                                    NO. 07-03-0400-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                    MAY 19, 2004
                           ______________________________

                                     TOMMY TUCKER,

                                                          Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                   NO. 46,391-B; HON. JOHN B. BOARD, PRESIDING
                         _______________________________

                                      Opinion
                         ________________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Tommy Lee Tucker (appellant) appeals his conviction for possession of a controlled

substance. Via a single issue, appellant contends that the trial court erred by failing to

grant his motion to suppress. Appellant contended below and here that the officer who

stopped him for a traffic violation lacked justification to frisk the outside of a fanny pack he

wore at the time. For the following reasons, we agree and reverse.
                                    Standard of Review

       The standard of review applicable is one of abused discretion, as described in

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), Benitez v. State, 5 S.W.3d

915, 921 (Tex. App.–Amarillo 1999, pet. ref’d), and LaSalle v. State, 923 S.W.2d 819, 823

(Tex. App.–Amarillo 1996, pet. ref’d). We refer the litigants to those cases in lieu of

discussing them here. Furthermore, while the trial court executed findings of fact, we have

a complete record of the suppression hearing before us. Thus, we have the authority to

assess whether any evidence appeared of record to support the findings issued. Garcia

v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994).

       Next, it is beyond dispute that one may be temporarily detained when an officer has

specific and articulable facts that, when combined with rational inferences from those facts,

would lead the officer to reasonably suspect the detainee has engaged or is (or soon will

be) engaging in criminal activity. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.

2001); Wilson v. State, 07-02-0515-CR, 2004 Tex. App. Lexis 3454 (Tex. App.–Amarillo

April 15, 2004, no pet. h.). In other words, there must be some indication that an

unordinary activity is or has occurred, that the suspect is linked to the activity, and that the

activity relates to crime. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).

Because this standard is an objective one, the officer’s subjective intent is irrelevant.

Garcia v. State, 43 S.W.3d at 530. And, when applying the standard, we must consider

the totality of the circumstances. Id.

       Additionally, once a person is detained, an officer may frisk the detainee when he

reasonably suspects he is dealing with an armed individual. Wilson v. State, 07-02-0515-

CR, 2004 Tex. App. LEXIS 3454; Davis v. State, 61 S.W.3d 94, 97 (Tex. App.–Amarillo


                                               2
2001, no pet.); Maldonado v. State, 853 S.W.2d 746, 748 (Tex. App.–Houston [1st Dist.]

1993, no pet.) (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889

(1968)). In other words, that an officer has basis to stop because he believes criminal

activity is afoot does not ipso facto allow him to frisk the suspect for weapons. Quite the

contrary, there must also be circumstances before him which indicate the presence of

danger. This does not mean that the officer must be absolutely certain that the individual

is armed. Davis v. State, 61 S.W.3d at 97. Rather, the issue is whether a reasonably

prudent officer in the same circumstances would be warranted in believing that his safety

or the safety of others is in danger. Id.; Carmouche v. State, 10 S.W.3d 323, 329 (Tex.

Crim. App. 2000) (stating that the officer must have before him specific and articulable

facts reasonably leading him to conclude that the suspect might possess a weapon). And,

one must not forget that since the test is founded upon what the proverbial reasonable

officer would have thought, the subjective beliefs of the actual officer performing the search

are not determinative. See O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)

(stating that whether a violation of the Fourth Amendment has occurred does not turn on

the officer’s actual state of mind at the time the challenged action was taken but rather on

an objective assessment of the facts and circumstances confronting him). He may well

have believed himself in danger, but if the surrounding circumstances will not justify a

reasonably prudent officer to so conclude, then a frisk for weapons cannot be undertaken.

                                 Application of Standard

       We initially make several observations which facilitate disposition of this appeal.

First, the facts underlying the stop and search of appellant are undisputed. So, our job




                                              3
simply consists of applying the law to those undisputed facts, and we do so de novo.

Guzman v. State, supra.

       Second, appellant does not contest the legitimacy of the stop at bar. Instead, he

questions whether the officer had basis to frisk him for weapons.

       Third, though routine traffic stops constitute seizures, United States v. Valadez, 267

F.3d 395, 397 (5th Cir. 2001), they are comparable to temporary detentions, not arrests.

