                            NUMBER 13-14-00287-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

CHRIS FURR,                                                                 Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      Appellant, Chris Furr, pleaded guilty to possession of less than one gram of heroin,

a state jail felony, see TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West, Westlaw

through 2013 3d C.S.), and was sentenced to two years’ imprisonment, with the sentence

suspended and Furr placed on community supervision for three years. Furr argues on
appeal that the trial court erred by denying a pre-trial motion to suppress evidence. We

affirm.

                                        I. BACKGROUND

          Furr’s motion requested suppression of all evidence obtained “as the result of an

illegal traffic stop, arrest, or search in violation of the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution, Article 1, Sections 9, 10, [and] 19 of the

Texas Constitution, [and] Articles 1.04, 1.05, 1.06, and 38.23 of the Texas Code of

Criminal Procedure.”

          At the suppression hearing, Sergeant Mike Ayala of the Corpus Christi Police

Department testified that he was on patrol at around 2:00 p.m. on August 28, 2012, when

he was advised of an anonymous report of “two males using drugs” near 513 Sam Rankin

Street, which Ayala testified is a known “high crime, high drug” area. He stated that

Officer George Alvarez had already located the subjects at the time he arrived at the

scene. The following colloquy occurred:

          Q. [Prosecutor]   Once you arrived to back him up, what did you and Officer
                            Alvarez do?

          A. [Ayala]        Officer Alvarez was making contact with a—an individual
                            by the name of Collier.

                            ....

          Q.                Did you hear the call that Officer Alvarez was out on?

          A.                Yes, sir.

          Q.                And was this gentleman that he was talking to of the same
                            description that came over the call?

          A.                Yes, sir.

          Q.                Were there two individuals involved?

          A.                Two individuals.
                                               2
       Q.                 And who was there besides Mr. Collier, the defendant, the
                          co-defendant in this case?

       A.                 The—the other individual was Christopher Furr, but he
                          had walked away from Officer Alvarez.

       Q.                 Was there anything unusual about the way he walked
                          away?

       A.                 Yes, it was kind of furtive, like he was trying to get away.

       Q.                 Did he glance back to see if the police were following him,
                          things like that?

       A.                 He—he kept looking over his shoulder.

       Q.                 And where did Mr.—where did the Defendant go as he
                          walked away?

       A.                 He walked into that Mother Teresa shelter building.

The officers followed Furr into the Mother Teresa Shelter, which was about twenty or thirty

yards away. Ayala contacted Furr in the “yard” of the shelter. According to Ayala, when

he approached Furr, Furr “was acting kind of suspicious, kind of anxious, nervous,

sweating, like he was trying to be evasive and avoid us.” Ayala explained that he then

conducted a pat-down to ensure that Furr was not armed. In conducting the pat-down,

Ayala felt something in Furr’s right front pocket which Ayala knew from experience to be

a crack pipe. Ayala removed the pipe along with two syringes from Furr’s pocket. Ayala

stated that, at this point, Furr was under arrest for possession of drug paraphernalia.

Ayala then asked Furr for identification, and Furr said that it was in his wallet. Ayala

opened Furr’s wallet and observed “two small little balloons” which Ayala believed

contained heroin.

       On cross-examination, Ayala conceded that he did not hear the initial report of drug

activity; he did not know the identity of the individual that provided the tip; and he did not

know if the informant saw a drug transaction or if the informant even saw any drugs at all.
                                              3
The only information provided to Ayala was that there were two individuals using drugs

at that specific location, along with a description of the individuals. Ayala stated that Furr

met the description of one of the individuals allegedly using drugs. Ayala acknowledged

that there was no report that the alleged drug users were armed or dangerous. He further

clarified that he did not actually witness Furr “walk[] away furtively” but was rather

informed of that by Alvarez. He did not see Furr commit any crimes, but decided to follow

him because “he fit the description of the individuals on the call.” He clarified that the

tipster had given a description only of the suspect’s clothing, not of the suspect’s physical

