Billy Lee Walter v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00464-CR

Billy Lee Walter, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-97-0440-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING

Appellant Billy Lee Walter appeals from the trial court's denial of his motion to

suppress evidence and his subsequent conviction for the offense of possession of cocaine in an

amount of four grams or more, but less than two hundred grams. See Tex. Health & Safety Code

Ann. § 481.115 (West 1992). At a pre-trial hearing, appellant moved to suppress the evidence,

claiming that it was seized during an illegal search. The trial court denied appellant's motion.

Appellant waived his right to a jury, was found guilty by the court, and was sentenced to ten years

in prison. In this appeal, appellant challenges the trial court's overruling of his motion to suppress

and subsequent refusal to exclude the evidence at trial. We will reverse and remand the cause to

the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol duty on the evening of May 7, 1997, Sergeant Victor Vasquez of

the San Angelo Police Department was approached just before 10:00 p.m. by an unknown person

who witnessed suspicious activity in Mountain View Park. The witness told Vasquez that while

he was playing basketball in the park, he observed what he believed to be a series of drug

transactions. He reported that he saw several people drive up to the park, get out of their cars,

and approach a man sitting at a picnic table next to the basketball court. These individuals would

walk over to the park bathrooms, stay there briefly, and return to the man at the table. They

would then get back into their cars and leave the park, and the man would remain at the table.

According to the record on appeal, Officer Vasquez did not obtain any description of the man at

the picnic table or of the other individuals from the witness. Because the park was not within his

own patrol district, Vasquez immediately called Officer Jeff Carrol of the San Angelo Park Police

and asked him to investigate. Vasquez reported to Carrol that a suspicious individual was possibly

conducting drug sales in the park area and relayed the witness's story. He instructed Carrol to use

his own discretion in stopping any vehicles or approaching any individuals. In addition to the fact

that the tip he was acting upon was a report from an unidentified citizen received secondhand from

Officer Vasquez, Carrol had no description to help him identify any suspicious individual, and he

had no information regarding any physical characteristics, age, race, clothing, or vehicle upon

which to base a stop or detention.

Officer Carrol arrived about five to ten minutes after talking to Vasquez. He did

not see anyone actually in the park, but did notice a pickup truck leaving the park area. There

were no other vehicles traveling in the area. Carrol drove up behind the departing truck and

stopped it after the driver failed to signal his intent to turn prior to one hundred feet of the

intersection. (1) The officer identified appellant as the driver. When asked by Carrol where he was

coming from and what he was doing, appellant replied that he was coming from Mountain View

Park where he and his passenger had been playing basketball. Carrol testified that he was

suspicious of appellant's story because appellant was wearing a long-sleeved button-down shirt,

blue jeans, and cowboy boots, and he did not observe a basketball in the truck. The passenger,

who also wore jeans, similarly claimed that they were coming from the park where they had been

playing basketball.

After verifying the identities of the two men, Carrol initiated a warrant check using

appellant's license number. He also requested consent to search the truck, but appellant refused.

Carrol then contacted Officer Miller, a canine handler from the San Angelo Police Department,

and asked him to come to the scene and perform an exterior "sweep" of the vehicle with a drug-sniffing dog. Next, another officer arrived at the scene, apparently serving as Carrol's "back-up."

At some point, appellant and the passenger got out of the truck. (2) Miller arrived within ten to

fifteen minutes. Carrol testified that the warrant check had not yet been completed when Miller

arrived, but that if the check had been completed and come back clear, he would not have

continued to detain appellant.

Miller performed a routine preliminary visual check of the exterior of the truck to

ensure that the dog would not be harmed during the search. He testified that he could easily see

inside the vehicle during his exterior check, because both appellant and the passenger had left their

doors open when they got out of the truck. When he came around to the passenger side, Miller

squatted down and saw a clear plastic bag on the floorboard between the door and the seat. The

bag contained a green leafy substance that Miller believed to be marihuana. He notified Carrol,

who seized the bag and searched appellant. In appellant's shirt pocket, Carrol found a rather large

clear bag of an off-white powdery substance that he believed to be cocaine. (3) Office Miller then

searched the truck with the dog and found a brick of marihuana and various other drugs, which

Carrol also seized.

