NO. 07-00-0544 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D OCTOBER 11, 2001

______________________________ FENNELL M. DAVIS,

Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 99-429,515; HON. W ELDON KIRK, PRES IDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Fen nell M. Davis (appellant) appea ls his conviction for possessing a controlled substance. Of the six issues r

aised, w e only add ress th e fifth an d sixt h for th ey are dispositive. And, through thos e particular issues, appellant contends that the trial court erred by admittin g evidence obtained via an illegal search. We reverse and remand the judgm ent. Backgr ound2

Appellant was charged with posse ssi ng a controlled substance, nam ely cocaine. A mo tion to suppress the ev idence of that cocaine was filed. At the hearing on the m otion, the State called the officer whoconducted the searc h of appellant who w as Officer Blakney (Blakney). Via questioning, the officer stated t hat “[he] and Offi cer Jordan, which [si c] worked t his area in the 1500 Block of 21 st , were patr

olli ng around. And this houseis in a high drug area-type situation. W e went to that location. There was several people around the sidew alk in front of the ho use , I beli eve, 1504 21 st . W e pulled up and stopped to chec k th e people th at were on the sidewalks, si nce this i s a known drug area for us." Blakneyfur

the r te stif

ied t hat 1) it w as a rou nd m idnig ht w hen they noticed the group of people, 2) the two officers stopped at the s cene and approached thegro up, 3) " [a] t th is time, as we were w

alking up, [appellant] became very nervous acting . . . would w alk from the group of peopl e towards the house . . . turn around and walk ba cktowards the group

. . . ver ynervous and j itte ry a ctin g," 4) h e ha d de alt with a ppe llant dur ing “ som e do m est ic call s” and when appellant “climb[ed] in the window to the nex

t door before that hou s e burn ed,” 5) because of appellant’s actions the officer confronted him and asked for identification and appellant provided his wallet, 6) “due to h is [appellant’s] actions, being nervous, I [t he of

fi ce r] fe lt fo r my s af et y, [a nd ] . . . wen t a he ad an d d id a p ro te ct iv e p at do wn on him for w

eapons,” and 7) a crack pipe w as discovered in appellant’s pants’ pocket. The discover yof the pipe allegedly provided the officer probable cause to arrest appellant, which the officer did. And, w hile conducting a search incident to the arrest, cocai ne also
wasdiscovered on appellant. The contraband discovered on appe llant’s person was later used as basis for the prosec ution he underwent and to support his conviction.3 Standard of Review W hether the trial court er re d in denying a motion to s uppress depends upon whether itabused its discretion. Benit ez v. State , 5 S .W.3d 9 15, 918(Te x. Ap p. - -Am arillo 1999, pet. ref’d). Whether it abused its discre tion depen ds upon whe ther, giv en the re cord before it and the applicable law, the decision fell ou ts ide t he z oneof r eas ona ble disagreement. Id. Next, while questions of law are subjec t to unfettered de novo review, the sam e is notnecess arily true w ith regard to m ixed questions of law and fact. That is, the application of law to fact is a mixed question of law an d f act. Guz man v. State , 955 S.W.2d 85, 89 (T ex. Crim. A pp. 1997). Furtherm ore, when t he resolution o f the ultimate ques tion turns on an evaluation of the credibility and demeanor of the witnesses, then we afford al most total deference to the manner i n which the trial court applied the law to the fac ts before it. The sam e deference is afforded the trial court’s dete rmination of the historical facts involved. Id. In all other situat ions, we review , de novo , th e m ann er in w hich thelaw is applied. Id. Next, itis beyond gainsay that the Uni ted St ate s an d Te xa s C ons titu tion s pr ohib it
unr eas ona ble searches. U.S. Cons t. am end. IV; Tex . Const. An n. art. I, §9 (Verno n 1997). Furthermore, a warrantl ess search is per se unreasonable. Reyes v. State , 910 S.W.2d 585, 589 (Tex . App.
-- Am arillo 1995, pet. ref’d). How ever, exceptions have been allowed bycase law dispensi ng with the need for a warrant. For instan ce, an investi gative detention is ju stified und er both t he state and fe deral cons titutions if the off icer, based on spe cifi cand articulable facts, reasonably surm ises tha t the detained person m ay be4

