Garcia v State

• Decision Date: 07 October 1999
• Citation: 3 S.W.3d 227
• Parties: <!--3 S.W.3d 227 (Tex.App.-Houston 1999) JUAN LUIS GARCIA, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-97-00811-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 227

3 S.W.3d 227 (Tex.App.-Houston [14th Dist.] 1999)

JUAN LUIS GARCIA, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-97-00811-CR

In The Fourteenth Court of Appeals

October 7, 1999.

On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 740,134

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Fowler, Edelman, and Baird.^*

CORRECTED OPINION

Charles F. Baird Justice

Our opinion of August 19, 1999 is withdrawn, and we issue this corrected opinion.

After his pretrial motion to suppress evidence was overruled, appellant pleaded guilty to possessing more than fifty, but less than 2,000 pounds of marijuana. See TEX. HEALTH & SAFETY CODE ANN. 481.121(a), (b)(5) (Vernon Supp. 1999). Pursuant to a plea bargain agreement, the district court assessed punishment at imprisonment for five years. In his notice of appeal, appellant properly preserved for appellate review the overruling of his motion to suppress. See TEX. R. APP. P. 25.2(b)(3)(B). We reverse and remand.

I. Historical Facts

On the morning of December 12, 1996, Police Officer Larry Candelari of the narcotics division of the Pasadena Police Department received a telephone call from the Pasadena Police Department dispatcher. The dispatcher related that he had received an anonymous telephone call stating there was a quantity of marijuana in a trailer house at 2151 Shaver, No. 24 in Pasadena. Additionally, the reportee stated there was a red truck and a red vehicle at that location. As Candelari was not on duty, he contacted his supervisors and sought permission to establish surveillance at that location. Candelari received permission and proceeded to the location, which he knew to be a trailer park containing 40 to 50 trailers.

Candelari arrived at the trailer park at approximately 7:00 a.m. and observed a red pickup truck and a blue Oldsmobile parked in the driveway of trailer 24. Approximately 20 minutes later, Candelari saw a man exit trailer 24 and place a package/object into the pickup truck.¹ Candelari described the package/object as about a foot long, about ten inches wide and dark in color. From his experience and training, Candelari had seen bricks of marijuana of that approximate size. The man then placed a small child into the pickup truck and got into the driver's seat. An older man got into the passenger seat. The pickup truck left the trailer park.

Candelari followed the pickup truck and attempted to have it stopped by a marked Pasadena police unit. Because the truck drove out of Pasadena and into South Houston, however, Candelari asked that a South Houston police unit stop the pickup truck. A South Houston Police Officer had stopped the pickup truck when Candelari arrived. Candelari identified appellant as the driver of the truck. The package/object which Candelari suspected to be a brick of marijuana, was determined to be a football. Candelari asked appellant for consent to search his residence. Appellant agreed and signed a consent to search form. Although somewhat confused about how they returned to the trailer house, Candelari recalled that appellant was transported to trailer 24 in a Pasadena Police unit; the other man and the child followed in the pickup truck. In the search, Candelari recovered a sufficient quantity of marijuana in the trailer and the blue Oldsmobile to support the weight alleged in the indictment.

On cross-examination, Candelari stated that the anonymous tip neither named nor described appellant. The anonymous tip did not indicate any basis for the informant's knowledge about the marijuana. The anonymous tip did not give the make model, year, any distinguishing characteristics, or license plate number of the pickup truck or vehicle. The anonymous tip did not predict any future activity. Candelari stated that the reason appellant was stopped was "based upon that information that I had and the package that I saw [appellant] loading in the car. I had reason to believe that might be marijuana."

The State's second and final witness was South Houston motorcycle patrolman D.L. Sills. According to Sills, he was advised by his dispatcher "that Pasadena needed somebody to stop a vehicle." Responding to this request, Sills stopped appellant. After obtaining appellant's driver's license, Sills told appellant that a Pasadena Police officer wanted to talk to him.

