State v. Humayen F. Shamsie

shamsie

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00752-CR

State of Texas, Appellant

v.

Humayen Shamsie, Appellee

FROM THE COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY

NO. 440-541, HONORABLE WILFRED AGUILAR, JUDGE PRESIDING

The State of Texas appeals from the trial court's order suppressing evidence seized from

appellee, Humayen Shamsie. See Tex. Code Crim. Proc. § 44.01(a)(5) (West Supp. 1997). The trial

court granted Shamsie's motion to suppress the evidence on the ground that it was obtained when officers

detained Shamsie without reasonable suspicion, in violation of the federal and state constitutions and the

Texas Code of Criminal Procedure. We will affirm the order.

BACKGROUND

One early morning in July 1995, Shamsie was at a dance club, Eden 2000. Several officers

of the Austin Police Department were on uniformed patrol of the club following undercover purchases of

narcotics there the previous two evenings. As Officer Suarez walked down some stairs inside the club, he

observed Shamsie remove a tissue from his left pocket, unfold it and place it back in his pocket. From his

view the officer could see that the tissue contained a tablet but could not tell what color or kind. When

Shamsie left the club, Officer Suarez, accompanied by Officer Miller, followed him outside. As Shamsie

stood on the sidewalk, Officer Suarez tapped Shamsie on the shoulder; as Shamsie turned to face him, the

officer asked to see his identification. Shamsie, appearing surprised, reached into his pocket. Suarez

testified that Shamsie pulled out the tissue and threw it on the ground. When a third patrolman, Officer

Perez, reached for the tissue, Shamsie pulled away. After a brief struggle, the officers arrested Shamsie.

Tests revealed the tablet to be Diazepam, a prescription drug also known as Valium. Shamsie was

subsequently charged with misdemeanor possession of a controlled substance. See Tex. Health & Safety

Code Ann. §§ 481.035 , .104, .117 (West Supp. 1997).

Shamsie filed a motion to suppress the evidence on the ground that it was seized in violation

of his rights under the Fourth Amendment to the United States Constitution, Article I, Section 9 of the

Texas Constitution, and Chapter 14 and Article 38.22 of the Code of Criminal Procedure. See U.S.

Const. amend. IV, XIV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. ch. 14 (West 1977 & Supp.

1997) & art. 38.22 (West 1979 & Supp. 1997). After a pretrial hearing the trial court granted the motion,

from which the State appeals.

DISCUSSION

By two points of error, the State contends the trial court abused its discretion by applying

the wrong legal standards in determining 1) when Shamsie was seized for constitutional purposes and 2)

whether police had a constitutionally adequate basis for such seizure. Our review of a trial court's rulings

at a suppression hearing is limited to determining whether the trial court abused its discretion. DuBose v.

State , 915 S.W.2d 493, 496 (Tex. Crim. App. 1996). As long as the trial court applies the appropriate

legal standard, its findings of historical fact and application of the law to those facts are entitled to great

deference on appeal. State v. Carter , 915 S.W.2d 501, 504 (Tex. Crim. App. 1996). Even if this Court

would have reached a different result, as long as the trial court's rulings are within the "zone of reasonable

disagreement," we should not intercede. Dubose , 915 S.W.2d at 496.

1. Seizure

Both investigative detentions and arrests are seizures for purposes of constitutional analysis.

Johnson v. State , 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Under both the federal and state

constitutions, a seizure has occurred when a reasonable person would believe he or she was not free to

leave and has actually yielded to a show of authority or has been physically forced to yield. (1) Johnson , 912

S.W.2d at 236 . Law enforcement officers are permitted to approach citizens without constitutional

justification in order to ask questions and even to request a consent to search. Id. at 235 ; Holladay v.

State , 805 S.W.2d 464, 471 (Tex. Crim. App. 1991). If a reasonable person would feel free "to

disregard the police and go about his business," the encounter is consensual and merits no further analysis.

Johnson , 912 S.W.2d at 235 (citing Hodari, D. , 499 U.S. at 628). On the other hand, as soon as a show

of authority would cause one to feel restrained, the encounter is nonconsensual and whether a seizure has

occurred depends on whether the person flees or submits. (2) Id.

