Johnson v. State, 05-89-01086-CR

• Court: Court of Appeals of Texas
• Citation: 802 S.W.2d 325
• Docket Number: No. 05-89-01086-CR,05-89-01086-CR
• Parties: Ricardo Lloyd JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 27 November 1990

Page 325

802 S.W.2d 325 Ricardo Lloyd JOHNSON, Appellant,
v.
The STATE of Texas, Appellee. No. 05-89-01086-CR. Court of Appeals of Texas,
Dallas. Nov. 27, 1990.
Discretionary Review Granted
March 6, 1991.

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R. Kristin Weaver, John Nation, for appellant.

Robert P. Abbott, for appellee.

Before WHITHAM, ROWE and THOMAS, JJ.

OPINION

THOMAS, Justice.

The trial court convicted Ricardo Lloyd Johnson of aggravated possession of cocaine with intent to deliver and assessed punishment at fifty years' confinement. In two points of error, Johnson complains that: (1) the trial court erred in overruling his motion to suppress because police officers lacked probable cause to make a warrantless arrest and because police officers had insufficient specific articulable facts to justify a temporary investigative detention; and (2) the sentence imposed in this cause is constitutionally excessive. Because we sustain the first point, we do not reach the

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second point. The trial court's judgment is reversed and the cause is remanded for further proceedings. FACTUAL BACKGROUND

Dallas Police Officer Charles Ray Bailey testified that at about 1:45 p.m. he and his partner, Officer Clifford E. Lewis, decided to conduct a foot patrol of an apartment complex located in a high-crime area noted for drug transactions, some occurring in public view. The officers approached a breezeway, and Bailey heard someone say that "there was a large stash of marijuana being kept in a house somewhere." Bailey heard two distinctive voices discussing the matter, but he could not see any of the persons in the breezeway. Bailey did not recall anything else being said during the conversation. When Bailey and Lewis walked around the corner of the breezeway, Johnson and two other men immediately began to run. Bailey chased Johnson because he noticed Johnson carrying a "purplish thing," later identified as a Crown Royal bag. During the chase, Bailey twice ordered Johnson to stop running. Bailey noticed Johnson fumbling with what appeared to be a handgun, twice ordered Johnson to drop the weapon, and drew his own weapon in response. Shortly thereafter, the Crown Royal bag and the weapon became dislodged or were dropped by Johnson. Lewis appeared, arrested Johnson, and recovered a loaded 9 mm pistol and the Crown Royal bag containing 162 envelopes of suspected contraband, ¹ a small amount of marijuana, and $1,454. Bailey testified that, in his experience, handguns are used during drug transactions and that, before he entered the breezeway, it was reasonable to suspect that someone might be armed.

Lewis testified that, while conducting a patrol of an apartment complex in a high-crime area, he overheard a conversation in a breezeway "about a stash [of marijuana] that someone had somewhere." Lewis could not see who was talking, but he heard two voices. When Lewis and Bailey entered the breezeway three men began to run; the officers pursued only Johnson. During the chase, Lewis observed Johnson fumbling with a gun. Johnson dropped the weapon after the second warning. Lewis further testified that, prior to entering the breezeway, he thought that he had sufficient grounds to make an investigatory detention and that, once Johnson began to run, he was not free to leave the area.

Johnson filed a pre-trial motion to suppress. Because trial was before the court, the trial judge agreed to rule on Johnson's motion at the close of the evidence at the guilt/innocence phase of trial. The trial court overruled Johnson's motion, stating that the officers were entitled to detain and subsequently to arrest and search Johnson.

MOTION TO SUPPRESS

In the first point, Johnson complains that the trial court erred in overruling his motion to suppress because the police officers lacked probable cause to make a warrantless arrest and because the police officers had insufficient specific articulable facts to justify a temporary investigative detention. The State argues that Johnson's flight upon seeing police, combined with his possession of the Crown Royal bag and the overheard discussion of marijuana, were sufficient to momentarily detain Johnson. The State further asserts that Johnson's abandonment of the weapon and the Crown Royal bag containing drugs supplied probable cause for Johnson's arrest.

Not all encounters between police and citizens invoke the protection of the Fourth Amendment. Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Law enforcement officers do not

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violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Royer, 460 U.S. at 497-98, 103 S.Ct. at 1323-24. He may not be detained even momentarily without reasonable, objective grounds for doing so, and his refusal to listen or answer does not, without more, furnish those grounds. Royer, 460 U.S. at 498, 103 S.Ct. at 1324. When questioning becomes a detention, however brief, it must be supported by reasonable suspicion. Daniels, 718 S.W.2d at 704. Even a brief investigatory stop must be based on specific, articulable facts which, in light of the police officer's experience and general knowledge, together with rational inference from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App.1987); Stone v. State, 703 S.W.2d 652, 654 (Tex.Crim.App.1986). A mere hunch is insufficient. There must be a reasonable suspicion by the officer 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. Hoag, 728 S.W.2d at 380; Stone, 703 S.W.2d at 654. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).

The State concedes in its brief that Johnson was seized when Bailey ordered him to stop running. Bailey and Lewis knew the following facts when they seized Johnson. The officers were patrolling a high-crime area known for drug transactions. They overheard an unseen man in a breezeway state that someone had a large stash of marijuana somewhere. When the officers entered the breezeway, three men immediately ran. Johnson was carrying a "purplish thing," later identified as a Crown Royal bag. We first must determine whether these facts gave rise to reasonable articulable suspicion connecting Johnson to an unusual activity that was related to a crime that was about to occur, that was occurring, or that had occurred.

First, Bailey and Lewis heard an unidentified person in a breezeway say that someone had a large stash of marijuana somewhere. This vague conversation was insufficient to give Bailey and Lewis reasonable suspicion that Johnson or anyone else in the breezeway was at that time or at any time in the past...