Davis v. State

MANSFIELD, Judge,

concurring.

I join the opinion of the Court and write to express my concern that, in our well-meaning efforts to combat the flow of illegal drugs in our state and our country, we are coming close to destroying the protections afforded citizens from unreasonable searches and seizures under the United States and Texas Constitutions.

The record supports the conclusion the initial stop of appellant for suspicion of driving while intoxicated was permissible as a temporary investigative detention to determine if appellant was driving while intoxicated. The uncontested testimony of Officer Bivins was that appellant’s vehicle was observed weaving within its lane, behavior consistent with potential driver intoxication. Officer Bivins testified he stopped appellant’s vehicle and subsequently informed appellant of the reason for the stop. Officer Bivins testified he did not detect any odor of alcohol on or about appellant’s person. A check of the vehicle’s license plates — which were from New York — did not reveal any indication that it was stolen or involved in a criminal offense. Appellant also produced a valid New York driver’s license and informed Officer Bivins he was in the process of returning to New York.

Officer Bivins then approached appellant’s vehicle. Appellant’s female passenger identified herself and produced a valid New York driver’s license. She told Officer Bivins she was not appellant’s girlfriend but had driven with appellant to Houston a few days earlier to check out some property, and they were now on their way back to New York. Officer Bivins testified he did not detect any “suspicious odors” inside the vehicle or anything else which suggested that drugs were present. Appellant also informed Officer Bivins the vehicle belonged to his girlfriend, Nancy Terasockus, and showed Officer Weatherford (Bivins’ partner) insurance papers on the vehicle. Officer Bivins testified he was satisfied at that point appellant was not intoxicated. He did not cite appellant for any traffic offense. Appellant informed Officer Bivins he had been arrested once, for “a college protest” 25 years ago.

It has been a long-established principle of law that a police officer may briefly detain a person for limited investigative purposes if, based on specific articulable facts, an objectively reasonable suspicion exists that the person has committed, is committing, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Saenz v. State, 842 S.W.2d 286 (Tex.Crim. App.1992); Hernandez v. State, 523 S.W.2d 410 (Tex.Crim.App.1975). No person, however, may be detained, even momentarily, without reasonable and objective grounds. *247 Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983); Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). These principles apply to a seizure of personal property (e.g. a vehicle) for temporary investigative purposes. United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983). Furthermore, any detention which goes beyond the limited exception constitutionally permitted for temporary investigative detentions must be supported by probable cause. Dunaway v. New York, supra; Florida v. Royer, supra; Garza v. State, 771 S.W.2d 549 , 558 (Tex.CrimApp.1989).

It is not disputed by either the State or the appellant that the initial stop of appellant was a valid temporary investigative detention, its sole purpose being to determine if appellant was driving while intoxicated. The officers quickly determined appellant was not intoxicated. It is equally clear the Fourth Amendment did not prohibit the police officers, pursuant to a valid temporary investigative detention, from checking appellant’s drivers license to determine it was valid, 1 to verify the vehicle was not stolen or otherwise suspected of being involved in criminal activity, and to determine if appellant maintained required liability insurance. Finally, the police officers’ non-invasive visual check of the passenger compartment for the odor of drugs or alcohol and for the presence of contraband, weapons and other evidence in plain view of criminal activity was also constitutionally permissible as part of a temporary investigative detention. Up to this point, every action taken by the officers was reasonably a part of their valid temporary investigative detention to determine if appellant was driving while intoxicated.

Unfortunately, having accomplished their objective, the officers proceeded to cross the line into constitutionally-forbidden territory. As stated in Justice Burgess’ dissenting opinion, we have held where events are as consistent with innocent activity as with criminal activity, detention based upon those events is unlawful. The suspicious conduct relied upon by the officers must be sufficiently distinguishable from that of innocent people under the same circumstances to clearly, if not conclusively, set the suspect apart from them. Davis v. State, 923 S.W.2d 781, 790 (Tex.App.-Beaumont 1996), citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App. 1991); and Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983).

