Opinion
No. 04-14-00756-CR
04-06-2016
The STATE of Texas, Appellant v. Courven Terrel THOMAS, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-14-0533
Honorable Frank Follis, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice AFFIRMED
The State appeals from the trial court's order granting Courvan Terrell Thomas's motion to suppress evidence. We affirm the trial court's order.
BACKGROUND
During a stop for a traffic violation, police officers discovered that Thomas, a passenger, was in possession of Xanax pills for which he had no prescription. Thomas was charged by information with the offense of possession of a controlled substance penalty group three, less than twenty-eight grams. Thomas filed a motion to suppress evidence, arguing his detention and frisk were without probable cause or reasonable suspicion under the federal and state constitutions.
At the suppression hearing, the prosecutor stipulated that the police officers had no warrant. The prosecutor then presented testimony from two officers, Justin Mitchell Westin and Rudy A. Jimenez, who were employed by the Schertz Police Department. Westin and Jimenez testified that on March 25, 2014, they were watching a house in Schertz, Texas. Westin and Jimenez were interested in Thomas, who lived in the house "off and on." Westin had obtained information from fellow officers that Thomas was in possession of drugs. Westin had also heard that a confidential informant had said that Thomas was in possession of drugs; however, neither Westin nor Jimenez provided any information about the credibility and reliability of the informant. Additionally, Westin and Jimenez knew about other incidents involving Thomas. The first incident was reported as a robbery. The second incident was a domestic disturbance involving Thomas. Thomas was the victim in both incidents.
On March 25, 2014, Westin and Jimenez had planned to conduct a pretext stop of Thomas. Westin and Jimenez were in separate patrol cars, watching the house where Thomas lived. Jimenez, who was stationed closer to the house than Westin, saw Thomas get into a car which drove away from the house. Jimenez communicated his observations to Westin by radio. Westin spotted the car and followed it. When the car turned without signaling, Westin initiated a traffic stop. The driver of the car, a woman, pulled over immediately. Westin approached the driver's window and asked the driver for her identification and proof of insurance. Thomas, who was sitting in the passenger seat, reached into the glove compartment and pulled out the insurance papers. Westin saw that Thomas's hands were shaking, and he believed that Thomas was nervous. Jimenez soon arrived on the scene. At first, Jimenez stood at the rear of the car, watching Thomas's hands to make sure he was not going to reach for anything. Jimenez then went up to the front passenger window of the car, and directed Thomas to step out of the car. Thomas complied.
Jimenez asked Thomas if he had any weapons on him, and Thomas said he did not. Jimenez then conducted a pat-down search or frisk of Thomas's outer clothing to determine if Thomas had any weapons on him. Jimenez found nothing. Jimenez then asked Thomas if he had any illegal contraband on him, and Thomas said that he had Xanax pills. Jimenez asked Thomas to remove the pills, and Thomas removed a clear plastic baggy from his pocket which contained the pills. Thomas told Jimenez he had a prescription for the pills, but Thomas did not provide any proof of the prescription. Jimenez arrested Thomas for possession of a controlled substance.
The evidence showed that Xanax is also known as Alprazolam.
After presenting the State's two witnesses, the prosecutor argued:
Your Honor, this was indeed a pretext stop and pretext stops are Constitutional both under the Texas Constitution and the United States Constitution. But what is required on a pretext stop is that an actual traffic violation occurred. In order to have enough information to make a pretext stop in addition to the traffic violation, there has to be—and to be able to get a passenger out of the car, there has to be specific, articulable facts, based on reasonable information that leads an officer to believe that there could be weapons involved.
Officers are perfectly entitled to remove a passenger from the vehicle in order to conduct, check for weapons and especially given Mr. Thomas' background involved in narcotic activity and that's reliable information from a confidential informant as well as a narcotics investigator. That along with his prior domestic violence issues at the house and being involved in drug sales, drug transactions, that in addition to the officers both testifying that along with drug activity comes possession of weapons. The—the seizure, if you want to call it, of Mr. Thomas out of the passenger seat was no more than five minutes. And Mr. Thomas voluntarily took that baggy of pills out of his pocket.
The action of the officers was reasonable and it was based on credible information and for that reason, the Motion to Suppress should be denied.
The trial court granted the motion to suppress evidence and made findings of fact and conclusions of law. The trial court's fact findings are as follows:
1. On 3-25-14, Schertz Police Officer Westin was observing a house thought to be occupied by [] Thomas.
2. Westin had received information from other officers that Thomas was in possession of illegal drugs. The other officers were not otherwise identified.
