No. 05-10-01225-CR
Opinion Filed October 19, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 6 Collin County, Texas, Trial Court Cause No. 006-82642-10.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice O'NEILL.
Appellant Michael Andrew Turner was convicted of possession of marijuana under two ounces. He was sentenced to 120 days in county jail, probated for a year. In three issues, appellant alleges the arresting officer did not have reasonable suspicion to stop him, the subsequent search of his vehicle was unlawful, and the trial court erred by denying his motion to suppress. We reverse and remand for further proceedings.
Factual Background
On April 2, 2010, around 1 a.m., Officer Clayton Dacey with the Murphy Police Department was patrolling his regular route, which consisted of two neighborhoods. He patrolled these areas everyday he worked, and although he was familiar with cars in the neighborhood, he admitted he could not pinpoint every vehicle that did or did not belong there. On this particular morning, when Officer Dacey made a left-hand turn onto North Star, he did not notice any vehicle lights along the street. However, after turning onto the street, he immediately observed "a vehicle hit the brakes on the car, turn on the headlights, and then immediately make a left turn onto the next available street to the left, Oak Bluff Drive." The car was approximately three cross-streets away from Officer Dacey. Officer Dacey followed the car and activated his lights when the car stopped at a red light. When he ran the license plate, it came back registered to an owner in Sherman. He also observed four people in the car and said this indicated a possible burglary team. He testified that he stopped the car for the following reasons: Based on my observations, when I first turned on the street, of the vehicle, the brake lights and the headlights, then making the immediately left onto Oak Bluff, the license plate that's come back to the-that come back-that came back to Sherman, Texas, the amount of occupants inside the vehicle, just gave me reasonable suspicion to stop the vehicle.
After stopping the car, he approached the driver's side and asked appellant, who was driving, what they were doing in the neighborhood. Officer Dacey could smell marijuana coming from inside the vehicle. Appellant first denied marijuana was inside the car, but when Officer Dacey informed him the car was going to be searched, appellant admitted marijuana was inside the ashtray. Appellant, however, denied ownership of the marijuana and said it belonged to a friend. When Officer Dacey searched the car, he found marijuana in the ashtray. Officer Dacey arrested appellant for possession of marijuana. Appellant filed a motion to suppress, which the trial court carried with the trial. Officer Dacey was the State's sole witness during trial. The trial court denied appellant's motion for instructed verdict and his motion to suppress. The jury found him guilty of possession of marijuana under two ounces. This appeal followed. Standard of Review and Applicable Law
In reviewing the trial court's ruling, we must first determine the applicable standard of review as set forth in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). In Guzman, the court held that when, as here, a trial court's ruling involves a mixed question of law and fact, the amount of deference a reviewing court must afford the trial court's ruling is determined by "which judicial actor is in a better position to decide the issue." Id. at 87. Thus, when the determination of a mixed question of law and fact turns on credibility of a witness, the appellate court should defer to the trial court's application of law to facts. Id. When, on the other hand, the issue involves the application of the law to undisputed facts, the trial judge is in no better position than the reviewing court to make the determination, and the appellate court reviews the trial court's ruling de novo. Id.; see also Ornelas v. United States., 517 U.S. 690 (1996) (reviewing court determines de novo whether police have reasonable suspicion or probable cause to justify a stop and arrest); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). During trial, Officer Dacey testified about the reasons he stopped and arrested appellant. Appellant presented no evidence controverting his testimony; rather, he argues Officer Dacey's reasons for stopping him failed to provide specific, articulable facts that would show something out of the ordinary was occurring, which would lead Officer Dacey to believe appellant was, had been, or would be engaged in criminal activity. Because the ultimate question of reasonable suspicion did not turn on Officer Dacey's credibility, we conclude the trial court was in no better position than this Court to make the reasonable suspicion determination. Accordingly, we review the trial court's determination de novo. See Guzman, 955 S.W.2d at 87-88. An officer may lawfully conduct a temporary detention if there is reasonable suspicion to believe the detained person is violating the law. Terry v. Ohio, 392 U.S. 1, 21 (1968); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. These facts must amount to more than a mere hunch or suspicion. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Ford, 158 S.W.3d at 492. A reasonable-suspicion determination is made by considering the totality of the circumstances. Id. Factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of the day, and the reaction of the suspect. Mount v. State, 217 S.W.3d 716, 725 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Discussion
In describing the circumstances that led to the stop in this case, Officer Dacey testified (1) the car's brake lights and headlights came on when he turned down the street, (2) it made an immediate left turn, (3) the license plate came back registered to a person residing in Sherman, Texas, and (4) four people occupied the vehicle. After reviewing the record and relevant case law, we cannot conclude Officer Dacey had reasonable suspicion, based on the totality of the circumstances, to believe appellant had been, was, or was about to be involved in criminal activity. The State relies on Tanner v. State to support its argument that Officer Dacey had reasonable suspicion to stop appellant. 228 S.W.3d 852 (Tex. App.