Cronin v. State

Full title: DAVID ALLEN CRONIN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Third District, Austin

Date published: Dec 16, 2005

No. 03-04-00266-CR (Tex. App. Dec. 16, 2005)

Opinion

No. 03-04-00266-CR

Filed: December 16, 2005. DO NOT PUBLISH.

Appeal from the District Court of Comal County, 22nd Judicial District, No. CR2003-373, Honorable Jack H. Robison, Judge Presiding. Affirmed.

Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON: OPINION BY Justice B.A. SMITH; Dissenting Opinion by Chief Justice LAW.

MEMORANDUM OPINION ON MOTION FOR REHEARING

BEA ANN SMITH, Justice.

We grant the State's motion for rehearing. We withdraw our prior opinion and judgment issued on September 23, 2005 and substitute the following in its place. David Cronin appeals a judgment against him, resulting from a guilty plea, for felony possession of a controlled substance with intent to deliver in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. § 481.112 (West 2003). In his sole issue, Cronin challenges the district court's denial of his motion to suppress, arguing that the arresting officer lacked "reasonable suspicion" to stop him. See U.S. Const., amend. IV; Tex. Const. art. I, § 9; Terry v. Ohio, 392 U.S. 1, 21-22 (1968); United States v. Cortez, 449 U.S. 411, 417 (1981); Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001); Schwartz v. State, 635 S.W.2d 545, 547 (Tex.Crim.App. 1982). We affirm the judgment of the district court.

BACKGROUND

On June 25, 2003, at about 1:30 a.m., Officer Gayleen Anderson of the New Braunfels Police Department was patrolling west on FM 306. On her right was a restaurant, Doug's Barbeque. The restaurant has a parking lot in front of it, picnic tables on the right side as one faces it, and a dumpster on the left, all on pavement. Behind the restaurant is an open field. Through the field, in a semi-circle around the back of the restaurant, runs a gravel driveway, and there is a storage shed between the gravel driveway and the restaurant. Officer Anderson testified that she was familiar with the layout of the property and had patrolled the area previously, and she provided a depiction of the property layout that was admitted into evidence at trial. As she approached the intersection with Hunter Road, Officer Anderson saw a white and red Ford truck with a camper shell slowly driving out of the parking lot from the direction of the rear of the restaurant, which had been closed for several hours. There were no other vehicles in the parking lot. The truck appeared to come from behind the building, then turned eastbound on FM 306. Officer Anderson had never seen vehicles in the parking lot after the restaurant closed. She had responded to alarms at a nearby business about five weeks earlier.¹ She was not aware of any other reports of criminal activity in that area in the meantime. She decided to "follow the vehicle and stop it because it was just very suspicious why he was there." She explained: [j]ust the time, the place, it was . . . about 1:30 in the morning. It was dark. The business had been closed for some time. What were they doing? Jacks had windows broken twice. I made the reports. And I wanted to find out what exactly the subject — what the vehicle was doing there, see what their reason for it [was]. She further testified concerning her purpose for the stop: "Mainly I just wanted to find out his purpose for being in the parking lot, identify who he was, and if everything checked out, he would be cut loose." After Officer Anderson decided to stop the truck, she made a u-turn at the Hunter Road intersection, caught up to the truck, and pulled it over as it approached the frontage road of Interstate 35. She had not observed any traffic violations at that point. After stopping the truck, she approached the truck and asked the driver, Cronin, for his license and proof of insurance. Cronin told her that his license was expired and that he did not have insurance. She then noticed that his registration sticker was partially torn. She confirmed that his license had expired and then placed him under arrest. Officer Bill Spence conducted an inventory search of the truck and discovered methamphetamine and marijuana. Cronin was indicted for possession of a controlled substance with intent to distribute in an amount of four grams or more but less than two hundred grams. See Health Safety Code Ann. § 481.112. Cronin filed a motion to suppress the evidence seized from his truck. During the suppression hearing, Cronin orally amended his motion to challenge only the articulable reasonable suspicion for his detention. At the hearing, Anderson, Spence, Cronin and Cronin's girlfriend, Lesli Byers, testified. Cronin denied driving in the parking lot. The district court denied the motion to suppress and entered findings of fact, agreeing with Officer Anderson's version of the events.² It also entered a conclusion of law that "reasonable suspicion existed to detain [Cronin] when [he] drove his vehicle slowly from behind a business that had been closed for a period of time in an area in which there had been recent criminal activity." Cronin then pleaded guilty pursuant to a plea agreement, and the district court assessed his punishment at five years' confinement in the penitentiary, probated for five years, and a fine of $2,500.

