Jessica Pineda v. State ( 2014 )


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  •                                  Fourth Court of Appeals
    San Antonio, Texas
    DISSENTING OPINION
    No. 04-13-00701-CR
    Jessica PINEDA,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the 216th Judicial District Court, Kendall County, Texas
    Trial Court No. 5449
    Honorable N. Keith Williams, Judge Presiding 1
    Opinion by: Luz Elena D. Chapa, Justice
    Dissenting Opinion by: Marialyn Barnard, Justice
    Sitting:          Catherine Stone, Chief Justice
    Marialyn Barnard, Justice
    Luz Elena D. Chapa, Justice
    Delivered and Filed: August 13, 2014
    The majority hinges its entire holding — that the officer lacked reasonable suspicion — on
    the fact that the anonymous tipster never advised the officer (or dispatch) that Pineda and her
    companions lacked a permit to sell items from their vehicle in violation of a city ordinance —
    probably because the tipster did not know. The majority interprets the law of reasonable suspicion
    far too narrowly.
    1
    The Honorable N. Keith Williams, presiding judge of the 216th Judicial District Court, Kendall County, Texas,
    presided over Pineda’s plea of guilty and placed her on deferred adjudication. The Honorable Stephen B. Ables, sitting
    by assignment, heard and denied Pineda’s motion to suppress.
    Dissenting Opinion                                                                      04-13-00701-CR
    The Fourth Amendment requires that a warrantless detention of a person that amounts to
    less than a custodial arrest must be justified by reasonable suspicion. Derichsweiler v. State, 
    348 S.W.3d 906
    , 914 (Tex. Crim. App. 2011); Ford v. State, 
    158 S.W.3d 488
    , 492 (Tex. Crim. App.
    2005). An officer has reasonable suspicion to detain if he has “specific, articulable facts that,
    combined with rational inferences from those facts, would lead him reasonably to conclude that
    the person detained is, has been, or soon will be engaged in criminal activity.” 
    Derichsweiler, 348 S.W.3d at 914
    (emphasis added). This is an objective standard that disregards the actual subjective
    intent of the arresting officer and considers, instead, whether there was an objectively justifiable
    basis for the detention. 
    Id. “It also
    looks to the totality of the circumstances; those circumstances
    may all seem innocent enough in isolation, but if they combine to reasonably suggest the
    imminence of criminal conduct, an investigative detention is justified.” Id.; Curtis v. State, 
    238 S.W.3d 376
    , 379 (Tex. Crim. App. 2007) (noting appellate courts consider totality of
    circumstances in making reasonable suspicion determination). Under this standard, the articulable
    facts on which the officer relied need only support a reasonable belief that activity out of the
    ordinary is occurring or has occurred, that the person detained is connected to the activity, and that
    the activity is related to crime. State v. Garcia, 
    25 S.W.3d 908
    , 912 (Tex. App.—Houston [14th
    Dist.] 2000, no pet.).
    In its analysis, the majority contends the only facts known to the officer were that the tipster
    had witnessed Pineda or her companions attempting to sell items from the trunk of a vehicle in a
    parking lot and they left the parking lot at the tipster’s request. Majority Op. at __. According to
    the majority, because the tipster “did not provide any facts suggesting Pineda did not have a permit
    and the complaint does not reveal that the officer had any independent knowledge of such fact[,]”
    the officer had insufficient information to conclude Pineda had engaged in criminal activity, i.e.,
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    Dissenting Opinion                                                                     04-13-00701-CR
    had violated the city ordinance. 
    Id. The majority
    concludes the tipster had to know and advise the
    officer or dispatch that Pineda was soliciting without a permit in order for the officer to make an
    investigatory stop; the officer could not infer criminal activity — selling without a permit — from
    the mere fact that Pineda and her companions left when confronted by the tipster after the tipster
    saw them selling from the trunk of the vehicle. 
    Id. By reaching
    this conclusion, the majority
    seems to suggest an officer must have facts that make it a certitude — as opposed to a reasonable
    suspicion based on the totality of the circumstances — that a crime has occurred. This is not the
    law.
    The standard applicable to reasonable suspicion “only requires ‘some minimal level of
    objective justification’ for the stop.” Hamal v. State, 
    390 S.W.3d 302
    , 306 (Tex. Crim. App. 2012)
    (quoting Foster v. State, 
    326 S.W.3d 609
    , 614 (Tex. Crim. App. 2010)). The majority seems to
    demand more, seemingly the facts necessary for probable cause. If the issue was one of probable
    cause, I would agree with the majority that the officer had insufficient information. Probable cause
    exists when an officer has reasonably trustworthy information sufficient to warrant the belief that
    a particular person has committed or is committing a crime. Guzman v. State, 
    955 S.W.3d 85
    , 87
    (Tex. Crim. App. 1997). However, probable cause is a heightened standard, and reasonable
    suspicion may be established on less than what the law requires to establish probable cause.
    
