Jeremy Wayne Baldwin v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmed and Majority and Dissenting Opinions filed September 25, 2007

Affirmed and Majority and Dissenting Opinions filed September 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00632-CR

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JEREMY WAYNE BALDWIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1046027

D I S S E N T I N G O P I N I O N

The Fourth Amendment to the United States Constitution provides, in part, AThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]@ U.S. Const. amend. IV. At every level of the detention, search, and arrest of appellant, appellant=s Fourth Amendment rights were violated by Deputy Smith. Nevertheless, the majority utilizes sophistry to sustain Deputy Smith=s unlawful search and seizure, thus damaging appellant=s reputation with an illegitimate arrest for merely walking down a public sidewalk. Therefore, I respectfully dissent.

Factual and Procedural Background

A. Appellant Goes For a Walk

Appellant testified that during the evening of November 3, 2005, he left his parents= home in the Turtle Lake subdivision to take a walk and smoke a cigarette. After a ten year absence, appellant had moved back into his parents= home about a week and a half before he was arrested on November 3, 2005.

 B. Just the Facts, Ma=am

Deputy Tommy Smith, a Harris County Deputy Sheriff, testified that on November 3, 2005, he was working as the contract deputy patrolling the Turtle Lake subdivision, his regular assignment. According to Deputy Smith, Turtle Lake has a moderate crime rate. At about ten o=clock that evening, while patrolling the subdivision, Deputy Smith was flagged down by a middle-aged female citizen. While the citizen informed Deputy Smith she had reported her observations to the authorities by telephone, he was not dispatched to her as a result of her alleged report, but merely happened to see her as he was patrolling.[1] Deputy Smith recognized the citizen as someone who lived in the neighborhood. Deputy Smith did not know the citizen other than having seen her in the subdivision on several prior occasions. Deputy Smith did not obtain any contact information from the citizen, as she did not want to be involved and did not want her name mentioned. The anonymous citizen told Deputy Smith she had spotted a white male, dressed in black, walking around looking into homes. She also informed Deputy Smith she did not recognize the man in black to be from the neighborhood. The anonymous citizen also volunteered to Deputy Smith that she was aware there had been burglaries in the neighborhood, that she did not know if the man in black was part of those burglaries or not, but he may have been. Deputy Smith admitted during cross-examination that the anonymous citizen did not report seeing the man in black committing a crime and that she did not specify the manner in which the man in black was allegedly looking into houses or whether he approached the houses. The anonymous citizen pointed out the direction she had last seen the man in black walking.

Deputy Smith testified that despite the fact he did not personally know the anonymous citizen, had previously spoken to her only in passing, and had never had to rely on any information she had given him in the past, he believed she was very credible and he had no reason to doubt her. Deputy Smith quickly drove off in the direction the anonymous citizen had indicated, looking for the man in black, even though he knew walking around a subdivision looking at windows was not against the law and he had received no reports that evening of any burglaries in the area. A few moments later, Deputy Smith saw appellant, dressed in black, walking on the sidewalk.

C. Deputy Smith Detains Appellant

As Deputy Smith approached appellant in his patrol car, appellant turned around, saw Deputy Smith=s patrol car, and began walking at a very fast pace; but not running. Deputy Smith quickly caught up with appellant, exited his patrol car, and asked appellant for his identification.[2] According to Deputy Smith, appellant did not refuse to produce his identification, but became nervous when he questioned why Deputy Smith wished to see his identification, and stated Deputy Smith had no right to stop him for walking down the street.[3] At that point, mere seconds after he had initially approached appellant, Deputy Smith handcuffed appellant. Deputy Smith testified on cross-examination the only reason he handcuffed appellant was because appellant became nervous and anxious and it was his standard policy to handcuff suspects when they become nervous and anxious because, in his experience, they are about to run or fight.[4] Deputy Smith also testified that appellant had not refused to produce his identification prior to being handcuffed. Deputy Smith did not conduct a pat-down search of appellant for weapons prior to handcuffing appellant.

After he handcuffed appellant, Deputy Smith asked appellant where his identification was located. Appellant told him it was in his pants pocket. Deputy Smith reached into appellant=s pocket and grabbed appellant=s wallet pouch. Appellant=s wallet pouch had a slot, with a clear plastic covering, on one side. Appellant=s driver=s license was in this slot, behind the plastic cover. Deputy Smith testified that, despite the clear plastic cover, parts of appellant=s driver=s license were obstructed, so he removed the license. Once he removed the license, he saw a small baggy containing a white powder in the same slot. According to Deputy Smith, appellant immediately said: AThat dope is not mine. I found it.@ Deputy Smith field tested the white powder and it tested positive as cocaine. During the suppression hearing, Deputy Smith admitted appellant had not committed an illegal act in his presence until he discovered the cocaine. Finally, Deputy Smith testified he did not arrest appellant until that point. In its brief filed with this court, the State concedes Deputy Smith did not have probable cause to arrest appellant until he discovered the cocaine inside appellant=s wallet.

