Davis v. State

• Decision Date: 08 August 1990
• Docket Number: No. 3-89-070-CR,3-89-070-CR
• Citation: 794 S.W.2d 123
• Parties: Ricky DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 123

794 S.W.2d 123

Ricky DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 3-89-070-CR.

Court of Appeals of Texas Austin.

Aug. 8, 1990.

Ronald S. Gutierrez, Austin, for appellant.

Ronald Earle, Dist. Atty., William G. Reid, Asst. Dist. Atty., Austin, for appellee.

Before SHANNON, C.J., and CARROLL and ABOUSSIE, JJ.

CARROLL, Justice.

A jury convicted Ricky Davis of possession of cocaine, and the district court assessed punishment at twelve (12) years confinement in the penitentiary. Davis now complains that the district court erred when it denied his motion to suppress evidence. Because the district court properly denied Davis' motion, we will affirm the judgment of conviction.

BACKGROUND

Austin Police Officer McKenzie responded to a "suspicious person" call from an anonymous source. The police department had received a call stating that a person with a gun was in the area of the 5300 block of Samuel Huston Avenue. McKenzie could not remember whether the dispatcher said the suspect was in a car or on foot. The back-up officer, Scales, also could not remember the dispatcher's call with certainty, but Scales thought that the dispatcher referred to a car.

Officer McKenzie arrived at the scene around 9:30 p.m. He noticed two men seated in a Pontiac Trans Am parked in front of a house. With his lights turned off, he pulled up behind the suspects' car. McKenzie approached these suspects because they were the only people at the location described by the police dispatcher.

McKenzie exited his squad car and began to walk toward the driver's side of the Pontiac. McKenzie observed that the two suspects glanced back at the officer and then at each other several times as McKenzie walked up to the car. The car was parked in a location with good lighting. McKenzie noted that this location is regularly frequented by drug dealers who sell drugs to people who drive up and briefly stop. As McKenzie approached, he noticed that the passenger, Davis, was clutching something in his left hand; Davis' hand was clenched in a fist next to the driver; and then Davis removed his clenched hand from this area. Because of the report of a possible gun, McKenzie attempted to keep a close watch on the suspects' hands.

Suspecting that he had interrupted a drug deal and fearing that the suspects might have a weapon, McKenzie asked the driver to step out of the car. The driver opened the door slightly, and the dome light came on. At that time, McKenzie saw Davis make a downward motion toward the floorboard with his clenched hand and noticed several packets containing a white substance on the passenger-side floorboard below Davis' legs.

Officer Scales arrived seconds later. Scales approached the passenger side of the Trans Am, and McKenzie again asked the driver to exit the vehicle. McKenzie took the driver to the rear of the car and asked Scales to remove Davis from the passenger side. While Scales watched the two suspects at the rear of the car, McKenzie retrieved the packets from the floorboard. McKenzie noted that he did not have to search the car; he had seen the packets in plain view after Davis moved his hand in a downward motion toward the floorboard. McKenzie then communicated in code to Officer Scales that they should arrest the two suspects. Davis immediately fled, apparently realizing that he was about to be arrested.

With this evidence in mind, we turn to Davis' sole point of error: the district court erred in denying Davis' motion to suppress evidence "because there was [sic] insufficient facts to corroborate the anonymous telephone tip that was relied upon to create a reasonable suspicion that Davis was committing a crime." After considering the totality of Davis' argument, we conclude that the dispositive issue presented requires us to decide whether Officer McKenzie possessed sufficient reasonable suspicion to justify the investigative detention of the two suspects that began when McKenzie asked the driver to step out of the car.

INVESTIGATIVE STOPS AND DETENTIONS

Davis argues that Officer McKenzie made the investigative stop based solely upon an insufficiently corroborated anonymous tip. The State argues that during the course of a legitimate investigation, Officer McKenzie observed additional facts that not only corroborated the anonymous tip but also established the necessary basis for an investigative detention.

Circumstances short of probable cause for arrest may justify temporary detention for purposes of an investigation because a narrowly tailored investigation is not as intrusive upon personal liberty as an arrest. Schwartz v. State, 635 S.W.2d 545, 546 (Tex.Cr.App.1982); see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Dickey v. State, 716 S.W.2d 499, 503 n. 4 (Tex.Cr.App.1986). Occupants of an automobile are subject to a brief investigative stop, as are pedestrians. Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Cr.App.1978). When an officer is justified in believing a suspect is armed, the officer may take necessary measures to determine whether the suspect is in fact carrying a weapon and may neutralize the threat to the officer and others. Terry, 392 U.S. at 24, 88 S.Ct. at 1881.

In order to justify an investigative stop, the officer must have "specific articulable facts which, in light of his or her experience and personal knowledge, together with other inferences from those facts, would warrant" the stop. Schwartz, 635 S.W.2d at 547. The officer must also have a reasonable suspicion that activity out of the ordinary is occurring or has occurred, but if the activity is as consistent with innocent activity as with criminal activity, the stop and detention is unlawful. Id.

The reasonableness of an investigative detention turns on the totality of circumstances in each case. United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1880, 64 L.Ed.2d 497 (1980); Shaffer, 562 S.W.2d at 855. When analyzing the reasonableness of the detention, we look at several factors: (1) the public interest served by the detention; (2) the severity of the...