Opinion
01-19-00608-CR
08-17-2023
TAIRON JOSE MONJARAS, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas Trial Court Case No. 1614762
Panel consists of Kelly, Goodman, and Countiss Justices.
OPINION ON REMAND
Julie Countiss Justice.
After the trial court denied his motion to suppress evidence, appellant, Tairon Jose Monjaras, with an agreed punishment recommendation from the State, pleaded guilty to the felony offense of possession of a firearm by a felon. In accordance with the plea agreement, the trial court assessed his punishment at confinement for five years. On original submission, in his sole issue, appellant contended that the trial court erred in denying his motion to suppress evidence.
See TEX. PENAL CODE ANN. § 46.04(a), (e).
The Court previously held that the trial court did not err in denying appellant's motion to suppress evidence because the Court concluded that appellant's interaction with law enforcement officers constituted a consensual encounter. See Monjaras v. State, 631 S.W.3d 794, 810 (Tex. App.-Houston [1st Dist.] 2021) (Monjaras I), rev'd, 664 S.W.3d 921 (Tex. Crim. App. 2022) (Monjaras II); but see Monjaras I, 631 S.W.3d at 810-26 (Goodman, J., dissenting) (concluding interaction between appellant and law enforcement officers ceased being consensual after certain point). Having so held, the Court affirmed the trial court's judgment. See Monjaras I, 631 S.W.3d at 810 (modifying trial court's judgment to comport with record and affirming as modified). On original submission, the Court did not address appellant's argument that law enforcement officers lacked reasonable suspicion to detain him. See id. at 810 n.4; but see id. at 810-26 (Goodman, J., dissenting) (concluding law enforcement officers did not have reasonable suspicion when they detained appellant).
Appellant then filed a petition for review with the Texas Court of Criminal Appeals, which the court granted. See Monjaras II, 664 S.W.3d at 926 (granting petition for review "to determine whether the court of appeals erred in finding that [a]ppellant's interaction with the officers was a consensual encounter"). In its decision, the Texas Court of Criminal Appeals concluded that although appellant's interaction with law enforcement officers was initially consensual, it "became an investigative detention." Id. at 924-32. It thus reversed this Court's judgment and remanded the case to the Court to determine whether law enforcement officers "had reasonable suspicion to detain [a]ppellant and whether that detention was valid." Id. at 924, 932.
We reverse and remand.
Background
At the hearing on appellant's motion to suppress, Houston Police Department ("HPD") Officer J. Sallee testified that he was on duty, with his partner, on December 12, 2018. While on patrol around noon in a "high crime area," Sallee drove his patrol car into the La Plaza apartment complex on Glenmont Drive. The patrol car's emergency overhead lights and siren were not activated. The weather was warm, in the "[m]id sixties" and "[s]eventies" and Sallee was "looking for obscene crime." As Sallee drove slowly toward the back of the apartment complex, he saw appellant walking. Appellant had a backpack with him. Appellant did not make eye contact with Sallee as the patrol car drove by; instead, appellant "immediately looked down as . . . a child would . . . if [he was] doing something wrong." Appellant was "over dressed for th[e] temperature" outside. After the patrol car passed appellant, Sallee's partner saw appellant "immediately look[] up." According to Sallee, this was "not really normal human behavior," but Sallee did not believe that appellant had committed a criminal offense. Sallee also noted that he had never seen appellant before in the area and he had never arrested appellant before that day.
Cf. Monjaras v. State, 664 S.W.3d 921, 924 n.1 (Tex. Crim. App. 2022) (Monjaras II) (noting appellant's counsel stated during his closing argument at motion-to-suppress hearing that "the temperature [on December 12, 2018] from 6:00 AM to 12:00 PM ranged from fifty-seven to sixty-eight degrees").
Because Officer Sallee wanted "to see where [appellant] was going or what was going on," he made a U-turn in the patrol car. Sallee still did not activate his patrol car's emergency overhead lights or siren. After the patrol car turned around, Sallee expected to see appellant walking, but appellant was not in sight. Sallee believed that appellant had either "ducked off into an apartment" or run off, but he acknowledged that a number of "different things" could have happened.
While patrolling the other side of the apartment complex, Officer Sallee saw appellant again. Sallee did not activate his patrol car's emergency overhead lights or siren. Sallee stopped the patrol car, exited, and approached appellant to engage in a "consensual encounter" with him. At the time Sallee approached appellant, he did not "suspect him of anything." Sallee requested information from appellant but did not demand information from appellant. Sallee did not exhibit his firearm, and appellant freely spoke to Sallee. Appellant understood what Sallee said to him. Appellant was "free to go," and if appellant "had just taken off running," Sallee would not have done anything.
Officer Sallee also testified that when he eventually searched appellant, he found five .22 caliber bullets in appellant's backpack. According to Sallee, "[t]he only reason[] you have the bullets is [be]cause you have a gun." Sallee then "felt [a] gun" in appellant's waistband when he searched appellant's person. Appellant immediately started fighting with Sallee after Sallee "felt the gun." Sallee believed that appellant was trying to get his firearm when he struggled with Sallee. Following the struggle, Sallee and his partner recovered a firearm from appellant that was "fully loaded."
HPD Officer C. Starks testified that while on duty on December 12, 2018, he rode, along with his partner, Officer Sallee, in a patrol car. While on patrol, Sallee and Starks went to the La Plaza apartment complex on Glenmont Drive. As they drove around the apartment complex, Starks saw appellant walking. When appellant saw the law enforcement officers, he "lowered his head" and did not look at them, which caught Starks's attention because it was not a normal reaction. According to Starks, "[m]ost people look at the marked [patrol car] when [it] drive[s]-by." Starks also stated that appellant was "not dressed appropriately" because it was a "warm day" and appellant was wearing a jacket and a hat. Appellant was carrying a backpack.
After Officers Sallee and Starks passed by appellant in the patrol car, appellant "raised his head." When Sallee turned the patrol car around to drive back toward appellant, he was gone. Starks believed that appellant had "taken off running into the courtyard." Neither Sallee nor Starks activated the patrol car's emergency overhead lights and siren. Starks noted that appellant had not committed a criminal offense at that time, and Starks did not believe that he had ever seen appellant before that day.
When they saw appellant again, Officers Sallee and Starks made a stop to have a consensual encounter with appellant. The manner in which Sallee parked the patrol car gave appellant a "clear path," and Starks testified that appellant was "free to leave." Starks did not exhibit his firearm; he "never grabbed it," "never removed it," and "never took it out of the holster." Starks stayed "back" as Sallee spoke to appellant, and at one point, he walked away to "get a portable fingerprint device." Starks denied "cornering" appellant. If appellant had "taken off running," Starks would have "watch[ed] him take off run[ning]." Starks noted that while Sallee spoke to appellant, another person flagged Starks down to report an incident unrelated to any interaction the officers were having with appellant.
According to Officer Starks, during the officers' interaction with appellant, Officer Sallee asked appellant if he could search him. And later, after appellant's struggle with Sallee, Sallee removed a firearm from appellant's person.
The trial court admitted into evidence, State's Exhibit 1, a copy of the HPD offense report. A portion of the offense report, titled "Case Summary," states:
See Perez v. State, 495 S,W.3d 374, 387 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (appellate court "consider[s] [the] evidence available to the trial court when it ruled on the motion to suppress"); see also Adroin v. State, No. 01-15-01062-CR, 2016 WL 7368101, at *2 (Tex. App.-Houston [1st Dist.] Dec. 15, 2016, no pet.) (mem. op., not designated for publication) (appellate courts limit their review of trial court's ruling on motion to suppress "to an examination of the evidence produced at the suppression hearing" unless parties relitigate suppression issue at trial on merits).
Officer . . . Starks and Officer . . . Sallee were patrolling at La Plaza Apartments located at 5909 Glenmont on 12-12-18 in response to an increase in violent crime in the area. The officers noticed [appellant] walking inside of the complex. [Appellant] was heav[ily] dressed with a [backpack] and put his head down as the officers drove by. [Appellant] quickly walked into the courtyard and ran eastbound through the complex. The officers noticed [appellant] exited a breezeway and decided to question him regarding his suspicious activity.... Sallee asked [appellant] for his permission to search his person, including his pockets and [appellant] freely agreed to allow . . . Sallee to search him.... Sallee found several bullets in [appellant's] backpack during [the] search. ... Sallee then searched [appellant's] body and touched a .22 caliber handgun concealed inside of [appellant's] pants. [Appellant] grabbed this gun and began to wrestle with [the] officers. [Appellant] grabbed this gun in an attempt to murder . . . Sallee and . . . Starks. The officers wrestled with [appellant] for approximately a minute until . . . Starks tasered him and he began to comply.... Sallee recovered a fully loaded ....22 caliber revolver from [appellant]. This [was] a firearm that [appellant] unlawfully possessed because of his felony conviction.... Sallee received abrasions to his forehead and hand during th[e] struggle.
Another portion of the offense report written by Officer Sallee states:
I have made a prior arrest in this same area of Houston for violent gang related crimes while I was assigned to [the] gang division as a crime reduction unit. Officer Starks and I were in a fully marked police Tahoe and were wearing [our HPD] issued uniforms with [body-worn cameras] activated. We entered the La Plaza apartment complex located at 5909 Glenmont Drive.
While [we] were patrolling through the parking lot[,] we passed by [appellant] who was walking east bound, down the southside of the apartment complex. Both Officer Starks and I noticed that [appellant] appeared to be nervous and stared at the ground and only looked up once we passed him. I continued driving a short distance and turned our patrol vehicle around.
We did not see [appellant] once we turned around for a short time and observed him walking down one of the breeze[ways]. Both Officer Starks and I activated our body[-]worn cameras . . . and I made first contact with [appellant].
I introduced myself and shook [appellant's] hand and began speaking with him. After a short conversation[,] I learned that [appellant] did not have any identification on his person. I have seen this many times with fugitives so they can lie about their identity. [Appellant] verbally consented for me to search him. The consent to search can be clearly heard and [seen] on my [body-worn camera]. [Appellant] continued not to make eye contact with me and had trembling hands.
