      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00570-CV



                                     In the Matter of R. S. W.




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. J-24,543, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                R.S.W., a juvenile, was adjudicated delinquent following his plea of true to

possession of marihuana in an amount of two ounces or less. See Tex. Health & Safety Code Ann.

§ 481.121(a), (b)(1) (West 2003). The marihuana was discovered by a law enforcement officer

during a late-night encounter with R.S.W. in a park subject to a dusk-to-dawn curfew. R.S.W.

appeals from the district court’s denial of his motion to suppress evidence of the marihuana. See

Tex. Fam. Code Ann. § 56.01(n)(2) (West 2002). In two issues, R.S.W. argues that the district court

erred because the officer discovered the marihuana by (1) initiating an illegal investigatory detention

and Terry frisk1 founded on the officer’s “mere hunch” that R.S.W. was engaged in criminal activity;

and (2) exceeding the permissible scope of a Terry frisk and conducting a search without probable

cause. We will affirm the judgment.




       1
           See Terry v. Ohio, 392 U.S. 1, 23-24 (1968).
                                            EVIDENCE

                  The sole witness at the suppression hearing was Keith Kinnard, Senior Deputy with

the Travis County Sheriff’s Department. Kinnard described both his experience in law enforcement

—he was a twelve-year veteran of the department and served as a field training officer2—and his

experience with R.S.W. in particular. Kinnard recounted that R.S.W. had been frequently associated

with criminal activity and that “[w]e have numerous dealings with [R.S.W.],” to an extent that

Kinnard knew R.S.W. and could recognize him on sight. Kinnard also had been to R.S.W.’s house,

and explained that R.S.W. lived in an area near Howard Lane that had suffered an “influx of crime,”

mostly “juvenile related,” to a degree that the local municipal utility district had contracted with the

sheriff’s department “so we could put more people in the area to suppress some of this criminal

activity.”

                  During the night of April 17, 2004, another sheriff’s deputy, Terry Peterman, had

responded to a call involving a group of juveniles, including R.S.W., who were seen smoking

marihuana.3 Peterman contacted Kinnard, who “[b]ecause of the heavy criminal involvement in the

area,” proceeded to assist Peterman in patrolling the area. The area to be patrolled included three

subdivisions near Howard Lane. While Peterman patrolled the area streets in a vehicle, Kinnard

began walking a hike-and-bike trail connecting the three subdivisions.




        2
          As an FTO, Kinnard was entrusted with training new deputies “in how to enforce the laws
in the State of Texas and Travis County.”
        3
             Peterman found a smoking pipe but no marijuana.

                                                   2
               At approximately 11:30 p.m., Kinnard observed R.S.W. walking along the trail.

Kinnard testified that the area was subject to a dusk-to-dawn curfew. He added that the location

where he encountered R.S.W. was far from where R.S.W. lived. Kinnard also indicated that the area

was not well-lit; it was “very dark.” Deputy Kinnard recounted that R.S.W. was wearing an

oversized red athletic jersey and a hood—during what Kinnard indicated was a warm evening.

Kinnard indicated that such out-of-place attire was commonly worn by juveniles in gangs. He added

that gang members frequently carried weapons.

               Kinnard asked R.S.W. about “where he’s been, where he was going, so forth.”

R.S.W., Kinnard recounted, was “very surprised to see me,” and appeared nervous and was shaking,

even though it was not a cold night. R.S.W. had his hands in the oversized jersey. For his safety,

Kinnard asked R.S.W. to remove his hands from the jersey, and Kinnard proceeded to “frisk” R.S.W.

Kinnard explained that he did so to ensure that R.S.W. did not have a weapon.

               Kinnard explained what happened next:


       Q: When you frisked him—what happened when you frisked him?

       A: Well, when I—when I frisked him—of course, I’m frisking for weapons. And
          I felt something in his pocket. And I asked him to remove the item from his
          pocket. And once he started to remove it, then he made a—he tried to hide
          whatever was in there. I said “what is that?” “It’s weed.” So he took it out.

       Q: So he admitted he had weed?

       A: Well, once I seen it, yes, sir.


On redirect examination, Kinnard emphasized that R.S.W. was “asked, and not told” to empty his

pockets. After Kinnard asked R.S.W. what was in his pocket and R.S.W. admitted it was marihuana,

                                                3
Kinnard proceeded to arrest R.S.W. and confiscated a small, compact baggy containing what proved

to be marihuana.

               The district court overruled R.S.W.’s suppression motion and subsequently made

findings of fact and conclusions of law. R.S.W. was adjudicated delinquent and placed on probation

for six months. This appeal followed.


DISCUSSION

               In two issues on appeal, R.S.W. asserts that his motion to suppress was improperly

denied because: (1) R.S.W. was illegally detained based on a “mere hunch” by Officer Kinnard; and

(2) the search of R.S.W.’s pocket exceeded the permissible scope of a Terry frisk.


