Mark DERICHSWEILER, Appellant, v. The STATE of Texas.
No. PD-0176-10.
Court of Criminal Appeals of Texas.
Jan. 26, 2011.
334 S.W.3d 908
Charles E. Orbison, Asst.Crim. D.A., Denton, Jeffrey L. Van Horn, State‘s Attorney, Austin, for State.
OPINION
PRICE, J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY and COCHRAN, JJ., joined.
Over a dissent, a panel of the Fort Worth Court of Appeals in this case held
FACTS AND PROCEDURAL POSTURE
In the Trial Court
The appellant was indicted for felony driving while intoxicated. At the punishment phase of trial, the jury found that he had twice before been convicted of a felony and assessed his punishment at forty-seven years in the penitentiary. Prior to trial, the appellant filed a motion to suppress evidence obtained as a product of his arrest, which occurred in the parking lot of a Wal-Mart in Lewisville. He claimed that the police lacked reasonable suspicion initially to detain him, which rendered any product of his subsequent arrest for DWI inadmissible. The parties adduced evidence relevant to the legality of the detention during both a pre-trial hearing on the appellant‘s motion to suppress and the guilt phase of the appellant‘s trial. Combined, that evidence showed the following.
At approximately 8:00 p.m., after dark on New Years Eve, December 31, 2006, Joe Holden and his wife, Joanna, were in the drive-thru lane at McDonald‘s. Joanna, who was behind the wheel, noticed that a man she did not know had pulled up beside them in a car. She described this man as “[j]ust kind of grinning and just being stopped beside us and looking straight at us[, which] just didn‘t seem normal to me.” The man lingered for between thirty seconds to a minute before driving on. Having placed their order, the Holdens were asked to pull out of the drive-thru lane while their food was being prepared. When they did so, both Joe and Joanna noticed that the same stranger had positioned his car to the front of theirs and was again grinning and staring at them. This seemed to last for fifteen to twenty seconds, after which the man circled the restaurant and then pulled up behind, and to the left side of, the Holdens’ car, “not quite blocking [them] in.” He renewed his grinning and stared at them for about the same duration, maybe a little longer.2 The Holdens felt “threatened” and “intimidated” by the man‘s peculiar conduct. They suspected that there might be a robbery in progress or that they were themselves being sized up or “stalked.”3 Joanna insist
who I was, and as I started to tell him why we were calling, my wife started giving me the description of the car and the license plates. I gave that to dispatch and told them that there was—I don‘t remember the exact words, but basically there was some suspicious behavior with the vehicle. And, you know, kind [of?] what they had done.4
Joe continued to describe the man‘s activity in the Wal-Mart parking lot to the dispatcher until the police arrived and converged on the car that he had described.5 The dispatcher asked them to remain on the scene, and a short time later they talked with one of the officers, giving him their contact information.
Officer Carraby of the Lewisville Police Department, fresh out of the academy with less than a year‘s experience on the force, received a computer message from his dispatcher about a suspicious car that was “circling the parking lot of Wal-Mart and McDonald‘s.” Supplied with the make, model, color and license plate number of the suspicious car, Carraby spotted it right away as it drove down one side of the Wal-Mart parking lot and pulled into a space. Carraby acknowledged that the only information he had to base reasonable suspicion on was the dispatcher‘s broadcast that a citizen by the name of Joe Holden was reporting a suspicious vehicle. The dispatcher did not pass along the details that had served to raise the Holdens’ suspicions.6 After the police “surrounded” the car,7 Carraby approached it and “contact
After trial, the trial court entered written findings of fact and conclusions of law with respect to the legality of the appellant‘s detention. Not all of the trial court‘s findings are supported by the record.8 However, the following findings of fact do find record support:
- On December 31, 2006, around 8:00 p.m., Joe Holden and his wife Joanna observed the [appellant] driving around the parking lot of McDonalds located in Lewisville, TX. The [appellant] was parking next to their vehicle for short periods of time, staring and grinning at the Holdens. The Holdens did not know the [appellant];
- Joe Holden and his wife Joanna had called 911 and reported the [appellant‘s] odd behavior and fear that the [appellant] might be about to commit an unknown crime against them or someone else;
* * *- The Holdens provided 911 with detailed description of the [appellant‘s]
vehicle to include the make, model, color, and complete license plate number of his car; - When Officer Carraby arrived at the scene after receiving the Holden‘s information from dispatch, he observed [the car they had described] driving through the Wal-Mart parking lot. This information corroborated the specific description provided to dispatch by Joe Holden;
- The Holdens remained on the scene after the Lewisville police arrived, thereby placing themselves in a position to be held accountable for their report[.]