I searched [appellant] once and then moved to his [backpack] where I located approx[imately] 5 unfired .22 caliber bullets. I recognized the bullets to be [for] a .22 caliber pistol [which] is a smaller firearm. I informed Officer Starks that I had found several bullets and told him it would be a smaller pistol that I could have missed. I began searching [appellant] again and felt a gun near his right[-]side groin area. Once [appellant] knew I had found the gun[,] he reached for it and began fighting [with the] officers. I maintained my right hand on the gun and wrapped my left arm around [appellant's] waist.... Starks, [appellant,] and I went to the ground after a short struggle on our feet.
The entire time [appellant] was attempting to retrieve the gun. Some[how] [appellant] regained his feet and I followed with him by having my arms still wrapped around his waist. We took several steps and I took [appellant] back to the ground. I struck [appellant] several times with my left hand while I maintained my right hand on the gun.... Starks regained his feet and was able to deploy his [conducted energy device] striking [appellant] in his upper left shoulder. All while [Starks and I] gave verbal commands to [appellant]. [Appellant] still had his right hand under his body with his hand on the gun. I yelled at [appellant] and . . . Starks recharged the [conducted energy device]. This time [appellant] finally gave up and placed his hands behind his back.... I placed [appellant] into hand restraints and retrieved the gun from his waist band. I could see from the side of the revolver that it was loaded and placed it behind me....
And a portion of the offense report written by Officer Starks states:
We drove to the La P[laza] Apartments at 5909/5913 Glenmont and began to drive through the parking lot. There was some activity with a few people walking in the complex.
We drove in southbound from Glenmont, drove to the back of the complex and turned to the west[.] [W]e drove to the west parking lot and turned northbound.
I first saw [appellant] walking southbound on the sidewalk along the side of the apartments. It was a warm morning and [appellant] appeared to be overly dressed wearing what looked like multiple layers of clothing and a knit cap. He was also carrying a backpack. [Appellant] saw us and looked down toward the sidewalk and did not look our way when we passed. [Appellant] then looked forward and continued walking northbound as soon as we passed him. ....
We made a U-turn and then drove back to the south side of the complex.
[Appellant] was [nowhere] to be seen. He had obviously taken off running into the courtyard of the apartments. We lost sight of him.
We continued driving eastbound and then turned northbound back toward the entrance that we had just drove through.
Officer Sallee then saw [appellant] walking eastbound through a breezeway into the same parking lot that we were now in.
We decided to do a consensual interview with [appellant] due to his suspicious behavior.
Officer Sallee drove past the breezeway to the north of [appellant]. We stopped in a location that did not impede [appellant's] travel or walking path.
Officer Sallee exited the vehicle and approached [appellant] toward the rear of our truck.... Sallee identified himself and shook [appellant's] hand.
[Appellant] told Officer Sallee that he did not have any identification and verbally identified himself during this conversation. [Appellant] was visibly shaking during th[e] interview.
I had exited the vehicle and had neglected to inform the dispatcher of our location. I saw that [appellant] did not have identification. I then walked to the passenger door of our truck and advised the dispatcher of our location and obtained my portable fingerprinting device.
I was walking back around when [a] witness . . . walked up to me wanting to inform me of some type of incident that had occurred overnight.
I instructed her to step away and wait for me on the sidewalk of the apartments.
I heard Officer Sallee ask [appellant] if he could search his person and his pockets. I heard [appellant] freely say yes.
Officer Sallee then searched [appellant's] person and pockets and began to search his backpack while I was fingerprinting him.
Officer Sallee advised that there w[ere] bullets inside of the backpack. I saw these bullets.... Sallee then told me that they were .22 caliber bullets and that he wanted to search [appellant] again to make sure that he did not miss a pistol during the original search.
[Appellant] cl[e]nched his hands and stiffened up and then quickly reached for his waistband area.
Officer Sallee then told me that [appellant] had a gun and we both began to struggle with [appellant]. ....
We struggled with [appellant] for several seconds. I had a grip on [appellant's] head and hands at one time and lost grip on them during the struggle.
I ended back up on my feet at some time. [Appellant] and Officer Sallee both had their hands on [appellant's] gun and were struggling for several seconds..... ....
I then took out my issued conducted energy device .... I told Officer
Sallee that I had my taser. The only open spot that I could deploy the conducted energy device [was] on the back of [appellant's] left shoulder.
I activated the [conducted energy device,] and I deployed the trigger until [appellant] stopped trying to pull his gun out to kill us. I released the trigger and [appellant] then began to reach back for his gun. I then re-activated the [conducted energy device] on the same cartridge until [appellant] said something to the effect [of] "I quit" and stopped resisting. I immediately stopped the [conducted energy device] when [appellant] stopped resisting. He was then handcuffed and compliant. ....
Officer Sallee removed the pistol ....
The trial court also admitted into evidence, State's Exhibit 2, videotaped recordings from the body-worn cameras of Officers Sallee and Starks on December 12, 2018. The videotaped recording from Sallee's body-worn camera shows Sallee driving his patrol car in an apartment complex. Sallee stops the patrol car and states that he is going to initiate a consensual encounter. He exits the patrol car and says to appellant, "Good morning. How you doing, sir?" Sallee introduces himself to appellant and shakes appellant's hand. Sallee stands close to appellant, within arm's reach. Appellant is wearing a jacket, a knit hat, and carrying a backpack over his shoulder. Sallee asks appellant if he lives in the apartment complex. After appellant responds that he does, Sallee asks appellant if he has any "ID." Officer Starks is shown on the videotaped recording standing off to the side near the back of the patrol car and several feet away from Sallee and appellant. Appellant says that his identification is at his home and points in its direction. When Sallee asks appellant for his name, appellant offers to write his name down on Sallee's notepad. Appellant and Sallee move closer so that appellant can take the notepad and a pen from Sallee. Sallee asks appellant "how[] [his] day [is] going," and Starks, while still standing off to the side, asks appellant if he "[is] a painter." Appellant answers the officers' questions. As appellant writes down his name for Sallee, Starks walks away from appellant and Sallee, and Starks is no longer visible on the videotaped recording.
Officer Sallee next asks appellant if he has "ever been arrested." Appellant responds, "Yeah . . . for assault, domestic violence." Sallee also asks appellant to write down his date of birth, which appellant does. While this is occurring, a woman approaches Officer Starks, who reappears on the videotaped recording and moves further away from Sallee and appellant to speak with the woman. Sallee asks appellant if he is nervous and states that appellant is "shaking." Appellant responds. After Starks is finished speaking with the woman, he walks back closer to appellant and Sallee, standing closer to appellant than he was previously. Appellant is now in the middle standing in between the two officers with the patrol car directly in front of him. Sallee asks appellant if he has "anything . . . illegal" on him, including any narcotics or "weapons." Appellant shakes his head "no" in response to Sallee's question. Sallee then asks appellant if he can "search [him]," and appellant starts to empty his pockets. Sallee asks appellant to "hold on" and sticks his hand out, touching appellant's arm, to stop him. Sallee asks again if he can search appellant, and when appellant tries to empty his pockets again, Sallee puts his hand on appellant's arm and tells appellant that he only asked appellant "a question." Sallee then puts his hand on appellant's back, and Starks moves closer to appellant with his hands stretched out, saying "manos, manos." Sallee then asks appellant again, "May I search you," and appellant responds, "Yeah."
"'Mano' is the Spanish word for hand." Monjaras II, 664 S.W.3d at 925 n.3.
To search appellant, Officer Sallee asks appellant to put his hands on the patrol car for the search. Appellant complies, and Officer Starks takes appellant's backpack off and sets it on the ground by the patrol car. Sallee searches appellant's person. Appellant tells Sallee that he was coming "from work." Sallee then searches appellant's backpack, while Officer Starks stands to the side with appellant and fingerprints appellant. While searching appellant's backpack, Sallee finds bullets. Starks asks appellant if he "ha[s] a gun," and appellant says, "No," and that it is his "painter's backpack." Sallee goes over to appellant to search his person again, telling Starks that the firearm would be "small." Sallee then says, "Yeah, he's got a gun, partner." On the videotaped recording sounds of a struggle can then be heard.
The videotaped recording from Officer Stark's body-worn camera shows Starks riding in the front-passenger seat of a patrol car as it drives through an apartment complex. The patrol car stops, and Starks states, "[F]or [a] consensual encounter." Officer Sallee can be heard saying, "Good morning. How you doing, sir?" Starks exits the front-passenger side of the patrol car and walks around to the back of the car. He stands off to the side behind the patrol car.
The videotaped recording shows Officer Sallee standing with appellant, within arm's reach of appellant. Appellant is wearing a jacket, a knit hat, and carrying a backpack. Sallee asks appellant if he has any "ID." Appellant says, "No," and that he has it at his home. Sallee asks appellant if he can "get [appellant's] name," and appellant agrees. Sallee asks appellant how his "day [is] going," and appellant responds, "Good." Starks asks appellant if he "[is] a painter," and appellant responds, "Yeah." Appellant offers to write his name down on Sallee's notepad and takes the pen and notepad from Sallee's hands.
Officer Starks then walks away from appellant and Officer Sallee and back around the patrol car to open his front-passenger-side door. He gets a device out of the patrol car, and as he walks toward the back of the patrol car again, a woman approaches him. Starks greets the woman. The woman and Starks stand off to the side further away from Sallee and appellant. The woman speaks to Starks about an unrelated incident, and he asks her to wait nearby on the sidewalk. While Starks is speaking to the woman, Sallee can be seen standing right next to appellant, asking appellant if he is nervous and telling appellant that he is shaking.
After speaking to the woman, Officer Starks moves back toward where appellant and Officer Sallee are standing-standing closer to appellant and Sallee than he was previously. Sallee asks appellant if he has "anything . . . illegal" on him, including any narcotics or "weapons." In response, appellant shakes his head, "no." Sallee asks appellant, "May I search you?" And appellant starts removing items from his pockets. To clarify that Sallee is only asking if he can search appellant, Sallee asks appellant to stop taking items out of his pockets and sticks his hand out to stop appellant, touching him. Sallee then places his hand on appellant's arm and asks appellant again, "May I search you?" Sallee then places his hand on appellant's back, and Starks tells appellant, "manos, manos," while stretching out his hand toward appellant. Sallee takes his hand off appellant and asks appellant, "May I go in your pockets and search you." And appellant says, "Yeah." To carry out his search, Sallee asks appellant to put his hands on the patrol car. Appellant complies, and Starks places appellant's backpack on the ground. Sallee searches appellant's person.
