Kimberly M. Jones v. State

Opinion issued March 20, 2008

Opinion issued March 20, 2008

In The

Court of Appeals

For The

First District of Texas

NO.   01-07-00240-CR

KIMBERLY M. JONES, Appellant

V.

STATE OF TEXAS, Appellee

 

On Appeal from the County Criminal Court at Law No. 8

Harris County, Texas

Trial Court Cause No.  1398966

MEMORANDUM OPINION

After the trial court denied her motion to suppress, appellant, Kimberly M. Jones, pleaded no contest to possession of a controlled substance.  See Tex. Health & Safety Code Ann. § 481.117(c) (Vernon 2003).  The trial court suspended Jones’s driver’s license for six months, and sentenced Jones to serve three days in jail and pay a $250 fine.  In her sole issue on appeal, Jones challenges the trial court’s denial of her motion to suppress.  Finding no error, we affirm.

Background

          Close to midnight one Sunday evening in August, Deputy Fortenberry of the Harris County Sheriff’s Department was patrolling near a high-crime area known as “The Bridges.”  While passing a closed car repair shop, Fortenberry noticed a car with its headlights off in the parking lot and two individuals sitting in the front seat. Believing the car to be suspicious, Fortenberry parked his patrol car nearby and walked toward the car.  The driver saw Fortenberry approaching, and immediately tried to drive away.  When the driver paused at the edge of the lot before turning into traffic, Fortenberry caught up to the car, drew his gun, and ordered the driver to step out. 

According to department policy, Fortenberry handcuffed the driver, moved him to the rear of the car, and asked him whether he was carrying any weapons or narcotics.  The driver responded, “I have bars.”  Fortenberry understood that the slang term “bars” referred to either Alprazolam or Xanax, both of which are controlled substances.  Following this exchange, Fortenberry moved the driver to the back seat of the patrol car. 

          While Fortenberry was questioning the driver at the rear of the car, he noticed Jones, who was sitting in the front passenger seat, trying to reach into her purse.  Concerned that Jones might be retrieving a weapon, Fortenberry instructed her to stop reaching for her purse.  Jones stopped briefly, but then reached back toward her purse.  Fortenberry again cautioned her to keep her hands away from her purse.  As before, Jones initially complied, but then resumed reaching for her purse.  After this happened several times, Fortenberry placed Jones in handcuffs and seated her in the back of the patrol car of another officer who had arrived on the scene.  After Jones was secured, Fortenberry went back to search her purse.  In a small side pocket, Fortenberry found two white pills that appeared to be either Alprazolam or Xanax.  Based on this discovery, Jones was arrested and charged with possession of a controlled substance.

          Before trial, Jones moved to suppress the evidence found in her purse, claiming that its discovery was the fruit of an illegal detention.  After the trial court denied the motion, Jones pleaded no contest to the charge and was sentenced.  The trial court certified Jones’s right to appeal its ruling on the motion to suppress, and Jones gave notice of appeal.

Discussion

          In appealing the denial of her motion to suppress, Jones contends that the police lacked reasonable suspicion to stop the car in which she as a passenger.  Consequently, Jones claims, the stop violated her rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 19 of the Texas Constitution, as well as Texas statute.  According to Jones, because the discovery of the pills stemmed from that illegal stop, the evidence should have been suppressed. 

          Standard of Review

          In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State,  955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997).  We defer to the trial court’s determination of historical facts, and review de novo the trial court’s application of the law of search and seizure to those facts.  Id.; Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  If an issue turns on the credibility of a witness, we give greater deference to the trial court’s ruling, as it stands in a better position to evaluate the credibility of witnesses before it.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). 

          Validity of the Stop

          Generally, three categories of interaction may occur between police officers and civilians:  (1) encounters; (2) investigative detentions; and (3) arrests.  State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  An encounter does not constitute a seizure of the person, but a detention or an arrest does.  Pennywell, 127 S.W.3d at 152. 

