Christopher Michael Sawyer v. The State of Texas--Appeal from 338th District Court of Harris County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHRISTOPHER MICHAEL SAWYER, )

) No. 08-04-00204-CR

Appellant, )

) Appeal from the

v. )

) 338th District Court

THE STATE OF TEXAS, )

) of Harris County, Texas

Appellee. )

) (TC# 966280)

)

O P I N I O N

This is an appeal from a conviction for the felony offense of possession of a controlled substance, methamphetamine. Appellant pled guilty and was sentenced by the trial court to 5 years= probation and a fine of $1,000. On appeal, Appellant challenges the trial court=s denial of his motion to suppress the evidence seized. We affirm.

At the motion to suppress hearing, Stephanie Scruggs, the manager of the Kroger located at Cypresswood and 249, testified that on October 28, 2003, she and a coworker by the name of Alicia, were outside the store taking a break when a man, later identified as the Appellant, walked up and asked if the store was still open. As he entered the store, both she and Alicia saw the butt of a gun sticking out of the back of his pants. Ms. Scruggs told Alicia to stay outside and call the police. Ms. Scruggs was then called back into the store, where a customer, the Appellant, needed assistance.

Appellant was looking for a lighter and butane and as Ms. Scruggs was helping him locate these items, another customer approached the register. While Ms. Scruggs helped the other customer, Appellant remained behind the counter briefly and then ran out of the store. Ms. Scruggs=s described Appellant=s actions as strange and she thought that maybe he was nervous. While Appellant was in the store, Ms. Scruggs did not see the gun. After Appellant left, Ms. Scruggs went outside to make sure Alicia was okay. Alicia was still on the phone with the police.

Harris County Sheriff=s Department Deputy Brian Raven testified that on the day in question, he received a call from dispatch around midnight in reference to a weapon disturbance at Cypresswood and Tomball Parkway. Deputy Raven was told by dispatch the suspect was a white male, with a shaved head, wearing a red shirt and blue jeans. As he arrived at the scene, he was told by dispatch that the suspect was leaving the scene in what was first described as a silver, and then corrected to a green car. At the same time, as he was exiting the patrol car, Deputy Raven observed a vehicle leaving the Kroger parking lot headed toward Cypreswood Drive. He informed dispatch that he had seen the vehicle exit and was en route behind the car. Deputy Raven saw the vehicle traveling westbound on Cypresswood and then proceeded to pull in behind the vehicle and initiated a traffic stop. The stop was about 600 to 800 yards from the Kroger. While he was following the vehicle, he testified that the car was not in his view the entire time, there were periods where there was a building between him and the vehicle.

Once Deputy Raven initiated the stop, Appellant pulled into the parking lot of a Sonic and before he could even grab a radio, the Appellant exited his vehicle. Appellant did not run or try to evade the deputies. Deputy Raven and his partner got out the patrol car, drew their guns, and ordered the Appellant to get on the ground. Deputy Raven testified that the Appellant did not comply; he speculated that this may have been because the ground was wet. Deputy Raven testified that there was some communication between them and the Appellant, but that he could not testify as to what that communication entailed. Deputy Raven=s partner walked up to the Appellant, took him to the ground, and handcuffed him. No weapon was found in Appellant=s person. According to Deputy Raven, Appellant at this point was not being arrested.

Appellant was then placed in the back of the patrol car. Once he was placed in the patrol car, Deputy Raven testified that Appellant was being detained. Deputy Raven and his partner proceeded to search Appellant=s car. Appellant was not asked whether they could search his car, nor did Appellant consent to the search. He testified that a weapon was never found, but instead, a baggy with a substance they believed to be methamphetamine was found in the console between the driver and the passenger seat; the console was closed. They also found a jar containing marijuana in plain view in the back seat. Deputy Raven testified that they were already inside the car when they found the jar of marijuana and that they found the marijuana first.