From these facts, and reasoning from the opinion of this Court in Bobo v. State,9 the trial court concluded:
Like the officer in Bobo, Officer Carraby was presented with information by an identified informant of an individual‘s suspicious activity but no specific criminal act. Officer Carraby was able to identify the [appellant‘s] vehicle from the specific description provided to him by the Holdens at the location they reported, thereby corroborating the tip he had received. Based on Officer Carraby‘s testimony, he clearly had reasonable suspicion to detain the [appellant] to investigate his suspicious behavior and possible involvement in criminal activity.
On appeal, the appellant argued that the trial court erred in denying his motion to suppress. Over the dissent of one of its members, a panel of the court of appeals agreed.10
In the Court of Appeals
The court of appeals acknowledged case law from this Court holding that probable cause (if not reasonable suspicion) may be judged by the sum of information known to the police, collectively, at the time of a warrantless arrest.11 Nevertheless, the court of appeals initially measured reasonable suspicion in this case “by looking at only those facts known to Officer Carraby” at the time he detained the appellant,12 apparently discounting the specific information that the Holdens supplied to the dispatcher during the 911 call. Because Carraby did not personally observe any criminal behavior, and because the behavior that Carraby did observe—the appellant “circling” the Wal-Mart parking lot at 8:00 p.m.—while it may not have been “normal,” does not specifically suggest criminal conduct per se, the court of appeals concluded that he lacked reasonable suspicion to justify the detention.13 Along the way, the court of appeals distinguished Bobo, upon which the trial court had relied, by observing that the information that had been known to the detaining officer there specifically suggested that the offense of criminal trespass had been committed.14
Alternatively, the court of appeals held that, even considering the specific informa
Justice Gardner disagreed. She argued in dissent that the majority erred to require, as a prerequisite to reasonable suspicion, that the information making up the totality of the circumstances must include some specific observation of a crime.18 Like the trial court, she believed our opinion in Bobo to be controlling and disagreed with the majority‘s contention that the defendant in Bobo had been observed engaging in criminal trespass.19 Ultimately, Justice Gardner found that the totality of the circumstances, though comprised of innocent enough conduct on the appellant‘s part, was nevertheless sufficient in the aggregate to provide reasonable suspicion to believe that he was committing the offense of driving while intoxicated.20 We granted the State‘s petition for discretionary review to address whether the court of appeals erred by requiring some observation of a specific criminal offense as a necessary component of reasonable suspicion under the totality of the circumstances.21
THE LAW
Standard of Review
In reviewing a trial court‘s ruling on a pre-trial motion to suppress, an appellate court must give almost total deference to the trial court‘s resolution of questions of historical fact and of mixed questions of law and fact that turn on the weight or credibility of the evidence.22 The trial court‘s findings of fact, as we have set out in the text above, are amply supported by the record. In any event, in this particular case, whether there was a reasonable suspicion to detain the appellant does not turn on the demeanor or credibility of the witnesses, but on the legal significance of the facts they recounted. Accordingly, we accept the trial court‘s findings of fact as recounted above as true and proceed, de novo,23 to the legal question whether the totality of the circumstances as so construed satisfied the State‘s burden to prove that the appellant‘s warrantless investigative detention was supported by reasonable suspicion.24
Under the Fourth Amendment, a warrantless detention of the person that amounts to less than a full-blown custodial arrest must be justified by a reasonable suspicion.25 A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.26 This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention.27 It also looks to the totality of the circumstances;28 those circumstances may all seem innocent
ANALYSIS
What Is Not At Issue Here
There is no issue in this case with respect to the reliability of the information supplied by the citizen-informants—the Holdens. As the trial court found, they identified themselves to the 911 dispatcher and remained answerable for their report after the fact. That report was based upon their own first-hand perceptions, many of which they continuously and contemporaneously narrated to the police via the 911 dispatcher. Nor do we hesitate to include what the Holdens reported as part of the objective information that Officer Carraby was entitled to rely upon in making the investigative stop. Even if Carraby was not personally aware of the detailed information the Holdens had reported to substantiate their perception that the appellant‘s car was “suspicious,” the 911 dispatcher was. The trial court specifically found that the Holdens described the appellant‘s conduct, both as directed at them in the McDonald‘s parking lot, and later, as it was apparently directed at others (or at least at other cars) in the parking lot of the Wal-Mart, to the 911 dispatcher. It matters not that the dispatcher did not pass all of these details along to the responding officers. In assessing reasonable suspicion, vel non, a reviewing court looks to the totality of objective information known collectively to the cooperating police officers, including the 911 dispatcher.36 The issue in this case boils down, therefore, simply to whether the totality of that reliable infor
Reasonable Suspicion of a Particular Offense?
