Kevin Lee Johnson v. State

IN THE TENTH COURT OF APPEALS No. 10-06-00413-CR Kevin Lee Johnson, Appellant v. The State of Texas, Appellee From the County Court at Law No. 2 Brazos County, Texas Trial Court No. 04-01878-CRM-CCL2 MEMORANDUM Opinion A jury convicted Kevin Lee Johnson of unlawfully carrying a weapon and the court sentenced him to four days in jail and a $400 fine. In four points of error, Johnson challenges: (1) the legal and factual sufficiency of the evidence to support his conviction; (2) the court’s refusal to instruct the jury on the traveling defense; (3) the court’s granting of the State’s challenge for cause to a member of the venire panel; and (4) the court’s denial of his motion to suppress. We affirm. FACTUAL BACKGROUND On the day of the offense, Johnson was a patron at the College Station Library. Library employees grew concerned and contacted the police after noticing Johnson’s strange behavior and his red, swollen, watery eyes. Officers Robert Shumaker and Steven DuBois found Johnson sitting in a van parked in the library parking lot. Shumaker inquired whether Johnson was okay and asked him to exit the van. The officers noticed that Johnson’s eyes were “very red, puffy, glassy and bloodshot,” he was having difficulty walking, and his breath smelled of alcohol. They also observed a container of medicine bottles located in the console of the van. They suspected that Johnson might be intoxicated. Johnson refused to perform field sobriety tests, consent to a search of the van, or allow officers to inspect the container. Shumaker contacted the narcotics office. When narcotics Officer Chad Hanks arrived at the scene, Johnson gave him the container. One medication was prescribed to Johnson’s wife, from whom he was separated. Shumaker arrested Johnson for possession of a dangerous drug, and the officers searched the van, wherein they discovered the gun. LEGAL AND FACTUAL SUFFICIENCY In his first point, Johnson contends that the evidence is legally and factually insufficient to support his conviction because he possessed the gun on his premises.[1] Standards of Review Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843. Under factual sufficiency review, we ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury’s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in inferences or confine our view to evidence favoring one side. Rather, we look at all the evidence on both sides and then make a predominantly intuitive judgment. Id. Analysis The statute in effect at the time of the offense, made it unlawful for a person to “intentionally, knowingly, or recklessly carr[y] on or about his person a handgun, illegal knife, or club.” Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 24, 1997 Tex. Gen. Laws 4766, 4776 (amended 2007) (current version at Tex. Pen. Code Ann. § 46.02(a) (Vernon Supp. 2007)).[2] This offense is inapplicable to a person who possesses a handgun “on the person’s own premises or premises under the person’s control.” Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 28, 1997 Tex. Gen. Laws 4766, 4778 (amended 2007) (current version at Tex. Pen. Code Ann. § 46.15(b)(2) (Vernon Supp. 2007)). The statute does not define the term “premises,” but the term does include a “recreational vehicle” that is being used “as living quarters, regardless of whether that use is temporary or permanent.” Act of May 24, 2003, 78th Leg., R.S., ch. 421 § 1, 2003 Tex. Gen. Laws 1669 (repealed 2007) (current version at Tex. Pen. Code Ann. 46.02(a-2) (Vernon Supp. 2007)). A “recreational vehicle” constitutes a “motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle,” including a “travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.” Id. Johnson testified that he had been living in the van since being separated from his wife a few months earlier. He had a television powered by a car battery for an “entertainment center,” placed a bar in the van for hanging clothes, covered the windows with towels for privacy, and stored food in an ice cooler. The van also contained shelves where Johnson kept books, magazines, and photographs. For a bed, Johnson used blankets, pillows, a foam mat, and a bedroll. Johnson testified that the van could be towed if necessary and he considered it to be his home. He sometimes carried the gun in the van for “safety” and “some sense of security,” but had been storing it at his wife’s home and had retrieved it on the day of the offense. He could not recall where he had slept on the night before the offense. Johnson’s father testified that he had purchased the van as a mode of transportation for Johnson and a place for Johnson to live and store his property. Librarians Lou Vonne Johnson and April Serig suspected that Johnson had been living in the van. Both DuBois and Shumaker recalled that Johnson had been living in the van. Shumaker testified that the van was an older “Ford Econoline Van” registered to a construction company. It smelled like body odor and contained clothing, a sleeping bag, pillows, fishing poles, and other personal items. Johnson told Shumaker that he was separated from his wife and had been living in the van. Shumaker had no reason to doubt this story and admitted that the van was Johnson’s home. However, Shumaker testified that, after Johnson’s arrest, Johnson stated that he sometimes lived with his wife. He added that Johnson’s van is neither primarily designed as temporary living quarters nor contains temporary living quarters designed to be towed. During the booking process, Johnson listed his wife’s address as his current address. In light of this evidence, Johnson argues that the jury was “irrational” by rejecting his defense that he was carrying the gun on his premises. He questions “why wouldn’t a van adapted as living quarters also qualify under the ‘mobile home’ exception.” The State responds that the van was designed to be a “work or cargo vehicle,” not as “temporary living quarters” or “containing temporary living quarters and designed to be towed by a motor vehicle.” We agree. The jury could reasonably conclude that, unlike the types of recreational vehicles identified in the statute, Johnson’s van is not specifically designed to serve as “temporary living quarters” or to be towed. That it is capable of such does not make it a “recreational vehicle” as contemplated by the statute. As the sole judge of the weight and credibility of witness testimony, the jury was entitled to resolve the evidence either for or against Johnson. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury could reasonably reject Johnson’s defense that he was carrying the gun on his premises and could reasonably conclude, beyond a reasonable doubt, that Johnson committed the offense of unlawfully carrying a weapon. See Curry, 30 S.W.3d at 406. The proof of guilt is not so weak nor the conflicting evidence so strong as to render the jury’s verdict clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414-15; see also Johnson, 23 S.W.3d at 11. Because the evidence is legally and factually sufficient to support Johnson’s conviction, we overrule his first point of error. traveling defense Johnson’s second point of error challenges the court’s refusal to instruct the jury on the defense of traveling. Standard of Review “A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Kelly v. State, 195 S.W.3d 753, 756 (Tex. App.—Waco 2006, pet. ref’d). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. Kelly, 195 S.W.3d at 756; see Ferrel, 55 S.W.3d at 591. Analysis A person who is “traveling” cannot be guilty of unlawfully carrying a weapon. See Act of June 1, 1997, 75th Leg., R.S., ch. 1261 § 28, 1997 Tex. Gen. Laws 4766, 4778 (amended 2007) (current version at Tex. Pen. Code Ann. § 46.15(b)(3) (Vernon Supp. 2007)). “[T]here is ‘no hard and fast rule’” for determining “traveler” status: …it has been held that one traveling from county to county within the state is a traveler. But it has also been held that if the trip between counties is “so short there is no real journey, then one is not a traveler.” Cases hold that if a traveler loiters along the way, or unnecessarily deviates from the course of travel, he loses his status as a traveler. However, interruption of the journey for legitimate incidental purposes does not forfeit a traveler’s right to carry a pistol. Whether one stays overnight is also a factor to be used in determining if he qualifies as a traveler. Yet, an overnight stay is not required to claim the traveling defense. Some cases hold that once a traveler arrives at his destination and secures a room he is no longer a traveler. Likewise, one who has returned to his home area after traveling loses his status as a traveler. Illingworth v. State, 156 S.W.3d 662, 665-66 (Tex. App.—Fort Worth 2005, no pet.) (internal citations omitted). Johnson testified that he had secured a job in Austin and had traveled from College Station to Austin in his van to interview for the job and search for an apartment. On the day of the offense, he had retrieved several personal items from his wife’s home, placed the items in his van, and prepared to travel to Austin. He stopped at the library to check email to determine whether “there’s any changes, see if I needed to talk to anyone in Austin” or “tie up any loose ends” in Bryan/College Station. He had an afternoon appointment to pick up a pay check in Bryan, in route to Austin. Johnson believed that he was “actively engaged in a journey” on the day of the offense. He had been at the library for approximately four and a half hours by the time police arrived. Shumaker and Johnson discussed the van’s “mechanical ability to travel out of town.” Johnson expressed doubt that the van would “make it” and thought that “[h]e would probably end up giving it away before he moved out.” Shumaker testified that Johnson did not indicate that he was going anywhere but Bryan on the day of the offense and did not state that he planned to travel out of town. DuBois never heard Johnson state that he was traveling to Austin that day. The court declined Johnson’s request for a jury instruction on the defense of traveling. In reliance on Johnson v. State, 571 S.W.2d 170 (Tex. Crim. App. 1978), and Campbell v. State, 28 Tex. Ct. App. 44, 11 S.W. 832 (1889), Johnson argues that he was entitled to a jury instruction on the traveling defense. In Johnson, the defendant appealed his conviction for unlawfully carrying a handgun, arguing that the traveling defense applied because he was carrying the gun while moving from one residence to another. See Johnson, 571 S.W.2d at 171-72. The Court of Criminal Appeals held that “carrying a handgun from an old residence to a new residence will constitute a defense to prosecution under Sec. 46.02,” but the weapon may not be carried “idly, or for the sake of carrying it, or habitually, or for some unlawful purpose.” Id. at 172. In Campbell, the defendant was carrying a pistol from Jennings’s residence, where he had been residing, to his residence in a different county. See Campbell, 11 S.W. at 832. The Court of Appeals found that Campbell was entitled to “carry the pistol at Jennings’s house, because he was upon his own premises within contemplation of the law,” and to “take the pistol to his permanent home when he left Jennings’s.” Id. “[W]hile going from Jennings’s to his