Deputy Raven testified that when the dispatch call went out, there was no way of knowing whether the person with the gun had a license and that he did not have a chance to interview the reportee, because as soon as he arrived at the Kroger to do so, he witnessed the green vehicle leaving the parking lot. He was not able to interview anyone before stopping the Appellant; the only conversation he had was with the dispatcher. Deputy Raven agreed with defense counsel that at this point, they were detaining the Appellant and investigating the weapons disturbance complaint communicated by the dispatcher.

Next to testify was Deputy Kirt Fickessen. Deputy Fickessen testified that no one was interviewed prior to pursuing any type of investigation on the case. He testified that the dispatch call was concerning a weapons disturbance and that this did not necessarily mean that a weapon had been discharged. The dispatch only informed them that a white male was carrying a weapon and he believed that a robbery was in progress. Deputy Fickessen testified that they both drew their weapons on the Appellant because they thought he had a weapon. Deputy Fickessen testified that when he placed Appellant on the ground, he asked him where the weapon was and that Appellant responded that he did not have a weapon. Pursuant to the investigation, Deputy Fickessen proceeded to search the vehicle. He testified that there was no weapon found and that at the time they searched his car, Appellant was detained.

Appellant also testified at the motion to suppress hearing. Appellant testified that he went to the Kroger to buy a lighter. He testified that he pulled right up to two women standing in front of the store smoking and asked if the store was still open. Once inside the store, Ms. Scruggs helped him but he was not able to find the lighter he was looking for. He then left the store and because he was running late to meet someone, he testified that he probably walked fast and sprinted out. He started to pull out of the parking lot and eventually, a patrol car pulled him over. He pulled into the first space available which was the parking lot of a Sonic. He turned off his ignition and pulled out his license and his keys, and then he noticed that the officers already had their guns drawn. They told him to get on the ground, but did not indicate to him why he was being arrested. He was asked to get on the ground about three or four times and while he did get down on his knees, the officers told him all the way down; he then asked if in the water because he testified that there were puddles on the ground. He testified that he got pressed down into the concrete. He was then handcuffed and placed in the back of the patrol car. He testified that he was asked where the gun was and if there was any reason why Ms. Scruggs was saying he had a gun stuck in his pants. He testified that the only thing he could think of was that he was standing with his hands in the back of his pants, and that maybe his belt was showing. He testified that he does not own a gun and has never owned one. He additionally testified that the deputies did not have his consent to search the car and that they did not ask for it either.

At the conclusion of the motion to suppress hearing, the trial court entered an order denying Appellant=s motion. Having retained his right to appeal the trial court=s denial of his motion to suppress, Appellant timely filed this appeal.

DISCUSSION

In his sole issue, Appellant asserts the trial court abused its discretion in denying

his motion to suppress evidence obtained as a result of the search of his vehicle. Specifically, Appellant contends that he was stopped based on only the dispatcher=s call, and for no other reason. Therefore, Appellant asserts that reasonable suspicion was lacking to stop Appellant=s vehicle, making the subsequent search of his vehicle illegal.

Standard of Review

A trial court=s ruling on a motion to suppress is generally reviewed for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App. -El Paso 1999, no pet.). In reviewing a motion to suppress, we must give almost total deference to the trial court=s determination of historical facts, especially when the court=s findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Where the trial court has made no explicit findings of historical facts, as in this case, the evidence must be reviewed in a light most favorable to the trial court=s ruling. Carmouche, 10 S.W.3d at 327 28. We review de novo the trial court=s conclusions of law and the application of those principles to the facts which do not turn on an evaluation of credibility and demeanor, including Fourth Amendment search and seizure law. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Carmouche, 10 S.W.3d at 327. Although great weight should be given to the inferences drawn by the trial judges and law enforcement officers, determinations of reasonable suspicion and probable cause are reviewed de novo on appeal. Guzman, 955 S.W.2d at 87, citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996); see Loesch v.State, 958 S.W.2d 830, 831-32 (Tex.Crim.App. 1997). However, the trial court=s ruling will not be reversed on appeal, even if made for the wrong reason, if the ruling is supported by the record and correct on any theory of law applicable to the case. Villareal, 935 S.W.2d at 138; see also Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Ross, 10 S.W.3d at 855 56.

