Rhodes v. State

• Citation: 913 S.W.2d 242
• Decision Date: 29 December 1995
• Docket Number: No. 2-94-529-CR,2-94-529-CR
• Parties: Bobby Cornelious RHODES, Appellant, v. The STATE of Texas, State.
• Court: Court of Appeals of Texas

Page 242

913 S.W.2d 242

Bobby Cornelious RHODES, Appellant, v. The STATE of Texas, State.

No. 2-94-529-CR.

Court of Appeals of Texas,

Fort Worth.

Dec. 29, 1995.

Terry M. Casey, Casey & Colosi, Fort Worth, for appellant.

Tim Curry, Criminal District Attorney, Betty Marshall, Asst. Chief Appellate Div., Chuck Mallin, Asst. Chief Appellate Div., C. James Gibson, Asst. Crim. Dist. Attorney, Bill Durkin, Asst. Crim. Dist. Attorney, Fort Worth, for appellee.

Before DAY, BRIGHAM and HOLMAN, JJ.

OPINION

BRIGHAM, Justice.

A jury convicted appellant Bobby Cornelious Rhodes of possession of a controlled substance with intent to deliver and assessed punishment at ninety-nine years in prison. Rhodes brings two points of error: (1) the trial court erred in overruling his motion to suppress; and (2) the evidence was insufficient to show that Rhodes possessed a controlled substance with intent to deliver. We affirm the trial court's judgment.

FACTS

Shortly before 11:00 p.m. on April 20, 1994, Fort Worth Police Sergeant McGuirk and Officer Shunk, who were assigned to the gang task force patrol on Fort Worth's east side, saw a 1983 model, four-door Oldsmobile backing through an intersection near the 4000 block of Fitzhugh, a high-crime area known for gang activity. Officer Shunk, who was driving the patrol car, turned on his overhead lights to stop the Oldsmobile for the traffic violation. The Oldsmobile accelerated down San Rose and turned west on Forbes.

Sergeant McGuirk testified, and Officer Shunk confirmed, that the passenger door of the Oldsmobile opened and that the passenger dropped a Crown Royal bag onto the street. Officer Shunk slowed the patrol car, and Sergeant McGuirk opened his door, grabbed the Crown Royal bag, and dropped it on the floorboard of the patrol car without looking in it, although he suspected that it contained narcotics contraband. Officer Shunk agreed with Sergeant McGuirk's suspicion. Both Sergeant McGuirk and Officer Shunk testified that from their experience, Crown Royal bags are frequently used to carry narcotics.

The police continued their pursuit of the Oldsmobile and even turned on their siren because the Oldsmobile accelerated after the Crown Royal bag had been dropped. Eventually, the Oldsmobile stopped in a northbound lane of Donnelly. The driver opened his door and fled through a nearby residential area, and Officer Shunk chased him on foot. Rhodes, who was on the passenger side, remained in the car. Sergeant McGuirk ordered Rhodes to get out of the car. When asked, Rhodes gave his name to Sergeant McGuirk, but he said that he did not know who the driver was.

Sergeant McGuirk said that he was concerned about his safety and the safety of his partner, who was chasing the driver, so he handcuffed Rhodes and began walking Rhodes to the patrol car:

[PROSECUTOR]: Why did you handcuff him?

A. Well, I was concerned about my safety. I was concerned about the officer's safety that was on foot in pursuit of the another [sic] individual and I didn't want to worry about having to have this gentleman here loose while I was concerned about the safety of the other officer that was on foot pursuit. We were in--it was nighttime. We were in a high-crime area. They had been--to me, it was suspicious activity what had been going on, ...

....

A. I felt a suspicious--or I thought their activity was very suspicious and I was concerned about their activity and I was concerned about the safety of the other officer that was pursuing the driver.

Officer Shunk testified in similar fashion:

Q. How would you--would you classify that situation as a potentially dangerous situation when you're running after one guy and you have one officer there?

A. Potentially volatile, yes, sir, I would.

Q. And is that a standard procedure to handcuff a guy for everybody's safety until things settle down?

A. Taking into account what had transpired prior to the stop, the area that we were at, the conditions, lighting conditions, and the officer by himself, yes, sir, that is potentially dangerous. And for officer's safety, that's what we're taught to do.