Discussion

Both state and federal courts recognize three categories of interaction between police and citizens: encounters, investigative detentions, and arrests. Mount v. State, 217 S.W.3d 716, 724 (Tex. App.CHouston [14th Dist.] 2007, no pet.). Because there is a continuum of human interaction, what may begin as a consensual encounter can readily become an investigative detention, which may evolve into an arrest. Josey v. State, 981 S.W.2d 831, 838 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d). The majority holds that the initial contact between appellant and Deputy Smith began as an encounter, quickly escalated into an investigative detention, and culminated with appellant being arrested only when Deputy Smith discovered cocaine in appellant=s wallet. As I disagree with the majority=s progressive characterization of the incident at issue in this appeal, I address each level of potential interaction between a citizen and police in turn.

A. Encounter

An encounter is a friendly exchange of pleasantries or mutually useful information. Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.CHouston [14th Dist.] 2003, no pet.). An encounter does not implicate Fourth Amendment concerns because the defining characteristic of an encounter is the ability of the citizen to choose not to participate in the encounter or to simply walk away. Id. The contact remains an encounter only until a reasonable person would believe he is not free to leave and has yielded to the officer=s show of authority or has been physically forced to yield. Id.

I disagree the initial contact between appellant and Deputy Smith was ever an encounter but instead was immediately an investigative detention thus implicating appellant=s constitutional rights to be free from improper searches and seizures. Deputy Smith, who was in uniform and driving a marked patrol car, testified he pulled up beside appellant, exited his patrol car, identified himself as a police officer, and detained appellant to investigate the report of a suspicious person seen walking through the neighborhood. I would hold that under those circumstances, a reasonable person would believe he was not free to leave. In addition, the fact that appellant, who had initially begun walking away at a fast pace from Deputy Smith=s patrol car, stopped once Deputy Smith exited his patrol car and identified himself as a police officer, demonstrates he had yielded to Deputy Smith=s display of authority.

The majority=s attempt to characterize the initial contact as an encounter is further undermined by their later use of appellant=s walking away at a fast pace when he first saw Deputy Smith=s patrol car, which is the defining characteristic of an encounter, as some evidence justifying Deputy Smith=s detention and handcuffing of appellant. Thus, on the one hand, the majority, by labeling the initial stop as only an encounter, holds Deputy Smith did not need specific articulable facts creating reasonable suspicion to stop appellant. See Florida v. Bostick, 501 U.S. 429, 433, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (stating that in a consensual encounter, a police officer need not have any articulable reasons for initiating an encounter or approaching a citizen and asking questions because constitutional concerns are not implicated). Then, on the other hand, the majority uses appellant=s exercise of his right to avoid an encounter with police against him by labeling appellant=s act of walking away from Deputy Smith as Aunprovoked flight@ thus contributing to reasonable suspicion to detain and handcuff him.[5] By engaging in such circular analysis, the majority demonstrates a cavalier disregard for the constitutional protections against illegal searches and seizures.

B. Temporary Investigative Detention

1. Reasonable Suspicion Must Be Reasonable

An investigative detention occurs when a person is confronted by a police officer who, under a display of law enforcement authority, temporarily detains the person for purposes of an investigation. State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.CHouston [14th Dist.] 2000, no pet.). An officer conducts a lawful temporary detention when the officer has reasonable suspicion to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead the officer to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. An officer may not detain a person without a showing of reasonable suspicion, a particularized and objective basis for suspecting the particular person of criminal activity. Klare v. State, 76 S.W.3d 68, 72 (Tex. App.CHouston [14th Dist.] 2002, pet. ref.). The detaining officer must point to something that would lead a reasonable person to believe that the person being detained was engaged in a criminal act. Id. at 73. These specific, articulable facts must amount to more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). The validity of a seizure is a dual inquiry: whether the officer=s action was justified at its inception and whether it was reasonably related in scope to the circumstances that justify the interference in the first place. Klare, 76 S.W.3d at 73. A reasonable suspicion determination is made by considering the totality of the circumstances. Ford, 158 S.W.3d at 492B93. When the initial detention is unlawful, any evidence seized subsequent to the detention is inadmissible. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).

