No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS. LOLISHA RENEE ALIU, Appellant. THE STATE OF TEXAS, Appellee

Transcription

1 No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS LOLISHA RENEE ALIU, Appellant v. THE STATE OF TEXAS, Appellee Appeal from County Criminal Court No. 6 of Dallas County, Texas Cause No. M APPELLANT S BRIEF Lynn Richardson Chief Public Defender Counsel of Record: Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office Katherine A. Drew State Bar Number: Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas County Public Defender s Office Dallas, Texas (214) (telephone) (214) (fax) brian.portugal@dallascounty.org ATTORNEYS FOR APPELLANT

2 LIST OF PARTIES APPELLANT DEFENSE COUNSEL AT TRIAL APPELLANT S COUNSEL ON APPEAL STATE S COUNSEL AT TRIAL Lolisha Renee Aliu Brooke Busbee Attorney at Law 703 McKinney Avenue, Suite 312 Dallas, TX Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office 133 N. Riverfront Blvd., LB 2 Dallas, Texas Lewis George Assistant Criminal District Attorney Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas STATE S COUNSEL ON APPEAL Craig Watkins (or his designated representative) Dallas County District Attorney s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas ii

3 TABLE OF CONTENTS LIST OF PARTIES... ii INDEX OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 1 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 5 Issue The trial court erred by refusing to suppress evidence obtained in violation of the Fourth and Fourteenth Amendments to the federal constitution Issue The trial court erred by refusing to suppress evidence obtained in violation of Article I, Section 9 of the Texas constitution PRAYER CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE iii

4 INDEX OF AUTHORITIES Cases Aliu v. State, No CR, 2011 Tex. App. LEXIS 32 (Tex. App. Dallas Jan. 4, 2011, no pet. h.)... 2 Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005)... 6 Carter v. State, S.W.3d, No. PD , 2010 Tex. Crim. App. LEXIS 101 (Tex. Crim. App. March 24, 2010)... 8 Castro v. State, 227 S.W.3d 737 (Tex. Crim. App. 2007)... 6 Florida v. Bostick, 501 U.S. 429 (1991)... 7 Florida v. J.L., 529 U.S. 266 (2000)... 6 Ford v. State, 237 S.W.3d 720 (Tex. Crim. App. 2005)... 5 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)... 8 Illinois v. Wardlaw, 528 U.S. 119 (2000)... 6 Johnson v. State, 146 S.W.3d 719 (Tex. App. Texarkana 2004, no pet.)... 6 Johnson v. State, 912 S.W.2d 227 (Tex. Crim. App. 1995)... 5 May v. State, 780 S.W.2d 866 (Tex. App. Dallas 1989, pet. ref d)... 5 Michigan v. Chesternut, 486 U.S. 567 (1988)... 7 Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006)... 8 State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008)... 7, 10 iv

5 State v. Griffey, 241 S.W.3d 700 (Tex. App. Austin 2007, pet. ref d)... 6 Terry v. Ohio, 392 U.S. 1 (1967)... 6 United States v. Barry, 394 F.3d 1070 (8th Cir. 2005)... 7, 10 Walker v. State, No CR, 2010 Tex. App. LEXIS 1036 (Tex. App. Dallas 2010, no pet. h.)... 6, 9 Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997)... 5 Other Authorities 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE 9.4(a), at 427 (4th ed. 2004)... 7, 10 v

6 TO THE HONORABLE COURT: Appellant Lolisha Renee Aliu submits this brief in support of her appeal of an order of County Criminal Court No. 6 for Dallas County, Texas in cause number M , the Honorable Angela King, Judge presiding. STATEMENT OF THE CASE Appellant was charged by information with unlawful carrying of a handgun. (CR: 48). Appellant moved to suppress the evidence against her. (CR: 15). The trial court denied the motion. (CR: 17). Thereafter, Appellant pled no contest. (CR: 35). The trial court deferred a finding of guilt and placed Appellant on community supervision for a period of 12 months. (CR: 35). Appellant gave timely notice of appeal. (CR: 6). ISSUES PRESENTED 1. The trial court erred by refusing to suppress evidence obtained in violation of the Fourth and Fourteenth Amendments to the federal constitution. 2. The trial court erred by refusing to suppress evidence obtained in violation of Article I, Section 9 of the Texas constitution.