In his sole point of error, appellant claims that the trial court erred in (1) failing to

sustain his motion to suppress, and (2) admitting at trial evidence of the illegally seized cocaine.

Appellant argues that Officer Carrol did not have reasonable suspicion to continue to detain him

after the traffic stop, and therefore the seizure of the cocaine was the result of an illegal detention

and search of his person and vehicle under the Fourth Amendment to the U.S. Constitution. U.S.

Const. Amend. IV.

DISCUSSION

The United States Supreme Court has held that determinations of reasonable

suspicion and probable cause should be reviewed de novo on appeal. See Guzman v. State , 955

S.W.2d 85, 87 (Tex. Crim. App. 1997) (citing Ornelas v. United States , 517 U.S. 690, 699

(1996)). "[T]he legal rules for probable cause and reasonable suspicion acquire content only

through application." Id. (quoting Ornelas , 517 U.S. at 697 ). Independent review has been

deemed necessary so that appellate courts can maintain control of and clarify the basic legal

principles presented, unify precedent, and provide a defined set of rules for law-enforcement

officers. See Loserth v. State , 963 S.W.2d 770 , 773 n.2 (Tex. Crim. App. 1998) (citing Ornelas ,

517 U.S. at 697 ). In addition, de novo review prevents the varied results under similar facts that

sweeping deference to the trial court would yield. See id .

The appellate court should give due deference to the trial court when reviewing the

trial court's ruling on a mixed question of fact and law. See Guzman , 955 S.W.2d at 89 . If the

trial court's ruling turns on an issue of credibility of a witness, the appellate court should give

considerable weight to the trial court's judgment. See id. However, the appellate court should

conduct a de novo review when the trial court is not in an appreciably better position than the

appellate court to decide the issue. See Miller v. Fenton , 474 U.S. 104, 114-16 (1985); Guzman ,

955 S.W.2d at 87 . When the mixed question of fact and law presented does not turn on an

evaluation of credibility and demeanor, the question is subject to de novo review. See Loserth ,

963 S.W.2d at 773 .

A trial court's ruling on a motion to suppress lies within the sound discretion of that

court. See Villarreal v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). The trial court is

the sole observer of the testimony and demeanor of the witnesses; the trial court makes decisions

regarding credibility of the witnesses and the weight that should be given to their testimony. See

id. Therefore, in reviewing such a ruling, the appellate court asks only whether the trial court

improperly applied the law to the facts. See Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990). The appellate court does not engage in its own factual review, but instead decides

whether, in viewing the record in the light most favorable to the trial court's ruling, the trial

court's findings are supported by the record. See id. In this case, both Officer Carrol and

appellant testified at the hearing on the motion to suppress. Appellant disputed the officer's

testimony by saying that the warrant check came back within five to eight minutes, at which point

Officer Carrol asked him to step out of the car and requested consent to search the vehicle.

Appellant testified that when he refused to consent, Carrol called for the canine unit and then

patted appellant down and found the cocaine in his shirt pocket. In denying the motion, however,

the trial court found Officer Carrol's testimony to be more credible. Therefore, giving weight to

that determination, we review the question of reasonable suspicion de novo . Taking Officer

Carrol's testimony as true, we must determine whether he had adequate reasonable suspicion to

detain and subsequently search appellant and his vehicle without violating the Fourth Amendment.

Officer Carrol's stop of appellant was valid. Because he saw appellant commit a

traffic violation by failing to properly signal before a turn, Carrol had an objective basis for

stopping the truck. See Tex. Transp. Code Ann. § 545.104 (West 1996). His subsequent

detention of appellant pursuant to that violation is considered to be valid as well:

As long as an actual violation occurs, law enforcement officials are free to enforce

the laws and detain a person for that violation , regardless of whatever the usual

practices or standards of the local law enforcement agency are and regardless of the

officer's subjective reasons for the detention.