The State contends that, in confronting Shamsie, the officers did not show sufficient

authority to create a reasonable belief in Shamsie that he was not free to leave. While we recognize

situations exist in which a police officer's request for identification amounts to a consensual encounter, e.g. ,

Holladay , 805 S.W.2d at 471 ; White v. State , 846 S.W.2d 427, 430-31 (Tex. App.--Houston [14th

Dist.] 1992, no pet.), we think the trial court could rationally conclude that the police encounter with

Shamsie constituted a nonconsensual encounter. There were at least four officers around Shamsie when

Officer Suarez touched him on the shoulder and requested his identification. Shamsie was between the

club's entrance and the curb of the street where cars were parked when the officers approached. When

asked whether Shamsie would have been able to leave, Officer Suarez responded that "it depends how

hard he wanted to try," and that the officers would not have permitted it. Although an officer's intent to

detain the suspect does not, alone, justify the suspect's belief that he is not free to leave, the totality of these

circumstances created an atmosphere in which a reasonable person would not have felt free to leave.

Evidence obtained as the fruit of an unconstitutional seizure is inadmissible. Johnson v.

State , 658 S.W.2d 623, 627 (Tex. Crim. App. 1978); Giossi v. State , 831 S.W.2d 887, 889 (Tex.

App.--Austin 1992, pet. ref'd). Although protection from unreasonable searches and seizures does not

extend to property that is abandoned before a seizure occurs, property abandoned in response to unlawful

police conduct is subject to constitutional protection. California v. Hodari, D. , 499 U.S. 621, 629

(1991): Hawkins v. State , 758 S.W.2d 255, 257 (Tex. Crim. App. 1988).

The State contends that Shamsie did not actually yield to the officers until they arrested

him. (3) See Johnson , 912 S.W.2d at 236 . The State concludes that, because the trial court could not have

found Shamsie yielded under these facts, it did not apply the law as set forth in Johnson . See id.

Therefore, the State contends, Shamsie voluntarily abandoned the tissue and its contents before he was

seized and cannot claim constitutional protection from their seizure. See Hawkins , 758 S.W.2d at 257 .

We reject the State's argument.

The record does not reveal the trial court's reasoning; we must, therefore, defer if any

rational basis supports the trial court's conclusions in granting the motion to suppress. See Carter , 915

S.W.2d at 504-05 ; Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). One reasonable

construction of these facts is that Shamsie reached into his pocket to retrieve his identification but pulled

out the tissue by mistake. The judge thus could have concluded that Shamsie had submitted to the show

of authority when he reached into his pocket in response to the officer's request. By contrast, the court in

Johnson held when a suspect confronted in a breezeway bolted and ran away as soon as he saw the

police, a seizure had not occurred. 912 S.W.2d at 234 . The record here contains no evidence that

Shamsie attempted to flee, but merely states that he "pulled away" when Officer Perez rushed for the tissue

at his feet, an understandable reaction. That a brief struggle ensued is not indicative of flight; the officers

had not told Shamsie he was under arrest. We find the determination that Shamsie submitted to the show

of authority reasonable under these facts; consequently, we must defer to the trial judge's ruling. We find

no abuse of discretion.

Furthermore, we reject the State's reliance on State v. Rose for the proposition that

Shamsie abandoned the tissue before any seizure occurred. See 844 S.W.2d 911, 912 (Tex. App.--Tyler

1992, no writ). In Rose , the court of appeals found that the trial court did not apply the standard for seizure

under Hodari, D. , as it did not have the benefit of Johnson before it. Id. at 913. The court of appeals

stated:

Rose threw down the cocaine while still retreating from the officers, before submission to

the officer's "show of authority," and before the application of any physical force to effect

the stop.

Id. at 912. We have concluded that a rational construction of the facts before us is that Shamsie was

submitting to the request for identification when he reached into his pocket. (4) Therefore, the detention and

Shamsie's reaching into his pocket occurred simultaneously. Because we will uphold the trial court's finding

that the officers lacked reasonable suspicion, Shamsie dropped the tissue in response to unlawful police

conduct. See Hawkins , 758 S.W.2d at 259 . Consequently, the evidence was properly suppressed. We

overrule the State's first point of error.