characteristics. Ayala denied that he felt threatened or afraid, but he conducted the pat-

down because “I’m not going to take a chance with someone that’s supposedly using

drugs.” Ayala testified that, when he asked Furr if he was carrying a weapon, Furr “didn’t

respond initially” but “was just kind of out of it” and “looked like he was under the influence

of a drug.”1

        Alvarez testified that he was on patrol on the day and time in question. He was

advised of “two subjects”—one was a white male wearing all black, and the other was a

white male wearing a black shirt and a brown backpack. Alvarez approached Collier, who

matched one of the descriptions. At the time, Furr was not close to Alvarez but rather

“continued into the area of the—the shelter.” Alvarez stated that, initially, Furr and Collier

were “walking together.” He stated: “I passed them and I—since they fit the description,

I looked back in the mirror and I saw them looking back.” According to Alvarez, Furr then

“went into the shelter area.” Alvarez could not remember if Furr “hurried” into the shelter



        1 After hearing Ayala’s testimony, the trial court announced that the motion to suppress was going
to be denied. After being advised that the other officer was present and ready to testify, the trial court
stated, “Bring him in then. I’ll deny—maybe undeny it.”

                                                    4
area but he agreed that Furr looked back over his shoulder as he went there. Alvarez

could not recall whether Furr appeared to be under the influence of alcohol or any other

substance. Ayala then arrived at the scene to provide backup. Alvarez observed Ayala

pat down and arrest Furr.

       Like Ayala, Alvarez conceded on cross-examination that he did not know the

identity of the individual that provided the tip. The tip merely referenced two individuals

“using drugs”; it did not indicate what kind of drugs were being used or that a transaction

was taking place. Alvarez himself observed no crimes taking place, nor did he observe

any drugs in plain sight. Alvarez conceded that, at the time Furr walked away, he had the

right to do so. Alvarez further testified:

       Q. [Defense counsel]              Any reason to believe he had any weapons on
                                         him?

       A. [Alvarez]                      There’s always a reason to believe that a subject
                                         has weapons on him.

       Q.                                Any subject?

       A.                                Yes. When you make contact on the street with
                                         any subject, there’s a reasonable suspicion that
                                         they might have weapons on them. That’s why
                                         we do the Terry frisk.[2]

       Q.                                So you do a Terry frisk every single time there’s a
                                         call on somebody because that’s your procedure?

       A.                                If there’s a—that nature of call, yes.

       Q.                                Even if you have no information to go off of that
                                         the individual’s armed and dangerous?

       A.                                Yes.

Alvarez agreed with defense counsel that he “didn’t have any reason to believe [Furr] had


       2   See Terry v. Ohio, 392 U.S. 1 (1968); infra section II.B.

                                                       5
any weapons on him or that he was involved in any sort of criminal activity other than [the]

anonymous call.”

       The trial court denied the motion to suppress. Furr later pleaded guilty and was

convicted and sentenced. The trial court certified Furr’s right to appeal. See TEX. R. APP.

P. 25.2(d).

                                       II. DISCUSSION

A.     Standard of Review

       In reviewing 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 historic

facts and mixed questions of law and fact that rely upon the credibility of a witness, but

applying a de novo standard of review to pure questions of law and mixed questions that

do not depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 923

(Tex. Crim. App. 2011).

       We review the trial court’s decision for an abuse of discretion. Id. “We view the

record in the light most favorable to the trial court’s conclusion and reverse the judgment

only if it is outside the zone of reasonable disagreement.” State v. Dixon, 206 S.W.3d

587, 590 (Tex. Crim. App. 2006). The trial court’s ruling will be upheld if it “is reasonably

supported by the record and is correct on any theory of law applicable to the case.” Id.

(citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). However, a trial

court has no discretion in determining what the law is or applying the law to the facts.

