Opinion
No. 05-10-00105-CR
Opinion issued January 5, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-57366-M.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
MEMORANDUM OPINION
After the trial court denied her motion to suppress evidence, Lolisha Renee Aliu pleaded guilty to the felony offense of possession with intent to deliver four grams or more but less than 200 grams of cocaine. The trial court deferred adjudicating appellant's guilt and placed her on community supervision for five years and assessed a $1000 fine. In two issues, appellant contends the trial court erred in denying her motion to suppress evidence obtained in violation of her rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Texas Constitution. We affirm the trial court's judgment.
BACKGROUND
At the hearing on appellant's motion to suppress, the trial court heard testimony from Dallas police officers Brad Walker and Kent Wolverton. Walker testified he and officer Wolverton were patrolling the 2600 block of Clarence in South Dallas around 5:45 p.m. on September 18, 2005. Walker explained they were patrolling that area because of the "high volume of drug activity" and in response to complaints about open air drug sales. Officer Wolverton testified they patrolled this area "quite frequently" because it was a "problem area in [their] sector, known for drugs and illegal activities." He described the area as "one of the worst" and "one of the highest crime beats in [their] division." Wolverton further testified drug sales in the area were "rampant" and confirmed they had received a number of complaints related to open air drug sales, as well as drug sales from vehicles and apartments. Wolverton stated one woman called "fairly often" to report drugs being sold from a specific vehicle. He did not remember the name of the caller. During their patrol, the officers observed a red Ford Escort parked in a vacant field behind a duplex. They saw two individuals inside the car. The officers also noticed some foot traffic near the car. Wolverton testified the red car caught their attention because it was sitting "almost in an alleyway," in an area not meant for parking. Wolverton also testified the car was suspicious because it matched the description of the car that was supposed to be used in the drug sales. He added they had "made a couple of arrests in that area, and that's typical with the drug trade, they park in the back [alleys] and walk through different places." Walker testified that as they approached the car "both people started moving around in the car." He described their movements as "kind of dipping toward the floorboard of the vehicle like they were attempting to manipulate objects underneath their seat." Walker testified he was concerned for his and officer Wolverton's safety because he thought the individuals were hiding a weapon. Wolverton also testified to the conduct of the individuals. He testified that as they approached, the individuals "looked over at [the officers] and they start[ed] hiding stuff underneath the seats." Wolverton testified when he sees someone fidgeting like that he is concerned because usually someone is trying to hide something or retrieve something. Based on these actions, the officers asked the individuals to get out of the car. The officers frisked them to "make sure they [didn't] have any weapons on them" and looked inside the car to check for weapons in the immediate vicinity. During a look inside the car, Wolverton testified he saw the handle of a semi-automatic pistol sticking out from under the driver's seat; the butt of the pistol was in plain view. Appellant was the driver. The officers "immediately handcuffed" appellant and the passenger for the officers' safety. Walker then found a revolver under the passenger's seat. Both guns were loaded. The officers confirmed neither appellant nor the passenger was licensed to carry concealed weapons. In the course of the search for weapons, the officers also found a purse under the driver's seat containing between 140 and 150 individual bags of "crack," as well as "a couple of larger chunks." Walker testified the cocaine "appeared [to be] packaged for individual resale." They also found a Crown Royal bag containing cocaine under the passenger's seat and rolled bundles of money in the floorboard on the driver's side. Walker testified that both the purse and Crown Royal bag were large enough to hold a gun. Thereafter, the officers arrested appellant and the passenger. Appellant was charged by indictment with felony possession of a controlled substance with the intent to deliver. In appellant's motion to suppress, she argued the cocaine found during the search of her vehicle was illegally seized by the officers in violation of her rights under the Texas and United States Constitutions. She also argued the evidence obtained as a result of her illegal arrest or detention should be excluded under article 38.23 of the Texas Code of Criminal Procedure. After hearing the officer's testimony, the trial court denied appellant's motion to suppress. Following appellant's guilty plea and placement on community supervision, the trial court certified appellant's right to appeal.MOTION TO SUPPRESS
In two issues, appellant contends the trial court erred when it denied her motion to suppress the drug evidence found in her car because the officers lacked the reasonable suspicion necessary to justify ordering her to exit her vehicle and detain her. She claims this error violated her rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, Section 9 of the Texas Constitution, which provide protections against unreasonable searches and seizures.Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725. We give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We also afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to all other mixed questions of law and fact as well as to the trial court's application of search and seizure law. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Guzman, 955 S.W.2d at 89. When, as here, the trial court makes explicit findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. King, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).Applicable Law