permanent home in another county, a distance of many miles, he was a person traveling within the meaning of the law.” Id. Unlike Johnson and Campbell, Johnson was not in the course of traveling at the time he was arrested. See Illingworth, 156 S.W.3d at 667 (upholding determination that defendant was “not in the course of traveling” when arrested); see also Soderman v. State, 915 S.W.2d 605, 610 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (assuming that defendant was traveling previously, he was not “in the course of that travel when he was apprehended” and was not entitled to an instruction on the traveling defense). He had been at the library for several hours by the time police arrived. He had not yet begun his journey, but was merely waiting to do so. Because the issue was not raised by the evidence, the trial court did not err by refusing to instruct the jury on the traveling defense. We overrule Johnson’s second point of error. challenge for cause In his third point of error, Johnson contends that the trial court erred by granting the State’s challenge for cause to a member of the venire panel. Standard of Review A trial court’s ruling on a challenge for cause is reviewed for abuse of discretion. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005). “We afford the trial court considerable deference, because it is in the best position to evaluate a prospective juror’s demeanor and responses.” Id. “This is especially true when this Court is faced with a vacillating or equivocating venireperson.” Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim. App. 1994); see Russeau, 171 S.W.3d at 879; see also King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000). “The trial court is able to consider important factors such as demeanor and tone of voice that do not come through when reviewing a cold record.” Banda, 890 S.W.2d at 54. Analysis During voir dire, the State asked whether anyone “feels like you cannot sit in judgment of another person.” Juror Thomas responded that she does not “like to judge people,” “can’t be a part of convicting somebody,” and “it doesn’t feel right for me.” She “agree[d] with the law” and agreed that “you should pay for what you do.” When the defense asked whether she could vote guilty if “convinced beyond a reasonable doubt,” Thomas replied: For me, it’s not that I couldn’t do it. It’s -- it’s actually more of a religious thing. I’m with-- I’m a religion that’s not really widely known anymore. I’m pagan and I believe in Karma. And whether I -- it’s a reasonable doubt that he is guilty or not guilty, I’d feel like the actions that I put on him -- say, I thought, without a reasonable doubt he was guilty and I put him behind bars. I believe in Karma in the three-way that it would come back to me. I mean, that’s just with anything that I do. During a bench conference, Thomas further expressed doubt about her ability to vote guilty if the evidence proved guilt beyond a reasonable doubt: I really couldn’t give you a reasonable answer. It’s like the -- the religious side of me wants to say no, because it’s the religious part; but part of me says, if it would get somebody that did something wrong off the streets, then I would. So, I can’t say yes or no… She stated that she could vote guilty “[i]f everything pointed to where there was not a doubt in my mind that he was guilty” and where “there’s no doubt whatsoever.” Thomas later stated that she thought she could find guilt if proved beyond a reasonable doubt. The decision would weigh on her “mind for a bit,” but Thomas did not believe that “it would be a burden on my conscience.” Neither did she believe that she would filter the evidence through her religious beliefs: I’ve actually gotten to the point where I don’t have to filter it, because I was raised in a Christian family. So this is kind of my own little beliefs. But I wouldn’t have to filter. It wouldn’t -- I’m not thinking it would be 100 percent clogging my judgment. I would be able to leave the religion part out of it as much as I can, sink everything and trying to leave my beliefs out of it, trying to stay unbiased, either way. She would try her “hardest” to prevent religion from interfering with her decision and “[t]here’s a 85, 90 percent chance that I could.” Upon further questioning from the trial court, Thomas indicated that she could apply the reasonable doubt standard instead of “guilt beyond all possible doubt.” The State challenged Thomas for cause, expressing a lack of confidence in her ability to “set aside her religion and follow the law.” Over Johnson’s objection, the trial court granted the strike, agreeing that Thomas “has a bias against the State.”[3] Johnson objected to this ruling. On appeal, he argues that Thomas was improperly struck because she stated her ability to follow the law and find guilt where the elements of the charge were proved beyond a reasonable doubt. However, Thomas gave conflicting answers about her ability to follow the law. At one point she indicated that the State should prove guilt beyond all doubt, but later agreed that she could find guilt if proven beyond a reasonable doubt. She expressed doubt as to her ability to vote guilty even if the evidence proved guilt beyond a reasonable doubt and assessed only an “85, 90 percent chance” that her religious beliefs would not interfere with her decision. Under these circumstances, we defer to the trial court, as it was in a better position to evaluate Thomas’s ability to serve on the jury. See Russeau, 171 S.W.3d at 880 (potential juror properly struck after providing “conflicting answers about her ability to follow the law”); see also Howes v. State, 120 S.W.3d 903, 909 (Tex. App.