Court of Appeals of Texas, Eighth District, El Paso
IN THE MATTER OF V. G., A JUVENILE, Appellant.
from the 65th District Court of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
M. PALAFOX, Justice.
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. 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.
AND PROCEDURAL BACKGROUND
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
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."
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.
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.
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.
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. V.G. testified that no one was doing
anything wrong at this point in time.
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.
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 ...