Klare v. State

• Decision Date: 07 March 2002
• Docket Number: No. 14-00-00481-CR.,14-00-00481-CR.
• Parties: Marvin Wayne KLARE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 68

Marvin Wayne KLARE, Appellant, v. The STATE of Texas, Appellee.

No. 14-00-00481-CR.

Court of Appeals of Texas, Houston (14th Dist.).

March 7, 2002.

Discretionary Review Refused July 31, 2002.

Shannon T. Nash, Kim H. Tolleson, Spring, for appellants.

William J. Delmore, III, Houston, for appellees.

Panel consists of Chief Justice BRISTER and Justices FOWLER and SEYMORE.

MAJORITY OPINION

WANDA McKee FOWLER, Justice.

Appellant Marvin Wayne Klare was convicted of driving while intoxicated, sentenced to one-year confinement probated for two years, fined, and placed on community supervision. Appellant brings three issues on appeal: (1) whether the arresting officer had probable cause to stop appellant's vehicle and detain him; (2) whether the arresting officer had reasonable suspicion to stop, detain, and investigate appellant; and (3) whether the arresting officer properly stopped appellant under the community care-taking function. Finding lack of reasonable suspicion to detain appellant, we reverse the judgment of the trial court.

Factual and Procedural Background

At a pretrial suppression hearing, appellant argued that his arrest was without probable cause or reasonable suspicion and asked the trial court to suppress evidence obtained as a result of his allegedly illegal arrest. Complaining that his rights were violated under the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution, appellant appeals the trial court's denial of his motion to suppress.

While on routine patrol at 2:30 a.m. on December 11, 1999, Tomball Police Officer, Corporal Gene Whitenack, stopped appellant's vehicle and arrested him. Officer Whitenack first spotted appellant's vehicle as Officer Whitenack was traveling down Highway 249 at approximately 50 miles per hour. Appellant's vehicle was parked off the highway behind a strip shopping center, facing a 24-hour convenience store. Officer Whitenack admitted that when he first spotted appellant's white pick-up truck, he could not determine the make or model of the vehicle or whether it was occupied. But, because he found the parked vehicle suspicious, Officer Whitenack exited the highway and circled back to investigate further. During that time, he lost sight of the vehicle for about fifteen seconds, as his view was obstructed by the shopping center. When Officer Whitenack turned into the back parking lot of the shopping center, he discovered that the vehicle was gone. He then proceeded onto the adjoining road, and within 15 to 20 seconds, came upon a vehicle that he believed to be the one previously parked at the shopping center. It was at this time Officer Whitenack turned on his emergency lights, pulled appellant's vehicle over, and arrested appellant.

At the suppression hearing, Officer Whitenack testified that he had eight years of experience as a peace officer, and in his belief, it was unusual for a vehicle to be parked behind the shopping center at that time of the morning. When questioned by the State, he simply stated that the "time of day" aroused his suspicion about the vehicle, and as such, he wanted to "I.D." the occupant. Officer Whitenack also said there had been "problems with burglary in the past" at that location, but he did not claim that it was a high-crime area. Under cross-examination, Officer Whitenack admitted that appellant committed no traffic violations, and that appellant's driving was not unusual. Officer Whitenack also testified that he had received no recent reports of any crimes committed in the area, at or near the shopping center. Nor could Officer Whitenack answer affirmatively that he had any reason to believe that a crime had been committed or was about to be committed by someone in the parked vehicle. Instead, he claimed he did not see anyone in the vehicle, but because of the time of day and location of the vehicle, "[i]t raised my curiosity as far as suspicion goes." Alternatively, Officer Whitenack claims he was concerned that the vehicle may have experienced a mechanical breakdown, and that the usual procedure under such circumstances is to "check out the vehicle."

In sum, the officer cites the following reasons which, in his belief, permitted him to stop appellant's vehicle: (1) the time of day; (2) the businesses in the shopping center were closed; (3) there had been burglaries at the shopping center in the past, though he did not say how recent or how many; (4) he wanted to identify the truck; and (5) he was concerned that the vehicle may have been broken down and someone inside may have needed assistance, thereby entitling him to make a stop pursuant to the community care-taking exception to lack of probable cause.

Standard of Review

Although great weight should be given to the inferences drawn by the trial judge and law enforcement officers, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). In Ornelas v. United States, the U.S. Supreme Court stated, "the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles." 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). If the trial court does not make explicit findings of historical fact, as here, we review the evidence in a light most favorable to the trial court's ruling, while reviewing de novo the lower court's application of the relevant Fourth Amendment standards. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000).

Reasonable Suspicion

Both federal and state law permit police officers to stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22-26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989).¹ Accordingly, the individual officer must have 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." Terry, 392 U.S. at 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889; Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). An appeals court looks to the totality of the circumstances to determine whether a stop is supported by reasonable suspicion. U.S. v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997); Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978). The police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer's experience, create a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 27, 88 S.Ct. at 1880, 1883; United States v. Juvenile T.K., 134 F.3d 899, 902 (8th Cir.1998); Woods, 956 S.W.2d at 38.

The prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle, U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), United States v. Brignoni-Ponce, 422 U.S. 873, 880-81, 95 S.Ct. 2574, 2579-80, 45 L.Ed.2d 607 (1975), although one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy in one's residence. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084-85, 49 L.Ed.2d 1116 (1976). Still, an officer may not detain a motorist without a showing of reasonable suspicion, a particularized and objective basis for suspecting the particular person of criminal activity. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95. "Some quantum of individualized suspicion is usually a prerequisite to a constitutional search and seizure." Martinez-Fuerte, 428 U.S. at 560-61, 96 S.Ct. at 3084; Terry, 392 U.S. at 21 & n. 18, 88 S.Ct. at 1880. The detaining officer must point to something that would lead a reasonable person to believe that the detainee was engaged in a criminal act. Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App. 1992). Innocuous conduct alone does not justify an investigatory stop for which reasonable suspicion is required unless there is other information or surrounding circumstances of which the police are aware. United States v. Sigmond-Ballesteros, 247 F.3d 943, 949 (9th Cir.2001). The validity of a seizure is a dual inquiry: whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances that justify the interference in the first place. United States v. Zucco, 71 F.3d 188, 190 (1995); Worthey v. State, 805 S.W.2d 435, 436 (Tex.Crim.App.1991). A warrantless arrest made without reasonable suspicion or probable cause cannot be justified by evidence seized as a result of the arrest. Colston v. State, 511 S.W.2d 10, 13 (Tex. Crim.App.1974).

Although neither party disputes this, we mention at the outset that the stop began as an investigative detention. See Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (stating that a traffic stop is a Fourth Amendment seizure analogous to a temporary investigative detention); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979) (defining a traffic stop as a seizure, implicating the Fourth and Fourteenth Amendments); Dickey v. State, 716 S.W.2d 499, 503 n. 4 (Tex.Crim.App.1986) (stopping a vehicle and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment). A seizure has occurred when a reasonable person would believe he or she was not free to leave. Garza, 771 S.W.2d at 558; Hernandez v. State, 963 S.W.2d 921 (Tex.App.-San Antonio 1...