Id.; see Bachick v. State, 30 S.W.3d 549, 551 (Tex. App.–Fort Worth 2000, pet. ref’d)

(stating that a “routine traffic stop is a temporary investigative stop”). Thus, and contrary

to the State’s suggestion below, the mere fact that one is stopped for a traffic violation

does not alone entitle the officer to search the detainee on the basis that the search was

incident to a lawful arrest.

       Fourth, the pivotal issue before us is whether the circumstances confronting officer

Rolan justified a reasonably prudent officer to suspect that appellant was armed or carrying

a weapon before the officer frisked the outside of the fanny pack. The latter act comprised

the first search that occurred here, and if it was impermissible it matters not whether

Rolan’s subsequent removal of the item from appellant and manipulation of it quelled his

subjective concerns regarding safety. See O’Hara v. State, 27 S.W.3d at 554 (stating that

the removal of an obvious weapon from the suspect does not negate the need to frisk

since other weapons could be in the suspect’s possession and hidden from view).

       With the foregoing said, we turn to the facts and circumstances confronting Rolan.

They consisted of seeing appellant speed by on a motorcycle (thereby violating the speed




                                             4
limit) at 3:40 a.m.1 Upon the officer giving chase and activating his emergency lights,

appellant pulled over into the parking lot of a convenience store. While appellant sat

astride the vehicle wearing blue jeans, a black t-shirt with a Harley Davidson emblem on

the back, and a leather fanny pack around his waist, the officer approached and asked for

his driver’s license. Appellant complied. Then, the officer queried appellant about his

current address and the ownership of the motorcycle. To the former, appellant provided

the officer with an “alternate address, where he had also been staying.”2 To the latter,

appellant disclosed that the vehicle belonged to “Amerigo Rivera,” a friend of his who had

given him permission to use it. At one point or another, appellant also disclosed that he

had no insurance on the motorcycle.

         Throughout the time Rolan and appellant interacted (and prior to the initial search),

appellant was cooperative, according to the officer. Moreover, when asked whether

appellant appeared as if he was about to flee, or appeared to be resisting detention, or

appeared to be committing any offense other than speeding, or appeared to be about to

commit any offense, or appeared to be under the influence of any intoxicating substance,

         1
           The State insinuates that appellant was someone attempting to flee from the officer imm ediately after
the officer first c loc ke d h im . This insinuation is based upon the testimony that appellant turned his head
toward the officer’s vehicle as he passed it and acc elerated to 53 mph before the officer initiated his chase.
Yet, what th e State fails to m ention is the officer’s testim ony tha t “[i]t was dark,” that because it was dark he
did not know if appellant made actual eye contact with him, that the officer caught up with appellant as
appellant stopped for a red light, and that appellant pulled over once the officer activated his emergency lights.
The officer also conceded that there was “no indication that [appellant] was fleeing from [him ]” and that, in h is
view, appellant “was [not] su pposed to stop before [the officer] turned on [his] lights .” So, given the totality
of the circumstances perceived by Rolan at the time, the actual context of the evidence alluded to by the State,
and the officer’s own interpretation of what he perceived, the State’s hypothesis about appellant trying to flee
is que stiona ble.

         2
           In its findings of fact, the trial court sta ted that appellant “gave co nflicting statem ents as to where he
resided . . . .” Yet, the “conflicting statements” were not mentioned. Nor does the record disclose that
conflicting statem ents were m ade. W hen ask ed abou t his current address after providing the officer his
license, appellant informed the officer of another address at which he was “also” staying. Simply informing
an o fficer of an add ress at w hich one is “also ” staying doe s no t exem plify conflicting sta tem ents .

                                                           5
the officer answered “no” to each. So too did the officer deny that appellant made any

furtive gestures of any kind.3              Yet, upon spying a “large bulge” which “noticeably

protrud[ed]” from appellant’s leather fanny pack, the officer not only directed him to

interlace his fingers behind his head but also ran his “hand on the outside of the . . . pack

to feel the bulge, and see actually . . . what kind of object might be in there.”

         Aside from categorizing it as large enough to be a weapon, the officer gave no

description of the bulge.4 Nor did he state that it resembled the outline of a firearm, knife

or any other particular weapon. Eventually, he acknowledged to the trial court that he did

not know what it was. Furthermore, when asked to identify the threat he perceived, the

officer described it as “whatever he [appellant] may want to . . . can’t read the man’s mind.