The stopping of a vehicle constitutes a Aseizure@ for Fourth Amendment purposes. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58, 96 S. Ct. 3074, 3082-83, 49 L. Ed. 2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975); State v. Sanchez, 856 S.W.2d 166, 168 (Tex.Crim.App. 1993). The Fourth Amendment protects people, not places, and wherever an individual may harbor a reasonable Aexpectation of privacy,@ he is entitled to be free from unreasonable governmental intrusion, and the burden shifts to the State to prove its reasonableness. Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967); Russell v. State, 739 S.W.2d 923, 929 (Tex.App.--Dallas 1987)(Opin. on remand), pet. dism=d, improvidently granted, 772 S.W.2d 129 (Tex.Crim.App. 1989).

It is well settled that a police officer may stop and briefly detain persons suspected of criminal activity, but the officer must possess a reasonable suspicion to justify this investigative detention. See Davis v. State, 947 S.W.2d 240, 242-44 (Tex.Crim.App. 1997)(discussing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). The totality of the circumstances must be examined when determining the reasonableness of an investigative stop. See Woods v . State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997); Stewart v. State, 22 S.W.3d 646, 648 (Tex.App.--Austin 2000, pet. ref=d); State v. Garcia, 25 S.W.3d 908, 912 (Tex.App.--Houston [14th Dist.] 2000, no pet.). In determining whether reasonable suspicion existed, we look to the facts available to the officer at the moment of detention. See Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880; Davis, 947 S.W.2d at 243; Garcia, 25 S.W.3d at 912.

In this instance, the Appellant contends that the information given to the officer by the store clerk is on the same footing as an anonymous tip and therefore insufficient to create reasonable suspicion. The State on the other hand, argues that the tip that was provided was not from an anonymous or unidentifiable informant. Appellant is correct in stating that an anonymous tip by itself is insufficient to support a finding of reasonable suspicion. A tip by an unnamed informant of undisclosed reliability, standing alone, rarely will establish the requisite level of suspicion necessary to justify an investigative detention. See Florida v. J.L., 529 U.S. 266, 269, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254 (2000); Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415-16, 110 L. Ed. 2d 301 (1990). However, there must be some further indicia of reliability, some additional facts from which a police officer may reasonably conclude that the tip is reliable and a detention is justified. State v. Sailo, 910 S.W.2d 184,188 (Tex.App.--Fort Worth 1995, pet. ref=d). There are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability from which a police officer may reasonably conclude that a detention is justified. See J.L., 529 U.S. at 270, 120 S. Ct. at 1378; White, 496 U.S. at 329, 110 S. Ct. 2415. When an unnamed informant puts himself or herself in a position where he or she could easily be accountable, the tip becomes more reliable. See Sailo, 910 S.W.2d at 188.

Contrary to Appellant=s assertions, Deputy Raven had more to go on than the information provided by the store clerk. Here, Deputy Raven received a call from dispatch around midnight regarding a weapons disturbance based on information provided by Alicia, the store clerk. Alicia provided a description of the person, including what the suspect was wearing, and the vehicle the suspect was seen entering and driving away. Upon receiving the dispatch and responding to the call, Deputy Raven entered the parking lot of the store, observed a vehicle matching the description given leaving the parking lot simultaneously as he was receiving the exact same information from dispatch. Deputy Raven followed the vehicle as it left the parking lot and headed down a public road. He initiated the stop 600 to 800 feet away from the Kroger. Unlike an anonymous caller, the store clerk in this case identified herself and her location and was providing some of the information at the same time that Deputy Raven was witnessing the same acts. The reliability of the information provided by the store clerk was increased. See Sailo, 910 S.W.2d at 188. We find that Deputy Raven had reasonable suspicion from the call made by the store clerk and from his own observations which corroborated the information provided by the store clerk. Deputy Raven had reasonable suspicion to pull the vehicle over.

Once the deputies initiated a stop of Appellant=s vehicle, Appellant asserts that the conduct of the officers in this case constituted an arrest. Appellant argues that the deputies lacked probable cause to arrest him.

