
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 "weren'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.



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 "implicit 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 "some 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 interview--in other words, when a
"seizure" 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.  "Only when 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 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 "narcotics 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 activity--at 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.--Austin 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 this case supports the finding that the officer did not
detain the individuals until after discovering evidence indicating illegal activity irrespective of the
tip--evidence 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
