Opinion
NO. PD-0561-20
05-12-2021
Jacob Matthew JOHNSON, Appellant v. The STATE of Texas
John R. Messinger, for State. Dominic John Merino, Alvin, for Appellant.
John R. Messinger, for State.
Dominic John Merino, Alvin, for Appellant.
Keller, P.J., delivered the opinion of the Court in which Hervey, Yeary, Newell, Keel, and Slaughter, JJ., joined.
An officer activated his emergency lights and approached a parked vehicle at a "park and ride" lot. We conclude that the officer had reasonable suspicion to conduct an investigative detention because the parking lot had a significant association with criminal activity and because the occupants of the vehicle engaged in activity that appeared secretive and was unusual for the time and place. Consequently, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.
I. BACKGROUND
A. Suppression Hearing
The only witness at the suppression hearing was Sergeant Robert Cox, from the patrol division of the Brazoria County Sheriff's Office. He testified about events occurring on August 28, 2016, at a park-and-ride parking lot.
The main use of the park-and-ride was "during the daytime for people that go into plant traffic and park," but it was open twenty-four hours. The park-and-ride was close to a bar, and because the bar's own parking lot was small, patrons often parked at the park-and-ride and walked over. Sergeant Cox knew that the park-and-ride was a place where "a variety of criminal activity" took place, including burglaries of motor vehicles, public lewdness, and illicit drugs. In his ten years of patrolling the area, Sergeant Cox could not say how many times he had been at the park-and-ride on calls, but it had been "a lot." In the months around August 28, he personally had been at the park-and-ride on calls "maybe three or four" times. When he was not on a call, but was simply patrolling the park-and-ride, the sergeant's general practice was to drive around the lot and shine a spotlight on the vehicles.
Shortly after midnight, Sergeant Cox saw a vehicle parked by itself away from where other vehicles were parked. This solitary vehicle's headlights and other outside lights were off, and there were no lights on inside the vehicle. When he shined his spotlight on the vehicle, Sergeant Cox could tell that there were two occupants and that there was movement inside the vehicle. In Sergeant Cox's experience, it was out of the ordinary for someone to be inside a vehicle at the park-and-ride after midnight "[w]ith no other vehicle there to pick them up and give them a ride."
The sergeant pulled to a stop 10 to 15 yards behind the vehicle and activated his overhead emergency lights. He activated those lights to start the recording equipment and also to let the occupants of the vehicle know he was a police officer "and so nobody shoots [him]." He approached the vehicle on foot, made contact on the driver's side using caution, and identified himself. At some point, the driver's side window was rolled down, and once that occurred, Sergeant Cox smelled marijuana. At that point, the sergeant also noticed that Appellant was wearing baggy shorts and that his shorts were unbuttoned and unzipped.
In response to a question suggesting that his vehicle was "not fully blocking in the view," the sergeant indicated that it was not.
During the hearing, defense counsel asked the sergeant, "And you had—you know, so if you turned on your overhead lights, it would be like a normal police car pulling somebody over if you got a traffic ticket. Right? I mean, that's what your vehicle looked like?" Sergeant Cox responded, "Yes, sir."
The State sought to offer a copy of the video recording captured by the patrol car. Defense counsel objected that the video recording was irrelevant because the events it depicted occurred after the defendant was seized. The defense theory was that a seizure of Appellant occurred once the overhead emergency lights were activated and that the sergeant did not have reasonable suspicion to initiate that seizure. Since the recording captured only events that occurred after the overhead emergency lights were activated, the defense reasoned, the events on the recording would necessarily be post-seizure. The trial court sustained the defense objection. It agreed with the defense "somewhat" and concluded that the issue before it was whether the officer had reasonable suspicion.
The State suggested that the recording might include some footage immediately preceding the activation of the overhead lights. The defense indicated a willingness to allow any such portion of the video to be played but maintained that the bulk of the video, occurring after the overhead emergency lights were activated, should be excluded.
