




Affirmed and Opinion filed November 7, 2006







Affirmed and Opinion filed November 7, 2006.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NOS. 14-05-00659-CV
& 14-05-00660-CV
____________
 
In the Matter of J.D.B., A Minor
Child
 

 
On Appeal from the 314th
District Court
Harris County, Texas
Trial Court Cause Nos. 04-10243J
& 04-07279J
 

 
O P I N I O N




While serving a one year probated sentence for aggravated
assault with a deadly weapon, J.D.B., a juvenile, was charged with unauthorized
use of a motor vehicle.  J.D.B sought to suppress evidence on the ground that
the arresting officer did not have reasonable suspicion to stop his vehicle or
any probable cause for his arrest.  Thus, he claimed any resulting statements
or evidence found or occurring after the initial detention were tainted and inadmissible. 
The trial court denied the motions to suppress.  Thereafter, J.D.B stipulated
to the evidence and entered a plea of guilty to the charge of unauthorized use
of a motor vehicle.  The conviction resulted in J.D.B. also being charged with
violation of Rule 4 of his probation.  The trial court entered judgment in each
case and committed J.D.B. to the Texas Youth Commission.  Tex. Fam. Code Ann. ' 54.04 (Vernon
Supp. 2006).  In two issues, J.D.B. contends the trial court erred in denying
his motions to suppress because: (1) the police officers did not have
reasonable suspicion for an investigative detention of J.D.B., and  (2) the
officers did not have probable cause to arrest.  We affirm.
The Baytown Police Department received a suspicious
activity call from Lois Linder, a resident of a trailer park.  She reported
that two white males, driving a white pickup truck, were parked behind her
neighbor=s trailer and were
in the process of removing the license plate of the truck and replacing it with
a different one.  Officer Currie was dispatched to investigate the incident. 
The dispatcher also instructed Officer Almendarez to join him as backup.  En
route, Currie passed a white truck with two white males, matching the
descriptions of the truck and the occupants, coming from the area of the
trailer park.  Currie instructed Almendarez to follow the truck while he proceeded
to the trailer park to ascertain whether the truck was still on the premises. 
Upon being told by Linder that the truck had just left the trailer park,
Currie  notified Almendarez.  Officer Almendarez then stopped the truck.
          J.D.B.
was driving the truck.  When Almendarez asked him for his driver=s license and
insurance, he said Awhat.@  The officer
repeated his question and J.D.B. said he did not have anyChe was simply
going to get gas.  Almendarez then asked J.D.B to whom the truck belonged and
J.D. B. again said Awhat.@  The officer
repeated the question and J.D.B. said it was his friend=s father=s truck.  When
Almendarez asked for the identity of the friend, J.D.B. again said Awhat.@  At this point,
Almendarez believed J.D.B. was being evasive in answering the questions and
suspected he was driving the white truck seen by Linder.  Officer Almendarez
requested that J.D.B. exit the truck.  Almendarez then handcuffed J.D.B. and
stood with him at the back of the truck to wait for Officer Currie.  The
passenger remained in the truck.
Officer Currie joined Almendarez while a third officer
brought Linder to the scene.  Linder positively identified J.D.B., his
passenger, and the truck as those she had seen in the trailer park.  After
running the plates, it was determined that the current plates were from a
stolen vehicle, and the white truck was also stolen.