After searching appellant's person, Officer Sallee searches appellant's backpack. While this is occurring, Officer Starks asks appellant if he can "see [appellant's] hands" to fingerprint them. Appellant says, "Yeah." Starks asks appellant if he has "ever been arrested before," and appellant responds, "Yeah . . . for domestic violence." Sallee then informs Starks that he found bullets in appellant's backpack. Starks asks appellant if he "ha[s] a gun," and appellant says, "No" and that his backpack is his "painter's backpack." Sallee proceeds to search appellant's person again and tells Starks that the firearm would be "small." Sallee then says, "Yeah, he's got a gun, partner," and a struggle ensues between the officers and appellant.
After the suppression hearing, the trial court denied appellant's motion to suppress evidence.
Standard of Review
We apply a bifurcated standard to review a trial court's denial of a motion to suppress evidence. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We review the trial court's factual findings for an abuse of discretion and the trial court's application of the law to the facts de novo. Id.; see also State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) ("[W]hether a given set of historical facts amount to a consensual police-citizen encounter or a detention under the Fourth Amendment is subject to de novo review because that is an issue of law[-]the application of legal principles to a specific set of facts." (emphasis omitted)). At a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses' credibility, and it may choose to believe or disbelieve all or any part of the witnesses' testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as here, a trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling, and we assume that the trial court made implied findings of fact that support its ruling as long as those findings are supported by the record. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35-36 (Tex. Crim. App. 2017); see also Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000). We give almost total deference to a trial court's implied findings, especially those based on an evaluation of witness credibility or demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id. at 447-48. This is so even if the trial court gives the wrong reason for its decision. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); State v. Brabson, 899 S.W.2d 741, 745-46 (Tex. App.-Dallas 1995) (stating, in context of reviewing trial court order granting motion to suppress, appellate court "cannot limit [its] review of the [trial] court's ruling to the ground upon which it relied" and it "must review the record to determine if there is any valid basis upon which to affirm the [trial] court's ruling"), aff'd, 976 S.W.2d 182 (Tex. Crim. App. 1998).
Motion to Suppress
In his sole issue, appellant argues that the trial court erred in denying his motion to suppress evidence because appellant "was detained and in custody from the very second the [law enforcement] officers pretended to have a 'consensual encounter' with him" and "[t]here was no reasonable suspicion for the [investigative] detention."
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. Atkins v. State, 882 S.W.2d 910, 912 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd); see U.S. CONST. amend. IV. Yet, not every encounter between law enforcement officers and citizens implicates constitutional protections. Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). Interactions between law enforcement officers and citizens are often characterized as either consensual encounters, investigative detentions, or arrests. State v. Woodard, 341 S.W.3d 404, 410-11 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Arrests require either a warrant or probable cause, while investigative detentions constitute brief seizures that are less intrusive than arrests and only require reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914-17 (Tex. Crim. App. 2011); Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Consensual encounters do not trigger any Fourth Amendment protections, so a law enforcement officer does not need probable cause or reasonable suspicion to initiate a consensual encounter. Woodard, 341 S.W.3d at 411 (noting "[l]aw enforcement [officer] is free to stop and question a fellow citizen; no justification is required for an officer to request information from a citizen" (internal footnotes omitted)); State v. Velasquez, 994 S.W.2d 676, 678-79 (Tex. Crim. App. 1999); Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
Here, the Texas Court of Criminal Appeals held that appellant's initial interaction with Officers Sallee and Starks constituted a consensual encounter. See Monjaras II, 664 S.W.3d at 928-29. But it determined that the officers' interaction with appellant subsequently escalated into an investigative detention at a certain point. See id. at 929-32. According to the court, at the point during the interaction when "Starks moved very close to [a]ppellant, told [a]ppellant 'manos, manos' while holding his hands out to direct [a]ppellant to follow suit while Sallee had his hand on [a]ppellant's back," an investigative detention occurred. See id. at 932. This was because "[a]t th[at] time . . . one officer had his hand on [a]ppellant's back, the other officer was two or three feet in front of [a]ppellant, the patrol car was within four or five feet from one side of [a]ppellant and the apartment complex was approximately twenty-five feet from [a]ppellant's other side," and "[a] reasonable person in [a]ppellant's shoes would not feel free to leave under th[e] circumstances." Id.
A law enforcement officer may temporarily detain a person for investigative purposes if the officer reasonably suspects that the detained person is, has been, or soon will be engaged in criminal activity. See Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013); Pate v. State, 518 S.W.3d 911, 914 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd); see also Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (stating law enforcement officer is generally justified in briefly detaining individual on less than probable cause for purpose of investigating possible criminal behavior if officer has reasonable suspicion). Thus, there must be reasonable suspicion for an officer to conduct an investigative detention. See Enns v. State, 612 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2020, no pet.). Here, we must determine whether Officers Sallee and Starks had reasonable suspicion to detain appellant at the time their interaction with him escalated to an investigative detention. See Monjaras II, 664 S.W.3d at 932; see also Judgeware v. State, No. 01-93-00286-CR, 1994 WL 64869, at *3-5 (Tex. App.-Houston [1st Dist.] Mar. 3, 1994, pet. ref'd) (not designated for publication) (after determining defendant was detained, analyzing whether law enforcement officers had reasonable suspicion).
A law enforcement officer has reasonable suspicion to detain a person if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person is, has been, or soon will be engaging in criminal activity. Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015); Derichsweiler, 348 S.W.3d at 914. This is an objective inquiry that disregards the subjective intent of the officer and looks, instead, to whether an objectively justifiable basis for the detention existed. Derichsweiler, 348 S.W.3d at 914.
When determining whether an officer had reasonable suspicion, we consider the totality of the circumstances. Id.; see also Navarette v. California, 572 U.S. 393, 397 (2014) ("The standard takes into account the totality of the circumstances-the whole picture." (internal quotations omitted)). "[C]ircumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified." Derichsweiler, 348 S.W.3d at 914; see also Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) ("[T]he relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular types of noncriminal acts."). Whether reasonable suspicion exists depends on "both the content of the information known to the officer and its degree of reliability." Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). Reasonable suspicion requires more than an "inchoate and unparticularized suspicion or 'hunch.'" Terry v. Ohio, 392 U.S. 1, 27 (1968); see also Munoz v. State, 649 S.W.3d 813, 819 (Tex. App.-Houston [1st Dist.] 2022, no pet.) ("[T]he officer must have more than an inarticulable hunch or mere good-faith suspicion ...."). Notably, the State has the burden to show that a law enforcement officer had at least reasonable suspicion that the defendant had either committed an offense, or was about to do so, before he detained the defendant. Derichsweiler, 348 S.W.3d at 913.
The State first argues that Officers Sallee and Starks had reasonable suspicion to believe that "[a]ppellant was engaged in criminal activity" because "Sallee discovered [that] [a]ppellant possessed ammunition" in his backpack. But Sallee did not search appellant's backpack and find the five .22 caliber bullets until after the officers had already detained appellant. See State v. Duran, 396 S.W.3d 563, 56970 (Tex. Crim. App. 2013) ("Information that the officer either acquired or noticed after a detention . . . cannot be considered. A detention is either good or bad at the moment it starts." (internal footnote omitted)); Paschall v. State, No. 01-17-00217-CR, 2018 WL 2976120, at *2 n.2 (Tex. App.-Houston [1st Dist.] June 14, 2018, no pet.) (mem. op., not designated for publication) ("We review whether an officer had reasonable suspicion to conduct a detention based on the facts and circumstances known to the officer at the time of the detention."); cf. Amores v. State, 816 S.W.2d 407, 415 (Tex. Crim. App. 1991) ("[T]o determine the existence of probable cause, we look to the facts known to the officers at the time of the arrest; subsequently discovered facts or later-acquired knowledge . . . cannot retrospectively serve to bolster probable cause at the time of the arrest."). Thus, the State cannot rely on the bullets found in appellant's backpack to establish that Sallee and Starks had reasonable suspicion to believe that appellant had engaged, or was about to engage, in criminal activity at the time their interaction with appellant escalated to an investigative detention.
The State next argues that Officers Sallee and Starks had reasonable suspicion to detain appellant because "they were patrolling . . . a high crime area," when the officers first saw appellant, he "avoid[ed] eye contact," "[a]ppellant fled from the officers when they first passed him," and he "acted nervously when [they] finally" spoke to him. We review de novo whether the totality of the circumstances gave rise to reasonable suspicion that appellant had engaged, or was about to engage, in criminal activity at the time the officers' interaction with appellant escalated to an investigative detention. See Wade, 422 S.W.3d at 668; see also Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007).
As to the State's first argument that Officers Sallee and Starks had reasonable suspicion to detain appellant because appellant was in "a high crime area," we note that a person's presence in an area with a high-crime reputation alone is not sufficient to justify a detention. See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994); Sieffert v. State, 290 S.W.3d 478, 484-85 (Tex. App.-Amarillo 2009, no pet.); Gamble v. State, 8 S.W.3d 452, 453-54 (Tex. App.-Houston [1st Dist.] 1999, no pet.); see also Crain, 315 S.W.3d at 53 ("Neither time of day nor level of criminal activity in an area are suspicious in and of themselves .... Neither fact proves that the suspect is engaged in any sort of criminal offense."); Sterns v. State, No. 12-11-00283-CR, 2012 WL 3458096, at *3 (Tex. App.-Tyler Aug. 15, 2012, no pet.) (mem. op., not designated for publication) (defendant's presence in high-crime area does not justify investigative detention).
