No. 05-09-00743-CR
Delivered: January 20, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292 nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-56146-OV.
Before Justices BRIDGES, LANG, and LANG-MIERS.
Opinion By Justice BRIDGES.
Appellee Cory Castleberry was charged by indictment for the offense of unlawfully, intentionally and knowingly possessing a controlled substance, cocaine, in an amount of less than one gram. Appellant State of Texas appeals the trial court's decision to grant appellee's motion to suppress. We affirm.
Background
At approximately 3:00 a.m. on May 31, 2008, Dallas Police Officer Barrett and his partner saw appellee and another man walking behind a restaurant in the Cedar Springs/Lemmon Avenue/Maple area of Dallas. Officer Barrett testified that it was a high-crime area and, on the date in question, there had been a recent increase in burglaries in the area. He further stated that his superior officer had put pressure on him and other officers to focus on the burglaries. Officer Barrett testified that he was concerned when he saw appellee and another man walking in a dark area behind a business that was closed. When questioned by the trial court, the officer conceded there was ambient light from the surrounding areas behind the business and that a flashlight would be unnecessary to walk behind the business safely. The officer admitted there was nothing in the hands of appellee or his companion when he saw them. The officer further affirmed there was nothing about "[appellee] or his companion that would have been out of the ordinary for two people walking down the street." Officer Barrett explained that his partner dropped him off at the front of the business and then Officer Barrett walked around the business to walk up behind appellee and his companion. Officer Barrett testified that he then "probably asked them for ID, questioned them why they were walking through there." At the request, Officer Barrett explained that appellee reached for his waistband and the officer then became concerned appellee was reaching for a weapon. So, Officer Barrett instructed appellee to put his hands up. The officer testified he instructed appellee to put his hands up because he "commonly" has them put their hands up until he can "gain control of them and have them put their hands behind their back so that [he] can have control of their hands while [he does] a patdown." But when Officer Barrett asked appellee to put his hands up, appellee again reached for his waistband. Officer Barrett then had him put his hands behind his back and tried to gain control of his hands and began a pat-down search, at which time appellee reached at his waistband a third time and threw a baggie containing cocaine on the ground. Officer Barrett found no weapons on appellee and later arrested appellee. Appellee also testified at the suppression hearing and explained he was walking to his apartment when Officer Barrett stopped him in the parking lot behind the closed business. Appellee explained that he and his companion had left a nearby bar, stopped to eat at a 24-hour restaurant, and then cut through the parking lot to reach his apartment. Appellee explained that he often walked through the parking lot behind the business as a short-cut to his apartment complex. Appellee further confirmed that the parking lot was "well lit enough where you could . . . see what's going on" and denied that it was dangerous to walk behind the building. Appellee confirmed he and his companion were not carrying anything in their hands, but appellee explained that he was holding a compact disk on his waistband. When questioned by the trial court, appellee explained there was quite a bit of foot traffic in that area around 3:00 a.m., because people were walking home from the area bars and nightclubs. After conducting a hearing on appellee's motion to suppress, the trial court granted the motion and issued findings of fact and conclusions of law. This appeal ensued. Analysis
When reviewing a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We review de novo the legal determinations of detention, reasonable suspicion, and probable cause under the Fourth Amendment, while granting great deference to the trial court's factual findings. State v. Sheppard, 271 S.W.3d 281, 286-87 (Tex. Crim. App. 2008). The trial court's evidentiary ruling "will be upheld on appeal if it is correct on any theory of law that finds support in the record." Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App. 2006). When an officer has a reasonable suspicion based on articulable facts that criminal activity is afoot, and a certain person is connected with the activity, the officer may make an investigative stop of that person even though grounds for arrest do not exist. Terry v. Ohio, 392 U.S. 1, 20-29 (1968); Sheppard, 271 S.W.3d at 287. The articulable facts "must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime." Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). These facts must amount to more than a mere inarticulable hunch or suspicion. Id.; Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). Any investigative detention that is not based on reasonable suspicion is unreasonable and violates the Fourth Amendment. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). The burden is on the State to elicit testimony showing sufficient facts to create a reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Whether reasonable suspicion exists is determined by considering the facts known to the officer at the moment of detention. Davis, 947 S.W.2d at 243. A determination of reasonable suspicion must be based on common sense judgments and inferences about human behavior. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000). In its findings of fact, the trial court stated that "[a]t the time Officer Barrett approached the [appellee] and his companion, he did not have any reason to believe that a crime had occurred, was occurring, or was about to occur." We agree. As the trial court noted, appellee had nothing in his hands which looked like a potential weapon or tool for committing a burglary and he and his companion had nothing in their hands which could be used to assist in taking stolen property away from a crime scene. The trial court further found that when the officer first observed appellee and his companion, "they were doing nothing more than simply walking in a public area behind a closed business." In its findings of fact, the trial court also stated that "[a]t the time Officer Barrett approached the [appellee] and his companion he did not have any information which would lead him to believe that the [appellee] was a threat to the Officer or any other person." We again agree with the trial court. Upon approaching appellee, the officer asked him his name and for him to produce identification. In response, appellee reached for his waistband and the officer asked appellee to put his hands up, so he could "gain control" of appellee and do a pat-down search. In light of the evidence, we agree with the trial court that the officer went "too far." Davis, 947 S.W.2d at 243. See also In re A.T.H., 106 S.W.3d 338, 347 (Tex. App.-Austin 2003, no pet.) (pat-down search conducted solely as a matter of routine or procedure are not justified). Since the State failed to demonstrate sufficient facts to create a reasonable suspicion for the detention of appellee, we agree with the trial court that any items seized after the detention were a direct result of an impermissible detention in violation of the Fourth Amendment. See Garcia, 43 S.W.3d at 530; Garza, 771 S.W.2d at 558. Further, any items seized as a fruit of that violation were correctly suppressed. See Davis, 947 S.W.2d at 242. Therefore, we affirm the judgment of the trial court. See Gonzalez, 195 S.W.3d at 126.