Zeno v. State

862 S.W.2d 165, 1993 Tex. App. LEXIS 2470, 1993 WL 338677

• Court: Court of Appeals of Texas
• Decided: September 9, 1993
• Docket: No. 01-91-00937-CR
• Status: Published

Opinions

OPINION

COHEN, Justice.

After the trial judge overruled appellant’s motion to suppress evidence, he pled no contest to possession of cocaine, and the trial judge assessed punishment at seven-years confinement. We reverse.

Appellant contends the cocaine was found in an illegal search of his person. We agree.

Late in the morning of July 3,1991, Officer Humphrey saw appellant and another man walk underneath the freeway. When the men saw Humphrey, they turned and walked the other way; they were “walking in and out of cars ... in and out of traffic.” Humphrey thought the men might have been drinking because of the way they walked through the traffic. There had been numerous complaints about unemployed laborers drinking and walking the streets in this “dry” area of town, including a complaint that a bar-b-que pit was stolen from a porch. Humphrey had made numerous alcohol-related arrests in the area. Humphrey stopped the men and asked where they were going; they did not respond. Humphrey asked for identification, and appellant said he had none. Humphrey then radioed for backup, patted both men down for weapons, and found in appellant’s pocket a crack pipe containing cocaine.

Appellant contends Humphrey had no warrant, no probable cause, and no reasonable suspicion that appellant was armed and dangerous; therefore, the search was illegal. The State replies that the search was justified to ensure Humphrey’s safety while he investigated.

A police officer may conduct a protective patdown when he observes conduct suggesting that crime may be occurring and the suspect may be armed and dangerous. Harris v. State, 827 S.W.2d 49, 51 (Tex.App.—Houston [1st Dist.] 1992, pet. refd) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)). The officer must be able to point to specific and articula-ble facts from which he reasonably inferred that the individual being searched was armed and dangerous. Id.

Here, Humphrey stated no specific and articulable facts suggesting appellant was armed and dangerous. Humphrey testified that when he saw appellant turn around, it “made me curious ... [and] I didn’t know if he had been drinking so I stopped him to question him.” The only other specific facts Humphrey related concerned complaints from citizens that laborers in the area stole a bar-b-que pit from a porch, and that laborers walked the streets drunk.

There was no evidence that when Humphrey searched for weapons, he had a reasonable belief, based on an individualized suspicion, that appellant was armed. Therefore, the search was not justified.

Appellant’s point of error is sustained. The judgment is reversed, and the cause is remanded.

MIRABAL, J., dissenting.