Arguellez v. State

• Decision Date: 30 October 2013
• Docket Number: Nos. PD–0997–12,PD–0998–12.,s. PD–0997–12
• Citation: 409 S.W.3d 657
• Parties: Felix ARGUELLEZ, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

409 S.W.3d 657

Felix ARGUELLEZ, Appellant

v.The STATE of Texas.

Nos. PD–0997–12, PD–0998–12.

Court of Criminal Appeals of Texas.

Sept. 18, 2013.

Rehearing Denied Oct. 30, 2013.

Luis A. Martinez, Attorney At Law, Victoria, TX, for appellant.

Robert C. Lassman, Assistant District Attorney, Cuero, TX, Lisa C. McMinn, State's Attorney, Austin, for the state.

OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, WOMACK, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

Appellant was charged with multiple offenses of improper photography, a state-jail felony.¹ The trial court denied his motions to suppress, and appellant then plead nolo contendere to both indictments. After a punishment hearing, the trial court sentenced him to twenty months' confinement in state jail and imposed a $2,500 fine in each case, with the sentences to run concurrently.

On direct appeal, appellant's sole issue asked, “Does merely taking photographs at a public pool give police reasonable suspicion to stop appellant's vehicle?” The court of appeals overruled that single issue and affirmed the trial court's judgments. Arguellez v. State, 2012 WL 1964577, 2012 Tex.App. LEXIS 4373, No. 13–11–00266–CR and No. 13–11–00267–CR (Tex.App.-Corpus Christi–Edinburg, delivered May 31, 2012).

We granted review of one of two grounds that appellant raised in his petition for discretionary review: “Is ‘crime afoot’ when a person takes pictures at a public pool permitting a police officer to conduct an investigative detention?” We conclude that crime was not afoot, sustain that ground, and reverse the court of appeals's judgments.

I. Facts

At a hearing on appellant's motions to suppress, the testimony of the two arresting officers reflects that on July 30, 2009, appellant was observed taking photographs of patrons at a municipal swimming pool at a public park. The subjects of these photographs included women and children who were wearing swimming attire. Police were notified, and patrol officers responded. The dispatched call described an unknown man in a suspicious vehicle, specifically “a male subject in a tan Ford Taurus taking photos at the [c]ity pool and they said he was parked beside the fence.” The responding officer testified that he saw a vehicle fitting that description—a tan or brownish Taurus—“pulling away from the side of the pool.” The officer followed the car, received information that the police dispatcher still had the informant on the phone, and confirmed that the patrol car was behind the correct vehicle. He testified that, based on the information at hand, he made a traffic stop of that vehicle, identified appellant as the driver of that vehicle, and observed a camera beside the vehicle's console. A second officer arrived and remained with appellant while the first officer returned to the swimming pool and identified and spoke with the pool manager, who had made the call to police dispatch.

The first officer returned to appellant and requested and received verbal consent from appellant to look through the photographs stored on appellant's digital camera. Those photographs depicted the pool area, its surroundings, and people, primarily females in bathing suits, many of whom were young girls. The camera also contained photographs of people in a place that the officer could not identify.² The two officers advised appellant that he was “detained” and that they would “like him to make a statement in reference to the photos.” After receiving Miranda³ warnings at the Cuero Police Department, appellant made a statement, which was written out for appellant by one of the officers. The face of the written statement contained the required statutory warnings. In the statement, appellant acknowledged taking photos of women and a girl in bathing suits, but asserted that the photos were taken “just to see if the pictures come out good.” The statement also reveals that the other photographs were from a pool in Yorktown “and those photos were taken just to see how the pictures came out.”

A grand jury returned two separate indictments against appellant. Appellant filed an identical motion to suppress in each case, asserting that the officer stopped appellant's vehicle without a warrant, reasonable suspicion, or other legal justification. After hearing testimony from the two officers, the trial court denied the suppression motion in each case. Appellant then plead nolo contendere to the charges in both indictments.

