Jeremy Wayne Baldwin v. State ( 2007 )

Affirmed and Majority and Dissenting Opinions filed September 25, 2007

Affirmed and Majority and Dissenting Opinions filed September 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00632-CR

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JEREMY WAYNE BALDWIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180^th District Court

Harris County, Texas

Trial Court Cause No. 1046027

M A J O R I T Y    O P I N I O N

Appellant, Jeremy Wayne Baldwin, was charged by indictment with possession of cocaine.  The indictment also contained two enhancement paragraphs.  Prior to trial, appellant filed a motion to suppress which, after a hearing, was denied by the trial court.  Pursuant to a plea bargain agreement, appellant then entered a plea of guilty to the offense of possession and a plea of true to the enhancement allegations.  In compliance with the plea bargain agreement, the trial court assessed appellant=s punishment at confinement in the state penitentiary for a term of three years.  In a single point of error, appellant contends the trial court erred in overruling his motion to suppress.  We affirm.

The record reflects that Deputy Tommy Smith of the Harris County Sheriff=s Office was, on November 3, 2005, working as the contract deputy patrolling the Turtle Lake subdivision.  Around ten o=clock that evening, Deputy Smith was flagged down by a middle-aged female citizen. The woman, who was holding a cell phone, told Deputy Smith that she had just called the police to report what she believed to be suspicious activity. She told Deputy Smith that she had seen a white male, dressed in black, walking around looking into houses.  She also informed Deputy Smith she did not recognize the man to be from the neighborhood.  The woman was aware, as was Deputy Smith, there had been a string of recent burglaries in the neighborhood.

Although Deputy Smith recognized the woman as being a neighborhood resident from his frequent patrolling and had previously spoken to her in passing, she was reluctant to give him any contact information because she said she did not want to be involved and did not want to have her name mentioned.  While Deputy Smith had never had to rely on information provided by the woman before, he believed she was very credible and he had no reason to doubt her.  The woman pointed out the direction she had last seen the man, and Deputy Smith quickly drove off in that direction, looking for the man in black.

Moments later, Deputy Smith saw appellant, dressed in black, walking on the sidewalk.  As Deputy Smith approached appellant, appellant turned around, saw Deputy Smith=s patrol car, and began walking at a very fast pace.  Deputy Smith caught up with appellant, exited his patrol car, and asked appellant for his identification. Appellant, who was visibly nervous, asked Deputy Smith why he wished to see his identification, and stated he had no right to stop him for walking down the street.  Appellant also refused to make eye contact, scanned the area, and spoke quickly.  Appellant did not produce any identification and, based on his unusual demeanor, Deputy Smith believed appellant was about to flee or fight.  Fearing for his safety, Deputy Smith handcuffed the appellant.

After handcuffing appellant, Deputy Smith asked appellant where his identification was located.  Appellant told him it was in his pants pocket.  Deputy Smith reached into appellant=s pocket and grabbed appellant=s wallet pouch.  Appellant=s wallet pouch had a slot, with a clear plastic covering, on one side. Appellant=s driver=s license was in this slot, behind the plastic cover.  Deputy Smith testified that, despite the clear plastic cover, parts of appellant=s driver=s license were obstructed, so he removed the license.  Once he removed the license, he saw a small baggy containing a white powder in the same slot.  Appellant immediately said: AThat dope is not mine. I found it.@  Deputy Smith field tested the white powder and it tested positively as cocaine.  Deputy Smith then arrested appellant.

On appeal, appellant contends any evidence obtained on the night of his detention and subsequent arrest was taken in violation of his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 19 of the Texas Constitution because the investigatory detention was not supported by reasonable suspicion and his arrest was not supported by probable cause.

In reviewing a ruling on a motion to suppress evidence, appellate courts afford almost total deference to the trial court=s determination of the historical facts, while reviewing de novo mixed questions of law and fact not turning on an evaluation of credibility and demeanor.  State v. Garcia, 25 S.W.3d 908, 911 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 87B88 (Tex. Crim. App. 1997)).  Questions of reasonable suspicion and probable cause are reviewed de novo on appeal.  Id. This standard applies because the trial judge is not in an appreciably better position than the reviewing court to make the determination.  Id.  In this instance, the relevant facts are not in dispute and the resolution of this appeal does not turn on an evaluation of the credibility of the two witnesses.  Therefore, we must review the trial court=s ruling de novo and determine whether there was sufficient reasonable suspicion to detain appellant for the purpose of an investigation.  Id.

