          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-02-00080-CR




                                   Newell Morgan Briggs, Appellant

                                                     v.

                                      The State of Texas, Appellee



           FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY
           NO. 01-3885-3, HONORABLE DON HIGGINBOTHAM, JUDGE PRESIDING




                Newell Morgan Briggs pleaded no contest to a charge of possession of less than two

ounces of marihuana after the county court at law overruled his motion to suppress evidence. The court

assessed punishment at twelve months of deferred adjudication probation, a $500 fine, and seventy-two

hours of community service restitution; the court also required him to spend three days in jail as a condition

of probation. By his sole point of error, appellant argues that the court should have granted the motion to

suppress all tangible evidence recovered by police and all statements made by appellant pursuant to his

stop, detention, and arrest. Appellant contends that the detention was illegal because it was based on a tip

from an unknown informant. We will affirm the judgment.
                                             BACKGROUND

                 The following characterization of events is based solely on the testimony of Georgetown

police officer Jimmy Fennell. He was the only witness at the suppression hearing.

                 Fennell and another officer investigated the report by an unknown, anonymous informant of

a narcotics party at a residence in Georgetown. The informant did not give any details about who was in the

residence, nor did the officers obtain a search or arrest warrant. Upon their arrival, four people were

walking out of the front door of the residence. The individuals, including appellant, looked surprised to see

the officers; other than their wide-eyed stares, they did nothing to arouse suspicion.

                 Fennell asked the group what was going on and asked what was in the paper bag one of

them was carrying. James McFaline responded that the bag contained empty beer cans. Because

McFaline appeared to be underage, Fennell asked to see the bag and McFaline handed it to him. The bag

contained empty beer cans, but also a baggie of marihuana stems and seeds. At that point, the officers

detained all four individuals, asked them for identification, and checked for outstanding warrants; Fennell did

not think the individuals were free to go during this process. He testified that the individuals Aweren=t really

actually detained@ until after Fennell found the marihuana in the bag. After asking them for identification,

Fennell asked the individuals if they had any weapons. Appellant stated that he had some marihuana in his

sock. Fennell retrieved from appellant=s sock a baggie that appeared to contain marihuana. He then

arrested appellant.

                 After hearing this testimony, the court denied the motion to suppress.




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                                        STANDARD OF REVIEW

                 We review a decision on a motion to suppress evidence for an abuse of discretion. We use

a bifurcated standard, giving almost total deference to the trial court=s findings of fact, but conducting a de

novo review of the court=s application of law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.

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

v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). In this case, the trial court was not asked to

make explicit findings of historical facts. We therefore review the factual basis for the trial court=s ruling in a

light most favorable to the ruling. Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889,

891 (Tex. Crim. App. 1999). We further assume the trial court made Aimplicit findings of fact supported in

the record that buttress its conclusion.@ Carmouche, 10 S.W.3d at 328.

                 The United States Supreme Court and the Texas Court of Criminal Appeals have defined

the circumstances that can support progressive levels of restriction of liberty. See Terry v. Ohio, 392 U.S.

1, 19 (1967); State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999). Police are as free as

anyone else to ask questions of their fellow citizens. Id. Police cannot detain a person, however, absent an

officer=s reasonable suspicion that Asome activity out of the ordinary is occurring or had occurred, some

suggestion to connect the detained person with the unusual activity, and some indication that the activity is

related to crime.@ Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). A detention occurs

when the person being asked questions is not free to decline to answer the officer=s questions or terminate

the interviewCin other words, when a Aseizure@ under the Fourth Amendment to the United States

Constitution has occurred. Velasquez, 994 S.W.2d at 679; see also Terry, 392 U.S. at 16. AOnly when


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the officer, by means of physical force or show of authority, has in some way restrained the liberty of a

citizen may we conclude that a >seizure= has occurred.@ Terry, 392 U.S. at 20.

                 We examine the reasonableness of a temporary detention in terms of the totality of the

circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention

is justified when the detaining officer has specific articulable facts which, taken together with rational

inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be

engaged in criminal activity. See id.; Gurrola, 877 S.W.2d at 302.


                                               DISCUSSION

                 This case turns on the characterization of the conversation preceding the discovery of the

contents of the paper bag. Appellant contends that it was an investigatory detention that was unjustified by

the anonymous informant=s tip; thus, he argues, any statements or substances obtained pursuant to the

unjustified detention were illegally obtained and should be suppressed. The State contends that it was a

mere encounter until the discovery of evidence of illegal activity; the discovery of that evidence justified the

detention and the subsequent questioning.

                 Fennell=s testimony supports a finding that he detained appellant only after discovering

contraband on one of appellant=s companions. The fact that Fennell went to the house in response to an

anonymous tip did not prevent him from asking questions of persons he found on the porch of the house.

Appellant and his companions came out of the house as Fennell arrived. Fennell testified that he merely

asked the group general questions and did not detain them until after discovering marihuana and alcoholic




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beverage cans in a bag carried by a person apparently under the age of twenty-one. Our inquiry narrows to

whether the county court at law erred by concluding that the detention of appellant was justified.

                 The discovery of alcoholic beverages in the possession of a suspected minor justified a

temporary detention of that person and possibly others in his company. The discovery of marihuana in his

possession corroborated the anonymous report of a Anarcotics party@ occurring at the address and justified

an investigative detention of the bag bearer and his companions. The contents of the bag gave the officer a

reasonable suspicion that illegal activity (drinking by minors, possession of controlled substances) was

occurring in the house, and appellant=s presence in the company of the possessor of the contraband as they

left the house provided a reasonable suspicion that he was involved in the illegal activityCat least enough to

justify a temporary investigatory stop.

                 Appellant urges that the evidence be excluded because the anonymous tip was not

corroborated before investigative detention occurred. See Stewart v. State, 22 S.W.3d 646, 648 (Tex.

App.CAustin 2000, pet. ref=d); see also Florida v. J.L., 529 U.S. 266, 270 (2000). In Stewart, this

Court held that the trial court erred by refusing to exclude evidence because a police officer did not have

sufficient grounds to stop a car based solely on an anonymous tip that an intoxicated person was driving a

green Camaro; because the circumstances did not necessarily ensure that the car or driver were the subject

of the tip, the officer needed to witness events corroborating the illegal activity indicated by the anonymous

tip. See Stewart, 22 S.W.3d at 649. In J.L., the Supreme Court held that an anonymous tip that a person

is carrying a gun is not, without more, sufficient to justify a police officer=s stop and frisk of that person.

J.L., 529 U.S. at 268 & 272. These cases do not control our decision, however, because the evidence in


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this case supports the finding that the officer did not detain the individuals until after discovering evidence

indicating illegal activity irrespective of the tipCevidence which also corroborated the tip.


                                              CONCLUSION

                 The officer was entitled to ask questions of appellant and his companions in a public place.

The answers to his questions provided a basis for the investigative detention of the group. The county court

at law did not abuse its discretion by refusing to suppress evidence discovered as a result of the questioning

and the detention.

                 We affirm the judgment.




                                                   Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: August 30, 2002

Do Not Publish




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