3. Westin had also heard that a confidential informant said Thomas was in possession of drugs. The informant was not further identified. His credibility and reliability as an informant about illegal drugs were not established.
4. Schertz Police Officer Jimenez was also watching the house. When he saw Thomas leave as a passenger in a car, he asked Westin to make a pretext stop.
5. Westin stopped the car for failing to use a turn signal.
6. Thomas was shaking as he reached into the glove compartment to get insurance papers.
7. Jimenez arrived shortly after the stop.
8. Both officers knew that Thomas had previous involvement with the police, including a domestic disturbance call involving Thomas and his girlfriend. However, Thomas was thought to be the victim in that incident. Thomas had also been involved in what was reported as a robbery, but was likely a drug deal gone bad. Thomas was, again, the victim. No firearms or other personal weapons were involved in either case.
9. However, since Westin testified that weapons are often involved in narcotics transactions, the officers got Thomas out of the car so they could watch him better. Westin agreed this was the "overwhelming purpose" of removing Thomas from the car.
10. Jimenez testified that he got Thomas out of the car because of Thomas's alleged drug activity, even though he knew no weapon had been associated with Thomas.
11. Because Thomas seemed nervous, Jimenez decided to conduct what he called a "Terry frisk" for "my safety" and "my comfort." He said he conducted such a frisk "nine times out of ten" when a suspect appears nervous. No weapons were found.
12. Jimenez then asked Thomas if he had any contraband on him, and Thomas said no. He then said he had some prescription medicine. Jimenez asked him to take it out of his pocket, which Thomas did. The pills found constitute the basis of this prosecution.
In its conclusions of law, the trial court concluded that (1) the initial stop of the car, although pretextual, was legal; (2) at the time of the stop, the officers had no more than a suspicion that Thomas was involved in narcotics activity; they had no reliable or credible information of any specific illegal activity; (3) the weapons frisk was illegal because it was not based on specific and articulable facts that Thomas was armed and dangerous; and (4) the subsequent search leading to the finding of the pills could not be considered consensual because it followed the initial suspicion-less detention of Thomas and the illegal frisk.
The State appealed.
ARGUMENTS PRESENTED ON APPEAL AND PRESERVED FOR REVIEW
In a single issue, the State argues the trial court erred in granting the suppression motion because neither Thomas's removal from the car nor his frisk was improper.
We may not reverse a trial court's decision based on new theories of law not previously presented to that court for consideration. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998); State v. Fecci, 9 S.W.3d 212, 222 (Tex. App.—San Antonio 1999, no pet.) ("The State, as the appellant, may not argue a point on appeal which was not raised at [the suppression hearing]."). Here, the State devotes a substantial portion of its briefing to arguing that Thomas's interaction with Jimenez outside of the car was a consensual encounter. Thomas contends that the State did not raise this theory in the trial court. In its reply brief, the State persists in arguing that it raised its consensual encounter theory in the trial court. The State points to a single phrase in the prosecutor's closing argument: "The—the seizure, if you want to call it, of Mr. Thomas out of the passenger seat was no more than five minutes." (emphasis added). According to the State, this phrase, when read in conjunction with the record, shows that one of the reasons the State wanted the suppression motion denied was because Thomas was not seized. We disagree. After reviewing the entire record, we conclude the State did not present its consensual encounter theory to the trial court. Consequently, we do not consider the State's consensual encounter argument in this appeal.
In its opening brief, the State also argued that the removal of the pills was sufficiently attenuated from any illegality caused by the detention and/or frisk. However, in its reply brief, the State concedes it failed to present this argument to the trial court. Therefore, this argument is waived as well.
Next, the State argues the trial court abused its discretion in granting the motion to suppress because the officers had reasonable suspicion to detain Thomas because he was unusually nervous during the traffic stop and the traffic stop occurred not long after Thomas had been engaged in conduct that was consistent with drug activity. The State also argues the officers were justified in frisking Thomas because they had specific and articulable facts that would lead a reasonably cautious person to believe Thomas was armed and dangerous. The record shows that both of these arguments were presented to the trial court and therefore are preserved for our review on appeal.
SUPPRESSION HEARING BURDEN/APPELLATE STANDARD OF REVIEW
To suppress evidence based on an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Id. Once a defendant establishes that there was no warrant, the burden shifts to the State to prove the search or seizure was reasonable under the circumstances. Amador v. State, 221 S.W.3d 666, 672-73 (Tex. Crim. App. 2007).
