Sanders v. State

• Decision Date: 28 April 1999
• Docket Number: No. 07-98-0298-CR,07-98-0298-CR
• Citation: 992 S.W.2d 742
• Parties: Stephen Christian SANDERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 742

992 S.W.2d 742

Stephen Christian SANDERS, Appellant, v. The STATE of Texas, Appellee.

No. 07-98-0298-CR.

Court of Appeals of Texas Amarillo.

April 28, 1999.

Rehearing Overruled May 27, 1999.

R. Walton Weaver, Amarillo, for appellant.

Potter County Attorney (Sonya Letson, Jennifer Lively), Amarillo, for appellee.

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

PHIL JOHNSON, Justice.

Stephen Christian Sanders appeals his conviction for possession of marihuana pursuant to a plea of guilty. The trial court assessed punishment at 90 days in jail plus costs of court. By his sole point of error, Sanders contends that the trial court abused its discretion by failing to determine that his initial detention was illegal and by failing to suppress the marihuana which he was convicted of possessing. We affirm.

FACTS AND HISTORY

Appellant was arrested on February 4, 1998 for the Class B misdemeanor of possession of marihuana. Appellant filed a pre-trial motion to suppress the marihuana that was discovered by police during what he alleges was an illegal stop of his vehicle. The trial court denied the motion and issued findings of fact and conclusions of law. By his sole point of error, appellant contends that the trial court abused its discretion by failing to determine that appellant was illegally detained and by failing to suppress the marihuana as being fruit of the illegal detention.

The only witness to testify at the hearing on the motion to suppress was arresting officer David Lavigne. Lavigne testified that he had been an officer with the Amarillo Police Department thirteen years and that he was on duty on the night of February 4, 1998. He was one of several officers working in the Wolflin area in Amarillo where there had been numerous burglaries. The officers had been assigned "to flood the area ... to see if [they] could catch the burglars." At approximately midnight, Lavigne was advised by the police dispatcher of an attempted burglary in the Wolflin area. He was assigned to proceed to the scene and investigate the reported crime. Lavigne was told only that the attempted burglary was by two male subjects with flashlights who fled on foot northbound in an alley.

Lavigne immediately proceeded toward the location of the crime. Three or four blocks driving distance from the scene of the reported attempted burglary, Lavigne Lavigne further testified that he had previously patrolled the Wolflin area at midnight and was familiar with traffic flow at that time and place. He indicated that there was "very, very little" traffic there at midnight. Lavigne stated that the vehicle he stopped was the only vehicle in the area. He testified that it was not unusual for burglary suspects to park a couple of blocks away from the building or residence where a burglary was to be committed, commit the burglary, and then go to the vehicle on foot and drive away. Lavigne agreed that there was nothing unusual about a car being driven in the neighborhood at that time of night, and that he did not "expect to see zero cars" [sic] under those circumstances. The vehicle was not stopped because it was in violation of any law.

encountered and stopped an automobile with two persons in it. The vehicle was heading away from the address of the reported burglary attempt, in the same direction as the two burglary suspects fled. The straight-line distance of the address of the attempted burglary from the point of the stop was approximately two blocks. The stop was made two or three minutes after Lavigne received the radio dispatch call concerning the attempted burglary.

By his Motion to Suppress Fruits of Illegal Detention, appellant asserted in the trial court that incriminating evidence acquired as a result of his illegal detention should be suppressed. Appellant did not assert in his Motion to Suppress that the extent of the search conducted following the stop was improper, nor does he so assert in this appeal. Nor did appellant cite Article I, Section 9 of the Texas Constitution as a basis for the motion to suppress. Appellant has not urged in this court that Article I, Section 9 of the Texas Constitution offers more protection to him than is provided by the United States Constitution. See Hulit v. State, 982 S.W.2d 431 (Tex.Crim.App.1998) (Texas Constitution may offer less, more, or the same protections as the federal constitution). Thus, we consider appellant's sole point of error to be asserting the search and seizure protective standards established by the Fourth Amendment of the federal constitution in regard to the making of a vehicle stop for investigative purposes. TEX.R.APP. P. 38.1(e).

LAW

In reviewing a trial court's ruling, appellate courts afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the trial court's findings are based on credibility. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). However, if the resolution of ultimate questions does not turn on an evaluation of credibility and demeanor, appellate courts review mixed questions of law and fact de novo. ¹ Id. at 89. Detention and reasonable suspicion are by nature legal concepts and are properly subject to de novo review. Hunter v. State, 955 S.W.2d 102, 107 (Tex.Crim.App.1997); see also Loesch v. State, 979 S.W.2d 47, 50-51 (Tex.App.--Corpus Christi 1998, no pet. h.) (whether facts recited by police officers gave rise to a reasonable suspicion is a question reviewed de novo ).

The Fourth Amendment to the United States Constitution protects persons from unreasonable searches and seizures. See Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1680 (1960); Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997); Giacona v. State, 372 S.W.2d 328, 333 (Tex.Crim.App.1962), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70 (1963). We follow the guidance of the United States Supreme Court when interpreting the federal constitution.

State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App.1998).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a police officer can briefly detain a person and "search" that person by a patdown of the outer surfaces of the clothing in the course of investigating suspicious activity if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. The officer must be able to point to specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant the level of intrusion into the citizen's personal security. Id. at 21, 88 S.Ct. 1868; see Davis v. State, 947 S.W.2d at 242. The facts must support more than an inchoate and unparticularized hunch or suspicion, but are to be considered in light of the officer's experience. Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. 1868. While Terry dealt specifically with a "frisk" situation, a body of law has developed around what have become referred to as "investigative detentions." See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (a "stop" is a brief detention of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information); U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 628 (1981) (investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity); U.S. v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1, 12 (1989) (the relevant inquiry is not whether the particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular types of noncriminal acts).

Of particular relevance to standards by which we judge the matter before us are the U.S. Supreme Court cases of United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) and United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Both cases dealt with the legality under the Fourth Amendment of vehicular investigative stops. In Brignoni-Ponce, the U.S. Border Patrol stopped a vehicle to question its occupants about their citizenship and immigration status. The stop was part of a regular traffic-checking operation in Southern California, near the Mexican border. The stop was based on the observations of two border patrol officers that the vehicle stopped was occupied by three persons who appeared to be of Mexican descent. It turned out that the two passengers were aliens who had entered the country illegally. The driver was charged with and convicted of knowingly transporting illegal immigrants. The court of appeals reversed the conviction because the stop of the vehicle was based solely on the appearance of the occupants as being of Mexican ancestry, and such basis was not a "founded suspicion" that the occupants were illegal aliens. The court of appeals held the stop to have been illegal under the Fourth Amendment, even for the limited purpose of questioning the occupants of the vehicle.

The Supreme Court affirmed the court of appeals and held that the single factor of the apparent Mexican ancestry of the vehicle occupants was not reasonable grounds for the officers to believe the occupants of the vehicle were aliens. The Court noted that its prior opinions established the principle that in appropriate circumstances the Fourth Amendment allows a properly limited "seizure" on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime. 422 U.S. at 881, 95 S.Ct. 2574. The Court then enunciated the test it used to evaluate the Brignoni-Ponce facts:

[W]e hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the...