As to the State's second argument that Officers Sallee and Starks had reasonable suspicion to detain appellant because when the officers first saw appellant, he "avoid[ed] eye contact" as they drove by in their patrol car, Texas courts have held that a person's observation of a law enforcement officer's patrol car, standing alone, is not suspicious. See Rodriguez v. State, 578 S.W.2d 419, 41920 (Tex. Crim. App. 1979) (unreasonable to stop pedestrian "solely because he looks over his shoulder in the direction of a police car"); Gamble, 8 S.W.3d at 453-54 ("Standing alone, neither the area's high-crime reputation nor appellant's watching the passing police car would have sufficed to justify a detention."); Leday v. State, 3 S.W.3d 667, 672 (Tex. App.-Beaumont 1999, pet. ref'd) ("Merely looking at a police car has been held insufficient to constitute a basis for reasonable suspicion for a detention."). And neither is a person's action in looking away from a patrol car as it passes by. See Contraras v. State, 309 S.W.3d 168, 171-72 (Tex. App.-Amarillo 2010, pet. ref'd) (although defendant looked "quickly . . . to the right, away from the [officers]" as they passed, conduct of defendant did not give rise to reasonable suspicion that defendant was engaged, had engaged, or was about to engage in criminal conduct); Gonzalez-Gilando v. State, 306 S.W.3d 893, 895-96 (Tex. App.-Amarillo 2010, pet. ref'd) ("It is not a crime in this State to . . . look away from passing police officers .... A student looking down in the classroom upon the teacher asking a question does not ipso facto mean the student committed a misdeed. The same can be said of those who look away from law enforcement officials while driving on the roadway."); see also Luera v. State, 561 S.W.2d 497, 498-99 (Tex. Crim. App. [Panel Op.] 1978) (looking straight ahead and not looking at law enforcement officers is insufficient for finding of reasonable suspicion); Loesch v. State, 979 S.W.2d 47, 52-53 (Tex. App.-Corpus Christi-Edinburg 1998, no pet.) (no reasonable suspicion where defendant was driving in high-crime area, drove an older car, and did not look at law enforcement officers when he drove past them); Munera v. State, 965 S.W.2d 523, 531 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd) (furtive eye movements and nervousness are not reasonable grounds for suspicion). Further, Sallee testified that the circumstances that occurred before he stopped his patrol car and walked up to appellant did not indicate that appellant had committed a criminal offense.
As to the State's third argument that Officers Sallee and Starks had reasonable suspicion to detain appellant because "[a]ppellant fled from the officers when they first passed him," we note that neither officer actually testified that appellant "fled" from them. Sallee testified that after he initially drove his patrol car past appellant, he wanted "to see where [appellant] was going or what was going on," so he made a U-turn in the patrol car. After the patrol car turned around, Sallee expected to see appellant walking, but appellant was not in sight. Sallee believed that appellant had either "ducked off into an apartment" or run off, but he also acknowledged that a number of "different things" could have happened to appellant. See State v. Kerwick, 393 S.W.3d 270, 274 (Tex. Crim. App. 2013) (law enforcement officer's subjective beliefs are not relevant to determination of reasonable suspicion of criminal activity to justify investigative detention); Hall v. State, 74 S.W.3d 521, 526 n.6 (Tex. App.-Amarillo 2002, no pet.) (law enforcement officer's "observation was nothing more than an unfounded surmise, conjecture or speculation, and such is not stuff of reasonable suspicion"). Starks testified after Sallee turned the patrol car around to drive back toward appellant, appellant was gone, and Starks believed that appellant had "taken off running into the courtyard." See Kerwick, 393 S.W.3d at 274 (law enforcement officer's subjective beliefs are not relevant to determination of reasonable suspicion of criminal activity to justify investigative detention); see also Hall, 74 S.W.3d at 526 n.6 ("[Just because the law enforcement officer] considered the practice suspicious does not mean that it was for purposes of a Fourth Amendment analysis."). But neither officer testified that they saw appellant flee. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (law enforcement officer's "reliance on a mere 'hunch' is insufficient to justify a[n] [investigatory] stop"); Terry, 392 U.S. at 27 (recognizing hunch or speculation is not enough basis for reasonable suspicion); see also Turner v. State, No. 05-10-01225-CR, 2011 WL 4953438, at *4 (Tex. App.-Dallas Oct. 18, 2011, no pet.) (mem. op., not designated for publication) (noting law enforcement officer provided no evidence that defendant "was in fact fleeing from the scene").
Further, even if appellant had left the area after seeing Officers Sallee and Starks's patrol car, a person's decision to walk or run away from a patrol car that is merely passing by is insufficient to justify an investigative detention. See Gurrola, 877 S.W.2d at 303 ("Mere flight alone does not justify an investigative detention . . . ."); McKinney v. State, 444 S.W.3d 128, 133-34 (Tex. App.-San Antonio 2014, pet. ref'd) ("A person running at the sight of a patrol vehicle in [a] high crime area, in and of itself, does not give an officer reasonable suspicion to conduct an investigatory detention."); Gamble, 8 S.W.3d at 453-54 (defendant's action in watching patrol car and walking away from it when it turned around did not give rise to reasonable suspicion to detain defendant); cf. Reyes v. State, 899 S.W.2d 319, 324-25 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd) ("[F]light from a show of authority is a factor in support of a finding that there is a reasonable suspicion that a person is involved in criminal activity." (emphasis added)). And Sallee testified that the circumstances that occurred before he stopped his patrol car and walked up to appellant did not indicate that appellant had committed a criminal offense.
Finally, as to the State's fourth argument that Officers Sallee and Starks had reasonable suspicion to detain appellant because he "acted nervously when [they] finally" spoke to him, nervousness, alone, is not sufficient to establish reasonable suspicion. See Wade, 422 S.W.3d at 670-71 (Tex. Crim. App. 2013) (nervousness "is not particularly probative because most citizens with nothing to hide will nonetheless manifest an understandable nervousness in the presence of [an] officer" (internal quotations omitted)); Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012); see also State v. Tucker, No. 13-15-00491-CR, 2016 WL 2609310, at *7 (Tex. App.-Corpus Christi-Edinburg May 5, 2016, pet. ref'd) (mem. op., not designated for publication) (holding law enforcement officer lacked reasonable suspicion even though officer observed defendant's "shaking hands" and "slight nervousness" when he encountered defendant (internal quotations omitted)); State v. Sastaita, No. 13-14-00237-CR, 2015 WL 9257068, at *6-7 (Tex. App.-Corpus Christi-Edinburg Dec. 17, 2015, no pet.) (mem. op., not designated for publication) (holding defendant's nervousness and "odd behavior" were insufficient to constitute reasonable suspicion (internal quotations omitted)).
Standing alone, neither the area's high-crime reputation, appellant's decision to look away and walk away as Officers Sallee and Starks passed him in their patrol car, nor appellant's purported "nervousness" when the officers actually spoke to him, gives rise to reasonable suspicion to believe that appellant had engaged, or was about to engage, in criminal activity. See Gamble, 8 S.W.3d at 453-54. Nor do these facts give rise to reasonable suspicion when considered in light of the totality of the circumstances testified to by Sallee and Starks. See id.
We note that Officer Sallee testified that at the time he approached appellant, he did not suspect appellant "of anything," and Officer Starks testified that at the time the officers approached appellant, appellant had not committed a criminal offense. And both officers agreed that appellant was "free to go" at the beginning of their interaction with him. Neither officer testified that they had reasonable suspicion to believe that appellant had engaged, or was about to engage, in criminal activity, until after Sallee found bullets in appellant's backpack-which was after the officers' interaction with appellant had escalated to an investigative detention.
Here, we cannot conclude that Officers Sallee and Starks at the time their interaction with appellant escalated to an investigative detention had reasonable suspicion, based on the totality of the circumstances, to believe that appellant had engaged, or was about to engage, in criminal activity. Thus, we hold that the trial court erred in denying appellant's motion to suppress evidence.
We sustain appellant's sole issue.
Conclusion
We reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.
CONCURRING OPINION
Gordon Goodman, Justice.
On remand from the Court of Criminal Appeals, the majority holds that the peace officers who detained and searched Tairon Jose Monjaras did not have reasonable suspicion to do so. Accordingly, the majority further holds that the trial court erred in denying Monjaras's motion to suppress the evidence obtained during the search and reverses his conviction and remands for further proceedings.
I agree with the result the majority reaches but disagree with its analysis in two respects. First, the majority erroneously relies on evidence the trial court did not consider below. Second, though the majority nonetheless reaches the correct result, its analysis gives insufficient consideration to the totality of the circumstances in assessing whether the officers had reasonable suspicion when they detained Monjaras, which may give readers the misimpression that the court did not apply the correct standard of review in reaching its result. So, I respectfully concur in the judgment but write to address these two shortcomings in the majority's analysis.
THE RECORD
Background
The majority derives the background facts on which it relies from three sources: the suppression-hearing testimony of the two arresting peace officers, J. Sallee and C. Starks, a copy of the offense report that they prepared, and the audiovisual footage of the encounter recorded by their body cameras. The majority devotes several pages to block quotations from the offense report. In doing so, the majority errs because the record shows the trial court did not consider the report.
The suppression hearing was relatively brief. Its transcript is about 40 pages.
Not long into the hearing, the State offered the offense report as an exhibit, and the trial court admitted the offense report into evidence without objection. Afterward, no witness referenced the offense report or referred to the report in any manner during the hearing. Neither did counsel for the parties or the trial court.
During the suppression hearing, the audiovisual footage from the officers' body cameras was played for the trial court during their testimony. After the witnesses testified and counsel presented argument, the trial court told the parties it wanted to review Sallee's body-camera footage once more before ruling. After doing so, the trial court denied the suppression motion without recessing or adjourning. That is, the trial court made up its mind based on the testimony and body-camera footage. It did not reserve its decision so that it could review the offense report, which had not been discussed or referenced beyond its admission into evidence.
