NO. 07-09-0290-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
FEBRUARY 10, 2010
___________________________________
JOSE EVER GONZALEZ-GILANDO, Appellant
v.
THE STATE OF TEXAS,
_________________________________
FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;
NO. 1018H; HON RON ENNS, PRESIDING ______________________________________
OPINION ______________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jose Ever Gonzalez-Gilando pled guilty to possession of a controlled substance
with intent to deliver. On appeal, he challenges the trial court=s denial of his motion to
suppress contending there was no reasonable suspicion for an investigative stop. We
agree and reverse the judgment.
Background
On November 19, 2008, Troopers Chad Foster and Jacob Gamez were on patrol
on Highway 385 in Hartley County. The highway, purportedly, was a main traffic route
for drug dealers. The officers observed a vehicle pass them in the opposite direction and decided to turn and follow it. They grew suspicious of whom they saw because 1) the
vehicle in which they rode was clean or lacked road grime, 2) the young occupants did not
Afit@ the year and model of the vehicle, the latter being a >99 Lumina, 3) the troopers
thought the vehicle=s occupants should have been in a sportier car, 4) both occupants
simultaneously looked away from the officers as the vehicles met and passed, 5) the
occupants turned their hats around so they faced forward after passing the troopers, 6)
the car slowed and came to almost a complete stop at a blinking caution light adjacent to
an intersection, and 7) the driver drove within the speed limit.
The troopers also checked a computer database to determine whether the vehicle
in question was lawfully registered and whether it was covered by liability insurance.
While it was discovered that the car was lawfully registered, the information regarding
insurance was unavailable. In other words, the information garnered from the database
did not provide the troopers basis to confirm whether or not such insurance existed.
According to one trooper, the circumstance meant the car could or could not have been
covered. Because they concluded that they could not stop the car, they decided to call a
local deputy sheriff (Fowler) to intercede. 1
1 This is somewhat reminiscent of the Life commercials of yesteryear where the older siblings were hesitant to taste the cereal. So, they decided to call AMikey@ because AMikey would eat anything.@ Maybe each of us is guilty of doing this at one time or another.
2 Fowler responded, caught up with the moving vehicles, placed his patrol unit between
that in which appellant rode and that of the troopers, ran the license plate, and also
determined that the vehicle he was following had a current registration. So too did his
search for the existence of potential liability insurance result in the discovery that the
information was Anot available@ or the status Aundocumented.@ Nonetheless, he decided
to conduct a traffic stop of appellant and his companion. The stop eventually resulted in
the discovery of the controlled substances underlying appellant=s conviction.
Standard of Review
We review the trial court=s ruling on a motion to suppress under the standard
discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). It requires us to give
great deference to the trial court=s interpretation of historical fact and assessment of a
witness= credibility. Id. at 493. However, we need not give such deference to its
application of the law to the facts, especially when those facts are undisputed. Neal v.
State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008), cert. denied, __ U.S. __, 129 S.Ct.
1037, 173 L.Ed.2d 471 (2009). In that situation, we consider the matter de novo. Id.
Applicable Law
Next, law enforcement personnel may briefly detain and investigate a person when
they have a reasonable suspicion that the person is involved in criminal activity. State v.
Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008). The officer must be able to
point to something that would lead a reasonable person to believe that the person being
detained was engaged in, had engaged in, or was about to engage in a criminal act.
Klare v. State, 76 S.W.3d 68, 72 (Tex. App.BHouston [14th Dist.] 2002, pet. ref=d). Those
specific articulable facts must amount to more than a mere hunch or suspicion. Davis v.
3 State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). And, we look at the totality of the
circumstances in determining reasonable suspicion. Ford v. State, 158 S.W.3d at
492-93. Finally, the subjective intent of the officer has no bearing on the matter. Id. at
492.
Application of Law to Facts
Regarding the indicia other than that concerning insurance, none evinced criminal
activity or a reasonable suspicion that criminal activity was afoot. This is so irrespective
of whether they are viewed separately or en masse.
It is not a crime in this State to drive a clean car, look away from passing police
officers, drive a vehicle of one=s choice, obey traffic warnings, and abide by posted speed
limits. Nor did either the State or officers proffer reasonable explanation as to how one
could rationally interpret such conduct as potentially criminal. For instance, we are left to
guess at why a young adult driving an older car insinuated that he was a criminal.
Moreover, accepting such a proposition would be tantamount to concluding that only
those young adults without sufficient means to acquire a newer car engage in criminal
activity, and such is not the case. Similarly insupportable is the notion that following
traffic laws and heeding traffic warnings connotes some manner of misconduct. Rather,
following the law tends to suggest that one is engaging in lawful activity, and we hesitate
to conclude otherwise without basis for doing so.
