Opinion
Nos. 02-03-421-CR, 02-03-422-CR
Delivered: August 31, 2004.
Appeal from the County Court of Hood County.
Robert Kearsey, Granbury, TX, for appellant.
R. Kelton Connor, Hood County Attorney, Granbury, TX, for state.
Panel B: HOLMAN, GARDNER, and WALKER, JJ.
OPINION
Appellant Jeffrey Michael St. George, Jr. was charged with the offenses of possession of marijuana and failure to identify. Appellant filed motions to suppress, and on September 18, 2003, the trial court held a hearing on those motions. Following the hearing, the trial court denied Appellant's motions, but it filed no findings of fact or conclusions of law. Appellant subsequently pled guilty to both charges and received deferred adjudication community supervision. The trial court granted Appellant permission to appeal its ruling denying his motion, and Appellant now appeals that decision. We will reverse.
See Tex. Health Safety Code Ann. § 481.121(b)(1) (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 38.02, 1993 Tex. Gen. Laws 3586, 3666 (amended 2003) (current version at Tex. Penal Code Ann. § 38.02 (Vernon Supp. 2004-05)).
I. Facts
On October 21, 2002, Hood County sheriff deputies Sonny Frisbee and Robert Young stopped a vehicle because of a defective license plate light; the vehicle was driven by Appellant's mother. Deputy Frisbee approached the driver's side door, informed the driver why she had been stopped, and obtained her name and identification. Deputy Frisbee then asked the passenger, Appellant, for identification. Appellant responded that he had none, but he gave his name as John Christopher St. George and his date of birth as December 16, 1975. By this time, Deputy Young had approached the passenger's side door. Young testified that Appellant was "slouched down in the passenger's seat" and that he avoided eye contact and seemed nervous.
After a computer check was performed, the officers were notified that there was no record of a "John St. George" with a date of birth of December 16, 1975. When questioned further, Appellant began to give conflicting answers about his name, changing between John Christopher and John Michael. There was also some conflict between Appellant's answers to questions regarding his name and answers that his mother gave regarding his name. Eventually, Appellant's date of birth began to change as well, from December 16, 1975 to December 6, 1977.
Ultimately, Appellant admitted that his true name was Jeffrey Michael St. George and his date of birth was December 6, 1977. A computer check of his real name revealed that he had outstanding warrants, for which he was subsequently arrested. During a search incident to arrest, marijuana was located in a pack of cigarettes in his pocket. Appellant was charged with possession of marijuana under two ounces and failure to identify as a fugitive.
II. Discussion
In two issues, Appellant challenges his interrogation by the officers and the admission of evidence obtained pursuant to his interrogation. Appellant does not distinguish his rights under the code of criminal procedure, the Texas Constitution, and the United States Constitution from one another. Therefore, we will address only whether the trial court's denial of his motion to suppress violated his rights under the United States Constitution. See, e.g., Dewberry v. State, 4 S.W.3d 735, 743-44 (Tex.Crim.App. 1999) (because defendant failed to distinguish his rights under the Texas Constitution from those under the federal constitution and combined all four points into one argument, court of criminal appeals addressed only whether defendant's rights under the United States Constitution were violated), cert. denied, 529 U.S. 1131 (2000); Hale v. State, 139 S.W.3d 418, 421 (Tex. App.-Fort Worth 2004, no pet.) (because defendant did not point out any distinction between his rights to confrontation under the United States Constitution and the Texas Constitution, court would analyze defendant's contention under the United States Constitution only).
Appellant's grounds are stated as follows: (1) whether the groundless interrogation, investigation and continued detention of the passenger of a vehicle subject to a routine traffic stop is illegal? (2) whether evidence acquired as a result of an illegal interrogation, investigation and continued detention of the passenger of a vehicle subject to a routine traffic stop should be suppressed?
A. Standard of Review
When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, he or she must allege the basis for a Fourth Amendment claim, such as that the search or seizure occurred without a warrant. Bishop v. State, 85 S.W.3d 819, 822 (Tex.Crim.App. 2002). The burden is then upon the State to establish either that the search or seizure was performed under the authority of a warrant or that the warrantless search or seizure was reasonable. Id.
