Opinion
No. 05-05-00726-CR
Opinion issued February 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 04CL-2324. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
OPINION
The State of Texas appeals the trial court's order granting Guillermo Excobedo, Jr.'s motion to suppress. In two issues, the State argues that a detention to investigate a trespass on school grounds is justified absent reasonable suspicion, and police in this case stopped Escobedo based on a reasonably close resemblance between Escobedo's passenger and an expelled student. We affirm the trial court's order granting Escobedo's motion to suppress. On January 27, 2003, Debi Nixon, Kaufman Independent School District (KISD) chief of police, was in her patrol vehicle in a parking lot near the school cafeteria. School was letting out at the time, and Nixon saw KISD officer Zuccarelli on foot monitoring traffic in an adjacent parking lot. Nixon saw Escobedo's vehicle traveling down a "cut through" road on the northern part of the school property. Nixon thought she recognized Escobedo's passenger as a student who had been expelled and was prohibited from trespassing on any KISD property. Because of the traffic flow, Nixon was not able to get behind Escobedo's vehicle, so she directed Zuccarelli to stop Escobedo. Zuccarelli waved Escobedo to stop and directed him to get out of his vehicle. Nixon also approached the vehicle, and the officers detected the odor of marijuana. Escobedo told the officers that "what [they] were looking for was in the center console" of the vehicle. Zuccarelli looked in the vehicle and returned to Nixon carrying a baggie of marijuana. At Escobedo's subsequent trial, he moved to suppress all evidence seized in connection with the stop. The trial court granted Escobedo's motion to suppress, and this appeal followed. In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. Id. Here, the trial judge was free to disbelieve Nixon's testimony that Escobedo's passenger resembled a student who had been expelled and believe that Nixon had no legitimate reason for directing Zuccarelli to stop Escobedo's vehicle. See Ross, 32 S.W.3d at 855. Under these circumstances, we cannot conclude the trial judge erred in granting Escobedo's motion to suppress. We overrule the State's first and second issues. We affirm the trial judge's order granting Escobedo's motion to suppress.