Lead Opinion
delivered the opinion of the Court in which
Chris Furr was charged with possession of a controlled substance after police found heroin on him while patting him , down for weapons. He filed a motion to suppress, arguing that he was illegally stopped and frisked. The trial court denied the motion. Furr pled guilty, and was sentenced to two years’ imprisonment, probated for three years. He appealed the denial of the motion to suppress, once again arguing that he was illegally stopped and frisked. The court of appeals affirmed the' trial court’s ruling. Furr v. State, No. 13-14-00287-CR,
FACTS
One- Tuesday afternoon, Officer George Alvarez of the Corpus Christi Police Department responded to an anonymous tip that two white males, one in all black and one in a black shirt and carrying a brown backpack, were using drugs on a street corner. An officer who later arrived at the scene testified that the corner was located in a “high drug, high crime” area. In response to the call, Alvarez drove by the street intersection and saw two males who fit the description given by the informant. As he drove past the men in his police car, he noticed in his rearview mirror that they were watching him as he drove past. He then approached the two,
Both officers entered the shelter to make contact with Furr. They found him in the facility’s yard, where according to Ayala, he was still acting nervous, seemed anxious, was profusely sweating, appeared to be evasive, and was trying to avoid them. Ayala asked Furr if he had any weapons on him, but Furr did not initially respond. It appeared to Ayala that Furr was “kind of out of it” and “looked like he was under the influence of a drug.” To protect himself and others, Ayala frisked Furr for weapons. While doing so, he felt something in Furr’s right front pocket that he knew from experience was a glass crack pipe. As he removed the pipe, he also found two syringes. After seizing the contraband, Furr was arrested for possession of drug paraphernalia, and according to Ayala, he was no longer free to leave. Ayala asked if he had any identification,
Furr was charged with possession of a controlled substance. He filed a motion to suppress, which the trial court denied. The record contains no findings of fact or conclusions of law. Furr pled guilty after losing his motion to suppress, but he reserved his right to appeal the ruling of the trial court.
COURT OF APPEALS
Furr argued on appeal that the anonymous tip did not establish reasonable suspicion to detain and frisk him, but the court of appeals disagreed. Furr,
When analyzing whether police had reasonable suspicion to detain Furr, the court of appeals stated,
That Furr looked back at Alvarez when he walked away is not indicative of imminent criminal activity and is not “sufficiently distinguishable” from the behavior in which an innocent person would have engaged. Ayala stated that Furr was acting “nervous” and was “sweating,” but nervousness alone is insufficient to constitute reasonable suspicion. Moreover, we do not believe that sweating while standing outside in the middle of a south Texas summer afternoon is indicative of ‘ anything but a properly functioning human thermoregulation system.
Id. at *6 (internal citations omitted). Nevertheless, based on Ayala’s testimony that Furr “was just kind of out of it,” “looked like he was under the influence of a drug,” and Furr’s failure to respond when Ayala asked if he was armed, the court held that the tip was sufficiently corroborated to warrant a brief detention and a limited pat down of Furr for weapons.
ARGUMENTS
Furr argues that United States Supreme Court precedent requires us to conclude that the anonymous tip in this case, without more, was insufficient to justify the stop and frisk. Among other cases, he relies on Florida v. J.L.,
The State responds that Furr’s deten-, tion did not begin until the frisk itself; therefore, anything that happened prior to the frisk can be considered in determining reasonable suspicion. The State also argues that there are a number of other factors that, when considered together, are sufficient to establish reasonable suspicion here: (1) the relative contemporaneity; (2) the high-crime location of the incident; (3) Furr’s altering course and retreating into the shelter upon seeing law enforcement; and (4) Furr’s nervousness, (5) unresponsiveness, and (6) possible intoxication.