Standard of review

               In an appeal of a trial court’s ruling on a motion to suppress, we apply a bifurcated

standard of review, giving almost total deference to a trial court’s determination of historical facts

and reviewing de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The

district court is the sole judge of the credibility of the witnesses and the weight to be given their

testimony, and it may choose to believe or disbelieve any or all of a witness’s testimony. Laney v.

State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim.

App. 2000); Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Allridge v. State, 850

S.W.2d 471, 492 (Tex. Crim. App. 1991).




                                                  4
               A ruling on a motion to suppress in a juvenile case is reviewed using the same

bifurcated standard that applies to such motions in adult criminal cases. See In re R.J.H., 79 S.W.3d

1, 6 (Tex. 2002).4 We review de novo the juvenile court’s application of the law of search and

seizure and probable cause. See Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);

Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). However, we must give almost total

deference to the juvenile court’s findings of historical fact, especially where the court’s findings are

based on an evaluation of witness credibility and demeanor. See Guzman, 955 S.W.2d at 89. At a

suppression hearing, the juvenile court is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. See State v. Ballard, 987 S.W.2d 889, 891

(Tex. Crim. App. 1999).

               We must sustain the court’s ruling if it is reasonably supported by the record and is

correct on any theory of law applicable to the case. State v. Gray, 158 S.W.3d 465, 467 (Tex. Crim.

App. 2005) (quoting State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000)); Villarreal v.

State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In this case, the district court entered findings

of fact and conclusions of law. We give almost total deference to the district court in reviewing

findings of fact because the district court is in a better position to evaluate the credibility and




       4
          Juvenile delinquency proceedings like the present one are quasi-criminal in nature. See In
re J.R., 907 S.W.2d 107, 109 (Tex. App.—Austin 1997, no writ). The juvenile is entitled to the
same constitutional rights as an adult because the delinquency proceeding seeks to deprive the
juvenile of his liberty. See id. Evidence illegally seized or obtained is inadmissible in an
adjudication hearing. See Tex. Fam. Code Ann. § 54.03(e) (West Supp. 2005).

                                                   5
reliability of witnesses. Guzman, 955 S.W.2d at 89. However, we review de novo the district court’s

application of law to those facts when the conclusion, such as the existence of reasonable suspicion,

does not turn on witness credibility. Ornelas v. United States, 517 U.S. 690, 697-98 (1996);

Guzman, 955 S.W.2d at 87.

Application

    Justification for the Terry stop

               In his first issue on appeal, R.S.W. asserts that he was detained on nothing more than

a “mere hunch.” We disagree. The Supreme Court has recognized three distinct types of police -

citizen interactions: (1) arrests, which must be supported by probable cause, see Brown v. Illinois,

422 U.S. 590, 601, 95 S.Ct. 2254, 45 L. Ed. 2d 416 (1975); (2) brief investigatory stops, which must

be supported by reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, at 25-26 (1968); and (3) brief

encounters between police and citizens, which require no objective justification, see Florida v.

Bostick, 501 U.S. 429, 434 (1991). Police may approach and question an individual in a public place

without implicating the Fourth Amendment’s protections. United States v. Drayton, 536 U.S. 194

(2002); Bostick, 501 U.S. at 434; Florida v. Royer, 460 U.S. 491, 497-98 (1983). Even when law

enforcement officers have no basis for suspecting a particular person of wrongdoing, they may ask

questions as long as they do not “induce cooperation by coercive means.” Drayton, 536 U.S. at 201.

If a reasonable person would feel free to terminate the encounter, then he has not been seized. Id.

               Of those three types of encounters, we believe Deputy Kinnard’s detention of R.S.W.

was nothing more than a brief investigatory stop. An investigatory detention is justified if, based

upon the totality of the circumstances, the detaining officer has specific articulable facts, which,



                                                 6
taken together with rational inferences from those facts, lead him to conclude that the person

detained actually is, has been, or soon will be engaged in criminal activity. Balentine v. State, 71

S.W.3d 763, 768 (Tex. Crim. App. 2002); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App.

1997). These facts must amount to more than a mere hunch or suspicion. Brother v. State, 166

S.W.3d 255, 257 (Tex. Crim. App. 2005); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App.

1997); Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. 1981). This standard is an

objective one—there need only be an objective basis for the stop. Garcia v. State, 43 S.W.3d 527,

530 (Tex. Crim. App. 2001). The subjective intent of the officer conducting the stop is irrelevant.

Id. The burden is on the State to elicit testimony of sufficient facts to create a reasonable suspicion.

