COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS THE STATE OF TEXAS, Appellant,

v. HENRY SHEL TON, Appellee

. § § § § § § No. 08-08-00019- CR

Appea l from the 292nd District Court of Da llas County , Texas (TC# F06- 63932-V)

O P I N I O N I n separ ate case s, Appellee was char g ed with possession of coca ine and possession of

m et h amphetamine, eac h arising from the same fac ts. Appellee moved to suppress the illega l

narc otics alleg ing tha

t his investiga tive detention was made without reasona ble suspicion and that the war rantless sear ch, and the fruits there of, wer e illega l. Following an evidentiar y hear ing, the trial court g rante d Appellee ’s motion. The State now appea ls the trial court’s order g ranting Appellee ’s motion to s uppress. We re verse and re mand for f urther pr ocee dings. BACK GR OUND The following evidenc e was elicited at the evidentiar y hear ing. Offic er J oseph Allen, a near nine-y ear veter an of the Dallas Police Depa rtment, and two other office rs, wer e p ar t o f a “notoleranc e” patrol unit known as Oper ation Disruption, which deploy ed office rs into high- crime are as for the purpose of reduc ing crime. On M arc h 24, 2006, the three office rs wer e in a mar ked squad

car patrolling an are a of Dallas known for prostitution, violent crime, and drug activity for the purpose of disrupting any illega l activity

. At approximately 10:30 p.m., the office rs pulled into the drivewa y of a motel that was well-known for violent crime, prostitution, and drug use. The office rsobserve d the are a for sever al minutes and then proce eded down the drivewa y wher e they saw three individuals sitti ng for a leng th of time in a leg ally -par ked truck. Offic er Allen considere d these circ umstances to be suspicious beca use the truck was not running , did not have its headlig hts on, did not a ppear to be leaving or to have rec ently arr ived, and the oc cupants we re not moving inside the vehicle. Additionally , no one left the truck to enter a room and no one exit ed fr o m a ro o m t o approa ch the truck. Although there was suff icient room for the occupa nts in the truck to le ave the parking lot, t h ey d i d n o t do so during the four- to five-minute period when the office rs wer e observing them. The office rs shone a spotlight on the truck a nd observe d Appellee in the driver’ s seat and two y oung women in the cab of the truck making furtive g estures and moving around as if try ing to hide something . Offic er A llen thought that Appe llee may have be en attempting to cover himself or pull up his pants. Du e t o t he time of night and the circ umstances of his observa tions, Offic er Allen believed that prostitution or another lewd act was occur ring in the truck. The office rs decide d to make contac t with the occupa nts in the truck. Wit hout activating the overhe ad lights, the office rs parke d the squad car perpe ndicular to Appellee ’s truck, in order to make a stop and to keep the occupa

nts from leaving

. Offic er All en t estified that, althoug h they did not want Appellee to leave at that point, if Appellee had attempted to drive awa y , the office rs would have investiga ted the license plate information t o see if the vehicle was stol en. Offic er Allen disag ree d that Appellee ’s decision to stay

in the parking lot was more c onsistent with innocent activity than i f Appellee had decide d to drive aw ay . Offic er Allen approa ched Appellee while the two other office rs approa ched the women who

wer e seate d in the truck. As the office rs approa ched the truck, it bec ame appar ent that the women in the truck looked r elatively y oung . The other

office rs spoke with the females and then removed them from the vehicle in ord er t o d et er m ine whether or not their clothing was in disarra y . Theoffice rs deter mined that the fema les wer e 15 and 17 y ear s old, that Appellee was 43 y ear s old, a nd that they bare ly knew eac h other. Although Offic er Allen observe d that Appellee ’s clothes wer e not i n d i s ar ra y afte r approa ching the truck, he asked Appellee his name, date of birth, and other identify ing information and why Appellee was in the parking lot. Appellee indicated that he was there with his friends, the two g irls, and they wer e visiti ng a friend. During the interview, the three indicated that they had no business there other than to meet a friend, but the g irls could not name any friends who wer e stay ing at the motel. Appellee and the g irls g ave conflicting information to the office rs, and Appellee did not know the g irls’ last names or wher e they lived. Even though Offic er Allen could not deter

