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Click here for the full text of this decision FACTS:Investigator Jason Bridges of the Deep East Texas Regional Narcotics Task Force stopped Anibal Montanez’s Nissan Pathfinder, because his license plate was obscured, and the license plate light was not working. The police videotaped the entire encounter and the court admitted the video recording at Montanez’s 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 11 minutes after stopping Montanez. 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 late-model Pathfinder and noticed a suspicious fresh coat of paint. He testified that based on his experience this “usually” indicated the existence of a false compartment. When he lifted the carpeting in the rear of the van, he noticed a lot of missing screws and brand-new bolts in two areas. These alterations provoked further suspicion that there was a hidden compartment in the gas tank. Bridges requested a canine unit to confirm his suspicions. When the drug dog approached the tail-light area, he began to give positive alerts. Bridges testified that based on the dog’s alerts, he felt that he had probable cause to believe that narcotics were hidden in the tank. Bridges told Montanez and Martinez that he believed 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. According to Bridges, Montanez did not indicate in any way at this point that he wanted to withdraw his consent to search. At the task force headquarters in Nacogdoches, they removed the gas tank and found a hidden compartment containing seven kilograms of cocaine. Anibal Montanez appealed the denial of a suppression motion in his prosecution for possession of more than 400 grams of cocaine. Montanez argued 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. On original submission, the 10th Court of Appeals in Waco held that the state failed to prove by clear and convincing evidence that Montanez freely and voluntarily consented to the search. The Court of Criminal Appeals (CCA) reversed and remanded because the 10th Court, according to the CCA, applied an incorrect standard of review. HOLDING:Affirmed. The court stated that the trial court, after reviewing the videotape and listening to the testimony, 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, the court stated, does not affirmatively establish that Montanez does not understand the English language. Because of the conflicting evidence on the issue, the court found the trial court was within its discretion in finding that the state proved by clear and convincing evidence that Montanez voluntarily consented to the search of the vehicle. Montanez, the court stated, 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, the court held that it was objectively reasonable that an unlimited consent to search a vehicle extends to every part of the vehicle within which contraband may be hidden. Thus, the court found the trial court was within its discretion in concluding that Bridges’ decision to require Montanez to drive to the task force’s headquarters so the gas tank could be more closely inspected, as well as the search of the gas tank at that location, did not exceed the scope of the consent given. OPINION:Reyna, J.; Gray, C.J., and Reyna, J. DISSENT:Vance, J. “The opinion of the Court of Criminal Appeals states: ‘The fact that the State bore the burden of proving by clear and convincing evidence that Montanez voluntarily consented to the search at the suppression hearing does not change the standard of review on appeal.’ . . . That defies logic. “In my view, the error in that statement springs from the indiscriminate application of Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997), to all suppression hearings, regardless of their subject matter. . . . “Thus, the problem this court faced in this case, and faces again, is that we have found no Court of Criminal Appeals case defining the term ‘clear-and-convincing evidence.’ Nor did we find any discussion about how the requirement of clear-and-convincing proof of consent fits into the Guzman standard of review, which, as noted, did not address consent to search but dealt with findings of reasonable suspicion and probable cause that can be supported by less evidence than a preponderance. . . .” “Hopefully the court will re-examine whether Guzman applies to appellate review of all suppression hearings or just those involving reasonable suspicion and probable cause.”

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