Opinion
No. 07-14-00173-CR
03-18-2016
SCOTT ALLEN SHELTON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 432nd District Court Tarrant County, Texas
Trial Court No. 1310954D; Honorable Ruben Gonzalez, Jr., Presiding MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Scott Allen Shelton, pleaded guilty to the offense of burglary of a building, enhanced by a prior felony conviction, and was sentenced to five years confinement. He appeals from a court order denying his motion to suppress evidence and asserts the trial court erred in denying his motion because (1) his seizure was an instant arrest, (2) the officers lacked a reasonable suspicion to detain him, and (3) probable cause did not exist for his arrest. We affirm.
See TEX. PENAL CODE ANN. 30.02(a)(1), (c)(1) (West 2011) (a state jail felony).
BACKGROUND
An indictment was filed alleging that, on January 12, 2013, Appellant intentionally and/or knowingly, without the effective consent of the owner, Joe Risky, entered a building not open to the public with the intent to commit theft. An enhancement paragraph alleged Appellant was convicted of a felony offense, burglary of a habitation, in September 2006. Appellant subsequently filed a motion to suppress.
At a hearing in June, Risky testified he lived on Eagle Mountain Circle Drive (Circle Drive). The street is a semi-circle which exits and enters Ten Mile Bridge Road at the opposite ends of Circle Drive. On January 12, at approximately 2:30 a.m., Risky was awakened by his barking dog. He investigated and observed a man stepping out of his garage wearing a gray hoodie and blue jeans. The man was carrying a trash bag and Risky's son's skateboard helmet. Risky returned to his house to find his gun and his wife called 911. Later, after Appellant was apprehended by police, Risky identified him as the man he saw stepping out of his garage. After identifying Appellant, Risky also identified items belonging to him that officers retrieved from Appellant's vehicle.
Officer Robert Kelley testified that, on January 12, he was called to a burglary in progress at Risky's house when he was only five or six minutes away. The dispatcher described the suspect as a male wearing a gray sweatshirt and jeans last seen running from Risky's house. Officer Kelley drove to one end of Circle Drive where it intersected with Ten Mile Bridge Road and a second officer entered Circle Drive from the opposite end.
When Officer Kelley arrived at the intersection of Circle Drive and Ten Mile Bridge Road, he spotted Appellant stopped at a stop sign. There were no other vehicles in the area. As he turned onto Circle Drive, he shined a spotlight into the interior of Appellant's vehicle and observed a man wearing a black cap and a gray hooded sweatshirt. The man was sweating profusely despite the weather being cool and his facial expression was that of a "deer in headlights." His sweatshirt was soaked with sweat and beads of sweat were running down his forehead.
Officer Kelley pulled up next to Appellant's vehicle and asked him if anything was wrong. Appellant replied "no" and Officer Kelley continued past Appellant because he had a civilian in his patrol car. When Appellant turned onto Ten Mile Bridge Road, Officer Kelley made a u-turn and followed him. The officer then called for assistance because he was concerned for his and his passenger's safety. When the other officers arrived, Officer Kelley turned on his overhead lights and pulled Appellant to the side of the road. Another officer encountered no other vehicles after entering Circle Drive from the opposite direction.
The officers approached Appellant's vehicle with weapons drawn and removed him. Appellant was instructed that he was being detained as a suspect in a possible burglary and, if it were not him, they would let him go. He was handcuffed and placed in the back of Officer Kelley's patrol car for questioning. Appellant told Officer Kelley he was on his way home from Saginaw. This was not something the officers expected because Circle Drive would be a detour. Appellant also told the officers he was sweating because his vehicle had been stuck in the mud and he had to work to get his vehicle free. Officer Kelley observed there was no mud on Appellant's person, his shoes, the vehicle's tires, or the vehicle itself. Based on his observations, Officer Kelley did not believe Appellant.
Officer Kelley testified weapons were drawn for safety reasons, i.e., they were approaching a possible burglary suspect who was observed fidgeting with his hands in his vehicle.
