Ozuna v. State

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana. Upon his plea of not guilty, appellant was convicted by the court who assessed punishment at six years’ confinement.

Appellant contends that the court erred in overruling his motion to suppress certain evidence which he alleges was obtained as a result of an unlawful search and seizure. We agree and reverse the judgment of conviction.

On January 6, 1976, at approximately 12:45 a. m., Jourdanton police officers Bradshaw and Soward were monitoring citizen’s band radio channel 19 as they were parked in their patrol car on State Highway 16 which runs through the city. The officers heard a voice on the radio exclaim “Look out, look out, there is smoke.” They, then observed a 1974 green Pontiac approaching from the rear. Almost immediately thereafter the officers heard a voice on the radio for the second time¹ instructing a red Ford to “Cut off at the red light.” Bradshaw signaled the green Pontiac over to the side of the road and observed that it was equipped with a citizen’s band radio. The driver of the vehicle, Garza, was permitted to proceed after the officers warned him about a vehicle equipment violation. The officers then began to patrol the immediate area in an effort to find the red Ford that was previously instructed by the unknown voice on the radio to “Cut off at the red light.”

After patrolling the area for several minutes, the officers observed near State Highway 16 a red and white 1970 Ford automobile driven by the appellant. The officers stopped the vehicle and observed that it too was equipped with a citizen’s band radio. As the officers were questioning the appellant outside his vehicle, Bradshaw detected the odor of marihuana. A search of the vehicle’s trunk yielded approximately 285 pounds of marihuana.

Bradshaw testified that the particular citizen’s band radio he was monitoring could receive radio signals within a radius of several miles and that under certain atmospheric conditions a radio signal could “skip” and thus be transmitted greater distances. Bradshaw also testified that he was unable to determine the identity and exact location of either the sender or receiver of the radio messages in question. Bradshaw further testified on cross-examination as follows:

“Q Why were you looking for the red Ford?

Because as to the fact of why he was diverted around us.

Okay. And, this curiosity was the only reason you were looking for him? o*

Yes, sir. <

And at the time that you heard that there was, you heard or your partner told you, about a transmission to turn off at the red light. <y

Yes, sir.

At that time, had you decided already that you were going to find that Ford? o*

Well, we were going to look for it. There is no definite saying, T am going to find it.’

Okay. <y

But, my partner told me, he said, ‘He told him to turn off at the red light, that he was getting stopped.’

Okay. o*

You know, I was curious as to the fact why anybody would have somebody else turn off if they had nothing to hide. <

Okay. So, at that particular time had you made up your mind to stop the vehicle, the red Ford, whenever you saw it? ,©

Yes sir. I told my partner, ‘Well, let’s see if we can find the red Ford and see why he turned off.’

You were going to stop the vehicle and question him about that? «©

Yes sir.

⅜ ‡ * ⅜ jft ‡

“Q Okay. Well, at the time that you stopped Mr. Ozuna, he showed you a valid driver’s license. At that time was Mr. Ozuna free to travel on?

“A No sir. He was going to be detained.

“Q And why was he going to be detained at that particular moment?

“A Well, just like I say, I was curious as to the fact of why he was diverted around us.

“Q But you, at that time, you were not sure whether this was the same person that Mr. Garza or who ever that transmission was related to, were you? You suspected him.

“A In my own mind?

“Q Yes sir.

“A In my own mind there was no doubt.

“Q But there was no way that you could tell that that particular transmission came from this particular car.

“A No sir, I can’t prove who was holding each radio.

* * * * * *

“Q When you asked Mr. Ozuna to step out of his vehicle, at that time he had committed no traffic violation that you know of.

“A No sir.

“Q And you were just kind of curious to find out what was going on.

“A Yes sir.”

It is well settled that a temporary detention must be based on specific, articulable facts which, taken together with the rational inferences from those facts, reasonably warrant further detention of the individual while more information is obtained; the inarticulate hunch, suspicion or good faith of a police officer will not warrant such a temporary detention. Faulk v. State, 574 S.W.2d 764 (Tex.Cr.App.1978); Cortinas v. State, 571 S.W.2d 932 (Tex.Cr.App.1978). In Faulk v. State, supra, we quoted with approval the following language of Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977):

“. . . While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. . . . There must be reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. [Citations omitted.] Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.”

In the present case, it was not established that the appellant was either the sending or receiving party of the radio messages which aroused the curiosity of the officers and caused them to temporarily detain the appellant for investigation. Even if we could attribute the radio messages to the appellant or Garza as appellant’s accomplice, we do not regard these utterances (“Look out, there is smoke” and “Cut off at the red light”), standing alone, as facts sufficient to make reasonable the investigative stop of the appellant. These events are as consistent with innocent activity as with criminal activity, and therefore will not justify an investigative stop. Faulk v. State, supra; Cortinas v. State, supra.

Moreover, Bradshaw himself testified that the only reason he stopped the appellant for investigation was to satisfy his curiosity as to why the appellant was instructed to “Cut off at the red light.” Thus, Bradshaw was unable to point to specific articulable facts which, taken together with the rational inferences therefrom, would reasonably warrant him in detaining the appellant for investigation. Cortinas v. State, supra. We conclude, therefore, that appellant’s initial detention was based on mere suspicion and that the court erred by failing to grant appellant’s motion to suppress the evidence seized as a result of this unlawful investigative stop.

The judgment is reversed and remanded.

Before the court en banc.

1 . The evidence does not show that this was the same voice that the officers had previously heard.