7 STATEMENT OF FACTS 1 At Appellant s suppression hearing, Dallas Police Officer Brad Walker testified that he was working as a patrol officer with a partner on September 18, 2005, in the 2600 block of Clarence Street, at approximately 5:45 p.m. (RR: 10 11). Walker testified that there was a high volume of drug activity in that area and that he had received complaints about open air drug sales in that area. (RR: 11). There was some foot traffic in the area. (RR: 12). Walker and his partner observed a Ford Escort parked in an unpaved field behind a duplex. (RR: 12). It was daylight outside, and Walker could see that the parked car had two occupants. Id. Walker had received complaints about drugs being sold from cars in the vacant field, so he went to make contact with the vehicle. (RR: 13). When Walker and his partner approached the car on foot, Walker observed some movement in the car, attempting to manipulate objects underneath their seat, so Walker asked the occupants to get out of the car. (RR: 13 14). The vehicle s windows did not have a heavy tint, and with the daylight Walker saw that a black female (Appellant) was in the driver s seat, and a black male was in the passenger s seat. (RR: 14). When the occupants exited the vehicle, Walker and his partner frisked them to determine whether they had any weapons. (RR: 16 17). Walker s partner noticed a 1 The following facts are reflected in a transcript of the hearing on Appellant s motion to suppress in a related felony case. This Court decided the appeal in that case in an unpublished opinion, Aliu v. State, No CR, 2011 Tex. App. LEXIS 32 (Tex. App. Dallas Jan. 4, 2011, no pet. h.), after previously denying Appellant s motion to consolidate the appeals. A reporter s record of that hearing was filed with the trial court in this case as the basis for suppressing the evidence against Appellant. That reporter s record can be found beginning on page 18 of the clerk s record in this case. References, however, are noted by the page of the reporter s record. For example, page 22 of the Clerk s record contains a condensed version of pages 5 8 of the reporter s record of the suppression hearing. If citing page 6, Appellant would therefore cite (RR: 6) rather than (CR: 22). 2

8 handgun under the driver s (Appellant s) seat. (RR: 17). Walker and his partner then handcuffed Appellant and the passenger. Id. Walker looked inside the passenger s side of the vehicle and saw a second handgun under it. (RR: 18). Walker and his partner also discovered crack cocaine in the car a bag inside a purse underneath Appellant s seat and a bag inside a Crown Royal liquor bag under the passenger s seat. Id. Walker testified that when he and his partner searched and found the drugs, they had already detained Appellant and the passenger for weapon charges because they had determined that neither had a concealed handgun license. (RR: 19). But Walker also testified that the drugs were found in the course of the Terry frisk because the two had already been detained for having weapons, and the purse and liquor bag were large enough to contain a weapon. (RR: 19 20). On cross examination, Walker could not recall the name of anyone giving tips about drug sales in the area. (RR: 25). As far as Walker could recall, the tip was anonymous. (RR: 26). The tip was made several days to a week before the incident. (RR: 26). As far as specificity, the tip was simply that there were people dealing drugs from cars in the area. Id. Walker s reason for searching the car was a Terry frisk of the car; neither Appellant nor the passenger had any weapons on them discovered during the frisk of their persons. (RR: 27 28). Walker s partner, Kent Wolverton, testified that the area around 2600 Clarence Street was a problem sector with a lot of open fields and a lot of foot traffic. (RR: 30). Wolverton and Walker had received complaints of open air drug sales, drug sales from 3

9 cars, and drug sales from apartments. (RR: 30 31). Wolverton testified that there was one woman in particular who called regularly, but Wolverton did not remember her name. (RR: 31). The woman called fairly often to alert police that drugs were being sold from a specific vehicle. (RR: 31). On the day in question, Wolverton observed the red car that we had been told that drugs were supposed to be sold from in that area. (RR: 32). Wolverton and Walker observed a car parked on an unimproved piece of land, which raised their suspicions. (RR: 33). Wolverton had an idea that that was the vehicle that was supposed to be used in the drug sales in that area. Id. When Wolverton and Walker approached, the car s occupants both kind of dipped down like they were trying to stuff something underneath their seat. They looked over at us and they start hiding stuff underneath the seats. (RR: 34). The vehicle was not running when the officer arrived. (RR: 35). Wolverton and Walker had the occupants exit the vehicle. (RR: 36). Appellant was in the driver s seat. Id. Wolverton checked the inside of the car and saw the handle of a semi-automatic pistol jetting out from under the driver s seat. Id. Wolverton arrested Appellant for unlawful carrying of a weapon. (RR: 37). Walker discovered a pistol under the passenger s seat, along with a Crown Royal bag, which contained cocaine. (RR: 37 38). SUMMARY OF THE ARGUMENT The record in this case does not support the trial court s conclusion that the arresting officers had reasonable suspicion to order Appellant to exit the vehicle, thereby detaining her, because the officers had no evidence that criminal activity had occurred, 4

