I dissent to the majority's holding that the officer lacked authority to make the initial stop of appellant.
The law is well settled that a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be the most reasonable course in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.). In such a situation, the prosecution need not demonstrate that probable cause to arrest a suspect existed at the inception of the detention, although such a detention is within the protection of the Fourth Amendment of the United States Constitution. Davis v. Mississippi,394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and Article 1, Section 9, of the Texas Constitution; Armstrong v. State, supra. We have frequently said that circumstances short of probable cause for arrest may justify temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.). It is clear that an occupant of an automobile is just as subject to a brief detention or stop as is a pedestrian. Adams v. Williams, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.).
In Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.), this Court, in addressing the question of circumstances that may justify temporary detention for investigation, said:
"There must be a reasonable suspicion by the officer 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 crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful."
See Armstrong v. State, supra, citing Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423, 82 Cal.Rptr. 484,462 P.2d 12 (1969).
The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct was reasonable. Shaffer v. State, supra. The circumstances in the instant case were (1) The time of the stop was "4:45 in the morning" and "there had been a number of burglaries in the area" in recent time, the arresting officer stating, "three times in that particular area" and they had occurred usually between three and five in the morning. The officer testified that he had been told to patrol the area quite heavily. (2) The arresting officer had been advised by police radio that appellant and his companion "had tried to elude" other officers who had been following them.
Since the totality of the circumstances may be considered, it is not necessary for us to determine if either of the foregoing sets of facts standing alone would justify the stop. It is necessary, however, to make a careful examination of each of the circumstances. With respect to the officer's knowledge that crimes had been committed in the area, we find the facts presented herein to be more persuasive than those in Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.).
In Talbert, officers who had stopped the defendant in the University of Texas area in Austin between 1:30 and 2:00 a.m. gave as the reason for such stop the hour of the night and the officers' opinion that the entire University area "could be classified as a high crime area." The arresting officer, in defining "high crime area," included collisions and violations of the Uniform Traffic Act. This Court stated, "We are unwilling to blanket-label such a substantial portion of Austin as a 'high crime area' in order to *Page 377 justify the stopping of appellant's automobile." In the instant case the arresting officer's knowledge relative to a "high crime area" was much more specific as to the crimes being committed, the officer relating that a number of burglaries had been committed in the area. Further, the area in which the crimes had been committed and the times of commission were much narrower than in Talbert.
With regard to the information received by the officer that appellant had tried to elude other officers, the record reflects the following testimony by Officer Brown on cross-examination:
"Q. Was the only reason you stopped him was because it was 4:35 in the morning and it was a high crime rate in that area?
"A. Yes, sir. And also that the other two, Officer Wheeler and Officer Hudson, had been following the subject for some time.
"Q. Is that the only reason you had to
"A. They stated on the radio that the subjects had tried to elude them several times.
"Q. And what does that mean?
"A. It means they would go down approximately a block and turn and go down another block and turn, back and forth. And also they drove around in that area, Stephen F. Austin school, where Mr. Benton dropped off the other subject."
The fact that the officer may have been made aware that appellant and his companion were trying to "elude" the other officers by turning after they had driven a block and by a "zigzag" pattern of driving rather than by traveling at a high rate of speed is of little consequence. The important factor is that Officer Brown was advised that appellant was trying to elude the officers, not the method employed.
The legality of the stop is determined only by the facts known by the arresting officer at the time of arrest. Talbert v. State, supra. The fact that the officer may have displayed a misconception about the law governing probable cause to arrest an individual at the trial on its merits is of no relevance in the resolution of the issue before us.
The totality of the circumstances known to the officer at the time was such as to create a reasonable suspicion on his part that some activity out of the ordinary was occurring or had occurred, that such activity was related to crime, and that appellant was connected with that activity. The officer's action in stopping the vehicle appellant was driving to determine his identity or to maintain the status quo momentarily while obtaining more information was reasonable. Adams v. Williams, supra ; Terry v. Ohio, supra ; Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.).
I dissent.
Before the court en banc.