associated with a crim e. Te rr y v. Oh io , 392 U.S. 1, 21, 88 S.C t. 1868, 1880, 20 L.E d.2d 889 (1968); Da vis v. State , 8 29 S. W .2 d 2 18 , 2 19 (T ex . C ri m. App.1992); Graham v. State, 89 3 S. W.2d 4, 7 (T ex . A pp. – D allas199 4, n o pe t.)(ho lding tha t on ce atra ffic vio latio n wasobserved, the officers acted reasonab ly when they stopped the veh icle i n which appellant w

as a pas senger. ) A pat-down s earch during a detention i s perm issible when the police officer
rea son ably

suspects heis dealing with an arm ed and dangerous individual. Maldonado
v. State , 853 S.W.2d 746, 748 (Tex. App.--Houston [1st Dist.] 1993, no pet.) (c iting Terry
v. Oh io , 392 U. S. at 2 7, 8 8 S .Ct . at 188 3). Theoff

icer doe s no t ha ve to beabs olutely
cer tain that the individual is armed, nor does he have to ha ve probable cause to arrest. Id. Rather, the issue is whe the r a reasonably prudent person in the sam e circums tances
w ould be warra nte d in the belief t hat his or her saf ety or t hat of o thers is in danger. Id. The record m ust contain "specific and articulable facts" that, when taken together w ith rational inference s from those facts, would warrant a self-pr otective sear ch for weapons. Worthey v. State , 805 S .W.2d 435, 438 (Tex. C rim. App. 1991). Analysis In appellant’s issues five and six, he c laims that the evidence was seized in violation of 1) the Fourth Am endme nt to the United States Constitution and 2) article 1, § 9 of the Texas Cons titution. W e agree. The facts upon which the offi cer based hi s supposed need to sea rch consisted of seeing four to five people gathered at m idnight in someone ’s yard in a neighborhood known fo r drug activity while also witnessing the appellant, w ho app ear ed n erv ous , walk1 W e recognize that the State att empted to c haracterize appel lant’s walking to and f rom the group

as ev asiv e behavi or or attem pted fl ight. Yet , how can that rational ly be considered ev asiv e conduct or fl ight when appellant nev er lef t the scene, returned to the group after walking away, and approached the off icer when dir ected to d o s o. S imply p ut, itcannot. Indeed, had appell ant attempted to w alk a way, th at a ct w

ou ld nothave been enou gh to c reate reas onab le su spicion

. Gurrol a v. State , 877 S.W .2d 300, 303 (T ex. Cr im. App. 1994). One has a right to l eav e when approac hed by o fficers un les s t heoffice r ha s r ea so na ble sus picion of criminal activity before a pproa ching. Id. Leavi ng cannot supply the mi ssing articulab le facts justifying s usp icion. Id.

2 To the extent appellant stated he wa nted the other s to leave the yard becau se they w ere “d oi ng things that they was doing,” no one asked what those things that “they was doing” were. And, without any indicati on aboutth e te n o r o f t h o s e a cts , o n e ca n n o t r e a s o n a b ly