2. Reasonable suspicion

By its second point of error, the State argues that any seizure was a constitutionally justified

investigative detention. A police officer must have a reasonable and articulable basis for suspecting criminal

activity to justify an investigatory detention. Johnson , 912 S.W.2d at 235 ; Crockett v. State , 803

S.W.2d 308, 311 (Tex. Crim. App. 1991); Giossi , 831 S.W.2d at 889 . The reasonable suspicion

determination is based on the totality of the circumstances. U.S. v. Sokolow , 490 U.S. 1, 9 (1989);

Holladay , 805 S.W.2d at 473 . "Reasonable suspicion" is "something more than an inchoate and

unparticularized suspicion or hunch," Holladay , 805 S.W.2d at 469 (quoting Sokolow , 490 U.S. at 7 ),

but it requires less information than is constitutionally required for probable cause to arrest. Johnson , 912

S.W.2d at 235 . The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree

of suspicion that attaches to particular types of noncriminal acts. Holladay , 805 S.W.2d at 469 ; see also

Angulo v. State , 727 S.W.2d 276, 279 (Tex. Crim. App. 1987).

The State again contends that the trial court applied the wrong legal standard. At the

suppression hearing, defense counsel pointed to several types of nonprescription drugs that look like

Diazepam. (5) Defense counsel then argued that "if an activity is as consistent with innocent activity as it is

with criminal activity, that does not meet the standard of reasonable suspicion." The State urges that the

trial judge's express comment that Shamsie's conduct was as consistent with innocent as with criminal

activity is cause for reversal of the order. We disagree.

Considering the testimony at the suppression hearing, a rational trial court could conclude

that the police lacked reasonable suspicion to detain. See Carter , 915 S.W.2d at 504-05 . Officer Suarez

testified that the fact that the pill was in a tissue and Shamsie carefully put it back in his pocket raised his

suspicions. It was Suarez's opinion that it is "not usual" for people to carry prescription drugs in a tissue.

The prosecution argued that the location, a club where previous narcotics arrests had been made, should

raise the degree of suspicion. We agree that unusual activity in a place known for criminal acts may, under

some circumstances, give rise to reasonable suspicion to detain a person. However, Officer Suarez testified

that the pill could have been an over-the-counter product, such as allergy medication or pain reliever. The

officer did not see Shamsie give the pill to or receive the pill from anyone, nor did he have any opinion on

whether Shamsie was intoxicated. The sum of Suarez's testimony was that Shamsie had a pill in a tissue

inside a club where arrests had been made. We find this an insufficient basis for reasonable suspicion that

Shamsie had committed, or was about to commit, a crime. See Reid v. Georgia , 448 U.S. 438 (1980)

(circumstances described "very large category of presumably innocent" persons); Holladay , 805 S.W.2d

at 473 ; Crockett , 803 S.W.2d at 311 . There was nothing to set Shamsie's conduct apart from otherwise

innocent conduct. See Crockett , 803 S.W.2d at 311 .

The trial court may consider whether Shamsie's conduct was "as consistent with innocent

activity as with criminal activity" as a factor in determining the degree of suspicion attaching to the conduct.

See Woods v. State , 933 S.W.2d 719, 726 (Tex. App.--Austin 1996, pet. filed). In Crockett , the

appellant contended that his behavior could not have been suspicious because it was "perfectly lawful."

The court of criminal appeals elaborated on the reasonable suspicion standard in the investigative detention

context:

[S]uch circumstances as will raise suspicion that illegal conduct is taking place need not be

criminal in themselves. Rather, they may include any facts which in some measure render

the likelihood of criminal conduct greater than it would otherwise be.

. . .

At a minimum, however, the suspicious conduct relied upon by law enforcement officers

must be sufficiently distinguishable from that of innocent people under the same

circumstances as to clearly, if not conclusively, set the suspect apart from them.