The justifications cited by the officers to continue the investigation, which included forcing appellant to allow a drug-detection dog to sniff his vehicle, are, at best, tenuous. The first justification given was it was late at night, about 1 A.M. While some drug dealers do travel after midnight on Texas interstate highways, so do thousands of law-abiding Texans every day of the week (including this writer who has first-hand knowledge of the large volume of traffic on the many interstates of Texas at all times of the day and night gained while campaigning for the Court throughout much of 1993 and 1994). The videotape indicates close to 100 vehicles passed by during the stop and investigation of appellant. Traveling at night is not in any way inherently suspicious.

A second factor cited by the police to justify the continued investigation was appellant told him the vehicle was borrowed. It is hard for this writer to find this as suspicious, especially since the officers had already verified the vehicle was not stolen or wanted in connection with criminal activity, the insurance papers were in order and appellant had volunteered the vehicle belonged to his girlfriend and gave them her name. The status of the vehicle, in light of the information already verified by the officers, is no indication of suspicious, much less criminal, activity-

Another factor cited by the police was appellant’s attire was “not consistent with his claimed status as a businessman.” Appellant was dressed casually at the time of the stop. To suspect someone of criminal activity who is in the process of driving from Houston to New York at 1 A.M. because he is not wearing a suit or similar attire is absurd. This Court has previously rejected attire as a ground for police to “stop and frisk” an indi *248 vidual. Baker v. State, 478 S.W.2d 445 (Tex. Crim.App.1972).

The officers also testified appellant appeared “nervous” and his movements were suspicious after they stopped his vehicle. With respect to his movements, appellant exited his car and approached the officers’ vehicle. Far from being suspicious, appellant’s movements were consistent with an intent to demonstrate he was neither dangerous nor drunk and his desire “to make points with the police by coming to them instead of making them come to him.” There is nothing (the stop was videotaped) to support any contention appellant was trying to hide anything or to hinder the investigation.

As for appellant acting nervous, it was 1 A.M., he was tired and he was a resident of a distant state stopped late at night by the police in a relatively rural area. Under such circumstances, many, if not most, people would be nervous. It is not indicative of guilt for a person to be nervous when confronted by police officers asking questions. Montano v. State, 843 S.W.2d 579 (Tex.Crim. App.1992).

Although the record does not affirmatively state so, it is reasonable to assume that perhaps the main reason why the investigation continued after the police determined appellant was not driving while intoxicated was the fact he was from out-of-state. It is common knowledge that a significant source of illegal drugs consumed in the midwestern and northeast sections of the country is Mexico and southeast Texas, including Houston. It is also common knowledge that a large percentage of these drugs are transported by vehicle and two of the major freeways utilized by the vehicles are Interstate 10 and Interstate 59 (which goes through Lufkin, where appellant’s vehicle was stopped). Neither the Fourth Amendment nor Article IV, Section 2 of the United States Constitution allow police to single out vehicles with out-of-state license plates as out-of-state residence is not a ground to suspect those in the vehicle of criminal activity. Likewise, an individual’s out-of-state residence does not constitutionally permit the continuation of the investigation of said individual once the justification for the stop itself has ended.

As the front-line warriors in the war against drugs, police officers see first-hand the tremendous harm caused every day by those who deal in drugs and the destruction of the lives and families of many of the users of drugs. There is little doubt in my mind the police officers acted with the best of intentions, yet we provide often-conflicting guidelines as to how police officers are to conduct this war. Similar to the shabby treatment by our society of those Americans who served in Vietnam upon their return from Southeast Asia, police officers suffer the taunts of detractors (notably in the worlds of academia and entertainment) who mock their efforts and their sacrifice.

In the present case, however, I must agree with the Court that applicable precedent from the Supreme Court and this Court does not permit continuance of a valid temporary investigative detention once the purpose of the detention has been accomplished and where, as here, the totality of the circumstances did not reasonably justify the officers’ continuing suspicion and investigation of appellant as a criminal suspect.

I join the opinion of the Court.

. Additionally, it was constitutionally permissible to "run” appellant’s license number through the computer to determine if he was the subject of any outstanding warrants.