Appellant was removed from Officer Kelley's patrol car. Officer Kelley then drove to Risky's house and transported him to where Appellant was being held. When Appellant emerged from the patrol car, Risky immediately identified him as the burglar. After the identification, Appellant was placed under arrest. When his vehicle was searched, the officers found personal items belonging to Risky, burglary tools, and latex gloves that were sweaty inside. No other vehicles were spotted throughout the officers' encounter with Appellant.
Bolt cutters, wire cutters, flat-tipped screwdriver, wire crimpers, and various other tools are commonly identified as burglary tools. --------
The trial court subsequently issued its Findings of Fact & Conclusions of Law Order finding Appellant was lawfully detained while the officers' investigation was pending and there was probable cause for his arrest. Appellant's motion to suppress was denied, he pleaded guilty, and this appeal followed.
STANDARD OF REVIEW
We review the trial court's ruling on a motion to suppress evidence for an abuse of discretion. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). In reviewing the trial court's decision, we do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, especially when based on an evaluation of credibility and demeanor and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673. Appellate courts review de novo "mixed questions of law and fact" that do not depend upon credibility and demeanor. Id.
When the trial court makes explicit findings, as it did here, we determine whether the evidence, when viewed in a light most favorable to the trial court's ruling, supports those fact findings. Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
REASONABLE SUSPICION VS. INVESTIGATIVE DETENTION
The United States Constitution and the Texas Constitution secure to the individual freedom from all unreasonable searches and seizures. U.S. CONST. amend. VI; TEX. CONST. art. I, § 9. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 998 (1968). See Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989) (stopping an automobile and detaining its occupants for an investigation is considered a "seizure"). An investigative detention occurs when a police officer detains a person reasonably suspected of criminal activity to determine his identity or momentarily maintain the status quo while seeking additional information. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987).
An investigatory detention is justified if, based upon the totality of the circumstances, the detaining officer has an objective basis for suspecting that the person stopped is, or is about to be, engaged in criminal activity. Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.—Austin 2000, pet. ref'd) (citing Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)). While a law enforcement officer need not have probable cause to detain an individual for investigative purposes; Hall v. State, 74 S.W.3d 521, 525 (Tex. App.—Amarillo 2002, no pet.), a reasonable suspicion means more than an inarticulate hunch or suspicion. See Bobo v. State, 843 S.W.3d 572, 575 (Tex. Crim. App. 1992) (holding that "[m]ere suspicions do not meet this test, but neither is absolute certainty required").
Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in a criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). The acts or circumstances need not be criminal themselves to create reasonable suspicion; Woods, 956 S.W.2d at 38, however, the facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and some indication that the unusual activity is related to crime. Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 150, 181 L. Ed. 2d 67 (2011). Thus, we examine the totality of circumstances to determine whether Appellant's detention and the subsequent investigation were reasonable and justified. See Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007). This analysis includes the police officers' training and experience. State v. Alderete, 314 S.W.3d 469, 473 (Tex. App.—El Paso 2010, pet. ref'd) ("[W]hen innocent facts, meaningless to the untrained, are used by law- enforcement officers, those facts, combined with permissible deductions therefrom, may form a legitimate basis for suspicion of criminal activity."). Moreover, the detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists. Derichsweiler, 348 S.W.3d at 914.
INVESTIGATIVE DETENTION VS. ARREST
The standard for distinguishing between an arrest and investigative detention is not always clear because the distinction between these seizures rests on a fact-specific inquiry rather than clearly delineated criteria. Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995); Morris v. State, 50 S.W.3d 89, 94 (Tex. App.—Fort Worth 2001, no pet.). By definition, "[a] person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant or arrest, or by an officer or person arresting without a warrant." TEX. CODE CRIM. PROC. ANN. art. 15.22 (West 2015). This "restraint of liberty" standard, however, is not adequate when distinguishing between an arrest and a detention because it is a characteristic common to both. Francis v. State, 922 S.W.2d 176, 179 (Tex. Crim. App. 1996) (J. Baird, concurring and dissenting). Whether a person is under arrest or subject to a temporary detention is a matter of degree and depends on several factors, including the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation. See Woods v. State, 970 S.W.2d 770, 775 (Tex. App.—Austin 1998, pet. ref'd).
