THE STATE OF TEXAS, Appellant v. SALVADOR PINA, Appellee

REVERSE and REMAND; Opinion issued December 7, 2010
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00026-CR
............................
THE STATE OF TEXAS, Appellant
V.
SALVADOR PINA, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-40368-T
.............................................................
MEMORANDUM OPINION
Before Justices Bridges, Francis and Lang
Opinion By Justice Bridges
        The State of Texas appeals from the trial court's order granting appellee Salvador Pina's motion to suppress. We reverse and remand.
Background
 
        Appellee was charged by indictment with unlawful possession of a firearm by a felon. Prior to trial, appellee filed a motion to suppress on grounds that the evidence against appellee was obtained as a result of an illegal stop/detention. Following two hearings, and in consideration of the briefs filed by both parties, the trial court granted appellee's motion to suppress.
        In the first hearing, Johnny Moseley, a special agent with the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), testified. During the hearing, Moseley stated that, on March 15, 2009, he was working, along with other federal and state officers, at a gun show at the Big Town complex in Mesquite, Texas. Moseley testified he was looking for people illegally purchasing weapons or committing other weapons violations. He stated that people who are not allowed to own or purchase guns often purchase them at gun shows from private sellers. Moseley, who was stationed in the parking lot, was in radio and cell phone communication with other officers inside the complex.
        At one point, Moseley was notified that officers inside the complex had seen three individuals “acting in suspicious manners . . . [with] tattoos indicative of gang affiliations . . . purchasing weapons and ammunition.” One of those individuals, later identified as appellee, had a star tattoo on his neck that allegedly was “indicative of an affiliation to the Tango Blast gang.” Although Moseley did not specialize in gang affiliation, he did have some knowledge of the Tango Blast Gang. He knew that Tango Blast was a prison gang and, to be a member, the person had to have had a conviction and been to prison.
        As the three individuals, including appellee, exited the complex, Moseley and two other officers approached them. They identified themselves as law enforcement officers, asked for identification, and did a pat down search for officer safety. Appellee identified himself, and Moseley noticed the star tattoo on his neck. One man, who was not appellee, did not have any identification on him and another gave a false name and date of birth. Appellee was carrying a case described as a “pistol case.” Following the frisk, a computer check revealed that appellee had a previous conviction for a felony.
        During the first hearing, the trial judge viewed appellee's tattoo and noted for the record that he had a red five-pointed star about an inch-and-a-half across just under, and behind, his right ear.
        In the second hearing, only the lawyers were present in court to argue the briefs requested by the trial court. Following the second hearing, the trial court granted appellee's motion to suppress. This appeal ensued.
Analysis
 
        In a single issue, the State argues the trial court erred in granting appellee's motion to suppress. Specifically, the State contends the “trial court erred in suppressing the firearm evidence, because, under the totality of the circumstances, the officers had objectively reasonable suspicion to believe that appellee was a felon in possession of a firearm.”
        When reviewing a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review de novo the legal determinations of detention, reasonable suspicion, and probable cause under the Fourth Amendment, while granting great deference to the trial court's factual findings. State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim. App. 2008). The trial court's evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006).
        The burden is on the State to elicit testimony showing sufficient facts to create a reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Whether reasonable suspicion exists is determined by considering the facts known to the officer at the moment of detention. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). A determination of reasonable suspicion must be based on common sense judgments and inferences about human behavior. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000). When there has been some cooperation and communication between police officers during their investigation, the collective information known to them at the time of the stop or arrest, including hearsay, is considered in determining whether the stop or arrest is justified. See Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1982) (op. reh'g); Carter v. State, 713 S.W.2d 442, 446 (Tex. App.-Fort Worth 1986, pet. ref'd).
        When an officer has a reasonable suspicion based on articulable facts that criminal activity is afoot, and a certain person is connected with the activity, the officer may make an investigative stop of that person even though grounds for arrest do not exist. Terry v. Ohio, 392 U.S. 1, 20-29 (1968); Sheppard, 271 S.W.3d at 287. The articulable facts “must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.” Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). Further, law enforcement may conduct a limited search for weapons of a suspect's outer clothing where an officer reasonably believes that the suspect is armed and dangerous to the officer or others in the area. See Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002). Any investigative detention that is not based on reasonable suspicion is unreasonable and violates the Fourth Amendment. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
        In its findings of fact and conclusions of law, the trial court “found as a matter of fact that the evidence developed in support of the State's position was credible and worthy of belief.” Nevertheless, the trial court concluded that “the facts developed during the State's presentation of the evidence did not and do not as a matter of law provide reasonable suspicion or probable cause.” We disagree.
        Here, the trial court found the evidence supplied by the State was credible and worthy of belief. The State supplied the testimony of ICE Officer Moseley, who testified he knew that people who are not allowed to own or purchase guns often purchase them at gun shows. He was in communication with other officers by radio and cell phone. At one point, a law enforcement officer inside the gun show notified the officers outside the gun show what they observed inside. The trial court correctly recognized this information came from “fellow law enforcement,” and not from an anonymous informant.
        The officers inside the gun show reported to the officers outside that they had seen three men, including appellee, buying guns and ammunition. The officers inside also reported the three men were displaying suspicious mannerisms and appeared nervous. Moreover, the officers inside the gun show reported that one of the men had a star tattoo, indicating affiliation with the Tango Blast Gang. Moseley knew that a Tango Blast tattoo indicated that the person had a prior conviction and had been to prison.
        When the three men left the gun show, the officers outside the gun show saw two of them carrying weapons and other items. They saw appellee carry a pistol case. The officers, including Moseley, approached the three men and identified themselves as law enforcement officers. An objective examination of the totality of the information received and observed by the officers gave rise to reasonable suspicion that appellee, who was carrying a pistol case and had a tattoo commonly associated with a prison gang, was committing a crime in the officers' presence- felon in possession of a firearm. See Davis, 947 S.W.2d at 243; Bobo v. State, 843 S.W.2d 572, 574-575 (Tex. Crim. App. 1992) (the court must look to the totality of the circumstances known by the officers in determining whether reasonable, articulable suspicion existed, justifying the temporary detention of appellee).
        Because we conclude the totality of the circumstances demonstrates the officers had reasonable suspicion to stop and detain appellee, we sustain the State's issue.
        We reverse and remand to the trial court.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
100026F.U05