B. Trial Court's Findings
The trial court made the following written findings of fact that seem relevant to the inquiry before us:
2. Sergeant Robert Cox testified that he was on routine patrol around 12 AM.
3. Sergeant Cox further testified that as part of his routine patrol, he regularly checks the park and ride located at the intersection of FM 2004 and FM 523. He regularly spotlights vehicles parked overnight in that park and ride to deter drug activity and burglaries.
4. The park and ride at the intersection of FM2004 and FM 523 is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness. Sergeant Cox testified that he had personally made several arrests in the months prior to this offense for such offenses in that park and ride.
5. While conducting his routine patrol on or about the day in question, Sergeant Cox spotted the defendant's vehicle parked in the park and ride and observed movement inside. Other vehicles were present in the park and ride and that [sic] defendant's vehicle was parked away from the other vehicles.
6. Sergeant Cox parked behind defendant's vehicle then turned on his overhead lights.
7. Sergeant Cox did not block the defendant's vehicle from leaving when he parked behind it.
8. Sergeant Cox then approached defendant's vehicle.
9. Once the defendant rolled down his window, Sergeant Cox observed the defendant's pants to be undone and detected the smell of marihuana.
The trial court issued the following conclusions of law:
1. Officers do not need reasonable suspicion to initiate a consensual encounter with a citizen. Sergeant Cox's initial encounter with the defendant was a proper consensual encounter that later evolved into an investigative detention.
2. The sole fact that Sergeant Cox activat[ed] his overhead lights alone did not elevate the consensual encounter into an investigative detention.
3. If the initial encounter was a detention, it was properly supported by reasonable suspicion of criminal activity as necessary to detain the defendant based on specific, articulable facts, namely: his presence in the park and ride, a high crime area, after the park and ride's normal operating hours.
Record references and citations omitted.
C. Appeal
The court of appeals concluded that a seizure had occurred before Appellant rolled down his car window. That court observed that "fact patterns involving a police officer's use of a patrol car's overhead emergency lights are frequently held sufficient to constitute an investigative detention of a citizen, whether in a parked car or a moving car." But, the court of appeals said, "[C]ourts must consider the circumstances" and ultimately "context matters." The court noted that a police car might pull to the side of the road at night and activate emergency lights for safety purposes. After reviewing the circumstances of Appellant's case in the light most favorable to the trial court's ruling, the court of appeals concluded that the evidence demonstrated that Officer Cox "through a show of authority, sufficiently conveyed the message that appellant was not free to leave the Parking Lot or to ignore a request to lower the car window."
Johnson v. State , 602 S.W.3d 50, 58 (Tex. App.—Houston [14th Dist.] 2020).
Id.
Id.
Id.
Id.
The court of appeals further concluded that Sergeant Cox lacked reasonable suspicion to initiate the seizure. The appellate court first took issue with the trial court's conclusion that the park-and-ride was a high crime area. The court of appeals noted that the Sergeant testified to responding to three or four calls during a time period and that he also testified that burglaries of motor vehicles, drug crimes, and public lewdness occurred at the park-and-ride, but the court of appeals stated that the sergeant did not say that the calls were for those crimes or that the calls resulted in any arrests. The appellate court also stated that Sergeant Cox did not testify that the park-and-ride was a high crime area. The court of appeals concluded that the record does not support the trial court's finding that the park-and-ride "is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness and that Officer Cox testified he had made several arrests for these types of offenses in the months prior to the charged offense." Consequently, the court of appeals disregarded these findings.
Id. at 61.
Id. at 59-60.
Id.
Id. at 60.
Id.
Id.
Next, the court of appeals noted that the time of day and level of criminal activity in the area are relevant to reasonable suspicion but that "courts generally require something else particular to the suspect's behavior to justify a suspicion of criminal activity." The appellate court pointed to one of its earlier cases, in which reasonable suspicion was lacking, when the following factors were present:
Id. at 61
(1) it was 2:30 a.m.; (2) while driving on a highway, the officer saw a truck parked behind a shopping center; (3) the businesses in the shopping center were closed; (4) there had been burglaries at the shopping center in the past, though the police officer did not say how recent or how many; (5) the officer turned into the parking lot shortly afterwards and discovered that the truck was gone; (6) the officer then turned onto an adjoining road and within fifteen to twenty seconds
came upon a truck that he believed to be the same as the one at the shopping center; and (7) the officer wanted to identify the truck.