Garcia v. State , 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (emphasis original). Officer

Carrol evidently suspected that appellant was involved in drug activity in the park when he stopped

appellant for failing to signal, but this fact alone does not render the traffic stop improper. Stops

and detentions that pertain to the original violation do not exceed the bounds of the Fourth

Amendment. See id. However, Officer Carrol must have had some additional reason, other than

the initial traffic violation, to continue to detain appellant and call for the canine sweep.

The State sets forth two alternative theories as to why Officer Carrol's actions were

reasonable and justified. First, the State argues that it is reasonable for an officer to check the

validity of a presented driver's license, to check the driver for outstanding warrants, and to detain

the driver for as long as is necessary to do so. See Davis v. State , 947 S.W.2d 240 , 245 n.6 (Tex.

Crim. App. 1997). A warrant check can be performed during a valid traffic stop. See id .; 1979

Pontiac Auto. v. State , 988 S.W.2d 241, 243 (Tex. App.--Eastland 1998, no pet.). According

to Officer Carrol, a warrant check is a routine part of every traffic stop he makes. He testified

that he initiated a warrant check on appellant and on the passenger after identifying them, but

before contacting Officer Miller. He testified further that the checks had not yet been completed

when Officer Miller arrived with the dog, but if they had come back clear before Miller arrived,

he would have had no choice but to let appellant go. The State argues that a police officer has the

discretion to run a warrant check during a temporary investigative detention. See Davis , 947

S.W.2d at 245 (citing Florida v. Royer , 460 U.S. 491 (1983)).

The State relies on 1979 Pontiac Automobile for the proposition that a police officer

may detain a person for a canine sweep whether or not the officer has reasonable suspicion that

the person may possess narcotics. See 1979 Pontiac Auto. , 988 S.W.2d at 243 . However, this

holding contradicts other Texas authority. See Mohmed v. State , 977 S.W.2d 624, 628 (Tex.

App.--Fort Worth 1998, pet. ref'd) (exterior canine sweep of vehicle requires reasonable

suspicion that automobile contains narcotics) (citing Crockett v. State , 803 S.W.2d 308, 310-11

(Tex. Crim. App. 1991) (reasonable suspicion required for canine sniff of railway passenger's

luggage)). While a canine sweep does not constitute a search within the meaning of the Fourth

Amendment, a canine sweep can be performed during an investigative detention only if there is

reasonable suspicion of criminal activity to continue that detention. See United States v. Place ,

462 U.S. 696, 706-07 (1983); see also Davis , 947 S.W.2d at 245 . An investigative detention not

based on reasonable suspicion violates the Fourth Amendment. Davis , 947 S.W.2d at 243 .

Detaining a person while a warrant check is being run has been held not to violate

the Fourth Amendment. See id. at 245 . However, calling for a canine sweep to be performed in

the meantime exceeds the bounds of what a police officer may do in a stop for a traffic violation

without reasonable suspicion. See Mohmed , 977 S.W.2d at 628 . We believe that Mohmed

correctly states the law and that 1979 Pontiac Automobile does not; we therefore follow Mohmed

and Crockett in rejecting the State's argument that a police officer does not need reasonable

suspicion to conduct a canine sweep.

The facts of the present case are somewhat unusual in that appellant was validly

stopped by the Officer Carrol for a traffic offense, but at some point the nature of the detention

changed to a drug-trafficking investigation. Our analysis is aided by analogizing Fourth

Amendment law applied in the situation of a Terry frisk, which, like a canine sweep, is a lesser

Fourth Amendment intrusion than a full search. See Terry v. Ohio , 392 U.S. 1, 26 (1968). In

Terry , the United States Supreme Court stated that where a police officer observes unusual conduct

which leads him reasonably to conclude that criminal activity may be afoot, and he reasonably

believes that the suspected persons may be armed, the officer may pat down their outer clothing

to search for weapons. See id. at 30 . Both elements of Terry --suspicion of criminal activity and

reasonable belief that the suspect may be armed--are necessary to uphold a warrantless frisk. See