With respect to the weapons frisk, the State contends that an officer’s objective belief that a suspect is armed and dangerous can be predicated on the nature of the alleged criminal activity alone, and it argues that we should apply the “guns follow drugs” presumption to people accused only of possessing drugs. Griffin v. State,
STANDARD OF REVIEW
We review a trial court’s denial of a motion to suppress for an abuse of discretion and apply a bifurcated standard of review, affording almost complete deference to the trial court’s determination of historical facts, especially when those determinations are based on assessments of credibility and demeanor. Crain v. State,
DETENTIONS & FRISKS
“There are three distinct types of police-citizen interactions: (1) consensual encounters that do not implicate the Fourth Amendment; (2) investigative detentions that are Fourth Amendment seizures of limited scope and duration that must be supported by- a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, that are reasonable only if supported by probable cause.” Wade v. State,
We review de novo the question of whether a consensual encounter has advanced into a detention. Id. at 668. There is no bright-line rule dictating when a consensual encounter becomes a detention. Id. at 667. Courts must examine the totality of the circumstances to determine whether a reasonable person would have felt free to ignore the officer’s request or to terminate the consensual encounter. Id. Formulated a different way, a Fourth Amendment seizure occurs when there is application of
Reasonable suspicion to detain a person exists when a police officer has “specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Id. at 668. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Illinois v. Wardlow,
An officer is justified in engaging in a protective frisk if he reasonably suspects that the person who he has lawfully detained is presently armed and dangerous. Wade,
FLORIDA v. J.L.
In J.L., an anonymous informant called police and reported that a young black male was at a bus stop wearing a plaid shirt and had a gun. J.L.,
The court noted that the only suspicion officers had that J.L. was armed was based on the anonymous tip, not any observations of their own, and that because the tip lacked sufficient indicia of reliability, the police did not have reasonable suspicion for the stop and frisk. Id. at 271, 274,
ANALYSIS
The court of appeals held that Furr’s nervousness in combination with Ayala’s observation that he appeared to be under the influence of a drug corroborated the tip sufficiently to support a brief investigative detention and that Furr’s failure to promptly respond to Ayala’s question about whether he was armed, in combination with the other circumstances, supported the protective frisk. Furr,
1. The Stop
Police received an anonymous tip that two people were using drugs on a specific street corner, and the tipster gave a description of the two men. The police knew that street corner to be a “high drug, high prime” area. When Alvarez approached the area in question, he found two individuals who matched the description provided by the informant. As he drove past Collier and Furr, he saw the two through his rearview mirror watching his vehicle as he drove away. When Alvarez approached them on foot to discuss the anonymous tip, Collier talked with Alvarez, but Furr walked away like he was trying to get away, glancing back at the duo repeatedly as he went.
Here, as in J.L., the tip was sufficient only to identify the people that were allegedly engaging in illegal activity. J.L.,
2. Terry Frisk
Ayala testified that he patted Furr down for safety reasons because, when officers make contact with a subject on the street who is accused of using drugs in a “high drug, high crime” area, there is always a reason to believe that they will have weapons. Alvarez testified similarly. On cross-examination, Ayala said that, when he patted Furr down, he did not feel in danger or threatened. Alvarez and Ayala agreed that they did not see Furr commit a crime and that all of this began because of an anonymous tip describing the clothing of two people who were “doing drugs” on a specific street corner.
At the outset, the State argues that we should adopt á rule that it is per se objec
Nevertheless, we agree with the court of appeals that a reasonably prudent person considering all of the circumstances in this case, including the anonymous tip, the personal observations of police, and the area involved, would have been warranted in believing that his safety or that of others was in danger. Accordingly, we hold that police were objectively justified in patting down Furr for weapons.
CONCLUSION
Because we conclude that the police had reasonable suspicion to temporarily detain Furr and to pat him down for officer safety, we affirm the judgment of the court of appeals.
Notes
. The record is not clear, but it appears that Alvarez got out of his cruiser after driving past the two men and approached them on foot.