Id.; see also Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) (when defendant shows

search or seizure occurred without warrant, burden is on State to show search or seizure was

reasonable). We look only at those facts known to the officer at the inception of the stop—a stop

or search unlawful at its inception may not be validated by what it turns up. See Wong Sun v. United

States, 371 U.S. 471, 484 (1963).

                The “totality of the circumstances” analysis requires us to respect the common-sense,

reasonable judgments of law enforcement officers, as informed by all surrounding facts and

circumstances and the rational inferences and deductions officers may draw from them based on their

experience and familiarity with the areas they serve. See United States v. Cortez, 449 U.S. 411, 417-

18 (1981); Woods, 956 S.W.2d at 38 (adopting, as “well reasoned and persuasive,” rationale of

Cortez and United States v. Sokolow, 490 U.S. 1, 8 (1989)). Thus, as the Texas Court of Criminal

Appeals recently acknowledged, “law enforcement training or experience may factor into a



                                                   7
reasonable-suspicion analysis,” Ford, 158 S.W.3d at 494, and that, viewed through that lens and in

full context, otherwise innocuous or innocent facts may indicate criminal conduct. Woods, 956

S.W.2d at 38 (“there may be instances when a person’s conduct viewed in a vacuum, appears purely

innocent, yet when viewed in light of the totality of the circumstances, those actions give rise to

reasonable suspicion.”); see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (“This process

allows officers to draw on their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that might well elude an untrained

person.”) (internal quotations omitted).

               Here, Deputy Kinnard identified numerous objective facts that could have led him

to reasonably conclude that R.S.W. had been, or soon would be, engaged in criminal activity. These

included Kinnard’s personal knowledge of R.S.W.’s history of criminal activity, the time of night

and location where Kinnard encountered R.S.W., the apparent indicia that R.S.W. might be involved

in a gang and would be more likely to be carrying a weapon, the report that R.S.W. had been

involved in criminal activity earlier that evening, and the fact that R.S.W. had his arms inside his

shirt. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (stating that stop occurring in “high crime

area” is relevant consideration in Terry analysis); Ford, 158 S.W.3d at 494 (law enforcement training

or experience may factor into reasonable-suspicion analysis); Delk v. State, 855 S.W.2d 700, 710

(Tex. Crim. App. 1993) (notification that individual has been involved in criminal activity can

provide basis for Terry stop); State v. Bryant, 161 S.W.3d 758, 762 (Tex. App.—Fort Worth 2005,

no pet.) (time of night and area’s crime rate supported a reasonable suspicion that defendant was,

or would soon be, engaged in criminal activity); Alexander v. State, 879 S.W.2d 338, 342 (Tex.



                                                 8
App.—Houston [14th Dist.] 1994, pet. ref’d) (being in park hours past curfew and acting as if one

were trying to hide something are facts sufficient to constitute reasonable suspicion). Moreover,

upon encountering R.S.W., Kinnard was permitted to ask him, with or without reasonable suspicion,

about what he was doing and where he was going. See Florida v. Royer, 460 U.S. 491, 497-502

(1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). The nervousness and

shaking that R.S.W. exhibited in response to this inquiry provided Kinnard an additional reasonable

basis for stopping R.S.W. See Balentine, 71 S.W.3d at 769.5 In sum, Kinnard’s suspicion that

R.S.W. had been or soon would be engaged in criminal activity was based on far more than the

“mere hunch” that R.S.W. alleges. We overrule R.S.W.’s first issue on appeal.


    Scope of the Terry frisk

               In his second issue on appeal, R.S.W. asserts that Kinnard’s pat-down of his pocket

exceeded the permissible scope of any purported Terry frisk for weapons. We disagree. When a

person is stopped based on suspicious conduct, the officer may conduct a pat-down search of the

person for weapons when the officer is justified in believing that the person may be armed and




       5
           In Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002), the officer arrived on
the scene of a shots-fired call. Id. He observed the defendant walking across the street nearby the
complainant’s residence. Id. It was approximately 2:30 in the morning in what the officer described
as a residential, low-traffic area. Id. The defendant appeared nervous and was walking briskly away
from the reported direction of the gunfire, while constantly looking back over his shoulder in the
officer’s direction. Id. The officer’s detention of the defendant was found to have been justified.
Id.

                                                9
dangerous. See Terry, 392 U.S. at 23-24 (1968). If, while lawfully conducting such a search, the

officer feels “an object whose contour or mass makes its identity [as contraband] immediately

apparent . . . its warrantless seizure would be justified by the same practical considerations that

inhere in the plain-view context.” Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993). But this

“plain feel” exception does not authorize officers to squeeze, slide, and otherwise manipulate the

contents of a defendant’s pocket—particularly if the officer already knows the pocket does not

contain a weapon. Id. at 378. If the search exceeds that necessary to determine if the suspect is

armed, the fruits of the search will be suppressed. See id. at 379.