2. Deputy Smith Did Not Have Reasonable Suspicion to Detain Appellant

An examination of the testimony from the suppression hearing reveals that the specific, articulable facts cited by Deputy Smith are scant at best, and certainly there are none that would lead a reasonable person to believe that appellant was engaged in a criminal act. First, an anonymous citizen, standing on a public street, reported seeing a man dressed in black walking along a public street looking into houses. She did not report the manner in which the man in black was looking into houses or whether he approached them. During his suppression hearing testimony, Deputy Smith admitted walking along a street looking into windows is not illegal. The anonymous citizen chose to remain unknown as she did not want to get involved. Deputy Smith testified he did not even attempt to take any contact information from the anonymous citizen for that reason.[6] Next, Deputy Smith reported he saw appellant, at approximately ten o=clock in the evening, dressed in black, walking along the sidewalk a short distance away from the anonymous citizen. Appellant initially quickened his pace when Deputy Smith approached in his patrol car but he did not attempt to flee. Appellant became nervous when Deputy Smith exited his patrol car and detained him. Appellant questioned Deputy Smith=s reason for stopping him but did not resist being handcuffed. When viewed in an objective fashion, no known fact, or rational inferences from those facts, would support the conclusion that appellant was engaged in or soon would engage in criminal activity. Davis, 947 S.W.2d at 244.

The majority contends Deputy Smith corroborated sufficient aspects of the anonymous citizen=s tip to justify detaining appellant. However, reasonable suspicion requires an anonymous tip to be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Johnson v. State, 146 S.W.3d 719, 721 (Tex. App.CTexarkana 2004, no pet.). Therefore, an anonymous tip must be corroborated not only as to the identity of the individual sought to be accused, but also as to the improper nature of the conduct. Hall v. State, 74 S.W.3d 521, 525 (Tex. App.CAmarillo 2002, no pet.). In addition, innocuous conduct alone does not justify an investigatory stop for which reasonable suspicion is required unless there is other information or surrounding circumstances of which the police are aware. Klare, 76 S.W.3d at 73. Here, there was no additional information or surrounding circumstance known to Deputy Smith that would justify detaining appellant while he was engaged in the lawful activity of walking along a public sidewalk.

While the State characterizes appellant=s conduct on the evening of November 3, 2005 as Ahighly suspicious,@ in actuality the only conduct seen by Deputy Smith or the anonymous citizen, was someone walking along a street, which Deputy Smith admitted is not illegal. In addition, acting nervous when detained by a police officer, which is the sole reason given by Deputy Smith for his decision to handcuff appellant, does not, alone, constitute grounds to reasonably suspect criminal activity is afoot. Davis v. State, 61 S.W.3d 94, 98 (Tex. App.CAmarillo 2001, no pet.). The Turtle Lake subdivision is not a high crime area,[7] Deputy Smith testified he was not aware of any reports of burglaries on the evening of November 3, and time of day, while a factor that may be considered when determining whether an officer=s suspicion was reasonable, is not suspicious in and of itself. Klare, 76 S.W.3d at 73B74. Based on the totality of the circumstances, Deputy Smith did not have specific, articulable facts upon which to base reasonable suspicion that appellant was engaged in suspicious activity justifying his detention.[8] Instead, Deputy Smith=s detention of appellant was based on no more than a mere hunch and therefore constitutes an illegal detention. The majority, by allowing a police officer=s hunch to suffice in place of specific, articulable facts, eviscerates Terry=s[9] reasonable suspicion protection and thus removes the reasonable from reasonable suspicion. See Ford, 158 S.W.3d at 493 (emphasizing the requirement that a temporary detention must be based on specific, articulable facts).

I would hold that under the totality of the circumstances, Deputy Smith did not have reasonable suspicion that appellant was, or was about to be engaged in criminal activity, and the trial court abused its discretion when it denied appellant=s motion to suppress.

C. Arrest

The highest level of contact between police and a citizen is an arrest. Gaines, 99 S.W.3d at 666. A person is arrested when he has been actually placed under restraint or taken into custody by an officer. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005). A person is deemed to be in custody if a reasonable person would believe that, under the relevant circumstances, his freedom of movement was restricted by the same amount associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). Probable cause must accompany an arrest. Gaines, 99 S.W.3d at 666. Probable cause to arrest exists when the facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, are sufficient to warrant a reasonable person to believe that a particular person has committed or is committing a crime. Id. During an investigative detention, an officer may employ the force reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. Mount, 217 S.W.3d at 724. However, if the force utilized exceeds that reasonably necessary to effect the goal of the stop, this force may transform an investigative detention into a full-blown arrest. Id. Whether a person is under arrest or subject to a temporary investigative detention is a matter of degree and depends upon the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation. Mount, 217 S.W.3d at 724. Whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. Id.