Wayne R. LaFave, Search and Seizure § 9.5(a) (3d ed. 1996). This rule shows the error in the

State's position that because the canine sweep took place before the warrant check was complete,

there was no further intrusion on appellant's constitutional rights. If this were true, officers could

freely frisk individuals not suspected of any criminal activity as long as they did so while a warrant

check was pending. As with a canine sweep, the State could argue that (1) a frisk is a lesser

intrusion under the Fourth Amendment than a full search incident to arrest, and (2) the frisk

produced no temporal detention in addition to the traffic stop. Neither common sense nor Texas

law supports this approach, and we believe that a canine sweep performed in the absence of

reasonable suspicion is not rendered constitutional simply because it did not result in a longer

period of detention.

The State's second theory is that Officer Carrol had reasonable suspicion to justify

the canine sweep, even if he had not run a warrant check on appellant. The Fourth Amendment

is not a guarantee against all searches and seizures, but only against unreasonable searches and

seizures. See United States v. Sharpe , 470 U.S. 675, 682 (1985). It is well-established that 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. See Crockett , 803

S.W.2d at 311 . The Fourth Amendment does not require a policeman who lacks the precise level

of information necessary for probable cause to arrest to simply shrug his shoulders and allow a

crime to occur or a criminal to escape. Doyle v. State , 779 S.W.2d 492, 494 (Tex.

App.--Houston [1st Dist.] 1989, no pet.). Since a temporary detention represents a lesser

intrusion on an individual's security and integrity than a formal arrest, a police officer's reasonable

suspicion of criminal activity warrants a temporary detention. See Perez v. State , 818 S.W.2d

512, 515-16 (Tex. App.--Houston [1st Dist.] 1991, no pet.) (citing United States v. Brignoni-Ponce , 422 U.S. 873, 881-82 (1975)). Nevertheless, even a temporary detention such as a canine

sniff of a train passenger's luggage is not permissible unless the circumstances upon which the

officer relies objectively support a reasonable suspicion that the person detained actually is, has

been, or soon will be engaged in criminal activity. See Crockett , 803 S.W.2d at 311 .

In Terry v. Ohio , the United States Supreme Court set forth the guidelines for

determining whether an investigative detention is reasonable: (1) whether the officer's action was

justified at its inception, and (2) whether it was reasonably related in scope to the circumstances

which justified the interference in the first place. See Terry , 392 U.S. at 20 ; see also Davis , 947

S.W.2d at 242 . (4) In order to determine whether an officer was reasonable in his initial action, we

ask whether there were specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant the initial intrusion. Terry , 392 U.S at 21. Moreover, we

use an objective standard to determine whether the facts available to the officer at the moment of

the seizure or the search "warrant[ed] a man of reasonable caution in the belief" that the action

taken was appropriate. Id. at 22 . The reasonableness of a temporary detention must be considered

in terms of the totality of the circumstances according to the Terry standard. See United States v.

Sokolow , 490 U.S. 1, 8 (1989); Woods v. State , 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). The

articulable facts must create some reasonable suspicion that an activity out of the ordinary is

occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and

some indication that the unusual activity is related to crime. See Davis , 947 S.W.2d at 244 . The

evidence must be more than merely relevant; it must be of sufficient probative strength to support

a reasonable suspicion of criminal misconduct. See Crockett , 803 S.W.2d at 311 .

A search that is reasonable at its inception may violate the Fourth Amendment by

virtue of its intolerable intensity and scope. See Terry , 392 U.S. at 18 . In order to determine

whether the scope of the detention was reasonable, we ask whether the continued detention was

necessary to effectuate the purpose of the stop. See Davis , 947 S.W.2d at 245 (citing Royer , 460

U.S. at 500 ). The investigative methods employed should be the least intrusive means reasonably

available to verify or dispel the officer's suspicion in a short period of time. See id. However,

the United States Supreme Court has declined to adopt any bright-line rule in evaluating whether

a continued detention is reasonable: common sense and ordinary human experience must govern

over rigid criteria. See Sharpe , 470 U.S. at 685 . The question is not simply whether some other

alternative method of investigation was available, but whether the police acted unreasonably in

failing to recognize or pursue it. See id. at 687 .