There are three distinct categories of interactions between police officers and citizens:  encounters, investigative detentions, and arrests.  State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).  Encounters occur when police officers approach an individual in public to ask questions.  Harper v. State, 217 S.W.3d 672, 674 (Tex. App.CAmarillo 2007, no pet.). Encounters do not require any justification whatsoever on the part of an officer.  Id.  Because appellant was in a public place, Deputy Smith needed no probable cause or reasonable suspicion to engage him in conversation.   Police officers Ado not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.@  Perez, 85 S.W.3d at 819.  However,  when appellant became nervous, refused to identify himself, and began acting strangely, Deputy Smith feared appellant was either going to fight or flee, and appellant was detained.

A stop is deemed an investigative detention when a police officer detains a person reasonably suspected of criminal activity to determine his identity or to momentarily maintain the status quo to garner more information.  Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987).  Circumstances short of probable cause may justify a temporary detention for the purpose of investigation.  Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude the person detained is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).  The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.  Myers v. State, 203 S.W.3d 873, 882 (Tex. App.CEastland 2006, pet. ref=d).   A reasonable suspicion determination is made by considering the totality of the circumstances.  Ford v. State, 158 S.W.3d 488, 492B93 (Tex. Crim. App. 2005).  An investigative detention must last no longer than necessary to effectuate the purpose of the stop and must involve actual investigation.  Akins v. State, 202 S.W.3d 879, 885 (Tex. App.CFort Worth 2006, pet. ref=d).

Here, appellant contends the woman who reported him to Deputy Smith was not known to be credible.  More specifically, appellant claims her report was no more reliable than an anonymous tipster.  However, Deputy Smith did not detain appellant based on the woman=s report. Rather, he detained appellant only after a personal encounter with appellant on the street.  Appellant=s nervousness, shuddering, evasiveness, refusal to identify himself to a police officer, and manner of wearing all black clothing at 10:30 p.m. in a neighborhood where there had been a recent string of burglaries, coupled with the woman=s report that she had seen appellant looking into houses, are indicative of criminal activity.

Moreover, a face-to-face tip from a private citizen is considered inherently trustworthy  because the informant places himself in a position to be held accountable for his information if it proves to be false.  Garcia, 25 S.W.3d at 913.  In fact, the scenario presented here is, in many ways, similar to the one in Garcia.

In Garcia, an officer was stopped by an unidentified man in a gas station parking lot. The man told the officer he had witnessed three Aboys@ getting alcohol from their car and he believed the boys to be underage and drinking illegally.  Id. at 910.  The man pointed out the vehicle and the officer saw three youthful looking boys in the car.  Id.  The officer saw no other signs of illegal behavior, but approached the car to ask the driver for identification.  Id.  He observed signs of intoxication in Garcia, the driver, and asked him for permission to search the car.  Id. at 911.  The officer discovered no alcohol but found marijuana under the seat.  Id.  The man who reported the crime to the officer left without leaving his name or contact information.  Id.  Garcia and his passengers were charged with possession of marijuana. The trial court granted the defendants= motion to suppress, holding there was no reasonable suspicion for the initial stop, because the defendants Acould just as well been [engaged in an] innocent permissible legal activity.@  Id. at 912.  This court reversed, rejecting the Apossible innocent permissible activity@ formulation.  Id. We held the individual who flagged down the officer was Ainherently trustworthy@ because he came forward in person and could have been held accountable for the information.  Id. at 913.  In addition, the information he provided was later corroborated by the officer=s direct observation.  Id.

Here, the information provided by the unidentified woman to Deputy Smith was similarly reliable. The woman approached Deputy Smith in the same way the unidentified man approached the officer in Garcia. She, too, appeared personally before the officer and, in doing so, assumed responsibility for the accuracy of the information and could easily have been held accountable for its truth.  See Hawes v. State, 125 S.W.3d 535, 539B40 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding anonymous citizen informant was reliable based on Athe mere willingness of the informant to place himself in a position where he could be identified@ even though he never was actually identified by the officer) (emphasis in original).  Deputy Smith, the contract patrol officer for the neighborhood, testified he had seen the woman on several previous occasions and recognized her as a resident of the neighborhood. If he and the woman were acquainted, she could reasonably assume she would see Deputy Smith again in the course of his duties, and Deputy Smith could have located her had he deemed it necessary.  See Bilyeu v. State, 136 S.W.3d 691, 695 (Tex. App.BTexarkana 2004) (finding that, because unidentified citizen approached officers in his car, this would have allowed officers to identify him by looking up his license plates had they so wished, and this fact increased informant=s reliability).  A previous relationship will establish a certain degree of reliability and trust, and it is unlikely she would give purposefully inaccurate information to an officer she saw on a frequent basis.  See Adams v. Williams, 407 U.S. 143, 146B47 (1972) (holding a face-to-face informant who was Aknown to@ the officer was sufficiently reliable to establish reasonable suspicion).  The woman had also made a previous call to an emergency dispatcher to send a patrol car, although the record does not reflect whether the woman identified herself to the emergency operator.

