Derichsweiler v. State

• Decision Date: 26 January 2011
• Docket Number: No. PD–0176–10.,PD–0176–10.
• Parties: Mark DERICHSWEILER, Appellant,v.The STATE of Texas.
• Court: Texas Court of Criminal Appeals

348 S.W.3d 906

Mark DERICHSWEILER, Appellant,
v.
The STATE of Texas.

No. PD–0176–10.

Court of Criminal Appeals of Texas.

Jan. 26, 2011.

[348 S.W.3d 908]

David Wacker, Denton, for appellant.Charles E. Orbison, Asst.Crim. D.A., Denton, Jeffrey L. Van Horn, State's Attorney, Austin, for State.OPINION PRICE, J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY and COCHRAN, JJ., joined.

Over a dissent, a panel of the Fort Worth Court of Appeals in this case held

[348 S.W.3d 909]

that reasonable suspicion was lacking to believe that the appellant was about to commit a crime when the police detained him for investigative purposes.¹ The court of appeals held that the appellant's behavior, while admittedly odd, did not provide a specific, articulable basis to believe that he was engaged in or contemplating criminal activity. We granted the State's petition for discretionary review to address whether the court of appeals erred to require some indication of a specific criminal offense as a necessary component of reasonable suspicion. We will reverse the judgment of the court of appeals.FACTS AND PROCEDURAL POSTURE In the Trial Court

The appellant was indicted for felony driving while intoxicated. At the punishment phase of trial, the jury found that he had twice before been convicted of a felony and assessed his punishment at forty-seven years in the penitentiary. Prior to trial, the appellant filed a motion to suppress evidence obtained as a product of his arrest, which occurred in the parking lot of a Wal–Mart in Lewisville. He claimed that the police lacked reasonable suspicion initially to detain him, which rendered any product of his subsequent arrest for DWI inadmissible. The parties adduced evidence relevant to the legality of the detention during both a pre-trial hearing on the appellant's motion to suppress and the guilt phase of the appellant's trial. Combined, that evidence showed the following.

At approximately 8:00 p.m., after dark on New Years Eve, December 31, 2006, Joe Holden and his wife, Joanna, were in the drive-thru lane at McDonald's. Joanna, who was behind the wheel, noticed that a man she did not know had pulled up beside them in a car. She described this man as “[j]ust kind of grinning and just being stopped beside us ... and looking straight at us [, which] just didn't seem normal to me.” The man lingered for between thirty seconds to a minute before driving on. Having placed their order, the Holdens were asked to pull out of the drive-thru lane while their food was being prepared. When they did so, both Joe and Joanna noticed that the same stranger had positioned his car to the front of theirs and was again grinning and staring at them. This seemed to last for fifteen to twenty seconds, after which the man circled the restaurant and then pulled up behind, and to the left side of, the Holdens' car, “not quite blocking [them] in.” He renewed his grinning and stared at them for about the same duration, maybe a little longer. ² The Holdens felt “threatened” and “intimidated” by the man's peculiar conduct. They suspected that there might be a robbery in progress or that they were themselves being sized up or “stalked.” ³ Joanna insisted

[348 S.W.3d 910]

that Joe call 911 and report the encounter. As Joe did so, the grinning man left the McDonald's and drove into the parking lot of the adjacent Wal–Mart. The Holdens observed him engage in what appeared to be similar conduct, pulling up beside at least two parked cars in the Wal–Mart parking lot and tarrying there, although they could not see what the man was doing from that distance in the darkness. Joe relayed to the 911 dispatcher:

who I was, and as I started to tell him why we were calling, my wife started giving me the description of the car and the license plates. I gave that to dispatch and told them that there was—I don't remember the exact words, but basically there was some suspicious behavior with the vehicle. And, you know, kind [of?] what they had done.⁴

Joe continued to describe the man's activity in the Wal–Mart parking lot to the dispatcher until the police arrived and converged on the car that he had described.⁵ The dispatcher asked them to remain on the scene, and a short time later they talked with one of the officers, giving him their contact information.