DISCUSSION

In his only issue, Cronin challenges the district court's conclusion that Anderson had reasonable suspicion to detain him. See Terry, 392 U.S. at 21-22; Garcia, 43 S.W.3d at 530. In particular, Cronin argues the district court erred in finding that Officer Anderson's testimony provided specific, articulable facts which gave rise to a reasonable suspicion that he was engaged in criminal activity. See Terry, 392 U.S. at 21-22; Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App. 1992). The appropriate standard for reviewing a trial court's ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). The district court is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it may choose to believe or disbelieve any or all of a witness's testimony. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003); Wood v. State, 18 S.W.3d 642, 646 (Tex.Crim.App. 2000); Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991). We must sustain the district court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex.Crim.App. 2005) (quoting State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000)); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). In this case, the district court entered findings of fact and conclusions of law. We give almost total deference to the district court in reviewing findings of fact because the district court is in a better position to evaluate the credibility and reliability of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). However, we review de novo the district court's application of law to those facts when the conclusion, such as the existence of reasonable suspicion, does not turn on witness credibility. Ornelas v. United States, 517 U.S. 690, 697-98 (1996); Guzman, 955 S.W.2d at 87. A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984); Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref'd). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances at its inception and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead her to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997); Hernandez, 983 S.W.2d at 869. These facts must amount to more than a mere hunch or suspicion. Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App. 2005); Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997); Williams v. State, 621 S.W.2d 609, 612 (Tex.Crim.App. 1981). This standard is an objective one — there need only be an objective basis for the stop. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). The subjective intent of the officer conducting the stop is irrelevant. Id. The burden is on the State to elicit testimony of sufficient facts to create a reasonable suspicion. Id.; see also Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App. 2005) (when defendant shows search or seizure occurred without warrant, burden on State to show search or seizure was reasonable). We look only at those facts known to the officer at the inception of the stop — a stop or search unlawful at its inception may not be validated by what it turns up. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). Mere presence in a high-crime area is not enough to justify a stop. In Gurrola v. State, for example, police received a report of a fight in the parking lot of an apartment complex in a high-crime area. 877 S.W.2d 300, 301 (Tex.Crim.App. 1994). When the investigating officer arrived, he observed four individuals engaged in what appeared to be an argument. Id. The officer ordered them to his patrol car where he performed a pat-down search, finding a gun and drugs. Id. The court of criminal appeals found the detention unjustified because a defendant's mere presence in a high-crime area may not serve as the basis for an investigative stop. Id. at 303. Likewise, an officer's mere subjective opinion does not rise to the level of articulable facts. See Ford, 158 S.W.3d at 493. For example, in Viveros, police officers stopped a car for "suspicious behavior" because it slowed rapidly and continued at a rate of speed less than the posted speed limit on a public road after being passed by the officers's patrol car. Viveros, 828 S.W.2d at 4. The arresting officer testified that, although the suspicious behavior did not amount to reasonable suspicion of a criminal violation, he stopped the car because he "just wanted to check him out and make sure everything was okay." Id. at 5. The court of criminal appeals found the stop was not supported by sufficient articulable facts giving rise to a reasonable belief that the defendant was engaged in criminal activity. Id. As another example, an officer's testimony was held to be mere opinion when he stated that he witnessed a truck following a car on the road and that he believed the distance between the truck and the car was insufficient and in violation of statute. Id.; see also State v. Losoya, 128 S.W.3d 413, 415 (Tex.App.