Donald F. Haley v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00793-CR
Donald F. HALEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-8097
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice (concur in judgment only)

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 29, 2004

AFFIRMED

Donald F. Haley appeals from his felony conviction for possession of the controlled substance cocaine. Haley asserts the trial court erred in denying his motion to suppress because the cocaine seized by the police was obtained as the result of either an illegal detention not supported by reasonable suspicion, or an illegal arrest not supported by probable cause. We affirm because the evidence establishes that Haley voluntarily abandoned the cocaine before he was detained or arrested.

Background

While conducting surveillance near a bridge known for a high level of narcotics activity, San Antonio Police Officer Jesse Allen, using binoculars, observed Haley walk underneath the bridge while looking down at something in his hands and nervously looking around and behind him. Haley proceeded to sit down on a concrete embankment. Officer Allen then saw another man walk down underneath the bridge toward Haley. Witnessing what he believed to be suspicious activity related to the commission of a crime, Officer Allen left his vehicle, drew his weapon for safety and walked down underneath the bridge. When Officer Allen arrived under the bridge, he observed Haley "look at me [Allen] and make a sudden movement with his hands as if he was throwing something down ... like trying to throw something away." Allen saw that Haley had thrown a piece of plastic like a cellophane wrapper down by his side, close to a drainage pipe. At some point during this initial contact, Officer Allen ordered the two men to "get their hands up," and Haley and the other man complied.

San Antonio Police Officer Bryan Baldwin was conducting a separate narcotics surveillance in the same area when he also observed Haley and the other man walk underneath the bridge. Suspecting they were engaged in criminal activity, Officer Baldwin proceeded toward the bridge and noticed that Officer Allen was also approaching the men from a different direction. When Officer Baldwin arrived under the bridge, he saw that Officer Allen had already made contact and was detaining the men with his weapon drawn. Officer Baldwin provided assistance by handcuffing Haley (1) for safety reasons, but did not draw his weapon. While he was questioning Haley, Officer Baldwin recovered a cellophane wrapper with a white rock-like substance from the ground at Haley's feet; Baldwin believed the substance was crack cocaine. Officer Baldwin then advised Haley that he was under arrest for possession of narcotics. A field test confirmed the substance was crack cocaine. Haley was charged with and convicted of possession of less than one gram of cocaine.

Standard of Review

We review the trial court's ruling on a motion to suppress evidence for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to the trial court's determination of historical facts, especially when based on an evaluation of credibility and demeanor. Id. The trial judge may believe or disbelieve all or part of a witness's testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). We conduct a de novo review of the trial court's application of the law to those facts. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are also reviewed de novo. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (mixed questions of law and fact that do turn on credibility and demeanor are reviewed with great deference to the trial court's determination). Where, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the court's ruling and sustain the decision if it is correct on any applicable theory of law. Id. at 855-56; Carmouche, 10 S.W.3d at 327-28.

Analysis

On appeal, Haley contends the trial court should have granted his motion to suppress because the cocaine was obtained as a result of an illegal seizure in violation of the Fourth Amendment to the United States Constitution and Article I, 9 of the Texas Constitution. He argues it was an illegal seizure because he was forced to submit to an illegal detention not supported by reasonable suspicion or an unlawful arrest not supported by probable cause. The State replies that the state and federal constitutional protections against unreasonable seizures were not implicated because Haley voluntarily abandoned the cocaine before he was "seized," as that term is understood under the Fourth Amendment. Therefore, we begin our analysis by looking at what constitutes a seizure for purposes of state and federal constitutional protections, and then examine whether Haley threw the cocaine down before or after he was detained and ultimately, arrested.

The federal and state constitutions are invoked only when an encounter between a citizen and a police officer rises to the level of a seizure. Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995). In the case of either a detention or an arrest, a "seizure" of a person does not occur until a reasonable person would believe that he or she was not free to leave, and that person has yielded to the officer's show of authority or has been physically forced to yield. California v. Hodari D., 499 U.S. 621, 626-28, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991); see also Johnson, 912 S.W.2d at 236 (adopting Hodari D. analysis for determination of when a "seizure" occurs under the Texas constitution). A "show of authority" occurs when police actions would cause a reasonable person to believe he or she is not free to leave. Hernandez v. State, 963 S.W.2d 921, 924 (Tex. App.--San Antonio 1998, pet. ref'd) (citing Hodari D., 499 U.S. at 628). A show of authority to which a suspect does not yield is not a seizure. Johnson, 912 S.W.2d at 234; see also Shelley v. State, 101 S.W.3d 606, 610 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd) (verbal order to stop, unaccompanied by submission or actual force, does not constitute a seizure).

At the suppression hearing, Officer Allen testified that he approached Haley with his weapon drawn and ordered him to "get your hands up." He further testified that Haley was not free to leave after the order for him to raise his hands. Both the pointing of his gun toward Haley and Allen's verbal command would constitute a show of authority to a reasonable person. See Hodari D., 499 U.S. at 628-29.

We then must determine whether Haley discarded the plastic bag with cocaine before or after he submitted to Officer Allen's show of authority. Viewed in the light most favorable to the trial court's ruling, the testimony shows that immediately after Haley observed Officer Allen with his gun drawn, he threw the plastic bag containing cocaine to the ground and then raised his hands. The testimony is undisputed that Haley did not have the cocaine in his hands when he raised them in submission to the officer's show of authority. (2) When property is abandoned prior to a search or seizure, no constitutional violation can occur because the defendant has no legitimate expectation of privacy in property that has already been abandoned. Hypolite v. State, 985 S.W.2d 181, 187 (Tex. App.--San Antonio 1998, no pet.).

