The State of Texas v. Gerald Franklin Henry--Appeal from County Court at Law No 2 of Smith County

NOS. 12-07-00039-CR

12-07-00040-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW #2

GERALD FRANKLIN HENRY,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

The State of Texas appeals the trial court s suppression orders relating to law enforcement s stop of Appellee Gerald Franklin Henry. In one issue, the State argues that the stop in question was not an arrest, but either an encounter or investigative detention. We affirm.

Background

Appellee was charged by separate informations with the offenses of resisting arrest, search, or transportation, and evading arrest or detention.1 Appellee filed a motion to suppress in each case, alleging that

[Appellee] was arrested without lawful warrant, probable cause or other lawful authority in violation of the rights of [Appellee] pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution . . . .

The trial court held an evidentiary hearing on Appellee s motions. At that hearing, counsel for Appellee made clear that Appellee s motions to suppress were based solely on the proposition that the initial stop of Appellee by law enforcement was without an adequate reason.2 The trial court, agreeing that the initial stop of Appellee was an arrest, entered an order in each case suppressing

[t]he arrest of [Appellee] at the time and place in question and any and all evidence which relates to the arrest, and any testimony . . . concerning any action of [Appellee] while in detention or under arrest in connection with this case.

This appeal followed.

Suppression of Evidence

The State argues that the stop in question was not an arrest, but either an encounter or investigative detention. If the stop was an investigative detention, the State argues that it was supported by reasonable suspicion.

Standard of Review and Applicable Law

A trial court s ruling on a motion to suppress evidence is reviewed under an abuse of discretion standard. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court s ruling on a motion to suppress, a reviewing court must give almost total deference to a trial court s determination of historical facts and review de novo the trial court s application of the law of search and seizure. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Where a trial court does not make explicit findings of historical fact, the reviewing court examines the evidence in the light most favorable to the trial court s ruling and assumes the trial court made implicit findings of fact that are supported in the record. Balentine, 71 S.W.3d at 768.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. See U.S. Const. amend. IV. The Fourth Amendment is not implicated in every interaction between law enforcement and citizens. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889 (1968). There are three recognized categories of interaction between law enforcement and citizens: encounters, investigative detentions, and arrests. Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996).

An encounter is a consensual interaction that does not require any particular level of suspicion. Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (plurality opinion). As long as the encounter is consensual, it is not a seizure under the Fourth Amendment and no reasonable suspicion is required. Id. An interaction rises beyond the level of a consensual encounter where (1) a person is subjected to a show of authority and submits or (2) law enforcement officers apply physical force to limit the person s movement. See id. In order to determine whether a submitted to show of authority rises to the level of a seizure, a court must consider all the circumstances surrounding the [interaction] to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the [interaction]. Id., 501 U.S. at 439, 111 S. Ct. at 2389. This reasonable person test presupposes an innocent person. Id., 501 U.S. at 438, 111 S. Ct. at 2388. If an interaction rises to the level of a seizure, it will be either an investigative detention or an arrest, depending on the circumstances. Francis, 922 S.W.2d at 178. In order for investigative detentions and arrests to be legal, particular levels of suspicion are required. Id.

An investigative detention is a seizure under which a person is not free to leave, at least for some period of time. Id. In an investigative detention, the detaining officer must have specific articulable facts that, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the person stopped. Terry, 392 U.S. at 21, 88 S. Ct. at 1879-80. There must be a reasonable suspicion that the person detained is, has been, or will soon be engaged in criminal activity. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). The existence of reasonable suspicion turns on an objective assessment of the detaining officer s actions in light of the facts and circumstances confronting him at the time, and not on the officer s state of mind. See United States v. Knights, 534 U.S. 112, 122, 122 S. Ct. 587, 593, 151 L. Ed. 2d 497 (2001); Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006). Absent reasonable suspicion, an investigative detention violates the Fourth Amendment. See Francis, 922 S.W.2d at 178.