               Kinnard testified that he conducted the pat-down for his safety. He knew that R.S.W.

had a history of criminal activity and had possessed contraband in the past. In addition, R.S.W.

appeared nervous and was wearing what appeared to be gang attire. Kinnard testified that, based on

his twelve years of experience, juveniles associated with gangs were more likely to carry weapons.

This evidence supports a finding that Kinnard was justified in performing the pat-down to make sure

that R.S.W. was not armed.

               R.S.W. equates Kinnard’s pat-down to the circumstances in Dickerson, 508 U.S. at

369, in which the officer felt a lump in the defendant’s pocket, examined the lump with his fingers,

and then reached into the pocket to remove its contents. Id. The Supreme Court held that such a

search exceeded the permissible scope of a Terry frisk. Id. at 378. This case is distinguishable from

Dickerson. Kinnard did not search R.S.W.’s pocket, but merely patted it down externally to feel for

weapons. When Kinnard felt an unknown object in R.S.W.’s pocket, he stopped his pat-down;




                                                 10
unlike the officer in Dickerson, Kinnard did not look or reach inside the pocket to identify or pull

the object out, nor did he squeeze, slide or otherwise manipulate the pocket’s contents.


    Voluntary search

               R.S.W. also contends that once Deputy Kinnard determined that R.S.W. did not

possess a weapon, he acted improperly in questioning R.S.W. about what was in his pocket and in

obtaining the marijuana. We disagree. Once the purpose of a stop has been effectuated, the officer

may ask the suspect if he possesses illegal contraband and solicit voluntary consent to search. Stone

v. State, 147 S.W.3d 657, 660 (Tex. App.—Amarillo 2004, pet. ref’d). Merely requesting such

consent does not amount to an unlawful seizure, and neither probable cause nor reasonable suspicion

is required for the officer to ask. James v. State, 102 S.W.3d 162, 173 (Tex. App.—Fort Worth

2003, pet. ref’d); Leach v. State, 35 S.W.3d 232, 235 (Tex. App.—Austin 2000, no pet.). Nor does

the encounter become a further detention simply due to the request for permission to search. Vargas

v. State, 18 S.W.3d 247, 252-53 (Tex. App.—Waco 2000, pet. ref’d).

               Consent to search is one of the well-established exceptions to the constitutional

requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.

Crim. App. 2000). Voluntariness is a question of fact to be determined from all the circumstances.

Id. The consent must not be coerced, by explicit or implicit means, by implied threat or covert force.

Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). The consent must be positive and

unequivocal. Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991). Consent is not

established by “showing no more than acquiescence to a claim of lawful authority.” Carmouche, 10

S.W.3d at 331 (citing Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)). The State must


                                                 11
show by clear and convincing evidence that the consent was freely given. Id. (citing State v. Ibarra,

953 S.W.2d 242, 245 (Tex. Crim. App. 1997)).

               We conclude that clear and convincing evidence supports the district court’s

conclusion that R.S.W.’s consent was freely given. Kinnard consistently testified that he asked

R.S.W. to remove the unknown item from his pocket—Kinnard did not tell R.S.W. to do so.

Furthermore, Kinnard showed no force when asking R.S.W. to remove the item, nor did he

repeatedly ask or insist that R.S.W. remove the item—he only asked once, and R.S.W. complied.

There is also no evidence in the record that R.S.W.’s consent was a product of force, threat, or

coercion. The events here, rather, are consistent with those repeatedly held by Texas courts to

constitute voluntary, consensual searches. See, e.g., Martinez v. State, 17 S.W.3d 677, 683 (Tex.

Crim. App. 2000) (“[t]estimony by law enforcement officers that no coercion was involved in

obtaining the consent is evidence of the consent’s voluntary nature”); Cleveland v. State, 177 S.W.3d

374, 2005 Tex. App. LEXIS 2726, *17 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (search of

residence); Lerma v. State, 172 S.W.3d 219, 227 (Tex. App.—Corpus Christi 2005, pet. dism’d)

(search of automobile); Levi v. State, 147 S.W.3d 541, 545 (Tex. App.—Waco 2004, pet. ref’d)

(search of automobile); In re D.G., 96 S.W.3d 465, 469 (Tex. App.—Austin 2002, no pet.) (search

of juvenile). In sum, all that the record demonstrates is that Kinnard asked R.S.W. to remove the

item from his pocket and R.S.W. complied. If R.S.W. wished to show that his compliance with

Kinnard’s request was, in fact, not voluntary or was merely acquiescence to official authority, it was

incumbent on R.S.W. to develop a record that could support such an assertion. This record does not.

               We overrule R.S.W.’s second issue on appeal.



                                                 12
                                         CONCLUSION

               The evidence of marihuana possession admitted against R.S.W. was not a product of

an illegal search and seizure. We affirm the judgment of the district court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: March 9, 2006




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