You never know what they’re going to do.” So too did he 1) state that “[i]f there wasn’t a

large bulge, I probably wouldn’t have thought much about” the fanny pack and 2) concede

that a fanny pack is “not necessarily a storage place for . . . a weapon” since “you can use

it for whatever you want.”5


        3
           At oral argument, the State was asked about the record evincing furtive ges tures by app ellant. In
response, it stated that as the officer ap proached, appellant inte rlaced his fin gers behind his head. T his
purported ly suggested, to the State, that appellant had pre vious ly been involved with the criminal justice
system. However, nothing presented during the hearing suggested that appellant had a criminal record, was
believed to have had a crim inal rec ord, or ha d ever interacted with law enforcem ent personnel before this
incide nt. More im portantly, the rec ord clearly reveals that appellant interlaced his fing ers behind his head in
response to the officer’s directive to do so.

        4
          He did testify that the bulge felt hard like a metal object. However, that observation was made after
appellant con duc ted the initial frisk. And , un les s th e in itial frisk was justified, observations or evidence
obtained from the initial frisk cannot be us ed to legitim ate it. See Carver v. S tate, 746 S.W .2d 869, 872 (Tex.
App.–Houston 14 th Dis t. 19 88, pet. ref’d) (statin g that a search m ust be jus tified based on what is known to
the officer at the inception of the search not by what is discovered as a result of the search). Similarly, that
officer Rolan be lieved a ppe llant tried to deceive him by identifying the object as a cell phone and that appellant
denied Rolan the consent to search the pack (assuming of course the invocation of one’s right to be free of
unwarranted governmental intrusion can be considered against h im ) is irrelevant to our inquiry as well for they
too cam e afte r Ro lan ha d un derta ken the initial frisk.

         5
           The trial court did find that “O fficer Rolan was a ware that person’s [sic], including police officers,
frequently carry firearm s and other w eapons in ‘fanny packs.’” (Emphasis added). Yet, a review of the
officer’s testimony actua lly discloses that Rolan said “a lot of police officers carry similar fanny packs for the

                                                         6
        Unlike Torres v. State, 07-01-0401-CR, 2002 Tex. App. LEXIS 7491 (Tex.

App.–Amarillo 2002, no pet.) (not designated for publication), a case on which the State

relies, appellant was not acting nervously or making a gesture resulting in the inability of

the officer to see the detainee’s hands. Nor did the officer here say that he thought he saw

the handle of a gun protruding from the detainee’s coat pocket, unlike the situation in

Torres.

        Instead, the situation before us likens to that in Keah v. State, 508 S.W.2d 836 (Tex.

Crim. App. 1974). There, the officers witnessed a car in which Keah rode commit a traffic

violation. It was after midnight. Additionally, the vehicle stopped after the officers engaged

the emergency lights of their patrol car. At that point, Keah lowered his shoulder “‘as if to

pick something up or stick something up under the seat.’” Id. at 837. Furthermore,

appellant exited the car with his hand in his left pants pocket. “When appellant withdrew

his hand, [an officer] saw a ‘large bulge’ in the pocket.” Id. Appellant would not inform the

officers what the bulge was, though they asked him three times to identify it. Thus, one of

the policemen reached into the pocket and removed its content, which happened to be a

plastic bottle and cellophane wrapper, each containing amphetamine pills. When asked,

at a later hearing on Keah’s motion to suppress, what he thought the bulge consisted of,

the officer said, “‘I did not know whether it would be a weapon or what it would be.’” Id. at

839. When asked if he had reason to believe appellant may have been dangerous, he




sole purpose of carrying handguns.” Nowhere did he testify that anyone other than police officers did so. Nor
can we say one can reasonably infer that lay people so carry weapons simply because police officers do.
Police officers m ay well have reaso n to utilize fanny pa cks in tha t m ann er tho ugh lay people m ay not.
Consequently, there is no evidence of record supporting the proposition that “persons” in general carry
wea pon s in fanny pa cks. Indeed , there was not even one in the fa nny pa ck of ap pellant.