-Austin 2004, pet. ref'd) (anonymous tip of "black male" involved in narcotics activities, combined with officer's knowledge from experience that area was active drug-trafficking center and defendant's "hasty" departure when he noticed officers, did not support reasonable suspicion that defendant was engaged in criminal activity). Although each case must be decided on its own particular facts, it is useful to review the decisions of other Texas courts applying the law to similar facts. The court of criminal appeals has upheld temporary detentions in the context of late hours or a high-crime area, where the State has identified additional facts that give rise to a reasonable suspicion. In Amorella v. State, police observed a car parked with its lights on and motor running outside a closed department store in a high-crime neighborhood at about 1:30 a.m. 554 S.W.2d 700, 701 (Tex.Crim.App. 1977). Two men were sitting in the vehicle and a third was standing by the open trunk. Id. When the third man saw the police car, he closed the trunk and got in the car, which began driving away. Id. The officer pulled over the car to investigate and arrested the defendant, one of the passengers, on an outstanding warrant. Id. The court of criminal appeals found the presence of the car parked next to a closed store, with the trunk open and the motor running, late at night, in a high-crime area, along with the furtive demeanor of the men,³ amounted to circumstances that were "undeniably suspicious," and held the investigative detention was warranted. Id. at 702. In Meeks v. State, police officers patrolling an area where there had been several recent automobile burglaries saw a man walking towards a car and away from a vacant lot where two trucks were parked. 653 S.W.2d 6, 8-9 (Tex.Crim.App. 1983). The man appeared to be carrying a handgun. Id. at 9. The officers stopped the man after he got in the car and began to drive away. Id. Upon brief investigation, they discovered stolen property in the car. Id. The court of criminal appeals held that, because intentionally carrying a handgun was a violation of the penal code, the officers were justified in making an investigatory detention. Id. at 12; see also Tex. Pen. Code Ann. § 46.02 (West 2003); Borner v. State, 521 S.W.2d 852, 854 (Tex.Crim.App. 1975) (initial detention authorized when officers observed traffic violation). In Shaffer v. State, the court of criminal appeals held that there was no reasonable suspicion to stop a taxi that was driving slowly around an empty commercial district long after businesses had been closed. 562 S.W.853, 854 (Tex.Crim.App. 1978). The court held that the taxi's slow speed and the fact that there was no reason for the taxi to be there did not amount to reasonable suspicion of criminal activity. See id. at 855. The Houston court of appeals, fourteenth district, has held that police lacked reasonable suspicion based on facts similar to the present case. Klare v. State, 76 S.W.3d 68, 77 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In Klare, a police officer spotted a white pickup truck parked behind a closed strip shopping center, facing a 24-hour convenience store, at around 2:30 a.m. Id. at 71. There had been burglaries in the area in the past. Id. The officer turned around to investigate because he found the parked vehicle suspicious. Id. The vehicle was gone by the time the officer arrived at the parking lot, but he soon found the pickup on an adjacent street. Id. At that time, he pulled the vehicle over and subsequently discovered that the driver was intoxicated. Id. Citing a wide variety of cases, the Houston court of appeals discussed the relevance of (1) the lateness of the hour, (2) the fact that the businesses were closed, and (3) that there had been burglaries in the area to the determination of reasonable suspicion. The court of appeals held that the mere presence of the pickup truck in the parking lot, without some additional fact that would arouse suspicion of criminal activity, fell short of supporting an objectively reasonable suspicion of criminal activity. Id. at 77. Although the Klare case closely resembles the facts before us, we conclude that there are additional facts here that sufficiently distinguish this case. Doug's Barbeque restaurant had been closed for several hours. In the two months that she had been patrolling the area, Officer Anderson had never seen another vehicle in the parking lot after midnight. The parking area in back of the building was hidden from the street; a storage shed was located there. No vehicle would simply be driving through from another street because of the field at the back.⁴ Had Cronin innocently stopped to rest or consult a map, he would not have been lurking behind the building. It was late at night, in a dark area of town where windows of a neighboring business had been broken five weeks earlier. It is important to note that in Klare, the suspicious vehicle was parked in a closed lot, facing a 24-hour convenience store. See 76 S.W.3d at 71. Klare's vehicle was visible from the street and it was parked nearby an open business. By contrast, Officer Anderson spotted Cronin's truck as it emerged from a hidden area behind the closed business; she had to follow Cronin on FM 306 for one to two minutes in order to initiate the stop near an open gas station at the frontage road of Interstate 35. In light of the recent and unsolved vandalism in the area, it was reasonable for Officer Anderson to infer from these facts that Cronin had been involved in similar criminal activity. See Balentine, 71 S.W.3d at 768; Klare, 76 S.W.3d at 77 (totality of circumstances must raise "reasonable inference of criminal conduct"). In sum, we hold that (1) the complete absence of any vehicles in the parking lot after midnight for over two months, (2) the unsolved vandalism of a neighboring business, and (3) the fact that Cronin's vehicle had come from a concealed area of the parking lot near a storage shed establish articulable facts, in addition to Cronin's mere presence in the closed parking lot at night, that raise reasonable suspicion that Cronin was, had been, or would soon be involved in criminal activity. See Balentine, 71 S.W.3d at 768; Klare, 76 S.W.3d at 77. Accordingly, we overrule Cronin's only issue and affirm the judgment of conviction.