Officer Carraby of the Lewisville Police Department, fresh out of the academy with less than a year's experience on the force, received a computer message from his dispatcher about a suspicious car that was “circling the parking lot of Wal–Mart and McDonald's.” Supplied with the make, model, color and license plate number of the suspicious car, Carraby spotted it right away as it drove down one side of the Wal–Mart parking lot and pulled into a space. Carraby acknowledged that the only information he had to base reasonable suspicion on was the dispatcher's broadcast that a citizen by the name of Joe Holden was reporting a suspicious vehicle. The dispatcher did not pass along the details that had served to raise the Holdens' suspicions.⁶ After the police “surrounded” the car,⁷ Carraby approached it and “contacted”

[348 S.W.3d 911]

the driver, whom he identified in court as the appellant. When the appellant rolled down the driver's side window, Carraby “smelled a strong odor of alcoholic beverage coming from the vehicle,” and he began a DWI investigation that culminated in the appellant's prosecution.

After trial, the trial court entered written findings of fact and conclusions of law with respect to the legality of the appellant's detention. Not all of the trial court's findings are supported by the record.⁸ However, the following findings of fact do find record support:

1. On December 31, 2006, around 8:00 p.m., Joe Holden and his wife Joanna observed the [appellant] driving around the parking lot of McDonalds located in Lewisville, TX. The [appellant] was parking next to their vehicle for short periods of time, staring and grinning at the Holdens. The Holdens did not know the [appellant];

2. Joe Holden and his wife Joanna had called 911 and reported the [appellant's] odd behavior and fear that the [appellant] might be about to commit an unknown crime against them or someone else;

* * *

6. The Holdens provided 911 with detailed description of the [appellant's]

[348 S.W.3d 912]

vehicle to include the make, model, color, and complete license plate number of his car;

7. When Officer Carraby arrived at the scene after receiving the Holden's information from dispatch, he observed [the car they had described] driving through the Wal–Mart parking lot. This information corroborated the specific description provided to dispatch by Joe Holden;

8. The Holdens remained on the scene after the Lewisville police arrived, thereby placing themselves in a position to be held accountable for their report[.]

From these facts, and reasoning from the opinion of this Court in Bobo v. State,⁹ the trial court concluded:

Like the officer in Bobo, Officer Carraby was presented with information by an identified informant of an individual's suspicious activity but no specific criminal act. Officer Carraby was able to identify the [appellant's] vehicle from the specific description provided to him by the Holdens at the location they reported, thereby corroborating the tip he had received. Based on Officer Carraby's testimony, he clearly had reasonable suspicion to detain the [appellant] to investigate his suspicious behavior and possible involvement in criminal activity.On appeal, the appellant argued that the trial court erred in denying his motion to suppress. Over the dissent of one of its members, a panel of the court of appeals agreed.¹⁰

In the Court of Appeals

The court of appeals acknowledged case law from this Court holding that probable cause (if not reasonable suspicion) may be judged by the sum of information known to the police, collectively, at the time of a warrantless arrest.¹¹ Nevertheless, the court of appeals initially measured reasonable suspicion in this case “by looking at only those facts known to Officer Carraby” at the time he detained the appellant,¹² apparently discounting the specific information that the Holdens supplied to the dispatcher during the 911 call. Because Carraby did not personally observe any criminal behavior, and because the behavior that Carraby did observe—the appellant “circling” the Wal–Mart parking lot at 8:00 p.m.—while it may not have been “normal,” does not specifically suggest criminal conduct per se, the court of appeals concluded that he lacked reasonable suspicion to justify the detention.¹³ Along the way, the court of appeals distinguished Bobo, upon which the trial court had relied, by observing that the information that had been known to the detaining officer there specifically suggested that the offense of criminal trespass had been committed.¹⁴

Alternatively, the court of appeals held that, even considering the specific information

[348 S.W.3d 913]

that the Holdens had observed and imparted to the 911 dispatcher, but which was never passed along to Carraby, as part of the totality of the circumstances known collectively to the police, reasonable suspicion was still lacking to support the appellant's detention.¹⁵ Nothing that the Holdens observed “could be described as criminal activity [.]” ¹⁶ For this reason, the court of appeals held, the Holdens' information could not serve to supply the deficits in Carraby's personal observations that would complete the scenario for reasonable suspicion, even under the totality of the circumstances.¹⁷

Justice Gardner disagreed. She argued in dissent that the majority erred to require, as a prerequisite to reasonable suspicion, that the information making up the totality of the circumstances must include some specific observation of a crime.¹⁸ Like the trial court, she believed our opinion in Bobo to be controlling and disagreed with the majority's contention that the defendant in Bobo had...