As for looking away from police officers, that too is a highly dubious indicia since
others have opined that looking at officers is equally suspicious. E.g., U.S. v. Barnard,
553 F.2d 389, 391-92 (5th Cir. 1977). If one acts suspiciously by both looking at and
away from the police, then that seems to leave no option other than to move around with
4 eyes closed. Of course, the police would most certainly deem the latter grounds for a
stop if undertaken by someone driving (and rightly so). From early school days, many
come to believe that avoiding eye contact with authority figures is a way to avoid notice or
otherwise be left alone. A student looking down in the classroom upon the teacher
asking a question does not ipso facto mean the student committed a misdeed. The
same can be said of those who look away from law enforcement officials while driving on
the roadway. And, the State failed to explain why the contrary is true.
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NO. 07-09-0290-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
FEBRUARY 10, 2010
___________________________________
JOSE EVER GONZALEZ-GILANDO, Appellant
v.
THE STATE OF TEXAS,
_________________________________
FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;
NO. 1018H; HON RON ENNS, PRESIDING ______________________________________
OPINION ______________________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jose Ever Gonzalez-Gilando pled guilty to possession of a controlled substance
with intent to deliver. On appeal, he challenges the trial court=s denial of his motion to
suppress contending there was no reasonable suspicion for an investigative stop. We
agree and reverse the judgment.
Background
On November 19, 2008, Troopers Chad Foster and Jacob Gamez were on patrol
on Highway 385 in Hartley County. The highway, purportedly, was a main traffic route
for drug dealers. The officers observed a vehicle pass them in the opposite direction and decided to turn and follow it. They grew suspicious of whom they saw because 1) the
vehicle in which they rode was clean or lacked road grime, 2) the young occupants did not
Afit@ the year and model of the vehicle, the latter being a >99 Lumina, 3) the troopers
thought the vehicle=s occupants should have been in a sportier car, 4) both occupants
simultaneously looked away from the officers as the vehicles met and passed, 5) the
occupants turned their hats around so they faced forward after passing the troopers, 6)
the car slowed and came to almost a complete stop at a blinking caution light adjacent to
an intersection, and 7) the driver drove within the speed limit.
The troopers also checked a computer database to determine whether the vehicle
in question was lawfully registered and whether it was covered by liability insurance.
While it was discovered that the car was lawfully registered, the information regarding
insurance was unavailable. In other words, the information garnered from the database
did not provide the troopers basis to confirm whether or not such insurance existed.
According to one trooper, the circumstance meant the car could or could not have been
covered. Because they concluded that they could not stop the car, they decided to call a
local deputy sheriff (Fowler) to intercede. 1
1 This is somewhat reminiscent of the Life commercials of yesteryear where the older siblings were hesitant to taste the cereal. So, they decided to call AMikey@ because AMikey would eat anything.@ Maybe each of us is guilty of doing this at one time or another.
2 Fowler responded, caught up with the moving vehicles, placed his patrol unit between
that in which appellant rode and that of the troopers, ran the license plate, and also
determined that the vehicle he was following had a current registration. So too did his
search for the existence of potential liability insurance result in the discovery that the
information was Anot available@ or the status Aundocumented.@ Nonetheless, he decided
to conduct a traffic stop of appellant and his companion. The stop eventually resulted in
the discovery of the controlled substances underlying appellant=s conviction.
Standard of Review
We review the trial court=s ruling on a motion to suppress under the standard
discussed in Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). It requires us to give
great deference to the trial court=s interpretation of historical fact and assessment of a
witness= credibility. Id. at 493. However, we need not give such deference to its
application of the law to the facts, especially when those facts are undisputed. Neal v.
State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008), cert. denied, __ U.S. __, 129 S.Ct.
1037, 173 L.Ed.2d 471 (2009). In that situation, we consider the matter de novo. Id.
Applicable Law
Next, law enforcement personnel may briefly detain and investigate a person when
they have a reasonable suspicion that the person is involved in criminal activity. State v.
Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008). The officer must be able to
point to something that would lead a reasonable person to believe that the person being
detained was engaged in, had engaged in, or was about to engage in a criminal act.
Klare v. State, 76 S.W.3d 68, 72 (Tex. App.BHouston [14th Dist.] 2002, pet. ref=d). Those
specific articulable facts must amount to more than a mere hunch or suspicion. Davis v.
3 State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). And, we look at the totality of the
circumstances in determining reasonable suspicion. Ford v. State, 158 S.W.3d at
492-93. Finally, the subjective intent of the officer has no bearing on the matter. Id. at
492.
Application of Law to Facts
Regarding the indicia other than that concerning insurance, none evinced criminal
activity or a reasonable suspicion that criminal activity was afoot. This is so irrespective
of whether they are viewed separately or en masse.
It is not a crime in this State to drive a clean car, look away from passing police
officers, drive a vehicle of one=s choice, obey traffic warnings, and abide by posted speed
limits. Nor did either the State or officers proffer reasonable explanation as to how one
could rationally interpret such conduct as potentially criminal. For instance, we are left to
guess at why a young adult driving an older car insinuated that he was a criminal.