Id. at 60-61 (discussing Klare v. State , 76 S.W.3d 68, 71 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd) ).
After analyzing the earlier case, the court of appeals concluded that, even in the light most favorable to the trial court's ruling, the record in this case did not reasonably support the trial court's determination that Sergeant Cox had the requisite reasonable suspicion. Ultimately, the court of appeals reversed the trial court's judgment and remanded the case for further proceedings.
Id. at 61.
Id. at 62.
The concurring opinion would have held that "flashing overhead emergency lights is synonymous with an instruction to stop and not leave." The concurrence would also have found that the time of day was not suspicious because the park-and-ride was open twenty-four hours a day.
Id. at 69 (Hassan, J., concurring).
Id. at 65-66. The concurrence made other arguments that appear to be consistent with the majority opinion that we need not detail here. See id. at 67-69.
II. ANALYSIS
The State argues that Sergeant Cox did not initiate a seizure when he activated his emergency lights. The State also contends that Sergeant Cox had reasonable suspicion to conduct an investigative detention. Assuming, without deciding, that a seizure did occur, we agree with the State that Sergeant Cox had reasonable suspicion.
See State v. Garcia-Cantu , 253 S.W.3d 236, 245 n.43 (Tex. Crim. App. 2008) (use of police emergency lights "frequently held sufficient to constitute a detention or seizure of a citizen, either in a parked or moving car") (citing cases from other jurisdictions).
Under the Fourth Amendment, a police officer may conduct an investigative detention if the "reasonable suspicion" standard is satisfied. "Reasonable suspicion" means "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Stated another way, "Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaged in criminal activity." A mere "hunch" is not sufficient, but the level of suspicion required is less than what is necessary for probable cause and "can be established with information that is different in quantity or content than that required to establish probable cause." The articulable facts need only show "that some activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual activity, and some indication that the unusual activity is related to crime." The officer need not be able to "pinpoint a particular penal infraction." And reasonable suspicion "does not require negating the possibility of innocent conduct."
Kansas v. Glover , ––– U.S. ––––, 140 S. Ct. 1183, 1187-88, 206 L.Ed.2d 412 (2020).
Id. at 1187.
State v. Cortez , 543 S.W.3d 198, 204 (Tex. Crim. App. 2018).
Glover , 140 S. Ct. at 1187-88.
Derichsweiler v. State , 348 S.W.3d 906, 916 (Tex. Crim. App. 2011).
Id.
Ramirez-Tamayo v. State , 537 S.W.3d 29, 39 (Tex. Crim. App. 2017).
The "reasonable suspicion" standard "depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." In formulating reasonable suspicion, a police officer can draw on his own experience and specialized training. We review a determination of reasonable suspicion by looking at the totality of the circumstances. Sometimes, a police officer's limited knowledge of the circumstances can give rise to reasonable suspicion, even though "the presence of additional facts might dispel reasonable suspicion."
Glover , 140 S. Ct. at 1188 (emphasis removed).
Ramirez-Tamayo , 537 S.W.3d at 36.
Cortez , 543 S.W.3d at 204.
Glover , 140 S. Ct. at 1191.
Some of the trial court's fact findings relevant to reasonable suspicion slightly overstate what is actually in the record. The statement in Finding 3 that Sergeant Cox "regularly spotlights vehicles parked overnight" in the park-and-ride is based on testimony that Sergeant Cox regularly spotlights any vehicles parked there at night. That some vehicles are likely parked "overnight" appears to be a rational inference from the record, but nothing in the testimony suggested that Sergeant Cox would know which vehicles would ultimately be parked overnight. Finding 4 mentions motor-vehicle burglaries, drug crimes, and public lewdness and says that "Sergeant Cox testified that he had personally made several arrests in the months prior to this offense for such offenses in that park and ride," but as the court of appeals pointed out, Sergeant Cox did not explicitly testify that his calls to the park-and-ride were for those crimes or that he made arrests during those calls. The trial court would have been on firmer ground to infer from Sergeant Cox's testimony that the calls were for those crimes and resulted in arrests, and then the question would be whether such inferences were reasonable. And in Conclusion 3, the trial court referred to Appellant's vehicle being present "after the park and ride's normal operating hours," when in fact the park-and-ride was open twenty-four hours. Sergeant Cox did testify, however, that the main use of the lot was during the daytime and that it was out of the ordinary for somebody to be parked in their car after midnight in that park-and-ride with no one there to pick them up.