State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Therefore, the question of

whether a given set of historical facts gives rise to reasonable suspicion is reviewed de

novo. Wade v. State, 422 S.W.3d 661, 669 (Tex. Crim. App. 2013).



                                              6
       When, as here, no findings of fact or conclusions of law are filed, we assume the

trial court made all findings in support of its ruling that are consistent with the record.

Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex. Crim. App. 2000); cf. Vasquez v.

State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (holding that, when the issue is

voluntariness of a confession, a trial court must file findings of fact and conclusions of law

“whether or not the defendant objects to the absence of such omitted filing”).

B.     Applicable Law

       The Fourth Amendment to the United States Constitution provides that “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .” U.S. CONST. amend. IV.

“[E]vidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United

States of America” is inadmissible in a criminal case. TEX. CODE CRIM. PROC. ANN. art.

38.23 (West, Westlaw through 2013 3d C.S.).

       In Terry v. Ohio, the United States Supreme Court held:

       [W]here a police officer observes unusual conduct which leads him
       reasonably to conclude in light of his experience that criminal activity may
       be afoot and that the persons with whom he is dealing may be armed and
       presently dangerous, where in the course of investigating this behavior he
       identifies himself as a policeman and makes reasonable inquiries, and
       where nothing in the initial stages of the encounter serves to dispel his
       reasonable fear for his own or others’ safety, he is entitled for the protection
       of himself and others in the area to conduct a carefully limited search of the
       outer clothing of such persons in an attempt to discover weapons which
       might be used to assault him. Such a search is a reasonable search under
       the Fourth Amendment, and any weapons seized may properly be
       introduced in evidence against the person from whom they were taken.

392 U.S. 1, 30–31 (1968); see Wade, 422 S.W.3d at 669 (“If an officer is justified in

believing that a person whose suspicious behavior he is investigating is armed, he may

                                              7
frisk that person to determine if the suspect is, in fact, carrying a weapon and, if so, to

neutralize the threat of physical harm.”).

        Under the Fourth Amendment, a brief investigative detention is authorized once

an officer has a reasonable suspicion to believe that an individual is involved in criminal

activity.3 Carmouche, 10 S.W.3d at 329. “However, the ‘exigencies’ which permit the

additional search are generated strictly by a concern for the safety of the officers.” Id.

(citing Terry, 392 U.S. at 25–26, 29 (“The sole justification of the search in the present

situation is the protection of the police officer and others nearby, and it must therefore be

confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or

other hidden instruments for the assault of the police officer”)); see Wade, 422 S.W.3d at

669 (“The purpose of a Terry frisk is not to discover evidence of crime, but to allow the

officer to pursue his investigation without fear of violence.”). Therefore, contrary to the

testimony of the officers in this case, “the additional intrusion that accompanies a Terry

frisk is only justified where the officer can point to specific and articulable facts which

reasonably lead him to conclude that the suspect might possess a weapon.” Carmouche,

10 S.W.3d at 329 (citing Terry, 392 U.S. at 26–27; Worthey v. State, 805 S.W.2d 435,

438 (Tex. Crim. App. 1991)); see Wade, 422 S.W.3d at 669 (“[P]olice may not escalate a

consensual encounter into a protective frisk without reasonable suspicion that the person


        3  In considering whether police may temporarily detain a suspect for questioning, courts have held
that “[a] police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined
with rational inferences from those facts, would lead him reasonably to conclude that the person detained
is, has been, or soon will be engaged in criminal activity.” Matthews v. State, 431 S.W.3d 596, 603 (Tex.
Crim. App. 2014) (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)). “In
determining whether an officer has reasonable suspicion to detain, we look at the totality of the
circumstances through an objective lens, disregarding the officer’s subjective intent.” Id. “Although some
circumstances may seem innocent in isolation, they will support an investigatory detention if their
combination leads to a reasonable conclusion that criminal activity is afoot.” Id. “[T]he relevant inquiry is
not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular
non-criminal acts.” Derichsweiler, 348 S.W.3d at 914.

