IN THE

TENTH COURT OF APPEALS

No. 10-10-00298-CV

Wesley Carl Retherford, Jr., d/b/a

Whole House Inspection Company,

                                                                                    Appellant

 v.

Frank Castro and Terri Castro,

                                                                                    Appellees

From the County Court at Law

Coryell County, Texas

Trial Court No. 09-8860

            The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (West 2005).  The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.”  Id. § 154.002 (West 2005).  Mediation is a form of ADR.  Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator.  Mediation is private, confidential, and privileged.

            We find that this appeal is appropriate for mediation.  See id. § 154.021(a) (West 2005); 10th Tex. App. (Waco) Loc. R. 9.

            The parties are ordered to confer and attempt to agree upon a mediator.  Within fourteen days after the date of this Order, Wesley Retherford is ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator.  If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator.

            Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator.

            No less than seven calendar days before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved.  At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented.  The mediator may require any party to supplement the information required by this Order.

            Named parties must be present during the entire mediation process.

            Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party.  The mediator’s fees will be taxed as costs.  Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator.

            Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 

            Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived.

            We refer this appeal to mediation. 

            The appeal and all appellate deadlines are suspended as of the date of this Order.  The suspension of the appeal is automatically lifted when the mediator’s report to the Court is received.  If the matter is not resolved at mediation, any deadline that began to run and had not expired by the date of this Order will begin anew as of the date the mediator’s report to the Court is received.  Any document filed by a party after the date of this Order and prior to the filing of the mediator’s report will be deemed filed on the same day, but after, the mediator’s report is received.

PER CURIAM

Before Chief Justice Gray,

        Justice Davis, and

        Justice Scoggins

Order issued and filed January 12, 2011

Do not publish

Haas v. State, 172 S.W.3d 42, 52-53 (Tex. App.—Waco 2005, pet. ref’d).

On appeal, we review the reasonableness of the detention from the same perspective as the officer:  using an objective standard, we ask whether the facts available at the moment of detention would warrant a person of reasonable caution in the belief that the action taken was appropriate.  See Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 243.  The determination of reasonable suspicion is made by considering the totality of the circumstances.  Ford, 158 S.W.3d at 492-93.

Continued Detention

Green argues that nervousness and his being near a known drug house did not warrant continued detention.  Nervousness alone does not warrant reasonable suspicion.  See Davis, 947 S.W.2d at 248 (“It is not indicative of guilt for a person to be nervous when confronted by police officers asking questions.”).  In Haas, we said:

“Extreme nervousness has traditionally been a fact that law enforcement has used in its list of elements leading up to either reasonable suspicion or probable cause.”  Veal, 28 S.W.3d at 837 (citing Sokolow, 490 U.S. at 3, 109 S.Ct. at 1583).  “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”  Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000).  But nervousness alone is not sufficient to be a factor giving rise to reasonable suspicion.  LeBlanc v. State, 138 S.W.3d 603, 608 n. 6 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

Haas, 172 S.W.3d at 54 n.7.  Nor can mere presence in a high-crime area serve as the sole basis for a Terry stop.  Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1997).

But considering the totality of the circumstances, we disagree with Green that Abrego’s continued detention was unreasonable.  Abrego articulated the following specific, articulable facts that Green was engaged in criminal activity:  Green had stopped in front of a known drug house, with someone walking from Green’s truck back to the house; Green had gotten out of and away from his truck when he was pulled over and was walking toward Abrego’s car, and he initially did not comply with Abrego’s order to return to his truck; and Green’s nervousness and nervous glances at his truck.  Under the totality of the circumstances, the trial court did not err in implicitly determining that Abrego had reasonable suspicion to continue to detain Green after the purpose of the traffic stop had been satisfied.  See Haas, 172 S.W.3d at 53-54.

Consent to Search

Green next challenges the voluntariness of the alleged consensual search that led to Abrego’s discovery of the controlled substance because of Abrego’s statement to Green that he did not need his consent because he was going to search Green’s truck anyway.

One of the established exceptions to both the requirements of a warrant and probable cause is a search conducted pursuant to consent.  Corea v. State, 52 S.W.3d 311, 315-16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)).  The State can establish the lawfulness of an illegal search through bearing the burden of proving, by clear and convincing evidence, that consent was freely and voluntarily given.  Id. at 316 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968)).  Hence, the State must show that the consent was positive and unequivocal and not merely an acquiescence to a claim of lawful authority.  

Grubbs v. State, 177 S.W.3d 313, 317-18 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

            In this case, the State concedes that Abrego did not have valid consent:  “in this case the officer did not have valid consent as he implied by his statement ‘I don’t need your consent to search’ that the defendant had no right to resist the search.”  (State’s Brief at 8).  We agree.  The State contends, however, that the search was not illegal for two reasons:  (1) officer safety, and (2) probable cause existed.

            Vehicle Frisk

The State first posits that Abrego could conduct a “vehicle frisk” for his own safety.  A weapons search is not authorized in all confrontational situations.  See Carmouche, 10 S.W.3d at 329 (a weapons search is “only justified where the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon”).

A police officer who has lawfully detained a person for investigation of suspected criminal activity may conduct a limited search for weapons only if the circumstances give the officer reason to believe that the person detained is armed and dangerous.  See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Spillman v. State, 824 S.W.2d 806, 811 (Tex. App.—Austin 1992, pet. ref’d).  Under some circumstances, this right to conduct a protective frisk may also extend to the passenger compartment of the detainee’s automobile.