By "factual findings," we refer in this case both to the explicit findings of fact and to statements in the conclusions of law that amount to a fact finding.
Despite some imprecision, we can say two general things about the findings and conclusions that support the trial court's ruling. First, although the trial court did not make an express assessment of Sergeant Cox's credibility, all of the findings accept his credibility on various points and, taken together, indicate that the trial court accepted his credibility in all respects. Second, even where the findings and conclusions are not strictly correct, they can be traced back to facts established by Sergeant Cox's testimony that are relevant to—though perhaps not as strongly supportive of—reasonable suspicion. In the previous paragraph, we outlined three such situations.
Sergeant Cox was aware of at least seven facts relevant to reasonable suspicion before he turned on his overhead emergency lights. Those facts, along with the trial-court findings to which each fact relates, are as follows:
1. The park-and-ride was a place that had a significant association with criminal activity. Finding 3 ("to deter drug activity and burglaries"), Finding 4 (in its entirety), and Conclusion 3 ("high crime area").
2. In Sergeant Cox's experience, it was unusual for a person to be inside his vehicle while it was parked at the park-and-ride after midnight without another vehicle there to give him a ride. Finding 3 ("vehicles parked overnight in that park and ride"), Conclusion 3 ("his presence in the park and ride ... after the park-and-ride's normal operating hours").
3. At least one person was inside Appellant's vehicle while it was parked at the park-and-ride after midnight. Finding 2 ("on routine patrol around 12 AM"), Finding 5 ("While conducting his routine patrol ... spotted the defendant's vehicle parked in the park and ride and observed movement inside"), Conclusion 3 ("his presence in the park and ride ... after the park-and-ride's normal operating hours").
4. At least one person in the vehicle was awake because there was movement in the vehicle. Finding 5 ("observed movement inside"), Conclusion 3 ("his presence in the park and ride ... after the park-and-ride's normal operating hours").
5. The vehicle's lights were off. Conclusion 3 ("his presence in the park and ride ... after the park-and-ride's normal operating hours").
6. There were no other lights on inside the vehicle. Conclusion 3 ("his presence in the park and ride ... after the park-and-ride's normal operating hours").
7. The vehicle was parked away from the other vehicles in the park-and-ride. Finding 5 ("Other vehicles were present in the park and ride and that defendant's vehicle was parked away from the other vehicles.").
Regarding the first fact, we need not decide whether the record supports the trial court's finding that the park-and-ride was a "high crime area." The court of appeals's point that Sergeant Cox did not testify explicitly that the park-and-ride was a "high crime area" is true but does not necessarily undermine the trial court's finding. The trial court's finding that the park-and-ride was a "high crime area" was an inference based on the testimony. Nevertheless, it is enough for our purposes to hold that the testimony at least supports an inference that the park-and-ride had a significant association with criminal activity. The place had been the site of at least three different types of criminal activity, with each type having been committed multiple times. Sergeant Cox had responded to calls to the park-and-ride "a lot" of times, and in the months around the date of this offense, he had personally answered three or four calls to it.