           In his first
issue, J.D.B. contends Officer Almendarez did not have reasonable suspicion to
detain him.  An investigative detention must be based on reasonable suspicion
in order for the officer to lawfully seize a person.  Davis v. State,
947 S.W.2d 240, 244 (Tex. Crim. App. 1997).  In other words, the officer must
have a reasonable suspicion that the person detained actually is, has been, or
soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d
33, 35B38 (Tex. Crim. App. 1997). 
Reasonable suspicion exists when there is Asomething out of the ordinary
occurring and some indication that the unusual activity is related to crime.@  Viveros v. State, 828 S.W.2d
2, 4 (Tex. Crim. App. 1992).  The factual basis for stopping a vehicle need not
arise from the officer=s personal observation, but may be supplied by information
acquired from another person.  Brother v. State, 166 S.W.3d 255, 257
(Tex. Crim. App. 2005).  AWhen police receive information from a private citizen whose
only contact with the police is a result of having witnessed a criminal act
committed by another, the credibility and reliability of the information is
inherent.@  Cornejo v. State, 917 S.W.2d 480, 483 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d).
In
evaluating the requirements of reasonable suspicion, law enforcement officers
are permitted to make certain common-sense conclusions about human behavior.  United
States v. Sokolow, 490 U.S. 1, 8 (1989).  AMuch as a >bright line= rule would be desirable, in
evaluating whether an investigative detention is unreasonable, common sense and
ordinary human experience must govern over rigid criteria.@  United States v. Sharpe, 470
U.S. 675, 685 (1985).  All fact situations are different, therefore, a fact
specific, case by case analysis is required.  Klare v. State, 76 S.W.3d
68, 73 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).




To
determine whether the police had reasonable suspicion to stop and detain
J.D.B., we look at the facts the officers knew at the time.  J.D.B. contends
the officers= only information was a description of Aa white pickup truck containing two
white males.@  However, this statement ignores the officers= knowledge of other specific facts as
shown by their testimonies.  When Linder initially reported Asuspicious activity@ around her neighbor=s trailer, she informed the police
that the white pickup truck did not belong to her neighbors.  She further
reported that she had never seen the men before and that they did not live in
the trailer park, yet they were removing the license plates from the truck and
replacing them with different plates.
As
Officer Currie neared the trailer park, he observed a white pickup truck with
two white males traveling west, away from the trailer park.  While Almendarez
followed the truck, Currie learned from Linder that the truck had just left Aheading westbound on Massey
Thompkins.@  We find, under the facts and circumstances of this case, that the
police had reasonable suspicion to detain J.D.B. to maintain the status quo
while they conducted a more thorough investigation.[1]




 J.D.B.
contends that the activity of changing license plates on a vehicle may be
consistent with innocent activity.  However, while vehicle owners are required
to replace their license plates from time to time, they rarely have a
legitimate need to replace the plates with Adifferent@ plates, i.e., plates containing a
different license plate number.  Moreover, the activity is made more suspicious
in that it was conducted in the cover of a trailer park where J.D.B. did not
live.  Further, the existence of possible innocent explanations does not
deprive a police officer of the ability to also possess reasonable suspicion.[2] 
Woods, 956 S.W.2d at 37.  When a detention is based upon the conduct of
the suspect, the conduct itself need not be unlawful or in some sense
inconsistent with innocence.  Id. at 38 (citing Sokolow, 490 U.S.
at 7).  The Texas Court of Criminal Appeals has recognized there may be
instances when a person=s conduct appears purely innocent, yet when viewed in light
of the totality of the circumstances these same actions give rise to reasonable
suspicion.  Id.  In fact, the court stated an investigative detention
serves Ato resolve that very ambiguity and
establish whether the activity is in fact legal or illegal.@  Id. at 37.  The detention
allows the officer to determine quickly whether to hold the suspect for charges
or allow him to go about his business.  Id.  Accordingly, J.D.B.=s first issue is overruled.
In his
second issue, J.D.B. contends the officers had no probable cause for an
arrest.  Specifically, J.D.B. alleges that he was arrested when Almendarez
handcuffed himCwell before the police discovered that the truck was, in fact, stolen. 
However, handcuffing is not always the equivalent of an arrest.  Rhodes v.
State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997).  Handcuffing a suspect
during a temporary investigative detention can be reasonable under the
circumstances and not amount to an arrest.  Id.  When facts demonstrate
reasonable suspicion escalating to probable cause for an arrest, handcuffing a
suspect for further investigation can be justified.  Mays v. State, 726
S.W.2d 937, 118 (Tex. Crim. App.  1986).   The officer=s testimony and other facts and
circumstances of the detention are factors to be considered in determining
whether an arrest has taken place.  Amores v. State, 816 S.W.2d 407, 412
(Tex. Crim. App. 1991).
Upon
questioning J.D.B., Officer Almendarez believed he had the correct truck  as
described by Linder.  With no other officer present, and having two detainees,
Almendarez removed J.D.B. from the truck and handcuffed him.  We find Officer
Almendarez=s actions to be a prudent response to the circumstances that were
presented to him.[3]




