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In re V. G.

Court of Appeals of Texas, Eighth District, El Paso

March 8, 2017


         Appeal from the 65th District Court of El Paso County, Texas (TC# 1401027)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.


          GINA M. PALAFOX, Justice.

         Appellant V.G. was charged by petition with engaging in delinquent conduct based on possession of less than two ounces of marijuana within 1, 000 feet of a school.[1] V.G. argues that the trial court erred in denying his motion to suppress evidence because the evidence was obtained during a search of his person in violation of his federal and state constitutional rights. We affirm.


         On October 8, 2014, V.G., who was sixteen years old at the time, was detained along with several other students suspected of possessing a useable quantity of marijuana within 1, 000 feet of a high school. See Tex. Health & Safety Code Ann. §§ 481.121, 481.134 (West 2010 & Supp. 2016); Tex. Fam. Code Ann. § 54.03 (West 2014). Following a pat down search, officers found a pill bottle in V.G.'s pocket that contained less than two ounces of marijuana and he was charged by petition with engaging in delinquent conduct. V.G. filed a motion to suppress the evidence that was found during the search, urging that his detention and subsequent search of his person were illegal and in violation of the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the United States, Article I, Section 9 of the Constitution of the State of Texas, and Chapters 14 and 38 of the Texas Code of Criminal Procedure.[2]

         Officer Neftali Cano, who was employed by the El Paso Independent School District (EPISD), testified that on October 8, 2014, he was assigned to work on patrol at Andress High School in El Paso. On that day, he responded to a call from a person in the nearby neighborhood who reported marijuana use in progress by a group of students standing at or near a home located on New Castle street. Officer Cano testified he was familiar with the reported area as students commonly gather there at lunch time. He further described that the area had a "known history both with me personally and with the police department in the City of El Paso Police Department as an area known for individuals possessing or using narcotics mainly marijuana." He also stated that "[t]here have been several or numerous fights, physical fights, not just with the students, but even with ex-students and other members of the community in those areas."

         Upon his arrival to the scene, Cano testified he immediately observed a crowd of approximately twenty students but he did not see any ongoing criminal activity. However, when he stepped out of his marked vehicle and approached the crowd standing about ten feet from his position, he immediately smelled a very strong odor of marijuana lingering in the air. He testified that he was familiar with the smell of marijuana, based on his training and his 22 years in law enforcement, and that he could ordinarily smell burning marijuana within 25 feet of its source. He continued approaching the crowd to see if he could readily see someone openly smoking as he believed the marijuana odor may be coming from the individuals in that area. He also stated that the crowd he approached was the only crowd there on that street at that time.

         As he approached, he testified he was concerned for his own safety given his knowledge of the area, the large number in the crowd, and the fact that he was working as a single officer. For his own safety and to assist with his investigation, he called for another unit and asked the students to take a seated position. Although several of the students then walked away, a group of twelve or fourteen that included V.G. sat down as requested. He testified that he believed it was tactically necessary for him to establish control by having the students take a seated position so he could have the advantage of looking over them. He also wanted to monitor to prevent anyone from trying to discard something into the nearby shrubs noting that this often occurs in a "typical scenario" of this nature. Officer Cano proceeded to explain to the students that he was there to observe and investigate. He testified that while he was present in the area he did not see anyone doing anything that would indicate they were then using marijuana beyond his general observation of an odor lingering in the air. At that point, additional officers arrived to assist.

         Officer Stevens then testified that on his arrival, he saw Officer Cano standing near approximately fifteen juveniles who were seated on the sidewalk. He also testified that no narcotics were visible but he smelled an odor of marijuana. He began monitoring the students when he noticed that V.G. had his hand in his right pocket and he was acting very nervous, "not of normal nature." According to Stevens, V.G. kept looking around to see where he and Officer Cano were standing and it appeared to him that V.G. was trying to discard something. Because he observed this behavior, Stevens testified that he then asked V.G. to stand and told him he that was going to pat him down for officer safety at that time. V.G. initially questioned why he was being searched. Stevens responded that he was not being searched, but rather, he was being patted down for officer safety. At the hearing, Stevens explained that he was concerned about weapons due to the area and "the student population." Officer Stevens then escorted V.G. to a police car and told him to place his hands on the vehicle. Stevens testified that during the pat down search, he found no weapons on V.G. but he could feel a lighter in his left pocket and what felt like a pill bottle in the right pocket.

         Stevens then asked V.G. about the pill bottle he felt in his pocket. He testified that V.G. replied that it contained "prescription drugs." Stevens then testified that "I just asked him if he would remove the bottle so I could verify that it was a prescription drug [that] was made to him." Stevens clarified that he did not instruct V.G. to remove the bottle from his pocket and he did not tell him he had to remove it. Stevens said, "I asked him to show it to me." In response, Stevens testified that V.G. pulled the bottle from his pocket. Stevens then noted it was not a prescription pill bottle, but an "Herbal Life" bottle. As V.G. pulled the bottle from his pocket, Officer Stevens testified that he could smell a "really strong" odor of marijuana. Based on his suspicion that the bottle contained marijuana, Officer Stevens then opened the bottle and discovered four baggies of a green leafy substance that he believed to be marijuana inside. He then placed V.G. in handcuffs, seated him in the backseat of his patrol car, and field-tested the substance. In addition to the two EPISD officers, V.G. also testified at the hearing. He stated he was having lunch with a group of students when Officer Cano arrived and told the group he was there to investigate because he received a complaint from the neighborhood that they were smelling marijuana. V.G. said that Officer Cano told them they were not being detained but they were not free to leave and he wanted them to take a seat. He took a seat and two or three minutes later Officer Stevens and another officer arrived at the same time.[3] V.G. testified that no one was doing anything wrong at this point in time.

         V.G. acknowledged that he had his hand in his left pocket when Officer Stevens arrived. He then described that Officer Stevens approached him and asked what he had in his pocket. He responded, "I told him . . . I have my phone, my charger and a couple of other personal belongings[.]" V.G. stated the officer then asked him, "[d]o you mind if I can see your pockets and you show your pockets." V.G. replied, "I wouldn't want to do that." Officer Stevens and Deal then led him to his patrol car, told him to place his hands on the hood of the car, and thereafter conducted a pat down search. V.G. testified that Officer Stevens felt the pill bottle in his pocket during this search. He then asked V.G. what he had in his pocket. V.G. said he replied that it was an "Herbal Life" bottle, a pill bottle. V.G. then stated that Officer Stevens scooted the bottle up from his pocket and grabbed it. Officer Stevens then asked him what was inside and V.G. told him he had supplements that he uses. V.G. testified that Stevens then opened the bottle and found the marijuana. V.G. described that his hands never left the hood of the police vehicle during the pat down until he was put in handcuffs.

         No other witnesses testified and the hearing concluded. The trial court then denied V.G.'s motion to suppress evidence. The record contains no findings of fact or conclusions of law. V.G. thereafter admitted to the allegations of the petition and was adjudicated as a delinquent child and placed on probation until his ...

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