Haitham Said Foty v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Memorandum Opinion filed August 3, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-01045-CR

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HAITHAM SAID FOTY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 972,698

M E M O R A N D U M O P I N I O N

Following the trial court=s denial of his pre trial motion to suppress evidence, appellant Haitham Said Foty pleaded guilty to aggravated robbery. The trial court assessed punishment at five years= confinement. In one issue, appellant claims the trial court erred in denying his motion to suppress. We affirm.

On December 31, 2003, the Harris County Sheriff=s Department issued a general broadcast stating that two men carrying guns and a black bag robbed a local bank. According to the broadcast, the men wore jumpsuits and ski masks, one man was larger than the other,

and they fled on four-wheelers. Deputy M.D. Mehring, who was in the area, responded to the broadcast. Because Deputy Mehring suspected the robbers might use a nearby railroad track as an escape route, he drove his motorcycle to a railroad track approximately seven miles from the bank.

At the railroad tracks, Deputy Mehring saw appellant and another man, Jant Gutierrez, walking toward him on the tracks. Deputy Mehring waited behind a concrete column under a railroad bridge until appellant and Gutierrez approached. He then stepped out from behind the column and motioned for appellant and Gutierrez to sit on the ground. As they complied, Deputy Mehring asked Gutierrez if he could hold the black bag Gutierrez was carrying. Gutierrez gave him the bag, and Deputy Mehring asked what it contained. Both appellant and Gutierrez responded, AGuns,@ and Deputy Mehring looked in the bag to confirm there were guns inside. As he questioned appellant and Gutierrez about the guns, Deputy Mehring noticed that although their clothing was clean, their hands, feet, necks, and faces were spattered with mud. He asked about the mud, and appellant and Gutierrez explained that a train had splashed mud on them. Deputy Mehring did not believe a train could have caused the mud patterns, but he believed riding four-wheelers while wearing jumpsuits could. He also noticed that appellant was larger than Gutierrez. Due to his observations and the information from the police broadcast, Deputy Mehring suspected appellant and Gutierrez of robbing the bank.

Deputy Mehring then called for backup. While awaiting backup, he asked appellant and Gutierrez about high school, college, and church. Deputy Mehring testified that he did not ask about the bank robbery because he feared for his life and wanted to maintain control of appellant and Gutierrez until backup arrived by talking about other topics. Two other deputies arrived approximately fifteen minutes after Deputy Mehring=s call and arrested appellant and Gutierrez. The deputies found money and four-wheeler keys in both appellant=s and Gutierrez=s pockets.

In his sole issue, appellant claims the trial court erred in denying his motion to suppress the guns, money, and four-wheeler keys. He argues that his initial detention was improper because Deputy Mehring had no reasonable suspicion that he was involved in the bank robbery. He further argues that his continued detention while Deputy Mehring awaited backup was not a lawful investigative detention because Deputy Mehring used no investigative means to quickly dispel or confirm his suspicion regarding the initial stop.

In reviewing a trial court=s ruling on a motion to suppress, we use a bifurcated standard, giving almost total deference to the trial court=s determination of historical facts supported by the record, and reviewing de novo the trial court's application of the law of search and seizure. 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); Marsh v. State, 140 S.W.3d 901, 905 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). When, as here, the trial court does not make explicit findings of fact, we view the evidence in a light most favorable to the trial court=s ruling and assume that the trial court made all necessary findings to support its ruling that are supported by the evidence. Carmouche, 10 S.W.3d at 327B28.

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 (1968). To determine whether such a detention is reasonable under the Fourth Amendment, the Terry Court adopted a dual inquiry: (1) whether the initial detention was justified at its inception and (2) whether the detention was reasonably related in scope to the circumstances that justified the detention in the first place. Id. at 19B20. An officer must have a reasonable suspicion to seize a person or property. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). Reasonable suspicion requires Athat there is something out of the ordinary occurring and some indication that the unusual activity is related to crime.@ Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992). The scope of a detention is reasonable if it is Atemporary and reasonably related in scope to the circumstances which justified the interference.@ Davis, 947 S.W.2d at 243. However, if an officer forms a reasonable suspicion that a person has engaged in criminal activity not related to the initial stop, the officer may continue to detain the person for further investigation. See Glazner v. State, 175 S.W.3d 262, 266 (Tex. Crim. App. 2005) (concluding that marijuana odor from appellant=s vehicle gave officer reasonable suspicion to continue detention for investigation not related to initial traffic violation).

Appellant claims his initial detention was not based on a reasonable suspicion. To demonstrate that Deputy Mehring had a reasonable suspicion to detain appellant, the State must present specific articulable facts that, when combined with rational inferences from those facts, led Deputy Mehring to reasonably suspect that appellant had engaged, was engaging, or was soon to engage in criminal activity. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). This is an objective standard. See Garcia v. State, 827 S.W.2d 937, 943B44 (Tex. Crim. App. 1992). The reasonable suspicion determination is made by considering the totality of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).

Deputy Mehring testified that when he initially spotted appellant and Gutierrez, he believed they were committing a Class C misdemeanor by walking on the railroad. See Tex. Penal Code Ann. ' 28.07(b)(2)(A) (Vernon 2003). Appellant claims that he was initially detained not because of his presence on the railroad, but based on Deputy Mehring=s Ahunch@ that he was involved in the robbery. However, Deputy Mehring=s subjective motive for detaining appellant does not render the objectively reasonable purposeCappellant=s unlawful presence on the railroadCunreasonable. See Whren v. United States, 517 U.S. 806, 813 (1996) (ASubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.@); State v. Gray, 158 S.W.3d 465, 469B70 (Tex. Crim. App. 2005) (AThe fact that the officer may have had another subjective motive for seizing [appellee] would not have made an objectively reasonable seizure unlawful under the constitutions of the United States or of this state.@). Thus, Deputy Mehring=s initial detention of appellant was reasonable because he observed appellant committing the Class C misdemeanor of walking on the railroad.

Appellant also argues that his continued detention was unreasonable because it was not limited to an investigation of the circumstances that justified his original detention. Before calling for backup, Deputy Mehring asked appellant and Gutierrez several questions to investigate what they were doing on the railroad, why they were carrying guns, and how they became spattered with mud. Within a few moments of his initial contact with appellant and Gutierrez, their responses and similarity to the men described in the broadcast led him to suspect they had robbed the bank. He then sought to maintain control of appellant and Gutierrez while awaiting assistance by asking about school and church. Because Deputy Mehring had a reasonable suspicion, based on articulable facts and rational inferences from those facts, that appellant was involved in the bank robbery, his continued detention of appellant was reasonable. See Woods, 956 S.W.2d at 38.

Having found Deputy Mehring=s initial detention of appellant and his continued detention while awaiting backup were reasonable, we overrule appellant=s sole issue.

We affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed August 3, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).