Summary
finding reasonable suspicion due to a vehicle being parked at a late hour at a closed shopping center and car wash where there had been burglaries and the behavior of the vehicle in driving forward and backward
Summary of this case from In re A.OOpinion
No. 05-04-00308-CR
Opinion Issued August 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court Rockwall County, Texas, Trial Court Cause No. CR03-0401. Affirm.
OPINION
The court convicted William Stephen Holland of driving while intoxicated and assessed punishment at confinement for 120 days and a fine of $650. The court suspended appellant's sentence and placed him on community supervision for two years. In two issues, appellant argues the officers did not have reasonable suspicion to detain him. We affirm the trial court's judgment. Background Edward Fowler, a Rockwall Police Officer, saw a car driving backward and forward in the parking lot of a closed car wash. Fowler subsequently stopped and arrested appellant for driving while intoxicated. Appellant moved to suppress the evidence arguing it was the product of an illegal detention. When the trial court denied appellant's motion, he pleaded no contest. The trial court found appellant guilty and followed the State's recommendation in assessing punishment. Appellant contends the court erred in denying his motion to suppress, thereby violating both the United States and Texas Constitutions. The Motion to Suppress 1. The Evidence a. Edward Fowler Fowler testified that he and two other uniformed police officers, John Norlin and Michael Collier, had just completed a "bar check" at The Scoreboard. At about 12:30 a.m., they each left the bar in separate marked police cars and headed north on Highway 205. As Fowler pulled out of the parking lot, he noticed a vehicle in the parking lot of the Hacienda Car Wash. It was after midnight, and the car wash was closed. The vehicle moved forward and backward three different times. Fowler thought to himself "is he trying to hide, is he trying to evade, is he trying to act casual." His experience taught him that a vehicle moving backward and forward after seeing a marked police car could be consistent with criminal activity. Fowler agreed that appellant's driving behavior standing alone was as consistent with noncriminal activity as with criminal behavior. However, several burglaries had occurred at the car wash, neither the car wash nor the adjacent shopping center was open, and generally no one is in the area at that time. That, together with his fourteen years experience as a police officer, caused him to think that criminal activity might be afoot. b. John Norlin Norlin followed Fowler's squad car as he left The Scoreboard. When Fowler stopped appellant, Norlin pulled his squad car in behind Fowler. Norlin agreed that appellant's driving behavior was as consistent with noncriminal behavior as criminal behavior. But, the parking lot was big and open, and appellant could have turned around without backing up his vehicle. c. Michael Collier Collier drove out of The Scoreboard's parking lot as Fowler and Norlin were getting into their cars. As Collier left, a vehicle passed him that turned out to be appellant's vehicle. Shortly thereafter, Fowler radioed Collier and reported appellant's vehicle at the car wash. Collier turned around and met Fowler and Norlin there. Although Collier wrote the police report, appellant was out of his car when Collier arrived at the scene. Collier's report reflected what Fowler told him-that appellant drove forward and backward "in an attempt to turn around." 2. Standard of Review We review motions to suppress under the standard set forth in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). We afford almost total deference to a trial court's determination of the historical facts supported by the record when the trial court's findings turn on its evaluating the witnesses' credibility and demeanor. Id. at 89. The amount of deference we afford a trial court's ruling on a mixed question of law and fact depends upon which court is in a better position to decide the issue. See id. Without credibility issues, we determine de novo whether reasonable suspicion or probable cause existed to justify a stop or arrest. See Ornelas v. United States, 517 U.S. 690, 699 (1996); Guzman, 955 S.W.2d at 89. 3. Applicable Law Both federal and state law permit police officers to stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22-26 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App. 1989). However, the individual officer must have a reasonable suspicion that (1) "some activity out of the ordinary is occurring or had occurred," (2) the detained person is connected with the unusual activity, and (3) the activity is related to a crime. Terry, 392 U.S. at 21-22; Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App. 1997). To determine whether reasonable suspicion supports an investigative stop, we review the totality of the circumstances. U.S. v. Sokolow, 490 U.S. 1, 9 (1989); Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The evidence must show that the particular facts and inferences rationally drawn from those facts, when viewed under the totality of the circumstances and in light of the officer's experience, create a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 27; Balentine, 71 S.W.3d at 768. Among the various factors an officer may take into account include time of day, a parked car's close proximity to a closed business, and knowledge that a given location has been burglarized in the past. Klare v. State, 76 S.W.3d 68, 72 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). 4. Application of the Law to the Facts Appellant argues his case is analogous to Klare in which the appellate court reversed the trial court's denial of Klare's motion to suppress. See 76 S.W.3d at 77. We disagree. In Klare, the officer cited time of day, closed business, and knowledge of past burglaries as reasons for stopping the vehicle. The officer in Klare observed no other facts, and the court concluded "there [was] no activity at all on which to draw an inference of criminal activity justifying the stop." Id. at 76. The Klare court held that to justify the stop, the police officers needed "an additional fact or facts particular to the suspect's behavior." Id. at 75. Here, Fowler articulated several factors providing him reasonable suspicion that criminal activity might have taken place-the late hour, the closed shopping center and car wash, and the burglaries of the car wash. Additionally, appellant's behavior of driving forward and backward was consistent with criminal activity-a fact "particular to the suspect's behavior." Finally, Fowler also applied his fourteen years experience as a police officer in determining criminal activity might be afoot. Fowler used these additional facts as his basis for reasonable suspicion to justify detaining appellant. Although Norlin agreed appellant could have been attempting to turn his vehicle around, he had no need to go backward and forward in such a big, empty parking lot. Fowler initiated the stop and articulated additional facts that justified the detention. Looking at the totality of the circumstances, we conclude the detention was supported by reasonable suspicion. We resolve both of appellant's issues against him. We affirm the trial court's judgment.
Because the test for determining whether an officer has reasonable, articulable suspicions justifying a stop or detention of an individual is the same under article one, section nine as under the Fourth Amendment, we address appellant's two issues together. See Johnson v. State, 912 S.W.2d 227, 233-34 (Tex.Crim. App. 1995).