Lead Opinion
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of possession of cocaine. Punishment, enhanced by a prior felony conviction, was assessed at ten years in the Texas Department of Corrections (now the Texas Department of Criminal Justice, Institutional Division). On appeal, appellant’s conviction was affirmed by the Fourteenth Court of Appeals in Gurrola v. State,
A brief review of the facts surrounding the detention and subsequent search of appellant is appropriate.
Late one afternoon, Harris County Deputy Ronald Butler was patrolling a subdivision of Cloverleaf in a patrol vehicle. An unknown man walking a dog approached Deputy Butler and reported some type of disturbance occurring at the Bonham Street Apartments. Deputy Butler knew the apartment complex to be an unsafe location that had incurred several complaints of disturbances from area residents. Deputy Butler drove over to the parking lot of the complex where he saw three men and a woman engaged in what appeared to be an argument. The deputy approached the individuals to find out “what was going on,” but as he did so, they all began to leave.
After the individuals began to disperse, Deputy Butler told them all to come baсk. They were ordered to place their hands on a parked vehicle and a pat-down search of appellant and the others ensued. This initial search of appellant yielded a .38-caliber handgun. A further invasive search produced a packet of a white powder substance that was later found to be cocaine. Appellant was arrested and charged with possession of a controlled substance. Appellant filed a motion to suppress the gun and the cocaine, alleging that they were illegally seized from his person. Jorge Rodriguez, one of the four detainees, and appellant both testified at the suppression hearing that there was no argument or dispute. Their testimony indicated that the four individuals were discussing a dance to be held later that evening.
Appellant contends that the initial detention of the four individuals was illegal. Appellant further contends that the search of his person was not justified by reasonable suspicion or concern for the safety of the officer. Appellant argues that the evidence
A police officer may briefly stop a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Hoag v. State,
The Court of Appeals justified the stop and temporary detention of appellant on four grounds. First, the Court of Appeals held that Deputy Butler witnessed a public altercation, which they held to be an out of the ordinary occurrence. Second, the Court of Appeals held that Deputy Butler saw appellant participating in the disturbance. Third, the Court of Appeals held that the disturbance plausibly threatened a breach of the peace. Finally, the Court ruled that the immediate dispersal of the individuals upon the arrival of the police was not conduct as consistent with innocent activity as with illegal activity. However, upon review of the record in this case, in light of applicable case law, it is apparent that the Court of Appeals has miseharacterized the evidence and extended the law beyond its intended scope.
The testimony of Deputy Butler at the suppression hearing revealed that the four detainees were engaged in no more than a heated discussion when he arrived in thе parking lot where they stood. His own police report characterized the exchange as a “disturbance.” Assuming it was an argument, this clearly does not amount to an “altercation”, as the Court of Appeals characterized it. While it is true that appellant was part of this disturbance, four individuals arguing in a residential parking lot in the late afternoon is not “out of the ordinary.” Finally, the individuals’ actions in immediately ceasing their discussion upon the sight of the police were not only their constitutional right, but were also evidence that the discussion was voluntarily terminated. Thus, any threat of a breach of the peace had dissipated before the deputy detained and searched the individuals.
As Schwartz, Hoag, and a host of other cases make clear, an officer’s reasonable suspicion must involve the occurrence of past or present activity out of the ordinary that is related to crime. Deputy Butler witnessed four people having an aggressive conversation which he assumed to be an argument. Before he could determine what was going on, the individuals all walked away.