mine whether or not the three had been eng ag ed in any sexual ac t i v i t y , he thought, once he lear

ned the girls’ a g es, something more may have be en occ urring

. Offic er Allen felt it was nece ssary to investiga te the situation a bit longe r g iven that Appellee , a 43-y ear -old man, was sitting in a tr

uck with t wo y oung fema les at ni g ht in a mot el parking lot located in an ar ea of town with a bad reputa tion for drug s, prostitution, and other criminal activity , and he was conce rned that other c rimes wer e at issue. Of fice r Allen testified tha t he and the other office rs continued the investiga tion beca

use they did not know if Appellee had abducte d or picked up the g irls rec ently , if he int ended to or had alre ady done h ar m t o t h em , if the girls wer e not being forthcoming beca use they felt that they

wer e in dang er, or

if the g irls were runaw ay s. Although the office rs wer e u n able at the time of the initial encounte r to deter mine that Appellee had done any

thing wrong , beca

use Appellee was exhibi ting extreme nervousne ss, beca use of the time of night an d other circ umstances, and beca use of the furtive g estures, Offic er Allen

remove d Appellee from the truck and co nducted a pat down for wea pons to ensure his safe ty

. Offic er Allen testified that as a result of his training , it is common prac tice to sear ch for wea pons in order to prese rve office r safe ty when a person is acting more nervous than they should as a result ofcontac t with police.

During the pat-down sear ch, Officer Allen obs erve d what he thought was the t op part of a sy ring e protruding about one-inc h from Appellee ’s front left pants pocket. Be cause a sy ring e with

a n ee d l e can harm a person who is frisking for wea pons, Offic er Allen remove d the item from Appellee ’s pocket and discovered t h at t h e i t em was not a sy ring e but, instead, was a 2 1⁄2 -3 inch straw with white residue on the interior and with o n e end cut at a 45-deg ree ang le. Ba sed on his training and experience , Offic er Allen deter mined that the straw co n stitut ed drug para pherna lia. Off i ce r Al len then place d Appellee under arr est for possessing drug para pherna lia and, incident there to, sear ched Appellee and his truck. On Appellee ’s person, Offic er Allen fo u n d a t i n can in which two small bag g ies wer e located, one containing coca ine and the other methamphetamine. A .22 caliber handg un was also found in the bed of Appellee ’s truck. Offic er Allen stated that he did know about the g un at the time of his initial encounter with Appellee. A

ppellee was place d under

arr est for posse ssion of coca ine and methamphetamine. At t h e conclusion of the evidentiar y hear ing, the trial court stated that it believed Of fi ce r Allen’s testimony but never theless g rante d Appellee ’s motion to suppress. The State there afte r filed a motion for re consideration, which was ove rruled by opera tion of law. As reque sted by the S tate, the trial court iss ued written findings of f act a nd conclusions of law in support of its ruling

. The trial court specific ally deter mine d t h at : (1) Offic er Allen’s descr iptions of the furtive g estures wer e specula tive and not fac t based; (2) there was no basis in fac t to support Offic er Allen’s belief that some form of prostitution or lewd conduct was occur ring ; (3) Appellee ’s g estures wer e as consistent with innocent activity as with illegal ac tivity ; (4) Offic er Allen had no leg al basis to stop Appellee had he chosen to drive awa y from the scene ; (5) althoug h Offic er Allen did not observe any illega l activity , he approa ched the driver’ s side of t h e t ru ck forfurther investiga tion; (6) Appellee ’s ner

vousness, standing alone, did not justify his detention; (7) Offic er Allen had no articula ble facts to suspect Appellee ha d been or was invol ved in any illega l activity ; (8) there was no fac tual basis for believing Appellee pos ed a threa t to Offic er Allen; (9) Offic er Allen had no lawful authority to order Appellee to exit h i s v eh i cl e; (10) Offic er Allen’s initial investiga

tion was proper ; (11) upon deter mining that no illega l activity was occur ring , Offic er Allen had no rig ht to detain or arr est Appellee ; and (12) all actions of Offic er Allen afte r the initial detention and a