A person is arrested when he has been actually placed under restrain or taken into custody by an officer. See Tex.Code Crim.Proc.Ann. art. 15.22 (Vernon 2005). Whether a detention is an investigative detention or an arrest depends upon the facts and circumstances surrounding the detention. Amores v. State, 816 S.W.2d 407, 412 (Tex.Crim.App. 1991); Hoag v.State, 728 S.W.2d 375, 378-79 (Tex.Crim.App. 1987). A suspect is not necessarily subjected to an arrest when the officers draw their weapons and have the suspect exit the vehicle. See Marsh v. State, 684 S.W.2d 676, 679 (Tex.Crim.App. 1984).

Here, Appellant was pulled over by the officers, and immediately thereafter, Appellant exited his vehicle, forcing the deputies to draw their guns toward him. Appellant was ordered to get on the ground several times but refused to do so; he was then forced to get on the ground and subjected to a pat-down search. He was then handcuffed, and placed in the back of the patrol car. Given the backdrop of this particular stop, a weapons disturbance call, we find that these actions are more consistent with an investigatory detention than with an arrest. Therefore, we will continue to examine the trial court=s decision based upon whether there was reasonable suspicion to conduct a weapons search of the vehicle.

A police officer is authorized, for his own protection, to conduct a reasonable search for weapons where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest that individual for a crime. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968). A police officer investigating a suspect after a roadside stop may conduct a protective search of the automobile=s passenger compartment if he has a reasonable belief, based upon specific and articulable facts and the inferences rationally drawn from those facts, that the detainee may pose a threat to him. See Michigan v. Long, 463 U.S. 1032, 1050 51, 103 S. Ct. 3469, 3480-81, 77 L. Ed. 2d 1201 (1983); Goodwin v. State, 799 S.W.2d 719, 727 28 (Tex.Crim.App.1990). The search must be limited to those areas in which a weapon may be placed or hidden. See Long, 463 U.S. at 1049, 103 S. Ct. 3481. The police officer may conduct the protective search for weapons contemporaneously with a temporary detention when he observes conduct that leads him to reasonably conclude that a crime may be taking place and that the person with whom he is dealing may be armed and dangerous. See Worthey v. State, 805 S.W.2d 435, 437 (Tex.Crim.App. 1991).

The record indicates that Deputy Raven was responding to a weapons disturbance dispatch. Here, the deputies had reason to believe Appellant was armed and dangerous in light of the caller=s statement that she had seen the Appellant enter the store with a gun in his pocket. See Vannatta v. State, 773 S.W.2d 771, 774 (Tex.App.--Corpus Christi 1989), pet. dism=d, improvidently granted, 796 S.W.2d 190 (Tex.Crim.App. 1990). Upon initiating the stop of Appellant=s vehicle, Deputy Raven testified that before he could even grab his radio, Appellant had already exited the vehicle. Both he and Deputy Fickessen immediately drew their weapons and ordered the Appellant to get on the ground. Repeatedly, the Appellant was instructed to get on the ground and he did not respond. Appellant=s immediate exit from the vehicle, the deputies knowledge of the Appellant=s possession of a weapon, and Appellant=s lack of compliance with the deputies order could have reasonably led the deputies to believe that the Appellant was armed and dangerous. The deputies, drawing an inference from Appellant=s erratic exit of his vehicle that he was potentially armed and dangerous, were justified in taking action to neutralize the situation. Having decided already that Appellant was not arrested at this point, the search of the vehicle was lawfully pursuant to a weapons search.

In sum, the record contains evidence from which the trial court could have held that (1) the deputies had reasonable basis to fear for their safety, and (2) the search was restricted to those areas wherein a weapon could be found. Having found that the officers had reasonable suspicion to stop the Appellant, we find that Appellant=s subsequent search of his vehicle was legal pursuant to a weapons search. In so doing, we find that the trial court did not err in denying Appellant=s motion to suppress. We therefore overrule Issue One.

Accordingly, we affirm the trial court=s judgment.

October 13, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)