The Fourth Amendment guarantees that people shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U. S. Const. amend. IV. See A stop and frisk by a police officer "amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections." Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) and Terry v. Ohio, 392 U.S. 1, 16 (1968)); see also Garcia-Cantu, 253 S.W.3d at 243 (ordering suspect out of car amounts to seizure). A police officer is justified in briefly detaining a person for investigative purposes if the officer has a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 30-31; Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). The "reasonable suspicion" standard is an objective one, and the burden of demonstrating reasonableness falls on the State. See Ford, 158 S.W.3d at 492. In assessing reasonableness, we consider the "totality of the circumstances." Id. at 492-93. We look to see if the officer has specific, articulable facts that, when combined with rational inferences from those facts and the officer's experience and general knowledge, would lead the officer to reasonably conclude a particular person actually is, has been, or soon will be engaged in criminal activity. See Carmouche, 10 S.W.3d at 328; see also Terry, 392 U.S. at 27 (reasonable suspicion is more than a hunch). After an investigatory stop, an officer may conduct a limited search of the suspect's outer clothing for weapons if the officer reasonably believes the suspect is armed and dangerous. Terry, 392 U.S. at 27. The purpose of this limited search is not to discover evidence of a crime but to allow the investigation to proceed without fear of violence. See id. at 29 (justification for protection of police officers and others nearby). Further, a protective search for weapons may extend beyond the person in the absence of probable cause to arrest. Id. at 30; Worthey v. State, 805 S.W.2d 435, 437-38 (Tex. Crim. App. 1991). The factual basis for an investigatory detention may be supplied by information acquired from another person. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). When information alleged to support reasonable suspicion comes from an anonymous source, something more than the anonymous tip is required to provide the reasonable suspicion necessary to justify the detention. See Florida v. J.L., 529 U.S. 266, 269-70 (2000). An officer may rely on an anonymous tip so long as there is some indicia of reliability and it is reasonably corroborated by other matters within the officer's knowledge. See id. at 270; see also State v. Sailo, 910 S.W.2d 184, 189 (Tex. App.-Fort Worth 1995, pet. ref'd) (corroboration through specific details about accused's actions and officer's knowledge and experience). A person's mere presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable suspicion the person is committing a crime. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). The fact that the detention occurred in a high crime area, however, is among the "relevant contextual considerations" in a Terry analysis. Id. Another pertinent consideration in determining the legality of the search is the behavior of the individual. Id. at 124-25. For example, actions such as nervousness, evasiveness, or headlong flight may support reasonable suspicion. See id.; see also Woods, 956 S.W.2d at 38 (recognizing "there may be instances when a person's conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to reasonable suspicion").Analysis
Relying on our decision in Walker v. State, No. 05-09-00139-CR, 2010 WL 522792 (Tex. App.-Dallas Feb. 16, 2010, pet. ref'd), appellant argues her detention was unreasonable because it was based on a tip from an anonymous caller and the evidence shows the officers had no corroboration of the tip suggesting appellant had engaged, was engaging, or would soon engage in criminal activity. Rather, appellant asserts "the only thing [the officers] noticed was that the occupants were slumping down in their seats." We disagree with appellant's description. In Walker, officers were dispatched to an area after receiving an anonymous tip. Id. at *1. The caller reported a suspicious green Chevy pick-up truck in an area known to be high in crime, and the caller thought the occupants of the vehicle were "up to some illegal activities." Id. The caller did not specify what the occupants did that amounted to "illegal activities." When the officers arrived in the area, they saw a dark colored pickup truck pass them and immediately turned around to initiate an investigatory stop. Id. Importantly, the officers did not observe the driver of the truck commit a traffic violation or witness any other violation of the law before making the stop. Id. at *1, *5. The officers said they made the stop because they saw a vehicle matching the suspicious vehicle identified by the caller. Id. at *1. Therefore, because the anonymous tip did not reliably assert unlawful conduct on the part of Walker and was uncorroborated by additional facts by the officers, we concluded the officers lacked reasonable suspicion to stop Walker. Id. at *6. In this case, however, unlike Walker, the officers' decision to approach appellant's car and have appellant and her passenger exit the car was not based solely on complaints from an anonymous caller. Rather, the complaints were corroborated by Walker's and Wolverton's observations of appellant's actions, as well as their knowledge and experience. See Sailo, 910 S.W.2d at 189. The officers approached appellant's car pursuant to an articulable suspicion that this car was involved in drug sales. The officers had not only received complaints about drug sales from a red car, but they also were suspicious of the car's location near foot traffic, which was consistent with the officers' knowledge of and experience with the drug trade in the area. The officers knew this to be a high crime area and patrolled it frequently because it was known for rampant drug activity. As the officers approached the car, they saw appellant and her passenger look over at them and then dip down as if they were trying to hide something under their seats. The officers testified they believed these gestures were consistent with hiding weapons. Based on their observations of appellant's and her passenger's actions, the officers were concerned for their safety and asked appellant and her passenger to exit the vehicle. After they were removed from the vehicle, the officers saw the butt of a pistol in plain view. The officers' subsequent search of the car was restricted to the areas to which appellant or her passenger would generally have immediate control and that could contain a weapon. See Michigan v. Long, 463 U.S. 1032, 1050 (1983). Considering the totality of the circumstances, the record supports the trial court's findings the officers were justified in approaching the vehicle for investigatory purposes and removing appellant and her passenger from the vehicle. After the officers saw the weapon in plain view and confirmed neither appellant nor the passenger was licensed to carry weapons, they were justified in conducting a further search for weapons and seizing the drug evidence recovered in this case. See id. ("If, while conducting a legitimate Terry search of the interior of the automobile, the officer should . . . discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances."). Accordingly, the trial court did not err in denying appellant's motion to suppress. We overrule appellant's two issues and affirm the trial court's judgment.Appellant was also charged by information with the misdemeanor offense of unlawfully carrying a weapon. That charge is not at issue in this appeal.
Although appellant invokes both the United States and Texas Constitutions, our analysis remains the same under either document. See Johnson v. State, 912 S.W.2d 227, 232 (Tex. Crim. App. 1995) (stating no substantive difference between Article 1, Section 9 of the Texas Constitution and Fourth Amendment to United States Constitution). Consequently, because appellant does not distinguish between the federal and state grounds upon which she bases her arguments, we will address her issues together. See Black v. State, 26 S.W.3d 895, 896 n. 4 (Tex. Crim. App. 2000) (per curiam).
The Fourth Amendment's guarantee against unreasonable searches and seizures was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 650 (1961).