rre st were the produc ts of an illeg al sea rch a nd seizure of Appe llee. DISCUSSIO N I n its sole issue on appea l, the State alleg es that the trial court committed err or when i t g rante d Appellee ’s motion to suppress evidence . We ag ree . Standard of Review We revie w a trial cour t ’s ruling on a motion to suppress based upon an alleg ed lack of probable cause or rea sonabl e s u s p ic io n u s in g th e bifurcated standard of revie w articula ted in Guzman

v. State , 955 S.W .2d 85 (Tex. Crim. App. 1997). See Carmouche v. State , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000), citing Guzman v. State , 955 S.W .2d 85, 88-89 (Tex. Crim. App. 1997); Krug v. State , 86 S.W .3d 764, 765 (Tex. App.–El Paso 2002, pet. ref ’d); Urquhart v. State , 128 S.W .3d 701, 704-05 (Tex. App.–El P as o 2003, pet. ref ’d). I n a suppression hear ing, the trial court is the sole finder of fac t a nd may believe or disbelieve any of the e vidence prese nted. Alvarado v. State , 853 S

. W

. 2 d 17, 23 (Tex. Crim. App. 1993); Pace v. State , 986 S.W .2d 740, 744 (Tex. App.– E l P as o 1999, pet. re f’d)

. When a trial court files finding s of fa ct and c onclusions of law, the c ourt’s finding s of fac t will not be disturbed on appea l absent an abuse of discretion. State v. W ood , 828 S.W .2d 471, 474 (T ex . App.–El Paso 1992, no writ); see also Cantu v. State , 817 S.W .2d 74, 77 (Tex. Crim. App.1991) (t ri al co u rt ’s finding s should not be disturbed absent clea r abuse of discretion). We aff ord almost total defe renc e to the t ri al co urt’s express or implied deter mination of historical fac ts and revie w de novo the court’s application of Four th Amendment sear ch and seizure law to those fac ts. State v. Ross, 32 S.W .3d 853, 856 (Tex. Crim. App. 2000); Carmouche , 10 S.W .3d at 327; Krug , 86 S.W .3d at 765; Urquhart , 1 2 8 S

. W.3d at 704-05. Such defe renc e is also aff orded to deter minations of m i x ed q u es t ions of law and fac t when their resolution depende d on witness

cre dibilit y and demea

nor. Ross , 32 S.W .3d at 856. Howeve r, mix ed questions of law and fac t that do not turn on witness cre dibilit y and deme anor a

re r eviewe d de novo

. Id. Applicable Law Terry Stops and Reasonable Suspicion Three c a te g o r ie s o f in

te r a c tions betwee n office rs and citizens exis t: encounte rs, investiga tive detentions, and arr ests. State v. Perez , 85 S.W .3d 817, 819 (Tex. Crim. App. 2002), citing Francis

v. State , 922 S.W .2d 176, 178 (Tex. C ri m. App. 1996). An encounte r is a friendly exchang e of pleasa ntries or useful information. Terry v. Ohio , 392 U.S. 1, 13, 22, 88 S.Ct

. 1868, 1875-76, 1880, 20 L .Ed.2d 889 (1968). Police a re not r equire d to possess any particula r leve l of suspicion befor e interac ting with a citizen in an encounte r beca use the citizen is under no compuls i o n t o re m ain. Hawkins v. State , 758 S.W .2d 255, 259 (Tex. Crim. App. 1988); Daniels v. State , 718 S.W .2d 702, 704 (Tex. Crim. App. 1986). Moreove r, a police office r “do[es] not violate the Four th Amendment by mere ly approa ching an individual on the street or in another public place , by asking him if he is willing to answe r som e questions, by putting questions to him if the person is wi l l i n g to listen, or by offe ring in evidenc e in a criminal prosec ution his voluntary answe rs to suc h questions.” Perez , 85 S.W .3d at 819, citing Florida v. Bosti ck , 501 U.S. 429, 434, 111 S.Ct