-Austin 2007, no pet.). In that case, the officer was conducting a routine patrol at 3 a.m. He stopped Tanner and another woman after seeing them emerge from a dark area behind a bar that had been closed for over an hour. Id. at 854. The officer testified at the suppression hearing the behavior was suspicious. The record did not reflect any criminal activity in the area that evening or that it was a high-crime area. Id. During the investigative stop, the officer discovered drugs on Tanner. Tanner filed a motion to suppress, which the trial court denied. On appeal, the court concluded "when the time of night and location are viewed together and common sense is applied to the totality of the circumstances, we cannot conclude the trial court erred." Id. at 857. We do not find Tanner persuasive. Here, while we agree Officer Dacey stopping appellant at 1 a.m. is similar, the locations of the stops are dissimilar. Appellant was not pulling out from a dark area behind a business that had been closed for an hour. Rather, he was parked on a neighborhood street, turned on his light, and pulled away from the curb as Officer Dacey pulled onto the street. The Tanner court even acknowledged "there is a considerable difference between an officer stopping a vehicle seen parked in a public parking lot . . . or a person walking late at night along a public sidewalk . . . and an officer stopping someone seen walking from behind private property well after the business was closed." Id. n. 5 (citations omitted). Thus, as acknowledged by the Tanner court, appellant's actions here are more akin to being parked in a public parking lot. Though not cited by either party, we find Gamble v. State instructive. 8 S.W.3d 452, 452 (Tex. App.-Houston [1st Dist.] 1999, no pet.). In that case, the court of appeals concluded the trial court erred by denying appellant's motion to suppress on facts more suspicious than those before us. Officers were conducting a routine patrol at 3 a.m. in an area known for "heavy" drug sales. Id. at 453. Police had been called to the area about seventy times the past year and both officers had personally answered several calls over the past few months. Id. Officers spotted appellant walking down the street and became suspicious when he stopped and kept turning around to watch their patrol car. Id. When they stopped appellant, they discovered drug paraphernalia. Id. The sole bases for the detention were (1) the area had a history of drug sales; (2) the police had frequent calls to the area in the past year; (3) it was 3 a.m.; (4) appellant was either walking or standing in the street near a residence to which the officers had been called in the past, but at which they had never made arrests for drugs or weapons; and (5) appellant watched the marked police car and walked away from it when it turned around. Id. at 453-54. The court concluded neither the area's high-crime reputation nor appellant watching the passing police car would have warranted detention. Nor did the facts, under the totality of circumstances, give rise to reasonable suspicion. Id. at 454. Here, Office Dacey did not testify the neighborhood had a history of crime. In fact, he could not give an exact date as to whether or not there had been any recent car thefts, but he estimated there may have been five in the neighborhood within the past year. While he did testify the number of occupants in the car could indicate a burglary ring because such rings usually travel in groups, he did not see a look out, he did not see anyone running from the house towards the car or wearing dark clothes, nor did the car appear to be weighted down with stolen merchandise. Thus, his testimony that appellant and his occupants might be part of a burglary ring was based on nothing more than a mere suspicion or a hunch, rather than articulable facts. Further, the record does not indicate appellant drove away because he saw Officer Dacey's patrol car turn onto the street. In fact, defense counsel asked, "you were too far away to actually see if they were actually fleeing from police. You just saw them pull away from the curb; is that correct?" Officer Dacey answered, "Correct." Based on this testimony, one can infer that the distance was too great for appellant to know it was a patrol car that had turned onto the street. While we acknowledge Officer Dacey testified he believed appellant was fleeing from the scene, he also stated "flee was the best word I could find at the time. It's not necessarily they were evading." Fleeing from officers is a valid factor in determining whether an officer had reasonable suspicion to detain an individual; however, Officer Dacey provided no evidence that appellant was in fact fleeing from the scene. See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (stating that mere flight does not justify investigative stop). He did not testify appellant spun out his tires in an effort to leave or that he sped away. In fact, Officer Dacey said he was "a good bit away" from the car and did not know for sure if appellant was speeding because "I wasn't close enough" to pace him. But see Jiron v. State, 05-08-00056-CR, 2009 WL 866213, *1 (Tex. App.-Dallas Apr. 2, 2009, no pet.) (not designated for publication) (noting appellant seemed to be trying to avoid officer when officer had to accelerate up to sixty-miles-per-hour to catch up, appellant quickly slammed on brakes and made a quick turn without signaling, and then rolled through a stop sign). Compared to Gamble, where the court found no reasonable suspicion existed for an investigative stop, the totality of the circumstances here is even less. After a thorough examination of case law and the facts, we conclude the trial court erred in concluding Officer Dacey had a reasonable suspicion, based on the totality of circumstances, to stop appellant. Cases in which courts have determined reasonable suspicion existed for a stop had some other factor contributing to the totality of circumstances that is simply missing here. See, e.g., Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (violation of a traffic law provides reasonable suspicion to stop a vehicle); Jones v. State, 01-07-00240-CR, 2008 WL 746527, at *3 (Tex. App.-Houston [1st Dist.] Mar. 20, 2008, no pet.) (mem. op., not designated for publication) (reasonable suspicion existed based on lateness of the hour, business was closed, high incidence of crime in the vicinity, and appellant tried to flee); Lieblong v. State, 02-06-132-CR, 2007 WL 941990, at *3 (Tex. App.-Fort Worth Mar. 29, 2007, no pet.) (mem. op., not designated for publication) (reasonable suspicion existed when officers saw appellant, dressed in all black, emerge from the shadows in an apartment complex in an area that had recently experienced several car burglaries and run towards a car, occupied with two other people, that had its engine running with lights off); Cronin v. State, 03-04-00266-CR, 2005 WL 3440745, at *6 (Tex. App.-Austin Dec. 16, 2005, no pet.) (mem. op., not designated for publication) (reasonable suspicion existed when there had been the complete absence of any vehicles in a parking lot after midnight for over two months, there was unsolved vandalism of a neighboring business, and vehicle had come from a concealed area of a parking lot near a storage shed); Reyes v. State, 910 S.W.2d 585, 590 (Tex. App.-Amarillo 1995, pet. ref'd) (reasonable suspicion existed when officers heard gunshots and a woman screaming and then observed appellant's car traveling at a high rate of speed, failing to stop at a stop sign, and turning in front of them). Thus, the subsequent search of appellant's car was unlawful, and his motion to suppress should have been granted. Accordingly, we sustain appellant's three issues. Conclusion
The judgment of the trial court is reversed and the case remanded for further proceedings.