Davis v. State

Decision Date04 June 1997
Docket NumberNo. 918-96,918-96
Citation947 S.W.2d 240
PartiesMartin DAVIS, Appellant, v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

Ray Bass, Austin, for appellant.

David V. Wilson II, Assist. District Attorney, Lufkin, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of marihuana and sentenced to five years confinement. Tex. Health & Safety Code Ann. § 481.121. The Court of Appeals affirmed. Davis v. State, 923 S.W.2d 781 (Tex.App.--Beaumont 1996). We granted review to determine whether the Court of Appeals erred in holding further detention was justified after the officer determined appellant was not driving while intoxicated. We will reverse.

I.
A.

The following facts are taken from the Court of Appeals opinion. Appellant was stopped at 1:00 a.m. in Lufkin for suspicion of driving while intoxicated. Appellant exited his vehicle and walked to the officers' patrol vehicle. When told the reason for the stop, appellant stated he was not intoxicated, merely tired. The officers did not detect an odor of alcohol on appellant; nor did they detect an odor of alcohol or any type of drug emanating from the vehicle. The officers determined appellant was not intoxicated. At this point, the initial purpose of the traffic stop was completed. Davis, 923 S.W.2d at 784.

The officers questioned appellant and his passenger separately. Appellant stated he was from New York and he and the passenger had been looking at apartment buildings. The passenger stated she was accompanying appellant while he looked at property in Houston. The officers believed the statements were inconsistent. Id. at 784-785.

A background check on appellant revealed appellant had no history of convictions and his drivers' license was valid. A background check on the passenger revealed she had an arrest and conviction for a drug offense. A license check on the vehicle revealed the car was not in appellant's name; however, the check also revealed the vehicle was not reported stolen. Appellant stated the vehicle was borrowed from his girlfriend. The insurance papers on the vehicle were in proper order. The officers concluded appellant did not appear to be someone who was on a business trip. Id. at 785.

After questioning appellant and the passenger, the officers asked appellant for permission to search the vehicle. Appellant refused to give consent. 1 One of the officers did a pat down search of appellant but found no weapons or drugs. The officers then informed appellant that he was free to leave at any time but the vehicle was being detained for an on-scene investigation. A canine unit was called to the scene. The narcotics dog arrived and made a positive alert at the trunk of the vehicle. Upon request, appellant handed the keys to an officer who searched the trunk. Inside the trunk the officer found a suitcase containing marihuana. The trial judge overruled appellant's motion to suppress this evidence. Ibid.

B.

A majority of the Court of Appeals held:

... the fact that appellant was traveling late at night in a borrowed car, appeared nervous, was dressed poorly considering the explanation for travel given, told a story which could be interpreted as being inconsistent with that of his passenger, immediately got out of his vehicle when stopped and went back to the patrol car door, and repeatedly attempted to distance himself from his own vehicle, was enough to raise reasonable suspicion justifying further detention until the drug dogs came to the scene to sniff the car.

Davis, 923 S.W.2d at 789.

However, in dissent, Justice Burgess stated:

... even taking those facts as true, within the "totality of the circumstances" and viewing them in the light most favorable to the trial court's ruling, see State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996), they are not, as a matter of law, specific articulable facts which created a reasonable suspicion that criminal activity was afoot.

Where events are as consistent with innocent activity as with criminal activity, detention based upon those events is unlawful. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983). The suspicious conduct relied upon by the officers must be sufficiently distinguishable from that of innocent people under the same circumstance to clearly, if not conclusively, set the suspect apart from them. Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991).

Davis, 923 S.W.2d at 790. The dissent concluded: "The Fourth Amendment, in my view, protects late-night, out-of-state travelers from being subjected to detentions that provide officers the opportunity to 'get lucky.' " Id., 923 S.W.2d at 791-92.

We granted review to determine whether the decision of the of the Court of Appeals conflicts with the applicable decisions of the United States Supreme Court, this Court and/or the courts of appeals. Tex.R.App. P. 200(b)(1), (3) and (5). See, Crockett v. State, 803 S.W.2d 308 (Tex.Cr.App.1991); Daniels v. State, 718 S.W.2d 702 (Tex.Cr.App.1986); and, Montano v. State, 843 S.W.2d 579 (Tex.Cr.App.1992).

II.
A.

In the landmark case of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), the Supreme Court recognized the rights insured by the Fourth Amendment belong "as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs." Id., 392 U.S. at 8-9, 88 S.Ct. at 1873. However, the Fourth Amendment does not forbid all searches and seizures, but only unreasonable searches and seizures. Ibid. (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960)). 2

The question in Terry was whether it was always unreasonable for a peace officer to seize a person and subject him to a limited search unless there is probable cause for an arrest. Id., 392 U.S. at 15, 88 S.Ct. at 1877. The Court held that even though a "stop" and "frisk" was a search and seizure under the Fourth Amendment, id., 392 U.S. at 16, 88 S.Ct. at 1877, such actions by peace officers could be reasonable under the Fourth Amendment. To determine the reasonableness of such an investigative detention the Court adopted a dual inquiry: (1) whether the officer's action was justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Id., 392 U.S. at 19-20, 88 S.Ct. at 1879.

Under the first prong, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id., 392 U.S. at 21, 88 S.Ct. at 1880. In short, the officer must have a reasonable suspicion. 3 In assessing whether the intrusion was reasonable, an objective standard is utilized: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880. 4 An investigative detention not based on reasonable suspicion is unreasonable and, thus, violative of the Fourth Amendment.

The second prong of Terry deals with the scope of the detention. The Court noted that an investigative detention, "like any other search, must be strictly circumscribed by the exigencies which justify its initiation." Id., 392 U.S. at 25-26, 88 S.Ct. at 1882. The scope of the search must be limited because "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." Id., 392 U.S. at 18, 88 S.Ct. at 1878. Several years later, the Supreme Court stated:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. 5

Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). This limitation means that once the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition for unrelated criminal activity." Ohio v. Robinette, --- U.S. ----, ----, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concurring). Consequently, a detention that is not temporary and reasonably related in scope to the circumstances which justified the interference, is unreasonable and, thus, violative of the Fourth Amendment.

While a Terry-stop is traditionally considered in the context of a seizure of the person, the Supreme Court has extended Terry to personalty as well. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). As the Court stressed in Place, even though the defendant may be free to leave, the seizure of the personalty is still a restraint upon the person.

... The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the...

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