Glenn v. State , 1984 Tex. App. LEXIS 5652 ( 1984 )

OPINION

ROBERTSON, Justice.

A jury found appellant guilty of unlawfully carrying a handgun and set punishr ment at confinement for one year and a fine of two thousand dollars. Appellant raises four grounds of error all of which relate to the search and seizure of the handgun. We affirm.

During a hearing’ on appellant’s motion to suppress the following facts were developed. Two plain clothes police officers were patrolling a residential area of Galveston in an unmarked police vehicle. At approximately 11:00 a.m. they observed appellant riding towards them on a bicycle. As they came abreast of each other the officers attention was directed to appellant by the manner in which he “almost fell off the bicycle trying to get a look inside our unit.” Officer Lopez, the driver, continued to watch through his rear view mirror as the appellant proceeded down the street. He became more interested in appellant as he observed appellant looking back over his shoulder at the officers and “almost falling off the bicycle again.” The second officer, Roberts, told Lopez that he knew appellant “to have a record for burglary.” Lopez testified “at that particular time of the year, we were having a great deal of [residential] burglaries.” Becoming even more suspicious, Lopez applied his brakes to turn around and when he did, appellant “put the bicycle in high gear and turned off of Avenue R onto 34th Street and headed south on 34th Street.” While the officers were attempting to catch up with appellant, he turned onto Avenue R and one-half and as he did so the officers “observed a pocket [police] scanner sticking out from underneath the bottom of his jacket ... on his right hip.” Knowing that there had been a number of residential daytime burglaries in which the burglars used a bicycle and “pocket scanners to monitor police calls so they would know when the police were being dispatched”, the officers decided to investigate. They pulled in front of appellant and stopped him. Officer Lopez testified that appellant appeared to be “very nervous” and “[w]e were trying to get him to keep his hands in sight. He was fidgeting, trying to get off the bicycle quickly, and it appeared to me he was trying to flee from us on foot.” Lopez testified that he then placed him against the car and “for my own protection and Roberts’ protection, I searched him for weapons, patted him down” and found on his left hip a Star .380 pistol, “fully loaded, cocked and locked, ready to fire.” Appellant testified on the motion to suppress that he was fleeing because he thought they were a couple of “punks” rather than police officers.

In his first, third and fourth grounds of error appellant contends the evidence was obtained as a result of an unlawful search. We disagree. It is well established that circumstances short of probable cause for an arrest may justify temporary detention for the purpose of investigation. In United States v. Cortez, 449 U.S. 411, 418-419, 101 S.Ct. 690, 695-696, 66 L.Ed.2d 621 (1981), the Supreme Court aptly stated:

Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articulate reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances— the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity, (citations omitted).

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted do to the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood to those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.

When we apply this test to the “whole picture” as seen by the officers we believe they had a “particularized and objective basis” for temporarily detaining appellant for the purpose of investigation. Having lawfully stopped appellant for investigation, the limited “pat down” search for weapons was authorized. Wood v. State, 515 S.W.2d 300 (Tex.Crim.App.1974). Appellant’s first, third and fourth grounds are overruled.

In his second ground appellant contends the court erred in failing to charge the jury “relating to the issue of search and seizure.” Again, we disagree. Appellant did not testify before the jury and there was no disputed issue for the jury to resolve. The question was one of law for the court to determine. This ground is overruled.

The judgment is affirmed.