The second fact was explicitly testified to by Sergeant Cox. The trial court somewhat overstated the evidence in Conclusion 3 when it said that Appellant's vehicle was parked after normal operating hours; the park-and-ride was open twenty-four hours, so all hours were "normal operating hours." But Sergeant Cox did testify that someone's presence at the park-and-ride could be abnormal under certain circumstances given the lateness of the hour: that sitting in a parked car at the park-and-ride after midnight without another car present to give the person a ride was out of the ordinary. The trial court's reference to "vehicles parked overnight" in Finding 3 was consistent with Sergeant Cox's testimony that, once the hour became late enough, people were leaving their cars in the park-and-ride and obtaining rides home. In fact, if it were not for the presence of the nearby bar, there would normally be no reason for anyone to sit in their cars after midnight at the park-and-ride. The ostensible purpose of a park-and-ride lot is to provide a place to park while one uses public transportation. No testimony was elicited about whether buses were still running at midnight, but Sergeant Cox did testify that, even though people from the nearby bar would park at the park-and-ride, its main use was during the daytime for plant workers.
The third fact was explicitly testified to by Sergeant Cox and can be derived from considering several of the trial court's findings together. The trial court's Finding 2 said the sergeant was on patrol around 12 a.m., and Finding 5 said the sergeant spotted Appellant's vehicle and the movement inside while on patrol. And Conclusion 3's reference to Appellant's presence "after normal operating hours" was an implicit reference to the lateness of the hour.
The fourth fact, that someone in the vehicle was awake, is a rational inference from seeing movement inside the vehicle. Sergeant Cox testified to seeing movement inside the vehicle, and the trial court explicitly found that Sergeant Cox saw such movement.
Sergeant Cox explicitly testified to the fifth and sixth facts. As we will explain more fully below, these facts relate to the oddness of Appellant's presence at the park-and-ride after midnight, and are implicated under the trial court's Conclusion 3.
Finally, the seventh fact was testified to by Sergeant Cox and explicitly found by the trial court.
Viewed together, here is what we have: Sergeant Cox knew that the park-and-ride had a significant association with criminal activity. He also knew that, after midnight, people did usually not loiter inside their vehicles: they either got in their vehicles and drove away immediately, or they arranged for a ride home in someone else's vehicle. Sergeant Cox also knew that Appellant's vehicle was occupied after midnight, that the vehicle was not driving away (the lights were off), and that there was not a "ride-home" vehicle next to Appellant's vehicle. Sergeant Cox could also surmise that the occupant was not waiting for another vehicle because there was no light on inside the vehicle. One might expect to see some sort of light in the occupied vehicle, such as from a cell-phone calling the ride or monitoring its progress, a CD player playing a song while the person waits, an internal light on to read a book, or the light of a smart phone occupying one's time. The interior of a car could be dark if the occupant was asleep but because Sergeant Cox had seen movement, he knew at least one occupant of the car was awake. And Appellant's vehicle being in a spot away from the other vehicles might not mean much by itself. But when combined with the occupant's out-of-the ordinary presence at the park-and-ride after midnight, the relative seclusion of the vehicle suggested that the occupant or occupants were engaged in behavior that needed to be hidden from others. And the inference that behavior was being hidden was reinforced by the absence of lighting in the vehicle.
The unusual and secretive behavior of the occupants of Appellant's vehicle at least gave rise to an objectively reasonable suspicion that some sort of crime was being committed or contemplated. Drug crimes had occurred with at least some frequency at the park-and-ride, and a dark, isolated vehicle would easily facilitate such crimes. Or such a vehicle could be a waiting spot for the commission of some other crime, such as burglarizing someone else's vehicle or burglarizing a business, such as the nearby bar. Or there might be some other unknown crime that the occupant of such a vehicle intends to commit. As we have explained, an officer does not have to pinpoint an exact penal offense. Here, the unusual and secretive nature of Appellant's behavior was sufficient to give rise to a reasonable suspicion "that something of an apparently criminal nature is brewing."
See Derichsweiler , 348 S.W.3d at 917 (emphasis in original).
There might be an innocent explanation for someone sitting in his car in the dark at the park-and-ride after midnight in a relatively isolated parking spot. And assuming multiple occupants (two, according to Sergeant Cox's testimony), they could be talking or passing the time in some other manner that does not require light. But as we have already explained, reasonable suspicion does not require negating the possibility of an innocent explanation. "It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon." And as we have also pointed out earlier, reasonable suspicion is a less demanding standard than probable cause. It is a relatively low hurdle. Sergeant Cox was confronted with unusual circumstances that, from an objective standpoint, gave rise to reason to believe that something criminal had occurred, was occurring, or was about to occur.