    Derichsweiler, 348 S.W.3d at 916
    ; Chapnick v. State, 
    25 S.W.3d 875
    , 877 (Tex. App.—Houston
    [14th Dist.] 2000, pet. ref’d) (holding that after establishing reasonable suspicion for traffic stop,
    additional facts were required to establish probable cause necessary to arrest defendant for DWI).
    As noted above, in Derichsweiler, the Court of Criminal Appeals held reasonable suspicion
    exists so as to permit an officer to detain a suspect for investigative purposes if he has specific
    facts that when combined with rational inferences from those facts would lead him to believe the
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    Dissenting Opinion                                                                     04-13-00701-CR
    detainee has engaged or will soon engage in criminal 
    activity. 348 S.W.3d at 914
    . Moreover,
    reasonable suspicion does not require that the officer be in possession of articulable facts that
    imbue him with a certainty that a crime has been or will be committed; rather, he need only have
    sufficient articulable facts to support a reasonable belief that activity out of the ordinary is
    occurring or has occurred, that the person detained is connected to the activity, and that the activity
    is related to crime. 
    Garcia, 25 S.W.3d at 912
    . And, as is particularly relevant to this case, the
    Court of Criminal Appeals has held that reasonable suspicion does not necessarily require that the
    information relied upon by the officer lead “inexorably to the conclusion that a particular . . .
    offense” has been committed or is about to be committed. 
    Derichsweiler, 348 S.W.3d at 917
    . It
    is enough to establish the lesser standard of reasonable suspicion if the officer has information that
    supports more than a hunch that suggests something of an apparently criminal nature is going on.
    
    Id. Here, the
    officer knew: (1) the city had an ordinance that prohibited those without a permit
    from selling goods or services from a vehicle; (2) an individual or individuals were attempting to
    sell something from the trunk of a gray, four-door Grand Am, possible license plate number
    CNBL621; (3) the sellers left the property where they were selling goods when confronted and
    asked to leave; and (4) as he approached the tipster’s location, he saw a gray, Pontiac Grand Am
    with license plate number CN8BL621 coming from the direction of the tipster’s location. When
    the totality of the circumstances are considered objectively, the officer could have rationally
    inferred Pineda and her companions were selling goods from the vehicle without a permit in
    violation of the city ordinance. It is not an irrational leap to believe one engaging in criminal
    activity would stop the criminal activity and leave the location when confronted and asked to leave.
    The officer could have reasoned quite rationally that if Pineda and her companions had a permit,
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    Dissenting Opinion                                                                     04-13-00701-CR
    i.e., were not engaging in criminal activity, they would not have immediately vacated the premises
    when confronted. If they were within their legal rights, why leave? Thus, based on the totality of
    the circumstances, I believe the officer had reasonable suspicion to stop and detain Pineda and her
    companions for investigative purposes.
    Accordingly, because the officer had reasonable suspicion to stop and detain Pineda and
    her companions for investigatory purposes, based on the articulable facts and rational inferences
    from those facts, I would hold the trial court did not abuse its discretion in denying Pineda’s motion
    to suppress and would affirm the judgment.
    Marialyn Barnard, Justice
    Publish
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Document Info

Docket Number: 04-13-00701-CR

Filed Date: 8/13/2014

Precedential Status: Precedential

Modified Date: 10/16/2015