10 was occurring, or would soon occur. The seizure of Appellant was thus illegal and the resulting evidence should have been suppressed. ARGUMENT Issue 1 The trial court erred by refusing to suppress evidence obtained in violation of the Fourth and Fourteenth Amendments to the federal constitution. Issue 2 The trial court erred by refusing to suppress evidence obtained in violation of Article I, Section 9 of the Texas constitution. (Jointly Argued) 2 The trial court should have granted Appellant s motion to suppress because the evidence discovered by the officers was tainted by their illegal seizure of Appellant in violation of the Fourth Amendment to the federal constitution and Article I, Section 9 of the Texas Constitution. Applicable Law Substantive Law To detain a person for investigative purposes, an officer need not possess either probable cause or a warrant. See Ford v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2005); Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). The officer must, however, have specific, articulable facts that lead the officer to a reasonable suspicion that a person is, has been, or will soon be engaged in criminal activity. Castro v. State, 2 Analysis of search and seizure issues is the same under the Federal constitution and the Texas constitution. Johnson v. State, 912 S.W.2d 227, (Tex. Crim. App. 1995); May v. State, 780 S.W.2d 866, 869 (Tex. App. Dallas 1989, pet. ref d). 5

11 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); see generally Terry v. Ohio, 392 U.S. 1 (1967). A reviewing court looks only to the objective facts known to the officer at the inception of the seizure because a seizure that is unlawful from the beginning does not become lawful when its fruit is contraband or evidence of illegal activity. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App. Austin 2007, pet. ref d). The facts known to the officer must amount to something more than an inchoate and unparticularized suspicion or hunch. Walker v. State, No CR, 2010 Tex. App. LEXIS 1036, at *8 (Tex. App. Dallas 2010, pet. ref d) (not designated for publication). An officer s personal observation need not give rise to a lawful seizure; a third party may supply the information. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). While third party information from an anonymous source whose reliability is unknown may justify an investigation, it will rarely establish reasonable suspicion to justify an investigative seizure. See Florida v. J.L., 529 U.S. 266, (2000); Johnson v. State, 146 S.W.3d 719, 721 (Tex. App. Texarkana 2004, no pet.). To provide reasonable suspicion to justify an investigatory seizure, an anonymous, third party tip must prove to be reliable in an assertion of unlawful conduct, not just identify a particular person. See J.L., 529 U.S. at 272; Johnson, 146 S.W.3d at 721. The fact that there has been criminal activity in the area at some point prior to the challenged investigative seizure is not sufficient to corroborate an anonymous tip. Walker, 2010 Tex. App. LEXIS 1036, at *13 *14 (citing Johnson, 146 S.W.3d at 722; Illinois v. Wardlaw, 528 U.S. 119, 124 (2000)). Mere presence on a street in a high crime area at 6

12 night does not provide reasonable suspicion sufficient to justify an investigatory seizure. Id. A reviewing court determines whether an encounter between an officer and a citizen constitutes a seizure by evaluating whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). Approaching a parked car and initiating contact with the occupants does not constitute a seizure, but when an officer orders the occupants out of the vehicle, they are seized for Fourth Amendment purposes. See State v. Garcia- Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008) (citing 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE 9.4(a), at 427 (4th ed. 2004)); see also United States v. Barry, 394 F.3d 1070, 1075 (8th Cir. 2005) (upholding seizure because officer initiated investigatory seizure by ordering occupants out of a parked car after the officer spoke to the occupants in the car and smelled the marijuana). Standard of Review When reviewing a trial court s ruling on a motion to suppress, an appellate court works under the following framework: A trial court s determination of historical facts leading up to the arrest are reviewed under a deferential standard essentially they are reviewed for clear error; 7

13 A trial court s determination of mixed questions of law and fact, i.e. determinations of whether the facts give rise to probable cause or reasonable suspicion, is reviewed under a deferential standard when the determination turns on credibility and/or demeanor; A trial court s determination of mixed questions of law and fact that do not turn on credibility and/or demeanor are reviewed de novo. See Carter v. State, S.W.3d, No. PD , 2010 Tex. Crim. App. LEXIS 101, at *20 *24 (Tex. Crim. App. March 24, 2010); Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006); Guzman v. State, 955 S.W.2d 85, (Tex. Crim. App. 1997). Application of Law to the Facts In denying Appellant s motion to suppress, the trial court made the following conclusion of law: Due to the repeated complaints of drugs being sold in the area and most importantly, the complaint describing the vehicle occupied by both defendants combined with the high volume of foot traffic in the area, the Officers were justified in approaching the vehicle for investigatory purposes... The actions of both defendants dipping down in the vehicle amounted to furtive gestures giving the officers concern for their safety thereby justifying the removal of both defendants from the vehicle for the officers safety.... (CR: 16). This Court should review the trial court s legal conclusion de novo, because the conclusion does not turn on credibility or demeanor. See Carter, 2010 Tex. Crim. App. LEXIS 101, at *20 *24. 8

