State v. Moore
25 S.W.3d 383
Tex. App.
2000
Check Treatment
BEA ANN SMITH, Justice.

The State appeals an order granting appellee Guy Weston Moore’s motion to suppress evidence. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp. 2000). We will affirm the order.

At about 10:10 p.m. on August 15, 1999, two Austin police officers went to a convenience store in the University of Texas neighborhood in response to a reported forgery. They were met outside the store by a man named Garrison. Garrison told the officers that he had received a telephone call from a check cashing company asking if he had written a check to a man named Richardson, who was attempting to cash the check at this store. Garrison said he told the caller that he had not authorized any check, then called the police and drove to the store.

Inside the store, the officers learned that it contained a machine that may be used to present and cash checks. The machine was connected to a central office in Dallas, and a person at that office could see the customer by means of a video camera. Officer Eveleth, the only witness to testify at the suppression hearing, asked the store clerk if he knew who had been using the check cashing machine. The clerk replied that he did not know. About this time, Officer Fox told Eveleth “she *385 had spotted a subject who appeared nervous.” The clerk told Eveleth that the person to whom Fox was referring, subsequently identified as appellee Moore, had been in the store “for a long time and had been standing by the cash machine.”

Eveleth walked over to Moore, who was looking through a telephone book, and asked him if he had been using the check machine or had spent any time at the machine. Moore answered both questions “No.” Eveleth noticed that Moore was nervous; his hands were shaking and he was perspiring. Eveleth frisked Moore for weapons, finding none. Eveleth then asked Moore for permission to search his person. Moore consented to the search. During this search, the officer found a concealed handgun permit.

Eveleth noticed a backpack near Moore. Moore told the officer that it was his. At this point, Eveleth handcuffed Moore “for safety” but told Moore that he was not under arrest. He then asked for and received Moore’s permission to search the backpack. Inside, the officer found a printed receipt reflecting that the check cashing machine had been used approximately thirty minutes earlier. 1 Eveleth again asked Moore if he had used the machine. This time, Moore acknowledged that he had. Moore then told the officer that he “wanted to come clean” and admitted trying to cash a check he said he had found on the sidewalk.

At this point, Eveleth decided to arrest Moore and advised him of his rights. The officers took Moore to the check cashing machine, where he was identified by the “video teller” as the person who had attempted to cash the Garrison check. As the officers were escorting Moore to the patrol car, Garrison noticed that the books in Moore’s backpack belonged to him. Ultimately, an information was filed accusing Moore of stealing five books and a day planner from Garrison.

At the conclusion of the hearing, the court announced that Moore’s motion to suppress evidence was granted. The court explained:

I do find that this defendant’s consent to search extended beyond the search of his person. From the time he was handcuffed, certainly that consent to search was no longer valid. I feel he was under arrest; his liberties had been restrained. And I do not find that there is probable cause to proceed at that point. So everything thereafter would be suppressed.

The court added, “I find that the officer was quite credible.”

The frisk for weapons was a show of authority to which Moore yielded and there is no dispute that he was seized at that moment. See California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). It is also agreed that the seizure was, at that point, an investigative detention, not an arrest. Moore argues that the detention was unlawful, a contention he did not make below. We disagree. The facts known to the police at that time — the reported forgery, Moore’s nervousness, and the information that Moore had been in the store for a long time and had been standing by the check cashing machine— gave the officers reasonable grounds to suspect Moore had been engaged in criminal activity and warranted his temporary detention for further investigation. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim.App.1997). The dispositive issue is whether the circumstances warranted handcuffing Moore during the investigation.

*386 Citing Rhodes v. State, 945 S.W.2d 115 (Tex.Crim.App.1997), the State urges that, under the circumstances shown, the handcuffing was reasonably necessary to effect the goal of the investigative detention. Moore responds that the handcuffing constituted excessive force under the circumstances and transformed the detention into an arrest, for which the officer did not have probable cause. In reviewing these contentions, we defer to the district court’s factual determinations but review de novo the court’s application of the law to the facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

There is no bright-line rule that handcuffing a suspect always constitutes an arrest. See Rhodes, 945 S.W.2d at 118. Although handcuffing the suspect is not ordinarily proper during an investigative detention, it may be resorted to when reasonably necessary to effect the goal of the detention: investigation, maintenance of the status quo, or officer safety. See Id. at 117. The degree of force employed by a police officer is just one of several factors that must be considered to determine whether a particular seizure of a person is an arrest or merely an investigative detention. The nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, and the reaction of the suspect are all facts which bear on the issue. See 4 Wayne R. La-Fave, Search and Seizure § 9.2(d) (3d ed.1996). The officer’s opinion, while not determinative, is another factor to be considered. See Amores v. State, 816 S.W.2d 407, 412 (Tex.Crim.App.1991). It is also important to consider whether the officer actually conducts an investigation after seizing the suspect. See id.; see also Rhodes, 945 S.W.2d at 119-20 (Meyers, J., concurring and dissenting). Whether a seizure is an arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. See Rhodes v. State, 913 S.W.2d 242, 247 (Tex. App. — Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex.Crim.App.1997).

