JARVIS CHARLES EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 16, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01224-CR
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JARVIS CHARLES EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 204th District Court
Dallas County, Texas
Trial Court Cause No. F88-83835-LQ
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O P I N I O N
Before Justices Whitham, Rowe and Whittington
Opinion By Justice Whitham
        Appellant appeals a conviction for possession of cocaine. In his sole point of error, appellant contends that the trial court erred by failing to grant his motion to suppress evidence seized as a result of an illegal stop and unlawful search. We disagree. Accordingly, we affirm.
        Officer William Mears was on patrol in an area described by the officer as a high crime area. At about 3:30 a.m., Mears and his partner observed appellant and another man running at full sprint in an alley behind a closed business. Mears was familiar with the area and stated that there had been a dozen burglaries in the block area in the preceding year. There was also a high rate of prostitution, drugs, and robberies. Mears, thinking there might have been a burglary, drove to the end of the alley and saw the men running across South Central Expressway. The officers pulled into the parking lot of a motel and stopped their car. The officers did not activate their emergency lights or siren. Appellant and his companion were, at that point, walking across the motel parking lot. As Mears was about to get out of his car, he saw appellant reach into his pocket and pull out a match box, which he tossed to the ground. Mears then told both men to come over and place their hands on his squad car. Mears patted them down, and then went and retrieved the match box. The match box held capsules which contained a substance that appeared to be cocaine. Later analysis proved the substance to be cocaine.
        Appellant asserts that his detention by police was illegal. Appellant argues that (1) the officers had no reasonable suspicion based upon articulable facts to allow an investigative stop, and (2) the narcotics were not abandoned freely, but in response to police misconduct. A police officer may conduct a limited stop of an individual for the purpose of investigation, together with a limited search for weapons under circumstances which would not justify an arrest. Terry v. Ohio, 392 U.S. 1, 19-27 (1968). No stop has occurred for Fourth Amendment purposes if an officer merely approaches a person in a public place and asks questions, as long as the person is free to walk away. Florida v. Royer, 460 U.S. 491, 497-98 (1983). Thus Mears was free to approach appellant in the motel parking lot. We conclude that no "stop" occurred until later, after appellant threw down the match box.
        An investigative stop may be based upon a reasonable suspicion if the suspicion is founded on articulable facts which, in light of the officer's experience and general knowledge, lead to the reasonable conclusion that criminal activity is afoot and the detained person is connected with the activity. See Armstrong v. State, 550 S.W.2d 25, 30-31 (Tex. Crim. App. 1977). This determination is a factual one which is made by considering the totality of the circumstances at the time of the stop to judge whether the officer's action was reasonable. United States v. Cortez, 449 U.S. 441, 417-18 (1981).
        The circumstances surrounding the detention of appellant include the following: (1) it was 3:30 a.m., (2) appellant was running at full sprint in an alley behind closed businesses, (3) the location was in a high crime area, (4) in addition to about a dozen burglaries in the block area, there was a high rate of prostitution, drugs, and robberies, and (5) by the time appellant was detained the officer had seen him throw down a match box. We conclude that Mears had a reasonable basis for believing that appellant was connected with criminal activity. We reason that appellant's actions were not as consistent with innocence as with guilt. Indeed, appellant's act of throwing something down when he saw a marked police car approaching is particularly suggestive of criminal activity. Evasive action by a person in response to an officer's approach for a Terry stop may, in some instances, actually give probable cause for arrest. See Starks v. State, 661 S.W.2d 756, 757 (Tex. App.--Beaumont 1983, no pet.). Therefore, we conclude that the total circumstances leading up to the detention of appellant are more than sufficient to justify the officer's investigative stop.
        Furthermore, we conclude that the seizure of the narcotics was not unlawful. We reach this conclusion because appellant abandoned the cocaine. When property seized has been abandoned, there is no "search." See Sullivan v. State, 564 S.W.2d 698, 702 (Tex. Crim. App. 1978). Appellant, however, cites Comer v. State, 754 S.W.2d 656 (Tex. Crim. App. 1986), and argues that the property was not freely abandoned because the abandonment was the result of police misconduct. We disagree. In Comer, the Court of Criminal Appeals held that abandonment consists of two components: (1) a defendant must intend to abandon property, and (2) a defendant must freely decide to abandon the property; the decision must not merely be the product of police misconduct. Comer, 754 S.W.2d at 659. In the present case, we conclude that appellant demonstrated his intent to abandon the narcotics by throwing them to the ground. Moreover, we conclude that appellant freely decided to abandon the cocaine. We reach this conclusion because the officers merely drove their car toward appellant. This constitutes no act of misconduct. Appellant's decision to abandon the narcotics was, therefore, voluntary and not the result of police misconduct. Therefore, we conclude that the evidence obtained from the match box was free of any taint because the match box was abandoned property. It follows that the trial court did not err in refusing to suppress the evidence obtained from the match box. We overrule appellant's sole point of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
881224.U05
 
 
File Date[11-16-89]
File Name[881224]