. 23 8 2 , 1 1 5 L

. E d

. 2d 389 (1991). I n short, an encounte r is a seizure-fr ee in t er ac t i o n b etween an office r and a citizen, andbeca

use the citizen is under no compulsion to rema in, an offi ce r is not require d to possess any particula r leve l of suspicion. Hawkins , 758 S.W .2d at 259; Daniels , 718 S.W .2d at 704. I n an investiga tive detention, law enfor ceme nt office rs may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally require d for probable cause to arr est. Terry , 392 U.S. at 22, 88 S.Ct .at 1880. Under the Four th Amendment and the Terry line of case s, the U.S. Supreme Court has held that an o ff i ce r m ay conduct a brief, investiga tory stop when the office r has a reasonable , articula ble s uspicion that criminal activity is afo o t

. Terry , 392 U.S. at 30, 88 S.Ct .at 1885; Brother v. State , 166 S.W .3d 255, 257 (T ex . Crim. App. 2005), cert. denied , 546 U.S. 1150, 126 S.Ct

. 1172 (2006); Kothe v. Stat e , 152 S.W .3d 54, 63-64 (T ex . Crim. Ap p . 2 0 0 4 ). The office r must be able to articula te more than an “inchoa te and unparticula rize d suspicion or ‘hunch’ ” of criminal activity

. Terry , 392 U.S. at 27 , 8 8 S

. C t. at 1883; Illinois v. W ardlow , 528 U.S. 119, 124, 120 S.Ct

. 673, 145 L .Ed.2d 570 (2000). The level of suspicion, howeve r, is considera

bly less than proof of wrong doing by a preponde ranc e of the evidenc e and need not rise to the level of probable cause . United St a t es v. Sokolow , 490 U.S. 1, 7, 109 S.Ct

. 1581, 1585, 104 L

. E d

. 2d 1 (1989). “Rea sonablene ss,” under Four th Amendment standards, is a fac t-specif

ic inquiry measure d in o b j ective terms by examining the totality of the circ umstances. Kothe , 152 S.W .3d at 63. The conce p t o f re as o n ab l e suspicion is not rea dily , or even usefully , reduc ed to a neat set of leg al rules and in evalua ting the validity of such a stop, we must make a fac ts p ec i fi c inqui ry measure d in objective terms by considering the t otality of t he circumstance s, that is, the whole picture. Ornelas v. United Sta t es , 517 U.S. 690, 695, 116 S.Ct

. 1657, 1661, 134 L

. E d

. 2 d 9 1 1 (1996); Illinois v. Gates , 462 U.S. 213, 232, 103 S.Ct

. 2317, 2329, 76 L .Ed.2d 52 7 (1983); United States v. Cortez , 449 U.S. 411, 4 1 7 , 1 0 1 S .Ct. 690, 695, 66 L .Ed.2d 621 (1981); Kothe , 152 S.W .3d at 63. A deter mination of rea sonable suspicion must be based on common sensejudgme nts and inferenc es about human behavior as well. W ardlow , 528 U.S. at 125, 120 S.Ct

. at 676. Whil e a person’ s prese nce in an are a of expected criminal activity , standing alone, is not enoug h t o support a rea sonable, particula rized suspicion that the person is committing a crime, office rs are not r equire d to ig nore the rele vant char acte ristics of a location in dete rmining whether

or not the circ umstances are sufficie ntly suspicious to war rant further investiga tions. W ardlow , 528 U.S. at 124, 120 S.Ct

. at 6 7 6 , ci t ing Brown v. T exas , 443 U.S. 47, 99 S.Ct

. 2637, 61 L .Ed.2d 357 (1979); Adams v. W

illiams , 407 U.S. 143, 144, 147-48, 92 S.Ct

. 1921, 32 L .Ed.2d 612 (1972). Where conduct justify ing a stop is ambiguous and susce ptible of an innocent explanation, of fice rs may detain an individual for the purpose of resolving the ambig uity

. W ardlow , 528 U.S. at 125, 120 S.Ct

. at 677; Terry , 392 U.S. at 5-6, 30, 88 S.Ct

. at 1871-72, 1884. A se ries of a cts, ea ch of the m perha ps innocent when v i ew ed separ ately , may war rant further investiga tion when considere d toge ther. Sokolow , 490 U.S. at 9 , 109 S.Ct

