Chism v. State

418 S.W.3d 639

James Sentrell CHISM, Appellant

v.The STATE of Texas, Appellee.

No. 06–09–00045–CR.

Court of Appeals of Texas, Texarkana.

Submitted July 24, 2009.

Decided Sept. 16, 2009.

Tim Cone, for appellant.

Billy W. Byrd, for State of Texas.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

After unsuccessfully moving to suppress the physical evidence against him, James Sentrell Chism pled guilty to possession of a controlled substance, less than one gram of cocaine, and was sentenced to two years' confinement in a state jail facility. SeeTex. Health & Safety Code Ann. § 481.115 (Vernon 2003). Chism contends the trial court erred by denying his motion to suppress.

The hearing on the motion to suppress revealed that former Gilmer Police Officer James Griswold responded to a report of a man panhandling ¹ at a local convenience store. After finding a man who met the description provided, talking to him, patting him down, asking questions, and seeing a prescription pill bottle in his pants pocket despite his efforts to conceal it, Griswold ultimately seized the pill bottle, which contained a small plastic bag containing white residue later discovered to be cocaine. Chism challenges various stages of his interaction with Griswold and maintains the trial court should have granted his motion to suppress the physical evidence obtained during that interaction. We agree with Chism and outline the events in question in more detail below.

I. STANDARD OF REVIEW

We review a trial court's ruling on a motion to suppress under a bifurcated standard. See Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007). We review de novo the legal determinations of detention, reasonable suspicion, and probable cause under the Fourth Amendment while granting great deference to a trial court's factual findings. State v. Sheppard, 271 S.W.3d 281, 286–87 (Tex.Crim.App.2008). The trial court's evidentiary ruling “will be upheld on appeal if it is correct on any theory of law that finds support in the record.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.Crim.App.2006).

“Beginning with the officer's initial intrusion, we evaluate the reasonableness of each incremental level of intrusion, based on the information possessed by the officer at that time.” Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Here, we will examine the initial detention, the pat down, the viewing of the pill bottle, and the seizure of the pill bottle.

II. THE INVESTIGATIVE DETENTION

At about 9:30 a.m. on a Sunday morning, a call came in to the Gilmer Police Department for service to the Top Stop convenience store concerning a black man panhandling. The store clerk reporting the incident described the suspect as a black male wearing blue jeans, a white tank top, and a black baseball cap and having left the scene on foot traveling north on Highway 271.²

Griswold went to the area to look for the individual. He shortly found Chism, walking along Highway 271, and made contact with Chism at that time. Griswold stepped out of his vehicle and “asked [Chism] to step over to [his] vehicle.” Griswold testified that Chism “complied” with his “instructions.” Griswold advised Chism that he was investigating a report of panhandling.

In response to the State's questioning, Griswold testified that when he stopped to talk to Chism, he had reasonable good faith to believe that the individual was the individual who had been reported as panhandling. Griswold would later concede the city ordinance prohibiting panhandling only applied to such activity between the hours of sunset and sunrise, a limitation of which Griswold was unaware at the time of his encounter with Chism. Though Chism had not committed a technical violation of the city ordinance prohibiting panhandling, Griswold maintained that he had a good-faith reasonable belief that a crime had occurred.

A. When and for What Purpose May an Officer Perform an Investigatory Detention

When an officer has a reasonable suspicion based on articulable facts that criminal activity is afoot and a certain person is connected with the activity, the officer may make an investigative stop of that person even though grounds for arrest do not exist. Terry v. Ohio, 392 U.S. 1, 20–29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sheppard, 271 S.W.3d at 287. The articulable facts “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.” Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989).