                                                     7
replied, “‘I did not know who he was.’” Id. These circumstances did not warrant the

intrusion upon Keah’s person, according to the Court of Criminal Appeals. Id. at 839-40.

       Nor did seeing a bulge in his clothing justify the frisk of the appellant in Davis v.

State, 576 S.W.2d 378 (Tex. Crim. App. 1978). This was true even though the officer

“‘didn’t know if it was a weapon or what.’” Id. at 381.

       Moreover, to the extent that the presence of a bulge was considered to be a factor

justifying a frisk in other cases, articulable facts in addition to the mere presence of a bulge

also appeared of record. For instance, in Martinez v. State, 500 S.W.2d 151 (Tex. Crim.

App. 1973), the officer noticed a bulge in appellant’s waist band and testified that it

resembled a pistol. And, when asked if it was a gun, appellant said no, clamped his arm

down on the item and turned away from the officer. In Cox v. State, 442 S.W.2d 696 (Tex.

Crim. App. 1969), the officer was responding to a disturbance call at a local hospital and

had been told that a man was carrying a gun. When the officer arrived at the scene, he

saw someone fitting the description given him and noticed a bulge in the suspect’s pocket.

In Garcia v. State, 649 S.W.2d 697 (Tex. App.– San Antonio 1983, no pet.), the officer

was told by four individuals at a dance that they saw someone with a gun. Furthermore,

one of the four identified appellant as the person who had it. When the officer approached

appellant, he saw a noticeable bulge in his boot. Here, we have none of those additional

indicia. We have no furtive gestures on the part of appellant. Other than a traffic violation,

we have no evidence of any crime, much less one involving violence, or the presence of




                                               8
a high crime area.6 We have no prior information from third parties about the presence of

a gun. We have no one describing the bulge as something which appeared, at the time,

to be a firearm or other weapon. We have no evidence of nervousness. We have no

evidence about any prior acquaintance with or knowledge about appellant. We have no

testimony from the officer that, based on his knowledge and experience, anyone other than

police officers carried weapons or firearms in a fanny pack or that people committing traffic

violations or riding motorcycles early in the morning are more likely to be dangerous or be

carrying weapons. All we have is a large bulge appearing in a fanny pack being worn by

someone stopped for speeding in the early morning hours and who was cooperating with

the officer. When asked to explain the purported threat he perceived immediately before

directing appellant to interlace his fingers behind his head, Rolan said that the threat was

in whatever appellant might want to do since he could not read appellant’s mind and you

“never know what they’re going to do.”7

        Rolan also conceded that he “probably wouldn’t have thought much about” the fanny

pack if it were not for the bulge. Yet, a bulge alone does not justify a frisk. Keah v. State,

supra. And, this remains so even if the detainee rode a motorcycle at the time and had

been stopped at night for speeding.


        6
           As the Sta te points o ut, the trial court m ade re ference to the location of the sto p as a fac tor in
deciding to deny the m otio n. H ow ever, Rolan never tes tified about th e area being one kn ow n fo r crim e,
violence, drug trafficking or the like. Th erefore, no evidence supports th e use of the locatio n as indicia
justifying the stop. On the other hand, evidence does appear illustrating that appellant stopped in a parking
lot of a convenience store and that two other officers were at the site, apparently exiting from the store. Thus,
Ro lan was n ot alon e in a s ecluded area at the tim e.

        7
         So too did Ro lan cite the purported deceptio n of ap pellant as basis for fee ling threatened. The
deception to which he referred involved appellant’s description of the bulge as his cell phone. Yet, that
statem ent of app ellant cam e afte r the initial se arch. Thus, it cannot serve as basis for supporting the initial
sea rch.

                                                         9
       In sum, the articulable facts appearing of record do not support the conclusion that

a reasonably prudent officer in the same situation as Rolan would have been warranted

in believing that his safety or the safety of others was in danger. Thus, the trial court

abused its discretion in denying the motion to suppress. Furthermore, the error resulted

in the State tendering into evidence fruits of the illegal search, which matter constituted the

basis of appellant's conviction. Consequently, we cannot but hold that the trial court's error

was harmful under Texas Rule of Appellate Procedure 44.2(a).

       Accordingly, the judgment is reversed and the cause remanded to the trial court for

further proceedings.



                                                   Brian Quinn
                                                     Justice



Publish.




                                              10