in fe r th a t t h e y w

e re s u g g e s ti ve of cri mi nal conduct. That would be tant amount to creating no n-existe nt facts. Moreov er, nothing of record indicat es that the off icers perceiv ed or could hav e perceiv ed what, if anyt hing, the group was s upposedly doing. The off icers never said they saw the group doing anything other than standing in the yard. And, if the supposed acts could not be perceiv ed by a reasonable person in the position of t he off icers, they could hardly form the basis for reasonable suspicion. 5 to and from the group several tim es. Absent is any evidence that anyone i nclu din g appellant ma de anyfurtive gestures at the tim e or that appellant attem pted to flee. 1 Absent is testimon y from the officers suggesting th at th ey saw a nyone in the group com mit a criminal act. 2 Absent is testim ony that the officers w ere directed to the area in re sponse to any reported criminal activity; indeed, neither officer testified that they had ever arrested anyone in the area for purportedly dealing in drugs. Also absent is any testim onyby either officer ill ustrating that they had reason to suspect thatappellant dealt with controlled substances or had a propens ity for violence. To the exten t either had com e in contact w ith him before, that co nt ac t i nv ol ve d “ so me domes tic calls” and appellant “climbing in the window to the next door before that house burned” (w hateve r th e la tt er mea ns). Whether any of those instances involved drug activity or violent behavior appears nowhere in the record. And, because such evidence appearsnowhere, oneis not free to i nfer that they di d entail such activity or behavior.3 According to the Gamble cou rt, “ theso le bases for the detention were (1) the area had a history of

drug sales; (2) the police had had f requentcalls to the area or the residence ov er the last year; (3) it was 3:00 a.m.; (4) [defendant ] was either standing in the street near, or walki ng in the stre et tow ard, ares idence

to which the off icers had b een called in [the] past, but at which they h ad never made arrests for dru gs o r weapo ns; and (5) appellant watched the marked police ca r and walke d aw ay from it whe n it turne d arou nd.” Gamble v. State , 8 S.W.3d 452, 4 53-54 (Tex. App.–H ouston [1 st Dist.] 1999, no p et.). 6 Itis beyond dispute that being in a high crime area does not alone create
rea son ablesuspicion justifying a search. Gurrola v. Stat e , 877 S .W .2 d 3 00 , 3 03 (T ex. Cr i m. App. 199 4). No r do es o ne’ s ac ting ner vou s alo ne p erm it an off icer to r eas ona bly suspect that his safety m ay be in jeopardy; rath er, th ere mu st be other circum stances which sugges ts the pre sence of a we apon. Horton v. Stat e , 1 6 S. W .3 d 8 48 , 8 53 (T ex. Ap p.– Au stin 2000, no pet.). Sim ilarly, nervousness alone does not constitute groundsto
rea son ably

suspect crim inal activity is afoot. Munerav. State , 965 S.W.2d 52 3, 53 1 ( Te x. App.–Houston [14 th Dist.] 1997, pet. ref’ d.). Rat her, the totality of the circum stances
con tro l, and the total ity at bar consi sts o f nothing more than a gathering of several indiv idua ls at m idnight in a yard in an area known for dr ug u se and w herein one of the indiv idua ls walks to and fro and appe ars nervous. Th ose circu m stance s are no thing m ore thatthe indi cia appea ring in Gamble v. St ate, 8 S.W.3d 452 (Tex. App. – H ouston [1 st Dist.] 1999, n o pet.). 3 An d, s incethe y did not giveriseto r

eas ona ble suspicion there, they do n ot h ere . Th e se arc h was il lega l. Next, the fruits of the illegal search were adm itted into evidence attri al and constituted the bas is o f appellant’ s conv iction. In other w ords, h ad the t rial court suppressed the ev idence asit should ha ve, the re would have been n o basis upon which the State could have prosecuted appellant. Consequently, we cannot but hold that the t rial court’ s error w

as harmful under TexasRule of A ppellate P rocedure44.2(a).7

Given their econom ic status, som e fam ilies cannot afford to live in places other than high crime neighborhoods. To hold that their gathering outside at night, walking to and fro, and becom ing n erv ousw hen police ap pro ach j ust ifiesa s ear ch of th eir

person is to further injurethem for circum stances beyond their control. We will not facilitate thatby upholding the search at bar. A

ccordingly, the j udg m ent is reversed and the caus e rema nded to the trial court for furthe r proceedi ngs.

Brian Quinn Justice
Publish.