The Cоurt of Appeals applied the totality of the circumstances test, as set out in Gearing v. State,
As we have already stated, four individuals engaged in an argument in a parking lot in the late afternoon is nоt so out of the ordinary as to give rise to the belief that appellant was engaged in criminal activity. See Hawkins v. State,
The Court of Appeals combined the circumstances set out above with several other factors. The first factor that the court considered was that Deputy Butler received an uncorroborated complaint from an unknown individual. The court correctly recognized that such information received from an individual of unknown reliability cannot alone be the basis for an investigation infringing on an individual’s constitutional rights. Gurrola,
The second factor the Court of Appeals mentioned was the high-crime reputation of the area where the detainees were seen. That alone may not serve as the basis for an investigative stop. Amorella v. State,
The third factor that the Court of Appeals recognized was the “flight” from the police officer. Mere flight alone does not justify an investigative detention, but this description of appellant’s actions by the Court of Appeals is also a mischaracterization of the evidence. As an individual has the right to refuse to answer the questions of a law enforcement officer and walk away unless the officer has reasonable suspicion of criminal activity, appellant’s action in walking away cannot be characterized as flight. Additionally, it appears that appellant’s action of walking away is exactly what caused Deputy Butler tо be suspicious. If such action gives rise to reasonable suspicion, then the right of American citizens to refuse to answer questions by police officers who have no reasonable suspicion, recognized by the United States Supreme Court in Florida v. Royer, is a hollow right.
In reaching its decision, the Court of Appeals relied on several cases decided by this Court. All of those cases are distinguishable from the case at bar.
In Amorella,
The ease at bar differs significantly from Amorella. The action of leaving a car’s motor running in a desolate parking lot next to a department store with the trunk open at 1:30 in the morning is suspicious. Similarly, a discussion late in the afternoon in the parking lot of an apartment complex gives rise to no reasonable suspicion of criminal activity.
The Court of Appeals also relied on Schwartz v. State,
The Court of Appeals attempted to distinguish the facts of appellant’s case from the facts in Schwartz. However, the difference between Schwartz and the case at bar is not significant enough to raise а belief that appellant’s actions were suspicious. In fact, the Schwartz holding supports appellant’s contention in this case. Standing in a residential parking lot in the late afternoon having an aggressive conversation is an entirely innocent activity. As stated above, the act of walking away from a police officer under completely innocent conditions cannot be held to raise the level of suspicion so as to justify an investigative search. Appellant’s original act of having an aggressive conversation in a parking lot is no more suspicious than leaning towards the middle of a pickup truck while parked at a gas station’s car wash facility.
The Court of Appeals cited Ramirez v. State,
Ramirez is particularly distinguishable from appellant’s case. Unlike in Ramirez, Deputy Butler had no information that a crime had been committed, was being committed, or that any of the four individuals in the disturbance possessed a weapon. The officer in Ramirez had notice that the defendant was illegally carrying a firearm in a bar. Furthermore, the officer in Ramirez identified a bulge in the pocket of the defendant. In the instant case, Deputy Butler noticed nothing suspicious-looking about appellant except for his walking away. Ramirez cannot be used to justify appellant’s detention.
The Court of Appeals also cited Mays v. State,
Unlike in Mays, Deputy Butler was not responding to a call from dispatch. The deputy was not informed of a crime in progress. There is little similarity in the facts surrounding the stop in Mays and the stop of appellant. Reasonable suspicion existed in Mays, but not in appellant’s case.
Finally, the Court of Appeals frequently cited Hoag v. State,
Clearly, the facts of Hoag are far more suspicious than the facts in the case sub judice. Appellant was not suspected of any particular crime. Appellant was not followed by the police for any period of time. Appellant did nothing suspicious other than walk away, which we have stated was not a suspicious act. Furthеrmore, the police in Hoag knew who the defendant was, knew what crime he had been accused of, and knew that the defendant had a prior conviction for that crime. But, even in that case, nothing the defendant did amounted to a suspicious enough action to justify his detention. Much less then, given the innocuous actions in appellant’s ease, can appеllant’s detention be justified.
In the instant case, appellant’s detention was based on no reasonable suspicion and therefore was an illegal stop. The trial court therefore abused its discretion in denying appellant’s motion to suppress. The judgment of the Court of Appeals is reversed and the case is remanded to the trial court for further proсeedings not inconsistent with this opinion.
Notes
. See Tex.R.App.P. 200(c)(5).
Dissenting Opinion
dissenting.
I dissent because the majority opinion misapplies the “totality of the circumstances” test by individually examining in a vacuum each factor upon which Butler relied to temporarily detain appellant. Maj. Op. at-. These factors, when taken together, justified appellant’s temporary detention in order for Butler to investigate an anticipated breach of the peace which was the situation in Terry v. Ohio,