Our opinion and judgment in this cause dated June 11,1998, are withdrawn.
On original submission, this Court reversed appellant’s conviction for unlawfully carrying a firearm on the ground that the incriminating evidence, a pistol in appellant’s purse, was discovered and seized following an unlawful detention.
Woods v. State,
Background
The relevant facts were described in our original opinion:
On the day in question, appellant entered the Travis County Courthouse through the east, or main, entrance, passing as she did so a sign stating, “You are entering a security screening area. All persons and baggage are subject to a *772 search.” Inside the courthouse and a few feet from the entrance, appellant was confronted by a metal detector’and an X-ray machine. Operating these machines were Kevin McCullen, a private security guard employed by the Travis County Sheriffs Department, and Billy Richardson, a deputy sheriff and McCullen’s supervisor. McCullen testified that appellant had a “real surprised look, a scared look” when she saw the machines. Appellant “turned to her left and started to enter- — and tried to go towards Room 112, which is the JP Five courtroom,” the entrance to which was apparently outside the security devices but bore a sign advising that all persons must be screened before entering. Then “she turned around and started to go back out the doors.... ”
McCullen stopped appellant before she could leave the building and asked if he could help her. She told him that she was trying to get to the fifth floor. McCullen informed appellant that she would have to pass through the metal detectors to reach the elevators. Appellant told McCullen that she first had to go back to her car. According to McCullen, appellant seemed “real nervous.” McCullen, who had been working at this job for over two years, became suspicious and told appellant thát she could not leave the building without first running her purse through the X-ray device. Appellant disregarded MeCullen’s instruction and exited the courthouse. McCullen followed and stopped her outside. McCullen testified, “Basically I told her that we were still going to need to run her purse through, and’ at this point it wasn’t — she didn’t really have a choice in the matter.” By this time, McCullen had been joined by Richardson. Appellant agreed to reenter the courthouse with the officers, telling McCullen that “it was going to set off the metal detector.” When appellant’s purse passed through the X-ray device, the officers could see the image of a pistol. Richardson opened the purse and seized a loaded .22 caliber pistol.
At a second hearing one month later, McCullen testified that appellant’s actions led him to believe that there was a “good possibility” she was armed. Asked to describe these actions, McCullen answered:
A. It was that when she came in, she got a very surprised and scared expression on her face, and then tried to go around the security like she was entering through the JP Five door.
Q. And then what did she do?
A. Then she turned around and started to leave. When we asked her where she needed to go, she said she needed to go to the fifth floor.
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A. We told her how to get to the fifth floor, and at that point she said, “No, I need to go back out to my car first,” and this is something that we- have seen a lot of other times. That’s when we know somebody usually has something in their purse.
McCullen testified that on approximately fifty occasions, he had seen a similar expression on the face of a person before discovering a weapon or drugs. He acknowledged on cross-examination, however, that he had seen the same expression on persons who did not prove to have a weapon or contraband.
Richardson also testified at the second hearing. He stated that appellant was stopped because, “We wanted to run [the purse] through the x-ray machine and see if there was a weapon or contraband in it.”
Woods I,
It is clear that appellant was seized when she was stopped and made to reenter the courthouse, and that passing her purse through the X-ray device was a search. See id. at 722. On original submission, we sustained appellant’s first point of error, holding that the officers’ actions exceeded the lawful scope of a limited administrative search. Id. at 723. We also sustained her second point of error, holding that appellant did not waive her Fourth Amendment rights and consent to the search of her person and belongings when she entered the courthouse. Id. at 724. Neither of these holdings was challenged by the State in its petition for discretionary *773 review and we will not address these points further. The subject of the State’s petition and the reason for the remand by the Court of Criminal Appeals was our holding on appellant’s fourth point of error: that the facts and circumstances did not constitutionally warrant the detention of appellant for investigatory purposes. Id. at 725-26. It is to that issue that we now return.
Investigative Detention
An officer may detain a person for investigatory purposes if, based on the totality of the circumstances, the officer has a particularized and objective basis for suspecting the person detained of criminal activity.
United States v. Cortez,
In our original opinion, we relied on case authority holding that an officer’s suspicion is not reasonable, and hence a detention based on that suspicion is unlawful, if the facts and circumstances on which the suspicion is based are as consistent with innocent activity as with criminal activity.
Johnson v. State,
On the State’s petition for discretionary review, the Court of Criminal Appeals held that “the ‘as consistent with innocent activity as with criminal activity’ construct is no longer a viable test for determining reasonable suspicion” and overruled all cases holding to the contrary, expressly including
Johnson
and
Montano. Woods II,
We do not understand the Court of Criminal Appeals’ holding to mean that
any
suspicion based on
any
articulable facts will support a temporary investigative detention. A reasonable suspicion means more than a mere hunch or suspicion.
Davis v. State,
*774
The relevant facts and circumstances are not in dispute in this cause, and the resolution of this appeal does not turn on an evaluation of the credibility of a particular witness. Therefore, we review de novo the question whether the totality of the circumstances gave the detaining officer a reasonable, particularized, and objective basis for suspecting that appellant was engaged in criminal activity.
