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In Bishop, the officer had every right to be present in the public place where he discovered the contraband, but the plain view doctrine was nonetheless held to be unavailable because the officer violated the Fourth Amendment in that public place.
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NUMBER 13-16-00322-CR
03-23-2017
THE STATE OF TEXAS, Appellant, v. JOSHUA BISHOP, Appellee.
On appeal from the 445th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Justice Rodriguez
By its sole issue on appeal, the State of Texas appeals the trial court's order granting appellee Joshua Bishop's motion to suppress evidence. The State contends that it satisfied its burdens to justify Bishop's temporary detention, protective frisk, and subsequent warrantless arrest. Because we do not agree that the protective frisk was justified, we affirm.
This appeal is brought pursuant to Texas Code of Criminal Procedure article 44.01(a)(5), which authorizes the State "to appeal an order of a court in a criminal case if the order . . . grants a motion to suppress evidence" if jeopardy has not attached and if the prosecuting attorney certifies that the appeal is not taken for the purpose of delay and that the evidence is "of substantial importance in the case." TEX. CODE. CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through 2015 R.S.).
I. BACKGROUND
A grand jury indicted Bishop for possession of a controlled substance—Xanax (alprazolam)—in an amount of 28 grams or more but less than 200 grams, a felony of the third degree. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.032, 481.118(c) (West, Westlaw through 2015 R.S.). Bishop moved to suppress the evidence that was seized during his arrest as well as any oral statement which followed his arrest.
The evidence introduced at the suppression hearing came predominately from the arresting officer, Jose Cisneros of the South Padre Island Police Department. Officer Cisneros testified that he was on patrol at around 6:30 P.M. on March 20, 2015, during spring break, when a "concerned citizen" waved him down as he drove past. The citizen—who preferred to remain anonymous—pointed to two people walking down the road, who were later identified as Bishop and a female companion named Rachel Mainers. The citizen explained that Bishop had emerged from a vehicle which caught fire, whereupon Bishop and Mainers left the vehicle and started walking along the sidewalk of the island's main road.
Officer Cisneros testified that Bishop was wearing baggy pants and that Bishop and Mainers were carrying duffel bags and "had . . . large coats." Bishop was walking in a "zigzag" motion and swaying, with apparent difficulty maintaining balance. According to Officer Cisneros's testimony, Bishop seemed nervous and was sweating, his speech was slurred, and his eyes were red and "droopy." Officer Cisneros twice expressed his opinion that Bishop appeared "intoxicated, a danger to himself." Officer Cisneros also testified that Bishop "kept on putting his hands in his pocket as he was trying to hide something," and that after Bishop was asked "several times to please keep his hands out of his pocket, and he refused, for my safety, I wanted to pat him down for weapons." Officer Cisneros agreed that, two years prior, there had been gunfire in "this area of town," which heightened his concern.
Officer Cisneros asked Bishop to place his hands on the hood of the patrol unit for a pat down, at which point the officer observed a bag containing what appeared to be a white powdery substance protruding from Bishop's pocket. Officer Cisneros testified that he believed it to be cocaine, and he removed the bag from Bishop's pocket. Once removed, the officer discovered that the bag instead contained pills, which he recognized as Xanax. Officer Cisneros administered Miranda warnings and placed Bishop under arrest.
Among the exhibits introduced at the hearing were copies of two arrest reports written by Officer Cisneros: the first report, a one-paragraph description of the arrest itself; the second report, a more involved account which included details that only became apparent after the arrest. Neither report mentioned certain facts to which Officer Cisneros testified. For instance, neither report mentioned that the reason Officer Cisneros approached Bishop and Mainers was because of a bystander's report that the two had just emerged from a burning vehicle; instead, both reports simply stated that the officer "made contact with a suspicious male and female walking on 3100 block of Padre Blvd." Likewise, neither report mentioned that Bishop had repeatedly put his hands in his pockets or that Bishop was wearing baggy pants, had a large coat, and was carrying luggage. At the hearing, Officer Cisneros apologized for the brevity of his arrest reports and the limited detail. He testified that he was working twenty-hour shifts due to the spring break holiday on South Padre Island, which left no time to include specifics.
