
Opinion issued October 28, 2004











In The
Court of Appeals
For The
First District of Texas




NO. 01-03-00192-CR




PATRICK WAYNE GREGORY, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 1143827




O P I N I O N
          Patrick Wayne Gregory, appellant, was charged by information with unlawful
possession of marihuana in a useable quantity under two ounces.  The trial court
denied appellant’s motion to suppress the marihuana, which was seized during a pat-down search of appellant.  The jury found appellant guilty, and the court assessed
appellant’s punishment at confinement for 30 days.  Appellant appeals the court’s
ruling on the motion to suppress.  We affirm. 
BACKGROUND
          Deputy Lee Martin and Deputy Willis, in separate vehicles, were on special
assignment to patrol an area that was considered to be a high crime area.  At about
midnight, Martin noticed appellant, another man, and a woman standing by the rear
of an illegally parked vehicle in a cul-de-sac.  As Martin pulled up beside the vehicle,
the three people, who were on the opposite side of the car, walked toward the front
of the vehicle.  Martin, believing that the three people were trying to conceal
something, got out of his patrol car and approached the car and the three individuals
from the front, while Willis approached from the rear. Martin asked appellant what
he was doing and said he was going to pat him down for weapons.  When Martin
reached the back pocket of appellant’s pants, he felt a plastic bag filled with what he
believed to be marihuana.  Martin asked appellant what he had in his back pocket and
appellant replied that it was marihuana.  Martin then asked appellant if he had any
more marihuana, and appellant replied that he had some marihuana inside his right
sock.  Martin arrested appellant for possession of marihuana.  
          Martin filed a motion to suppress the marihuana.  The trial court denied
appellant’s motion to suppress and made findings of fact, which included the
following: 
          •        The area in which the incident occurred was a high crime area;
 
          •        The incident occurred after midnight;
 
          •        The three individuals’ actions led the officer to believe they might be
concealing something;
 
          •        The officer patted down appellant for the officer’s safety;
 
          •        The officer, based on his experience as a police officer, formed a
reasonable belief that in that area and at that time of night, his safety was
paramount. 
 
          •        Under the totality of the circumstances, the warrantless search was
reasonable.

                                                   DISCUSSION
          In his sole point of error, appellant contends that the trial court erred in ruling
that the marihuana found on appellant’s person was admissible because the police
officer lacked reasonable, articulable suspicion to believe that appellant was armed
and dangerous.
I.       Standard of Review
          In reviewing the trial court’s ruling on the motion to suppress, we give almost 
total deference to the trial court’s determination of historical facts, while we conduct
a de novo review of the trial court’s application of the law to those facts.  Dawson v.
State, 106 S.W.3d 388, 391 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  Further,
upon  review of a trial court’s ruling on a motion to suppress, an appellate court does
not engage in its own factual review, but determines only whether the record supports
the trial court’s fact findings.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990).  If the trial court’s fact findings are supported by the record, an appellate
court may not disturb the findings unless the trial court abused its discretion.  Cantu
v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).   
II.      Validity of the Terry Search
          It is well established that “searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established and well-defined
exceptions . . . .”  Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022,
2032 (1971).  One such well-defined exception is a Terry search.  A police officer
may conduct a warrantless search if  
[he] observes unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently
dangerous, . . . and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others’ safety . . . . 

Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968).  
          “The officer must be able to articulate more than an inchoate and
unparticularized suspicion or hunch of criminal activity.”  Illinois v. Wardlow, 528
U.S. 119, 123-24, 120 S. Ct. 673, 676 (2000) (citation omitted).  “An individual’s
presence in an area of expected criminal activity, standing alone, is not enough to
support a reasonable, particularized suspicion that the person is committing a crime.” 
Id.  However, police officers are not required to ignore the environment or location
in which they patrol to determine whether or not a particular circumstance warrants
further investigation.  Id.  “Thus, the reasonable suspicion determination must be
based on commonsense judgments and inferences about human behavior.”  Id. 528
U.S. at 119, 120 S. Ct. at 674.  We make our determination of the validity of a Terry
search by “an objective assessment of the officer’s actions in light of the facts and
circumstances confronting him at the time, and not on the officer’s actual state of
mind” at the time of the search.  Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.
Ct. 2778, 2783 (1985) (internal citations omitted).  
          Appellant argues that, although Martin testified that he searched appellant “for
my safety,” Martin also testified that he had no reason for believing that appellant was
armed or dangerous and that the search was routine.  Appellant asks us to look to
Martin’s subjective state of mind rather than to make an objective assessment of
Martin’s actions in light of the surrounding facts and circumstances.  
          Martin’s statement that he had no reason for believing that appellant was
carrying a weapon is not controlling.  See O’Hara v. State, 27 S.W.3d 548, 554 (Tex.
Crim. App. 2000) (stating that under objective analysis, it did not matter whether
officer testified that he was not afraid).  We must determine whether the record
supports the trial court’s findings of fact and review de novo the trial court’s
application of the law to those facts.  Dawson, 106 S.W.3d at 391.  We look at all the
surrounding circumstances in order to make an objective determination of whether
a reasonable person in Martin’s position would have been justified in conducting a
pat-down search of appellant.  O’Hara, 27 S.W.3d at 554. 
          It is uncontested that Martin encountered appellant and two other individuals
in a high crime area after midnight.  Martin testified that, when the three moved from
the rear to the front of the automobile, he momentarily lost sight of them and thought
that they might be hiding something.  Martin further testified that he performed the
pat-down search for his safety.  These facts support the findings of the trial court.  We
conclude that there were sufficient specific and articulable facts in this case to
warrant a person of reasonable caution in Martin’s position to believe that the pat-down search was necessary.  Therefore, the trial court did not abuse its discretion in
denying appellant’s motion to suppress and in admitting the marihuana into evidence. 
          We overrule appellant’s sole point of error and affirm the judgment.  
 
 
                                                             Sam Nuchia
                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Publish.  Tex. R. App. P. 47.2(b). 