DISSENTING OPINION

W. KENNETH LAW, Chief Justice.

I respectfully dissent from the granting of the motion for rehearing and would reaffirm the Court's previous opinion in all respects. The majority has correctly stated that, for a temporary detention by a peace officer to be considered reasonable and not in violation of the Fourth Amendment, the State must establish that the detaining officer knew specific, articulable facts at the inception of the stop, which, taken together with rational inferences, led her to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity. See Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2003). My dissent focuses on the application of this standard and concludes that, based on an objective review of the facts known by Officer Anderson at the time she initiated the stop, she lacked reasonable suspicion to warrant an invasion of Cronin's constitutional rights. See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001). The majority concludes that reasonable suspicion was created in this case due to Cronin's "lurking" near a storage shed in a "concealed" area of a "closed" parking lot at 1:30 a.m., considering the "unsolved vandalism" in the surrounding area and the "complete absence" of other vehicles in that location at that time during the preceding two months. The majority's characterization of the circumstances is, however, misleading. Officer Anderson testified that Cronin emerged either from the side of or behind the restaurant, meaning that — although Cronin's original location was concealed from the officer's vantage point on FM 306-Cronin would have been in plain sight of anyone on the cross-street, Hunter Road. Thus, his position cannot be described as a "concealed" location. Moreover, regardless of Cronin's exact location, there is no showing that his presence constituted trespass or was in any way suggestive of criminal activity. Second, it is inappropriate to describe him as "lurking" because Officer Anderson consistently described Cronin as emerging or driving away from this location, rather than lingering there. Third, the parking lot was not "closed"; all witnesses confirmed that there are two entrances from major roadways opening into the lot. Fourth, although the majority repeatedly mentions that Cronin was seen next to a storage shed, no specific, articulable facts are provided to explain what is inherently suspicious about this fact. Officer Anderson's subjective opinion about the suspicious nature of this shed does not rise to the level of "articulable facts," see Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005), and I am aware of no authority providing that criminal intent or behavior can be inferred from one's mere proximity to a storage shed. No one asserts that Cronin conducted any activity in connection with this shed — only that his car was seen in the same area. There are countless legitimate reasons, even during the late-evening hours, that a person may pull into an empty lot that happens to contain a storage shed. Fifth, nothing in the record establishes a "complete absence" of other vehicles in that area at that time of night. Officer Anderson testified merely that, during her patrol hours, she had never observed another vehicle in that location. No one contends that Officer Anderson had a constant watch on this lot every night for two months. Although the officer did not recall seeing other vehicles, there certainly could have been other motorists not personally witnessed by her that, like Cronin, momentarily stopped in or drove through the parking lot during the late-evening hours. Finally, in searching for a basis to support the reasonableness of Officer Anderson's suspicion, the majority emphasizes the "unsolved vandalism of a neighboring business." Although dramatized to create the image of a high-crime area, this incident involved nothing more than a few rocks thrown through a front window of a business located across the roadway five weeks earlier, and the officer testified that she was aware of no other criminal activities in the surrounding area since 1990. Yet, even if the single incident of prior vandalism were enough to classify the area as crime-ridden, to rely upon this dissimilar and remote criminal act to establish reasonable suspicion, the evidence must show that Cronin's activities were similar in time, place and performance to the previous crime; otherwise, complete speculation must be employed. See Gurrola v. State, 877 S.W.2d 300, 302 (Tex.Crim.App. 1994) (mere presence in high-crime area insufficient to justify stop and officer cannot rely solely on speculation). Here, the State failed to demonstrate a reasonable