Officer Carrol stopped appellant for a valid reason and detained him because he had

received a report of suspicious activity possibly involving narcotics in Mountain View Park. We

must evaluate whether the totality of the circumstances gave rise to articulable facts and rational

inferences from those facts which would support reasonable suspicion for Officer Carrol to convert

a traffic stop into a drug-trafficking investigation. See Valencia v. State , 820 S.W.2d 397, 400

(Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). Although Carrol saw no one in the park, he

observed appellant driving away from the park area and saw him commit a traffic violation. Upon

asking appellant routine traffic-stop questions, Carrol became suspicious because appellant's

manner of dress did not square with his story that he had been playing basketball in the park.

Appellant was dressed in a long-sleeved shirt, jeans, and boots; he was not dressed in clothes that

a person would normally wear to play basketball. (5) The State bases its argument that the canine

sweep was justified on the combination of the report of possible drug activity and appellant's

suspicious story. Appellant argues that there is nothing in the record that shows any actions,

circumstances, or conditions that rise to the level of reasonable suspicion.

Allowances are made for the fact that an officer must make hasty decisions under

tense and uncertain circumstances. See Rhodes , 945 S.W.2d at 118. However, under the present

circumstances, we find that Officer Carrol did not act reasonably. At the time he stopped

appellant for the traffic violation, Carrol had insufficient evidence to connect appellant with

suspicious activities in the park. The report relayed through Officer Vasquez did not contain any

details or description that connected appellant to the man seen by the informant at the park table;

it came not from an informant of proven reliability but from an unidentified citizen who flagged

down Vasquez at a convenience store. An anonymous tip can provide sufficient reasonable

suspicion for a temporary investigative stop only if it contains sufficient details which are

subsequently corroborated. See Guzman v. State , 955 S.W.2d 85, 91 (Tex. Crim. App. 1997)

(citing Alabama v. White , 496 U.S. 325 (1990)). Officer Carrol had no details from the tip to

corroborate. Carrol attempted to search appellant's vehicle when appellant responded that he had

been in the park in the vicinity of the basketball court and because his style of dress did not appear

to match his claim of playing basketball. When appellant refused to consent to the search, Carrol

called for the canine unit to perform an exterior sniff in furtherance of his investigation of

narcotics trafficking. The totality of the present circumstances did not give rise to sufficient

reasonable suspicion that these two men were involved in criminal activity.

Various factors have been held to support reasonable suspicion of drug activity to

warrant further questioning and the calling of a canine unit, even when the initial stop is for a

traffic violation. See United States v. Finke , 85 F.3d 1275 , 1282 n.4 (7th Cir. 1996) (prior

narcotics convictions, use of a rental car, and nervousness); United States v. Bloomfield , 40 F.3d

910, 915 (8th Cir. 1994), cert. denied, 514 U.S. 1113 (1995) (perspiration, evasiveness in

answering questions, possession of a pager, and odor of a masking agent); United States v.

Shabazz , 993 F.2d 431, 433 (5th Cir. 1993) (false identification and inconsistent stories); Josey

v. State , 981 S.W.2d 831, 837-38 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (car parked

in middle of the street and plastic bag containing money found in car); Mohmed , 977 S.W.2d at

628 (nervousness and odor of drugs). In each of these cases, however, the factors supporting

reasonable suspicion were known to be common to drug sellers or supported a pattern of drug

activity. When used by trained law enforcement officers, objective facts, meaningless to the

untrained, can be combined with permissible deductions from such facts to form a legitimate basis

for suspicion of a particular person and for action on that suspicion. United States v. Cortez , 449

U.S. 411, 419 (1981). The officer must have specific, articulable facts that, in light of the

officer's experience and general knowledge, lead the officer to the reasonable conclusion that

criminal activity is underway and that the detained person is connected with the activity. See

Perez , 818 S.W.2d at 516 (citing Holladay v. State , 805 S.W.2d 464, 472-73 (Tex. Crim. App.