Police officers are not required to use the "least intrusive means" to verify or dispel their suspicions; United States v. Sokolow, 490 U.S. 1, 11, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989), however, if the force utilized exceeds that reasonably necessary to effect the goal of the stop, this force may transform an investigative detention into a full-blown arrest. See State v. Moore, 25 S.W.3d 383, 386 (Tex. App.—Austin 2000, no pet.). That said, however, approaching a vehicle with service weapon drawn does not transform an investigative detention to an arrest. See Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984) (one officer approaching driver's side of vehicle with a rifle drawn while another officer approaches the passenger's side of the vehicle with his gun in his hand). Likewise, the use of handcuffs does not automatically convert an investigative detention into an arrest; State v. Sheppard, 271 S.W.3d 281, 286 (Tex. Crim. App. 2008), and there is no bright line rule that handcuffing a suspect always constitutes an arrest. Rhodes v. State, 945 S.W.2d 115, 116-18 (Tex. Crim. App. 1997). An officer may resort to handcuffs without transforming an investigative detention into an arrest when he is reasonably concerned for his safety or to maintain the status quo. Sheppard, 271 S.W.3d at 286 (handcuffed suspect during investigative detention for safety purposes and to maintain status quo); Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (investigative detention did not evolve into an arrest simply because the appellant was escorted to patrol car and handcuffed).
In evaluating whether police conduct during an investigatory detention is reasonable, common sense and ordinary human experience govern over rigid criteria. See Rhodes, 945 S.W.2d at 118. Whether a detention is an actual arrest or an investigative detention depends on the reasonableness of the intrusion under all the facts. Id. Allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances. Id. Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the number of suspects present, and the reaction of each suspect. See Akins v. State, 202 S.W.3d at 885 (citing Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)). The officer's opinion, while not determinative, is another factor to be considered. Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991). Also very important is whether the officers actually conducted an investigation after seizing the suspect. Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991); Moore, 25 S.W.3d at 386. Due to the interrelatedness of Appellant's issues, we combine our discussion of Appellant's three issues below.
DISCUSSION
When Officer Kelley stopped Appellant, he had observed that (1) Appellant was wearing a gray hooded sweatshirt as described by the 911 operator, (2) the sweatshirt was soaked in sweat, (3) beads of sweat were running down Appellant's forehead, and (4) Appellant's expression was that of a "deer in headlights." Appellant was spotted only minutes after the 911 dispatch reporting a burglary in progress, it was 2:30 a.m., there was no other traffic in the area, and Appellant was exiting on the only road accessible to the scene of the burglary. Based on the totality of the circumstances, we find Officer Kelley had an objective articulable basis for suspecting Appellant had been engaged in criminal activity.
Furthermore, Appellant was not "instantly arrested" merely because the officers approached his vehicle with weapons drawn, handcuffed him, and placed him in the back of a patrol car or because (1) the officers were investigating the commission of a felony, 2) it was dark, (3) Appellant was observed fidgeting with his hands in his vehicle, (4) a civilian was present, (5) the road was deserted, (6) the officers timely conducted an investigation, and (7) Appellant was told that he would be let go if the investigation showed he did not commit the burglary.
During the subsequent investigation, Appellant's explanation of how he came to be on Circle Drive was unusual, his explanation of why he was sweating profusely was suspect, his clothing matched Risky's description, and Risky personally identified Appellant as the person he observed leaving his garage with his personal property. Based upon this information, as well as the facts leading to Officer Kelley's reasonable suspicion, we find the officers then had probable cause to arrest Appellant. See State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999) ("Probable cause is defined as the existence of reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed an offense."). Accordingly, the trial court did not err by denying Appellant's motion to suppress. Appellant's issues are overruled.
CONCLUSION
The trial court's order is affirmed.
Patrick A. Pirtle
Justice Do not publish.