Derichsweiler v. State (2011)
In Derichsweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011), an informant testified at the suppression hearing and stated that the defendant pulled up beside her and her husband at a restaurant drive-through and "just kind of grinned" at them.
The defendant lingered beside them for less than a minute and drove around the lot. Id.
The driver repeated this behavior two more times, drove off, and pulled up to at least two other vehicles in a nearby lot. Id. The couple dialed 911 and reported this behavior. Id.
The court determined that the reliable informants' tip to the 911-dispatcher describing the defendant's "bizarre" and "scrutinizing" behavior was sufficient for establishing reasonable suspicion. Id. at 917.
In Derichsweiler, the specific and articulable facts testified to were that a suspicious driver was grinning and staring at parked motorists, the driver repeated this behavior, and that it was directed toward at least three different parked vehicles. See Derichsweiler, 348 S.W.3d at 909-10. In Derichsweiler v. State, witnesses reported to the police that the defendant stopped his car beside theirs while they were in a McDonald's drive-through lane.
The defendant stared and grinned at the witnesses for thirty seconds to a minute before driving off. The witnesses reported that the defendant returned, stopped his car, and again stared and grinned at them.
The defendant drove away, returned again, and the staring and grinning occurred a third time. Id.
The defendant in Derichsweiler then left the McDonald's parking lot and drove into the parking lot of an adjacent Wal-Mart. Id. at 910.
The witnesses saw the defendant stopping near parked cars in the Wal-Mart parking lot. Id.
Thus, in Derichsweiler, the defendant engaged in a pattern of suspicious behavior. The Court of Criminal Appeals characterized the defendant's conduct as "bizarre to say the least" and emphasized that the conduct involved "the repetition of similar, apparently scrutinizing behavior." Derichsweiler, 348 S.W.3d at 917.
The Court of Criminal Appeals held "that the totality of the circumstances, including the appellant's strangely persistent, if admittedly noncriminal, behavior, gave rise to a reasonable suspicion that he was about to engage in criminal activity." Id.
Even with the substantial amount of suspicious and bizarre activity that was present in Derichsweiler, the court stated that the reasonable suspicion issue was "admittedly a close call." Id.
The Court of Criminal Appeals determined that reasonable suspicion existed in an "admittedly close case" that involved otherwise innocent behavior.
In Derichsweiler, noncriminal behavior--repeatedly stopping near, staring, and smiling in a strange manner at other people and vehicles in public parking lots--was held sufficient to allow a reasonable person to conclude "that criminal activity is afoot." Id. at 915.
The court characterized Derichsweiler's conduct as "bizarre to say the least." Id. at 917.
The court emphasized Derichsweiler's conduct involved "the repetition of similar, apparently scrutinizing behavior" and was "persistent, if admittedly noncriminal." Id.
In other words, the conduct in Derichsweiler involved a pattern of bizarre behavior.
In Derichsweiler v. State, civilian eyewitnesses observed the defendant drive up close to their vehicle and stare, then grin at them for thirty seconds to a minute while they were in a drive-thru line at McDonalds. See id. at 909.
When the witnesses were asked to pull forward to wait on their food, the defendant drove up and positioned his car in front of theirs, then drove around the building and pulled up again behind and to the left of them, repeating the same conduct. See id.
While the witnesses called the police to report the defendant's conduct, they observed him drive into a nearby Walmart parking lot, where the defendant repeated the same conduct with two other vehicles. See id. at 910.
Police approached the defendant's vehicle, detained the defendant, and then smelled a strong odor of alcohol emanating from his vehicle. He was arrested and charged with driving while intoxicated. See id. at 910-11.
The court of criminal appeals granted review in Derichsweiler to determine whether the facts adduced that give rise to a reasonable suspicion must show that the detainee has committed, is committing, or is about to commit, a particular and distinctively identifiable penal offense. See id. at 909.
That Court stated:
"unlike the case with probable cause to justify an arrest, it is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction. The reason is simple but fundamental. A brief, investigative detention constitutes a significantly lesser intrusion upon the privacy and integrity of the person than a full blown custodial arrest. For this reason, a warrantless investigative detention may be deemed 'reasonable' for Fourth Amendment purposes on the basis of a lesser quantum or quality of information--reasonable suspicion rather than probable cause. . . . Particularly with respect to information suggesting that a crime is about to occur, the requirement that there be 'some indication that the unusual activity is related to crime' does not necessarily mean that the information must lead inexorably to the conclusion that a particular and identifiable penal code offense is imminent." Id. at 916-17.