Viewing
the evidence in a light most favorable to the trial court=s ruling, while reviewing de novo the
lower court=s application of the relevant Fourth Amendment standards, we find the
investigative detention continued and an arrest did not occur after Officer
Almendarez handcuffed J.D.B.  We also find the investigative detention
continued through the identification by Linder, and the running of the license
plates by the officers.  Accordingly, J.D.B.=s issue is overruled.
In this
consolidated appeal, J.D.B. contends his probation should not have been revoked
because his conviction on the charge of unauthorized use of a motor vehicle was
predicated on evidence unlawfully admitted when his motion to suppress was
denied.  Because we have affirmed the trial court=s denial of the motions to suppress,
we find the trial court=s judgment and commitment not to be erroneous and overrule
J.D.B.=s contention.  
The
judgment of the trial court is affirmed in each cause.
 
 
 
/s/      J. Harvey Hudson
Justice
 
 
 
Judgment rendered
and Opinion filed November 7, 2006.
Panel consists of
Justices Anderson, Hudson, and Guzman.




[1]    J.D.B. argues the lack of testimony regarding
suspicious time of day, level of criminal activity in the area, or suspects
being Aknown criminals@
negates reasonable suspicion.  J.D.B. cites Klare v. State as support. 
76 S.W.3d at 76B77.  However, Klare states these are only
factors, and Acourts generally require an additional fact or facts particular
to the suspect=s behavior
to justify a suspicion of criminal activity.@   Id.
at 75 (emphasis added).   To prove the point, Klare cites to cases where
courts have determined what suspect behavior constitutes the additional fact
needed to justify stopping the vehicle.  Id. (citing Walker v. State,
555 S.W.2d 454 (Tex. Crim. App. 1977) (occupants of vehicle matched description
of police radio broadcast)).  


[2]  In Woods, the Texas Court of Criminal Appeals
specifically rejects the Aas consistent with innocent activity as with criminal
activity@ construct for determining reasonable suspicion.  956
S.W.2d at 38.  The court overruled the cases holding Awhen the facts are as consistent with innocent
activity as with criminal activity, a detention based on those facts is unlawful,@ and adopted the Atotality
of the circumstances@ approach as outlined here.  Id. at 34B38.


[3]  AA police
officer may briefly stop a suspicious individual in order to determine his
identity or to maintain his status quo momentarily while obtaining more
information.@  Mays, 726 S.W.2d at 944.  (quoting Geary
v. State, 685 S.W.2d 326, 327B28
(Tex. Crim. App. 1985)).  In Mays, a single police officer who responded
to a citizen=s phone call of a possible burglary, handcuffed and
detained two men.  Other police officers arrived, and the initial officer on
the scene questioned the citizen-informant.  726 S.W.2d at 944.  After the
citizen positively identified the detainees, officers escorted the two
handcuffed men to patrol cars.  Id. at 943.  They were asked for
identification and their licenses were run for outstanding warrants.  Id. 
When the officers determined the car the suspects arrived in was stolen, they
arrested the detainees.  Id. at 944.  The detention lasted about fifteen
minutes from the initial handcuffing until the detainees were arrested.  Id. 
The Texas Court of Criminal Appeals found the investigative detention to be
from the initial detention by the officer, through the handcuffing, and
continuing after the placement of the detainees at the patrol cars.  Id. 
The court stated the evasiveness and misinformation given by the detainees
warranted the continuing detention.  Id.  The court concluded the facts Aclearly demonstrate reasonable suspicion rapidly
escalating to probable cause to arrest.@  Id.  