Following the suppression hearing, the trial court granted the motion and entered findings of fact and conclusions of law. Most saliently, the trial court found the following:
3. The events in question occurred in South Padre Island, Texas on March 20, 2015. On that afternoon, South Padre Island Police officer Jose Cisneros was investigating a concerned citizen's report of a burning vehicle.
4. Officer Cisneros approached defendant Joshua Bishop and his friend Rachel Mainers as they were walking on the 3100 block of Padre Blvd., because they seemed suspicious as they were sweating and looked nervous.
5. Officer Cisneros upon interviewing Mr. Bishop detected what could be signs of intoxication. Officer Cisneros ordered Mr. Bishop to put his hands on the hood of his car and proceeded to pat him down for weapons for the officer's safety. The officer's order was made to Mr. Bishop without determining that Mr. Bishop was intoxicated, or that he was involved with any burning car and without reasonable suspicion that Mr. Bishop was in possession of any weapon.
6. While conducting the pat down Officer Cisneros saw a plastic baggie protruding from Mr. Bishop's pocket and although he didn't believe it was a weapon he saw a white powdery substance he thought was cocaine. Officer Cisneros pulled out the baggie from Mr. Bishop's pocket and saw that it was not a white powdery substance but rather pills that appeared to be xanax pills.
7. Officer Cisneros asked Mr. Bishop if he had a prescription for the pills, Mr. Bishop denied having any prescription and claimed that the pills belonged to him.
8. Mr. Bishop was placed under arrest for possession of a controlled substance and read his Miranda warnings.
9. Officer Cisneros filed an incident report that left out a large amount of information now provided through testimony. Officer Cisneros' own incident report contradicts much of the officer's testimony before this Court.
10. Officer Cisneros' recollection of some facts regarding the search and arrest were unreliable without referring to the report.
The trial court granted Bishop's motion to suppress evidence, and this appeal followed.
II. DISCUSSION
On appeal, the State argues that its evidence satisfied a series of burdens which justified Officer Cisneros's actions during the encounter. First, the State argues that testimony established "reasonable suspicion to temporarily detain the Defendant and pat him down for weapons however because the officer had specific, articulable facts to reasonably believe the Defendant was armed." Second, the State argues that Officer Cisneros did not exceed the scope of a proper pat down for weapons and properly seized the evidence from Bishop's pocket pursuant to the plain view doctrine.
A. Standard of Review
When reviewing the ruling on a motion to suppress, we afford almost total deference to the trial judge's determination of historical facts if supported by the record. Wade v. State, 422 S.W.3d 661, 666 (Tex. Crim. App. 2013). Determinations of fact include "who did what, when, where, how, or why" and "credibility determinations." Bairdv. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). The trial judge is entitled to believe or disbelieve all or part of the witness's testimony—even if that testimony is uncontroverted—because he has the opportunity to observe the witness's demeanor and appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
We review de novo a trial judge's application of the law of search and seizure to the facts. Wade, 422 S.W.3d at 667. We will uphold the trial judge's ruling if it is reasonably grounded in the record and correct on any theory of law applicable to the case. Id.
Regardless of whether the judge granted or denied the motion, appellate courts view the evidence in the light most favorable to the ruling. Id. at 666. The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from it. Id. at 666-67.
B. Applicable Law
Police may not escalate a consensual encounter into a protective frisk without reasonable suspicion that the person (1) has committed, is committing, or is about to commit a criminal offense, such that he may be detained; and (2) is armed and dangerous, such that he may be frisked. Id. at 669.
