Comer v. State

754 S.W.2d 656, 1986 WL 49

• Court: Court of Criminal Appeals of Texas
• Decided: May 28, 1988
• Docket: 265-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant pled guilty to possession of heroin and was sentenced to fifteen years’ incarceration in the Texas Department of Corrections. Appellant preserved his right to appeal the denial of his Motion to Suppress.

The Port Worth Court of Appeals, in an unpublished opinion, concluded that there was sufficient probable cause to support appellant’s arrest. Comer v. State, No. 2-83-317-CR (Tex.App.—Ft. Worth, delivered January 11, 1984). Accordingly, the Court of Appeals found the trial court’s denial of appellant’s Motion to Suppress proper. Although properly raised by appellant, for reasons not made clear in the opinion, the Court of Appeals did not decide whether the initial detention was adequately supported by probable cause. We granted appellant’s petition for discretionary review to determine whether the arresting officers had sufficient reasonable suspicion to initiate the investigatory stop which preceded the arrest.

At 7:40 p.m. on Saturday, November 6, 1982, Officers Cook and Burnette observed appellant and another male sitting in the cab of a pickup truck in the parking lot of Prank’s Barbeque Restaurant located on East Rosedale in Fort Worth. The interior dome light was on and the two men were engaged in some activity concentrated on the seat between them. As the officers entered the parking lot the truck began to pull away, at which time the officers, believing some criminal activity to be taking place, initiated an investigatory stop.

After appellant emerged from the truck Officer Cook saw him drop a syringe onto the pavement and attempt to kick it under the truck. The syringe was later analyzed and found to contain heroin. Each officer testified that the part of town where the incident occurred was a high crime area and that, based upon their knowledge and experience, they believed that some criminal activity was taking place. Although the officers also testified that they believed that the restaurant was closed, the owner of the restaurant, Prank Taylor, testified that he never closed the establishment before 10:00 p.m. on Saturday nights.

It is well established that an officer may briefly stop a suspicious individual, whether a pedestrian or a passenger in a vehicle, in order to determine his/her identity or to maintain the status quo while obtaining further information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983). However, in order to justify such a stop the officer must have “specific articulable facts which, in light of his experience and personal knowledge, together with other inferences from the facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation.” Johnson, supra, at 623. Detention based on a hunch is illegal. Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981). These “specific articu-lable facts” must create in the individual officer’s mind a reasonable suspicion that “some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime.” Johnson, supra, at 626.

In Tunnell v. State, 554 S.W.2d 697 (Tex.Cr.App.1977), this court held the basis for the investigatory stop insufficient. In Tunnell, supra, a police officer observed the defendant and two other men seated inside a parked car in a well-lighted hospital parking lot at 2:16 a.m. The officer was aware that a nearby Kraft Pood Company plant operated 24 hours per day but decided the activity was suspicious and decided to investigate. As the officer approached the parking lot the vehicle began to move away. After following for some time the officer stopped the car.

In Johnson, supra, this Gourt again found the basis for the investigatory stop insufficient. In Johnson, supra, the officer observed the defendant’s pickup truck parked in the lot of a McDonald’s restaurant at 5:00 a.m., a time at which the restaurant was closed. The bed of the pickup truck was loaded with furniture. The officer thought this suspicious, approached the truck and ordered the defendant out.

The facts of the instant case are remarkably similar to those in Tunnell, supra, and Johnson, supra.

We find it difficult to discover any facts showing activity out of the ordinary in the instant case save that the officer described the area as being one of high crime and that appellant attempted to leave as the officers approached. In any case, the events in the instant case, like those in Tunnell, supra, and Johnson, supra, are as consistent with innocent activity as they are with criminal activity. Where this is true the detention is unlawful. Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978). As this detention was unlawful the contraband recovered as a result of the ensuing search was inadmissible. Baldwin v. State, 606 S.W.2d 872 (Tex.Cr.App.1980).

Accordingly, the judgments of the Court of Appeals and the trial court are reversed and the cause is remanded to the trial court.

Before the court en banc.