Daniels v. State

• Citation: 718 S.W.2d 702
• Decision Date: 09 April 1986
• Docket Number: No. 379-84,379-84
• Parties: Thomas Edgar DANIELS Austin, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 702

718 S.W.2d 702

Thomas Edgar DANIELS Austin, Appellant, v. The STATE of Texas, Appellee.

No. 379-84.

Court of Criminal Appeals of Texas En Banc.

April 9, 1986.

Ronald J. Waska, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and John Kyles, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

After his motion to suppress evidence was denied, appellant pled not guilty and was tried before the trial court. Appellant and the State entered into a stipulation of evidence on the basis of which appellant was found guilty of possession of a controlled substance and sentenced to five years imprisonment in the Texas Department of Corrections. His conviction was affirmed by the court of appeals. Daniels v. State, 681 S.W.2d 78 (Tex.App.--Houston [14th] 1984).

Appellant objected to the admission of evidence seized from him during an airport stop and search. The court of appeals held that the trial court properly overruled appellant's motion to suppress because the investigating officer had reasonable grounds to temporarily detain appellant and appellant then consented to the search of his suitcase. We granted appellant's petition to review these findings of the court of appeals.

At nine o'clock in the morning Officers Furstenfeld and Bernias of the Houston Police Department were at Houston Intercontinental Airport watching passengers deplane from a nonstop flight from Miami. This surveillance was conducted "in an attempt to identify and intercept narcotic couriers who are bringing dope into Houston." The officers were not operating on information from an informant or law enforcement agency, they were just scanning the passengers to see if any aroused their suspicions. Two men did.

Officer Furstenfeld testified that he was suspicious first of all because the men were coming from Miami, a known source city for narcotics traffic. Of course, that was true of all the passengers. What distinguished appellant and his companion in Officer Furstenfeld's eyes was that the two men deplaned separately but then their eyes met. After a brief nod from one of them they proceeded down the concourse without speaking, but looking around nervously. Furstenfeld concluded the two were travelling together but trying to disguise that fact. He also thought they were looking back furtively as if trying to detect surveillance. If so they were unsuccessful, because Furstenfeld and Bernias followed the men to the baggage claim area without being detected.

In the baggage claim area one of the suspects handed his suit bag to the other and went to the restroom. Upon his return the men stood together, talking and joking, until a white suitcase arrived. Appellant claimed the bag and he and his companion took an elevator to the covered parking area. They were joined in the elevator by the two narcotics officers. Once all four were in the parking area Officer Furstenfeld spoke to appellant. What happened next was a matter of dispute at the hearing on the motion to suppress. However, viewing the evidence in the light most favorable to the trial court's ruling on the motion, the facts are these: ¹ The officer approached appellant and asked if he might ask him a few questions. Appellant said sure. Furstenfeld identified himself as a police officer conducting an investigation and asked if he could question appellant. Appellant again consented. Furstenfeld asked if appellant and the other man were travelling together. Appellant replied that they were not. (The other man, Steve Bogden, had walked on ahead and been stopped by Officer Bernias.) The narcotics officer asked if he could see appellant's identification and plane ticket. Appellant handed him a temporary Texas driver's license in the name Thomas Daniels and a ticket folder that contained two tickets, one made out to G. Daniels and the other S. Bogden. Furstenfeld returned these items and informed appellant that he was a narcotics officer. Appellant grew visibly more nervous at this news, Furstenfeld testified. He asked permission to search appellant's luggage, informing him that he did not have to consent, but could instead require the officer to produce a search warrant. Appellant, however, consented to the search. Furstenfeld found tablets he took to be illegal drugs, and arrested appellant. A subsequent search of appellant's person turned up the cocaine for possession of which he was convicted.

The questions to be decided are, when did the officer have legally sufficient reason to detain appellant, and when did he need it?

Not all encounters between police and citizens invoke the protection of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police are as free as anyone else to ask questions of their fellow citizens. Only when the questioning becomes a detention, however brief, must it be supported by reasonable suspicion. Reasonable suspicion is a lesser quantum of proof than the probable cause required for a full blown arrest and search. Even a brief investigatory stop, however, must be based on "specific articulable facts, which in light of [the police officer's] experience and general knowledge, together with rational inference from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation." Brem v. State, 571 S.W.2d 314, 318 (Tex.Cr.App.1978). A mere hunch is insufficient:

"There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful."

Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App.1983). We must therefore determine at what point, if any, appellant was detained for purposes of the Fourth Amendment, and on what Officer Furstenfeld's suspicion was based at that point.

The officer first spoke to appellant just after the two exited from the elevator into the covered parking area, when it was clear appellant was leaving the airport. The officer's suspicion up to then had been aroused because: (1) appellant deplaned separately from Bogden but then made eye contact with him; Furstenfeld suspected they were travelling together but trying to hide the fact; (2) appellant appeared nervous and looked behind him as he walked down the concourse ("It wasn't continuous, but each looked about two times apiece"); and (3) appellant had arrived on a flight from Miami.

Clearly these were not reasonable grounds for any level of suspicion. If appellant and Bogden were trying to disguise the fact that they were travelling together, they did a very poor job of it. They deplaned separately but walked down the concourse side by side, though a few feet apart. Once in the baggage claim area they stood together talking and joking, and Bogden gave appellant his bag to hold while he went to the restroom. Furstenfeld, who saw all this, must have had allayed his suspicion that the men were trying not to appear to know each other. The fact that appellant was arriving from Miami did not distinguish him from any other passenger on the nonstop flight. That leaves only appellant's apparent nervousness and "furtive eye movements." As the United States Supreme Court said of a stop based on similar suspicions, these circumstances

"describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure."

Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980).

This Court has held it unreasonable to stop a pedestrian solely because he looks over his shoulder at a police car. Rodriguez v. State, 578 S.W.2d 419 (Tex.Cr.App.1979). It would be no more reasonable to stop a man who looks over his shoulder twice in an airport concourse. As for the "furtive" eye movements, they could not have been more suspicious than the furtive gestures with which this Court has often dealt, which will not be reasonable ground for suspicion where they are consistent with innocent activity.

"..., such so-called 'furtive gestures' do not bear with them the indicia of a guilty mens rea as they would had the stopping police officer been occupying a marked police vehicle. In this case, it was an unmarked police vehicle."

Faulk v. State, 574 S.W.2d 764, 766 (Tex.Cr.App.1979). In the instant case the plainclothes detective was the equivalent of an unmarked police car. It was no basis for suspicion that appellant, who had just disembarked from an airplane, acted nervous in the officer's presence.

So at the point of the initial encounter, Officer Furstenfeld had no grounds for reasonable suspicion. As we have already seen, however, he needed none. It was permissible for him to approach appellant and ask to speak with him. At that point appellant, in theory at least, could have still walked away freely.

Perhaps as in Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex.Cr.App.1984), appellant's seemingly innocent activity might have been rendered suspicious in light of an informant's tip, but here there was no tip. Officer Furstenfeld was acting strictly on the basis of what he observed.

Following the initial exchange the officer asked if appellant was travelling with Bogden and was told he was not. Officer Furstenfeld then asked to see appellant's ticket and identification. Noting that appellant carried two airline tickets and that one of them was made out to "G. Daniels" though appellant's driver's license gave his name as Thomas Daniels, the officer identified himself further as a narcotics...