State v. Moore

• Decision Date: 10 August 2000
• Citation: 25 S.W.3d 383
• Parties: (Tex.App.-Austin 2000) The State of Texas, Appellant v. Guy Weston Moore, IV, Appellee NO. 03-00-00145-CR
• Court: Texas Court of Appeals

Page 383

25 S.W.3d 383 (Tex.App.-Austin 2000)

The State of Texas, Appellant v. Guy Weston Moore, IV, Appellee

NO. 03-00-00145-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 10, 2000

FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY NO. 540,388, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith.

BEA ANN SMITH, Justice.

The State appeals an order granting appellee Guy Weston Moore's motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2000). We will affirm the order.

At about 10:10 p.m. on August 15, 1999, two Austin police officers went to a convenience store in the University of Texas neighborhood in response to a reported forgery. They were met outside the store by a man named Garrison. Garrison told the officers that he had received a telephone call from a check cashing company asking if he had written a check to a man named Richardson, who was attempting to cash the check at this store. Garrison said he told the caller that he had not authorized any check, then called the police and drove to the store.

Inside the store, the officers learned that it contained a machine that may be used to present and cash checks. The machine was connected to a central office in Dallas, and a person at that office could see the customer by means of a video camera. Officer Eveleth, the only witness to testify at the suppression hearing, asked the store clerk if he knew who had been using the check cashing machine. The clerk replied that he did not know. About this time, Officer Fox told Eveleth "she had spotted a subject who appeared nervous." The clerk told Eveleth that the person to whom Fox was referring, subsequently identified as appellee Moore, had been in the store "for a long time and had been standing by the cash machine."

Eveleth walked over to Moore, who was looking through a telephone book, and asked him if he had been using the check machine or had spent any time at the machine. Moore answered both questions "No." Eveleth noticed that Moore was nervous; his hands were shaking and he was perspiring. Eveleth frisked Moore for weapons, finding none. Eveleth then asked Moore for permission to search his person. Moore consented to the search. During this search, the officer found a concealed handgun permit.

Eveleth noticed a backpack near Moore. Moore told the officer that it was his. At this point, Eveleth handcuffed Moore "for safety" but told Moore that he was not under arrest. He then asked for and received Moore's permission to search the backpack. Inside, the officer found a printed receipt reflecting that the check cashing machine had been used approximately thirty minutes earlier.¹ Eveleth again asked Moore if he had used the machine. This time, Moore acknowledged that he had. Moore then told the officer that he "wanted to come clean" and admitted trying to cash a check he said he had found on the sidewalk.

At this point, Eveleth decided to arrest Moore and advised him of his rights. The officers took Moore to the check cashing machine, where he was identified by the "video teller" as the person who had attempted to cash the Garrison check. As the officers were escorting Moore to the patrol car, Garrison noticed that the books in Moore's backpack belonged to him. Ultimately, an information was filed accusing Moore of stealing five books and a day planner from Garrison.

At the conclusion of the hearing, the court announced that Moore's motion to suppress evidence was granted. The court explained:

I do find that this defendant's consent to search extended beyond the search of his person. From the time he was handcuffed, certainly that consent to search was no longer valid. I feel he was under arrest; his liberties had been restrained. And I do not find that there is probable cause to proceed at that point. So everything thereafter would be suppressed.

The court added, "I find that the officer was quite credible."

The frisk for weapons was a show of authority to which Moore yielded and there is no dispute that he was seized at that moment. See California v. Hodari D., 499 U.S. 621, 625-26 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). It is also agreed that the seizure was, at that point, an investigative detention, not an arrest. Moore argues that the detention was unlawful, a contention he did not make below. We disagree. The facts known to the police at that time the reported forgery, Moore's nervousness, and the information that Moore had been in the store for a long time and had been standing by the check cashing machine gave the officers reasonable grounds to suspect Moore had been engaged in criminal activity and warranted his temporary detention for further investigation. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). The dispositive issue is whether the circumstances warranted handcuffing Moore during the investigation.

Citing Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997), the State urges that, under the circumstances shown, the handcuffing was reasonably necessary to effect the goal of the investigative detention. Moore responds that the handcuffing constituted excessive force under the circumstances and transformed the detention into an arrest, for which the officer did not have probable cause. In reviewing these contentions, we defer to the district court's factual determinations but review de novo the court's application of the law to the facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

There is no bright-line rule that handcuffing a suspect always constitutes an arrest. See Rhodes, 945 S.W.2d at 118. Although handcuffing the suspect is not ordinarily proper during an investigative detention, it may be resorted to when reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. See id. at 117. The degree of force employed by a police officer is just one of several factors that must be considered to determine whether a particular seizure of a person is an arrest or merely an investigative detention. The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and the reaction of the suspect are all facts which bear on the issue. See 4 Wayne R. LaFave, Search and Seizure § 9.2(d) (3d ed. 1996). The officer's opinion, while not determinative, is another factor to be considered. See Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991). It is also important to consider whether the officer actually conducts an investigation after seizing the suspect. See id.; see also Rhodes, 945 S.W.2d at 119-20 (Meyers, J., concurring and dissenting). Whether a seizure is an arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. See Rhodes v. State, 913 S.W.2d 242, 247 (Tex. App. Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997).

In Amores, a police officer responding to a burglary call at 11:30 p.m. blocked the suspect's car with his patrol car, ordered the suspect from his car at gunpoint, directed the suspect to lie face-down on the parking lot with his hands behind him, and threatened to shoot the suspect if he did not obey. See Amores, 816 S.W.2d at 410. The officer characterized the seizure as an investigative detention, but the record showed that he did not ask the suspect any questions before or during the search of his person and vehicle. See id. at 412. The court of criminal appeals concluded that the detention could not be considered investigatory and held that the seizure constituted an arrest. See id.

In Burkes v. State, 830 S.W.2d 922, 923 (Tex. Crim. App. 1991), several police officers responded to a report of drug dealing in an area notorious for that activity....