. at 1586. When revie wing the totality of the circ umstances, we must see whether the detaining office r has a “par ticularized and objective basis” for suspec ting leg al wrong doing, a nd this process allows office rs to draw on the ir own experienc e and specia liz ed training to make infere nces from and deductions about the cumulative information available to them that “migh t we l l el u d e an untrained person.” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct

. 744, 750-51, 151 L .Ed.2d 740 (2002); see, e.g., Cortez , 449 U.S. at 417-18, 101 S.Ct . at 695. Protective Sea

rch f or Weapons Even in the absenc e of probable cause , an office r is permitted to conduct a limit ed sear ch of a suspect’s outer clothing t o locate weapons, when an office r reasonably beli ev es t hat t he suspect is arme d and dang erous to t h e office r or others in the are a. Carmouche , 10 S.W .3d at 329. Thepurpose o f t h e sear ch is to allow the office r to pursue his investiga tion without fea r of violence, rathe r than to discover

wea pons. Balentine v. State , 71 S.W .3d 763, 769 (Tex. Crim. App. 2002), citing Adams, 407 U.S. at 146, 92 S.Ct

. at 1923. Howeve r, an office r need not be absolutely cer tain that an individual is arme d befor e conducting the sear ch as the issue is whether a rea sonably prudent person would justifiably believe t hat he or others wer e in dang er. Balentine , 71 S.W .3d at 769, citing O’Hara v. State, 27 S.W .3d 548, 551 (Tex. Crim. App. 2000). To support a protec tive frisk

or detention, there mus t be fac ts that, when revie wed under an objective standard, would cause a

rea sonably cautious person to believe that the action taken was rea sonable or that the person frisked

was prese ntly arme d and dang erous. State v. Sheppard , 271 S.W .3d 281, 287-88 (Tex. Crim. App. 2008), citing O’Hara v. State, 27 S.W .3d at 551 (re g ardle ss of whether a poli ce office r st ates that he was afr aid of the suspect, the validity of the sear ch must be analy zed by deter

mining whether the fac ts available to the office r at the time of the sear ch would war rant a rea sonably cautious person to believe that the action taken was appropr iate). A failure to articula te a lawful basis for the frisk does not mean it was illega l. Sheppard , 271 S.W .3d at 288, citing United States v. W allen , 388 F.3d 161, 167 (5th Cir. 2004) (the subjective moti v at i o n s of police are irrele vant to deter mining whether a

sear ch or se izure is reasona ble under the Four th Amendment). Application of L aw to Facts I n this case , the trial court deter mined that Offic er Allen’s initial investiga tion to deter mine whether Appellee was involved in p ro s t i t u t i o n or lewd conduct was proper . The trial court then conclude d that it was improper for Offic er Al l en t o detain or arr est Appellee upon making that deter mination that no illega l activity was occur ring , and as a result, suppressed all evidenc e resulting from the de tention and ar rest. Def err ing to the t rial court’s deter mination th at h e believed Office r All en’s testim ony , therec ord shows that upon initially encounte ring Appellee who was seate d in the vehicle and seeing that

his clothes we re not in disarra y , Offic er Allen’s conce rns about possible prostitution and lewd behavior taking place in the vehicle wer e dispelled. This encounte r was consensua l and did not rise to the level of an investiga tive detention. T er r y , 392 U.S. at 13, 22, 88 S.Ct

. at 1875-76, 1880; Perez , 85 S.W .3d at 819, citing Bostick , 501 U.S. at 434, 111 S.Ct . at 2386. Although his initial suspicion that Appellee may have been involved i n p ro s t itution or another lewd act dissipated during the initial encounte r, the new information Offic er Allen and the ot h er o ff icer s lear ned from the encounte r, espec ially when considere d in light of the rema ining circ umstances, g ave rise to new and differ ent suspicions. I n sum, at that point, Offic er Allen knew that Appellee , a 43-y ear -old man, was nervous and alone at 10:30 in the evening with two g irls 15 and 17 y ear s old in a truck outside of a motel, in an are a that was known for its crime, prostitution, and drug activity

