Brodnex v. State

• Decision Date: 23 March 2016
• Docket Number: NO. PD–1087–14,PD–1087–14
• Citation: 485 S.W.3d 432
• Parties: Ike Antyon Brodnex, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

485 S.W.3d 432

Ike Antyon Brodnex, Appellant

v.The State of Texas

NO. PD–1087–14

Court of Criminal Appeals of Texas.

Delivered: March 23, 2016

Raymond K. Fivecoat, Midland, for Appellant.

Carolyn D. Thurmond, Assistant District Attorney, Midland, Lisa C. McMinn, State's Attorney, Austin, for The State of Texas.

OPINION

Meyers

, J., delivered the opinion of the Court, in which Johnson, Keasler, Hervey, Alcala, Richardson, Yeary, and Newell, JJ., joined.

Appellant was charged with the offenses of tampering with physical evidence and possession of a controlled substance after he was stopped by police and found to be carrying crack cocaine. Appellant filed a pretrial motion to suppress the evidence, which the trial court denied. After a bench trial, the trial court acquitted Appellant of the tampering offense but found him guilty of the possession offense. Appellant pled true to three enhancement paragraphs, and the trial court sentenced him to twenty years' confinement. Appellant appealed the denial of his motion to suppress, arguing that the officer did not have sufficient grounds to come into contact with him and that the discovery of the drugs was the result of an excessive pat-down search. Brodnex v. State, 11–12–00076–CR, 2014 WL 3639133, 2014 Tex.App. Lexis 7780 (Tex.App.Eastland 2014)

(mem. op., not designated for publication). The court of appeals affirmed the trial court's ruling. Id. After refusing Appellant's petition for discretionary review, we granted review on our own motion in order to determine whether an officer has reasonable suspicion to detain a suspect based upon observing the suspect walking with another person at 2 a.m. in an area known for narcotics activity and based upon the officer's unsubstantiated belief the suspect is a "known criminal."

FACTS

Around 2:00 a.m., Officer Zachary Chesworth of the Midland Police Department observed Appellant and a female leave the Deluxe Inn on foot. Officer Chesworth testified that the Deluxe Inn is located in an area known for narcotic activity. Officer Chesworth approached the two individuals on a nearby street, asked them their names and what they were doing, and placed Appellant in handcuffs without placing him under arrest. When Appellant identified himself, Officer Chesworth asked Appellant, "Didn't you just get picked up?" and Appellant replied, "Hell no." Officer Chesworth then had Appellant and his female companion come to the front of the car. The video on Officer Chesworth's patrol car shows that, while lifting Appellant's shirt tail and patting down the exterior of his front pant pockets, Officer Chesworth asked Appellant, "You got anything on you?" to which Appellant replied, "No." Officer Chesworth then asked, "Mind if I check?" and Appellant appeared to reply "uh-uh" again. The officer continued his search, seeming to check all of Appellant's pockets and the area around his waistband. Officer Chesworth found an orange plastic cigar tube protruding from the back of Appellant's waistband and removed it. The cigar tube contained crack cocaine.

Officer Chesworth placed the cigar tube on the front bumper of the police car. As he began to talk to Appellant's female companion, he noticed movement from Appellant, so the officer approached him, and a struggle between the two ensued. Officer Chesworth testified that Appellant had been trying to empty the contents of the cigar tube into the street.

Appellant was charged with possession of a controlled substance and tampering with physical evidence. He filed a motion to suppress evidence, challenging the stop and the search. At the suppression hearing, the video of the stop was played, and Officer Chesworth testified about his encounter with Appellant. He stated that he originally placed Appellant in handcuffs for officer safety, partly because he believed Appellant was a "known criminal" for "drug possession and things of that nature." However, Officer Chesworth admitted he had no personal knowledge of Appellant's criminal record and knew only what he had been told by other officers. Officer Chesworth also cited, as reasons for placing Appellant in handcuffs, the time of day, the location of the stop, the fact that he was the only officer present, and that he did not know where his closest backup unit was.

The trial court denied Appellant's motion to suppress, and Appellant proceeded to a bench trial where he pled guilty to possession of a controlled substance and not guilty to tampering with evidence. The court found him not guilty of tampering but guilty of possession. Appellant pled true to three enhancement paragraphs and was sentenced to 20 years' imprisonment.

COURT OF APPEALS

Appellant appealed the trial court's order denying his motion to suppress, arguing that Officer Chesworth did not have sufficient grounds to "come into contact" with Appellant and that the officer's discovery of the cigar tube was the result of an excessive pat-down search. Id. at *1–2, 2014 Tex.App. Lexis 7780 at *3–4.