Id.
Consequently, we hold that the court of appeals erred in concluding that Sergeant Cox lacked reasonable suspicion to conduct an investigative detention.
We reverse the judgment of the court of appeals and affirm the judgment of the trial court.
Walker, J., filed a dissenting opinion.
Richardson, J., concurred.
McClure, J., dissented.
DISSENTING OPINION
Walker, J., filed a dissenting opinion.
In determining whether a police officer had reasonable suspicion to detain a person, we look to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified. Derichsweiler v. State , 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The Court's determination in this case, however, looks to some of the circumstances, not the totality. The actual totality of the circumstances do not combine to reasonably suggest imminent criminal conduct, and I agree with the court of appeals that the detention in this case is not supported by reasonable suspicion. I respectfully dissent to this Court's decision to reverse.
According to the Court's opinion, "[v]iewed together, here is what we have," of the totality of the circumstances that combine to suggest criminal activity:
Majority op. at 387.
• "Sergeant Cox knew that the park-and-ride had a significant association with criminal activity";
• "He also knew that, after midnight, people did usually not loiter inside
their vehicles: they either got in their vehicles and drove away immediately, or they arranged for a ride home in someone else's vehicle";
• "Sergeant Cox also knew that Appellant's vehicle was occupied after midnight";
• "the vehicle was not driving away";
• "(the lights were off)";
• "there was not a ‘ride-home’ vehicle next to Appellant's vehicle";
• "Sergeant Cox had seen movement ... at least one occupant of the car was awake"; and
• "Appellant's vehicle [was] in a spot away from the other vehicles...."
Id.
The Court finds that these circumstances showed that the presence of Appellant's vehicle was odd and out-of-the-ordinary; therefore, there was "a reasonable suspicion ‘that something of an apparently criminal nature is brewing.’ "
Id. at 387–88 (quoting Derichsweiler , 348 S.W.3d at 917 ) (emphasis in Derichsweiler ).
But the presence of Appellant's vehicle was neither odd nor out-of-the-ordinary. Cox confirmed that, when he observed Appellant's vehicle, there were other vehicles in the park-and-ride at that particular time. Cox further testified:
Hearing on Motion to Suppress, Rep. R. vol. 1, 18.
A. It's a 24-hour park-and-ride. The main use is during the daytime for people that go into plant traffic and park. But it is 24 hours open. So, we have it -- people use it. There's a bar down the road. There's people -- they don't have a big parking spot there. There's people that will park there and commute over to the bar.
Id. at 27.
Based on Cox's testimony, Appellant's vehicle was parked at the park-and-ride during normal operating hours, and the presence of Appellant's vehicle was ordinary.
The Court acknowledges that Appellant's vehicle was parked during the park-and-ride's normal operating hours. Majority op. at 386–87. This seems to have fallen by the wayside in the actual analysis.
The Court also finds that one of the circumstances supporting the stop was that Appellant's vehicle was parked in a spot away from other vehicles and thus relatively secluded. But relative seclusion was never testified to. Cox testified that there were "no other vehicles around [Appellant's vehicle]." Cox did not testify that Appellant's vehicle was hidden from view. Indeed, he testified that he saw Appellant's vehicle as part of his routine patrol of the park-and-ride. The Court reads more into this than is warranted by the plain testimony provided by Cox. All that is supported by this testimony is that Appellant's vehicle was parked separate from the other vehicles at the park-and-ride.
Hearing on Motion to Suppress, Rep. R. vol. 1, 18.
What sets Appellant's vehicle apart, then, and what the Court focuses upon, is Cox's testimony that he observed there were people inside the vehicle which was dark. The lack of lights inside the vehicle would be significant, according to the Court, because:
One might expect to see some sort of light in the occupied vehicle, such as from a cell phone calling the ride or monitoring its progress, a CD player playing a song while the person waits, an internal light on to read a book, or the light of a smartphone occupying
one's time.
Majority op. at 387.