. In a footnote, the court of appeals also stated that "there were facts other than Furr's failure to respond promptly to the question of whether he was armed that supported reasonable suspicion to detain—such as the fact that Furr matched the anonymous tipster's vague description and that he appeared to be under the influence of drugs.” Furr,
. That argument states that, because people who possess drugs tend to have weapons, police are justified in frisking for weapons anyone suspected of possessing drugs. While acknowledging many cases holding that drug-trafficking suspects can be frisked for weapons because of the nature of the alleged criminal activity, the court declined to apply that presumption to people merely suspected of drug possession. Furr,
. Addressing the objective nature of the Terry test, the Fifth Circuit has explained,
Terry cannot be read to condemn a pat-down search because it was made by an inarticulate policeman whose inartful courtroom testimony is embellished with assertions of bravado, so long as it is clear that he was aware of specific facts which would warrant a reasonable person to believe he was in danger. Under the familiar standard of the reasonable prudent man, no purpose related to the protective function of the Terry rule would be served by insisting on the retrospective , incantation “I was scared."
Some foolhardy policemen will never admit fear. Conversely, reliance on such a litany is necessarily prone to self-serving rationalization by an officer after the fact. It would be all too easy for any officer to belatedly recite that he was scared, in situations where he neither had any reason to. be scared, nor was indeed scared.
United States v. Thorpe,
. Furr had the legal right to avoid the consensual encounter by walking away before it began or to end it after it began by walking away. That is the essence of “consensual.” But we emphasize that the inquiry at this point is whether, under the totality of the circumstances, the police had reasonable suspicion to detain Furr for investigative purposes. Furr’s decision to walk away, while Collier stayed to talk to Alvarez, was a perfectly acceptable one, but when considering the cumulative force of all of the circumstances, his choice to walk away may appear considerably more suspicious.
. We agree with the State that Furr was not detained until the frisk itself; therefore, anything that happened prior to the frisk can be considered in determining whether the police had reasonable suspicion to seize Furr. It was not until Ayala informed Furr that he was going to pat him down for weapons, and Furr submitted to that assertion of authority, that a reasonable person would not have felt free to ignore Ayala’s command or to terminate the encounter.
. Although the court of appeals ultimately reached the correct result, we are compelled to address a portion of its reasoning. In Wade, we said that the “the totality of the suspicious circumstances that an officer relies on must be sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set the suspect apart from them.” Wade,
Our statement in Wade did not change the reasonable-suspicion inquiry or its totality-of-the-circumstances approach. We merely recognized that reasonable suspicion does not exist unless the totality of the circumstances supports that conclusion. Wade,
Dissenting Opinion
filed a dissenting opinion.
I was originally assigned this case and wrote an opinion holding that the stop and frisk of Appellant were unlawful. See the attached Exhibit A. The majority disagreed with me and has now issued an opinion that is not based on law, but on the feeling that the Appellant should not get relief. This is very similar to the Court’s holding in Murray v. State,
This case highlights how an officer can state even the most elusive characteristics of the interaction between himself and a suspect in order to justify his conduct toward the suspect. A glance, a “furtive” movement, anxiety, and evasiveness of a man in a homeless shelter who appeared to be “kind of out of it” are very tenuous reasons for violating someone’s Fourth Amendment rights. I would go back to the standard where we required specific artic-ulable facts to raise reasonable suspicion that someone is engaged in criminal activity and where anonymous tips had to be independently corroborated for reliability. But I guess this case gives the majority all the feels and it just can’t resist upholding a detention and search.
I respectfully dissent.
EXHIBIT A
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0212-15
MEYERS, J., delivered the opinion of the Court.
