Being Bizarre in Texas…

now gives rise to “reasonable suspicion” that you are about to commit a crime and will get you a warrantless detention.  No I’m not kidding…from our hack friends at the CCA who can’t stay open past 5…

Derichsweiller v. State, No. PD-0176-10, (Tex.Crim.App. 2011) here

Here is the behavior that justified a police stop:

At approximately 8:00 p.m., after dark on New Years Eve, December 31, 2006, Joe Holden and his wife, Joanna, were in the drive-thru lane at McDonald’s. Joanna, who was behind the wheel, noticed that a man she did not know had pulled up beside them in a car. She described this man as “[j]ust kind of grinning and just being stopped beside us . . . and looking straight at us[, which] just didn’t seem normal to me.” The man lingered for between thirty seconds to a minute before driving on. Having placed their order, the Holdens were asked to pull out of the drive-thru lane while their food was being prepared. When they did so, both Joe and Joanna noticed that the same stranger had positioned his car to the front of theirs and was again grinning and staring at them. This seemed to last for fifteen to twenty seconds, after which the man circled the restaurant and then pulled up behind, and to the left side of, the Holdens’ car, “not quite blocking [them] in.” He renewed his grinning and stared at them for about the same duration, maybe a little longer.  The Holdens felt “threatened” and “intimidated” by the man’s peculiar conduct.

Ah, the old “felt threatened and intimidated” routine…seems like quite a broad scope doesn’t it?  Here is what the Supreme Court (the CCA has little regard for them) says “reasonable suspicion” means in a 4th Amendment context…

A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude that the person detained is, has been, or soon will be engaged in criminal activity.

Note the police officer must have these articulable facts.  The standard is objective, not subjective.  The kicker is that the police officer involved knew nothing of what the Holden’s had reported, he knew from dispatch that a “suspicious” vehicle had been reported.  From footnote 6, here is what the CCA states the police officer knew:

All that Carraby [the cop] knew, other than Joe Holden’s name and the identifying characteristics of the car, was that “[t]he complainant thought that the vehicle was suspicious and wanted us to check it out.” He “didn’t have any idea about what specific activity . . . created the suspicion[.]“

However, the CCA believes:

While it is admittedly a close call, the information known collectively to the police in this case ultimately satisfies this standard. The appellant’s conduct, particularly as directed at the Holdens, while not overtly criminal in any way, was bizarre to say the least.  Moreover, the repetition of similar, apparently scrutinizing, behavior directed at parked cars in the adjacent Wal-Mart parking lot reasonably suggests a potential criminal motive that transcended any particular interest in the Holdens themselves. It reasonably suggests someone who was looking to criminally exploit some vulnerability–a weak or isolated individual to rob or an unattended auto to burgle. It matters not that all of this conduct could be construed as innocent of itself; for purposes of a reasonable-suspicion analysis, it is enough that the totality of the circumstances, viewed objectively and in the aggregate, suggests the realistic possibility of a criminal motive, however amorphous, that was about to be acted upon. Under these circumstances, the Fourth Amendment permits the police to make a brief stop to investigate, if only by their presence to avert an inchoate offense.

Judge Meyers in dissent puts it better than I can, here is the essence of what the CCA in Texas believes law enforcement has the power to do…

According to the majority, someone can call the police and give their name and a description of a vehicle they think is suspicious, and without any other information, the police can detain the driver of the vehicle.

That should scare the hell out of any citizen.  Of course reasonable suspicion isn’t limited to cars, you can be bizarre walking down the street, working in your own yard etc…  This police officer had no knowledge of any specific behavior on the part of the detained person, he simply knew that a phone caller to 911 had said in essence he’s suspicious.  It seems a great opportunity to exact revenge on your pesky neighbor doesn’t it?  ”Anticipatory illegal behavior” is quite a tool for the government.  Texans need to wake up, most of the sheep think gun owners are “suspicious”.