Glenn v. State

• Decision Date: 31 March 1998
• Docket Number: No. 07-96-0011-CR,07-96-0011-CR
• Citation: 967 S.W.2d 467
• Parties: Ronnie Joe GLENN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 467

967 S.W.2d 467

Ronnie Joe GLENN, Appellant, v. The STATE of Texas, Appellee.

No. 07-96-0011-CR.

Court of Appeals of Texas Amarillo.

March 31, 1998.

Rehearing Overruled May 18, 1998 .

O'Shea & Forcum, P.C. (John J.C. O'Shea), Lubbock, for Appellant.

Lubbock County District Attorney (William C. Sowder, Sherry A. Phillips), Lubbock, for Appellee.

Before BOYD, C.J., and DODSON and QUINN, JJ.

DODSON, Justice.

From a guilty plea pursuant to a plea bargain, appellant Ronnie Joe Glenn was convicted of possession of less than twenty-eight grams of methamphetamine. Upon finding the indictment's single enhancement averment true, the court, honoring the plea agreement, assessed appellant's punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant contends the trial court erred in overruling (1) his motion to suppress evidence obtained after his illegal arrest, and (2) his motion for new trial. We affirm.

The evidence shows that appellant exited his apartment, went to his car and began to leave the area in his car when he was stopped by Lubbock police officers. The officers were acting on information they had concerning appellant's drug dealing activities and information received from an informant that appellant had amphetamines in his car and would shortly make a delivery of that controlled substance.

The appellant refused the officers' request for permission to search his vehicle. At that time, the officers detained the appellant in a patrol vehicle and requested the assistance of the department's officer in charge of the drug detection dog. When the officer arrived with the dog and began to work around the car, the appellant became upset and kicked a side door window out of the patrol car. At that time, the officers arrested the appellant and placed him in jail.

The dog gave an affirmative indication that drugs were in the vehicle. Thereafter, the officers obtained a search warrant, executed the warrant and found drugs in the appellant's vehicle.

In his first point of error, the appellant claims the trial court committed reversible error when it denied his motion to suppress evidence obtained after an illegal arrest. In this connection, the State contends that the appellant has waived error asserted by his first point because he has included both state and federal constitutional provisions and contentions without providing substantial argument or analysis on each separate state and federal constitution issue and contention.

To support its position, the State, in essence, relies on footnote 23 at pages 690-91 in Heitman v. State, 815 S.W.2d 681 (Tex.Cr.App.1991) where the court reiterated that when briefing constitutional issues, attorneys should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground to avoid the court overruling the ground as multifarious when insufficient distinction between state and federal constitutional grounds is not provided by counsel. Nevertheless, in essence, the court's suggested remedy was rebriefing.

In this instance, the primary issue presented by appellant's briefs is whether his detention was a de facto arrest rather than temporary investigative detention. After the decision in Heitman, the court in Davis v. State, 829 S.W.2d 218, 219 (Tex.Cr.App.1992), applied the federal investigative detention rules without a separate state analysis. We deem it unnecessary, as suggested in Heitman, to require additional briefs in this instance. The appellant has filed three briefs and the State one. We must determine the issues presented on the applicable state and federal law; therefore, we overrule the State's waiver contention.

We now proceed to the merits of the appellant's first point of error. Under this point of error the appellant claims that he was illegally arrested without probable cause, that the search of his automobile was the result of his unlawful arrest and, therefore, the evidence obtained from the search was inadmissible, as the fruits of his alleged illegal arrest. Nevertheless, the State claims that appellant's detention was an investigative detention based on articulable facts, that under the circumstances, the investigation was conducted in a diligent manner and without unreasonable delay, that the evidence was obtained under a lawfully issued search warrant (which was not challenged) and was admissible and that the trial court did not abuse its discretion by admitting the challenged evidence.

In determining whether the trial court abused its discretion, we will make a de novo review under the "totality of the circumstances test." See Guzman v. State, 955 S.W.2d 85, 87, 89, 91 (Tex.Cr.App.1997). Likewise, as stated in Guzman, "[e]ach search and seizure question must turn on the facts of that particular case." Id. at 90.