OPINION
Appellant was charged with possession of less than one. gram of a controlled substance after police found heroin on him during a pat -down. Appellant filed a pretrial motion to suppress, which the trial court denied. Appellant. then pled guilty and was sentenced to two years’ imprisonment, with the sentence suspended and Appellant placed on community supervision for three years. Appellant appealed the denial of the motion to suppress, arguing that the actions of the officers constituted an illegal search and that the trial court erred in denying the motion. Furr v. State, No. 13-14-00287-CR, ,
FACTS
Officers Mike Ayala and George Alvarez testified that they were separately patrolling the downtown area of Corpus Christi when an anonymous call came in that reported two white males, one in all black and one with a black shirt and brown backpack, using drugs on a specific street corner. Officer Ayala testified that this corner was located in a known “high crime, high drug” area. When Officer Alvarez drove by this location, he saw two males that fit the description. As he drove past the corner, he noticed in his mirror that the men were looking back at his car. Officer Alvarez then approached Appellant’s companion and, while speaking to him, saw Appellant retreat into the nearby Mother Teresa Shelter. Officer Ayala then arrived, and the two officers went into the shelter to make contact with Appellant. They made contact with Appellant in the yard of the facility, and Officer Ayala testified that Appellant was acting “kind of anxious, nervous, sweating.” Officer Ayala testified that Appellant seemed “out of it” and that he asked Appellant whether he had weapons on him. Appellant did not initially respond. Officer Ayala then conducted a weapons pat-down of Appellant and felt something he knew to be a glass crack pipe in Appellant’s pocket. Officer Ayala removed the pipe and two syringes from Appellant’s pocket and placed him under arrest for possession of drug paraphernalia. The officer then pulled out Appellant’s wallet to get his identification and found two balloons that he believed to contain heroin.
During the suppression hearing, Officer Ayala testified that he arrived after Appellant had already retreated into the shelter and was simply told about him by Officer Alvarez. However, because Appellant’s clothing fit the description from the anonymous call, they went into the shelter to make contact with Appellant. Officer Alvarez explained that at the point when he made contact with Appellant, he was conducting an investigation, and Appellant was no longer free to leave. Officer Alvarez stated that he did not see Appellant commit a crime and that he was working only off of the anonymous call and the fact
Officer Alvarez agreed that he conducts a Terry frisk every single time there is a call of this nature because there is a reasonable suspicion that any subject he is contacting on the street has weapons on them. He also agreed that he was not in fear of Appellant, and that, apart from the anonymous call, he. did not have any reason to believe that Appellant had any weapons on him or was involved in criminal activity.
The trial court denied Appellant’s motion to suppress without written findings of fact or conclusions of law. Appellant subsequently pled guilty to possession of heroin, reserving his right to appeal the trial court’s suppression ruling.
COURT OF APPEALS
Appellant appealed the trial court’s denial of his motion to suppress, arguing that the anonymous tip was not enough to provide the officers with the reasonable suspicion necessary to detain and frisk him.
The court of appeals first explained that, while a brief investigative detention is permitted where the officer has a reasonable suspicion that the individual is involved in criminal activity, the additional weapons frisk can occur only when there is a concern for officer safety. Id. at *3, 2015 Tex.App. Lexis 526 at *9-10 (citing Carmouche v. State,
The court of appeals said that Appellant’s case was unlike that of Matthews, in which we held that an anonymous tip alleging, that an individual was selling cocaine at a specific location could establish reasonable suspicion because it was supported by sufficient signs of reliability. Id. at *.5, 2015 TexApp. Lexis 526 at *14. It explained that the present case is distinguishable because: (1) Matthews did not consider reasonable suspicion to support a
■ The court of appeals affirmed the judgment of the trial court, and Appellant filed a petition for discretionary review with this Court. We granted review to determine whether the court of appeals erred in holding that the officer’s stop and frisk of Appellant was justified.
