Davis v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of marihuana and sentenced to five years confinement. Tex. Health & Safety Code Ann. § 481.121. The Court of Appeals affirmed. Davis v. State, 923 S.W.2d 781 (Tex.App.— Beaumont 1996). We granted review to determine whether the Court of Appeals erred in holding further detention was justified after the officer determined appellant was not driving while intoxicated. We will reverse.

I.

A.

The following facts are taken from the Court of Appeals opinion. Appellant was stopped at 1:00 a.m. in Lufkin for suspicion of driving while intoxicated. Appellant exited his vehicle and walked to the officers’ patrol vehicle. When told the reason for the stop, appellant stated he was not intoxicated, merely tired. The officers did not detect an odor of alcohol on appellant; nor did they detect an odor of alcohol or any type of drug emanating from the vehicle. The officers determined appellant was not intoxicated. At this point, the initial purpose of the traffic stop was completed. Davis, 923 S.W.2d at 784.

The officers questioned appellant and his passenger separately. Appellant stated he was from New York and he and the passenger had been looking at apartment buildings. The passenger stated she was accompanying appellant while he looked at property in Houston. The officers believed the statements were inconsistent. Id. at 784-785.

A background check on appellant revealed appellant had no history of convictions and his drivers’ license was valid. A background check on the passenger revealed she had an arrest and conviction for a drug offense. A license check on the vehicle revealed the car was not in appellant’s name; however, the check also revealed the vehicle was not reported stolen. Appellant stated the vehicle was borrowed from his girlfriend. The insurance papers on the vehicle were in proper order. The officers concluded appellant did not appear to be someone who was on a business trip. Id. at 785.

After questioning appellant and the passenger, the officers asked appellant for permission to search the vehicle. Appellant refused to give consent.1 One of the officers did a pat down search of appellant but found no weapons or drugs. The officers then informed appellant that he was free to leave at any time but the vehicle was being detained for an on-scene investigation. A canine unit was called to the scene. The narcotics dog arrived and made a positive alert at the trunk of the vehicle. Upon request, appellant handed the keys to an officer who searched the trunk. Inside the trunk the officer found a suitcase containing marihuana. The trial judge overruled appellant’s motion to suppress this evidence. Ibid.

*242B.

A majority of the Court of Appeals held: ... the fact that appellant was traveling late at night in a borrowed car, appeared nervous, was dressed poorly considering the explanation for travel given, told a story which could be interpreted as being inconsistent with that of his passenger, immediately got out of his vehicle when stopped and went back to the patrol car door, and repeatedly attempted to distance himself from his own vehicle, was enough to raise reasonable suspicion justifying further detention until the drug dogs came to the scene to sniff the car.

Davis, 923 S.W.2d at 789.

However, in dissent, Justice Burgess stated:

... even taking those facts as true, within the “totality of the circumstances” and viewing them in the light most favorable to the trial court’s ruling, see State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996), they are not, as a matter of law, specific articu-lable facts which created a reasonable suspicion that criminal activity was afoot.

Where events are as consistent with innocent activity as with criminal activity, detention based upon those events is unlawful. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983). The suspicious conduct relied upon by the officers must be sufficiently distinguishable from that of innocent people under the same circumstance to clearly, if not conclusively, set the suspect apart from them. Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App. 1991).

Davis, 923 S.W.2d at 790. The dissent concluded: “The Fourth Amendment, in my view, protects late-night, out-of-state travelers from being subjected to detentions that provide officers the opportunity to ‘get lucky.’ ” Id., 923 S.W.2d at 791-92.

We granted review to determine whether the decision of the of the Court of Appeals conflicts with the applicable decisions of the United States Supreme Court, this Court and/or the courts of appeals. Tex.R.App. P. 200(b)(1), (3) and (5). See, Crockett v. State, 803 S.W.2d 308 (Tex.Cr.App.1991); Daniels v. State, 718 S.W.2d 702 (Tex.Cr.App.1986); and, Montano v. State, 843 S.W.2d 579 (Tex. Cr.App.1992).

II.

A.

In the landmark ease of Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), the Supreme Court recognized the rights insured by the Fourth Amendment belong “as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” Id., 392 U.S. at 8-9, 88 S.Ct. at 1873. However, the Fourth Amendment does not forbid all searches and seizures, but only unreasonable searches and seizures. Ibid, (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (I960)).2

The question in Terry was whether it was always unreasonable for a peace officer to seize a person and subject him to a limited search unless there is probable cause for an arrest. Id., 392 U.S. at 15, 88 S.Ct. at 1877. The Court held that even though a “stop” and “frisk” was a search and seizure under the Fourth Amendment, id, 392 U.S. at 16, 88 S.Ct. at 1877, such actions by peace officers could be reasonable under the Fourth Amendment. To determine the reasonableness of such an investigative detention the Court adopted a dual inquiry: (1) whether the officer’s action was justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Id, 392 U.S. at 19-20, 88 S.Ct. at 1879.