The Court seems to take the lack of a light as evidence that the people within are not engaged in these particular behaviors that "one might expect" from a person innocently waiting. Therefore, the lack of a light is evidence that they are not innocently waiting. In essence, Appellant was suspicious because he was not doing what "one might expect" of an innocent person.
But what "one might expect" of an innocent person is no way to judge whether a stop was supported by reasonable suspicion. So many possibilities fall within what one might expect that I do not think reasonable suspicion can be found simply because a person is not engaged in conduct as consistent with some specific innocent activities that "one might expect." It fails to yield a rational inference that they are engaged in any suspicious activity, let alone criminal activity.
Yet the Court does seem to deduce that the facts are more indicative of criminal activity than innocent behavior. The opinion goes on to explain the belief that darkness hides things which could include drug crimes:
But when combined with the occupant's out-of-the ordinary presence at the park-and-ride after midnight, the relative seclusion of the vehicle suggested that the occupant or occupants were engaged in behavior that needed to be hidden from others. And the inference that behavior was being hidden was reinforced by the absence of lighting in the vehicle.
The unusual and secretive behavior of the occupants of Appellant's vehicle at least gave rise to an objectively reasonable suspicion that some sort of crime was being committed or contemplated. Drug crimes had occurred with at least some frequency at the park-and-ride, and a dark, isolated vehicle would easily facilitate such crimes. Or such a vehicle could be a waiting spot for the commission of some other crime, such as burglarizing someone else's vehicle or burglarizing a business, such as the nearby bar. Or there might be some other unknown crime that the occupant of such a vehicle intends to commit. As we have explained, an officer does not have to pinpoint an exact penal offense. Here, the unusual and secretive nature of Appellant's behavior was sufficient to give rise to a reasonable suspicion "that something of an apparently criminal nature is brewing."
Id. at 387–88.
From the vehicle being dark and not parked adjacent to the other vehicles, the Court sees unusual and secretive behavior. But Cox never said that the occupants of the vehicle were engaged in unusual or secretive behavior; he testified that he saw movement. Even if it could be reasonably suggested that the people inside the vehicle were engaged in something hidden and secretive simply because there was movement in a dark vehicle parked separate from other cars, I cannot make the same jump the Court does from "hidden people in the dark" to "crimes are brewing." Should every place where people are engaged in hidden—and therefore private—business be reasonably suspected of containing criminal activity such that the State has license to poke its nose inside? There was no testimony that people doing something hidden are engaging in criminal activity. There was no testimony that dark vehicles are breeding grounds for criminal activity. Nor was there testimony that lights inside a vehicle negate criminal activity. Nevertheless, the Court supposes that the occupants of the vehicle could be waiting to commit a crime, yet barely a breath earlier the Court found the lack of a light inside the vehicle to suggest that the occupants were not waiting for a ride.
It seems to me that, in order to uphold the detention in this case, the Court has to resort to stereotypes about light and dark, day and night, good and evil.
The analysis should rest, instead, on the totality of the circumstances that are in the record. The park-and-ride has some "significant association with criminal activity;" there was a vehicle parked at the park-and-ride; it was not parked adjacent to other vehicles that were also parked there; the vehicle's presence was neither odd nor out-of-the-ordinary; the vehicle was dark; and there were people inside. That isn't enough. As Justice Hassan's concurring opinion below pointed out, we explained in Ceniceros , a case in which we held there was not reasonable suspicion to detain the defendant based upon his presence in an area where crimes (in that case, burglaries) had been committed:
The only facts the officer had at the initiation of his investigation were (1) a number of recent burglaries in the area and (2) four men standing together on a sidewalk at an intersection at 10:20 in the morning.... If such a suspicion were a reasonable inference from standing on a street corner in this neighborhood, all citizens passing through victimized neighborhoods would be suspects, and pedestrian checkpoints could be set up to monitor their comings and goings. Practices of this kind are repugnant to a free society. If victimization by crime becomes the justification for indiscriminate intrusion by the state, then we forfeit the security of our persons and privacy from invasion by the police on a hope of future security from the criminal, and ultimately find ourselves the displaced refugees in a raging war on crime.