ARGUMENTS OF THE PARTIES
Appellant’s Argument
Appellant argues that the anonymous tip, without more, was' not sufficient to justify the'officers’ stop and frisk. Because the tip was anonymous, Appellant explains that the officers must have independently corroborated the tip’s information to establish that it was reliable in its assertion of illegality before conducting the investigative detention. Appellant asserts that the officers in this case verified only innocent details of the tip, such as the clothing description, prior to detaining him and that the only indication to the officers of drug activity—Appellant’s sweat and nervousness—occurred at the moment of detention. Appellant points out that the officers never testified that either believed that Appellant was involved in, about to be in involved in, or had been involved in, criminal activity.
Appellant contends that United States v. Sokolow,
(1) he paid $ 2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage.
Id. at 3,
Appellant also points to Florida v. J.L.,
State’s Argument
The State asserts that the detention of Appellant did not begin until the frisk itself and, therefore, anything that happened prior to the frisk can be considered in determining reasonable suspicion. The State argues that, although there is no direct evidence of the credibility of the anonymous caller, the relative contemporaneity, the high-crime location of the incident, Appellant’s altering course and retreating into the shelter upon seeing law enforcement, and Appellant’s nervousness, unresponsiveness, and possible intoxication are all factors that, together, are sufficient to raise a reasonable suspicion that Appellant was engaged in criminal activity.
The State contends that the officers’ frisk of Appellant was justified if, in addition to a having a reasonable suspicion of criminal activity, they also reasonably believed that he was armed and dangerous. The State explains that this belief can be predicated on the type of criminal activity that is suspected and that this Court has recognized that it is “objectively reasonable for a police officer to believe that persons involved in the drug business are' armed and dangerous.” Griffin v. State,
STANDARD OF REVIEW
We review a trial court’s denial of a motion to suppress under a bifurcated standard of review. Delafuente v. State,
DISCUSSION
We must first examine whether the officers had a reasonable belief, based on specific articulable facts, that Appellant was engaged in criminal activity so as to make their initial stop and detention of him justified. Terry,
An officer’s suspicion may be based on information provided by an informant’s tip, rather than the officer’s own observations, if that tip exhibits “sufficient indicia of reliability.” Alabama v. White, 496 U.S.
Officer Ayala testified that, at the point when they made contact with Appellant, they were conducting an investigation and that Appellant was no longer free to leave. This means that Appellant was detained at the first point of contact and that only circumstances that were evident to the officers prior to that point can be considered in determining whether they had a reasonable suspicion of criminal activity. Here, the circumstances evident to .the officers prior to the detention were: (1) the anonymous tip; (2) the location being a “high drug, high crime” area; and (3) Appellant looking over his shoulder as he walked into the' shelter.
The anonymous tip in this case lacked suitable indicia of reliability that would allow for it to provide the officers with reasonable suspicion. As in Florida v. J.L., this tip contained no predictive information on-which to test the tipster’s credibility or knowledge. Id. It contained only the barest allegation of drug use along with a physical description of the alleged users. There was no information by which to identify the informant or hold him or her accountable. As the Supreme Court has stated, a tip that provides an “accurate description of a subject’s readily - observable location and appearance” is reliable for the limited purpose of correctly identifying the individual being accused, but it “does not show that the tipster has knowledge of concealed criminal activity.” Id. at 272,
Because the circumstances preceding Appellant’s detention, even when viewed in the light most favorable to the trial court’s ruling, do not justify a reasonable suspicion that Appellant was involved in criminal conduct, the officer’s detainment was unlawful. We, therefore, do not get to the question of whether the officers had an objectively reasonable belief that Appellant was armed and presently dangerous.
CONCLUSION
Neither the anonymous tip, the location, nor Appellant’s looking over his shoulder are sufficient, alone or in combination, to constitute reasonable suspicion. Therefore, the stop and frisk was unlawful and the heroin that was found as a result of that frisk should have been suppressed. For these reasons, the court of appeals erred in upholding the trial court’s denial of the motion to suppress. We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this opinion.
. In Terry v. Ohio,
. See Crain v. State,
. We agree with the conclusion bf the court of appeals that this act is not sufficiently distin