The court of appeals first explained that, while Officer Chesworth was free to approach Appellant and his companion initially, he was required to have a reasonable suspicion of criminal activity prior to handcuffing Appellant and initiating the investigative detention. Id. at *2–3, 2014 Tex.App. Lexis 7780 at *6–7.

In examining whether Officer Chesworth had reasonable suspicion to detain Appellant, the court of appeals considered both Hamal v. State, 390 S.W.3d 302 (Tex.Crim.App.2012), and Crain v. State, 315 S.W.3d 43 (Tex.Crim.App.2010), and concluded that the "totality of the circumstances" in this case provided Officer Chesworth an objective basis for suspecting that criminal activity was afoot. The circumstances that the court of appeals cited to that support the suspicion of criminal activity included the time of day, the area's general narcotic activity, and the officer's belief that the appellant was a "known criminal." Brodnex, 2014 WL 3639133, at *3–4, 2014 Tex.App. Lexis 7780, at *8–9. The court of appeals acknowledged that these three factors do not individually establish reasonable suspicion for an investigative detention, but determined that they may be considered together in analyzing the existence of reasonable suspicion. See Hamal, 390 S.W.3d at 308 (holding that prior criminal record may be a factor in determining whether there is a reasonable suspicion); see also Crain, 315 S.W.3d at 53 (stating that the time of the day and level of criminal activity in an area may be factors in determining whether a reasonable suspicion exists). The court of appeals also stated in a footnote that "deception regarding one's own criminal record" may be a factor in determining a reasonable suspicion, and that, even though Officer Chesworth did not list it as a reason for his suspicion, because Appellant denied he had been recently picked up, the officer believed him to be deceptive. Brodnex, 2014 WL 3639133, at *3, n. 2, 2014 Tex.App. Lexis 7780, at *8, n. 2 (citing Hamal, 390 S.W.3d at 308 ).

Appellant next contended that the cigar tube was discovered only because of an excessive pat-down search. The court of appeals explained that an officer is permitted to conduct a frisk of a person who he has a justifiable belief is armed, in order to protect himself and those around him, as long as the search is confined in scope to where a weapon might reasonably be discovered. Id. at *3–4, 2014 Tex.App. Lexis 7780 at *9–10

(citing Terry v. Ohio, 392 U.S. 1, 24, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). The court of appeals, however, concluded that the issue in this case did not concern whether the search was excessive. It held that the video of Officer Chesworth's encounter with Appellant supported the trial court's implied finding that Appellant consented to the search, and that as a result of this consent, the search of Appellant was not limited to a weapons pat-down. Brodnex, 2014 WL 3639133, at *4, 2014 Tex.App. Lexis 7780, at *11.

The court of appeals overruled Appellant's issue and affirmed the judgment of the trial court. Appellant filed a petition for discretionary review with this Court. We granted review on our own motion to determine whether the court of appeals erred in affirming the trial court's denial of Appellant's motion to suppress when it held that Officer Chesworth had a reasonable suspicion to detain Appellant.

ARGUMENTS OF THE PARTIES

Appellant argues that the State failed to establish facts that show that Officer Chesworth's detention of Appellant was based on a reasonable suspicion that Appellant was engaged in criminal activity. He asserts that neither the time of day nor the geographical location of the activity are suspicious in and of themselves. Appellant states that the facts of his case are most similar to those in Garza v. State, 771 S.W.2d 549 (Tex.Crim.App.1989)

, in which we determined that reasonable suspicion did not exist for an officer to detain an individual whom he had heard was "good for" some unspecified burglaries and was a narcotics addict. Appellant believes that the court of appeals's decision is contrary to our precedent because Officer Chesworth did not articulate any facts that gave rise to his belief that Appellant was, or soon would be, engaged in criminal activity. Therefore, he argues, the detention was illegal and the judgment of the court of appeals should be reversed.

The State argues that the court of appeals was correct in upholding the trial court's denial of Appellant's motion to suppress. It asserts that the time of night, the location being known for narcotic activity, and the officer's knowledge of Appellant as a "known criminal" meet the minimal level to establish an objectively reasonable suspicion for detention. The State points out that the factors are to be considered together, rather than each individually. It requests that we affirm the judgment of the court of appeals.

STANDARD OF REVIEW

A trial court's denial of a motion to suppress is reviewed under a...