            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-1630-07



                        JEREMY WAYNE BALDWIN, Appellant

                                                v.

                                  THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE FOURTEENTH COURT OF APPEALS
                          HARRIS COUNTY

       C OCHRAN, J., filed a concurring opinion.

                                          OPINION

       I join the majority opinion although it resolves this case on a basis not specifically

raised by the parties. I think that it is important also to address one particular issue presented

in appellant’s petition for discretionary review: Was appellant “arrested” without probable

cause when Deputy Smith handcuffed him? Given the circumstances in this particular case,

I believe that he was “arrested” at the moment he was handcuffed.
                                                                        Baldwin Concur Page 2

                                                I.

       As the majority notes, Deputy Smith stopped his patrol car when he saw a

man–appellant–who matched the description given to him by the unidentified woman. He

got out, approached appellant, and asked him for his ID. Instead, appellant asked Deputy

Smith why he wanted to see his ID. Deputy Smith described what happened next:

Q.     So, you asked him for his identification and he didn’t – did he provide you his
       identification at that point?
A.     At that point he became nervous and anxious and at that point I handcuffed him.

Deputy Smith testified that he handcuffed appellant for “officer safety.”             He said, “I

handcuffed him for officer safety because my past experience when an individual becomes

nervous and anxious in the manner that he was acting and scanning the area, that usually

means he is going to fight or he is going to run.” Deputy Smith also noted that appellant’s

behavior was consistent with behavior that he had seen before from “uncooperative persons”

and that he was placed in “fear of [his] life.” 1 Deputy Smith said that he is 5'4" tall, weighs

       1
         On cross-examination Deputy Smith elaborated on his fear:
Q.     And you are saying the only thing that put you in fear of your life is that he was nervous,
       shaking, and shuddering?
A.     Yes. * * *
Q.     So, is it your testimony today that you would nearly handcuff any suspect if you see him
       nervous, shuddering and shaking?
A.     Yes, I will.
Q.     That is your standard procedure?
A.     Yes, it is.
Q.     Is that the kind of training that you received through the Harris County Sheriff’s
       Department?
A.     Yes, it is.
Q.      They said, If you see someone shaking, shuddering and nervous, you have the right to
       handcuff them?
A.     Yes, it is, if I am in fear of my life I have a right to handcuff them.
                                                                          Baldwin Concur Page 3

180 pounds, and has received training to prevent someone from taking his weapon.

       Once Deputy Smith handcuffed appellant, he asked him where his ID was. Appellant

told him “that it was in his pants pocket,” so Deputy Smith reached into the pocket and

retrieved a small wallet. The license was in the wallet inside a pocket with a clear plastic

covering, and Deputy Smith took the license out of the pocket to examine it. At that point,

he saw a small baggie with white powder in it behind the license.

       The trial court denied appellant’s motion to suppress and the court of appeals

affirmed.2 Justice Anderson dissented and concluded, inter alia, that appellant was arrested

when he was handcuffed.3

                                                 II.

       I agree with the majority that, in this case, we need not decide whether Deputy Smith

had reasonable suspicion to support an investigative detention because, even if the detention

were reasonable under the Fourth Amendment, the handcuffing was neither necessary nor

reasonable under these particular circumstances.

       The State argues that Deputy Smith handcuffed appellant based on “officer safety.”

“Officer safety” is a legitimate purpose. However, the need for handcuffing and the threat

to officer safety must not be imagined or objectively unreasonable under the particular



       2
           Baldwin v. State, 237 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2007).
       3
         Id. at 821 (Anderson, J., dissenting) (stating that “if the force utilized exceeds that
reasonably necessary to effect the goal of the stop, this force may transform an investigative
detention into a full-blown arrest.”).
                                                                       Baldwin Concur Page 4

circumstances. Nor may it be done simply because a citizen declines an officer’s request to

see his identification. Deputy Smith agreed that appellant’s objection to being asked for his

identification was lawful and that he could have “kept going home” at that point.

