TX3: Nervousness, eccentric dress, and refusal to consent is not reasonable suspicion

Nervousness, eccentric dress, and refusal to consent is not reasonable suspicion. Thompson v. State, 2013 Tex. App. LEXIS 9412 (Tex. App. – Austin July 31, 2013):

Ernst testified that it is not unusual for people to be nervous when pulled over by law enforcement officers, nor is it unusual for a driver not to have her driver’s license. Although Ernst testified that appellant seemed “more nervous” than the usual detainee, that statement does not find support in the videotape. Moreover, the court of criminal appeals has held that nervousness alone is not enough to amount to reasonable suspicion. St. George v. State, 237 S.W.3d 720, 726 (Tex. Crim. App. 2007). The fact that appellant was not wearing a shirt over her bra may have seemed odd to Ernst, but that is not the issue. Rather, appellant’s appearance and demeanor must have been indicative of some criminal activity, not merely of eccentricity. Crockett, 803 S.W.2d 308. The court of criminal appeals has rejected general attire as a relevant ground for police to detain or arrest. See Davis, 947 S.W.2d at 247-48 (Mansfield, J., concurring) (“This Court has previously rejected attire as a ground for police to ‘stop and frisk’ an individual.”) (citing Baker v. State, 478 S.W.2d 445, 449 (Tex. Crim. App. 1972) (“The fact that appellant was barefooted, had long hair, and was shabbily dressed does not constitute probable cause to arrest. … Nor do the overall circumstances presented furnish the state with a valid ‘stop and frisk’ situation.”)). Moreover, Ernst did not articulate how or why appellant’s attire gave rise to an objectively reasonable suspicion that she possessed drugs. In sum, Ernst had nothing more than an inchoate and unparticularized suspicion or “hunch” that something illegal might be in appellant’s car because she was nervous, had been oddly attired when stopped, and had repeatedly declined to give him consent to search the vehicle. Nevertheless, rather than issuing a warning or citation and permitting appellant to leave, Ernst called dispatch and requested that a K-9 unit be sent to the scene. Appellant’s continued detention to await the arrival of the K-9 unit after the completion of the traffic stop investigation, absent reasonable suspicion of criminal activity, violated her Fourth Amendment rights. See Kothe, 152 S.W.3d at 63-64; Davis, 947 S.W.2d at 244-45; Garza v. State, No. 13-12-00240-CR, 2013 Tex. App. LEXIS 8142, 2013 WL 3378325, at *9-10 (Tex. App.—Corpus Christi July 3, 2013, no pet.) (mem. op., not designated for publication). We conclude that the trial court abused its discretion by misapplying the law to the undisputed facts as reflected in the videotape and Ernst’s testimony. See McQuarters, 58 S.W.3d at 258. Consequently, we sustain appellant’s first issue and hold that the trial court erred in denying appellant’s motion to suppress.