Halt! Who Goes There?

A while ago, I wrote about consensual police encounters and how they differ from investigative detentions. See previous posts HERE and HERE. There are several factors that courts consider when determining whether a situation amounts to a consensual encounter or an investigative detention, but the short version is that if a person submits to a police officer’s show of authority and it does not appear that the person is allowed to leave, then the situation is an investigative detention (it might even be an arrest, but that’s another analysis). While consensual police encounters can be initiated for no cause whatsoever, an investigative detention requires reasonable suspicion.

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.

The 4th District Court of Appeals (San Antonio) recently considered the whole consensual-encounter-or-investigative-detention issue in Parks v. State and reversed a trial court’s finding for abuse of discretion. The opinion did not make clear, and maybe that is part of the problem, whether the trial court concluded that the stop was a consensual encounter or an investigative detention. In any event, the Court of Appeals held that the facts of the case demonstrated that the stop was an investigative detention for which the officer must have had reasonable suspicion. Because the officer did not have reasonable suspicion, the fruits of his search should have been suppressed and case must be reversed. Once you read the facts, you’ll wonder how the trial court could have ever concluded that this was a consensual police encounter or that there was reasonable suspicion to justify an investigate detention. The Court of Appeals, I’m sure, did not labor long over this reversal.

Here’s what happened (taken from the Court of Appeals opinion). A police officer noticed four men walking behind a shopping center (strip mall). The officer shined his spotlight on the men and noticed that a couple of them had blue bandanas hanging from their pants.

Although the men were walking near the back doors of the businesses, the groups appeared to be walking past the location, no one appeared to be checking the doors to the businesses or the dumpsters, none of them appeared to react to his presence by changing his manner of walk, no furtive gestures or gang hand signals were notes, nothing passed among them, and the officer had no information that any of the group had a criminal record or was a gang member. The only factual circumstance the State appears to rely on to show reasonable suspicion is the presence of the blue rags.

There was also no testimony that the clothing that the men wore was emblematic of any gang membership. The officer drove over to the individuals, and in an authoritative tone asked them to place their hands on the car. The appellant took two steps back and looked around, so the officer repeated his request. The officer then frisked appellant and found a gun in one of his pockets.

This should have been a no-brainer for the trial court, but apparently an officer’s hunch is good enough for some trial judges. Who needs specific, articulable facts, when we can simply rely on the officer’s experience and intuition? The law does. Accordingly, the Court of Appeals reversed the conviction and remanded the case back to the trial court.

Based on this case, I also take back what I said about the San Antonio Court Appeals in this previous POST, when I jested that the Reasonable Suspicion standard was all but dead in San Antonio.  Thanks for proving me wrong.