1991)) (officer's experience with drug trafficking surveillance combined with particular facts

supported reasonable suspicion). The facts in this case do not support Officer Carrol's conclusion

that appellant was involved in criminal activity.

Several independently inconclusive factors in combination undoubtedly create

reasonable suspicion of criminal activity in many cases. In Alexander v. State , two police officers

observed Alexander in his car in a city park three hours past the curfew established by a city

ordinance. See Alexander v. State , 879 S.W.2d 338, 342 (Tex. App.--Houston [14th Dist.] 1994,

pet. ref'd). The court held that the officers were justified in being initially suspicious that

Alexander and his companion were committing criminal trespass and in becoming more suspicious

when they approached appellant and saw him trying to hide something under the seat. The totality

of the circumstances in Alexander yielded enough articulable facts to constitute reasonable

suspicion to detain appellant. See id. In this case, Officer Carrol did not witness any activity by

appellant that would suggest criminal behavior, such as moving to conceal something or

trespassing in a city park after curfew.

In Doyle v. State , the court held that reasonable suspicion existed where an officer

received specific information from an informant that the Doyles had marihuana in the trunk of

their car. See Doyle , 779 S.W.2d at 495 . The officer was able to verify the location, make, and

license of the car as consistent with the informant's story before he stopped the car for further

investigation. See id . The court held these to be sufficient articulable facts to justify detention.

See id . In this case, Officer Carrol was not acting upon information that specifically identified

appellant or his vehicle. The testimony that appellant had been in the park and his story about

playing basketball when he was not dressed to play do not combine to establish sufficient

articulable facts to indicate that appellant specifically was involved in drug activity.

The temporary detention of an automobile to allow an olfactory inspection by a

police dog trained to detect the odor of illegal drugs does not violate the Fourth Amendment when

based on a reasonable suspicion that the automobile contains narcotics. See Mohmed , 977 S.W.2d

at 628 . However, the suspicion in Mohmed was reasonably based on the odor of burned

marihuana coming from the car. Glenn v. State , 967 S.W.2d 467, 474 (Tex. App.--Amarillo

1998, pet. dism'd), is also distinguishable. Acting upon an anonymous tip giving specific details

about Glenn's drug dealing activities, the officers detained Glenn in order to corroborate the

details of the tip. They called for a drug detection dog when Glenn refused the officers' request

to search his vehicle after they had corroborated the tip. The dog arrived within about forty-five

minutes and indicated that there were drugs in the car. The officers then searched the car and

found the drugs. The court held that because the officers were acting upon reasonable suspicion

of drug activity, both the canine sweep and the ensuing search were legal. See id. at 472-74 .

From the reporter's record in this case, it appears that appellant was stopped for no longer than

about twenty minutes before Officer Miller arrived and saw the bag of marihuana on the

floorboard. However, Officer Carrol's detention of appellant was not reasonably related in scope

to the circumstances that justified the interference in the first place. Because Officer Carrol was

not acting upon reasonable suspicion, his decision to call for the canine sweep was unreasonable.

See Place , 470 U.S. at 686 .

In cases where no articulable facts existed to support reasonable suspicion, courts

have found that such detentions violate the Fourth Amendment. See Brown v. Texas , 443 U.S.

47 (1979) (officers lacked reasonable suspicion to stop Brown just because he looked suspicious,

was in area known for heavy drug traffic, and they had never seen him there before); Davis , 947

S.W.2d at 245 (officer clearly had effectuated the purpose of the stop once he determined that

Davis was not intoxicated, and his opinion that Davis did not appear to be someone who was on

a business trip was not supported by any articulable facts); Crockett , 803 S.W.2d at 312 (while

police officers testified Crockett behaved suspiciously in purchasing ticket and walking to train,

the officers had no reason to believe that his behavior was typical of drug couriers) (citing

Sokolow , 490 U.S. at 10 ). Similarly, Officer Carrol's actions in this case were based on

insufficient articulable facts. After the initial stop, the combination of factors relied upon by the

State fail to give rise to reasonable suspicion of drug activity sufficient to justify calling for a

canine sweep.