A trial court's ruling on a motion to suppress evidence should be reviewed under a bifurcated standard. Appellate courts should give "almost total deference to a trial court's determination of the historical facts." Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). The trial court's application of the law of search and seizure should be reviewed de novo. Id. Furthermore, in cases in which the trial court did not make findings of fact, an appellate court should review the evidence in the light most favorable to the trial court's ruling. Id. at 327-28. That is, we assume that the trial court made implicit findings of fact supported by the record that buttress its conclusion. Id. at 328.
B. The Precedents
A traffic stop is a Fourth Amendment seizure analogous to an investigative detention. State v. Gray, No. 12-03-00207-CR, 2004 WL 306107, at *3 (Tex. App.-Tyler Feb. 18, 2004, pet. filed); State v. Daly, 35 S.W.3d 237, 241 (Tex. App.-Austin 2000, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150 (1984) and Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396 (1979)). Thus, pursuant to the Fourth Amendment, such an investigative detention must be "reasonable." U.S. Const. amend. IV. Whether the detention is reasonable is determined by a two-prong test: (1) whether the officer's action was justified at its inception; and (2) whether the detention was reasonably related in scope to the circumstances that justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App. 1997).
Generally, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772 (1996). Moreover, it is well-settled that an officer may, within the scope of a valid traffic stop, demand identification, a valid driver's license, and proof of insurance from the driver, and the officer may also check for outstanding warrants. Davis, 947 S.W.2d at 245 n. 6.
The parties in the instant case agree that the initial traffic stop, the temporary detention of both the driver and passenger pursuant to the traffic stop, and the questioning of the driver as to her name and identification were all lawful. However, Appellant argues that extending the scope of the investigation to him as a mere passenger was unlawful without separate reasonable suspicion of him. The State, on the other hand, contends that an officer may, within the scope of a valid traffic stop, request identification and check for outstanding warrants of passengers.
The leading authorities on this issue are two opinions from the court of criminal appeals that were delivered two weeks apart. In the first case, police officers had stopped a vehicle occupied by two passengers, as well as the driver, to perform a routine check of equipment and drivers' licenses. Tardiff v. State, 548 S.W.2d 380, 381 (Tex.Crim.App. 1977). After the driver's license had been checked and returned to him, one passenger lying in the backseat sat up and questioned the officer about a man named Vince Taylor. Id. The officer became "a bit suspicious" because he had learned from a police radio broadcast the night before that officers in another county were looking for a man named Vince Taylor. Id. The officer also noticed that the passenger was "weaving back and forth in the seat and appeared to be under the influence of drugs," so the officer asked him to exit the vehicle. Id. As the door opened, the officer smelled the odor of marijuana on the passenger. The officer took the passenger, whom he later determined to be Vince Taylor, to the rear of the car and asked his partner to remove the driver and the other passenger in the car, Tardiff, from the vehicle. Id. When the driver and Tardiff exited the vehicle, the second officer also smelled the odor of marijuana coming from the car and its occupants. Id. Once both the driver and Tardiff had exited the vehicle, the second officer noticed a bulge in Tardiff's pants, which was subsequently discovered to be a bag containing a green leafy substance. Id. at 381-82. As the first officer reached for the bag, Tardiff put his hands on the officer's pistol. Id. at 382. They struggled for the pistol and Tardiff ran, but he was finally apprehended and arrested. Id.
Tardiff argued on appeal that the officer exceeded his authority in conducting a search of the passengers and the car because his justification for stopping the car ceased after he checked the driver's license. Id. However, the court of criminal appeals rejected this argument, noting that "[a]ny articulable facts and circumstances which come into the officer's knowledge during the license check, or, for that matter, at any other time, may justify further investigation." Id. The court also stated that Tardiff, "as a passenger in the detained vehicle, cannot claim immunity from investigation." Id. (citing Wood v. State, 515 S.W.2d 300 (Tex.Crim.App. 1974) and Leonard v. State, 496 S.W.2d 576 (Tex.Crim.App. 1973)). Thus, the questions about Vince Taylor, the passenger's weaving back and forth, the odor of marijuana, more odor of marijuana after all the passengers had exited the vehicle, and the bulge in Tardiff's pants were "articulable facts and circumstances" that continued to justify the officer's further investigation that led to Tardiff's arrest. Id. at 383.