1. Reasonable Suspicion to Justify Detention
Reasonable suspicion to detain a person exists when a police officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016). Reasonable suspicion demands "a lesser quantum or quality of information" than the probable cause which would justify an arrest. Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). To assess reasonable suspicion, we employ an objective standard that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention, based on the totality of the circumstances. Wade, 422 S.W.3d at 668. "It is enough to satisfy the lesser standard of reasonable suspicion that the information is sufficiently detailed and reliable . . . to suggest that something of an apparently criminal nature is brewing." Id.
2. Reasonable Suspicion to Justify Weapons Frisk
Law enforcement personnel may conduct a limited search of a suspect's outer clothing for weapons if the officer reasonably suspects that a person whom he has lawfully detained may be presently armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30 (1968); Furr, 499 S.W.3d at 878. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002) (quoting Adams v. Williams, 407 U.S. 143, 146 (1972)). The test is whether a reasonably prudent person under the circumstances would be warranted in believing that his safety or that of others was in danger due to the potential presence of a weapon. Furr, 499 S.W.3d at 878. The intrusion must be based on specific, articulable facts which, in the light of the officer's experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion. Id.
C. Application
1. Reasonable Suspicion to Justify Detention
At the suppression hearing, the State argued that Officer Cisneros had reasonable suspicion to detain Bishop based on articulable facts relating to the offense of public intoxication. See TEX. PENAL CODE ANN. § 49.02(a) (West, Westlaw through 2015 R.S.). The State cited Officer Cisneros's testimony concerning Bishop's signs of intoxication, the burning vehicle from which he had reportedly emerged, and the officer's opinion that Bishop was a danger to himself.
Instead of attempting to connect the facts of this case to reasonable suspicion of public intoxication or any other offense, on appeal, the State argues that Officer Cisneros had reasonable suspicion to detain Bishop because he reasonably believed Bishop to be armed. Without challenging the trial court's findings of fact, the State simply cites Officer Cisneros's testimony as though this evidence was not subject to any credibility or weight determinations. Nonetheless, we conclude that Officer Cisneros had reasonable suspicion to detain Bishop for the reasons explained below.
Unlike "probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction." Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011).
The trial court entered the following findings of fact that are germane to reasonable suspicion: Officer Cisneros was investigating a citizen's report of a burning vehicle when he encountered Bishop walking down the road, sweating and nervous; and Bishop exhibited "what could be signs of intoxication." These findings are supported by the record evidence—in particular, Officer Cisneros's testimony that he observed Bishop walking in a zigzag fashion, swaying with unsteady balance, and speaking in a slurred manner, with reddened eyes and a droopy expression. See Wade, 422 S.W.3d at 666.
Taken together, we conclude that these specific historical facts suggested that "something of an apparently criminal nature [was] brewing." See id. at 668; see also State v. Villegas, No. 03-12-00128-CR, 2013 WL 3185899, at *1-2 (Tex. App.—Austin June 20, 2013, no pet.) (mem. op., not designated for publication) (upholding detention where, upon investigating reports of a man running from a burning vehicle found in a ditch, the officer observed signs of intoxication); Chevalier v. State, No. 12-04-00317-CR, 2006 WL 1119268, at *3 (Tex. App.—Tyler Apr. 28, 2006, pet. ref'd) (mem. op., not designated for publication) ("In this case, reasonable suspicion that Appellant was intoxicated arose during the time it took the officer to investigate the burning vehicle and take necessary remedial steps."); Martin v. State, 104 S.W.3d 298, 300 (Tex. App.—El Paso 2003, no pet.) (upholding detention based in part on "smoking car" and signs of intoxication).
In response to the State's argument, Bishop heavily emphasizes the trial court's findings that the detention was conducted without Officer Cisneros first "determining that Mr. Bishop was intoxicated, or that he was involved with any burning car . . . ." However, we employ an objective perspective of the totality of the circumstances to address this issue. See Wade, 422 S.W.3d at 668. Here, in the moments before the detention, Officer Cisneros had several well-articulated facts within his objective grasp—potential signs of intoxication, nervousness, sweating, emerging from a burning vehicle—that would justify a brief detention. See id. This is so regardless of the development of the officer's subjective views on the matter. See id. We conclude that the detention was supported by reasonable suspicion.
