MARK DERICHSWEILER v. THE STATE OF TEXAS (concurring)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-0176-10
MARK DERICHSWEILER, Appellant
v. 
THE STATE OF TEXAS 
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS 
DENTON COUNTY 
Keller, P.J., filed a concurring opinion.

I think the Court misconstrues the opinion of the court of appeals. The Court believes that the crux of that opinion is whether the officer had reasonable suspicion with respect to a specific penal code offense. That is an interesting issue, but it is not in the case, and it was not the issue that was briefed by the parties.

Before making a stop, an officer must have reasonable suspicion that a person "is, has been, or soon will be" engaged in criminal activity. (1) The court of appeals cites that proposition correctly, (2) but the gist of its opinion is that there must be reasonable suspicion that a person actually "is" engaged in illegal activity. (3) Here, there was instead reasonable suspicion that appellant "soon would be" engaged in criminal activity. That is sufficient under the law.

Like the Court, I would reverse the judgment of the court of appeals. Because the Court analyzes an issue that is not before it, I join its judgment only.

FILED: January 26, 2011

PUBLISH

1. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford v. State, 158 S.W.3d 488 492 (Tex. Crim. App. 2005). See also Terry v. Ohio, 392 U.S. 1, 27-28 (1968) (Officer's conduct of stopping the suspects and conducting a patdown for weapons was reasonable at its inception and as conducted because he observed them acting in a manner "he took to be preface to a 'stick-up.'" That is, their actions were "consistent with [the officer's] hypothesis that these men were contemplating a daylight robbery."); United States v. Sokolow, 490 U.S. 1, 12 (Marshall, J., dissenting) ("The reasonable-suspicion standard is a derivation of the probable-cause command, applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations.") (emphasis added).

2. Derichsweiler v. State, 301 S.W.3d 803, 809 (Tex. App.-Fort Worth 2009).

3. Id. at 811 (contrasting reasonable suspicion to believe that suspects were committing trespass because they were in a place "where they should not be" with present case in which the officer merely observed the suspect "circling two public parking lots at 8:00 p.m., an act which does not constitute criminal behavior" and concluding that "this is not a case in which the officer received information that a citizen informant witnessed criminal behavior").