In the second case, an automobile driven by a man named Duff was stopped for speeding. Duff v. State, 546 S.W.2d 283, 284 (Tex.Crim.App. 1977) (op. on reh'g). As the officer exited his patrol car, Duff got out of his own car and approached the patrol car, and the officer told Duff to get into the patrol car. Id. The officer subsequently approached the passenger in the car, a man named Pendley, to speak with him and obtain identification from him. Id. The officer noticed the smell of marijuana as well as marijuana seeds in the front floorboard. Both Duff and Pendley were subsequently arrested and convicted for possession of marijuana. Id. Duff challenged his arrest, arguing that the officer exceeded his authority by approaching the vehicle and conducting a search. Id. at 285. The court of criminal appeals rejected this argument, stating that "[n]ot only was [the officer] justified in approaching the car if he desired to check the license plate number or vehicle inspection sticker, but we have previously held that there is no prohibition against his questioning the passenger of the car." Id. at 286 (citing Leonard, 496 S.W.2d 576 and Wood, 515 S.W.2d 300).
Thus, it appears at first glance that pursuant to a valid traffic stop, the police may question a passenger without any additional reasonable suspicion. However, both Duff and Tardiff rely upon the decisions in Wood and Leonard as the basis for their holdings. See Duff, 546 S.W.2d at 286-88; Tardiff, 548 S.W.2d at 382-83. Therefore, we must examine the analysis provided in those two decisions.
In Wood, an officer was alerted to an attempted burglary conducted by three white men. 515 S.W.2d at 303. He later learned that one of the three had been apprehended. Id. Hours later, the officer stopped a vehicle that he saw run a stop sign; the vehicle was occupied by two white men. Id. at 303-04. He approached the driver, who produced his driver's license. Id. at 304. During a conversation with the driver, the officer noticed that the passenger appeared to have difficulty keeping his eyes open, and the officer concluded that he was under the influence of alcohol or drugs. Id. When the passenger was unable to produce any identification, the officer asked him to exit the vehicle. As the passenger walked to the police vehicle, he still appeared to be intoxicated. Id. A pat down search of the passenger revealed three rolls of coins and some loose bills, and a subsequent search of the vehicle revealed two pistols, one of which had been fired recently. Id. Thereafter, both the driver and passenger were arrested. Id. Meanwhile, another officer went to a nearby Texaco station, where he found the cash register open and the service station attendant dead. Id. One of the pistols found in the vehicle search was discovered to be the pistol that killed the service station attendant. Id. Furthermore, the money in the passenger's pocket was discovered to be that stolen from the service station. Id. at 305.
On appeal, the passenger argued that the search and seizure performed on him were illegal under the United States and Texas constitutions. Id. The court of criminal appeals applied the two-pronged Terry test and concluded that the officer's action was justified at its inception because the officer "formed the opinion [that the defendant] was under the influence of alcohol or drugs before he got out of the car and again after he got out of the car and prior to any 'pat down' of his person." Id. at 307.
Similarly, in Leonard, a police officer stopped a vehicle in order to make a driver's license check. 496 S.W.2d at 577. By the time the officer exited his patrol car, the driver had gotten out of his vehicle and approached the officer. Id. The officer asked to see his driver's license. Id. The driver said that he did not have his driver's license, but he offered other identification. Id. When later asked if he had noticed anything about the driver's appearance at this point, the officer testified that he smelled a marijuana odor on his clothing. Id. The officer subsequently went to the vehicle to look at the passenger. Id. When he bent down to do this, he smelled a strong odor of marijuana. Id. The officer then asked the passenger for identification, and he asked the passenger to step out of the vehicle. Id. He asked both driver and passenger to put their hands up on the vehicle. Id. When the passenger put his cigarette pack on the top of the car, the officer noticed what appeared to be a marijuana cigarette. Id. A search of the vehicle revealed more marijuana. Id.
The court found that the officer was authorized by statute to stop the vehicle and determine whether the driver had a valid driver's license. Id. Furthermore, the smell of marijuana on the driver and the manner in which he approached the officer after being stopped gave the officer further reason to continue the investigation. Id. at 578. Once the officer smelled marijuana coming from the vehicle, he had a right to have the passenger get out of the vehicle. Id. Finally, the passenger's possession of a marijuana cigarette, along with the officer's previous observations, gave the officer probable cause for a search of the vehicle. Id.