Applicable Law
When, as here, the trial court makes a pretrial suppression ruling and does not revisit that ruling based on the evidence presented at trial, appellate review of the ruling is "limited to that evidence presented at the pretrial hearing-the evidence that was before the court at the time of its decision." Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012). The evidence before the trial court should not be misunderstood to consist of any and all evidence the trial court admits at the suppression hearing. Though there may be no distinction between the evidence admitted and the evidence before the trial court in many instances, for purposes of appellate review the evidence before the trial court consists of "the evidence that was seen by, used by, or considered by the trial judge at the time he made a ruling." Amador v. State, 221 S.W.3d 666, 677 (Tex. Crim. App. 2007); see also Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (explaining that appellate court ordinarily determines whether trial court's suppression ruling is supported by record based only on evidence adduced at hearing because trial court's ruling was based on this evidence). As the Court of Criminal Appeals has observed, while an appellate court cannot ignore evidence the trial court considered when it made its ruling, "it would be equally improper to consider evidence that the trial judge did not consider" when it made its ruling. Amador, 221 S.W.3d at 676. Thus, when a trial court does not consider particular evidence before ruling on a motion to suppress, we cannot consider this evidence even if the evidence is in the record. See, e.g., Taylor v. State, 509 S.W.3d 468, 482 n.7 (Tex. App.-Austin 2015, pet. ref'd) (appellate court could not consider video that was not played for trial court before it ruled on defendant's motion to suppress evidence); State v. Hartley, No. 03-21-00230-CR, 2022 WL 2251659, at *2 n.2 (Tex. App.-Austin June 23, 2022, no pet.) (mem. op., not designated for publication) (appellate court could not consider parts of traffic-stop recording that trial court did not consider even though these parts were in record).
Analysis
Nothing in the record suggests that the trial court considered the offense report, which was admitted into evidence and then never referenced again by anyone. The suppression hearing was relatively brief. The trial court heard testimony from the two peace officers who detained, searched, and ultimately arrested Monjaras. During their testimony, the trial court reviewed the footage from the body cameras of these two officers and re-reviewed the footage from the body camera of one of the officers before ruling, which the trial court did without recessing or adjourning.
Under these circumstances, we should not consider the offense report on appeal because the record shows the trial court did not consider the report. See Black, 362 S.W.3d at 635; Amador, 221 S.W.3d at 676-77; Rachal, 917 S.W.2d at 809.
Notably, like the trial court, the Court of Criminal Appeals did not reference the offense report when it rendered its decision in this case. Instead, the Court relied on the testimony of the peace officers and the footage from their body cameras. See Monjaras v. State, 664 S.W.3d 921, 924 &n.1, 930-31 (Tex. Crim. App. 2022) (referring to officers' testimony and their body-camera footage and embedding images from body-camera footage into court's opinion in discussing salient facts).
Unlike the trial court and the Court of Criminal Appeals, the majority devotes much of its attention to the offense report. The majority spends about 16 pages on the case's background facts; of these, roughly a third are spent on the offense report.
Significant portions of this discussion are devoted to events that occurred after the officers had searched Monjaras and thus are not relevant to the issue before us: whether the officers had reasonable suspicion to detain him when they searched him. See State v. Duran, 396 S.W.3d 563, 569-70 (Tex. Crim. App. 2013) (reasonable suspicion cannot be based on facts officers acquired only after detaining person).
Hence, the majority's consideration of the offense report is not only improper, it also has the potential to lead our analysis astray. For this additional reason, we should not give the offense report consideration on appeal that the trial court did not.
In sum, in my evaluation as to whether Sallee and Starks had reasonable suspicion to detain and search Monjaras, I consider only the officers' suppressionhearing testimony and their body-camera footage. I do not consider the report.
REASONABLE SUSPICION
Background
A grand jury indicted Monjaras for unlawful possession of a firearm by a felon outside the premises where he lives. See TEX. PENAL CODE § 46.04(a)(2).
Monjaras moved to suppress the evidence against him. At the hearing on his suppression motion, the arresting officers, J. Sallee and C. Starks of the Houston Police Department, briefly testified. Their combined testimony spans just under 30 pages of the hearing transcript. No other witnesses testified at the hearing. Setting aside the aforementioned offense report, the sole other evidence consisted of the audiovisual footage of the encounter recorded by the two officers' body cameras.
Officers Sallee and Starks were patrolling an apartment complex in a high-crime area in Houston just before noon in mid-December. Sallee slowly drove past Monjaras, who was on foot. Because Monjaras immediately looked down and did not make eye contact with the officers, Sallee made a U-turn to reapproach Monjaras.
By the time Sallee and Starks reapproached the area where they had seen Monjaras, Monjaras was gone. Given the short distance and time involved, Sallee concluded that Monjaras had "ducked off into an apartment, might have ran, could have been a couple of different things." Starks testified that he "believe[d]" Monjaras "had taken off running" because he would have been there otherwise.
About a minute or so later, Sallee and Starks came across Monjaras again on the other side of the apartment complex. Without activating their marked patrol vehicle's lights or sirens, Sallee parked. He and Starks got out and approached Monjaras to speak with him. Sallee testified that they did not suspect Monjaras was guilty of criminal activity at this point. Sallee further testified that if Monjaras had fled at this point, he would have let Monjaras do so because "[h]e was free to go." Starks also testified that Monjaras was "free to go at any time" and stated that he likely would have just watched Monjaras run away if Monjaras had done so.
The ensuing encounter was recorded by Sallee's body camera, which the State played for the trial court during Sallee's testimony. The recording shows Sallee had parked near Monjaras, got out of the vehicle, and initiated a conversation with Monjaras by saying, "Good morning. How are you doing, sir?" Sallee then introduced himself and shook Monjaras's hand. Sallee asked if Monjaras lived at the apartment complex, and Monjaras responded that he did. Sallee then asked if Monjaras had any identification on his person, and Monjaras said he had left it at home. In the meantime, Starks approached Monjaras from the opposite side, but Starks stood about five feet or so away from both Sallee and Monjaras.
Sallee asked if he could get Monjaras's name, and he also asked how Monjaras's day was going. Monjaras responded "yes" and "good." While Sallee got out a pen and notepad to take down Monjaras's name, Starks asked if Monjaras was a painter, presumably due to Monjaras's visibly paint-spattered trousers. Monjaras, responded "yeah, I paint," and then gave his name to Sallee. When Sallee asked how Monjaras's name was spelled, Monjaras asked for Sallee's pen and notepad so that he could write down the correct spelling. Sallee responded by saying "okay," and he handed his pen and notepad to Monjaras, who then wrote down his name. While Monjaras did so, Starks stepped away from the scene outside of the view of Sallee's body camera. Sallee then asked Monjaras if he had ever been arrested. Monjaras answered that he previously had been arrested for "assault, domestic violence."
Sallee confirmed the correct spelling of Monjaras's name and asked for Monjaras's birthdate. While this conversation took place, a female resident of the apartment complex walked into the frame of the recording and began addressing Starks about an unrelated matter. Starks then emerged from behind the rear of the patrol vehicle and conversed with the female resident at a distance. As Monjaras wrote down his birthdate, Sallee asked if Monjaras was nervous, noting that Monjaras's hands were shaking. Monjaras responded that he was nervous.
At this point, Starks ended his conversation with the other resident of the complex and reapproached Sallee and Monjaras. Starks took up a position across from Sallee that placed Monjaras nearly between the two officers. Starks was located about two feet away from where Monjaras stood. Sallee was as near or nearer.
Sallee asked if Monjaras had anything illegal, like illegal drugs, or weapons in his possession. Monjaras shook his head "no" in response. Sallee then asked, "May I search you and go in your pockets and stuff?" After Sallee asked this question, Monjaras began to empty one of his pockets. Sallee then told Monjaras to "hold on" three times within about two seconds. As Sallee did so, he extended his right hand toward Monjaras with his palm facing downward. Sallee then asked again, "May I search you?" When Monjaras continued to empty his pocket, Sallee stated, "It's a question. Hold on. Talk to me." As Sallee said this, he reached out and briefly placed his hand on Monjaras's left arm, the one Monjaras had used to reach into the pocket. Monjaras began mumbling an explanation as to why he was emptying his pocket. Sallee then stated, "No, no, no. You are not understanding what I am saying." By this point, Starks had emptied his own hands and stepped within about a foot of where Monjaras stood. Starks then held his own hands out in front of him with his palms facing downward while simultaneously twice stating "manos," the Spanish word for hands. Monjaras responded by placing his hands, in which he held several items, in front of his stomach. Immediately before Starks gestured with his hands, Sallee placed his right hand on Monjaras's back, where it remained while Starks said "manos." Sallee and Starks were then flanking Monjaras, at which point Sallee asked, "May I search you? May I go in your pockets and search you?" Monjaras responded "yeah," at which point Sallee told Monjaras, "Okay, slide your hands on the car for me, please," referring to the officers' patrol vehicle.
Sallee searched Monjaras for about a minute. Near the outset of the search, Sallee tried to calm Monjaras's nerves, stating that "everything's okay," "you're good," and "gracias." Both officers also tried to reassure him by saying "no problemas." Sallee primarily searched Monjaras's clothing, including his pockets.
Part of the encounter was also recorded by Starks's body camera. Among other things, Starks's body-camera footage shows that at one point while Sallee was searching Monjaras, Monjaras tried to pat or empty a pocket. Starks restrained Monjaras from doing so by taking hold of Monjaras's right arm, raising Monjaras's arm up slightly higher than waist level, and holding Monjaras's arm in this elevated position for about 10 seconds or so while Sallee continued to search Monjaras.
Sallee did not find any contraband while searching Monjaras's person.
During the search, Sallee asked Starks if Starks had "his mobile." Once Sallee finished searching Monjaras, Starks asked if he could see Monjaras's hands. Monjaras agreed, and Starks fingerprinted Monjaras using a mobile device. In the meantime, Sallee searched a bag that Monjaras was carrying and Sallee announced that he found bullets. Starks asked Monjaras if he had a gun, and Monjaras denied that he did. Starks then asked Monjaras why he had bullets if he did not have a gun. Monjaras replied that the bag in which they were found was his painter's bag.
Sallee's discovery of the bullets and Monjaras's nonresponsive answer apparently prompted Sallee to search Monjaras again. During this second search, Sallee announced that he found a gun, which was located in Monjaras's front waistband. Monjaras then began fighting Sallee in an attempt to draw the pistol from his waistband. Starks ended the fight by using his taser, which subdued Monjaras.
