      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00832-CR



                                   The State of Texas, Appellant

                                                   v.

                                    Jose Angel Ibanez, Appellee


              FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
              NO. 096798, HONORABLE ANNA M. BOLING, JUDGE PRESIDING



                               DISSENTING OPINION


                This case turns on the legal question of whether the detaining officers had reasonable

suspicion to believe that Ibanez was, had been, or soon would be engaged in criminal activity so as

to justify his continued detention. Viewing the evidence in its totality, I would hold that the officers

had reasonable suspicion to continue to detain Ibanez and that the trial court abused its discretion

in concluding otherwise. Therefore, I must respectfully dissent.

                “Under the Fourth Amendment, a warrantless detention of the person that amounts

to less than a full-blown custodial arrest must be justified by a reasonable suspicion.” Derichsweiler

v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011) (citing Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005)). 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.

Id.; see Terry v. Ohio, 392 U.S. 1, 21-22 (1968). This standard looks to whether there was an
objectively justifiable basis for the detention based on the totality of the circumstances

confronting the detaining officer. See Derichsweiler, 348 S.W.3d at 914. “[T]hose circumstances

may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence

of criminal conduct, an investigative detention is justified.” Id. Additionally, “the relevant inquiry

is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches

to particular non-criminal acts.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).

                On the other hand, “the facts invoked to justify an investigative detention must

support more than a mere hunch or good-faith intuition that criminal activity is afoot.”

Derichsweiler, 348 S.W.3d at 916. To support a finding of reasonable suspicion, the specific facts

articulated by the detaining officer “must show unusual activity, some evidence that connects the

detainee to the unusual activity, and some indication that the unusual activity is related to crime.”

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). However, there is no requirement

that the officer suspect that a particular offense is being committed; it is enough if the facts “suggest

that something of an apparently criminal nature is brewing.” Derichsweiler, 348 S.W.3d at 916-17

(emphasis in original).

                In this case, it is undisputed that the initial traffic stop was valid. And it is also

undisputed that the officers were justified in suspecting that the driver of the vehicle, Reyes, was

engaged in criminal activity—he had falsely identified himself to the officers three times. The

disputed issue is whether, after the driver of the vehicle had been arrested, the officers were justified

in continuing to detain Ibanez.

                As the majority observes, “an investigative detention must be temporary and last no

longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500

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(1983); Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). However, if during a valid

investigative detention the officer develops reasonable suspicion that another offense has been

or is being committed, prolonged or continued detention is justified. See Davis, 947 S.W.2d at 244-

45; Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979); Harper v. State, 349 S.W.3d

188, 191-92 (Tex. App.—Amarillo 2011, pet. ref’d); Lambeth v. State, 221 S.W.3d 831, 836

(Tex. App.—Fort Worth 2007, pet. ref’d); Hill v. State, 135 S.W.3d 267, 269 (Tex. App.—Houston

[14th Dist.] 2004, pet. ref’d); Powell v. State, 5 S.W.3d 369, 377-79 (Tex. App.—Texarkana 1999,

pet. ref’d). As with the initial detention, the continued detention is justified only if the officer

has specific, articulable facts that, combined with rational inferences from those facts, would

lead him reasonably to conclude that the detainee was involved in criminal activity. See Hill,

135 S.W.3d at 269.

               I would conclude that the record contains such facts. Officer LaRocque testified that

when he spoke with Ibanez during the traffic stop, Ibanez claimed responsibility for the vehicle,

stating that the vehicle and trailer did not belong to him but that “the truck belonged to his brother

in McAllen and that the trailer was rented.” Ibanez also told LaRocque that “he had permission to

borrow the truck and trailer and was responsible for everything in it.” According to LaRocque,

Ibanez “took full responsibility for the situation and circumstance” and stated that he and Reyes

“were traveling to New Mexico to purchase a vehicle.” Also, on the video, Ibanez can be heard

telling LaRocque that he and the driver had met in a club approximately four months ago, that

the driver did mechanical and other work for Ibanez, and that the driver had offered to “help out”

Ibanez on his trip by driving and “co-piloting” the vehicle. However, Ibanez also told LaRocque that

he could not recall the driver’s last name. LaRocque could have rationally inferred from this and

                                                  3
other evidence that Ibanez was connected to or even responsible for the driver’s deceptive and

suspicious behavior.

               LaRocque additionally testified that although Ibanez claimed that the truck

“belonged to his brother,” the vehicle was actually “registered to a woman” by the name of

Cecilia Ibanez. Although this woman had the last name Ibanez, LaRocque testified that Ibanez was

a “common name” that did not necessarily indicate that the woman was married to Ibanez’s brother.

Thus, LaRocque could have rationally inferred from this evidence that Ibanez was being deceptive

or at the very least not providing full disclosure as to the ownership of the vehicle.

               LaRocque also found it suspicious that Ibanez claimed that he and Reyes were

traveling to New Mexico when they were in fact headed north on I-35 well beyond a highway that

goes to New Mexico. LaRocque explained, “[Ibanez] stated he was headed to I-10 westbound to go

to New Mexico, and yet he’s on I-35 in San Marcos; that’s a good half-hour, 45 minutes off course.”1

When LaRocque asked Ibanez to explain why they were “so off course,” he recalled Ibanez telling

him that “they were lost or missed their turn.”

               LaRocque further testified that I-35 is a major drug artery for running drugs from

Mexico; that in his experience, drug runners “commonly” use vehicles that are not registered to

them; that the driver of the vehicle exhibited the characteristics of a drug runner; and that both the

driver and the passenger told him that they were going to New Mexico even though they were headed

in the wrong direction. From these facts, based on his training and experience, LaRocque believed

that there were drugs in the vehicle. LaRocque summarized the reasons for his suspicion as follows:


       1
        On the video, one of the officers can be heard questioning why they were even on I-35,
when Highways 83 and 281 were more direct routes from McAllen to I-10.

                                                  4
       Actually the vehicle was coming from a known drug location, coming from South
       Texas, the border of Mexico, was traveling north, the driver and passenger off course.
       The vehicle and trailer didn’t belong to them. The driver was extremely nervous and
       gave us fictitious information, so our suspicions were high that some kind of criminal
       activity was going on.


               Although any one of the above facts in isolation might not appear suspicious,

we are to consider the evidence in its totality. When considering the evidence in that light, I would

conclude that the specific facts articulated by Officer LaRocque, combined with rational inferences

from those facts, provided him with reasonable suspicion to continue to detain Ibanez. The totality

of the evidence “shows unusual activity,” “connects the detainee to the unusual activity,” and

provides “some indication that the unusual activity is related to crime.” See Martinez, 348 S.W.3d

at 923. Accordingly, I would reverse the suppression order of the trial court and remand for further

proceedings. Because the majority does not, I respectfully dissent.2



                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Filed: July 6, 2012

Do Not Publish




       2
          The majority also addresses the issue of whether in the absence of reasonable suspicion,
the continued detention was justified by Ibanez’s consent to search the vehicle. Because I would
conclude that there was reasonable suspicion to prolong the detention, I would not address this issue.

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