In the Matter of R. S. W., No. 03-04-00570-CV (TX 3/9/2006)
| Decision Date | 09 March 2006 |
| Docket Number | No. 03-04-00570-CV.,03-04-00570-CV. |
| Parties | IN THE MATTER OF R. S. W. |
| Court | Texas Supreme Court |
Appeal from the District Court of Travis County, 98th Judicial District, No. J-24,543, Honorable W. Jeanne Meurer, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices PEMBERTON and WALDROP.
R.S.W., a juvenile, was adjudicated delinquent following his plea of true to possession of marihuana in an amount of two ounces or less. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West 2003). The marihuana was discovered by a law enforcement officer during a late-night encounter with R.S.W. in a park subject to a dusk-to-dawn curfew. R.S.W. appeals from the district court's denial of his motion to suppress evidence of the marihuana. See Tex. Fam. Code Ann. § 56.01(n)(2) (West 2002). In two issues, R.S.W. argues that the district court erred because the officer discovered the marihuana by (1) initiating an illegal investigatory detention and Terry frisk1 founded on the officer's "mere hunch" that R.S.W. was engaged in criminal activity; and (2) exceeding the permissible scope of a Terry frisk and conducting a search without probable cause. We will affirm the judgment.
The sole witness at the suppression hearing was Keith Kinnard, Senior Deputy with the Travis County Sheriff's Department. Kinnard described both his experience in law enforcement —he was a twelve-year veteran of the department and served as a field training officer2 —and his experience with R.S.W. in particular. Kinnard recounted that R.S.W. had been frequently associated with criminal activity and that "[w]e have numerous dealings with [R.S.W.]," to an extent that Kinnard knew R.S.W. and could recognize him on sight. Kinnard also had been to R.S.W.'s house, and explained that R.S.W. lived in an area near Howard Lane that had suffered an "influx of crime," mostly "juvenile related," to a degree that the local municipal utility district had contracted with the sheriff's department "so we could put more people in the area to suppress some of this criminal activity."
During the night of April 17, 2004, another sheriff's deputy, Terry Peterman, had responded to a call involving a group of juveniles, including R.S.W., who were seen smoking marihuana.3 Peterman contacted Kinnard, who "[b]ecause of the heavy criminal involvement in the area," proceeded to assist Peterman in patrolling the area. The area to be patrolled included three subdivisions near Howard Lane. While Peterman patrolled the area streets in a vehicle, Kinnard began walking a hike-and-bike trail connecting the three subdivisions.
At approximately 11:30 p.m., Kinnard observed R.S.W. walking along the trail. Kinnard testified that the area was subject to a dusk-to-dawn curfew. He added that the location where he encountered R.S.W. was far from where R.S.W. lived. Kinnard also indicated that the area was not well-lit; it was "very dark." Deputy Kinnard recounted that R.S.W. was wearing an oversized red athletic jersey and a hood—during what Kinnard indicated was a warm evening. Kinnard indicated that such out-of-place attire was commonly worn by juveniles in gangs. He added that gang members frequently carried weapons.
Kinnard asked R.S.W. about "where he's been, where he was going, so forth." R.S.W., Kinnard recounted, was "very surprised to see me," and appeared nervous and was shaking, even though it was not a cold night. R.S.W. had his hands in the oversized jersey. For his safety, Kinnard asked R.S.W. to remove his hands from the jersey, and Kinnard proceeded to "frisk" R.S.W. Kinnard explained that he did so to ensure that R.S.W. did not have a weapon.
Kinnard explained what happened next:
On redirect examination, Kinnard emphasized that R.S.W. was "asked, and not told" to empty his pockets. After Kinnard asked R.S.W. what was in his pocket and R.S.W. admitted it was marihuana, Kinnard proceeded to arrest R.S.W. and confiscated a small, compact baggy containing what proved to be marihuana.
The district court overruled R.S.W.'s suppression motion and subsequently made findings of fact and conclusions of law. R.S.W. was adjudicated delinquent and placed on probation for six months. This appeal followed.
In two issues on appeal, R.S.W. asserts that his motion to suppress was improperly denied because: (1) R.S.W. was illegally detained based on a "mere hunch" by Officer Kinnard; and (2) the search of R.S.W.'s pocket exceeded the permissible scope of a Terry frisk.
Standard of review
In an appeal of a trial court's ruling on a motion to suppress, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The district court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it may choose to believe or disbelieve any or all of a witness's testimony. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000); Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
A ruling on a motion to suppress in a juvenile case is reviewed using the same bifurcated standard that applies to such motions in adult criminal cases. See In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002).4 We review de novo the juvenile court's application of the law of search and seizure and probable cause. See Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). However, we must give almost total deference to the juvenile court's findings of historical fact, especially where the court's findings are based on an evaluation of witness credibility and demeanor. See Guzman, 955 S.W.2d at 89. At a suppression hearing, the juvenile court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
We must sustain the court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim. App. 2005) (quoting State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In this case, the district court entered findings of fact and conclusions of law. We give almost total deference to the district court in reviewing findings of fact because the district court is in a better position to evaluate the credibility and reliability of witnesses. Guzman, 955 S.W.2d at 89. However, we review de novo the district court's application of law to those facts when the conclusion, such as the existence of reasonable suspicion, does not turn on witness credibility. Ornelas v. United States, 517 U.S. 690, 697-98 (1996); Guzman, 955 S.W.2d at 87.
Justification for the Terry stop
In his first issue on appeal, R.S.W. asserts that he was detained on nothing more than a "mere hunch." We disagree. The Supreme Court has recognized three distinct types of police — citizen interactions: (1) arrests, which must be supported by probable cause, see Brown v. Illinois, 422 U.S. 590, 601, 95 S.Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) brief investigatory stops, which must be supported by reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, at 25-26 (1968); and (3) brief encounters between police and citizens, which require no objective justification, see Florida v. Bostick, 501 U.S. 429, 434 (1991). Police may approach and question an individual in a public place without implicating the Fourth Amendment's protections. United States v. Drayton, 536 U.S. 194 (2002); Bostick, 501 U.S. at 434; Florida v. Royer, 460 U.S. 491, 497-98 (1983). Even when law enforcement officers have no basis for suspecting a particular person of wrongdoing, they may ask questions as long as they do not "induce cooperation by coercive means." Drayton, 536 U.S. at 201. If a reasonable person would feel free to terminate the encounter, then he has not been seized. Id. Of those three types of encounters, we believe Deputy Kinnard's detention of R.S.W. was nothing more than a brief investigatory stop. An investigatory detention is justified if, based upon the totality of the circumstances, the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). These facts must amount to more than a mere hunch or suspicion. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). This standard is an objective one—there need only be an objective basis for the stop. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The subjective intent of the officer conducting the stop is irrelevant. Id. The burden is on the State to elicit testimony of sufficient facts to create a reasonable...
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