The final level of interaction, an arrest, is also a seizure. Id. An arrest must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Id. This level of suspicion is meant to protect law abiding citizens from the high level of intrusion that accompanies an arrest. Id. Unlike an investigative detention, where the seizure may end within a brief period of time, the seizure involved in an arrest will not be brief. Id.

Discussion

The sources of evidence in the record as to the circumstances surrounding the stop of Appellee consist of the testimony of Tyler Police Officer Malcolm McGuire and the exhibits admitted following that testimony. This evidence presents us with a factual sequence that was uncontroverted at the suppression hearing. Where more than one inference could be reasonably made from this evidence, we have construed it in the light most favorable to the trial court s ruling. See Balentine, 71 S.W.3d at 768.

According to the evidence, at around 8:45 p.m. on September 3, 2006, Officer McGuire, a three and a half year veteran of the Tyler Police Department, responded to a suspicious vehicle call of a white SUV that was parked in a high crime area, high drug area. Because he had spent three years working in that exact portion of Tyler, Officer McGuire knew of the nature of the area from personal experience. The Tyler Police Department had been informed of this suspicious vehicle by an anonymous caller.

The SUV was unoccupied when Officer McGuire located it. As he approached the SUV in his patrol car, he noticed Appellee, who was in the vicinity of the SUV, get into the passenger seat of a second vehicle. The second vehicle, with Appellee as a passenger, drove off.

Officer McGuire then continued his investigation of the SUV, discovering that the doors were locked. He noted that the SUV was legally parked and not a hazard. He also observed that the hood of the SUV was warm, indicating to him that it had been driven recently. From this, Officer McGuire formed the opinion that Appellee had possibly parked the SUV, gotten out, and ridden away in the second vehicle. Nonetheless, because he did not see Appellee exit the SUV, he had no way of knowing if Appellee had ever actually driven the SUV.

Officer McGuire returned to his patrol car and drove in the same direction that the second vehicle had headed. Eight to ten minutes later, Officer McGuire observed Appellee being dropped off by the second vehicle and walking away from the street. Believing Appellee may have parked one vehicle, gotten into a second vehicle, and been dropped off eight to ten blocks away, Officer McGuire felt that Appellee s conduct was suspicious.

Officer McGuire considered his experience as a police officer. This experience included experience in watching traffic in and out of drug houses and experience in coming in contact with persons who had recently purchased or were on their way to purchase [illegal] narcotics. Further, Officer McGuire had observed many instances of persons who [were] engaged in illegal activity or about to engage in illegal activity that tried to avoid [him] while [he was] in a marked uniform and a marked [patrol] car. Most of these instances had occurred in the area in question.

After considering his experience, Officer McGuire concluded that Appellee s activities were consistent with someone who may have just stolen a vehicle and consistent with someone who may be on their way to or from a drug area. The fact that this was a high drug area and an area where vehicle thefts commonly occurred supported his determination. Nonetheless, after considering his training and experience, Officer McGuire did not suspect that Appellee was committing a crime, had committed a crime, or was going to commit a crime. Thus, even after taking into account the totality of the circumstances, it was Officer McGuire s opinion, as an experienced police officer, that criminal activity was not afoot. Further, he knew that the original SUV had not been reported as a stolen vehicle. However, based on Appellee s suspicious activity of getting into and later out of a vehicle, Officer McGuire decided to perform an investigative detention of Appellee.

Officer McGuire stopped, exited his patrol car, and began following Appellee. Officer McGuire called for [Appellee] to stop, but was ignored . . . . After about the [fourth] time of calling him, [Appellee] stopped walking. Because his first three commands to stop had been ignored, Officer McGuire had formed a suspicion that [Appellee] may have been engaged in illegal activity. He had formed this suspicion before he issued his fourth and last stop command to Appellee.