Under the totality of the circumstances, Officer Carrol could not reasonably suspect

appellant of criminal activity. Appellant has shown that his constitutional rights were violated.

His sole point of error is sustained.

CONCLUSION

We hold that the trial court erred in refusing to suppress evidence of the cocaine.

Accordingly, the trial-court judgment is reversed and the cause is remanded.

Bea Ann Smith, Justice

Before Justices Jones, B. A. Smith and Yeakel

Reversed and Remanded

Filed: July 29, 1999

Publish

1. Appellant does not contend that the initial traffic stop for failure to signal was invalid or

constitutionally improper.

2. It is not clear from the record exactly when appellant and his passenger got out of the truck.

However, it appears that they were already out by the time Officer Miller arrived. Miller testified

at trial that when he arrived at the scene, the two men were sitting on or by the tailgate of the

truck, and both doors to the truck were open.

3. Laboratory tests confirmed that the powdery substance was cocaine.

4. Appellant does not claim that his detention was a violation of the search and seizure

provision of the Texas Constitution. Tex. Const. art. I, § 9. He appeals only under the Fourth

Amendment to the U.S. Constitution. However, we note that the Texas Constitution follows the

federal standard for an investigatory detention as set out in Terry . See Rhodes v. State , 945

S.W.2d 115, 117 (Tex. Crim. App.), cert. denied , 118 S. Ct. 236 (1997).

5. The State also contends that the fact that there was no basketball in appellant's vehicle shows

that appellant's claim of playing basketball was evidently untrue. While the absence of a

basketball tends to support the inference that appellant was lying, we do not find that it has great

bearing in determining whether Officer Carrol acted reasonably.

ut forty-five

minutes and indicated that there were drugs in the car. The officers then searched the car and

found the drugs. The court held that because the officers were acting upon reasonable suspicion

of drug activity, both the canine sweep and the ensuing search were legal. See id. at 472-74.

From the reporter's record in this case, it appears that appellant was stopped for no longer than

about twenty minutes before Officer Miller arrived and saw the bag of marihuana on the

floorboard. However, Officer Carrol's detention of appellant was not reasonably related in scope

to the circumstances that justified the interference in the first place. Because Officer Carrol was

not acting upon reasonable suspicion, his decision to call for the canine sweep was unreasonable.

See Place , 470 U.S. at 686 .

In cases where no articulable facts existed to support reasonable suspicion, courts

have found that such detentions violate the Fourth Amendment. See Brown v. Texas , 443 U.S.

47 (1979) (officers lacked reasonable suspicion to stop Brown just because he looked suspicious,

was in area known for heavy drug traffic, and they had never seen him there before); Davis , 947

S.W.2d at 245 (officer clearly had effectuated the purpose of the stop once he determined that

Davis was not intoxicated, and his opinion that Davis did not appear to be someone who was on

a business trip was not supported by any articulable facts); Crockett , 803 S.W.2d at 312 (while

police officers testified Crockett behaved suspiciously in purchasing ticket and walking to train,

the officers had no reason to believe that his behavior was typical of drug couriers) (citing

Sokolow , 490 U.S. at 10 ). Similarly, Officer Carrol's actions in this case were based on

insufficient articulable facts. After the initial stop, the combination of factors relied upon by the

State fail to give rise to reasonable suspicion of drug activity sufficient to justify calling for a

canine sweep.

Under the totality of the circumstances, Officer Carrol could not reasonably suspect

appellant of criminal activity. Appellant has shown that his constitutional rights were violated.

His sole point of error is sustained.

CONCLUSION

We hold that the trial court erred in refusing to suppress evidence of the cocaine.

Accordingly, the trial-court judgment is reversed and the cause is remanded.