As the appellant argues, the facts invoked to justify an investigative detention must support more than a mere hunch or good-faith intuition that criminal activity is afoot.37 To support a reasonable suspicion, the articulable facts must show “that some activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual activity, and some indication that the unusual activity is related to crime.”38 Does this mean that the facts must point distinctively to the actual or impending commission of a particular penal code offense? The court of appeals majority seems to have believed so. The point of contention between the majority and dissenting opinions below hinged upon their competing interpretations of Bobo. The majority believed that the articulable facts supporting the stop in Bobo provided sufficient reason to believe that a criminal trespass had occurred.39 Justice Gardner disagreed that Bobo turned on a finding that the facts pointed to a particular and distinct penal offense.40 We conclude that the majority below erred to the extent that its opinion may be read for the proposition that facts adduced to give rise to a reasonable suspicion must show that the detainee has committed, is committing, or is about to commit, a particular and distinctively identifiable penal offense.
Unlike the case with probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction. The reason is simple but fundamental. A brief investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full-blown custodial arrest. For this reason, a warrantless investigative detention may be deemed “reasonable” for Fourth Amendment purposes on the basis of a lesser quantum or quality of information—reasonable suspicion rather than probable cause.41 Likewise, because a detention is less intrusive than an arrest, the specificity with which the articulable information known to the police must demonstrate that a particular penal offense has occurred, is occurring, or soon will occur, is concomitantly less. It is, after all, only an “investigative” detention. So long as the intrusion does not exceed the legitimate scope of such a detention and evolve into the greater intrusiveness inherent in an arrest-sans-probable-cause, the Fourth Amendment will tolerate a certain degree of police proaction. Particularly with re
While it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant‘s conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least. Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability—a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.
Nothing about our opinion in Bobo is inconsistent with this holding. In Bobo, the defendant and a companion were observed by a citizen-informant “milling around some townhouses.”43 It is true that, at another point in Bobo, we characterized this as an observation that the defendant and his companion were “in an area where they should not be[.]”44 But we never explained this characterization and never expressly declared that Bobo had thereby committed the offense of criminal trespass. We simply held:
The report of a citizen identifying suspicious persons around several homes, the observation of appellant, who matched the description in the report, leaving in an automobile subsequent to the report and [the detaining officer‘s] experience all provided [the officer] a reasonable articulable suspicion that appellant was connected with criminal activity.45
So far as we know, it is not a criminal trespass simply to “mill around” townhouses. Even so, under the totality of the circumstances, we held that the detaining officer had reasonable suspicion to detain Bobo. We likewise hold today that the totality of circumstances, including the appellant‘s strangely persistent, if admittedly non-criminal, behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity.46
CONCLUSION
For the foregoing reasons, we reverse the judgment of the court of appeals. The
KELLER, P.J., filed a concurring opinion.
MEYERS, J., filed a dissenting opinion.
JOHNSON, J., dissented.
KELLER, P.J., concurring.
I think the Court misconstrues the opinion of the court of appeals. The Court believes that the crux of that opinion is whether the officer had reasonable suspicion with respect to a specific penal code offense. That is an interesting issue, but it is not in the case, and it was not the issue that was briefed by the parties.
Before making a stop, an officer must have reasonable suspicion that a person “is, has been, or soon will be” engaged in criminal activity.1 The court of appeals cites that proposition correctly,2 but the gist of its opinion is that there must be reasonable suspicion that a person actually “is” engaged in illegal activity.3 Here, there was instead reasonable suspicion that appellant “soon would be” engaged in criminal activity. That is sufficient under the law.
Like the Court, I would reverse the judgment of the court of appeals. Because the Court analyzes an issue that is not before it, I join its judgment only.
MEYERS, J., dissenting.
According to the majority, someone can call the police and give their name and a description of a vehicle they think is suspicious, and without any other information,
I also do not see how “reasonable suspicion he was about to engage in criminal activity” allows an officer to stop someone. I thought you had to have already committed a crime or an officer had to observe you committing a crime. They might have gotten by with a community care-taking theory but I‘m not buying into the anticipatory illegal behavior proposal. Nevertheless it‘s the law now.