Thus, Tardiff and Duff, along with Wood and Leonard, indicate that an investigation of the passenger of a vehicle is not included in the scope of a mere traffic stop. Instead, there must be reasonable suspicion of the passenger before the passenger may be investigated. In Tardiff, the questions about Vince Taylor by the other passenger, the passenger's weaving back and forth, and the initial odor of marijuana were all specific facts that created a reasonable suspicion that Tardiff was involved in criminal activity before he was investigated. 548 S.W.2d at 383. In Duff, the smell of marijuana, as well as marijuana seeds in the front floorboard, provided reasonable suspicion for an investigation. 546 S.W.2d at 286-87. In Wood, the passenger's difficulty in keeping his eyes open and the officer's conclusion from this that the passenger was under the influence of alcohol or drugs all occurred before the officer began questioning the passenger and provided the requisite reasonable suspicion to investigate him. 515 S.W.2d at 305-06. Finally, in Leonard, the officer had smelled marijuana on the driver's clothes before he approached the passenger for identification. 496 S.W.2d at 577. The smell was sufficient to justify reasonable suspicion that the passenger was involved in criminal activity, allowing an investigation of the passenger. Id. at 578.
Therefore, we conclude that an officer may not, within the scope of a valid traffic stop, request identification and check for outstanding warrants of passengers. In order to conduct such an investigation of the passenger, the officer must have separate reasonable suspicion of the passenger.
We note that two of our sister courts have interpreted the law differently. In Freeman v. State, 62 S.W.3d 883, 887 (Tex. App.-Texarkana 2001, pet. ref'd), an officer stopped a rental vehicle driven by Freeman for following another vehicle too closely. The officer approached Freeman and asked him for his driver's license and the rental car agreement, and Freeman complied. Id. The officer then asked Freeman to exit the vehicle and step to the rear, where he was questioned about his travel plans, who rented the vehicle, and the identity of the passenger in the vehicle. Id. The officer then went to the passenger's side window and asked the passenger the same questions. Id. Only at this time did he smell the odor of marijuana in the vehicle for which Freeman was convicted. Id. Freeman challenged his conviction, arguing that the officer had concluded his investigation of the traffic violation before he questioned the passenger and smelled the marijuana, so that the continued detention of Freeman for the purpose of questioning the passenger was an unreasonably prolonged detention. Id. The court rejected this argument, stating that "the officer had the right to ask to see the driver's license and insurance papers, information on the ownership of the vehicle, the driver's destination, and the purpose of the trip." Id. at 888. The court also noted that "[i]t was also reasonable for the officer to approach the passenger and ask her similar questions." Id. (citing Duff, 546 S.W.2d at 286).
We note, however, that since only the driver in Freeman challenged the scope of the investigation with respect to him as the driver, the latter statement by the court was dicta. Moreover, despite the court's citation to Duff, we have found, as indicated above, that Duff does not support the proposition that officers may question passengers subject to a valid traffic stop without first articulating reasonable suspicion.
In Josey v. State, 981 S.W.2d 831, 836 (Tex. App.-Houston [14th Dist.] 1998, pet. ref'd), two officers observed two vehicles parked in the middle of the street and the driver of one vehicle standing in the street talking to the occupants of the second vehicle. The officers stopped both vehicles, and one of the officers asked the driver of one of the cars for his driver's license and proof of insurance. The driver had neither, so he was arrested. Id. The officer then asked the passenger for identification, and the passenger produced a Texas identification card. Id. Since the driver was in custody and the passenger did not present a driver's license, a wrecker was called to impound the car. Id. Before the wrecker was given the keys, a large amount of cash was found in the car, bundled in a manner similar to the way that cash is commonly used in narcotics transactions. Id. At that time, the passenger was asked to exit the vehicle and was placed under arrest. Id. Further search of the car revealed a pistol and a small amount of cocaine and marijuana. Id.
The passenger filed a motion to suppress the evidence obtained in the search of the vehicle, arguing in part that the officers had neither reasonable suspicion nor probable cause to believe that he had committed a crime justifying an investigatory detention. Id. at 837. The court rejected this argument, stating that "a passenger in an automobile is subject to a temporary investigative detention in the same manner as a pedestrian." Id. at 838 (citing Rhodes v. State, 945 S.W.2d 115, 117 (Tex.Crim.App.), cert. denied, 522 U.S. 894 (1997)). The court went on to conclude that because the defendant was a passenger in an automobile lawfully detained for a traffic violation, the officers were justified in detaining him for investigative purposes. However, the court's statement appears to misstate the holding in Rhodes. Rhodes states that "[t]he Supreme Court has held police officers may stop and briefly detain persons reasonably suspected of criminal activity even if probable cause to arrest is not then present. This Court has held that passengers in an automobile are subject to temporary investigative detentions in the same manner as pedestrians." Rhodes, 945 S.W.2d at 117 (citations omitted and emphasis added). That is, Rhodes indicates that in order for a temporary investigative detention of a passenger to be valid, police still must follow the requirements of Terry.