Sallee removed the pistol from Monjaras's waistband either near the end of the fight or immediately afterward. The pistol was .22 caliber, and it was loaded.
Once the officers had testified, both sides rested and argued their positions to the trial court. Afterward, the trial court again reviewed Sallee's body-camera footage in open court, specifically the footage between when Sallee activated the audio before he approached Monjaras through when Sallee found the bullets. Without adjourning, the trial court denied Monjaras's motion to suppress the evidence. The trial court concluded the encounter was initially consensual. The trial court further concluded the officers had reasonable suspicion to detain Monjaras after they found the bullets in his bag because Monjaras admitted that he had been arrested for family violence, which may have made it unlawful for him to be armed.
Monjaras subsequently pled guilty to the offense of being a felon in possession of a firearm. The trial court assessed his punishment at five years of confinement.
When Monjaras appealed to this court, the majority initially upheld the trial court's suppression ruling and affirmed Monjaras's conviction over my dissent. The Court of Criminal Appeals reversed our court's judgment. Monjaras, 664 S.W.3d at 924. The Court held that while the officers' interaction with Monjaras began as a consensual encounter, the encounter escalated into a detention requiring reasonable suspicion of wrongdoing when Starks said "manos, manos" while Sallee had his hand on Monjaras's body. Id. at 928-32. The Court remanded the case to us to decide whether reasonable suspicion existed at the moment of detention. Id. at 932.
Standard of Review
In reviewing the denial of a motion to suppress, we almost totally defer to the trial court's express or implied determination of facts as long as they are supported by the record. Martinez v. State, 620 S.W.3d 734, 740 (Tex. Crim. App. 2021).
Determinations of fact include the who, what, when, where, how, and why in a given situation. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). As factfinder, the trial court is the judge of the credibility and demeanor of the witnesses. Martinez, 620 S.W.3d at 740. But whether a given set of facts known to the officer at the time of a detention amounts to reasonable suspicion is a question of law that we review de novo on appeal. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); see also State v. Cortez, 543 S.W.3d 198, 203-04 (Tex. Crim. App. 2018) (appellate court reviews de novo application of law to facts that do not turn on credibility and demeanor and whether circumstances support existence of reasonable suspicion).
When, as here, the trial court views an audiovisual recording of the interaction between a citizen and a peace officer, we apply the same deferential standard of review to the trial court's determination of facts. Duran, 396 S.W.3d at 570. But we may review de novo indisputable audiovisual evidence contained in the recording. Id. So, for example, we disregard a trial court's fact findings or a witness's testimony when the recording conclusively contradicts them. Id. at 573; see, e.g., Miller v. State, 393 S.W.3d 255, 263-65 (Tex. Crim. App. 2012) (several of trial court's findings had no support in recordings or testimony); Carmouche v. State, 10 S.W.3d 323, 331-32 (Tex. Crim. App. 2000) (recording showed that peace officer's testimony was inaccurate). When an audiovisual recording is indisputable, it is conclusive evidence. Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021).
Applicable Law
The United States Constitution's Fourth Amendment guarantees a citizen's right to be free from unreasonable searches and seizures. Article I, Section 9 of the Texas Constitution also guarantees this right. These constitutional guarantees cabin the exercise of authority by peace officers over their fellow citizens. See Johnson v. State, 912 S.W.2d 227, 233-34 (Tex. Crim. App. 1995) (plurality op.) (guarantee in Article I, Section 9 generally corresponds to Fourth Amendment). Both guarantees require that an investigative detention be supported by reasonable suspicion to be lawful. See Johnson v. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021) (saying so as to Fourth Amendment). Only when a peace officer has reasonable suspicion may the officer temporarily detain a citizen for investigation limited to the reason for the detention. Wade v. State, 422 S.W.3d 661, 667-68 (Tex. Crim. App. 2013).
Reasonable suspicion exists when a peace officer has a particularized and objective basis for suspecting criminal activity. Johnson, 622 S.W.3d at 384. An officer has reasonable suspicion when he knows of specific, articulable facts that, when combined with reasonable inferences from those facts, would lead a reasonable officer to conclude the citizen has been, is, or soon will be engaged in criminal activity. Id. A mere hunch-a feeling or guess based on intuition rather than known articulable facts-is not enough. Id. Likewise, an officer's opinions, beliefs, and unsupported conclusions are not substitutes for articulable facts. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). But the reasonable-suspicion standard is a relatively undemanding one, which is met when an officer is able to articulate facts that show some unusual activity has occurred, suggest some connection between the detainee and the unusual activity, and indicate that the unusual activity is related to crime. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). A peace officer need not be able to specify a particular penal infraction to possess reasonable suspicion of criminal activity, and reasonable suspicion does not require him to negate the possibility of innocent conduct. Johnson, 622 S.W.3d at 384-85.
In general, application of the reasonable-suspicion standard turns on the factual and practical considerations of everyday life on which reasonable people, not legal technicians, act. Id. at 385. In formulating reasonable suspicion, a peace officer can draw on his own individual experience and training. Id.; see also Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. App. 2017) (officer may rely on his experience and specialized training to draw inferences from and make deductions about cumulative information available to him that untrained person might not). However, reliance on experience and specialized training is not enough to establish reasonable suspicion absent objective factual support. Ford, 158 S.W.3d at 494. As reasonableness is the focus of the reasonable-suspicion standard, it is objective in nature and disregards the officer's subjective intent. Wade, 422 S.W.3d at 668.
Ultimately, whether reasonable suspicion exists turns on the totality of the circumstances. Id.; see also Guzman v. State, 955 S.W.2d 85, 90 (Tex. Crim. App. 1997) (observing that lawfulness of each search and seizure depends on facts of particular case). In this context, the totality of the circumstances is limited to information actually known to the peace officer, or the cumulative information known to cooperating officers, at the time of detention. Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016); Duran, 396 S.W.3d at 569-70. Reasonable suspicion cannot be based on facts an officer only learned about after the detention was underway or after-the-fact rationalizations. Duran, 396 S.W.3d at 569-70.
Analysis
The Court of Criminal Appeals held that Officers Sallee and Starks detained Monjaras when Starks said "manos, manos" while Sallee had his hand on Monjaras's body. Monjaras, 664 S.W.3d at 930-32. The question now is whether the officers reasonably suspected Monjaras of criminal activity at that moment. Id. at 932.
On appeal, the State says four circumstances show that the officers reasonably suspected Monjaras of wrongdoing. These four circumstances are the following:
(1) the officers were patrolling an area that has a high crime rate; (2) Monjaras avoided eye contact when the officers first drove by him; (3) Monjaras fled from the officers after they first drove by him; and (4) Monjaras acted nervous when the officers questioned him. As the majority correctly concludes, however, none of the circumstances on which
the State relies is sufficient to support a finding of reasonable suspicion in this case.
High-Crime Area
Both officers testified the area they were patrolling had a high crime rate. Sallee stated that he and his partner were engaged in "crime suppression" due to a "rise in crime in the area." He further stated that he is "usually looking for obscene crime, that kind of stuff," while on this kind of patrol. Starks said they had been dispatched to engage in "crime suppression" there "due to a spike of violent crime." That said, both Sallee and Starks testified that they did not even suspect Monjaras of criminal activity at any point before they approached Monjaras to speak with him.
A neighborhood's reputation for high crime, in and of itself, cannot justify an investigatory detention. Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994); Gamble v. State, 8 S.W.3d 452, 454 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Being in an area known for crime, even a specific locale known for a particular type of crime, is not enough to justify a detention. E.g., Johnson v. State, 469 S.W.3d 708, 714-15 (Tex. App.-San Antonio 2015, no pet.) (officer's testimony that defendant loitered without obvious purpose in dimly lit parking lot known for prostitution during evening hours did not establish reasonable suspicion). Rather, for a fact like an area's crime rate to give rise to an inference of criminality, "the surroundings must raise a suspicion that the particular person is engaged in illegal behavior." Crain v. State, 315 S.W.3d 43, 53 (Tex. Crim. App. 2010).
Here, Sallee and Starks were not responding to a reported crime, let alone a crime in which Monjaras was implicated. See Gurrola, 877 S.W.2d at 304 (distinguishing situations in which officer had been given exact description of defendant or in which officer was dispatched to respond to crime in progress). Sallee testified that he had never laid eyes on Monjaras before. Similarly, Starks testified that he did not "ever remember seeing him before." Thus, the officers had no reason to think Monjaras somehow contributed to the neighborhood's high crime rate.
Avoiding Eye Contact
Sallee testified that when he first drove past Monjaras, Monjaras "immediately looked down" and "did not make eye contact at all." Sallee characterized Monjaras's refusal to make eye contact as being akin to how "a child would" behave if "doing something wrong." Sallee also stated that his partner told him that Monjaras "immediately looked up" after the officers had driven by him. Starks likewise testified that Monjaras "didn't look at us and that's not normal."
But Texas courts have rejected the claim that a defendant's observation of a police vehicle, standing alone, is suspicious. E.g., Rodriguez v. State, 578 S.W.2d 419, 420 (Tex. Crim. App. [Panel Op.] 1979) (defendant glanced back over shoulder after patrol car drove past him); Gamble, 8 S.W.3d at 453-54 (defendant kept turning around to watch patrol car). If watching a marked police vehicle does not establish reasonable suspicion of criminal activity, then a defendant's failure to watch a marked patrol vehicle or make eye contact with its occupants, standing alone, likewise cannot establish reasonable suspicion that criminal activity is afoot. E.g., Luera v. State, 561 S.W.2d 497, 499 (Tex. Crim. App. [Panel Op.] 1978) (officers lacked reasonable suspicion as to defendant who looked straight ahead and did not look at officers when he passed them on road in absence of other furtive gestures). Indeed, ostensibly furtive eye movements in general are not on their own enough to support a reasonable-suspicion finding. E.g., Munera v. State, 965 S.W.2d 523, 53032 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd) (defendant's nervous behavior, including furtive eye movements, did not establish reasonable suspicion).
