Woods v. State

• Citation: 970 S.W.2d 770
• Decision Date: 25 June 1998
• Docket Number: No. 03-95-00491-CR,03-95-00491-CR
• Parties: Candace Waggoner WOODS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 770

970 S.W.2d 770

Candace Waggoner WOODS, Appellant, v. The STATE of Texas, Appellee.

No. 03-95-00491-CR.

Court of Appeals of Texas Austin.

June 25, 1998.

Keith Hampton, Austin, for appellant.

Ronald Earle, District Attorney, Matthew H. Devlin, Assistant District Attorney, Austin, for appellee.

Before POWERS, JONES and B.A. SMITH, JJ.

JONES, Justice.

Our opinion and judgment in this cause dated June 11, 1998, are withdrawn.

On original submission, this Court reversed appellant's conviction for unlawfully carrying a firearm on the ground that the incriminating evidence, a pistol in appellant's purse, was discovered and seized following an unlawful detention. Woods v. State, 933 S.W.2d 719 (Tex.App.--Austin 1996) (Woods I ). On the State's petition for discretionary review, the Court of Criminal Appeals overruled the case authority on which we had relied, reversed our judgment, and remanded the appeal to us for further proceedings. Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997) (Woods II ). After reexamining the detention issue in light of the Court of Criminal Appeals' opinion, we now conclude that the detention was lawful and will overrule appellant's contention to the contrary. We will also overrule the points of error not addressed in our original opinion and will affirm the district court's judgment of conviction.

Background

The relevant facts were described in our original opinion:

On the day in question, appellant entered the Travis County Courthouse through the east, or main, entrance, passing as she did so a sign stating, "You are entering a security screening area. All persons and baggage are subject to a search." Inside the courthouse and a few feet from the entrance, appellant was confronted by a metal detector and an X-ray machine. Operating these machines were Kevin McCullen, a private security guard employed by the Travis County Sheriff's Department, and Billy Richardson, a deputy sheriff and McCullen's supervisor. McCullen testified that appellant had a "real surprised look, a scared look" when she saw the machines. Appellant "turned to her left and started to enter--and tried to go towards Room 112, which is the JP Five courtroom," the entrance to which was apparently outside the security devices but bore a sign advising that all persons must be screened before entering. Then "she turned around and started to go back out the doors...."

McCullen stopped appellant before she could leave the building and asked if he could help her. She told him that she was trying to get to the fifth floor. McCullen informed appellant that she would have to pass through the metal detectors to reach the elevators. Appellant told McCullen that she first had to go back to her car. According to McCullen, appellant seemed "real nervous." McCullen, who had been working at this job for over two years, became suspicious and told appellant that she could not leave the building without first running her purse through the X-ray device. Appellant disregarded McCullen's instruction and exited the courthouse. McCullen followed and stopped her outside. McCullen testified, "Basically I told her that we were still going to need to run her purse through, and at this point it wasn't--she didn't really have a choice in the matter." By this time, McCullen had been joined by Richardson. Appellant agreed to reenter the courthouse with the officers, telling McCullen that "it was going to set off the metal detector." When appellant's purse passed through the X-ray device, the officers could see the image of a pistol. Richardson opened the purse and seized a loaded .22 caliber pistol.

At a second hearing one month later, McCullen testified that appellant's actions led him to believe that there was a "good possibility" she was armed. Asked to describe these actions, McCullen answered:

A. It was that when she came in, she got a very surprised and scared expression on her face, and then tried to go around the security like she was entering through the JP Five door.

Q. And then what did she do?

A. Then she turned around and started to leave. When we asked her where she needed to go, she said she needed to go to the fifth floor.

...

A. We told her how to get to the fifth floor, and at that point she said, "No, I need to go back out to my car first," and this is something that we have seen a lot of other times. That's when we know somebody usually has something in their purse.

McCullen testified that on approximately fifty occasions, he had seen a similar expression on the face of a person before discovering a weapon or drugs. He acknowledged on cross-examination, however, that he had seen the same expression on persons who did not prove to have a weapon or contraband.

Richardson also testified at the second hearing. He stated that appellant was stopped because, "We wanted to run [the purse] through the x-ray machine and see if there was a weapon or contraband in it."

Woods I, 933 S.W.2d at 721-22.

It is clear that appellant was seized when she was stopped and made to reenter the courthouse, and that passing her purse through the X-ray device was a search. See id. at 722. On original submission, we sustained appellant's first point of error, holding that the officers' actions exceeded the lawful scope of a limited administrative search. Id. at 723. We also sustained her second point of error, holding that appellant did not waive her Fourth Amendment rights and consent to the search of her person and belongings when she entered the courthouse. Id. at 724. Neither of these holdings was challenged by the State in its petition for discretionary review and we will not address these points further. The subject of the State's petition and the reason for the remand by the Court of Criminal Appeals was our holding on appellant's fourth point of error: that the facts and circumstances did not constitutionally warrant the detention of appellant for investigatory purposes. Id. at 725-26. It is to that issue that we now return.

Investigative Detention

An officer may detain a person for investigatory purposes if, based on the totality of the circumstances, the officer has a particularized and objective basis for suspecting the person detained of criminal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Stated another way, an officer may stop and briefly detain a citizen for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the circumstances give the officer reason to believe that the person detained is armed and dangerous, he also may conduct a limited search of the outer clothing of the person to discover weapons. Id.; Spillman v. State, 824 S.W.2d 806, 811 (Tex.App.--Austin 1992, pet. ref'd). This frisk for weapons may be extended to a purse under appropriate circumstances. Worthey v. State, 805 S.W.2d 435, 439 (Tex.Crim.App.1991).

In our original opinion, we relied on case authority holding that an officer's suspicion is not reasonable, and hence a detention based on that suspicion is unlawful, if the facts and circumstances on which the suspicion is based are as consistent with innocent activity as with criminal activity. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983). At a minimum, these cases held, the suspicious conduct must be sufficiently distinguishable from that of innocent people under the same circumstances as to clearly set the suspect apart. Montano v. State, 843 S.W.2d 579, 582 (Tex.Crim.App.1992); Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991). We concluded that appellant's conduct as shown in the record before us did not clearly set her apart from persons engaged in innocent activity. Woods I, 933 S.W.2d at 726.

On the State's petition for discretionary review, the Court of Criminal Appeals held that "the 'as consistent with innocent activity as with criminal activity' construct is no longer a viable test for determining reasonable suspicion" and overruled all cases holding to the contrary, expressly including Johnson and Montano. Woods II, 956 S.W.2d at 36 n. 3, 38. The court held that "the reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity." Id. at 38.

We do not understand the Court of Criminal Appeals' holding to mean that any suspicion based on any articulable facts will support a temporary investigative detention. A reasonable suspicion means more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997). Reasonable suspicion requires "that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime." Id. (quoting Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App.1992)). The articulable facts relied on by the officer must support a reasonable suspicion that activity out of the ordinary is occurring or has occurred, that the detainee is connected to the unusual activity, and that the unusual activity is related to crime. Id. A temporary detention is not permissible unless the circumstances objectively support a reasonable suspicion that the person detained is, has been, or soon will be engaged in criminal activity. Id. If there are no facts that would make the conduct observed by the officer anything but innocuous, if there does not exist even a significant possibility that the person observed is engaged in criminal conduct, a detention of the person for further investigation is not constitutionally warranted. See 4 Wayne R. LaFave, Search and Seizure, § 9.4(b),...