2. Reasonable Suspicion to Justify Weapons Frisk
We next address the State's argument that the weapons frisk was justified by a reasonable suspicion that Bishop was armed and dangerous. Some cases have found that sudden or furtive movements by the suspect justify a frisk, see United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978), especially when the surrounding circumstances cast these gestures in an ominous light. See, e.g., State v. Castleberry, 332 S.W.3d 460, 469 (Tex. Crim. App. 2011) (upholding frisk where citizen made repeated motions towards his waistband when instructed not to, during a police encounter behind a closed business, in a high-crime area, around 3:00 A.M.); see also Matthews v. State, 431 S.W.3d 596, 600 & 605 (Tex. Crim. App. 2014); Worthey v. State, 805 S.W.2d 435, 438-39 (Tex. Crim. App. 1991) (en banc).
But see Keah v. State, 508 S.W.2d 836, 839 (Tex. Crim. App. 1974) (finding no cause for frisk where detained driver had his hand in a pocket where a "bulge" was seen, but no other testimony was offered to give context to perceived threat); see also Garza v. State, No. 13-12-00240-CR, 2013 WL 3378325, at *10 (Tex. App.—Corpus Christi July 3, 2013, pet. ref'd) (mem. op., not designated for publication) (reversing denial of suppression where nervous driver reached forward in a car during a traffic stop, despite interpretation that this gesture was intended to hide or reach for a weapon).
In United States v. Monsivais, which is analogous to this case, a divided panel of the Fifth Circuit found no basis for reasonable suspicion or a frisk on the following facts: police happened upon a man walking along the roadside near his disabled vehicle; he at first ignored the passing police cruiser, was nervous, and repeatedly put his hands in his pockets during his encounter with police; but he fully cooperated with officers, including readily admitting to possessing a firearm and surrendering to officers, and officers saw no indicators of criminal activity. See 848 F.3d 353, 358-60 (5th Cir. 2017) (quoting United States v. Williams, 731 F.3d 678, 689 (7th Cir. 2013)) ("[T]he simple fact that one's hands are in one's pockets is . . . of little value. If one were to drive down any given street, it is likely that an uncountable number of citizens would have their hands in their pockets.").
In its brief, the State relies primarily on the fact that Bishop repeatedly put his hands in his pocket, even when asked "several times to please keep his hands out of his pocket . . . ." However, the State neglects to mention the trial court's findings of fact, wherein it determined that: (A) Officer Cisneros filed an incident report that left out a large amount of information now provided through testimony; (B) Officer Cisneros's own incident report contradicts much of the officer's testimony before this Court; and (C) Officer Cisneros's recollection of some facts regarding the search and arrest were unreliable without referring to the report. The trial court's findings of the credible historical facts make no mention of Bishop reaching into his pockets when instructed not to do so—a fact which was not mentioned in either of the arrest reports. Rather, the only coherent reading of the trial court's findings is that the trial court did not believe Officer Cisneros's testimony concerning the repeated gestures, in part because Officer Cisneros did not mention this fact in either of his arrest reports. In essence, the State argues that Bishop's reaching his hands into his pockets was the primary source of concern for officer safety, but the trial court found this and other supportive facts not to be credible. Regardless of whether we might have found otherwise, we must defer to these credibility determinations, given that they are reasonably supported by the record. See Wade, 422 S.W.3d at 666.
Also, the findings indicate that the trial court did not believe certain other facts relied upon by the State, including: that Bishop was wearing baggy pants, had a large coat, was carrying luggage, and that there had been gunfire in "this area of town" two years prior. The trial court's view of these facts may be inferred from: (1) the trial court's blanket credibility determination concerning facts which were absent from the arrest reports; and (2) the trial court's exclusion of these facts from its findings of credible historical fact.
