State v. Hamlin , 871 S.W.2d 796 ( 1994 )

OPINION ON MOTION FOR REHEARING EN BANC

SEARS, Justice.

The State has filed a motion for rehearing en banc in which it contends that the opinion issued in this appeal is directly contrary to federal opinions, prior opinions of this court, and opinions of other appellate courts within the State.

The appellant in this case was observed at a train station and, based upon the arresting officer’s observation, was stopped and asked questions. When asked if the officer could search his luggage, the appellant replied “no”. The officer then asked the appellant permission to have a “sniff dog” come and “sniff’ the luggage, to which the appellant consented. In the Murillo¹ case, cited by the State as conflicting with this Court’s opinion, Murillo consented to the officer’s first request to look into his bags and there was no second request for a “sniff’ dog to check the luggage. Appellant herein said “no” to the initial request by the arresting officer. We find the facts of the two cases are different and are not conflicting. The State also cites Layne v. State,² from our sister court. In Layne, the defendant consented to the search, and, as pointed out in that opinion, “the officers did not threaten to hold the luggage for a ‘dog sniff for contraband.” Obviously the Layne case is different from this appeal, and is not conflicting. Also, the defendant in Layne consented to the initial request for a search. The State further cites Morrow,³ in which the police had already searched the bag pursuant to a dog sniff in the luggage area. Therefore, a dog had already alerted on the luggage prior to the appellant picking it up, and it was searched and contraband found by the police. Again, the cases cited by the State are inap-posite.

The Court of Criminal Appeals appears to be saying that if a defendant says “no” to the initial request for a luggage search, he must be free to go, and the State cannot go further without a “detention” occurring. As stated in our original opinion, we do not agree that the police should be “handcuffed” and prohibited from using the skills that they have developed in order to stop the flow of illegal drugs. However, we are still constrained to follow the opinions of the higher courts of the State.

The State also contends that the officer in this appeal had sufficient “reasonable suspicion” to conduct a temporary investigative detention. The State lists several observations made by the arresting officer that were “of importance to narcotics officers and form the basis for the reasonable suspicion.” Some of the observations, which were alleged by the arresting officer as being common to all drug couriers, were the facts that this appellant had no luggage, arrived early, and stood in line to purchase a ticket. In Murillo, cited by the State in the motion for re-' hearing, the arresting officer testified that: narcotics couriers usually arrive at the last minute; already have their ticket; and that regular passengers will typically enter the ticket line. The observations by appellant’s arresting officer are directly contrary to the testimony by the arresting officer in Murillo, as to which activity is consistent with normal, non-criminal activity. We hold that the arresting officer’s stated reasons for finding appellant’s activity worthy of investigation cannot possibly provide “sufficient reasonable suspicion in order to conduct a temporary investigative detention.”

The motion for rehearing is overruled.

1 . Murillo v. State, 850 S.W.2d 198, 200 (Tex.App. — Houston [14th Dist.] 1993, no pet.).

2 . Layne v. State, 752 S.W.2d 690, 693 (Tex.App. — Houston [1st Dist.] 1988, pet. ref’d).

3 . Morrow v. State, 757 S.W.2d 484, 490-91 (Tex.App. — Houston [1st Dist.] 1988, pet. ref’d), cert. denied, 493 U.S. 921, 110 S.Ct. 285, 107 L.Ed.2d 265 (1989).