Defense counsel attempted to call appellant to testify solely for the purpose of the motion to suppress. The trial court, however, ruled that the State's cross-examination would not be restricted. Upon receiving this ruling, the defense rested without calling any witnesses.² Defense counsel submitted a memorandum of law. Following the arguments of counsel, the trial court overruled the motion to suppress evidence.

II. Legality of the Detention

A. Standard of Review

Appellant contends the trial court erred in not suppressing the marijuana recovered from the trailer house and the blue Oldsmobile. In reviewing a ruling on a motion to suppress evidence, an appellate court must determine the applicable standard of review. In Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997), the Court of Criminal Appeals made clear that while appellate courts should afford almost total deference to the trial court's determination of the historical facts, mixed questions of law and fact not turning on an evaluation of credibility and demeanor are to be reviewed de novo. Id. at 88. Specifically, questions of reasonable suspicion and probable cause should be reviewed de novo on appeal. Id. at 87 (citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). This is so because "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Id. We now turn to the level of suspicion required to justify appellant's detention.

B. The Applicable Law--Reasonable Suspicion

In Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court recognized three categories of police-civilian interaction: (1) encounter; (2) temporary detention or stop; and (3) arrest. See also State v. Simmang, 945 S.W.2d 219, 222-23 (Tex. App.--San Antonio 1997, no pet.); Francis v. State, 896 S.W.2d 406, 408-09 (Tex. App.--Houston [1st Dist.] 1995), pet. dism'd, improvidently granted, 922 S.W.2d 176 (Tex. Crim. App. 1996).³ We know that of the three categories only investigative detentions and arrests amount to "seizures" of persons. See Terry, 392 U.S. at 19; Amores, 816 S.W.2d at 417 (Campbell, J. dissenting). In the instant case, we are confronted with the second category, an investigative detention.

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. See Terry, 392 U.S. at 22; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)("It is clear that circumstances short of probable cause may justify temporary detention for purposes of investigation."); Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App. 1991). To justify an investigative detention the officer must have reasonable suspicion. See Terry, 392 U.S. at 21; Davis, 947 S.W.2d at 242-43. Reasonable suspicion requires that the officer have specific articulable facts which, in light of his experience and personal knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the detainee for further investigation. See Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986); Garza, 771 S.W.2d at558; Simmang, 945 S.W.2d at 222. In determining the existence of reasonable suspicion, an objective standard is utilized: would the facts available to the officer at the moment of seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate. See Terry, 392 U.S. at 21-22; Davis, 947 S.W.2d at 243.

These "specific articulable facts" must create a reasonable suspicion 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. See Royer, 460 U.S. at 497; Garza, 771 S.W.2d at 558, Davis, 947 S.W.2d at 244; Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992); Harris v. State, 913 S.W.2d 706, 708 (Tex. App.--Texarkana 1995, no pet.). As the Terry Court noted: "Simple good faith on the part of the arresting officer is not enough...." 392 U.S. at 21-22.⁴ The officer making an investigative detention or stop must be able to articulate something more than an inchoate and unparticularized suspicion or hunch. See Terry, 392 U.S. at 27.⁵ United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). An investigative detention not based upon reasonable suspicion is unreasonable and, thus, violates the Fourth Amendment. See Davis, 947 S.W.2d at 243.

The reasonableness of an investigative detention turns on the totality of the circumstances in each case. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); Shaffer v. State, 562 S.W.2d 853, 855 (Tex. Crim. App. 1978); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.--Fort Worth 1995, pet. ref'd); Davis v. State, 794 S.W.2d 123, 125 (Tex. App.--Austin 1990, pet. ref'd). In this context, the United States Supreme Court has noted that reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by the police and its degree of reliability. Both factors, quantity and quality, are considered in the totality of the circumstances. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416-17, 110 L.Ed.2d 301 (1990); United...