Haley argues the display of a gun was an unnecessary use of force that elevated his detention into an arrest, and amounted to police misconduct. He implies this police misconduct caused him to abandon the cocaine, and therefore his decision to drop the plastic bag of cocaine was not voluntary. See McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (in order for a voluntary abandonment to occur, a defendant must intend to abandon the property and the decision must not be the product of police misconduct). Haley's argument fails because the evidence shows the officers had a reasonable suspicion to detain Haley, and the force used was not unnecessary and did not constitute police misconduct. See Hawkins v. State, 758 S.W.2d 255, 258 (Tex. Crim. App. 1988).

An investigative detention requires that the officers have specific articulable facts that, together with rational inferences and the officers' experience and knowledge, support a reasonable suspicion to believe an individual is involved in criminal activity. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994); see also State v. Arriaga, 5 S.W.3d 804, 805 (Tex. App.--San Antonio 1999, pet. ref'd). Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the officers had reasonable suspicion to detain Haley for purposes of investigation because each of the two officers independently observed Haley's suspicious conduct and nervous demeanor, and independently suspected that he was, or soon would be, engaged in criminal activity. See Johnson, 912 S.W.2d at 235. The officers' personal observations of Haley, combined with their knowledge of the bridge as a high volume area for narcotics activity, particularly crack cocaine use and transactions, provided sufficient articulable facts to establish reasonable suspicion to detain Haley.

Nor did Officer Allen's display of his gun, or Officer Baldwin's subsequent handcuffing of Haley, constitute unnecessary force. An investigative detention is not automatically converted into an arrest merely because an officer draws his weapon or uses handcuffs. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997) (vehicle passenger was validly detained, not arrested, even though officer handcuffed passenger for safety reasons due in part to area's high crime reputation). When an officer possesses reasonable suspicion justifying a temporary detention, he may use such force as is reasonably necessary to effect the goal of the stop, whether it is investigation, maintenance of the status quo or officer safety. Id. The reasonableness of the force used is judged from the perspective of a reasonable officer at the scene, without the benefit of hindsight. Id. at 118. If the force used exceeds that reasonably necessary to effect the goal of the stop, such force may transform an investigative detention into an arrest. Id.

Here, Officer Allen testified that he drew his weapon before walking underneath the bridge for his own safety, specifically, because he was alone and would be out of sight under the bridge. Officer Baldwin testified he handcuffed Haley before questioning him for everyone's safety so there would not be two suspects with free hands under the bridge. Both officers testified to their knowledge of the area's high narcotics activity. Finally, Baldwin testified that Haley was only being detained, and was not under arrest until after the package of cocaine was recovered. See id. at 117 (officer testimony as to intent is one factor to be considered in determining whether detention or arrest occurred). We hold the record supports the conclusion that the officers had reasonable suspicion to detain Haley, and that their use of force was reasonable under the circumstances and did not transform the legal detention into an illegal arrest. See id. at 117-118; see also Willhite v. State, 937 S.W.2d 604, 606 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd) (holding defendant was detained, not arrested, when officer approached him, drew his gun and ordered him to stop).

Similarly, we conclude the officers' conduct did not qualify as police misconduct. See Citizen v. State, 39 S.W.3d 367, 372 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (finding no police misconduct where officers drew their guns out of fear for their safety when defendant reached in his pocket, and holding cocaine was voluntarily abandoned when it fell or was dropped from defendant's pocket). When police take possession of property abandoned independent of police misconduct, there is no seizure under the Fourth Amendment. McDuff, 939 S.W.2d at 616. When contraband is thrown, dropped or placed away from the accused in a public place, recovery by the police does not constitute a search or seizure and such evidence is admissible. Washington v. State, 810 S.W.2d 313, 314 (Tex. App.--Houston [14th Dist.] 1991, pet. dism'd); see also Cooper v. State, 889 S.W.2d 8, 10 (Tex. App.--Eastland 1994, no pet.) (officer's recovery of baggie of cocaine dropped by defendant was not tainted by police misconduct because detention was legal investigatory stop).

We hold the record supports the conclusion that Haley voluntarily abandoned the cocaine before any seizure had occurred; therefore, the state and federal constitutional protections against unreasonable seizures were not implicated. See Johnson, 912 S.W.2d at 236; see also Hernandez, 963 S.W.2d at 925. Accordingly, we hold that the trial court did not abuse its discretion in denying Haley's motion to suppress the evidence. See Ross, 32 S.W.3d at 855-56 (we sustain the trial court's ruling if it is supported by the record and correct on any applicable theory of law). We affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

Do Not Publish

1. The other man, who was standing down near the creek, was also handcuffed, but the record does not reveal which officer cuffed him.

2. Officers Allen and Baldwin were the only witnesses at the suppression hearing. Officer Allen testified that he saw Haley throw the item down first and then raise his hands in compliance with the command. Officer Baldwin did not see Haley throw the item down, having arrived after his hands were already raised. What is not clear from the record is whether Officer Allen's verbal command came first, or whether Haley's action of dropping the plastic bag and Allen's command occurred simultaneously. That minute distinction in the sequence of events, however, does not change the fact that the evidence shows Haley discarded the cocaine before he raised his hands and yielded to the police authority.