. He additionally knew that Appellee , who claimed that the g irls wer e his friends, did not kno w t h eir full names, nor wher e they lived. I n fac t, the g irls did not know eac h other. Offic er Allen at that timed formed a rea s o n ab l e s uspicion that other crimes may be “at issue,” i n cludi ng the possibili ties that the g irls had been abducte d by Appellee , that Appellee m ay h av e intended to or may

have a lrea dy

harme d the g irls, and that the g irls may possibly be runa way s. Apply ing the appropr iate “totality of the circ umstances” analy sis in a de novo revie w, we find that the trial court err ed when it conclude d that Offic er Allen’s detention of Appellee was improper. Ross, 32 S.W .3d at 856; Carmouche , 10 S.W .3d at 327; K r u g , 8 6 S.W .3d at 765; Urquhart , 128 S.W .3d at 704-05. Ba sed upon a totality of the circ umstances, we find that Offic er Allen had

rea sonable suspicion to detain Appellee for the purpose of investiga ting and resolving the ambig uities arising fr o m t he initial encounte r and deter mining whether Appellee ’s conduct was susceptible of an innocent explanation. Gates , 462 U.S. at 232, 103 S.Ct

. at 2329; Cortez , 449 U.S.at 417, 101 S.Ct. at 695; Kothe , 152 S.W .3d at 62-63.

These fac ts also form the basis for revie wing whether Offic er Allen’s frisk of Appellee for

wea pons was proper . I n analy zing the validity of the sear ch, we must deter mine whether or not the fac ts available to the office r at the time of the sear ch would war rant a rea sonably cautious person to believe tha t the action take n, the frisk, was appropr iate. The frisk took pla ce in a n are a known f

or its prostitution, drug use, and violent crimes and, indeed, the three office rs wer e deploy ed as part of

a patrol unit de signa ted to disrupt such activities. I n this location, Appellee was found to be in the comp any of two y oung g irls, some twenty -seve n y ear s his junior, whose names he did not fully know. Appellee did not know wher e the g irls lived and the g irls did not know eac h other. Appellee and the girls were outside of a motel and every one appear ed very nervous. Appellee a nd the g irls provided conflicting stories and had made furtive g estures. Viewe d objectively , we find that these fac ts as they exis ted at the time of the sear ch would war rant a rea sonably cautious person to believe that Offic er Allen’s protec tive sear ch was appropr iate. Terry , 392 U. S

. at 5-6, 21-22, 30, 88 S.Ct

. at 1871, 1879-80, 1884; W ardlow , 528 U.S. at 125, 120 S.Ct . at 676-77. During the sea

rch, O ffice r Allen saw

and re moved an item that he be lieved to be a sy ring e and, thus , potentially harmful to him. Upon removal, the item was found to be a short straw with residue and was considere d to be drug para pherna lia. At that time, Offic er Allen was authorized to

arr est Appellee for possess i o n of drug para pherna lia and sear ch him incident to the arr est. T E X . H E A L T H & S A F E T Y C O D E AN N . § 481.125 (Ve rnon 2003); State v. Ball ard, 987 S.W .2d 889, 89 2 (Tex. Crim. Ap p . 1 9 9 9 ) (o nce an office r has probable cause to arr est, he may conduct a sear ch incident to that arr est; it is irrele vant that the arr est occur s immediately befor e or afte r the sear ch, as long as sufficie nt pr obable cause exis ts f or the office r to a

rre st befor e the sear ch). The contra band found as re sult of the sear ch incident to Appe llee’s a rre st le d to the underly

ing char g e in this case .Be cause the objective fac ts support the appropr iateness of the pat-down sear ch for wea pons,

we find that the trial court err ed in concluding that the wea pons sear ch of Appellee ’s person and the contra band found as a co n s equenc e thereof were illega l. Acc ording ly , we sustain the S tate’s sole issue. CONCLUSION The trial c ourt’s orde r g rantingthe motion to suppress is rever sed and the cause is

rema nded for further proce eding s.

GUADA L UPE RI VERA, J ustice Fe bruar y 10, 2010 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)