       The reasonableness of the use of handcuffs depends, in particular, on whether

handcuffs are reasonably necessary to “allow the officer to pursue his investigation without

fear of violence[.]” 4 On the other hand, the use of handcuffs may escalate a citizen encounter

or investigative detention into an arrest if there is no evidence that the suspect is dangerous

or poses a flight risk.5

       In State v. Sheppard,6 we recently held that a person is not necessarily “arrested” for

purposes of the Fourth Amendment if he is temporarily handcuffed and detained, but then


       4
          Adams v. Williams, 407 U.S. 143, 146 (1972). As the Fifth Circuit explained in United
States v. Jordan, 232 F.3d 447 (5th Cir. 2000):
        Handcuffing a suspect does not automatically convert an investigatory detention
        into an arrest requiring probable cause. The relevant inquiry is whether the police
        were unreasonable in failing to use less intrusive procedures to safely conduct
        their investigation. Here the officers first asked Jordan to place his hands on the
        hood of the car, but he refused to do so. He was acting nervously, saying “wait,
        wait” in response to the officers’ questions, moving his hands erratically, and
        continuously looking over his shoulder. When one officer grabbed Jordan’s arm
        and told him to calm down, Jordan jerked his hand away and walked towards the
        officers in “an aggressive-type manner.”
Id. at 450 (cites omitted). Given both the suspect’s degree of physical uncooperativeness and his
“aggressive” manner toward the officers, the Fifth Circuit held that the officers did not act
unreasonably in handcuffing the suspect who was being investigated for the violent crime of
robbery. Id.
       5
        See United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (handcuffing was an
important factor in determining that an arrest had occurred because there was no evidence that
suspect was particularly dangerous).
       6
           271 S.W.3d 281 (Tex. Crim. App. 2008).
                                                                      Baldwin Concur Page 5

released.7 We explained that handcuffing a person who has been temporarily detained “is

not ordinarily proper, but yet may be resorted to in special circumstances, such as to thwart

the suspect’s attempt to ‘frustrate further inquiry.’” 8 In Sheppard, we concluded that

temporarily handcuffing the suspect “for officer safety” while the officer conducted a brief

walk-through of the defendant’s trailer to determine whether a third person was present was

reasonable under the totality of the circumstances.9 In that case, the officer had talked to the

alleged victim of an aggravated assault who told him that the defendant had just threatened

him with a “big knife” while he and the defendant, along with a woman, were “doing some

speed.” 10 When the defendant opened his door, the officer immediately smelled a “very

strong chemical odor coming out of the trailer,” so he frisked the defendant and found a large

folding knife in his front pocket.11 Because the assault victim’s statements that the defendant

had a large knife and that they were “doing speed” had both been corroborated by the

officer’s own observations, the officer was concerned about the third person–the woman with

whom both men were “doing speed.” Based on the evidence that the defendant had been

armed and may have been involved in drug manufacturing (for which weapons are frequently



       7
           Id. at 283.
       8
         Id. at 289 n.29 (quoting 4 WAYNE R. LA FAVE, SEARCH AND SEIZURE , § 9.2(d), at 311-
13 (4th ed. 2004)).
       9
           Id. at 291.
       10
            Id. at 284.
       11
            Id.
                                                                       Baldwin Concur Page 6

used to protect the product), we concluded that the officer was objectively reasonable in

temporarily handcuffing the defendant for “officer safety” while he looked for the missing

woman in the trailer.12 Thus, there were several specific facts that supported the objective

reasonableness of the officer’s conduct under the totality of the circumstances.

       We have also held that handcuffs were consistent with a detention, rather than an

arrest, under circumstances such as when an officer was left alone with a suspect at night

after his partner had left the scene to chase an accomplice,13 and when an officer was called

to a possible burglary at an apartment and was alone with two much larger suspects.14

Reports of gunfire in the area, along with suspicious behavior, have led us to conclude that

handcuffing was appropriate.15 In each of those cases, the officer had specific, articulated

reasons to fear for his safety.

       Like the officers in Rhodes, Mays, and Balentine, Deputy Smith was alone at night

when he met appellant, but the similarities end there. Deputy Smith articulated no reason to

suspect that appellant was carrying any type of weapon,16 burglary is not an inherently violent

crime, and Deputy Smith was not outnumbered. Appellant was not combative; he was not


       12
            Id. at 288.
       13
            Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex. Crim. App. 1997).
       14
            Mays v. State, 726 S.W.2d 937, 943-44 (Tex. Crim. App. 1986).
       15
            Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002).
       16
         Deputy Smith’s testimony did not indicate that the prior burglaries involved any
weapons and the unnamed woman made no report of seeing a weapon, as was the situation in
Balentine.
                                                                      Baldwin Concur Page 7

hiding his hands or reaching for his pockets; he did not attempt to flee.17 The only fact that

Deputy Smith articulated for “fearing for his life” was that appellant was anxious, nervous,

and glancing around the area. The fact that a pedestrian is nervous when approached by a

police officer at night, without more, is insufficient reason to handcuff him. But Deputy

Smith testified that his standard procedure is to handcuff any suspect that he sees is “nervous,

shuddering, and shaking.”