Johnson v. State , 602 S.W.3d 50, 68 (Tex. App.—Houston [14th Dist.] 2020) (Hassan, J., concurring) (quoting Ceniceros v. State , 551 S.W.2d 50, 55 (Tex. Crim. App. 1977) ). The same can be said about sitting in a parked car at night, which is about as worthy of suspicion as driving a clean van. See State v. Cortez , 543 S.W.3d 198, 201 (Tex. Crim. App. 2018) (officer testified that he began following the defendant for driving a clean van down the interstate with two people in it, which were "indicators of potential criminal activity"). It is certainly less suspicious than a person walking late at night in a residential area where burglaries had occurred mostly after midnight and grabbing at his waist when he saw a police car drive by, or a person walking down the street at night in a high-crime location and the officer knew the person's name and believed him to be a known criminal. See Crain v. State , 315 S.W.3d 43, 53 (Tex. Crim. App. 2010) (holding no reasonable suspicion); Brodnex v. State , 485 S.W.3d 432, 438 (Tex. Crim. App. 2016) (holding no reasonable suspicion).
In Cortez , the officer testified he stopped the clean van after observing a traffic offense, namely, unlawfully driving on the improved shoulder of the highway. Cortez , 543 S.W.3d at 202. This Court held that there was no reasonable suspicion to support the stop. Id. at 209. The evidence was unclear whether the van touched the fog line, let alone crossed it, and, even if it did, the driver of the van was statutorily permitted to do so. Id. at 204–08. Absent the traffic offense, the totality of the circumstances to support the stop, which did not amount to reasonable suspicion, consisted of the clean van, containing two people, driving down the interstate. Id. at 201–02.
In my view, not only are the circumstances innocent enough in isolation, combined they do not suggest the imminence of criminal conduct. See Derichsweiler , 348 S.W.3d at 914. Based upon the totality of the circumstances, there could not be a reasonable suspicion that criminal activity was imminent. The court of appeals was correct, and we should affirm that judgment. Because this Court does not, I respectfully dissent.
A Further Note
Having said that, what particularly troubles me is how quickly Cox decided to detain Appellant. Based upon Cox's testimony at the motion to suppress hearing, it appears that very little time elapsed between the moment Cox first saw Appellant's vehicle and the decision to initiate the stop. Certainly, reasonable suspicion can be formed almost immediately where the officer sees a patently obvious crime in progress, such as a carjacking, mugging, or hit and run. In those unequivocal circumstances, the need for patience and caution on the part of law enforcement before initiating a stop and eventual arrest is lessened.
Where the circumstances do not suggest criminal activity but are, at the most, unusual, law enforcement officers would be well-advised to follow the time-honored advice to "look before you leap." For one thing, had Cox taken an extra moment to observe and consider whether criminal activity was afoot, he could have witnessed additional circumstances, beyond merely "people in a dark vehicle," that would have actually supported the detention at issue here. There was no immediate need to escalate the situation before getting more of the facts. There was no indication that someone was at risk of imminent death or serious bodily injury or that property was at risk of permanent, irreparable damage. The risks of letting whatever was occurring inside Appellant's vehicle continue for a few moments were slight. Cox's decision to detain Appellant, based on what appears to have been a momentary glance at the vehicle, was premature at best.
At worst, by detaining Appellant without waiting to see something specific and articulable suggesting criminal activity, it showed a cavalier disregard for the protections of the Fourth Amendment to be free from unreasonable searches and seizures. It is undeniable that police exercises of authority are under increased attention and scrutiny. While the Court finds Cox's investigative detention legal because "people in a dark vehicle" might be suspicious, a growing and increasingly vocal portion of the public might see the same investigative detention as an unnecessary escalation on the part of police. There is a greater need for patience on the part of police when they encounter circumstances that are, at the most, unusual. Whether the detention was premature or whether it represented a disregard for the Constitution, the nearly-immediate decision to detain a person sitting in a car, with no indication that the person was engaged in criminal activity other than sitting there in the dark, undermines the public trust in law enforcement and the entire justice system.