Moreover, accepting such a proposition would be tantamount to concluding that only
those young adults without sufficient means to acquire a newer car engage in criminal
activity, and such is not the case. Similarly insupportable is the notion that following
traffic laws and heeding traffic warnings connotes some manner of misconduct. Rather,
following the law tends to suggest that one is engaging in lawful activity, and we hesitate
to conclude otherwise without basis for doing so.
As for looking away from police officers, that too is a highly dubious indicia since
others have opined that looking at officers is equally suspicious. E.g., U.S. v. Barnard,
553 F.2d 389, 391-92 (5th Cir. 1977). If one acts suspiciously by both looking at and
away from the police, then that seems to leave no option other than to move around with
4 eyes closed. Of course, the police would most certainly deem the latter grounds for a
stop if undertaken by someone driving (and rightly so). From early school days, many
come to believe that avoiding eye contact with authority figures is a way to avoid notice or
otherwise be left alone. A student looking down in the classroom upon the teacher
asking a question does not ipso facto mean the student committed a misdeed. The
same can be said of those who look away from law enforcement officials while driving on
the roadway. And, the State failed to explain why the contrary is true.
And, while it may be true that innocent people often drive dirty cars, that hardly
means that those driving newly washed cars are violating or are about to violate the law,
and vice-versa.
It seems as though the situation before us exemplifies the nature of criminal
conduct in general. Simply put, criminality encompasses most any imaginable fact or
circumstance. Criminals come in all makes and colors. Some have hair, some do not.
Some are men, some are not. Some drive cars, some do not. Some wear suits, some
do not. Some have baseball caps, some do not. Some want attention, some do not.
Some have nice cars, some do not. Some eat spaghetti, some do not. And,
sometimes, some even engage in innocent activity. Yet, just because an officer once
encountered a bald male who ate spaghetti while wearing a suit who later drove away in a
particular car and ultimately engaged in criminal conduct does not permit him to rationally
deduce that everyone else who happens to do the same things may also be engaging in
misconduct. The same is no less true here. It may well be that the officers have seen
young people who drive older cars and obey traffic laws engage in illegal activity. But,
5 that does not mean it is reasonable to infer that all, most, or some other young people who
do likewise must be breaking the law.
People are free to drive any type of vehicle they choose, slow at a blinking yellow
light, look at whom they choose while driving, and maintain a speed below the limit
without expecting to be pulled over by law enforcement officers. See Klare v. State, 76
S.W.3d at 72 (stating that innocuous conduct alone does not justify an investigative stop);
Sieffert v. State, 290 S.W.3d 478, 484-85 (Tex. App.BAmarillo 2009, no pet.) (concluding
that driving a vehicle through a high crime area late at night at a speed lower than the
speed limit while appearing nervous did not evince reasonable suspicion to believe
criminal activity was afoot). Moreover, our decision remains the same even when we
factor into the equation the information at bar regarding the existence of insurance, or
lack thereof.
Drivers are required to maintain proof of financial responsibility to lawfully drive on
our public roads. See TEX. TRANSP. CODE ANN. '601.051 (Vernon 1999).
Furthermore, modern technology has apparently given police officers the means to
assess one=s compliance with that requirement without stopping the individual. Here,
however, the information obtained by the officers while pursuing those technological
means was hardly suggestive of anything other than the unknown. Again, the officers
simply were informed that the data they desired was unavailable. And, while Fowler
unilaterally opined that this Aled him to believe that the vehicle did not have insurance
coverage,@ 2 without other evidence developing the source of the information comprising
2 A trooper testified otherwise, saying that Athey could have insurance or they may not have insurance.@
6 the database, explaining what was meant when insurance information was unavailable,
explaining why such information would be unavailable, illustrating the accuracy of the
database, establishing the timeliness of the information within the database, depicting
how often those using the database were told that insurance information was unavailable,
proving that the program through which the database was accessed was even operating
at the time, and the like, we cannot accept the deputy=s inference as reasonable. 3
Given the absence of the evidence described above, we can only liken the
indication that the information was unavailable to Awho knows,@ and Awho knows@ falls
short of being an articulable fact upon which reasonable suspicion can be founded.
Thus, the State failed to carry its burden and prove that the stop at issue was based on
either reasonable suspicion or probable cause and, thereby, was legitimate. This, in
turn, leads us to conclude that the trial court erred in denying appellant=s motion to
suppress.
Without the drugs ultimately discovered in the car, the State had little or no
evidence of appellant=s guilt. Thus, authorizing their use to convict him was harmful.
Accordingly, we reverse the judgment and remand the cause to the trial court.
Brian Quinn Chief Justice
Publish.
3The State argues in its brief that, pursuant to the Texas Administrative Code, the reliability rate of the information provided by insurers must meet 95% by January 1, 2008. See 28 TEX. ADMIN. CODE '5.605(b) (2009). However, nothing in the record shows that the administratively-required goal was attained. 7