Crockett , 803 S.W.2d at 311 (citing Brown v. Texas , 443 U.S. 47, 52 (1979)). Therefore, observed

conduct that does not sufficiently set a person apart from innocent persons under the same circumstances

does not, alone, create reasonable suspicion; an officer must have facts increasing the likelihood of criminal

conduct.

At the hearing below, the judge stated

I just don't think there's enough. If this were to happen on a street corner where drugs

were supposedly sold and a person by himself reaches in his pocket and pulls out a tissue

and there's a little pill in there, that's not enough to stop that person. You have to have

something more than that.

. . .

Merely because they are in a club where drugs happen to be sold doesn't warrant that kind

of intrusion . . . .

These comments demonstrate the trial court considered whether the circumstances gave rise to a degree

of suspicion constitutionally justifying a detention. See Sokolow , 490 U.S. at 9 ; Holladay , 805 S.W.2d

at 473 . The record contains nothing that set Shamsie apart from an innocent person. The trial court's

conclusion that the officers lacked constitutionally adequate suspicion was rational. Accordingly, the trial

court did not abuse its discretion. We overrule the State's second point of error.

CONCLUSION

Having overruled both of the State's points of error, we affirm the order of the trial court.

Bea Ann Smith, Justice

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

Affirmed

Filed: January 9, 1997

Publish

1. Until recently, a seizure had taken place when a reasonable person facing a show of

authority would not feel free to leave. Johnson , 912 S.W.2d at 232 . In Johnson , however, the

court of criminal appeals adopted the definition of seizure applied under the Fourth Amendment by the

United States Supreme Court in Hodari, D. , adding the requirement that the citizen actually yield to the

officers' show of authority. Id. at 236.

2. Under the pre- Hodari, D. standard, one's constitutional rights were implicated as soon as one

would feel unfree to leave. See Holladay , 805 S.W.2d at 472 (consensual encounter not a detention);

Johnson v. State , 658 S.W.2d 623, 626 (Tex. Crim. App. 1983) (nonconsensual encounter a

detention).

3. The State further contends Shamsie did not establish a reasonable expectation of privacy

in the tissue or its contents and he had no standing to complain of its seizure. Because the

tissue was on Shamsie's person at the time the detention occurred, we reject this argument.

4. We also note that the physical touching of Shamsie may, in itself, have resulted in a

detention. See Hodari, D. , 499 U.S. at 626 ("An arrest requires either physical force . . . or , where

that is absent, submission to the assertion of authority.").

5. Specifically, defense counsel argued that Actifed Sinus, Sudafed, Tylenol P.M., and

Dimetapp are similar in appearance to Diazepam.

. . .

At a minimum, however, the suspicious conduct relied upon by law enforcement officers

must be sufficiently distinguishable from that of innocent people under the same

circumstances as to clearly, if not conclusively, set the suspect apart from them.

Crockett , 803 S.W.2d at 311 (citing Brown v. Texas , 443 U.S. 47, 52 (1979)). Therefore, observed

conduct that does not sufficiently set a person apart from innocent persons under the same circumstances

does not, alone, create reasonable suspicion; an officer must have facts increasing the likelihood of criminal

conduct.

At the hearing below, the judge stated

I just don't think there's enough. If this were to happen on a street corner where drugs

were supposedly sold and a person by himself reaches in his pocket and pulls out a tissue

and there's a little pill in there, that's not enough to stop that person. You have to have

something more than that.

. . .

Merely because they are in a club where drugs happen to be sold doesn't warrant that kind

of intrusion . . . .

These comments demonstrate the trial court considered whether the circumstances gave rise to a degree

of suspicion constitutionally justifying a detention. See Sokolow , 490 U.S. at 9 ; Holladay , 805 S.W.2d

at 473 . The record contains nothing that set Shamsie apart from an innocent person. The trial court's

conclusion that the officers lacked constitutionally adequate suspicion was rational. Accordingly, the trial

court did not abuse its discretion. We overrule the State's second point of error.

CONCLUSION

Having overruled both of the State's points of error, we affirm the order of the trial court.