II. Court of Appeals Opinion

On direct appeal, appellant's sole issue asked, “Does merely taking photographs at a public pool give police reasonable suspicion to stop appellant's vehicle?” The court of appeals held that the officers had reasonable suspicion to stop and detain appellant; under the totality of the circumstances, the information known collectively to the police “provided specific, articulable facts that, combined with reasonable inferences to be derived from those facts, led to the reasonable conclusion that appellant was, had been, or soon would be engaged in criminal activity.” Arguellez v. State, 2012 WL 1964577, at *3, 2012 Tex.App. LEXIS 4373 at *11. The court described that collective information: the pool's manager called the police, identified herself, reported that appellant was taking pictures of people at the pool, and described the location, make, model, and color of appellant's vehicle; the first officer spotted the vehicle and reported that it was leaving the pool area; and the dispatcher, who remained in contact with the manager, confirmed that the first officer was behind the suspect vehicle. Id. at *3, at 2012 Tex.App. LEXIS 4373, at *10–11.

III. Appellant's Ground for Review

We granted one of appellant's grounds for review, in which appellant asks whether there was reasonable suspicion to justify his stop and investigative detention.

The state responds by asserting that “[t]he trial court properly denied [appellant]'s motion to suppress evidence.” It argues that the known facts created a reasonable suspicion such that the officer was justified in initiating a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It also asserts that an appellate court must apply a standard of abuse of discretion and may overturn the trial court's ruling only if that ruling is outside the zone of reasonable disagreement.

IV. Arguments

Appellant argues that a “suspicious person” taking pictures of people at a public pool, without more, “does not create reasonable suspicion to believe that ‘crime is afoot.’ ” He asserts that the applicable standards require objective, not subjective, facts and require more than one person's opinion that someone's behavior is suspicious. He also argues that taking pictures in a public park or a public pool is neither unusual nor a crime. “Taking pictures of people at a pool is no more ‘unusual’ than taking pictures of people at a beach or a football game, or any other public places where people gather.” Appellant criticizes the state's failure to call “any ‘true’ complainant”—the pool manager or the dispatcher—and suggests that, because of such failure, it is unclear from the suppression hearing's testimony what information was imparted to the responding officers. He maintains that the information adduced at the suppression hearing failed to provide any facts that support reasonable suspicion to stop his vehicle and detain him, thus failing to meet the state's burden. He also suggests that the trial court erroneously reasoned that merely adding the word “suspicious” to a description of a “male subject taking pictures of people at the pool” provided the reasonable suspicion for the first officer to stop appellant's vehicle and detain appellant.

Appellant also disputes the conclusion of the court of appeals that, under the totality of circumstances, the facts known to the initial officer provided specific, articulable facts that, combined with reasonable inferences to be derived therefrom, led to the reasonable conclusion that he was, had been, or soon would be engaged in criminal activity. He notes that “the uncontested facts fail to show any ‘unusual activity’ or that the activity of taking photographs was related to crime.” He asserts that, because the state failed to carry its burden to establish reasonable suspicion for the stop and subsequent detention, that stop and detention were unlawful, and the evidence obtained from the stop should have been suppressed. Appellant argues that the applicable jurisprudence requires this Court to focus on what was objectively known to the first officer before stopping appellant's vehicle and detaining him and that, even when evaluating the facts under the totality of the circumstances, the state failed to carry its burden to establish reasonable suspicion for the stop and subsequent detention.

The state contends that the court of appeals correctly concluded that, under the totality of the circumstances, the known information provided specific, articulable facts, combined with reasonable inferences to be derived therefrom, sufficient to justify the initial stop and detention of appellant. The state acknowledges that, at the time of the stop, the first officer did not know who the informant was, but knew that she was still on the phone with the dispatcher. It asserts that, because the informant was still on the phone with the dispatcher when that officer arrived at the pool, her identity was easily ascertainable and was thus not anonymous. It argues that “the citizen-informant was not ‘anonymous' as her identity was known by the dispatcher and imputed to [the first officer].” The state bases its discussion, in part, on evidence that was presented only at the punishment hearing, long after the hearing on appellant's motions to suppress. We note, as did the court of appeals, that in reviewing a ruling on a suppression motion, the appellate court considers only the evidence adduced at the suppression hearing. Beca...