Montano v. State
Montano v. State
Dissenting Opinion
dissents, believing that the initial detention in this ease constituted no more than an “encounter” pursuant to Florida v. Bostick, — U.S.-, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), and thus the petition was improvidently granted in the first instance.
Opinion of the Court
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of possession of cocaine with intent to deliver, sentenced to fifteen years confinement and assessed a fine of $10,000.00. Appellant’s conviction was affirmed by the Court of Appeals. Montano v. State, No. C14-90-00846-CR, 1991 WL 57257 (Tex.App.—Houston [14th Dist.] April 18, 1991) (unpublished).
This court granted appellant’s original petition for discretionary review to determine whether the Court of Appeals erred in finding that appellant’s conduct justified his temporary detention and the subsequent search of his person.
We granted appellant’s petition for discretionary review to determine whether the Court of Appeals misconstrued and misapplied Crockett and erred in concluding that appellant’s conduct was more suspicious than the conduct of the appellant in Crockett.
I.
At approximately 7:55 a.m. on April 21, 1990, two Houston Police Department narcotics officers
II.
We remanded this cause to the Court of Appeals for consideration of the facts in light of our decision in Crockett. Based •upon a meager recitation of the facts in Crockett and a single statement of law,
In Crockett, narcotics officers monitoring the Amtrack Station in Houston, Texas observed the appellant and a woman arrive
even a temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity, (citations omitted). * * * At a minimum ... the suspicious conduct relied upon by law enforcement officers 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.
Id. at 311. We further said that the issue is not whether the suspect’s behavior appears odd; rather, the suspect’s “demeanor must have been indicative of drug trafficking in particular, not merely of eccentricity.” Id. at 313. We held that the appellant’s conduct in Crockett did not justify the detention.
In the instant case, the facts known to the officers at the time at which appellant was subject to an investigatory detention
Continental Airlines employee and then bypassed ticket counters before approaching a concourse, (3) appellant was wearing a heavy leather jacket even though it was a warm and sunny day, (4) appellant handed his bag to Montalban before going through the magnetometer, whereupon Montalban placed appellant’s bag on the conveyor to be x-rayed, (5) when stopped, appellant stated that they were traveling to San Antonio on Northwest airlines (although the officers knew that Northwest Airlines did not have a flight to San Antonio at that hour), and (6) both suspects acted nervous throughout the detention.
Based upon the principles set forth in Crockett, we hold that appellant’s conduct was not sufficiently suspicious as to give rise to reasonable suspicion justifying the continued detention and pat down of appellant’s jacket. Under Crockett, in order for the officer’s detention of appellant to have been reasonable, appellant’s conduct must have been “sufficiently distinguishable from that of innocent people under the same circumstances as to clearly, if not conclusively, set [appellant] apart from [innocent people].” See id. at 311. However, none of appellant’s conduct was so beyond the norm of the conduct of innocent airport passengers as to amount to a reasonable suspicion that criminal activity was afoot. Appellant’s conduct is not any more consistent with drug trafficking than the conduct of the appellant in Crockett. It is not indicative of guilt for a person to be nervous or to look around or “scan” his surroundings. See id. at 312; see also Daniels v. State, 718 S.W.2d 702, 707 (Tex.
The judgment of the Court of Appeals is reversed and this cause is remanded to the trial court.
. Appellant’s pretrial Motion to Suppress Evidence was denied by the trial court. Thereafter, appellant entered a plea of not guilty, executed a written Stipulation of Evidence and was adjudged guilty.
. Appellant alleges in his petition for discretionary review of the Court of Appeals’ opinion on remand that:
1. The Court of Appeals has misconstrued and misapplied this Court’s decision in Crockett v. State, 803 S.W.2d 308 (Tex.Cr.App. 1991).
2. The Court of Appeals erred in finding the facts and circumstances relied upon by the arresting officers in this case were more suspicious than those articulated in Crockett v. State, supra.
3.The Court of Appeals erred in finding the actions taken by the officers in this case were considerably less intrusive than those taken by the officers in Crockett v. State, supra.
.Only one of the arresting officers, Ralph Rodriguez, testified at the hearing on appellant’s Motion to Suppress. Rodriguez testified that he had been assigned to the narcotics division of the Police Department for two years, but did not testify about the experience of the other officer.
. The officer testified that he did not fear for his safety, but that "he patted the outside of the jacket to see what the large bulge was.”
. There is an inconsistency in the officer’s testimony as to whether appellant responded immediately when asked what the object was, or whether he responded only upon being asked a second time.
. The Court of Appeals’ opinion summarized the facts leading to the appellant’s initial encounter with the arresting officers in Crockett by stating that "the arresting officers could not testify as to any activity on the part of the appellant and his companions that would sufficiently set them apart and distinguish them from innocent people who were also at the train station.” Montano v. State, No. C14-90-00846-CR, slip op. at 2, 1991 WL 256023 (Tex.App.—Houston [14th Dist.], December 5, 1991) (opinion on remand) (unpublished). The only law included in the Court of Appeals’ opinion was a quote from our opinion in Crockett stating that minor intrusions require less evidence of wrongdoing than more extensive intrusions. Id. at 3.
. In addition, the man who drove the appellant and the woman to the train station was described as “scoping the lobby for unknown purposes.” Crockett, 803 S.W.2d at 310.
. It was also noted that when the appellant and the woman left the lobby, they were walking about 10 or 15 feet apart from each other. Crockett, 803 S.W.2d at 310. One of the officers testified that “[n]ormally people traveling together would walk with each other talking about the trip.” Id. at 310 n. 4.
. In its original opinion, the Court of Appeals held that when the officer requested to search appellant’s bag, the initial encounter became an investigative stop, requiring reasonable suspicion. Montano v. State, No. C14-90-00846-CR slip op. at 5, 1991 WL 57257 (Tex.App.—Houston [14th Dist.] April 18, 1991) (unpublished). This portion of the Court of Appeals’ decision has not been challenged by either party. The State now contends that even if the encounter became a "temporary detention” when the officers searched appellant’s bag, the relationship then reverted back to one of a simple lawful encounter. Because this issue was not raised before and addressed by the Court of Appeals, either originally or on remand, it is not properly before us.
. One of the officers testified that bypassing the ticket counter was suspect because “most passengers will approach the ticket counter, trying to find out whether they need to obtain a boarding pass, whether they need to check in luggage, whether their plane is on time or whether or not it has departed.”
Reference
- Full Case Name
- Carlos Herman MONTANO, Appellant, v. the STATE of Texas, Appellee
- Cited By
- 28 cases
- Status
- Published