At the motion to suppress hearing, Sergeant McGuirk explained that he was detaining, not arresting, Rhodes when he handcuffed him:

Q. Were you placing him under arrest at that time?

A. I was obtaining [sic] him to investigate what was going on.

Sergeant McGuirk specifically said that by handcuffing Rhodes, he was not placing him under arrest for any offense, including the offense of littering, although he stated that Rhodes had committed that offense when he dropped the Crown Royal bag out of the car.

After handcuffing Rhodes and as they were walking to the patrol car, Sergeant McGuirk noticed Rhodes drop a clear ziplock bag to the ground. Wary of Rhodes' reaction if he bent down to pick up the bag, Sergeant McGuirk left it on the street but kept it in plain view. When Officer Shunk, who had been unable to apprehend the driver, returned to the police car, Sergeant McGuirk retrieved the ziplock bag, which contained several blue ziplock bags that had in them what appeared to be crack cocaine. Sergeant McGuirk then arrested Rhodes for possession of a controlled substance and took him to jail. When Rhodes was searched at the jail, police found in his right front vest pocket another blue ziplock bag containing a white residue.

Fort Worth Police Department Criminalist John Harris said that the cocaine in the ziplock bag dropped by Rhodes measured 2.09 grams and that the bag found on Rhodes at the jail did not contain any controlled substance. According to Sergeant McGuirk, the amount of cocaine Rhodes dropped was consistent with delivery rather than individual consumption. The Crown Royal bag contained $321 in one-dollar bills.

INVESTIGATIVE DETENTION OR ARREST?

In his first point of error, Rhodes complains that the trial court erred under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Texas Constitution by overruling his motion to suppress the cocaine. Because Rhodes has not separated his arguments under the United States Constitution and the Texas Constitution, we will only address his first point of error under the United States Constitution and Texas decisions applying the United States Constitution. Heitman v. State, 815 S.W.2d 681, 690 n. 23 (Tex.Crim.App.1991).

Rhodes asserts that the cocaine was only discovered after his illegal arrest and that the cocaine should have been suppressed as "fruit of the poisonous tree." Rhodes contends that the arrest was illegal because Sergeant McGuirk never articulated facts or circumstances that gave him probable cause to make the arrest.

The Fourth Amendment does not forbid "all searches and seizures, but unreasonable searches and seizures." Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669, 1680 (1960). Law enforcement officers may 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, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). An occupant of an automobile is just as subject to an investigative detention as is a pedestrian. Gearing v. State, 685 S.W.2d 326, 328 (Tex.Crim.App.1985) (op. on reh'g) (citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)); Brown v. State, 830 S.W.2d 171, 175 (Tex.App.--Dallas 1992, pet. ref'd). In connection with the detention, an officer may conduct a pat-down search for weapons. Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911. The detention can include a temporary seizure. Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 237-38 (1983). The justification for such an intrusion is officer safety. Terry, 392 U.S. at 23-24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907-08.

To support the intrusion, the law enforcement officer must have specific and articulable facts that, in light of his experience and personal knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906; Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983). The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication

that the activity is related to a crime. Johnson, 658 S.W.2d at 626

The circumstances that raise suspicion that illegal conduct is taking place need not be criminal in themselves; rather, they may include any facts that would in some measure render the likelihood of criminal conduct greater than it otherwise would be. Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991). "Among the circumstances that can give rise to reasonable suspicion are the [officer's] knowledge of the methods used in recent criminal activity and the characteristics of persons engaged in such illegal practices." United States v. Mendenhall, 446 U.S. 544, 563, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497, 515 (1980).

Whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. See, e.g., United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615 (1985).

Rhodes, citing Burkes v. State, 830 S.W.2d 922 (Tex.Crim.App.1991) and Pickens v. State, 712 S.W.2d 560 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd), claims that he was placed under arrest when Sergeant McGuirk handcuffed him and began moving him toward the patrol car. At the suppression hearing, the trial court, the prosecutor, and defense counsel all were of the opinion that Rhodes was under arrest when he was handcuffed. But Sergeant McGuirk testified that he was not arresting Rhodes when he handcuffed him....