C. Analysis
Because we have determined that an officer must have separate reasonable suspicion of a passenger in order to request identification and check for outstanding warrants against that passenger, we now must determine whether there was such evidence when the officers in the instant case requested identification and checked for outstanding warrants against Appellant. That is, we must determine whether Appellant's actions and the surrounding circumstances before he was asked his identity were enough to justify reasonable suspicion of Appellant.
Under the first prong of the Terry test, an officer's action is justified at its inception when he has a reasonable suspicion to believe that an individual is involved in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Carmouche, 10 S.W.3d at 329. In other words, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Davis, 947 S.W.2d at 242. The pertinent question is an objective one: "[W]ould the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880 (internal quotations omitted); see also Davis, 947 S.W.2d at 242. In determining whether reasonable suspicion existed, a "totality of the circumstances" test is to be used to determine whether the officer had a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 749 (2002).
The second prong of the test concerns the scope of the investigative detention. Davis, 947 S.W.2d at 243. An investigative detention, "like any other search, must be strictly circumscribed by the exigencies which justify its initiation." Id. (quoting Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882). Thus, the detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325 (1983); Davis, 947 S.W.2d at 243.
We first note that the video introduced into evidence at the suppression hearing shows that Deputy Frisbee began questioning Appellant within ten seconds of making initial contact with the driver of the car. It is difficult to fathom that Frisbee had developed specific and articulable facts to justify reasonable suspicion of Appellant in such a short period of time.
Second, it was not Deputy Frisbee who testified at the hearing as to the reason that Appellant was questioned. As indicated by Deputy Young's testimony and by the videotape, Frisbee approached the driver's side window and questioned the driver and then Appellant about their identities. Young approached the passenger's side door following this exchange. There is no testimony from Deputy Frisbee going to reasonable suspicion. Deputy Young testified that he observed Appellant "slouched down in the passenger's seat" and that Appellant avoided eye contact and seemed nervous. Thus, Young's testimony goes only to any reasonable suspicion that arose after Frisbee began questioning Appellant.
Furthermore, it is well settled that nervousness alone is not enough to amount to reasonable suspicion. See, e.g., Holladay v. State, 805 S.W.2d 464, 472-73 (Tex.Crim.App. 1991), overruled on other grounds by Hunter v. State, 955 S.W.2d 102 (Tex.Crim. App. 1997); Daniels v. State, 718 S.W.2d 702, 707 (Tex.Crim. App. 1986), overruled on other grounds by Juarez v. State, 758 S.W.2d 772 (Tex.Crim.App. 1988); Glass v. State, 681 S.W.2d 599, 602 (Tex.Crim.App. 1984).
Therefore, we hold that the State did not meet its burden of showing that Frisbee's detention and investigation of Appellant was reasonable. That is, there was no evidence presented indicating that Frisbee's questioning of Appellant was justified at its inception. As such, the trial court erred in denying Appellant's motions to suppress. Appellant's issues are sustained.
III. Conclusion
Having sustained Appellant's issues, we reverse the judgments of the trial court and remand for proceedings consistent with this opinion.
Our decision in this case is not affected by the United States Supreme Court's recent decision in Hiibel v. Sixth Judicial District Court, 124 S.Ct. 2451 (June 21, 2004). In that case, following a telephone call reporting an assault in a truck, an officer arrived at the location and found a truck on the side of the road, a man standing outside the truck, and a woman sitting inside the truck. Id. at 2455. The officer asked the man, who appeared to be intoxicated, for identification eleven times; each time, the man refused. Id. After being warned that he must identify himself or be arrested, the man was arrested for violation of Nevada's "stop and identify" statute. Id. at 2455-56.
In establishing that the Nevada statute did not violate the defendant's Fourth or Fifth Amendment rights, the court reasoned that "questions concerning a suspect's identity are a routine and accepted part of many Terry stops." Id. at 2458. Thus, the court's holding was predicated on a valid Terry stop, i.e., reasonable suspicion. Id. at 2458-60. By way of contrast, the issue in the instant case is precisely whether the deputies' investigative detention of Appellant was supported by reasonable suspicion.