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Click here for the full text of this decision FACTS:On Dec. 6, 2006, Amarillo police officers Wade Pennington and Kyle Hawley sought to serve an arrest warrant on David Rogers. They traveled to an address where they believed that Rogers was staying. A car with two persons in it was found parked in front of the residence; the officers decided to approach the vehicle and determine whether one of those persons was Rogers. According to the findings of fact entered by the trial court, Ramirez “made a movement toward the console of his vehicle at or about the time Officer Pennington approached the driver’s side of the vehicle.” Whether this gesture occurred in response to the actions of Pennington is unknown. Nor did the record disclose whether Ramirez knew of the officers’ presence when he made the movement. The trial court determined that Ramirez rolled the window of the vehicle down. As a result, Pennington was readily able to determine that Ramirez did not match the physical description of the suspect being sought. Upon discovering that Ramirez was not their man, however, the officers did not leave. Instead, they continued to question Ramirez, eventually removed him from his vehicle, handcuffed him and placed him in the squad car. This was done because, according to Pennington, Ramirez acted nervous and used his body to prevent the officer from looking into the car. Ramirez’ actions caused Pennington to believe that Ramirez was armed, Pennington testified. Yet, none of the officers’ testimony about Ramirez performing other gestures or acting nervously while the officers communicated with him were incorporated into a finding of fact by the trial court. The trial court found that the officers recovered a weapon from the console area of the vehicle and that neither Ramirez nor his passenger consented to the search of the vehicle. Consequently, the trial court concluded that no reasonable suspicion was present that allowed Ramirez and his passenger to be removed from the car or that allowed the search of the car. The trial court also found that Pennington lacked reasonable suspicion or probable cause to detain Ramirez once the officer determined Ramirez was not the subject of the arrest warrant. After the search, police charged Ramirez with intentionally, knowingly or recklessly carrying a handgun. But the trial court granted a motion to suppress the evidence because of lack of probable cause or reasonable suspicion to detain Ramirez. HOLDING:Affirmed. The trial court executed written findings of fact and conclusions of law, but none of its findings incorporated the testimony about Ramirez performing furtive gestures or acting nervously once the officers reached his car. Nor did the state solicit additional findings touching upon that testimony. Given this, the court stated that the trial court did not find the testimony credible. The only evidence, the court stated, that the trial court indicated it believed by including it in a fact finding encompassed: 1. Ramirez being parked in the driveway of a house where the subject of an arrest warrant lived; 2. Ramirez was Hispanic while the subject of the warrant was white; 3. the officers were curious about the driver of the car though they had no information that the subject they sought drove a similar car; 4. an officer realized that Ramirez was not the person they sought; 5. Ramirez moved towards the console of his car around the time an officer approached the vehicle; 6. police retrieved a gun from the console; 7. neither Ramirez nor his female passenger consented to the search; and 8. the events occurred during the daytime at 12:30 p.m. Whether Ramirez was aware that the police had arrived when he moved towards the center console is unknown. The trial court, the court stated, may have decided that two people being in a car parked on a driveway during the lunch hour while one moves towards a center console connotes neither criminality being afoot nor the presence of weapons. The court found that it did not disagree with the decision given the 1st Court of Appeals’ 2006 opinion Canales v. State. In Canales, the 1st Court held that an officer seeing someone parked outside a convenience store for several minutes in the wee hours of the morning and who then placed his hand between the driver’s seat and center console were not enough to warrant a temporary detention and search of the suspect. If such circumstances were not enough in Canales, the court stated, Ramirez’s case also falls short of vesting the officers with probable cause to detain and search for weapons. Thus, the court found that police had no basis to temporarily detain Ramirez or search for weapons. The court noted that it might have viewed the evidence differently had it been trier of fact, but “that is of no consequence. The trial court has the authority to weigh the evidence and decide who to believe.” The trial court’s fact findings are akin to a jury’s verdict and entitled to deference, the court stated. OPINION:Quinn, C.J.; Quinn, C.J., and Campbell and Pirtle, JJ.

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