Flight from Officers
Sallee testified that he made a U-turn after driving past because he wanted to see where Monjaras "was going or what was going on." When Sallee did so, however, Monjaras was no longer in view. Sallee explained that Monjaras's absence piqued his curiosity because it was "a pretty large breezeway and it would have been common to see him there, if walking," due to the "pretty short distance" involved. When Sallee was asked what he thought had happened, he stated: "Either he ducked off into an apartment, might have ran, could have been a couple different things." Starks, in turn, stated that he "believe[d]" Monjaras "had taken off running into the courtyard" because if he had continued walking, he would still have been visible.
As an initial matter, Sallee's and Starks's testimony about Monjaras's flight is not based on specific, articulable facts of the kind required to support a finding of reasonable suspicion. Neither officer testified they saw Monjaras flee the area. And while the trial court is entitled to draw reasonable inferences from the facts in deciding whether reasonable suspicion existed for an investigatory detention, Sallee admitted there was more than one possible explanation for Monjaras's absence. Starks contemplated just one possibility-flight-but expressed his view as a belief, which he based solely on the unexplained assertion that Monjaras would have remained in view but for flight. Without additional explanation, this assertion is circular: Monjaras must have fled because otherwise he would have been there. Testimony of this sort is too speculative to support a finding that Monjaras fled, thereby giving rise to reasonable suspicion. See, e.g., Wade, 422 S.W.3d at 672 (warden's testimony that he believed motorist was lying did not give rise to reasonable suspicion because his belief was supported by hunch, not specific, articulable facts); Abney v. State, 394 S.W.3d 542, 549-50 (Tex. Crim. App. 2013) (deputy's testimony that driver may have passed traffic sign 15 or more miles prior to location of stop was too speculative to support reasonable suspicion); Garcia v. State, 43 S.W.3d 527, 530-32 (Tex. Crim. App. 2001) (officer's testimony that child passenger looked back did not give rise to reasonable suspicion of seatbelt violation).
Assuming for argument's sake the trial court could have found that Monjaras departed the area to avoid any further contact with the officers, his departure cannot support a finding of reasonable suspicion, regardless of his motive for departing. Absent a detention or arrest, a citizen may ignore, avoid, or disregard an officer just as he might any other passerby on the street. See State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008) (in consensual encounters officers are no more entitled to demand citizen's attention than door-to-door salesmen, panhandlers, or street-corner squeegee men). Hence, a citizen's departure from the presence of peace officers, without more, is not suspicious, even if the citizen departs at a run, so long as the officers have not made a show of authority requiring the citizen's presence. See Gurrola, 877 S.W.2d at 303 (stating mere flight alone does not justify investigatory detention and rejecting characterization that defendant who walked away from deputy had fled); see also McKinney v. State, 444 S.W.3d 128, 134 (Tex. App.-San Antonio 2014, pet. ref'd) (running away from patrol car does not support reasonable suspicion of criminal activity absent show of authority by officers); Gamble, 8 S.W.3d at 454 (watching marked police car and walking away from it when it turns around does not give rise to reasonable suspicion to detain citizen); cf. Kerwick, 393 S.W.3d at 275-76 (defendant's flight-driving away after officer ordered him to stop-was one circumstance suggestive of wrongdoing and could be considered among totality of circumstances in reasonable-suspicion analysis).
It is undisputed that Sallee and Starks had not demanded that Monjaras remain present through a show of their authority. Both officers stated that they did not activate their patrol vehicle's lights or sirens when they encountered Monjaras. They simply drove past him, turned around to reapproach him, and found he had gone.
Nervous Behavior
After Sallee and Starks relocated Monjaras, Sallee initiated contact and began asking Monjaras a variety of questions. During the ensuing conversation, while Monjaras was writing down his date of birth, Sallee asked Monjaras if he was nervous, noting that his hands were shaking. Monjaras replied in the affirmative.
But nervousness, by itself, does not support a finding of reasonable suspicion. E.g., Wade, 422 S.W.3d at 671; St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007). As the Court of Criminal Appeals has said, most citizens are understandably nervous in the presence of the police and their nervousness legitimately increases when asked questions that are accusatory in nature. Wade, 422 S.W.3d at 671. Here, Sallee had already asked Monjaras if he had ever been arrested when Sallee noted Monjaras's hands were shaking and asked if he was nervous.
Totality of the Circumstances
None of the four circumstances on which the State relies to prove reasonable suspicion suffice to do so when they are considered one by one. Sometimes, however, the whole is greater than the sum of its parts. Several circumstances that are inadequate to support a finding of reasonable suspicion individually may nonetheless do so when they are considered together. Loesch v. State, 958 S.W.2d 830, 832 (Tex. Crim. App. 1997) (holding appellate court must "look at all of the facts together" in deciding whether evidence supports finding of reasonable suspicion because inquiry turns on totality of circumstances and concluding court of appeals erred in examining each circumstance in isolation from other circumstances); see, e.g., Ramirez-Tamayo, 537 S.W.3d at 38-39 (holding defendant's abnormally nervous behavior, in combination with several other circumstances, gave rise to reasonable suspicion to prolong investigative detention).
In this instance, however, the logical force of the four circumstances on which the State relies is inadequate to support a finding of reasonable suspicion even when they are considered together in the context of all the evidence. These four circumstances remain inadequate when considered together because, even in combination, they show Monjaras behaving as any citizen might without appearing unusual in his surroundings or rendering himself suspect. Specifically, Monjaras:
• was outside during daylight hours-near midday-on the grounds of the high-crime apartment complex where he resides;
• refused to acknowledge the presence of police who momentarily drove by him in a marked vehicle without its lights or siren activated;
• departed from an area being patrolled by police who had not accosted him, ordered him to halt, or otherwise detained him; and
• acted nervous when the police later approached him elsewhere and began asking him about his identity and whether he had ever been arrested.
Accepting these circumstances as true, they do not add up to reasonable suspicion because in the aggregate they do not demonstrate that Monjaras's behavior was suspiciously unusual or otherwise indicative of criminality. See Arguellez v. State, 409 S.W.3d 657, 661-64 (Tex. Crim. App. 2013) (holding defendant's photography at public pool was not unusual, suspicious, or criminal and thus did not establish reasonable suspicion and that his departure from pool after police arrived was also not suspicious as there was no indication crime was afoot); cf. Derichsweiler v. State, 348 S.W.3d 906, 913-17 (Tex. Crim. App. 2011) (accepting trial court's findings of fact as true, Court of Criminal Appeals considered de novo whether they added up to reasonable suspicion and held findings as to defendant's bizarre behavior did so).
Though a peace officer's subjective impressions are not controlling as to the existence of reasonable suspicion, Sallee testified that he did not suspect Monjaras of anything in particular when he approached Monjaras. Sallee further testified that if Monjaras had run away when Sallee first asked him his name, Sallee would not have done anything because Monjaras "was free to go" at that time. Starks gave similar testimony, stating that Monjaras had not committed a crime when the officers first drove by him, and he then departed. Starks likewise agreed that Monjaras was free to leave when the officers reapproached him and engaged him in conversation. Starks testified that Monjaras "was free to go at any time." Had Monjaras simply run away from the officers, Starks said he probably would have watched him run away. In sum, with respect to three of the four circumstances on which the State relies on appeal-the neighborhood's high crime rate, Monjaras's refusal to make eye contact with officers when they drove by, and his departure from the immediate vicinity afterward-neither officer thought they created reasonable suspicion to detain Monjaras. At the suppression hearing, Sallee and Starks both said they later reapproached Monjaras to engage him in a consensual encounter, not to detain him.
Nor did the officers learn of additional circumstances between the time they reapproached Monjaras and engaged him in conversation and the point in time when they detained him-the moment when Starks said "manos, manos" while Sallee had his hand on Monjaras's body-that could support a finding of reasonable suspicion. When Sallee greeted Monjaras, Monjaras returned his handshake and respectfully responded to his queries. Monjaras provided his name, birthdate, occupation, and place of residence. When asked about prior arrests, Monjaras divulged that he had a prior arrest for assault in the context of domestic violence. Of these additional facts, the sole one that conceivably could be damning is the prior arrest, which is not a basis for reasonable suspicion. See Brodnex v. State, 485 S.W.3d 432, 437-38 (Tex. Crim. App. 2016) (defendant's reputed status as "known criminal" not enough).
Sallee also observed that Monjaras had become visibly nervous, a circumstance that Monjaras readily acknowledged. As noted, however, nervousness alone will not support a reasonable-suspicion finding. Typically, when nervousness forms part of the factual basis for a finding of reasonable suspicion, it is one of multiple circumstances implicating the citizen in some criminal endeavor. See, e.g., Hamal v. State, 390 S.W.3d 302, 308 (Tex. Crim. App. 2012) (trooper had reasonable suspicion to detain driver for drug-related investigation, given that she was traveling late at night, exceeded speed limit, was visibly nervous, had prior criminal record, including arrests for drug offenses, one of which was recent, denied ever being in trouble before, and falsely claimed her arrests were long ago). But Sallee and Starks were not contemporaneously aware of any additional facts that, when combined with Monjaras's nervousness, suggested anything out of the ordinary. And reasonable suspicion cannot exist without an objective reason to believe that Monjaras was involved in something out of the ordinary indicative of criminal activity. Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).
Monjaras's cooperation came to an end once Sallee asked to search him, either because he did not understand the request or did not wish to comply with it. Sallee testified that he did not get the impression that Monjaras did not understand. Starks, in contrast, stated he did not know whether Monjaras understood the request. But even assuming Monjaras understood the request and simply did not wish to comply with it, his "refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention." Wade, 422 S.W.3d at 668.
In sum, considering the evidence in the light most favorable to the trial court's ruling, the totality of the circumstances do not support a finding that a peace officer could have reasonably suspected Monjaras of criminality when he was detained.
Crain, another case involving a conviction for unlawful possession of a firearm by a felon, reinforces this conclusion. 315 S.W.3d at 46. There, under circumstances similar to the ones before us, the Court held that those circumstances did not add up to the reasonable suspicion required for a detention. Id. at 53.
In Crain, an officer testified that he became suspicious of the defendant for two reasons. First, the defendant was walking after midnight in a residential area where burglaries occurred most often after midnight. Id. at 46, 53. Second, when the officer initially drove by the defendant in his marked patrol car, the defendant saw the patrol car and then grabbed at his waist. Id. But the officer did not have any reason to believe the defendant was engaged in criminal activity when he subsequently ordered the defendant to approach so that they could talk. Id. at 53.