                                                       8
(1) has committed, is committing, or is about to commit a criminal offense and (2) is armed

and dangerous.”).

       The Texas Court of Criminal Appeals has observed that

       [a]n anonymous tip alone is seldom sufficient to establish reasonable
       suspicion. Reasonable suspicion is dependent not only on the content of
       the information possessed by law enforcement, but also on its reliability. To
       support reasonable suspicion, an anonymous tip requires some indicia that
       the caller is credible or that his information is reliable.

Matthews v. State, 431 S.W.3d 596, 603 (Tex. Crim. App. 2014) (citing Alabama v. White,

496 U.S. 325, 329 (1990)). “An inverse relationship exists between the reliability of the

informant and the amount of corroborated information required to justify the police

intrusion; the less reliable the tip, the more information is needed.” Martinez, 348 S.W.3d

at 923.    Further, in Florida v. J.L., the United States Supreme Court held that, in

anonymous tip cases, the indicia of reliability supporting reasonable suspicion must be

related to the tip’s assertion of criminal activity, not merely the tip’s identification of the

suspect:

       An accurate description of a subject’s readily observable location and
       appearance is of course reliable in this limited sense: It will help the police
       correctly identify the person whom the tipster means to accuse. Such a tip,
       however, does not show that the tipster has knowledge of concealed
       criminal activity. The reasonable suspicion here at issue requires that a tip
       be reliable in its assertion of illegality, not just in its tendency to identify a
       determinate person.

529 U.S. 266, 272 (2000). The Court noted that reliability as to identification may be

important in other criminal law contexts, but reliability as to the likelihood of criminal

activity is “central in anonymous-tip cases.” Id. (citation omitted).




                                               9
C.      Analysis

        Furr contends that the actions of the police constituted an illegal search. In

response, the State argues that the officers had reasonable suspicion to perform a Terry

frisk because the anonymous tip was supported by the following indicia of credibility

established by evidence at the suppression hearing: (1) Furr matched one of the

descriptions given by the anonymous tipster; (2) Furr was located in a “high crime, high

drug” area; (3) Furr walked away from Alvarez in a “furtive” manner; (4) Furr “was acting

kind of suspicious, kind of anxious, nervous, sweating, like he was trying to be evasive

and avoid us”; and (5) when Ayala asked Furr whether he had a weapon, Furr “didn’t

respond initially” and appeared to be under the influence of drugs.4

        The State argues that this case is analogous to Matthews, where the Texas Court

of Criminal Appeals held that an anonymous tip alleging that a suspect was selling crack

cocaine at a particular location was sufficient to establish reasonable suspicion to detain,

under the totality of the circumstances, because it was supported by the following indicia

of credibility: (1) appellant was found “late at night” in a “high-crime area known for drug

and weapons violations”; (2) appellant “was dressed as the 911 caller had described and

was named as the 911 called had said”; (3) appellant was sitting in a vehicle which

matched the description given by the tipster “with the key in the ignition, but the engine

off,” which is behavior “consistent with [that of] a drug dealer selling crack cocaine out of



         4 The State also argues that Furr waived his issue because his written motion to suppress

complained only of an “illegal traffic stop, arrest, or search . . . .” The State contends that “‘traffic stop’
implies pulling over the driver of a vehicle, rather than the temporary detention of a pedestrian” and that
“Furr’s motion failed to give the State adequate notice of the ground that he now raises on appeal.”
However, the transcript of the suppression hearing shows that the State was well prepared to litigate the
specific issues in dispute. Moreover, when read in the disjunctive, Furr’s complaint could be reasonably
construed as challenging an “arrest” or “search” unrelated to any traffic stop. We reject the State’s waiver
argument.

                                                     10
his vehicle”; and (4) appellant “refused to comply with the officers’ request to show both

of his hands, and he did so in a suspicious manner.” 431 S.W.3d at 604–05, n.32.