In Amores, a police officer responding to a burglary call at 11:30 p.m. blocked the suspect’s car with his patrol car, ordered the suspect from his car at gunpoint, directed the suspect to lie face-down on the parking lot with his hands behind him, and threatened to shoot the suspect if he did not obey. See Amores, 816 S.W.2d at 410. The officer characterized the seizure as an investigative detention, but the record showed that he did not ask the suspect any questions before or during the search of his person and vehicle. See id. at 412. The court of criminal appeals concluded that the detention could not be considered investigatory and held that the seizure constituted an arrest. See id.

In Burkes v. State, 830 S.W.2d 922, 923 (Tex.Crim.App.1991), several police officers responded to a report of drug dealing in an area notorious for that activity. Anticipating flight upon the arrival of the police, two officers positioned themselves in a dark field behind a nightclub. See id. As expected, the arrival of squad cars led to an exodus from the nightclub. One of the officers in the field encountered Burkes, shined a flashlight in his eyes, and ordered him to lie down on the ground. See id. The suspect was immediately handcuffed and frisked. See id. The officer, who said he considered the suspect to be under arrest, did not ask him why he was running across the field. See id. at 925. The court held that the suspect was under arrest at the time of the search. See id.

In Mays v. State, 726 S.W.2d 937, 943 (Tex.Crim.App.1986), a single police officer responded to a report of a burglary in progress at 9:45 p.m. The officer found two men at the address in question and told them he would have to frisk them. See id. After the frisk, which did not turn up any weapon, the officer handcuffed the two men. See id. The officer testified that he did this for his own protection “[d]ue to the nature of the call and the way they were acting scared like maybe they had been caught at something, and I was all *387 alone, and two of them, and they was both bigger than I was.” Id. The court concluded that the officer’s actions were reasonable and justified under the circumstances. See id. at 944.

In Rhodes, two officers in a single patrol car attempted to stop another vehicle at 11:00 p.m. for an observed traffic violation. See Rhodes, 945 S.W.2d at 116. The suspect car sped away, and in the ensuing chase the officers saw the passenger throw a bag on the street. See id. Eventually, the car stopped and the driver fled, chased by one of the officers. See id. The passenger remained in the car, and told the second officer that he did not know the name of the driver. See id. The officer handcuffed the suspect and walked him to the patrol car. See id. The officer testified that he did not consider the suspect to be under arrest and had handcuffed him for his own safety and that of his partner. See id. The officer noted the late hour, the poor lighting, the suspicious behavior preceding the stop, and the fact that he was alone with the suspect. See id. The court of criminal appeals sustained the court of appeals’ conclusion that the seizure of the suspect was a temporary investigative detention and that the circumstances reasonably warranted handcuffing the suspect. See id. at 118-19.

In this cause, the officers were actively investigating their reasonable suspicion that Moore had attempted to pass a forged check and, based on Eveleth’s statement to Moore, did not consider Moore to be under arrest when he was handcuffed. But we must also consider whether handcuffing Moore was reasonably necessary to preserve the status quo or to promote officer safety during the investigation. See id. at 117. Forgery is not a crime that is commonly associated with violence. The encounter between Moore and the officers took place in a brightly lit store, not in a dark street or vacant lot. Moore cooperated fully with the officers and consented to the search of his person. The officers found a handgun permit during this search, but they did not find a weapon. The officers outnumbered Moore two to one, and one officer could easily have watched Moore while the other searched his backpack. While we are reluctant to second-guess police officers regarding such matters, there is simply no evidence that the officers had a reason to fear for their safety or any other justification for handcuffing Moore while pursuing their investigation. We agree with the trial court that, on this record, the handcuffing transformed the detention into an arrest for which there was no probable cause.

The order granting the motion to suppress is affirmed.

Notes

1

. The State's brief recites that the officer also found in Moore’s possession a piece of paper on which was written the name "Jeff Richardson" and driver's license and social security numbers. While Officer Eveleth did testify to finding such a piece of paper, he did not specify when it was found.