       I am reluctant to second-guess police officers who must make split-second decisions

based upon the particular circumstances they encounter on the street. But I cannot uphold

Deputy’s Smith’s routine handcuffing procedure, and I cannot find that the totality of the

circumstances made handcuffing appellant an objectively reasonable response to appellant’s

nervousness or his questioning of Officer Smith. Here, unlike the situation in Sheppard, the

officer did not have any specific facts suggesting that appellant was armed, had committed

a violent offense, or was about to do so. Because the handcuffs were not reasonably

necessary to further a legitimate purpose of a temporary detention or for “officer safety,”

once Deputy Smith handcuffed appellant, the encounter or detention became a de facto

arrest.18 And, as the majority correctly concludes, Deputy Smith did not have probable cause


       17
          Although appellant started walking briskly away when he first saw Deputy Smith, he
voluntarily stopped to talk to the officer when approached, which would seem to dispel the
notion that he was a flight risk.
       18
         See, e.g., People v. Stier, 168 Cal. App.4th 21, 28 (2008) (officer’s act of handcuffing
drug suspect during temporary detention because suspect was much taller than officer was not
reasonably necessary; officer did not have any specific articulable facts suggesting suspect was
armed or about to commit a violent crime, act of handcuffing converted detention into a “de facto
                                                                         Baldwin Concur Page 8

to arrest appellant at the time that he searched his wallet, much less at the time that he

handcuffed him.

       Thus, I join the majority in reversing the judgments of the courts below.

Filed: March 11, 2009

Publish



arrest” that was unsupported by probable cause; therefore, suspect’s subsequent consent to search
was not voluntary); In re Antonio B., 166 Cal App.4th 435, (Cal App. 2008) (when officer
handcuffed teen-ager who was walking down street with a friend who was smoking a marijuana
cigarette, he converted temporary detention into de facto arrest without probable cause;
subsequent consent to search his pocket was therefore invalid; detective’s “policy” of
handcuffing any suspect he detains for further investigation regardless of the circumstances of the
stop ignores the constitutional directive that a detention based upon reasonable suspicion of
criminal activity must be conducted using the least intrusive means reasonably available under
the circumstances of that particular detention.”); Longshore v. State, 924 A.2d 1129, 1145 (Md.
App. 2007) (handcuffing suspect converted temporary detention on suspicion of drug possession
into de facto arrest as defendant “was neither a flight nor safety risk”); Cocke v. State, 189 So.2d
132, 135 (Fla. App. 2005) (appellate court assumed without deciding that defendant was lawfully
stopped in the first place, but the detention turned into a de facto arrest, without probable cause,
when defendant was handcuffed, placed inside of the patrol car, and detained for a significant
period of time); Baggett v. State, 849 So.2d 1154, 1157 (Fla. App. 2003) (defendant detained on
suspicion of burglary based on anonymous citizen’s report, but when officer did not pat down
suspect and there was no evidence that “threatening circumstances existed,” handcuffing suspect
for duration of investigation converted detention into de facto arrest); State v. Pfleiderer, 8
S.W.3d 249, 256 (Mo. App. 1999) (even if police properly detained defendant based on
anonymous tip, handcuffing him converted detention into de facto arrest for which there was no
probable cause); United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998) (handcuffing of
suspected drug trafficker at airport simply because a drug suspect might be armed and dangerous
converted temporary detention into de facto arrest; government’s “factually unanchored
justification” was “generalizable to virtually every investigatory stop involving a drug suspect.
To accept that purported justification here would therefore be to endorse the use of handcuffs in
every investigatory stop initiated upon an articulable suspicion of drug trafficking.”); United
States v. Smith, 3 F.3d 1088, 1094 (7th Cir. 1993) (seizure involving use of handcuffs may be
upheld as Terry stop “in the ‘rare’ case wherein common sense and ordinary human experience
convince us that an officer believed reasonably that an investigative stop could be effectuated
safely only through the use of handcuffs.”); see generally 4 LA FAVE, SEARCH & SEIZURE §
9.2(d), at 311-13.