       We find Matthews distinguishable for several reasons. First, the Court in that case

considered whether officers had reasonable suspicion to detain, not reasonable suspicion

to perform a Terry frisk; therefore, the Court did not discuss whether police were aware

of specific, articulable facts indicating that the appellant possessed a weapon. See id. at

602–03 (citing Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011)); see

also Carmouche, 10 S.W.3d at 329. Second, the anonymous tip in Matthews contained

not only a “detailed description” of the appellant, but also identified the appellant by name

and contained a “detailed description” of appellant’s vehicle and its location. Id. at 604.

The fact that the appellant and his vehicle matched “detailed description[s]” given by the

tipster was a strong indicium of credibility that is absent in this case. Here, the anonymous

tip merely described the suspects’ location, the color of their skin, and the color of some

of their clothing. In contrast with the tip in Matthews, the tip at issue here failed to describe

the physical characteristics of either suspect beyond skin color; failed to identify either

suspect by name; failed to describe any vehicle in which the suspects could be found;

and failed to specify the type of drugs allegedly being used. Moreover, the tip did not

indicate that the tipster had knowledge of the suspects’ future behavior, cf. White, 496

U.S. at 332 (noting that “the caller’s ability to predict respondent’s future

behavior . . . demonstrated inside information—a special familiarity with respondent’s

affairs” and was thus indicative of reliability), nor did the tip contain any indication that it

was reported contemporaneously with the alleged offense. Cf. Navarette v. California,

134 S. Ct. 1683, 1689 (U.S. 2014) (noting that “statements about an event and made



                                               11
soon after perceiving that event are especially trustworthy because substantial

contemporaneity of event and statement negate the likelihood of deliberate or conscious

misrepresentation” (citation omitted)). The tip at issue here was vague and undetailed.5

The fact that the suspects matched the description provided by the tipster is therefore

less indicative of the tip’s credibility here than it was in Matthews.

        Third, the circumstances faced by the officers in Matthews were much different

than those faced by Ayala and Alvarez in the instant case. The Matthews encounter took

place “late at night,” 431 S.W.3d at 605, whereas the encounter here took place at around

2:00 p.m. The area where Matthews was found was “known . . . for weapons offenses,”

id., but there was no such evidence in this case. The behavior of the suspect was also

markedly different from the facts at issue here. One of the officers in Matthews, after

confirming that the suspect and his vehicle matched the “detailed description[s]” provided

by the tipster, approached the passenger-side window and observed appellant

“concealing his left hand near the driver’s side door,” which is where officers eventually

discovered marijuana. Id. at 604, n.30. “Fearing that appellant was holding a weapon,”

the officer “asked appellant to show his hands,” but appellant “did not comply; rather, he

glanced at [the officer] but ignored his request.” Id. at 604–05. “When [the officer]



        5  The Matthews tip was provided via a 911 call. Matthews v. State, 431 S.W.3d 596, 600 (Tex.
Crim. App. 2014). The Matthews Court noted that the United States Supreme Court recently considered
this fact to be an indicium of reliability because the 911 emergency system “‘has some features that allow
for identifying and tracing callers, and thus provide some safeguards against making false reports with
immunity.’” Id. at 604 n.29 (quoting Navarette v. California, 134 S. Ct. 1683, 1689 (U.S. 2014)). The
Matthews Court then discounted this consideration, however, because there was no indication that the 911
caller “knew that her number could be traced.” Id. (quoting Navarette, 134 S. Ct. at 1694 (Scalia, J.,
dissenting) (“It is the tipster’s belief in anonymity, not its reality, that will control his behavior. There is no
reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily
identifiable.”) (citation omitted)). In any event, there was no evidence that the anonymous tip in this case
was provided via the 911 system. Thus, to whatever extent the Matthews Court considered this fact to be
indicative of reliability, that factor is not present here.