Under the first prong, “the police officer must be able to point to specific and articula-ble facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id, 392 U.S. at 21, 88 S.Ct. at 1880. In short, the officer must have *243a reasonable suspicion.3 In assessing whether the intrusion was reasonable, an objective standard is utilized: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880.4 An investigative detention not based on reasonable suspicion is unreasonable and, thus, violative of the Fourth Amendment.

The second prong of Terry deals with the scope of the detention. The Court noted that an investigative detention, “like any other search, must be strictly circumscribed by the exigencies which justify its initiation.” Id., 392 U.S. at 25-26, 88 S.Ct. at 1882. The scope of the search must be limited because “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” Id., 392 U.S. at 18, 88 S.Ct. at 1878. Several years later, the Supreme Court stated:

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.5

Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). This limitation means that once the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.” Ohio v. Robinette, — U.S. -, -, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concur-ting). Consequently, a detention that is not temporary and reasonably related in scope to the circumstances which justified the interference, is unreasonable and, thus, violative of the Fourth Amendment.

While a Terry-stop is traditionally considered in the context of a seizure of the person, the Supreme Court has extended Terry to personalty as well. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). As the Court stressed in Place, even though the defendant may be free to leave, the seizure of the personalty is still a restraint upon the person.

... The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler’s immediate possession, the police conduct intrudes on both the suspect’s possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. Therefore, when the police seize luggage from the suspect’s custody, we think the limitations applicable to investigative detentions of the person should *244define the permissible scope of an investigative detention of the person’s luggage on less than probable cause.

Id., 462 U.S. at 708-709, 108 S.Ct. at 2645. In sum, for an intrusion on such personalty, reasonable suspicion is required and, even if reasonable suspicion exists, the detention must be temporary and last no longer than necessary to effectuate the purpose of the intrusion.

B.

Consistent with Terry, Texas courts require reasonable suspicion before a seizure of the person or property can occur. For example, in Garza v. State, 771 S.W.2d 549, 558 (Tex.Cr.App.1989), this Court stated:

... It is clear that circumstances short of probable cause may justify temporary detention for purposes of investigation. Schwartz v. State, 635 S.W.2d 545, 546 (Tex.Cr.App.1982); Terry v. Ohio, supra. To justify an investigative detention, the officer must have specific articulable facts, which, premised upon his experience and personal knowledge, when coupled with the logical inferences from those facts would warrant the intrusion on the detainee. These facts must amount to more than a mere hunch or suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex.Cr.App. 1981). The articulable facts used by the officer must create some reasonable 'suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime. Meeks v. State, 653 S.W.2d 6, 12 (Tex.Cr.App.1983); Schwartz, supra at 547, citing, Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978).

Similarly, in Crockett v. State, 803 S.W.2d 308, 311 (Tex.Cr.App.1991), we recognized:

It has been an accepted part of state and federal jurisprudence for many years that law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Nevertheless, even a temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity. United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App.1983).

See also, Davis v. State, 829 S.W.2d 218 (Tex. Cr.App.1992), and, Johnson v. State, 658 S.W.2d 623 (Tex.Cr.App.1983). In short, under our interpretation of Terry and its progeny, reasonable suspicion requires “that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime.” Viveros v. State, 828 S.W.2d 2, 4 (Tex.Cr.App.1992) (citing Garza, 771 S.W.2d at 558).

Additionally, Texas Courts recognize that investigative detentions become unreasonable when they are not reasonably related in scope to the circumstances which justified the interference in the first place. For example, in Collier v. State, 843 S.W.2d 176, 177 (Tex.App. — Houston [14th Dist.] 1992), officers stopped a vehicle to question its occupants about their possible involvement in a narcotics transaction. The driver and Collier denied any involvement. A citation was written to the driver for an expired license and no proof of liability insurance but the officers found nothing to confirm their suspicion of a narcotics transaction or any other criminal activity. Nevertheless, the officers radioed for a female officer to search the occupants. The officers testified the women were not under arrest, yet the officers continued to detain the women even though there was no probable cause to justify an arrest or a continued detention. The Collier Court stated:

... [An investigative] detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The police may not carry out a full search of the person or his effects. Nor *245may they verify their suspicions by means that approach an arrest.

Id., 843 S.W.2d at 177 (internal quotation marks and cites deleted). The court held that the continued detention of Collier was unlawful and, therefore, reversed her conviction. See also, Ussery v. State, 651 S.W.2d 767, 770 (Tex.Cr.App.1983) (a detention for investigatory purposes must be limited; it must be temporary and last no longer than necessary to effect the purpose of the stop); Lopez v. State, 663 S.W.2d 587, 589 (Tex. App. — Houston [1st Dist.] 1983) (“[a]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”) (emphasis in the original); and, Anderson v. State, 787 S.W.2d 221, 229 (Tex.App. — Fort Worth 1990) (“[t]he propriety of the duration of the detention is judged by whether police pursued a means of investigation which dispelled or confirmed their suspicions quickly and in a manner that did not exceed the scope of the detention.”).