The trial court findings establish a more limited sphere of credible circumstances, which we will evaluate de novo in determining whether a protective frisk was justified: that Bishop was connected with an anonymous citizen's unverified report concerning a smoking vehicle; that Bishop was sweating and appeared nervous; and that Bishop exhibited, in the trial court's words, "what could be signs of intoxication." Without losing sight of the totality, we note that nervousness is "not particularly probative," see Wade, 422 S.W.3d at 671, nor is sweating particularly unusual in south Texas. See Furr v. State, No. 13-14-00287-CR, 2015 WL 307757, at *6 (Tex. App.—Corpus Christi Jan. 22, 2015) (mem. op., not designated for publication) (noting the inescapable correlation of south Texas and sweat) aff'd, 499 S.W.3d 872 (Tex. Crim. App. 2016). As to displaying "what could be signs of intoxication" during spring break on South Padre Island, on a road where Officer Cisneros testified there were many intoxicated persons walking, this is not the sort of fact which makes a remarkable contribution to the totality of circumstances justifying a reasonable belief that Bishop possessed a weapon. See Ybarra v. Illinois, 444 U.S. 85, 90 (1979) (giving little weight to detainee's presence among many in a tavern in evaluating the legality of a weapons frisk, even though others in the tavern were the subject of a search warrant for narcotics). The State offers no authority for the proposition that these circumstances, taken together, would support a reasonable suspicion that Bishop was armed and dangerous, and we find none. Cf. United States v. Dapolito, 713 F.3d 141, 144 & 150-51 (1st Cir. 2013) (finding no basis for detention and frisk where officers observed an apparently intoxicated man on a public street grimacing, sweaty, and fidgeting, and rejecting attempts to connect this conduct with vague testimony concerning "recent" burglaries in a large, indistinct "area").
Cf. Webb v. State, 760 S.W.2d 263, 274 (Tex. Crim. App. 1988) (en banc) ("[A]n officer may certainly consider information furnished by a private citizen whose only contact with the police or criminal activity is a result of having witnessed a single criminal act committed by another, but he should have some indicia that the citizen is worthy of belief, and his information reliable before acting on his report." (emphasis added) (internal quotations and citations omitted)).
We are careful to note that although we discuss certain circumstances individually, we base our decision on their collective weight and their relation to potential possession of a weapon. Compare Wade v. State, 422 S.W.3d 661, 670-76 (Tex. Crim. App. 2013) (discussing the historical facts individually but weighing them collectively) with United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting a "divide-and-conquer analysis," wherein the circuit court effectively refused to consider certain circumstances as part of the totality because those circumstances, individually, seemed consistent with innocent behavior).
Instead, viewing the evidence in the light most favorable to the trial court's ruling and deferring to the trial court's reasonably-supported determination of credibility, we conclude that the trial court did not reversibly err in concluding that the pat down was unsupported. See Wade, 422 S.W.3d at 666-67. This ruling is reasonably grounded in the record and correct under the law of search and seizure.See id. at 667.
Because we determine that the pat down was unsupported, we need not address the State's remaining argument that the officer conducted the pat down in a proper manner. See TEX. R. APP. P. 47.1; Ex parte Reyes, 474 S.W.3d 677, 680 (Tex. Crim. App. 2015) ("An appellate court is not required to address issues that become moot because of the resolution of other issues.").
No evidence obtained by an officer in violation of any provisions of the Constitutions or laws of Texas or the United States shall be admitted against the accused. Jenkins v. State, 493 S.W.3d 583, 602 n.44 (Tex. Crim. App. 2016). The State does not argue that any aspect of the encounter would attenuate the taint of the unsupported pat down or trigger an exception to the exclusionary rule. See State v. Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015). Moreover, in light of the unjustified pat down, the State cannot invoke the "plain view" doctrine, a prerequisite for which is that "the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed." Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (quoting Horton v. California, 496 U.S. 128, 136 (1990)). Accordingly, we conclude that the trial court did not reversibly err in granting Bishop's motion to suppress evidence.
We overrule the State's sole issue on appeal.
III. CONCLUSION
We affirm the ruling of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of March, 2017.