Appellant contends he was arrested without probable cause when Deputy Smith handcuffed him almost immediately after he was detained. It is uncontested that once he was handcuffed, appellant was under restraint and no longer free to walk away from Deputy Smith. In addition, the State concedes that probable cause to arrest appellant did not arise until after Deputy Smith: (1) had handcuffed appellant; (2) reached into appellant=s pocket and removed his wallet; and (3) found the baggy containing cocaine in appellant=s wallet when he removed appellant=s driver=s license from the wallet. The majority does not address appellant=s lack of probable cause to arrest contention but instead glosses over the handcuffing when it holds Deputy Smith=s reaching into a handcuffed appellant=s pants pocket to retrieve his identification was a momentary intrusion of no constitutional significance. The majority=s position that Deputy Smith=s reaching into appellant=s pants to locate his identification was constitutionally insignificant is undermined by section 38.02 of the Texas Penal Code. See Tex. Penal Code Ann. ' 38.02(a) (Vernon 2003). Under section 38.02, a person is only required to provide identifying information to a peace officer once that person has been lawfully arrested. Id. Even accepting the majority=s view of the events, that appellant was still only detained after he was handcuffed, appellant had no legal obligation to provide identifying information to Deputy Smith. Id. Therefore, Deputy Smith violated appellant=s constitutional rights when he reached into appellant=s pants pocket searching for his wallet. In addition, because the record reflects that Deputy Smith did not conduct a pat-down Terry search of appellant=s clothes, the retrieval of appellant=s wallet cannot be justified as the legitimate byproduct of the discovery of an immediately recognizable weapon or contraband. See Minnesota v. Dickerson, 508 U.S. 366, 374B75, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (holding police may seize non-weapon contraband detected during a protective Apat-down@ search for weapons under Terry when the contraband=s contour or mass makes it=s identity immediately apparent). Finally, any consent that may be inferred from the events was not voluntarily given because appellant had already been handcuffed. See Manzi v. State, 56 S.W.3d 710, 717 (Tex. App.CHouston [14th Dist.] 2001, aff=d 88 S.W.3d 240 (Tex. Crim. App. 2002) (the fact a suspect was handcuffed when he gave consent weighs heavily against finding the consent was voluntary).

In support of the trial court=s ruling, the State cites to several cases and points out that handcuffing a person during an investigative detention is not always the equivalent of an arrest. Because the special circumstances present in the cited cases are not present here, the principle they stand for is not applicable and thus provides no basis for ignoring the plain language of article 15.22 of the Code of Criminal Procedure. See Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (while conducting investigation of shots being fired, officer handcuffed suspect being questioned in back of patrol car after discovering suspect lied to officer=s previous questions and there was no bulletproof partition between front and back seats); Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997) (following a car chase of two suspects officer handcuffed suspect while his partner was chasing second suspect in a high crime area at night); Mays v. State, 726 S.W.2d 937, 943B44 (Tex. Crim. App. 1986) (lone officer confronted two burglary suspects justifying the handcuffing while officer conducted investigation); Wappler v. State, 104 S.W.3d 661, 668 (Tex. App.CHouston [1st Dist.] 2003, rev=d on other grounds 138 S.W.3d 331 (Tex. Crim. App. 2004) (in a custodial interrogation case, court held that officer=s handcuffing of an irate and belligerent DWI suspect was not an arrest but was for the purpose of completing investigation).

Because I believe a reasonable person, under the circumstances present here, would believe they were under arrest once they had been handcuffed, I disagree with the majority=s resolution of this issue and would hold appellant was arrested without probable cause and any evidence obtained as a result of this unlawful arrest must be suppressed. Tex. Code Crim. Proc. Ann. art. 38.23(a).

 D. The Trial Court=s Error Is Harmful

Because I believe the trial court erred when it denied appellant=s motion to suppress, and this error is subject to harmless error analysis, I address whether this error is reversible. See Tex. R. App. P. 44.2. The error in this case violated appellant=s federal and state constitutional rights. Further, the Court of Criminal Appeals has stated that appellate courts are not to speculate as to an appellant=s reasons for pleading guilty or as to whether appellant would have pleaded guilty if a motion to suppress had been granted. See McKenna v. State, 780 S.W.2d 797,799B800 (Tex. Crim. App. 1989); Kraft v. State,762 S.W.2d 612, 613B15 (Tex. Crim. App. 1988). As long as the evidence that should have been suppressed Awould in any measure inculpate the accused,@ an appellate court must presume that the trial court=s denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty and is reversible error. See McKenna, 780 S.W.2d at 799B800; Kraft,762 S.W.2d at 613B15. Because the evidence seized as a result of the illegal detention of appellant is inculpatory, it must be presumed that the trial court=s erroneous denial of appellant=s motion to suppress influenced appellant=s decision to plead guilty. Therefore, I would find that the error is reversible.

