martinez had been in Houston four days as they had said.
He then started a basic search of the vehicle. He first looked at the undercarriage of the Pathfinder and noticed a fresh
coat of paint, which he testified is unheard of on older model vehicles. He testified that based on his experience this
usually indicates the existence of a false compartment, which is a common concealment method for sports utility
vehicles. Because the occupants said they were traveling from Houston, Bridges s suspicions were further aroused
because that city is a major origin city for contraband being sent to northern states. Bridges then searched other areas
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of the Pathfinder to try to isolate the location of the suspected compartment.
When he lifted the carpeting in the rear of the van, he noticed a lot of screws missing that shouldn t have been missing
and brand-new bolts in two areas. These alterations provided further suspicion to Bridges that there was a hidden
compartment underneath, probably in the gas tank, and it was not feasible to drop a gas tank on the side of the road.
Thus, Bridges requested for a canine unit to confirm his suspicions.
Bridges told the canine handler, Brian Holley, that he knew there were drugs in the car but could not find any. When
the drug dog approached the taillight area, he began to give positive alerts. Holley suggested that Bridges search the
mounted spare tire on the back of the vehicle, but they took the tire off and found nothing. Bridges testified that, based
on the dog s alerts, he felt he had probable cause to believe that narcotics were hidden in the tank.
Bridges told Montanez and Martinez that he had reason to believe their gas tank had been tampered with. He informed
them that the dog had alerted on the vehicle and that they would have to follow Bridges back to Nacogdoches so he
could inspect the gas tank. Bridges stated, You have to follow me. If you go any other direction, you will be under
arrest. You are under arrest right now. You comprende? Montanez replied that he understood. According to Bridges,
Montanez did not indicate in any way at this point that he wanted to withdraw his consent to search.
The entire roadside encounter lasted about one and one-half hours. At the task force headquarters in Nacogdoches,
they removed the gas tank and found a hidden compartment containing seven kilograms of cocaine.
Standard of Review
According to the Court of Criminal Appeals,
The issue is whether, after affording almost total deference to the trial court s determination of historical facts that are
supported by the record, the trial court abused its discretion by finding that the State proved by clear and convincing
evidence that Montanez voluntarily consented to the search of the vehicle.
Montanez, 195 S.W.3d at 108.
Basis for Stop
Montanez first contends that Bridges did not have a lawful basis to stop him on the date in question. Bridges testified
that he stopped Montanez because: (1) the cover around the edge of the license plate obscured the name of the issuing
state; and (2) the license plate light was not working.
The latter stated basis for the stop constitutes a violation of section 547.322(f) of the Transportation Code which
provides:
[a] taillamp or a separate lamp shall be constructed and mounted to emit a white light that:
(1) illuminates the rear license plate; and
(2) makes the plate clearly legible at a distance of 50 feet from the rear.
Tex. Transp. Code Ann. 547.322(f) (Vernon 1999).[1]
Bridges and Montanez s counsel disputed whether the videotape shows that the license plate lamp was operational.
Bridges explained on re-direct examination that the license plate is illuminated on the videotape by the headlights of
his patrol car and by his spotlight. He reiterated that the license plate lamp was not properly working when he stopped
Montanez. This is an issue on which we must give almost total deference to the lower court s decision. See Montanez,
195 S.W.3d at 106 (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
Therefore, the court did not abuse its discretion by finding that Bridges had a lawful basis for stopping Montanez. See
Tex. Transp. Code Ann. 543.001 (Vernon 1999); Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536,
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1557, 149 L. Ed. 2d 549 (2001); State v. Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005).
Validity of Consent
Montanez next contends that the court abused its discretion by finding that he freely and voluntarily consented to the
search because the record shows that he does not understand the English language very well.
Bridges acknowledged in his testimony that there was somewhat of a language barrier between Martinez and himself.
On cross-examination, he agreed that Montanez had some limitations on his ability to communicate in English.
However, Bridges testified, I know that he probably don t speak as good English as I do, but in my opinion we
communicated quite well.
Martinez testified at the suppression hearing with the aid of an interpreter. In response to a question whether Montanez
understood English better than he, Martinez stated, He was talking to him a little bit more than me. Martinez conceded
that he does not know how much English Montanez knows.
The videotape reflects that Bridges repeated questions on several occasions when talking with Montanez. Bridges
would occasionally use a familiar Spanish word or phrase but for the most part spoke in English to Montanez.
After reviewing the videotape and listening to the testimony, the court would have been within its discretion to
conclude that Montanez only began to exhibit any indication that he did not understand the English language when
Bridges asked for consent to search. The videotape does not affirmatively establish that Montanez does not understand
the English language. Because of the conflicting evidence on the issue, after giving almost total deference to the trial
court s determination, we cannot say the court abused its discretion by finding that the State proved by clear and
convincing evidence that Montanez voluntarily consented to the search of the vehicle. See Montanez, 195 S.W.3d at
108.
Scope of Consent
Montanez finally contends that Bridges s decision to require him to drive to the task force s headquarters to inspect the
gas tank and the search of the gas tank at that location exceeded the scope of the consent given.
Absent an officer s request or a suspect s consent limiting a search to a particular area of a vehicle, such as the trunk
or passenger compartment, a request to search the car reasonably includes all areas of the vehicle and excludes none.
When an officer specifically asks a suspect if he can search a vehicle for illegal contraband, and the suspect answers
affirmatively, a reasonable person would construe the consent to extend to any area of the vehicle in which such
objects could be concealed.
State v. Garrett, 177 S.W.3d 652, 657-58 (Tex. App. Houston [1st Dist.] 2005, pet. ref d) (citations omitted); accord
Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804, 114 L. Ed. 2d 297 (1991); Vargas v. State, 18 S.W.3d
247, 253-54 (Tex. App. Waco 2000, pet. ref d); Cardenas v. State, 857 S.W.2d 707, 711 (Tex. App. Houston [14th
Dist.] 1993, pet. ref d).
Montanez placed no express limits on the scope of his consent, and Bridges apparently did not expressly tell Montanez
that he wanted to search for narcotics. Nevertheless, it is objectively reasonable that an unlimited consent to search a
vehicle will extend to every part of the vehicle within which contraband may be hidden. See id.
Thus, we cannot say that the court abused its discretion by concluding that Bridges s decision to require Montanez to
drive to the task force s headquarters so the gas tank could be more closely inspected and the search of the gas tank at
that location did not exceed the scope of the consent given.
Accordingly, we overrule Montanez s sole issue and affirm the judgment.
FELIPE REYNA
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Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance dissenting)
Affirmed
Opinion delivered and filed November 8, 2006
Publish
[CR25]
[1] Conversely, the obstructed license plate allegation does not appear to have been a traffic violation under the law in
effect in 2000 when Montanez was arrested. See Act of May 30, 1999, 76th Leg., R.S., ch. 1189, 17, 1999 Tex. Gen.
Laws 4153, 4161 (amended 2003) (current version at Tex. Transp. Code Ann. 502.409 (Vernon Supp. 2006)); United
States v. Granado, 302 F.3d 421, 423-24 (5th Cir. 2002).
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