Maldonado v. State

853 S.W.2d 746, 1993 Tex. App. LEXIS 1146, 1993 WL 122589
CourtCourt of Appeals of Texas
DecidedApril 22, 1993
Docket01-92-00583-CR
StatusPublished
Cited by29 cases

This text of 853 S.W.2d 746 (Maldonado v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maldonado v. State, 853 S.W.2d 746, 1993 Tex. App. LEXIS 1146, 1993 WL 122589 (Tex. Ct. App. 1993).

Opinion

OPINION

HEDGES, Justice.

The trial court below found appellant, Alfonso Maldonado, guilty of the offense of possession of a controlled substance weighing less than 28 grams and sentenced him to four-years confinement. In three points of error, appellant complains of the trial court’s ruling on his pretrial motion to suppress evidence. We affirm.

Harris County Deputy Sheriff Steven Theis was on patrol on February 9, 1992, when an unidentified man flagged down his patrol car. The man told Deputy Theis that an Hispanic man with a scraggly beard, wearing blue jeans and a dirty gray jacket, was “causing problems” in the parking lot of the Ollie Motel. Deputy Theis drove to the motel and spotted appellant, who fit the description given by the man in the street.

Deputy Theis got out of his patrol car, approached appellant and asked him if he worked at the motel. He testified that appellant “appeared to be highly nervous, kept looking around, [and] wouldn’t look me directly in the eye when I was speaking with him.” Although he asked appellant several times to keep his hands out of his pockets, appellant repeatedly thrust his hands into his pockets. When the deputy asked him for identification, appellant made a “quick sudden motion” reaching for his back pocket. Deputy Theis grabbed appellant’s arm, asked him to place his hands on the patrol car, and patted him down for weapons. During the patdown, the deputy felt a long, slim, metallic object in appellant’s right front pants pocket. Believing that the object could be a pocket knife, he removed the object from appellant’s pocket. When he discovered that the object was a crack pipe, he arrested appellant. At the station, the crack pipe field-tested positive for cocaine.

The trial court is the sole finder of fact at a hearing on a motion to suppress evidence and may choose to believe any or all of the witnesses’ testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). On appellate review, the evidence adduced at the suppression hearing is viewed in the light most favorable to the trial court’s ruling. Perez v. State, 818 S.W.2d 512, 514 (Tex.App.—Houston [1st Dist.] 1991, no pet.); see Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.1986).

In point of error one, appellant asserts that “[t]he information received from an ‘unknown tipster’ was not reliable and was insufficient to form the basis for probable cause for a search.” Although framed in *748 terms of probable cause for a search, appellant actually argues that Deputy Theis made an impermissible investigative stop. He asserts that an investigative stop is permissible only when an officer suspects that a crime has been or is about to be committed. In this case the “tipster” never told the deputy that appellant had committed a crime, and appellant did not commit a crime in the deputy’s presence. Therefore, the appellant concludes, Deputy Theis had “insufficient basis for even an investigatory stop.”

Not every encounter between a citizen and a police officer amounts to a seizure requiring constitutional justification. Taylor v. State, 820 S.W.2d 392, 395 (Tex.App.—Houston [14th Dist.] 1991, no pet.). “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen....” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). Thus, as long as the person is free to walk away, no fourth amendment stop or detention occurs if a police officer merely approaches a person in a public place and asks questions. Perez, 818 S.W.2d at 515. An investigative stop requiring articulable suspicion occurs only when a police officer accosts an individual and restrains his freedom. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).

We find that it was permissible for Deputy Theis to approach appellant, to ask if he worked at the motel, to request that he remove his hands from his pockets, and to request that he provide some identification. Appellant was not detained until Deputy Theis grabbed his arm. Because the deputy’s conduct up to this point did not constitute a stop or detention, appellant’s fourth amendment rights were not implicated. We overrule point of error one.

In points of error two and three, appellant argues that even if the “investigative stop” were permissible, Deputy Theis had insufficient probable cause to search. He further argues that the long, metallic, slim object the deputy felt in appellant’s pocket did not warrant a search into his pockets. We disagree.

Appellant incorrectly asserts that Deputy Theis needed probable cause to conduct a patdown search. The issue before this Court is not probable cause, but rather the reasonableness of the search and seizure of the crack pipe. Worthey v. State, 805 S.W.2d 435, 436 (Tex.Crim.App.1991). We must determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879; Worthey, 805 S.W.2d at 436. Under Terry, an officer’s self-protective search for weapons is justified if the officer has reason to believe he is dealing with an armed individual, regardless of whether he has probable cause to arrest. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Harris v. State, 827 S.W.2d 49, 51 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d). The officer need not be absolutely certain that the individual is armed. The issue, rather, is whether a prudent person in the officer’s circumstances would be warranted in the belief that his safety or the safety of others was in danger. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Harris, 827 S.W.2d at 51. Thus, an officer need only have a reasonable belief that the person' with whom he is dealing is armed and dangerous; probable cause is not required. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Worthey, 805 S.W.2d at 437. To establish the reasonableness of an officer’s conduct, the record must contain “specific and articulable facts” that, when taken together with rational inferences from those facts, would warrant a self-protective search for weapons. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Worthey, 805 S.W.2d at 438.

In Worthey,

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Bluebook (online)
853 S.W.2d 746, 1993 Tex. App. LEXIS 1146, 1993 WL 122589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maldonado-v-state-texapp-1993.