I‘m not saying that a 911 caller has to cite a specific penal code section when reporting suspicious activity, but a general description of non-threatening, non-criminal behavior, that is neither observed nor corroborated by an officer, is not sufficiently detailed and reliable information “to suggest that something of an apparently criminal nature is brewing.” The majority says the behavior (a driver grinning at the people in the car next to him) that was observed by the 911 caller was “bizarre” and “reasonably suggests someone who was looking to criminally exploit some vulnerability—a weak or isolated individual to rob or an unattended auto to burgle.” Or maybe, just maybe, Appellant could have been looking for someone to give him directions.
Because the court of appeals got it right, I respectfully dissent.
LAWRENCE E. MEYERS
JUDGE
John David MARTINEZ, Appellant, v. The STATE of Texas.
Nos. PD-1238–10, PD-1239-10.
Court of Criminal Appeals of Texas.
June 29, 2011.
Notes
I wasn‘t sure what the motive was. I didn‘t know if there was—maybe when we pulled in we cut somebody off, not knowing it and upset them. So, you know, if they were out to get us or if there was a robbery in progress. I wasn‘t sure what the situation was, why this was happening or what provoked this person to do this.
On cross-examination, Joe admitted that he had witnessed no criminal conduct and that the man had made no overtly threatening gestures towards them. Asked whether the man had made “any movements or articulations of any kind that caused you to believe that the individual was about to commit a crime against you?“, Joe replied, “I don‘t know how to define that, whether it was just a feeling we had that—by being stared down, that something wasn‘t right. Let me put it that way.” For her part, Joanna testified that she felt “[f]ear. I didn‘t know what he wanted. I didn‘t know if he was going to rob us. If—I didn‘t know what he wanted. I was just afraid at that point.” She also admitted on cross-examination that she had witnessed no clear-cut criminal behavior or threat, but nevertheless, she “felt like he was stalking us.” Id. at 811 (contrasting reasonable suspicion to believe that suspects were committing trespass because they were in a place “where they should not be” with present case in which the officer merely observed the suspect “circling two public parking lots at 8:00 p.m., an act which does not constitute criminal behavior” and concluding that “this is not a case in which the officer received information that a citizen informant witnessed criminal behavior“).I remember just watching the vehicle. And, of course, my husband is still on the phone with 911. And as he‘s on the phone with 911, I am relaying: He‘s moving here, moving there; he‘s moving closer to the door at Wal-Mart. And at that point, the police officers came in.
This finding is misleading at best, in two respects. First, Carraby had no independent recollection of what dispatch had told him at all. He was allowed to refresh his memory with his offense report, however, and once he did so he testified:Although Officer Carraby testified that he could not remember if dispatch had provided any information from [the] Holdens of any specific crime that had been committed or was about to be committed by the [appellant], he did testify that he had reasonable suspicion to believe that there was possible criminal activity underway or about to occur based on the information provided by dispatch[.]
If anything, the inference to be drawn from this, as well as from the balance of Carraby‘s testimony, see note 6, ante, is simply that the dispatcher never provided him with any information about a specific crime that the appellant had committed or was about to commit—not that he could not remember whether dispatch had so informed him. Second, Carraby never specifically testified that he believed he had a reasonable suspicion to detain the appellant. He was never asked to give, and did not offer, any opinion whatsoever with respect to this question of law. He did testify that he personally believed “there was possible criminal activity afoot” by virtue of the fact that, although not against the law, “it‘s not normal for vehicles to drive around the parking lot at 8:00 o‘clock at night.”I don‘t remember from memory, but based on the document that I‘m reading, it was a suspicious subject phone call. The witness advised they saw a small gray car. They gave the ... Texas license plate number as ... 971 MPM, circling the parking lot of Wal-Mart and McDonald‘s. The complainant thought that the vehicle was suspicious and wanted us to check it out.
In another of its findings of fact, the trial court found that Carraby “corroborated the Holden‘s [sic] strange behavior and suspicion of criminal activity by contacting the [appellant] and observing signs that he was intoxicated[.]” This finding, while well enough supported by the record, is irrelevant to the question whether the initial stop of the appellant was lawful. That the appellant appeared intoxicated came to light only after the challenged detention was a fait accompli. It cannot be invoked retroactively to help justify that detention. Cf. Florida v. J. L., 529 U.S. 266, 271 (2000) (“The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.“); Crain v. State, 315 S.W.3d 43, 52-53 (Tex. Crim. App. 2010) (same).