Holladay v. State, 813-88

• Decision Date: 06 March 1991
• Docket Number: No. 813-88,813-88
• Citation: 805 S.W.2d 464
• Parties: Douglas Eugene HOLLADAY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 464

805 S.W.2d 464

Douglas Eugene HOLLADAY, Appellant, v. The STATE of Texas, Appellee.

No. 813-88.

Court of Criminal Appeals of Texas,

En Banc.

March 6, 1991.

James M. Murphy, Dallas, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr. and Mark Vinson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted upon his guilty plea of possession of a controlled substance, cocaine, weighing less than 28 grams including adulterants and dilutants. V.T.C.A. Health & Safety Code § 481.115. Pursuant to a plea bargain, the trial court assessed appellant's punishment at 7 years confinement in the Texas Department of Corrections ¹, probated, and an $1,800.00 fine. Appellant raised one point of error in the court of appeals contending the trial court erred in overruling his motion to suppress the cocaine which he alleged was illegally seized. The court of appeals affirmed appellant's conviction, implicitly holding appellant was not detained for Fourth Amendment purposes. Holladay v. State, 755 S.W.2d 501, 505 (Tex.App.--Houston [14th Dist.] 1988). We granted appellant's petition for discretionary review to determine "[w]hether the Court of Appeals properly followed and applied this Court's decision in Daniels v. State, 718 S.W.2d 702 (Tex.Crim.App.1986), and the United States Supreme Court decision of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), in affirming Petitioner's conviction". ²

Appellant filed a motion to suppress claiming the cocaine was seized in violation of the Fourth Amendment to the United States Constitution and Art. I, § 9 of the Texas Constitution. Testifying at the hearing on the motion were appellant and Officer Burnias of the Houston Police Department's Narcotics Division, who effected appellant's arrest. A recitation of the facts developed at this hearing is necessary to the disposition of this petition. We find the court of appeals has adequately summarized the facts, and we liberally quote therefrom:

... On May 22, 1986, Officer Burnias and Officer Gann were on a narcotics detail at Hobby Airport in Houston when they observed appellant and Miles arrive on a flight from Miami. Both appellant and Miles appeared to be nervous. Burnias, who was in plainclothes, walked next to appellant and asked permission to speak to him, and appellant consented. As the two continued to walk, Burnias showed appellant his police identification card. He did not tell appellant that he was conducting an investigation, nor did Burnias tell appellant that he was a narcotics officer. Burnias asked appellant if he had arrived in Houston on a flight, and appellant responded that he had not. Appellant then stopped and turned to Burnias; the officer again asked appellant if he had just arrived in Houston, and he repeated that he had not. The officer asked appellant if he could see his plane ticket, and appellant responded that he had not purchased one. Burnias also asked appellant 'if he knew Mr. Miles or if he was traveling with him and he denied knowing him or even traveling with him.' Appellant was told that Miles had admitted to knowing him, ³ and appellant let out two sighs as if 'he had been had.'

At this time, Burnias asked appellant for some identification; appellant, his hands trembling, handed the officer his driver's license. Burnias then asked permission to look in appellant's carry-on bag informing him that 'he had the right to refuse to look into his bag. He told us there was nothing to hide, that I could look inside.' Two plane tickets were found in the bag; only one of the tickets apparently bore the correct name. Burnias asked appellant for permission to conduct a pat down search of him informing appellant that he did not have to allow the search. Appellant consented to the search, and then turned and put his hands against the wall. Burnias told appellant to take his hands down, told him that he was free to leave, and that he was given permission to do so. Appellant still consented to the search. A pat down search was conducted, and a bulge was detected in one of appellant's boots where a white powdery substance was found which later turned out to be cocaine. Appellant was never threatened with a search warrant, and Burnias did not display a weapon.

Holladay, 755 S.W.2d at 503.

In the court of appeals appellant relied on Daniels, 718 S.W.2d 702, a possession of a controlled substance case which is similar to this cause, to support his contention that the cocaine was illegally seized and his motion to suppress should have been granted.