Conclusion

I would find that Deputy Smith did not have reasonable suspicion based on specific, articulable facts that appellant actually was, had been, or soon would be engaged in criminal activity. As the State admits probable cause for arrest did not arise until after the cocaine was found in appellant=s wallet, which did not occur until after appellant was handcuffed, I would find that appellant was arrested without probable cause. Under both situations, the error is harmful. Accordingly, I would reverse the trial court=s judgment and remand for further proceedings in accordance with this dissenting opinion.

/s/ John S. Anderson

Justice

Judgment rendered and Majority and Dissenting Opinions filed September 25, 2007.

Panel consists of Justices Yates, Anderson, and Hudson. (Hudson, J., majority.)

Publish C Tex. R. App. P. 47.2(b).

[1] The appellate record is devoid of evidence that the sheriff=s dispatcher notified Deputy Smith of the anonymous citizen=s report of a man in black walking down a public sidewalk. I conclude that the dispatcher ignored the complaint; a reasonable inference from the facts.

[2] At the time he was detained, appellant was approximately a block and a half from his parents= residence.

[3] Appellant was correct when he stated that Deputy Smith did not have the legal authority to require that appellant produce his identification when Deputy Smith initially approached him. See Tex. Penal Code Ann. ' 38.02(a) (Vernon 2003) (a person commits an offense if he intentionally refuses to give his identifying information to a peace officer who has lawfully arrested the person). Both the State and the majority agree that because probable cause did not arise until after the discovery of the cocaine in appellant=s wallet, that was the earliest point at which Deputy Smith could have lawfully arrested appellant and thus required him to produce his identification.

[4] Deputy Smith testified appellant did not try to run at any time, had not refused to produce his identification prior to being handcuffed, only questioned why Deputy Smith wanted to see it, and did not resist being handcuffed.

[5] The majority makes this contention despite Deputy Smith=s own testimony that appellant never attempted to flee.

[6] The majority attempts to remove the cloak of anonymity from the anonymous citizen thus boosting her credibility by concluding, without any factual basis from Deputy Smith=s testimony, that she Aassumed responsibility for the accuracy of the information and could easily have been held accountable for its truth.@ The cases cited by the majority for this proposition are all easily distinguished because, unlike this case, which involves a report of non-criminal conduct that the anonymous citizen suspects might be somehow connected with prior or future criminal conduct, the cited cases involve an informant reporting specific details of actual criminal conduct observed by the informant. See Adams v. Williams, 407 U.S. 143, 146B47, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972) (case involved a known informant, who had previously provided accurate information to the officer, providing tip that the defendant was involved in illegal conduct that was immediately verifiable); Bilyeu v. State, 136 S.W.3d 691, 695 (Tex. App.CTexarkana 2004, no pet.) (informant reported suspected driving while intoxicated to police while in his vehicle which would have allowed police to identify him if needed); Hawes v. State, 125 S.W.3d 535, 537 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (informant, a wrecker driver, reported observing illegal conduct and he was readily identifiable because he had provided his name to the police dispatcher and was the driver of a tow truck, an easily identifiable vehicle, and he was ultimately identified and did testify at defendant=s trial); State v. Fudge, 42 S.W.3d 226, 232 (Tex. App.CAustin 2001, no pet.) (informant made a face-to-face report to police officer that he had observed defendant engaged in specific criminal conduct); State v. Garcia, 25 S.W.3d 908, 910B11 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (anonymous informant made a face-to-face report to police officer that informant had observed actual criminal conduct).

[7] The fact an area is a high crime area or an area where certain types of illegal conduct frequently occurs, is insufficient, by itself, to justify detaining a person. Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994).

[8] The majority emphasizes Deputy Smith=s training and experience in its determination that Deputy Smith had reasonable suspicion to detain appellant. While it is true that law enforcement training or experience may factor into a reasonable suspicion analysis, reliance on this training and experience is insufficient to establish reasonable suspicion absent objective factual support. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).

[9] Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L.Ed2d 889 (1968).