TX: Def’s “standing on his rights” was not reasonable suspicion

There was nothing but a hunch here, and defendant’s “standing on his rights” and refusing to cooperate with the officers’ questions was not reasonable suspicion of anything. Wade v. State, 2013 Tex. Crim. App. LEXIS 1314 (September 11, 2013):

The Supreme Court has consistently held that a person’s refusal to cooperate with a police request during a consensual encounter cannot, by itself, provide the basis for a detention or Terry frisk. Because appellant’s refusal to cooperate was accompanied only by his extreme nervousness and a game warden’s hunch he was up to no good, the warden’s stop-and-frisk of appellant violated the Fourth Amendment. We therefore reverse the judgment of the court of appeals that had upheld the stop-and-frisk.

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Appellant argues that Warden Campbell did not have reasonable suspicion to order him out of his truck and frisk him because his refusal to answer certain questions was not a legitimate basis for a detention or pat-down. We conclude that the courts below misapplied Terry in allowing appellant’s action of standing on his rights to serve as the tipping point in the reasonable-suspicion calculus.

A. The consensual encounter escalated into a detention when Warden Campbell ordered appellant out of the truck for a pat-down.

Warden Campbell testified that their interaction began as a consensual encounter, but that “when he said he was eating lunch and I looked in there and there was no evidence of that and then he gave me the story about living there and I looked at his I.D., that’s when he was detained.” Appellant asserts that he was detained after the warden asked him, for a second time, what was in his truck instead of answering appellant’s own question of “Why are you doing this to me?” The State’s position is the Fourth Amendment detention did not occur until appellant was ordered out of his truck and subjected to the Terry frisk.

The detention test is objective, so neither the warden’s uncommunicated state of mind nor appellant’s subjective belief controls. When Warden Campbell simply repeated his question about weapons or contraband after appellant asked him why he was asking such a question, appellant again refused to answer; instead, he again asked, “Why are you doing this to me?” Appellant then refused to consent to a search of his truck. Under Hodari D., a Fourth Amendment seizure requires submission to the show of authority.36 And appellant had not yet submitted to Warden Campbell’s assertion of authority.37 We agree with the State that appellant was not “seized” until he complied with Warden Campbell’s order to get out of his truck for a frisk. At that moment appellant was detained under the Fourth Amendment.