A police officer is entitled to stop and briefly detain a person for investigative purposes only when the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968).[1]   The officer’s perception of circumstances rises to the level of a reasonable suspicion when the officer has “specific, articulable facts at the time of detention which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or soon will be engaged in criminal activity.”  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).  

A reasonable suspicion is more than a mere hunch or suspicion; a person may not be detained unless the circumstances objectively support a reasonable suspicion of criminal activity.  Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).  Whether a temporary investigative detention is reasonable depends on the totality of the circumstances.  Woods, 956 S.W.2d at 38. 

The parties in this case agree that Fortenberry initiated an investigative detention when he pulled out his gun and stopped the car.  Their disagreement concerns whether Fortenberry had a reasonable suspicion, supported by articulable facts, to do so.  Jones contends that Fortenberry was not entitled to detain her because he did not have a reasonable suspicion that criminal activity was underway.  As support for this contention, Jones relies on Klare v. State, 76 S.W.3d 68, 72–73 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  The officer in Klare relied on the time of day, the fact that the business was closed, and knowledge of past burglaries to support his reasonable suspicion to stop the vehicle.  In reversing the trial court’s denial of the appellant’s motion to suppress, the court of appeals reviewed each factor individually and concluded that, to justify the stop, the officer needed “an additional fact or facts particular to the suspect’s behavior.”  Id. at 75. 

In describing the circumstances that led to the stop in this case, Fortenberry, like the officer in Klare, mentioned the lateness of the hour, the fact that the business was closed, and the high incidence of crime in the vicinity in articulating the grounds that led to his decision to stop the car. Unlike the officer in Klare, however, Fortenberry additionally noted that the driver’s attempt to flee as he approached the car raised his suspicion and led to the stop.  Although flight alone may not justify a stop, it does constitute a valid factor in determining whether an officer had reasonable suspicion to detain an individual.  See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994) (stating that mere flight does not justify investigative detention); Washington v. State, 660 S.W.2d 533, 535 (Tex. Crim. App. 1983) (“Flight from a law enforcement officer ‘can provide in appropriate circumstances the key ingredient justifying the decision of a law enforcement officer to take action.’”) (quoting U.S. v. Vasquez, 534 F.2d 1142, 1145 (5th Cir. 1976)); Salazar v. State, 893 S.W.2d 138, 141 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d, untimely filed) (noting that flight from show of authority is factor in support of finding of reasonable suspicion that person is involved in criminal activity).   Under the totality of the circumstances here, the trial court could have reasonably concluded that Deputy Fortenberry had reasonable suspicion to support the investigative detention.  Accordingly, we hold that the trial court did not err in denying Jones’s motion to suppress. 

          We also reject Jones’s assertion that Fortenberry could not validly search her purse incident to the stop.  Considering Jones’s persistent efforts to reach into her purse—even after Fortenberry repeatedly instructed her to stop—Fortenberry had grounds to reasonably suspect that Jones had a weapon in her purse.  He thus was entitled to examine the purse’s contents before deciding whether to reunite Jones with her purse and send her on her way or continue to detain her.  In challenging the reasonableness of Fortenberry’s search of the purse, Jones also points to Fortenberry’s testimony that he considered the side pocket where he found the pills to be too small to have contained a weapon.  Fortenberry further explained, however, that the pills were in plain view in the open side pocket when he opened the purse.  Because Fortenberry was validly searching the purse for weapons when he encountered the pills in plain view, their seizure did not violate Jones’s constitutional or statutory rights.  See Horton v. California, 496 U.S. 128, 136–37, 110 S. Ct. 2301, 2308 (1990); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).    

Conclusion

          We conclude that the trial court did not err in denying the motion to suppress. Accordingly, we affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish.  See Tex. R. App. P. 47.2(b).

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[1] Texas courts also follow Terry in determining the legality of an investigative detention under the state constitution.  See Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992).