These facts must amount to more than a mere inarticulable hunch or suspicion. Williams v. State, 621 S.W.2d 609, 612 (Tex.Crim.App.1981). “The behavior of the suspect need not suggest the commission of a particular offense; any sufficiently suspicious criminal activity may justify a stop.” Hill v. State, 951 S.W.2d 244, 247 (Tex.App.-Houston [14th Dist.] 1997, no pet.); see Jenkins v. State, No. 06–08–00158–CR, 2009 WL 103170, at *1, 2009 Tex.App. LEXIS 304, at *4–5 (Tex.App.-Texarkana Jan.16, 2009, no pet.) (mem. op., not designated for publication). Any investigative detention that is not based on reasonable suspicion is unreasonable and violates the Fourth Amendment. Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997).

B. Reviewing the Validity of an Investigative Detention

The burden is on the State to elicit testimony showing sufficient facts to create a reasonable suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App.2001). Whether reasonable suspicion exists is determined by considering the facts known to the officer at the moment of detention. Davis, 947 S.W.2d at 243. A determination of reasonable suspicion must be based on common-sense judgments and inferences about human behavior. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).

Griswold testified he stopped Chism, who met the description provided, to investigate the report of panhandling. That the city ordinance really only prohibitedpanhandling between the hours of sunset and sunrise does not invalidate the investigative detention of Chism during daylight hours. His behavior, though perhaps not a technical violation of the city ordinance, was sufficiently suspicious to justify an investigative detention. Assuming that the initial encounter between Griswold and Chism was an investigatory detention implicating Fourth Amendment protections,³ we conclude the initial investigative detention was sufficiently justified by reasonable suspicion. That said, we move on to the next stage of the interaction, the pat down, with the understanding that Griswold had lawfully detained Chism for investigative purposes.

III. THE PAT DOWN

After Griswold detained Chism and directed him to step over to the police car, Chism offered no resistance to the conversation and did not appear to be reluctant to speak with Griswold. There had been no report to Griswold that Chism had acted in a threatening manner. Griswold then asked Chism to identify himself and checked Chism for weapons for officer safety. Griswold had not seen anything that made it appear that Chism might have a weapon and had not detected any movements that would suggest Chism had or was about to use a weapon. Chism did not exhibit any behavior that would suggest that he was about to flee or otherwise pose a threat to Griswold.

Griswold testified that it was his “normal practice” to always search for weapons: “Every single time I make contact with a suspect[,] I check for weapons for officer safety.” He offered the following explanation as the objective reasonable basis for conducting his “normal practice” weapon search: “I'm making a contact with a person that I don't know who people are accusing of an offense.” He confirmed that Chism made no threat to him at all. Griswold also confirmed that Chism complied with his directions when he announced that he would be checking Chism for weapons.

The record suggests that Chism told Griswold that he had awakened in someone's yard and did not know how he had gotten there and was walking back toward the Lake O' the Pines. Griswold explained that he believed Chism possessed narcotics ⁴ because of Chism's “disoriented state,” the fact that Chism had slept in a vehicle, and “just the factors of the situation.”

When prompted by the State, Griswold testified the transient population in Gilmer usually have weapons on them; Griswold has found knives, screwdrivers, and handguns. He also testified that in his experience, a number of the transient population in Gilmer abuse narcotics and often have needles and such on their persons. Though directly contradictory to his earlier testimony, Griswold then testified he was worried Chism might stab him with one of these items. Griswold's pat down of Chism, however, did not reveal any weapons.

A. When an Officer Can Perform a Pat Down

The Fourth Amendment prohibits unreasonable searches and seizures. O'Hara v. State, 27 S.W.3d 548, 550 (Tex.Crim.App.2000). Searches conducted without a warrant are unreasonable per se under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Id. One exception to the warrant requirement occurs when an officer is justified in believing that an individual is armed and presently dangerous. Id. In that situation, the officer may conduct a pat-down search to determine whether the person is carrying a weapon. Id. It would be unreasonable to deny a police officer the right to neutralize the threat of physical harm. Id.

Terry does not authorize a frisk for weapons in all confrontational encounters. Maryland v. Buie, 494 U.S. 325, 333–34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). A police officer who has lawfully detained a person for investigation may conduct a protective search of the detainee's outer clothing for weapons if the...