Deputy Smith, like the officer in Garcia, testified he had no reason to discredit the informant=s statements.  She told Deputy Smith a white male was Alooking into houses and walking around@ and further testified he Amay have been@ part of a recent string of thefts. Although it is unclear from this statement the exact actions of the man she saw, it is reasonable to assume the activity she saw led her to believe that appellant=s actions were related to a crime.  His actions were specific enough for the woman to believe him involved in the recent thefts and alarmed her enough to seek police intervention.  See Fudge v. State, 42 S.W.3d 226, 232 (Tex. App.CAustin 2001, no pet.) (holding an unsolicited, face-to-face report from an unidentified cab driver that defendant driver was Aall over the road@ was specific enough in its allegations of illegality to be the sole basis of an investigative detention).  Based on the content of the witness=s statement and her credibility, Deputy Smith was justified in reasonably relying on the woman=s information and seeking to corroborate that information with his own observation.

Appellant emphasizes the fact that no illegal activity was observed by either the woman or Deputy Smith.  However, there are instances when a person=s conduct viewed Ain a vacuum@ appears purely innocent, but when viewed in light of the totality of the circumstances may give rise to reasonable suspicion. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).  Here, Deputy Smith acted on information from a woman he recognized, and the facts he observed corroborated enough of the details of her report to justify the investigation.  She described appellant=s physical description with enough accuracy to make him easily identifiable.  Appellant fit the woman=s descriptionCa white male, wearing black clothing, and walking westward.  See Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992) (holding that officers seeking corroboration of a report made permissible rational inferences of suspicion when suspect fitting description in report wore a trench coat on a warm day). As the neighborhood contract patrol officer, Smith was aware of a string of break-ins in the neighborhood in the weeks preceding appellant=s arrest. Smith=s first-hand knowledge and his training as a police officer might reasonably have led to the conclusion that a man walking alone at night dressed in black was worthy of investigation.  See U.S. v. Cortez, 449 U.S. 411, 418 (1981) (finding Awhen 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@).  As soon as Smith came into view, appellant quickened his pace and began to act nervous.  See Illinois v. Wardlaw, 528 U.S. 119, 124 (2000) (holding the Supreme Court has recognized nervous, evasive behavior as a factor in finding reasonable suspicion in Terry stops, and unprovoked flight is suggestive of wrongdoing, though not proof of it); Gaines v. State, 99 S.W.3d 660, 666 (Tex. App.BHouston [14th Dist.] 2003, no pet.) (holding defendant=s nervous demeanor and Aalmost jogging@ away from officers in an airport was sufficient to establish reasonable suspicion). Though none of these facts (the time of day, appellant=s attire, appellant=s behavior, appellant=s apparent desire to avoid contact with Deputy Smith) would independently justify reasonable suspicion, when combined might cause a person of reasonable caution to believe that the action taken by Deputy Smith was appropriate, especially in response to the unsolicited report of a concerned citizen.

The possibility of an innocent explanation does not deprive an officer of the capacity to entertain reasonable suspicion. Woods, 956 S.W.2d at 37.   Both the United States Supreme Court and the Texas Court of Criminal Appeals have rejected the Ainnocent permissible legal activity@ argument.  United States v. Sokolow, 490 U.S. 1, 9B10 (1989); Woods, 956 S.W.2d at 37.  Many actions may have both the appearance of legality and illegality, and the purpose of the investigative detention is to resolve that very ambiguity. Woods, 956 S.W.2d at 37.

While appellant was handcuffed and temporarily detained, Deputy Smith again asked appellant for his identification.  In fact, one purpose of a temporary detention is to fix the identity of the suspicious person.  Gearing v. State, 685 S.W.2d 326, 327 (Tex. Crim. App. 1985).  Appellant informed Deputy Smith that his identification was in his pocket.  Because appellant was handcuffed, he could not directly produce his identification.  We find the momentary intrusion by Deputy Smith into appellant=s pants pocket to retrieve his identification was a minimal, necessary, and reasonable encroachment upon appellant=s liberty under the circumstances presented here.  Certainly, we do not believe Deputy Smith was obliged to subject himself to harm by removing appellant=s handcuffs for the purpose of allowing appellant to retrieve his own wallet.  Thus, we find the trial court did not err in overruling appellant=s motion to suppress.

Appellant=s sole point of error is overruled, and the judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions filed September 25, 2007.

Panel consists of Justices Yates, Anderson, and Hudson.  (Anderson, J., dissenting.)

Publish C Tex. R. App. P. 47.2(b).