The appellant in Daniels arrived at Houston's Intercontinental Airport from a nonstop flight from Miami, a known source city for narcotics traffic according to one of the arresting officers. The officer concluded the appellant and another man were traveling together but were trying to conceal that fact because the two men deplaned separately but then made eye contact and proceeded down the concourse without speaking. Both men looked around "nervously" and "furtively as if trying to detect surveillance." Id. at 704. The two police officers followed the appellant and the other man to the baggage claim area where they were laughing and joking while Daniels waited for a suitcase. The two suspects, along with the officers, then took an elevator to the parking area where the suspects were approached and questioned individually. Officer Furstenfeld identified himself as a police officer conducting an investigation and asked to question Daniels, who consented. In response to questioning, Daniels said he was not traveling with the other man (Steve Bogden), produced a temporary driver's license bearing the name Thomas Daniels, and handed the officer a ticket folder with tickets made out to "G. Daniels" and "S. Bogden". Furstenfeld stated he was a narcotics officer, and Daniels "grew visibly more nervous at this news." Id. Daniels consented to a search of his luggage although Furstenfeld told him he did not have to consent and that he could require him to get a search warrant. Tablets were found and Daniels was arrested. Furstenfeld discovered cocaine on Daniels in the accompanying search of him.

There were two issues confronting this Court in Daniels: when did Furstenfeld have legally sufficient reason to detain Daniels, and when did he need it. The Court first noted that not all encounters between police and citizens invoke the protection of the Fourth Amendment, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 718 S.W.2d at 704. It is only when police questioning of a citizen becomes a detention that it must be supported by reasonable suspicion. Id. The Court found Daniels was not subject to a "detention" until Furstenfeld identified himself as a narcotics officer conducting an investigation and asked for Daniels' consent to search his suitcase. Id. at 706. Reasonable suspicion was therefore required to justify this stop.

There were several factors which aroused the officer's suspicion in the Daniels case:

(1) Daniels deplaned separately from Bogden but then made eye contact with him; Furstenfeld suspected they were traveling together but trying to conceal that fact;

(2) Daniels appeared nervous and looked behind him as he walked down the concourse;

(3) Daniels had arrived on a flight from Miami;

(4) Daniels grew visibly more nervous when Furstenfeld identified himself as a narcotics officer;

(5) Daniels' driver's license identified him as Thomas Daniels while his plane ticket was in the name G. Daniels; and

(6) Daniels denied traveling with Bogden but was carrying two plane tickets, and Furstenfeld had seen the two men together.

The Court discussed the first three factors independently of the last three because those factors dealt with Furstenfeld's initial encounter with Daniels. The Court concluded these first three factors were not reasonable grounds for any level of suspicion. Id. at 705. The Court went on to say, however, that the officer needed no grounds for reasonable suspicion at the point of the initial encounter with Daniels because it is permissible for a police officer to approach a citizen and ask to speak with him. Id. There was no detention for Fourth Amendment purposes at that time.

The Court did find, however, a detention occurred for Fourth Amendment purposes when Furstenfeld asked to search Daniels' luggage; thus, reasonable suspicion was required to justify the search, and the Court addressed the remaining three factors which arose between the initial encounter and the detention. Again, the Court found the factors did not form a basis for reasonable suspicion. Id. at 707. The Court said nervousness when confronted by a police officer is as indicative of guilt as innocence. Id., citing Glass v. State, 681 S.W.2d 599, 602 (Tex.Cr.App.1984). The discrepancy in Daniels' name was of little consequence since it was only an initial and Daniels had paid for his ticket with a credit card bearing his correct name, the imprint of which appeared on the ticket. Finally, as to the sixth factor, the Court concluded "[e]ven if Furstenfeld's conclusion that [Daniels] was lying gave rise to a reasonable suspicion 'that some activity out of the ordinary is occurring or has occurred,' it was not a reasonable ground for concluding that the unusual activity was criminal or that [Daniels] was connected to the hypothetical crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex.Cr.App.1983)." Daniels 718 S.W.2d at 107. The Court thus held the stop of Daniels was illegal, the subsequent consent to search, whether valid or not, was fatally tainted by the illegal stop, and the evidence seized as a result of the illegal stop should have been suppressed. Id. at 708. ⁴

In finding appellant was not detained in the case sub judice, the court of appeals...