                                                       12
repeated his request to see appellant’s left hand, appellant responded that ‘he was

showing . . . his hands,’” even though his left hand remained hidden by the driver’s side

door. Id. at 600, 605. The other officer then asked the suspect to exit the vehicle and

performed a Terry frisk. Id. at 605. The behavior of the appellant in Matthews—including

repeatedly disobeying the officers’ requests to show hands—strongly supported a

suspicion that criminal activity was afoot and that the appellant was armed and

dangerous.

       Here, the only “specific and articulable facts” regarding suspicious behavior

engaged in by Furr before he was stopped by Ayala—according to the evidence viewed

in the light most favorable to the trial court’s ruling, see Dixon, 206 S.W.3d at 590—were

(1) looking over his shoulder while he walked away from Alvarez when Alvarez was talking

to Collier, (2) appearing “nervous” and “out of it” and “sweating” prior to the frisk, and (3)

failing to “respond initially” when Ayala asked if he was carrying a weapon. That Furr

looked back at Alvarez when he walked away is not indicative of imminent criminal activity

and is not “sufficiently distinguishable” from the behavior in which an innocent person

would have engaged. See Wade, 422 S.W.3d at 670 (“[T]he totality of the suspicious

circumstances that an officer relies on must be sufficiently distinguishable from that of

innocent people under the same circumstances as to clearly, if not conclusively, set the

suspect apart from them.” (quotation omitted)).        Ayala stated that Furr was acting

“nervous” and was “sweating,” but nervousness alone is insufficient to constitute

reasonable suspicion. Id. Moreover, we do not believe that sweating while standing

outside in the middle of a south Texas summer afternoon is indicative of anything but a

properly functioning human thermoregulation system.



                                             13
        Nevertheless, Ayala additionally testified that Furr “was just kind of out of it,”

“looked like he was under the influence of a drug,” and “didn’t respond initially” when

asked if he was carrying a weapon. Evidence that Furr appeared to be nervous and under

the influence of drugs is, when considered together, indicative of the anonymous tip’s

credibility and supported a brief investigative detention. See J.L., 529 U.S. at 272 (holding

that, to establish reasonable suspicion, an anonymous tip must be supported by indicia

of reliability that is related to the tip’s assertion of criminal activity, not merely the tip’s

identification of the suspect); Carmouche, 10 S.W.3d at 329. And, with the officers

already having reasonable suspicion to briefly detain Furr to investigate, Furr’s failure to

respond promptly to the officer’s question regarding whether he was armed constituted a

“specific and articulable fact” indicating that Furr might have possessed a weapon.6 See

United States v. Tinnie, 629 F.3d 749, 752 (7th Cir. 2011) (“Coupled with [other]




        6   The State contends that an officer’s “reasonable belief that a suspect is armed and dangerous
may be predicated on the nature of the suspected criminal activity,” see Terry, 392 U.S. at 27–28 (finding
officers could reasonably assume that offense of robbery would involve use of weapons, although officer
did not observe a weapon or any physical indication of a weapon), and it notes that the Texas Court of
Criminal Appeals has recognized that “it is objectively reasonable for a police officer to believe that persons
involved in the drug business are armed and dangerous.” Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim.
App. 2006) (citing Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000)). However, the cases
that have held that reasonable suspicion may arise purely from the nature of the suspected criminal activity
have involved allegations of drug trafficking, not merely drug use. See, e.g., Griffin, 215 S.W.3d at 405
(confidential informant advised police that “appellant was selling crack cocaine at a specific location in a
‘drug trafficking’ part of town”); Carmouche, 10 S.W.3d at 330 (noting that the officer “stopped appellant
pursuant to an articulable suspicion that appellant was trafficking in cocaine” and that “weapons and
violence are frequently associated with drug transactions”); United States v. Brown, 913 F.2d 570, 572 (8th
Cir. 1990) (noting that the officers “had an articulable reasonable suspicion that the occupants of
[appellant’s car] were dealing drugs” and that “weapons and violence are frequently associated with drug
transactions”); United States v. Trullo, 809 F.2d 108, 113 (1st Cir. 1987) (noting that “officers suspected
that appellant had just engaged in an illegal transaction” and finding frisk justified because “concealed
weapons were part and parcel for the drug trade”); United States v. Post, 607 F.2d 847, 851 (9th Cir. 1979)
(“It is not unreasonable to suspect a dealer in narcotics might be armed”). United States v. Oates, 560 F.2d
45, 62 (2d Cir. 1977) (finding Terry frisk justified because, to “substantial dealers in narcotics, firearms are
as much ‘tools of the trade’ as are most commonly recognized articles of narcotics paraphernalia”). Here,
as the officers conceded, there was no indication from any source—including the anonymous tipster—that
any individuals were engaged in trafficking drugs. Accordingly, we do not believe that the officers had
reasonable suspicion that Furr was armed merely because he was accused of using drugs.