14 The trial court s conclusion is not supported by the law. In a recent, analogous case, this Court reversed the trial court s denial of a defendant s motion to suppress because the officers lacked reasonable suspicion to stop the defendant. Walker v. State, No CR, 2010 Tex. App. LEXIS 1036 (Tex. App. Dallas 2010, pet. ref d) In Walker, the officers received a dispatch report of a suspicious vehicle on a particular street; the dispatch was based on a 911 call in which the caller reported a dark colored pick up truck... that... had been in and out of the area over the last couple of days. Id. at *1 (internal quotation omitted). The caller thought that the vehicle s occupants might be up to some illegal activities. Id. (internal quotation omitted). The officers testified that the area was known for having a lot of crime. Id. at *1 *2. When the officers saw a vehicle matching the caller s description, they stopped the vehicle because, as they testified, they saw a vehicle matching the suspicious vehicle call that we had been dispatched to the area for. Id. at *2 *3. The officers found marijuana in the car. Id. at *3. On appeal, this Court first noted that the stop was based on a tip from an anonymous informant because there was no evidence in the record that the officers knew the caller s identity, the caller s phone number, or that they were able to determine the caller s identity. Id. at *12 *13. The Court then held that there was no reasonable suspicion to support the stop because, having received the anonymous tip, the officers found no corroboration that a crime had occurred, was occurring, or was about to occur. Id. at *13. Although the officers described the area where they stopped the defendant as 9

15 a high crime area, there was no evidence in the record that there had been any criminal activity reported in the area at the time of the stop, and the fact that there may have been criminal activity in the area at some point prior to the stop, but not known to have been committed by the defendant, was not sufficient to corroborate the tip. Id. at *13 *14. The Court further said that mere presence on a street in a high crime area at night does not provide reasonable suspicion to authorize an investigatory stop. Id. at *14. The record in this case is strikingly similar. First, like Walker, the officers reported that the area in question was a high crime area. Second, Officer Wolverton testified that they had received a tip from a woman who described persons dealing drugs from a red car, but Officer Wolverton did not know her name, and the record is devoid of any other evidence about the caller. Third, the officers had no corroboration of the tip when they arrived at the scene; indeed, when the officers arrived during daylight and with a clear view of the occupants in the car, the only thing they noticed was that the occupants were slumping down in their seats. None of this is sufficient to give rise to reasonable suspicion that Appellant had engaged in criminal activity, was engaging in criminal activity, or would soon do so. The officers therefore had no reasonable suspicion to justify ordering Appellant from the vehicle. See State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008) (citing 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE 9.4(a), at 427 (4th ed. 2004)); see also United States v. Barry, 394 F.3d 1070, 1075 (8th Cir. 2005) (ordering occupants from a parked car constitutes a seizure within 10

16 the meaning of the Fourth Amendment). It was only when the officers ordered Appellant from the vehicle, thereby seizing her, that evidence of a possible crime was discovered. Because the seizure of Appellant was not justified by reasonable suspicion, the evidence discovered as a result of the unconstitutional seizure must be suppressed. The Court should therefore reverse the trial court s order, suppress the evidence, and remand this for further proceedings. 11

17 PRAYER Appellant prays that the Court reverse the trial court s order, suppress the evidence, and remand this cause for further proceedings. Respectfully submitted, Lynn Richardson Chief Public Defender Dallas County Katherine A. Drew Chief, Appellate Division Dallas County Public Defender s Office Brian W. Portugal Assistant Public Defender Dallas County Public Defender s Office State Bar Number: N. Riverfront Blvd., LB 2 Dallas, Texas (214) telephone (214) fax Attorneys for Appellant CERTIFICATE OF SERVICE A copy of this brief has been hand-delivered to the Dallas County Criminal District Attorney s Office, Appellate Division, 133 N. Riverfront Blvd., Dallas, Texas on February, Brian W. Portugal 12

18 CERTIFICATE OF COMPLIANCE I certify that this submitted CD or attachment of the brief complies with the following requirements of the Court: 1. The brief is submitted on a CD or by attachment; 2. The CD or attachment is labeled with the following information: A. Case Name: Lolisha Renee Aliu v. State of Texas B. The Appellate Case Number: CR C. The Type of Brief: Appellant s Brief D: Party for whom the brief is being submitted: Appellant Lolisha Renee Aliu E. The Word Processing Software and Version Used to Prepare the Brief: MS Word The CD or attachment contains only an electronic copy of the brief and the appendix. The documents in the appendix conform to the requirements of Texas Rules of Appellate Procedure 9.8 and 38.1(k). 4. The CD or attachment is free of viruses or any other files that would be disruptive to the Court=s computer system. The following software, if any, was used to ensure the brief is virus-free:. 5. I understand that a copy of this brief may be posted on the Court s website and that the electronically filed copy of the brief becomes part of the Court s record. 6. Copies have been sent to all parties associated with this case. (Signature of filing party and date) Brian W. Portugal (Printed name) Dallas County Public Defender s Office (Firm) 13