Robert Louis Zaegel v. The State of Texas--Appeal from County Crim Court No 4 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-170-CR

ROBERT LOUIS ZAEGEL

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 4

Dallas County, Texas

Trial Court # MB93-39013-E

O P I N I O N

Appellant appeals from a judgment of the trial court which placed him on deferred adjudication probation for six months and assessed a fine of $100.

Appellant was charged by information with unlawfully possessing a pair of brass knuckles. Appellant filed a motion to suppress the evidence which the trial court overruled. The trial court thereafter found the evidence substantiated Appellant's guilt but deferred adjudication of guilt and placed him on six months probation plus a $100 fine.

Two witnesses testified at the hearing on the motion to suppress. University Park Police Officer Bahr testified: that he was on patrol in the SMU area at 3:30 a.m. on September 21, 1993; he was driving near the intersection of Airline and McFarlin where a number of fraternity houses were located; that several burglaries had occurred in the area in recent weeks; that he observed two persons standing near a parked car in the driveway of a residence; that he noticed that the two "kind of crouched down"; that the two ran, he yelled "stop," and Appellant hesitated; that he pursued Appellant and apprehended him two houses from the location he first saw him; that he smelled a strong odor of alcoholic beverage on his person; that he arrested him for public intoxication; that he handcuffed and searched him and found brass knuckles in his back pocket.

Appellant testified: that he was a 20-year-old SMU student living in the nearby freshman dormitory; that his average was 3.65 GPA and he was majoring in accounting; that he was walking on Airline on the sidewalk with a friend coming from the Green Elephant Restaurant and Bar; that the officer came by and shined his light on him; that he and his friend did not crouch down; that they were not near a parked car; that his friend ran and he continued walking; that the officer pulled his car in front of him, got out of the car, called for him to come to him, which he did; that without talking to him, the officer asked him to turn around, put his hands behind him, which he did; that the officer handcuffed him; that the officer wanted to know who his friend was, and he refused to tell him; that it was his understanding he was arrested because he would not tell the officer who his friend was; that the officer told him if his friend has not run that he probably would have just picked the two up and driven them home. Appellant spent the night in jail.

The trial court overruled the motion to suppress the brass knuckles evidence at trial and found the evidence substantiated Appellant's guilt; placed Appellant on deferred adjudication probation for six months and fined him $100.

In two points of error Appellant asserts the seizure of the evidence constituted a violation of the Fourth Amendment to the U.S. Constitution and a violation of Article I, Section 9, of the Texas Constitution. The Fourth Amendment of the U.S. Constitution and Article I, Section 9, of the Texas Constitution both provide, in pertinent part, that the people shall be secure in their persons against unreasonable searches and seizures.

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant meets his burden by establishing that a search or seizure occurred without a warrant. Mattei v. State, 455 S.W.2d 761, 765 (Tex. Crim. App. 1970). If the officer did not have a warrant, the State must prove the reasonableness of the search and seizure. Russell, supra, p. 9, 10. Here, the arrest and search of Appellant was without a warrant. Thus the State had the burden of establishing the reasonableness of the officer's actions.

Officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Nevertheless, even a temporary detention of this kind is not permissible unless the circumstance upon which the officer relies objectively supports a reasonable suspicion that the person detained actually is, has been, or soon will be, engaged in criminal activity. And at a minimum, the suspicious conduct must be sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set the suspect apart from them. Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991).

An officer may briefly stop a suspicious individual to determine his identity. An individual stopped may refuse to answer questions put to him and may go on his way. To justify a temporary detention, the officer must have specific articulable facts which, in light of his experience and knowledge taken with rational inferences, would reasonably warrant the intrusion on a citizen. Detention based on a mere hunch is illegal. There must be a reasonable suspicion by the officer that some activity out of ordinary is occurring or has occurred; some suggestion to connect the detained person with the unusual activity; and some indication that the activity is related to crime. And where the initial detention is unlawful, any evidence seized subsequent to such detention is inadmissible. Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994); Glass v. State, 681 S.W.2d 599, 601 (Tex. Crim. App. 1984). Mere flight alone, or refusing to answer questions of the officer, and walking away, does not justify investigative detention. Gurrola, supra, p. 303.

Appellant's actions were consistent with legal activity. Nothing was articulated by the officer to connect Appellant with any illegal activity or crime. Nothing was articulated by the officer to objectively support a reasonable suspicion that Appellant would soon be engaged in criminal activity.

We think the officer lacked "reasonable suspicion" to conclude that Appellant was engaged in or about to engage in illegal activity, and that the trial court erred in overruling Appellant's motion to suppress.

Points one and two are sustained. The judgment is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Reversed and remanded

Opinion delivered and filed September 18, 1996

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