On the basis of these cases, the law is clear.

An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.

Perez v. State, 818 S.W.2d 512, 517 (Tex. App. — Houston [1st Dist.] 1991). “The propriety of the stop’s duration is judged by assessing whether the police diligently pursued a means of investigation that was likely to dispel or confirm their suspicions quickly.” Perez, 818 S.W.2d at 517 (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)).

III.

In the instant ease, appellant was stopped for suspicion of driving while intoxicated. The parties do not contest the reasonableness of the stop. Therefore, we begin our inquiry with the assumption that this investigation was reasonable. Under the authority cited above, this investigative detention was required to be temporary and could last no longer than was necessary to determine whether appellant was intoxicated.6 Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26. Moreover, the officers were required to employ the least intrusive means reasonably available to verify or dispel their suspicion in a short period of time. Perez, 818 S.W.2d at 517. Their suspicion was dispelled with appellant’s explanation that he was tired, not intoxicated, and the lack of an odor of alcohol or drug emanating from either appellant or his vehicle. In sum, the purpose of the investigative detention was effectuated when the officers determined appellant was not intoxicated. Davis, 923 S.W.2d at 784.

Nevertheless, the officers continued to detain appellant and the vehicle. This continued detention revealed that appellant had a valid driver’s license and there were no warrants for his arrest. The pat down search of appellant revealed neither a weapon nor contraband. The continued detention of appellant was based upon the officer’s conclusion that appellant did not appear to be someone who was on a business trip. However, this conclusion was not based upon articulable facts which, taken together with rational inferences from those facts, would warrant a man of reasonable caution in the belief that continued detention was justified. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880. Indeed, when viewed in an objective fashion, no known fact, or rational inferences from those facts, would support the conclusion that appellant was engaged in or soon would engage in criminal activity. Crockett, 803 S.W.2d at 311. The officers obviously made the same determination because they informed appellant that he was free to leave. Davis, 923 S.W.2d at 785. Consequently, the *246Court of Appeals erred in holding there was a reasonable suspicion that appellant was engaged in criminal activity. Davis, 923 S.W.2d at 789.

We now turn to consider the continued detention of the vehicle. First, we note that even though the officers stated appellant was free to leave, he was effectively restrained as it was 1:00 a.m., appellant’s destination was New York state and his only visible means of transportation was the detained vehicle. Therefore, in detaining the vehicle, the officers were effectively depriving appellant of his liberty interest of proceeding with his itinerary. Place, 462 U.S. at 708-709, 103 S.Ct. at 2645. As previously noted, there was no justification for appellant’s detention.

Second, when the officers decided to detain the vehicle, they knew the vehicle was not reported stolen and the insurance papers were in proper order. Additionally, there was no odor of alcohol or any type of drug emanating from the vehicle. Id., at 784-85. The absence of an odor is important when we remember the purpose of the. stop was to determine if appellant was intoxicated. In short, there was nothing out of the ordinary about the vehicle nor was there any indication that the vehicle was in any way related with criminal conduct. Viveros, 828 S.W.2d at 4. Consequently, the Court of Appeals erred in holding the continued detention of the vehicle was reasonable. Davis, 923 S.W.2d at 789.

The judgment of the Court of Appeals is reversed and the case is remanded to the trial court.

. The videotape of the detention reveals the officers twice asked appellant for consent to search the vehicle and twice appellant refused.

. The Fourth Amendment is applicable to the States under the Fourteenth Amendment. See, Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); and, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

. As the Court further explained:

... [i]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unpar-ticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id.., 392 U.S. at 27, 88 S.Ct. at 1883.

. The Court continued:

... And simple good faith on the part of the arresting officer is not enough_ If subjec-five good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects only in the discretion of the police.

Id., 392 U.S. at 21-22, 88 S.Ct. at 1880 (quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964))(intemal quotations deleted).

.All emphasis is supplied unless otherwise indicated.

. We pause to note that in a traffic stop situation, an officer may demand identification, a valid driver’s license, and proof of insurance from the driver. Tex. Trans. Code §§ 521.025, 601.053 (Vernon’s Supp.1996); and, Sendejo v. State, 841 S.W.2d 856, 859 (Tex.App. — Corpus Christi 1992). Additionally, it is not unreasonable for an officer to check for outstanding warrants. Smith v. State, 840 S.W.2d 689, 692 (Tex.App. — Fort Worth 1992) (citing Petty v. State, 696 S.W.2d 635, 639 (Tex.App. — Dallas 1985, no pet.)). See also, United States v. Shabazz, 993 F.2d 431, 436 (5th Cir.1993).