A uniformed police officer s command that a person stop is a sufficient show of authority such that a reasonable innocent person would have believed he was not free to decline the officer s requests or otherwise terminate the interaction. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980) (plurality opinion) ( [An example] of circumstances that might indicate a seizure . . . would be . . . the use of language . . . indicating that compliance with the officer s request might be compelled. ); Johnson v. State, 864 S.W.2d 708, 716 (Tex. App. Dallas 1993) (unanimous en banc opinion) ( Because Johnson did not comply, the officers show of authority of chasing Johnson and shouting at him to stop did not constitute a Fourth Amendment seizure of Johnson. ), aff d on other grounds, 912 S.W.2d 227 (Tex. Crim. App. 1995); see also California v. Hodari D., 499 U.S. 621, 627, 111 S. Ct. 1547, 1551, 113 L. Ed. 2d 690 (1991) ( [P]olicemen do not command Stop! expecting to be ignored . . . . ). Therefore, we begin our analysis by noting that the stop of Appellee was not a consensual encounter. See Bostick, 501 U.S. at 439, 111 S. Ct. at 2389. As such, we now evaluate whether Officer McGuire had a reasonable suspicion to conduct an investigative detention of Appellee.

At the hearing, Officer McGuire stated that, at the time he first commanded Appellee to stop,

he did not suspect that Appellee had committed a crime, was committing a crime, or was going to commit a crime. Thus, even after taking into account the totality of the circumstances, it was Officer McGuire s opinion, as an experienced police officer, that criminal activity was not afoot. While the subjective state of mind of Officer McGuire was not an absolute requirement for reasonable suspicion to exist, see Knights, 534 U.S. at 122, 122 S. Ct. at 593; Griffin, 215 S.W.3d at 409, Officer McGuire s application of his training and experience to the facts of the case was evidence, under the totality of the circumstances, that a reasonable person, with such information, would not have believed that criminal activity was afoot. Based upon the totality of the circumstances, we hold that Officer McGuire did not have reasonable suspicion at the time of his first stop command. See Brother, 166 S.W.3d at 257. Therefore, had his initial show of authority succeeded in stopping Appellee, that stop would have violated the Fourth Amendment. See Francis, 922 S.W.2d at 178.

At some point following his first command to stop, Officer McGuire formed a suspicion that [Appellee] may have been engaged in illegal activity. Therefore, we must consider whether the additional fact of Appellee s failure to respond to Officer McGuire s commands to stop resulted in a reasonable suspicion by Officer McGuire that Appellee was, had been, or would soon be engaged in criminal activity. See Brother, 166 S.W.3d at 257.

Officer McGuire had no way of knowing if Appellee had ever actually driven the initial suspicious SUV. All he witnessed was a man being picked up by another driver and then dropped off after an eight to ten minute drive. While this was certainly a short drive, such a drive was not short enough, in and of itself, to arouse suspicion of any kind. This was confirmed by the fact that, even with his specialized training and experience, Officer McGuire did not suspect that Appellee was committing a crime, had committed a crime, or was going to commit a crime.

Therefore, we must discern whether Appellee s receipt of a short ride from one part of a high crime area, high drug area to another part of such an area, combined with Appellee s failure to follow a command by a uniformed police officer to stop, constituted sufficient facts to create reasonable suspicion sufficient to detain him. An individual s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000). Likewise, a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. Id., 528 U.S. at 125, 120 S. Ct. at 676. Finally, the mere fact that Appellee had received an eight to ten minute ride from another was not sufficient, by itself, to create reasonable suspicion. Construing the facts to support the trial court s ruling, and reviewing the trial court s legal conclusions de novo, we conclude that these facts, even when taken together, did not supply reasonable suspicion. See Brother, 166 S.W.3d at 257.

Having determined that Officer McGuire did not have reasonable suspicion to stop Appellee, we need not determine if the stop in question was an investigative detention or an arrest. In either case, Officer McGuire did not have the particular level of suspicion necessary to stop Appellee. The trial court s suppression orders were not erroneous. We overrule the State s sole issue.

Disposition

We affirm the orders of the trial court.

SAM GRIFFITH

Justice

Opinion delivered September 5, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 See Tex. Penal Code Ann. 38.03 (Vernon 2003) (resisting); Tex. Penal Code Ann. 38.04 (Vernon 2003) (evading).

2 At this point in time, all we re challenging is the reason for the initial stop.