In re Matter of A.T.H.

106 S.W.3d 338

In the Matter of A.T.H.

No. 03-02-00401-CV.

Court of Appeals of Texas, Austin.

May 8, 2003.

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Ambrosio A. Silva, Travis County Juvenile Public Defender, Austin, for Appellant.

C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for Appellee.

Before Justices YEAKEL, PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

A.T.H. was adjudicated delinquent for possession of marihuana within 1,000 feet of a school and placed on probation. See Tex. Health & Safety Code Ann. §§ 481.121, .134 (West Supp.2003); Tex. Fam.Code Ann. § 54.03 (West 2002). He appeals, contending that the district court erred in denying his motion to suppress the State's evidence because the police officer had neither reasonable suspicion nor probable cause to conduct the pat-down during which the drugs were discovered. We will reverse and remand.

Austin Police Officer Joe Chavez testified that he was stationed at Travis High School in January 2002. At about 9:40 a.m., he received a phone call from a caller who refused to give his name and told Chavez that he "was near a business or at the business" located about twenty-five feet from the school's eastern fence line. The unidentified caller complained that four juveniles who he assumed were Travis High School students were smoking marihuana behind the business. Chavez testified that the caller said, "[A]s we're speaking they're walking off and the only person I could really identify for you is a black male wearing a Dion Sanders football jersey." Chavez walked into the eastern parking lot to see if he could intercept the students, and "the only person I saw was, you know, a black man wearing a ... Dion Sanders football Jersey walking onto the parking lot which is our campus." When Chavez approached, the man, identified at the hearing as A.T.H., was cooperative and told Chavez his name and birth date. Chavez was wearing his uniform, badge, and gun at the time. Chavez did not know A.T.H., so, "For my safety and his safety I asked him — I told him that I was going to, you know, do a pat-down for officer's safety and for his safety." Chavez told A.T.H., "I'm just going to need you to put your hands on top of your head or behind your head," and "Hight before he did, I hadn't even touched him yet, he reached in his front left pocket and retrieved a clear plastic baggie which contained a green leafy substance." Chavez said, "I was directly behind him — so when he did he had the clear plastic baggie cuffed inside of his hand right here behind his head where it was actually right in front of my eyes at that time." The baggie contained marihuana. On cross-examination, Chavez testified, "[I]t wasn't a search, it's what we call a pat-down just for weapons." He said, "As soon as I, you know, identified him, I told him I was going to do a patdown, to put his hands back behind his head." Chavez arrested A.T.H., who attended high school elsewhere, and issued a criminal trespass warning.

The district court overruled A.T.H.'s motion to suppress, concluding that Chavez acted reasonably in stopping A.T.H. based on the anonymous tip because A.T.H. "looked like a student, was student age, and only later was it determined he was a student at a different school," and because "a policeman stationed at a school as a school resource officer stands in the same place as a school administrator and so can search a student based on an anonymous tip of illegality." The court stated, "I do not believe that [A.T.H.] abandoned the property or voluntarily disclosed it when he tried to hide it from the police because he would not have been hiding it but for the policeman's actions, so it was a stop. He was in control of the police when he did that. But I believe the stop, the investigatory stop was permitted because of, as I said, he's acting as a school administrator and was on a school campus even though it was just an anonymous tip."

A trial court's ruling on a motion to suppress will be set aside only on a showing of an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); In re V.P., 55 S.W.3d 25, 30 (Tex. App.-Austin 2001, pet. denied). The trial court is the sole trier of fact and judge of the weight and credibility to be given a witness's testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999); Villarreal, 935 S.W.2d at 138; V.P., 55 S.W.3d at 30. We give almost total deference to a trial court's determination of the facts and "mixed questions of law and fact" that turn on an evaluation of witness credibility and demeanor. V.P., 55 S.W.3d at 30-31; In re L.M., 993 S.W.2d 276, 286 (Tex.App.-Austin 1999, pet. denied); see Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). Where there is no disagreement about the facts, we may review questions not turning on credibility and demeanor de novo. V.P., 55 S.W.3d at 31; L.M., 993 S.W.2d at 286.

A.T.H. first argues that the "reduced standard of reasonable suspicion" set out in New Jersey v. T.L.O., 469 U.S. 325, 340-41, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), only applies to school officials, not to police officers like Chavez staffed as "student resource officers" to investigate disruptive and criminal activity on campuses, and that the district court therefore erred in applying the T.L.O. standard to this pat-down. However, because we believe that Chavez lacked justification for his pat-down of A.T.H. even under the T.L.O. standard, we need not address the question of what standard should be applied in student encounters with police officers staffed on campuses.¹

Ordinarily, a police officer may not conduct a seizure² and search of a suspect without "probable cause" that a crime has been committed. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see T.L.O., 469 U.S. at 340, 105 S.Ct. 733. An exception to the requirement of probable cause allows the police to make a "Terry stop" and "briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868). Reasonable suspicion is a less demanding standard than probable cause, but the officer still must be able to articulate something better than an inchoate suspicion or hunch. Sokolow, 490 U.S. at 7, 109 S.Ct. 1581 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868). Reasonable suspicion is shown if the officer can point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the police intrusion into the suspect's constitutionally protected interests. Terry, 392 U.S. at 21, 88 S.Ct. 1868. Reasonable suspicion is dependent upon the content of the officer's information and its reliability, and both factors must be considered when examining reasonable suspicion under "the totality of the circumstances." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); see Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Reasonable suspicion can arise from information that is less reliable than that required for probable cause. White, 496 U.S. at 330, 110 S.Ct. 2412.

An anonymous tip, standing alone, may justify the initiation of an investigation but rarely provides the reasonable suspicion necessary to justify an investigative detention or search. Id. at 329, 110 S.Ct. 2412; Dowler v. State, 44 S.W.3d 666, 669 (Tex.App.-Austin 2001, pet. ref'd); Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.-Austin 2000, pet. ref'd); Davis v. State, 989 S.W.2d 859, 863 (Tex.App.-Austin 1999, pet. ref'd). Generally, an officer "must have additional facts before the officer may reasonably conclude that the tip is reliable and an investigatory detention is justified." Stewart, 22 S.W.3d at 648; see Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); White, 496 U.S. at 330-31, 110 S.Ct. 2412. The officer's experience and prior knowledge, along with corroboration of the details of the tip, may give the officer reasonable suspicion. Stewart, 22 S.W.3d at 648; Davis, 989 S.W.2d at 864. Corroboration of details that are easily obtainable at the time the tip is made, however, does not furnish a basis for reasonable suspicion. J.L., 529 U.S. at 271-72, 120 S.Ct. 1375; Stewart, 22 S.W.3d at 648; Davis, 989 S.W.2d at 864. Descriptions of a subject's observable appearance or location may help an officer identify the person being accused, but do not corroborate the tipster's knowledge of concealed criminal activity.³ J.L., 529 U.S. at 272, 120 S.Ct 1375; Dowler, 44 S.W.3d at 670. In other words,

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

J.L., 529 U.S. at 272, 120 S.Ct. 1375. Easily ascertainable details such as a subject's clothing could be used by a tipster seeking to cause trouble for or play a prank on the subject. Davis, 989 S.W.2d at 864. To give rise to reasonable suspicion, the officer must be able to corroborate the improper nature of the subject's behavior. Hall v. State, 74 S.W.3d 521, 525 (Tex.App.-Amarillo 2002, no pet.). Corroborating information that can give rise to reasonable suspicion includes details that accurately predict the subject's future behavior, link the subject to the alleged criminal activity, or give a particularized and objective reason to suspect the subject. Davis, 989 S.W.2d at...