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868).  A police officer may not search an automobile for weapons whenever the officer effects an investigative stop, but may do so only if the officer possesses the level of suspicion identified in Terry.  See id. n. 14, 88 S.Ct. 1868.

A police officer’s authority to search for weapons in the absence of probable cause is narrowly drawn, even when the officer reasonably suspects criminal activity.  See Terry, 392 U.S. at 27, 88 S.Ct. 1868.  In determining whether an officer acted reasonably in a particular case, due weight must be given, not to the officer’s inchoate and unparticularized suspicion or hunch, but to the specific reasonable inferences which the officer is entitled to draw from the facts in light of experience.  See id.

Horton v. State, 16 S.W.3d 848, 852-53 (Tex. App.—Austin 2000, no pet.).

            In this case, Abrego offered the following reasons for his search of the passenger compartment of Green’s truck for the officer’s own safety:  when Abrego pulled him over, Green got out of and away from his truck and walked toward Abrego’s car, and he initially did not comply with Abrego’s order to return to his truck; and Green was nervous and made nervous glances toward at his truck.  Yet despite this alleged safety concern, Abrego ordered Green back into his truck.  Abrego admitted that this would have given Green access to a gun if one were in his truck.

Abrego’s reasons for a “vehicle frisk,” coupled with his inconsistent and counterintuitive action in ordering Green back into the truck—where he would have access to the very weapon that allegedly serves as the basis for Abrego’s concerns about his own safety—result in our conclusion that he did not possesses a reasonable belief based on specific and articulable facts that, taken together with the rational inferences from those facts, reasonably warrant him in believing that Green was dangerous and had in his truck a weapon that he could gain immediate control of.  See Long, 463 U.S. at 1049, 103 S.Ct. at 3480; State v. Thirty Thousand Six Hundred Sixty Dollars and no/100, 136 S.W.3d 392, 402-03 (Tex. App.—Corpus Christi 2004, pet. denied); Horton, 16 S.W.3d at 853-54; cf. Ramsey v. State, 806 S.W.2d 954, 958 (Tex. App.—Austin 1991, pet. ref’d) (holding that officer had specific and articulable facts warranting reasonable belief that defendant posed danger if he were permitted to reenter his car because defendant had tried to hide shaving kit from officer, and that officer acted reasonably in taking preventive measures to ensure there were no weapons within defendant’s grasp before allowing him to return to car); cf. also Tasby v. State, 111 S.W.3d 178 (Tex. App.—Eastland 2003, no pet.) (finding officers justified in searching car’s compartment because they thought car’s occupants had been involved in robbery and one officer saw defendant reach under seat to either place or retrieve an object).  Abrego’s “vehicle frisk” for his own safety was illegal.

Probable Cause for Warrantless Search

The State final contention is that Abrego had probable cause to conduct a warrantless search of Green’s truck for drugs.

Under both state and federal law, a police officer may conduct a warrantless search of an automobile if he or she has probable cause to believe a crime has been committed and there is contraband located somewhere inside the vehicle.  Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007).  The justifications for this automobile exception are that vehicles are inherently mobile and the expectation of privacy with respect to an automobile is relatively low.  Id.  Furthermore, the justification to conduct a warrantless search does not vanish once the vehicle is immobilized.  See Michigan v. Thomas, 458 U.S. 259, 261, 102 S.Ct. 3079, 3081, 73 L.Ed.2d 750 (1982); State v. Guzman, 959 S.W.2d 631, 634 n.3 (Tex. Crim. App. 1998).  Accordingly, a vehicle may be searched on the basis of probable cause to believe that it contains contraband although exigent circumstances do not exist to justify such a warrantless search.  Id.; Dixon v. State, 206 S.W.3d 613, 619 n.25 (Tex. Crim. App. 2006) (“A finding of probable cause ‘alone satisfies the automobile exception to the Fourth Amendment warrant requirement.’”).

In determining probable cause, courts must consider the totality of the circumstances.  Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).  Probable cause exists when the facts and circumstances within the officer’s knowledge and about which he has [reasonably] trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that a crime has been committed.  Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005).  The sum of the information known to the cooperating officers at the time of a search is to be considered in determining whether there was sufficient probable cause.  Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982).

Curry v. State, 228 S.W.3d 292, 295 (Tex. App.—Waco 2007, pet. ref’d).

Abrego articulated the following as reasons why he had probable cause to search Green’s truck:  stopping in front of a known drug house, with someone walking from Green’s truck; getting out of and away from his truck when he was pulled over and walking toward Abrego’s car, and initially not complying with Abrego’s order to return to his truck; and nervousness and nervously looking at his truck.  Based on his training and experience—including his prior stop of a vehicle after it had just left the same house and the driver possessed crack—and knowledge from other officers about the house, Abrego believed that a drug buy had just happened and that drugs would be found in Green’s truck.

Under the totality of the circumstances, the officer had probable cause to search Green’s truck.  See Curry, 228 S.W.3d at 295.  Accordingly, the trial court did not err in denying the motion to suppress.

We overrule Green’s sole issue and affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment.  He does not join any part of the opinion.  A separate opinion will not be issued.  He notes, however, that the entire discussion of the “Vehicle Frisk” is unnecessary to the decision and is, therefore, worthless dicta.)

Affirmed

Opinion delivered and filed April 23, 2008

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