Loesch v. State

OPINION ON STATE’S PROSECUTING ATTORNEY’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court,

in which McCORMICK, Presiding Judge, and MANSFIELD, PRICE, HOLLAND, and WOMACK, Judges, joined.

Appellant entered a plea of “no contest” to possession of marijuana. He complained on appeal that the trial court erred in refusing to grant his motion to suppress. The Court of Appeals agreed and reversed. The State contends that the Court of Appeals improperly applied a de novo review standard on whether certain facts give rise to reasonable suspicion. The State also contends that the Court of Appeals erred, even under a de novo standard of review, because it viewed each of the factors relating to reasonable suspicion in isolation, instead of in combination with each other.

The following factors were evaluated by the Court of Appeals in determining whether reasonable suspicion exists:

(1) Characteristics of the area: A roving border patrol stopped appellant’s vehicle along Highway 59, several miles beyond an immigration checkpoint. Two agents testified that illegal aliens are often smuggled through the area, and that they frequently walk through the brush around the checkpoint, and then catch rides with willing drivers on the other side.

(2) Drivers’ Behavior: The patrol saw two vehicles riding bumper-to-bumper. Both drivers seemed nervous and rigid, staring straight ahead when the patrol car shined its headlights at the vehicles. When the patrol car approached, one of the vehicles sped up while the other slowed down— making pursuit of both vehicles difficult.

(3) Aspects of the cars: The vehicles in question were older cars with large tranks, commonly used to smuggle illegal aliens, and the cars looked weighed down, as if they were heavily loaded.

The Court of Appeals basically conducted a deferential review of the historical facts and a de novo determination of whether those facts give rise to reasonable suspicion. This review is consistent with our recent pronouncement in Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). However, in conducting its de novo review of the reasonable suspicion issue, the Court of Appeals has apparently examined each of the different factors in isolation to determine whether each militates in favor of or against a finding of reasonable suspicion. See Loesch v. State, 921 S.W.2d 405, 408-409 (Tex.App.—Corpus Christi 1996). Because reasonable suspicion is determined by the totality of the circumstances, an appellate court must look at all of the facts together to make the reasonable suspicion determination; facts that do not show reasonable suspicion in isolation may do so when combined with other facts. See United States v. Brignoni-Ponce, 422 U.S. 873, 885 n. 10, 95 S.Ct. 2574, 2582 n.10, 45 L.Ed.2d 607 (1975).

Moreover, the Court of Appeals has also apparently utilized the “as consistent with innocent activity as with criminal activity” construct in at least part of its opinion. Loesch, 921 S.W.2d at 409 (citing Johnson v. State, 658 S.W.2d 628, 626 (Tex.Crim.App.1983)). We have recently disavowed the use of that construct. Woods v. State, 956 S.W.2d 33 (Tex.Crim.App.1997).

We vacate the judgment of the Court of Appeals and remand this cause for proceedings consistent with this opinion.

OVERSTREET, J., dissents.

. Other factors cited by the Court of Appeals were either absent or cumulative of the above factors.

. Judge Meyers contends that we depart from Guzman by remanding the case to the Court of Appeals instead of conducting our own de novo review. But he concedes that Guzman did not say that we must conduct such a review ourselves but merely stated that this Court "may exercise its discretion ” to do so. See Meyers, J. dissenting in present case, op. at 834 n. 1 (quoting Guzman, at 89)(emphasis added). The application of law to facts is simply an aspect of a Court of Appeals’ decision that we may choose to review or not review. Whether to conduct a de novo review or remand for the Court of Appeals to do so in the first instance is a discretionary matter and is governed by the same types of prudential considerations used in determining whether to grant review at all. And, as in all such discretionary decisions, we need not articulate our reasons for declining review.