See Guzman v. State,
McCullen testified that appellant appeared “surprised and scared” when she encountered the security checkpoint. She “tried to go around the security like she was entering through the JP Five door,” then she turned to leave the courthouse. McCullen testified, “[TJhis is something we have seen a lot of other times. That’s when we know somebody usually has something in their purse.” When McCullen asked if he could help her, appellant seemed nervous and told him that she was going to the fifth floor but wanted to return to her car before she did so. He said that in two years at this job, he often had seen a similar expression on the face of a person before discovering a weapon or drugs, although he acknowledged that he had seen the same expression on persons who did not prove to have a weapon or contraband. We conclude that the totality of the circumstances, including appellant’s behavior and McCullen’s past experience, gave the officer a particularized and objective basis for believing that appellant had a weapon or other contraband in her purse. Because the officer’s suspicion was reasonable under the circumstances, the detention was lawful. Point of error four is overruled. 1
Other Points of Error
Because we sustained appellant’s fourth point of error on original submission, we did not reach her third, fifth, sixth, and seventh points of error. Having now overruled the fourth point on remand from the Court of Criminal Appeals, we must address the remaining points of error.
In her third point of error, appellant contends that McCullen was not authorized to detain her for investigation because he was a private citizen and not a peace officer. Appellant argues that
Terry v. Ohio,
Two factors must be considered when determining whether a person is acting privately or as;an agent of the State: (1) whether the government knew of and acquiesced in the intrusive conduct,' and (2) whether the person intended to assist law enforcement efforts or instead intended to further his own ends.
Stoker v. State,
Appellant’s argument would fail even if McCullen had not been acting as an agent of the State when he detained her. Appellant, like the court in
Garner,
fails to consider that the federal and state constitutions only protect against unreasonable searches and seizures by agents of the government, and have no application to purely private searches or seizures.
State v. Comeaux,
818
*775
S.W.2d 46, 49 (Tex.Crim.App.1991);
Bodde v. State,
The Texas statutory exclusionary rule applies to evidence unlawfully obtained by a private individual not acting as an agent of the government
State v. Johnson,
Finally, appellant argues that a temporary investigative detention is permissible only when the crime suspected involves an imminent threat of violence to either persons or property. Appellant concedes that there is no federal or state authority supporting this contention, but urges that article I, section 9 of the Texas Constitution should be so interpreted.
See Heitman v. State,
To determine whether the Texas Constitution provides greater protection than its federal counterpart, several factors should be considered: the constitutional text, the framer’s intent, the history and prior application of the constitutional provision, comparable jurisprudence from other states, and the practical policy considerations behind the constitutional provision.
See Autran v. State,
In point of error six, appellant argues that by stopping her and requiring her to reenter the courthouse, MeCullen did not merely detain her for investigation but instead arrested her. Appellant contends this arrest was unlawful because MeCullen did not have probable cause to arrest.
A person is arrested when she has been actually placed under restraint or taken into custody. Tex.Code Crim. Proc. Ann. art. 15.22 (West 1977). It has been held that an arrest occurs at the moment a person’s liberty of movement is restricted or restrained.
Hoag v. State,
In this cause, McCullen promptly investigated his suspicion that appellant had a weapon in her purse. ' He used no greater force than was reasonably necessary to effect the goal of the stop. Returning appellant to the courthouse lobby in order to pass her purse through the X-ray machine was the least intrusive means available to confirm or refute his suspicions. McCullen’s conduct did not exceed the lawful scope of a temporary investigative detention and did not constitute an arrest. Point of error six is overruled.
Appellant contends in point of error five that passing her purse through the X-ray device was not the limited search for weapons authorized by Terry but an unlimited search for which probable cause was required. Once again, appellant urges that the search was unlawful because McCullen did not have probable cause.
Under
Terry,
a police officer who has lawfully detained a person for investigation may conduct a limited search for weapons if the officer has reason to believe that the person may be armed and dangerous.
Appellant was detained for the purpose of investigating McCullen’s reasonable suspicion that she was unlawfully carrying a weapon or other contraband in her purse. Because he had reasonable grounds for believing that appellant had a weapon in .her purse, McCullen was authorized under Terry to conduct a limited weapons search for his own safety. The search method employed— passing the purse through a device specifically designed to discover weapons in purses and briefcases—was less intrusive and more narrowly drawn than the search upheld in Worthey. We hold that the search of appellant’s purse in this cause did not exceed the lawful scope of a limited weapons search. Point of error five is overruled.
Finally, appellant contends that requiring her to disclose the contents of her purse violated her privilege against self-incrimination under the Texas Constitution. Tex. Const, art. I, § 10. Article one, section ten provides that the accused in a criminal prosecution “shall not be compelled to give evidence against himself.” In contrast, the -Fifth Amendment to the United States Constitution provides that a criminal defendant cannot be compelled “to be a witness against himself.” Appellant argues that the use of the word “evidence” instead of “witness” means that the Texas Constitution extends the privilege- against self-incrimination to nontestimonial evidence, such as the pistol found in appellant’s purse.
This argument has been presented to and rejected by both the Court of Criminal Appeals and this Court.
See Olson v. State,
Appellant’s motion for rehearing is overruled and the judgment of conviction is affirmed.