It is well established that circumstances short of probable cause will justify temporary detention for investigative purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex.Cr.App.1989) (where the Court of Criminal Appeals adopted the Terry standards). Under Terry, to justify investigative detention, the officers must have articulable facts which, based on their experience and personal knowledge, when coupled with logical inferences from those facts, would warrant the intrusion on the detainee. These facts must amount to more than a mere hunch, a guess or a vague suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex.Cr.App.1981). The articulable facts used by the officers must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to a crime or an offense. Garza v. State, 771 S.W.2d at 558.

In this instance, the appellant was stopped on an anonymous tip and other information known to the officers when they detained the appellant. An anonymous tip, standing alone, will usually justify the commencement of an investigation, but will seldom provide the reasonable suspicion necessary to authorize an investigative stop and detention. Glass v. State, 681 S.W.2d 599, 601 (Tex.Cr.App.1984). Nevertheless, that inadequacy may be compensated for by the corroborative efforts of police officials who verify the details of information supplied to them where such information is corroborated, it is accumulative of and tends to verify other information known to the officer concerning the detainees suspected of illicit activity. See Illinois v. Gates, 462 U.S. 213, 242-43, 103 S.Ct. 2317, 2334-35, 76 L.Ed.2d 527, 550-52 (1983).

An officer's prior knowledge, his experience, and his corroboration of the details of the tip may be considered in assigning weight to the tip. See Alabama v. White, 496 U.S. 325, 329-30, 110 S.Ct. 2412, 2415-16, 110 L.Ed.2d 301 (1990). In addition, the following are significant in determining whether reasonable suspicion exists for a temporary detention based upon information from an unknown tipster: (1) accurately predicting future behavior of third parties, id.; (2) corroboration of a detail linking the accused to the stated criminal activity, Ramirez v. State, 658 S.W.2d 808 (Tex.App.--Corpus Christi 1983), aff'd 672 S.W.2d 480 (Tex.Cr.App.1984); and (3) a particularized and objective reason to suspect the accused. Davis v. State, 829 S.W.2d 218, 221 (Tex.Cr.App.1992). Of course, where, as here, there has been cooperation between law enforcement officers, the total of all information known at the time of the detention may be considered in determining whether the basis of the action is adequate. Woodward v. State, 668 S.W.2d 337, 344 (Tex.Cr.App.1982).

When determining from a totality of the circumstances whether the officer had sufficient information (i.e., articulable facts to justify the stop) the Terry court cautioned against making too much of labels such as "stop" versus "arrest," because of the necessity to examine each level of police intrusion to assure that the intrusion is reasonable under the circumstances. Terry v. Ohio, 392 U.S. at 17, 88 S.Ct. at 1877. As the court stated in Francis v. State, 896 S.W.2d 406, 411 (Tex.App.--Houston [1st Dist.] 1995), pet. dism'd. improvidently granted, 922 S.W.2d 176 (Tex.Cr.App.1996), it is more useful to examine each progressive level of intrusion to determine if the intrusion is reasonable under the circumstances based on the information known to the officers at the time, rather than to focus on a particular segment of the transaction to see if the segment fits into a particular category of police intrusion. Focusing on a particular segment of the transaction rather than considering the totality of all the circumstances was condemned in Guzman v. State, 955 S.W.2d at 87.

The Francis court particularly warned against the use of inadequate standards to distinguish an arrest from a temporary investigative detention, such as: (1) whether one's liberty of movement has been restricted; (2) whether a person has been actually placed under restraint; and (3) whether a reasonable person would have believed that he was not free to leave.

The "liberty of movement restriction" language had its origin in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), nine years before Terry v. Ohio authorized investigative detention based on articulable facts. It arose at a time when arrest was the only category of seizure, and as suggested by the Francis court it is not an adequate standard for distinguishing between arrest and detention because detention is a characteristic common to both.

In Texas, "actual restraint" originated in article 15.22, Texas Code of Criminal Procedure, which provides that

a person is arrested when he has been actually placed under restraint or taken into...