As the reviewing appellate court, we review a trial court's suppression ruling for an abuse of discretion, reversing only when the ruling falls outside the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We give almost total deference to the trial court's findings of historical facts, if the record supports these findings. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013). However, we review de novo the trial court's application of search and seizure law to the facts. Id. at 667. "The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011). We sustain the trial court's ruling if it is reasonably grounded in the record and is correct on any theory of law applicable to the case. Wade, 422 S.W.3d at 667.
REASONABLE SUSPICION
We first address the State's argument that the trial court erred in granting the suppression motion because the suppression hearing evidence established that the officers had reasonable suspicion that Thomas was engaged in criminal activity on March 25, 2014. In arguing that the officers had reasonable suspicion, the State points to the officers' testimony that Thomas was unusually nervous during the stop and their testimony about the two prior instances in which the police were called. The State relies heavily on the two prior instances to demonstrate Thomas's "recent involvement with narcotics."
An officer has the right to briefly detain and investigate a person when the officer has reasonable suspicion that the person is involved in criminal activity. State v. Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008). Furthermore, an officer may conduct a limited pat-down search or frisk of the person if the officer has reasonable belief that the person is armed and dangerous. Id. The burden is on the State to elicit testimony showing sufficient facts to create reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
Reasonable suspicion exists when an officer has specific, articulable facts that lead him to reasonably conclude that the detained person is, has been, or soon will be engaged in criminal activity. Wade, 422 S.W.3d at 668. The articulable facts used by the officers must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is connected to the commission of an offense. Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). These articulable facts must amount to more than a hunch or a vague suspicion that a crime is in progress. Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). The standard also considers the totality of the circumstances. Wade, 422 S.W.3d at 668. Reasonable suspicion is dependent upon the content of the information possessed by police and its degree of reliability. Alabama v. White, 496 U.S. 325, 330 (1990). Both the quality and the quantity of the information are considered in evaluating the totality of the circumstances. Id.
In this case, both officers testified that on March 25, 2014, they were watching Thomas's residence because they suspected Thomas was involved in drug activity. Westin had heard from other officers that Thomas was in possession of drugs; however, no details about this information were provided. Westin had also heard that a confidential informant had told other officers that Thomas was in possession of drugs. No information was provided about the reliability of the confidential informant. Westin and Jimenez both knew about past incidents involving Thomas. The first incident was reported as a robbery, but it was "likely a drug deal gone bad." Westin said he could not be certain when he was given information about the incident, but it was in "previous weeks." Jimenez said the incident happened "at most" about a month before the March 25, 2014 incident. The second incident was a domestic disturbance involving Thomas. Thomas was believed to be the victim in both incidents. No weapons were used in either incident. On the evening Thomas was stopped, Jimenez saw Thomas leave the residence in a vehicle. Jimenez informed Westin that Thomas was leaving the residence. Westin followed the car and, when the driver of the car failed to signal, pulled the car over. Both officers noticed that Thomas, who was a passenger, was nervous. Specifically, Thomas's hands were shaking as he handed Westin insurance papers.
In making its arguments, the State refers to parts of Jimenez's testimony that were not referenced in the trial court's explicit fact findings. Jimenez, who was one of the officers who responded to the domestic disturbance incident, testified that he smelled the "overwhelming odor of marijuana emitting from the house." Even if the trial court had included this fact in its findings, we would reach the same result. --------
In evaluating totality of circumstances, we must consider the quality and quantity of the information the officers possessed. See White, 496 U.S at 330. With regard to the drug activity information Westin and Jimenez received from other officers, no details were provided. Additionally, the record is devoid of any evidence concerning the reliability and credibility of any confidential informant. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (explaining that information creating reasonable suspicion may be based on an informant's tip, provided that the tip bears sufficient indicia of reliability). The trial court made express findings that Thomas had previous involvement with the police, and one of these incidents was likely a drug deal. However, because this incident had transpired weeks or maybe even a month in the past, it was not indicative of any current drug activity.
Additionally, no details about Thomas's activities on March 25, 2014, were provided by the officers. Immediately before the stop, Jimenez saw Thomas get into a car and saw the car drive away from the residence. Once the car was stopped, Thomas appeared nervous but complied with the officers' requests and demonstrated no other unusual conduct.
Viewing the evidence in the light most favorable to the trial court's ruling, we conclude the officers did not have specific, articulable facts that led them to reasonably conclude that Thomas was, had been, or soon would be engaged in criminal activity. There was nothing to indicate that some activity out of the ordinary was occurring or had occurred, some suggestion to connect Thomas with any such unusual activity, and some indication that unusual activity was connected to the commission of an offense. See Garza, 771 S.W.2d at 558. The facts known to the officers created no more than a hunch or a vague suspicion that some crime was in progress. We conclude the State failed to establish that the officers had reasonable suspicion that Thomas was engaged in criminal activity.