similarity between Cronin's observed activities and the previous occurrence. He was not found in the front of the building, and there is no evidence that he had in his possession any rocks or other objects that would presumably be thrown through a window. Importantly, Officer Anderson testified that, prior to detaining Cronin, she did not observe him committing any violation of the law, that he was not trespassing, and that he made no evasive or furtive gestures. In other words, the officer was unable to articulate any specific facts that would allow her to rationally infer that Cronin had committed or was about to commit a similar incident of vandalism. See Brother v. State, 166 S.W.3d 255, 257 (Tex.Crim.App. 2005) (facts relied on by officer must amount to more than mere hunch or suspicion). Nevertheless, based solely on her observation of Cronin in this parking lot at night, Officer Anderson determined that she "was going to . . . follow the vehicle and stop it because it was just very suspicious why he was there." Without knowing any other facts, Officer Anderson concluded that she should stop and investigate Cronin, "and if everything checked out, he would be cut loose." By holding that this establishes reasonable suspicion, the majority fails to recognize that our Constitution protects a citizen's right to have it the other way around: innocent until proven guilty. See U.S. Const. amend. XIV; Randel v. State, 826 S.W.2d 943, 945 n. 3 (Tex.Crim.App. 1992). As aptly stated in this Court's original opinion, "effective policing need not be at the expense of the Constitution." Cronin v. State, No. 03-04-00266-CR, 2005 Tex. App. LEXIS 7769, * 19 (Tex.App.-Austin, Sept. 23, 2005, no pet. h.). Law enforcement personnel should be free to employ their experience and intuition in making decisions in the field. However, they should also be mindful of the "raft of legitimate tools at their disposal to investigate suspicious activity short of investigative detention." Id. The majority acknowledges that reasonable suspicion cannot be based solely on one's presence in a high-crime area during the late evening; additional facts are needed. See, e.g., Amorella v. State, 554 S.W.2d 700, 701 (Tex.Crim.App. 1997) (sufficient facts when car was parked next to closed store, late at night, in high-crime area, with trunk open, motor running, and furtive gestures of motorists); Meeks v. State, 653 S.W.2d 6, 8-9 (Tex.Crim.App. 1983) (accused carrying handgun was sufficient to provide reasonable suspicion). Here, Cronin was not even located in a high-crime area, and the State presented no additional facts beyond Cronin's presence in a parking lot of a closed business at 1:30 a.m. The court of criminal appeals has held that this is not enough. See Shaffer v. State, 562 S.W.2d 853, 854 (Tex.Crim.App. 1978) (taxi driving slow in commercial lot of closed businesses at night did not amount to reasonable suspicion); see also Klare v. State, 76 S.W.3d 68, 77 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (truck parked in lot of closed shopping strip at 2:00 a.m. was not sufficient, even considering it was high-crime area). A double inference must be indulged to reach the majority's conclusion. It must be inferred that Cronin was hidden behind the building and that his activities indicated that he had or was about to engage in criminal activity. This double inference collapses when an objective review of Officer Anderson's testimony is conducted because, as discussed above, her testimony demonstrates that Cronin was not in a concealed location, he was not observed committing any violation, and he was not seen with any item that would presumably be used to vandalize the adjacent building. When reviewing a motion to suppress, we give great deference to the trial court's findings of historical facts, Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997), and will sustain the trial court's ruling if the ruling is reasonably supported by the record. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002) (emphasis added). Here, the record does not demonstrate sufficient evidence to sustain the court's admission of the evidence. Simply put, at the inception of the stop, Officer Anderson was not aware of specific, articulable facts that, taken together with rational inferences, would justify her suspicion of Cronin as "reasonable." Instead, she acted on mere speculation. Consequently, Cronin's Fourth Amendment rights were improperly invaded when Officer Anderson detained him. On this basis, I would overrule the State's motion for rehearing and reaffirm this court's original opinion, reversing Cronin's conviction. Therefore, I respectfully dissent.