In holding that these circumstances did not justify a detention, the Court noted that neither the time of day nor the level of the criminal activity in the area were enough to reasonably suspect the defendant of criminality. Id. If anything, the circumstances at bar are even less susceptible to a surmise of criminality. In Crain, the officer at least had in mind a particular crime committed during a particular time of night. See id. at 46, 53 (burglary after midnight). Here, in contrast, Sallee and Starks simply encountered Monjaras in a high-crime area in the middle of the day. Sallee and Starks were not responding to a reported crime in the area, which mirrors the facts of Crain, inasmuch as there were no reported burglaries in the area on the night when the officer detained and arrested the defendant in that case. Id. at 53.
In Crain, the Court also noted that the officer testified the defendant could have been doing many different things when he grabbed at his waist and that his doing so did not necessarily mean that criminal activity was afoot. Id. This is comparable to Sallee's and Starks's testimony. Though Monjaras looked down when the patrol car passed and he departed from the area after it went by, Sallee testified that it was possible that Monjaras had left the area for more than one reason. Sallee further testified that he did not suspect Monjaras of a crime when the officers spotted Monjaras again on the other side of the apartment complex. Moreover, both Sallee and Starks testified that they likely would have allowed Monjaras to run away when they encountered him again because Monjaras was free to go as he pleased.
Finally, in Crain, the Court noted that when the officer first accosted the defendant, the officer did not even know whether the defendant was a resident of the house to which the yard in which he was standing belonged. Id. Sallee and Starks likewise did not know whether Monjaras resided in the complex when they decided to approach him. Suffice to say, being where one lives is not suspicious, and officers cannot reasonably suspect a person of criminality based on his presence alone without an indication that the person does not belong where he is present. Cf. Johnson, 622 S.W.3d at 385-88 (defendant's presence at park-and-ride late at night was unusual enough to give rise to reasonable suspicion in part because lot was mainly used in daytime and there was little reason to be there in parked car so late); Bobo v. State, 843 S.W.2d 572, 573-75 (Tex. Crim. App. 1992) (defendant's presence in townhouse complex gave rise to reasonable suspicion in part because resident reported defendant had been "milling around some townhouses" and defendant was unable to reasonably explain why he was in complex when asked).
If the totality of the circumstances in Crain will not support the existence of reasonable suspicion, then the record here will not do so either. And it doesn't.
Of course, a citizen need not exhibit overt criminality as a predicate for reasonable suspicion. Wade, 422 S.W.3d at 670. But for reasonable suspicion to exist, the totality of the circumstances must be distinguishable enough from the everyday behavior of ordinary citizens to set the suspect apart from them. Id. The circumstances must show some unusual activity has transpired, suggest a connection between the suspect and the unusual activity, and indicate the unusual activity is related to crime. Kerwick, 393 S.W.3d at 273. On the subject of suspiciously unusual circumstances, the Court's decision in Derichsweiler is particularly instructive.
In Derichsweiler, an atypical DWI case, the police received a report of a motorist behaving bizarrely. 348 S.W.3d at 910. While a married couple was in the drive-thru lane at a McDonald's in the early evening hours of New Year's Eve, a motorist pulled up beside them in another car. Id. at 909. The motorist looked directly at them and grinned for a period of about half a minute to a minute. Id. After the married couple had placed their order, they parked while their food was readied. Id. While parked, the same motorist then parked in the opposite space facing them, where he again stared and grinned at them, this time for less than half a minute. Id. Afterward, the motorist circled the restaurant and pulled up behind and to the left of the couple's car, staring and grinning at them for similar length of time or longer. Id. At this point, fearing they were being stalked or sized up for a robbery, the couple contacted the police by telephone, requesting emergency assistance. Id. at 909-10. As they did so, the other motorist drove into an adjacent Wal-Mart parking lot, where they saw him pull up beside at least two other parked cars. Id. Based on the couple's report, officers were dispatched to the scene. Id. at 910 &n.7. Once the officers located the motorist in question, they surrounded his car with three patrol vehicles and one of the officers then approached. Id. When the motorist rolled down his window in response, the officer smelled a strong odor of alcoholic beverage coming from the vehicle. Id. at 910-11. The officer then began a DWI investigation, which culminated in the motorist's arrest and prosecution for that offense. Id. at 911.
On appeal, the issue was whether officers reasonably suspected the motorist of a crime when they detained him by surrounding his car. Id. at 909-10 &n.7. While the Court regarded the case as presenting "a close call," it held that the officers had reasonable suspicion because the totality of the circumstances involved unusual activity and indicated that this unusual activity was related to crime. Id. at 916-17. The Court reasoned that the motorist's behavior, "while not overtly criminal in any way, was bizarre to say the least." Id. at 917. Because the motorist engaged in a pattern of repeated behavior, seemingly scrutinizing multiple vehicles, it reasonably gave rise to an inference that he was "looking to criminally exploit some vulnerability-a weak or isolated individual to rob or an unattended auto to burgle." Id. So, the Court held "that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted on." Id. That was enough to allow officers to detain the motorist briefly to investigate whether criminal activity was afoot. Id.
Unlike Derichsweiler, this is not a close case. Monjaras was walking on the grounds of an apartment complex at midday, an activity for which he owed no one an explanation. See Gurrola, 877 S.W.2d at 302 (four people engaged in argument in parking lot in late afternoon was not so out of ordinary as to give rise to reasonable suspicion); Gamble, 8 S.W.3d at 453-54 (no reasonable suspicion in case in which officers asked defendant-who had repeatedly turned to watch them after they passed by and who was walking on street's shoulder in high-crime area late at night-what he was doing, defendant replied that he was walking, and officers then detained defendant). What unusual circumstances existed at the moment of detention that, though not overtly criminal, give rise to a reasonable suspicion that Monjaras was engaged in criminal conduct, notwithstanding the ordinariness of his behavior?
Setting aside the four circumstances already addressed, the lone additional circumstance the State references is that Monjaras wore a jacket and a knit hat. Sallee and Starks encountered Monjaras in December shortly before noon. Sallee testified that he thought Monjaras was overdressed because the temperature was in the midsixties or seventies. Starks also thought Monjaras "was not dressed appropriately."
Sallee's body-camera footage shows how everyone was clothed that day. While Monjaras wore a jacket, it was not a particularly heavy one. In its opinion in this case, the Court of Criminal Appeals described it as a "light jacket." Monjaras, 664 S.W.3d at 924. Starks himself wore a long-sleeved uniform, despite the ostensible warmth of the day. In contrast, Sallee and the female resident with whom Starks briefly spoke were in short-sleeves. None of them exhibited any obvious discomfort arising from the weather or their attire. Given the variation in dress, it is doubtful that this information gives rise to a reasonable inference that anyone's attire was inappropriate in light of the time of year or the day's temperatures (which the defense argued, without objection, at the suppression hearing fluctuated between 57° and 68° Fahrenheit between 6:00 a.m. and 12:00 p.m.). And considering the explanation the trial court gave for denying Monjaras's motion to suppress, the trial court does not seem to have relied on the way in which Monjaras was dressed.
Nor could the trial court have reasonably relied on the manner in which Monjaras was dressed in this instance. A defendant's attire, in and of itself, generally is not a valid basis for reasonable suspicion. Thompson v. State, 408 S.W.3d 614, 626 (Tex. App.-Austin 2013, no pet.). Here, Monjaras's mode of dress was not unusual under the circumstances, and his attire therefore cannot support a finding of reasonable suspicion. See Davis v. State, 947 S.W.2d 240, 242, 245 (Tex. Crim. App. 1997) (officer could not reasonably prolong traffic stop after initial basis for stop- suspicion of DWI-had been dispelled and further investigate for drugs on basis that driver was not dressed like someone who claimed to be on business trip); Baker v. State, 478 S.W.2d 445, 446, 449 (Tex. Crim. App. 1972) (fact that defendant "was barefooted, had long hair, and was shabbily dressed" did not provide officer with probable cause to arrest defendant or give officer grounds to stop and frisk him).
Even if Monjaras's donning of a jacket and knit hat could reasonably be characterized as unusual in the sense that he was overdressed for the weather, this would not suffice to create reasonable suspicion. It is not enough that a defendant's behavior is unusual, its unusualness must also hint at some sort of criminality. See Kerwick, 393 S.W.3d at 273 (circumstances must indicate unusual activity is crime-related); see also Cotton v. State, 480 S.W.3d 754, 758 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (discussing decision in which federal court held reasonable suspicion existed for investigatory detention when officer encountered two men before dawn dressed in dark clothing marred by building insulation leaving business where multiple break-ins and thefts had previously occurred). Neither Sallee nor Starks testified that they suspected Monjaras had committed, was committing, or was about to commit a crime based on his mode of dress. On the contrary, they testified that they did not suspect him of any particular crime and would have let him run away had he chosen to do so when they initially sought to speak with him. The officers did not assert that Monjaras's mode of dress was indicative of criminality in general, like gang colors, or was unusual in a manner suggestive of some crime.
In conclusion, the record shows that Sallee and Starks detained Monjaras based on a mere hunch, rather than specific, articulable facts supporting the existence of reasonable suspicion. There is no indication the officers acted in bad faith or targeted Monjaras for invidious reasons. On the contrary, their gut instincts were vindicated in this case, as Monjaras was a felon unlawfully carrying a firearm. But neither their good faith nor the vindication of their gut instincts is a valid substitute for reasonable suspicion. See Duran, 396 S.W.3d at 569-70 (reasonable suspicion for detention cannot be based on facts learned afterward); Gurrola, 877 S.W.2d at 302 (detention based on mere hunch is unlawful even in absence of bad faith).
CONCLUSION
Because the State obtained the evidence against Monjaras in an unconstitutional search and seizure, the trial court erred in denying Monjaras's motion to suppress the evidence.
Thus, I concur in the majority's judgment reversing Monjaras's judgment of conviction and remanding for further proceedings.
Justice Goodman, concurring in the judgment.