Because the State failed to establish that the officers had reasonable suspicion, the trial court did not abuse its discretion in granting the motion to suppress. Although not necessary to the disposition of this appeal, we will nevertheless address the State's additional argument concerning the propriety of the weapons frisk.
WEAPONS FRISK
The State argues Jimenez properly conducted a weapons frisk of Thomas because the officers had specific and articulable facts that would cause a reasonably cautious person to believe they were in danger.
"Law enforcement personnel may conduct a limited search for weapons of a suspect's outer clothing, even in the absence of probable cause, where an officer reasonably believes that the suspect is armed and dangerous." Carmouche, 10 S.W.3d at 329. The purpose of a limited search after an investigatory stop is not to discover evidence of a crime, but to allow the peace officer to pursue investigation without fear of violence. Id. The exigencies that permit such a frisk are generated strictly by a concern for the safety of the officers. Id. "In this vein, the additional intrusion that accompanies a [] frisk is only justified where the officer can point to specific and articulable facts which reasonably lead him to conclude that the suspect might possess a weapon." Id. Furthermore, an officer safety frisk is based upon objective criteria, rather than the officer's state of mind or his asserted rationale. Sheppard, 271 S.W.3d at 287-88. To support a protective frisk or detention, there must be facts that, when reviewed under an objective standard, would cause a reasonably cautious person to believe that the action taken was reasonable or that the person frisked was presently armed and dangerous. Id.
The trial court's explicit fact findings show that Jimenez articulated several reasons for the frisk. Jimenez said that (1) he got Thomas out of the car because of Thomas's alleged drug activity; and (2) Thomas seemed nervous, and therefore, he decided to conduct a frisk for officer safety. Jimenez added that he conducts a frisk "nine times out of ten" when a suspect appears nervous.
Notwithstanding the reasons asserted by Jimenez, we are required to review the facts under an objective standard. See id. Immediately prior to the traffic stop, Westin and Jimenez were watching Thomas for drug activity. Westin and Jimenez were aware that in the past Thomas had been involved in matters in which the police were called, including a domestic disturbance involving Thomas and his girlfriend, and another incident that was likely a drug deal. The officers also knew that Thomas had been the victim in both incidents and no weapons had been involved. After the stop, Thomas complied with the officers' requests. When directed to step out of the car, Thomas complied. Thomas appeared to be nervous, but the officers did not mention anything else about Thomas or about the situation that concerned them.
When viewed under an objective standard, these facts would not cause a reasonably cautious person to believe that Thomas was armed and dangerous. Two officers were on the scene. Thomas had no history of carrying or using weapons. The officers observed that Thomas was nervous; however, a frisk cannot be justified by nervousness alone. See Wade, 422 S.W.3d at 671 (providing that nervousness alone is insufficient to justify reasonable suspicion and, although nervousness is a factor in determining reasonable suspicion, it is not particularly probative because most citizens with nothing to hide will manifest an understandable nervousness in the presence of an officer). Additionally, even though Jimenez testified that he frisked Thomas as matter of routine, a frisk is not justified when it is conducted solely as a matter of routine. O'Hara v. State, 27 S.W.3d 548, 553 (Tex. Crim. App. 2000).
In arguing that the frisk was justified, the State emphasizes the prior incidents involving Thomas and the police, and the information the officers had about Thomas's drug activity. The State further asserts that drug trafficking is frequently associated with violence, and therefore, it was objectively reasonable for the officers to believe that Thomas was armed and dangerous. We disagree. The information the officers had about any past drug activity was negligible, and the information the officers had about any current drug activity was based on vague suspicions or hunches. See Guevara v. State, 6 S.W.3d 759, 764 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (rejecting a similar argument that "the violent nature of narcotics transactions" justified a pat-down search when there was no information that the suspect was armed and dangerous, the suspect did nothing to indicate the officer was in jeopardy, and the officer knew he was dealing with the possibility, at most, of a small amount of cocaine). We conclude the State failed to demonstrate the officers had specific and articulable facts that reasonably led them to believe that Thomas was presently armed and dangerous.
CONCLUSION
After considering the arguments preserved for our review, we hold the trial court did not abuse its discretion in granting the motion to suppress. The trial court's order granting Thomas's motion to suppress is affirmed.
Karen Angelini, Justice Do not publish