                                                      14
suspicious circumstances, [appellant’s] silence when twice asked if he had any weapons,

but his immediate denial of possessing drugs, provided Kaiser with reasonable suspicion

that Tinnie was armed and thus justified the frisk.”); United States v. Noble, 364 F. App’x

961, 965 (6th Cir. 2010) (holding that officers had reasonable suspicion that suspect was

armed in part because of appellant’s “lack of response when asked if he had a weapon”);

United States v. Hudnell, 322 F. App’x 772, 773 (11th Cir. 2009) (holding that pat-down

was justified based in part on appellant’s “silence as to whether he had a weapon”); In re

P.M., No. 04-02-00691-CV, 2003 WL 1964962, at *3 (Tex. App.—San Antonio Apr. 30,

2003, pet. denied) (holding that officer had reasonable suspicion to frisk juvenile appellant

in part based on appellant’s silence when asked by police if he had a weapon in his

possession).7 Those facts, taken together, justified the Terry frisk. See Terry, 392 U.S.

at 30–31; Wade, 422 S.W.3d at 669 (noting that, to legally perform a Terry frisk, police

must have reasonable suspicion that the suspect is armed and dangerous); Carmouche,

10 S.W.3d at 329 (“[T]he additional intrusion that accompanies a Terry frisk is only

justified where the officer can point to specific and articulable facts which reasonably lead

him to conclude that the suspect might possess a weapon”).

        Because the tip in this case was utterly anonymous and made only the barest,

most basic allegations of illegality, reasonable suspicion would arise only if police

corroborated the tip with information sufficient to indicate its reliability. See Martinez, 348


        7 The United States Supreme Court has held that “a refusal to cooperate, without more, does not
furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501
U.S. 429, 437 (1991). However, Bostick and the cases it relies on discuss only whether police had
reasonable suspicion to detain, not reasonable suspicion to frisk. See id. (citing I.N.S. v. Delgado, 466 U.S.
210, 216–17 (1984); Florida v. Royer, 460 U.S. 491, 498 (1983); Brown v. Texas, 443 U.S. 47, 52–53
(1979)). Moreover, in this case there were facts other than Furr’s failure to respond promptly to the question
of whether he was armed that supported reasonable suspicion to detain—such as the fact that Furr matched
the anonymous tipster’s vague description and that he appeared to be under the influence of drugs.
Therefore, we do not believe that Bostick and the cases cited therein are applicable.

                                                      15
S.W.3d at 923 (“An inverse relationship exists between the reliability of the informant and

the amount of corroborated information required to justify the police intrusion; the less

reliable the tip, the more information is needed.”). The evidence of the totality of the

circumstances, viewed in the light most favorable to the ruling, supports the trial court’s

implicit finding that police possessed such information when they performed the Terry

frisk of Furr.   We therefore conclude that the search did not violate Furr’s Fourth

Amendment rights and that the trial court did not err in denying Furr’s motion to suppress.

                                     III. CONCLUSION

       We affirm the trial court’s judgment.


                                                    DORI CONTRERAS GARZA,
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).


Delivered and filed the
22nd day of January, 2015.




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