—Texarkana 2003, pet. ref’d) (where panelist gave responses that both supported the trial court’s ruling and “cut against its ruling,” appeals court deferred to the trial court’s decision). We overrule Johnson’s third point of error. motion to suppress Johnson’s fourth point of error challenges the denial of his motion to suppress on grounds that the gun was seized as the result of an illegal detention and arrest.[4] Standard of Review We apply a bifurcated standard of review to the denial of a motion to suppress. See Haas v. State, 172 S.W.3d 42, 49 (Tex. App.—Waco 2005, pet ref’d). First, we review the denial for abuse of discretion. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). Second, we conduct a de novo review of the law as applied to the facts. See Haas, 172 S.W.3d at 49; see also Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Oles, 993 S.W.2d at 106. Absent specific findings, we review the evidence in the “light most favorable” to the ruling.[5] Haas, 172 S.W.3d at 49; Carmouche, 10 S.W.3d at 327-328. The ruling will be affirmed if “reasonably supported by the record” and correct on any applicable legal theory. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Cisneros v. State, 165 S.W.3d 853, 856 (Tex. App.—Texarkana 2005, no pet). Analysis “An officer conducts a lawful temporary detention when he has reasonable suspicion to believe that an individual is violating the law.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). A continued detention is also justified if supported by reasonable suspicion. See Haas, 172 S.W.3d at 52. Reasonable suspicion exists where the officer has “specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity.” Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). It is determined from the totality of the circumstances. Id. At the suppression hearing, Shumaker testified that he was dispatched to the library on a “welfare concern.” He quickly began to suspect that Johnson was publicly intoxicated. He observed the container of medicine bottles and noticed that Johnson was “unsteady on his feet and was staggering,” had an alcohol smell on his breath, and had red, glassy, bloodshot eyes. Johnson stated that he had consumed some wine, used medication, and was suffering some kind of reaction. He refused medical attention, seemed nervous, and kept looking at the van, causing Shumaker to suspect that “something was possibly in the van.” He provided differing explanations regarding the medication, initially naming only a few medications but subsequently claiming that all the bottles in the container belonged to him. Johnson refused to consent to a search of the van “because I have…” This reaction raised Shumaker’s suspicions that the van contained “something illegal.” Shumaker testified that he was attempting to determine whether Johnson was “intoxicated by an overdose of the pills.” He had a hunch that not all the medications belonged to Johnson, but admitted having no facts to “back it up.” Shumaker testified that it took approximately fifteen minutes to dispel his suspicions that Johnson was intoxicated. Yet, Johnson was further detained. Shumaker testified that Johnson had refused to allow him to inspect the container, but agreed to show the container to narcotics officers; thus, the detention was continued pending the officers’ arrival. Johnson was informed that narcotics officers had been contacted. He was free to leave while awaiting their arrival. When Hanks arrived, he asked for the container, which Johnson retrieved and gave to him. After finding the medicine prescribed to Johnson’s wife, Hanks spoke with Johnson’s wife who confirmed that Johnson was not supposed to have her medication. Johnson denied consenting to the detention or knowing that the narcotics office had been contacted. He neither agreed to wait for a narcotics officer nor agreed to show the container to a narcotics officer and was surprised by Hanks’s arrival. He told the officers on two occasions that he needed to leave to make an appointment. He did not feel free to leave because he was surrounded by patrol cars and officers. On appeal, Johnson contends that the gun should have been suppressed because, even assuming that the initial detention was legal, officers lacked reasonable suspicion to continue the detention after determining that he was not publicly intoxicated. Accordingly, he contends that his arrest was illegal and the gun was illegally seized. At the time Johnson was detained, the totality of relevant circumstances included: (1) the report from the library describing Johnson’s strange behavior; (2) the alcohol smell on Johnson’s breath; (3) Johnson’s difficulty walking; (4) Johnson’s glassy and bloodshot eyes; (5) Johnson’s nervous behavior; (6) the container of prescription medicine bottles; (7) Johnson’s inconsistent attempts to account for the medication; and (8) Johnson’s statements that he had used medication and was suffering from a reaction. Shumaker identified specific, articulable facts which provided reasonable suspicion to believe that Johnson may have been (1) publicly intoxicated by alcohol, drugs, or both; or (2) in possession of a dangerous drug, as evidenced by the container of medicine. Although it took a short time to determine that Johnson was not intoxicated, the record indicates that the officers were still concerned about the container of medicine bottles. According to Shumaker, Johnson agreed to allow narcotics officers to examine the container, agreed to await their arrival, and knew that they had been contacted.[6] Johnson contends that he did not so consent, having told the officers that he needed to make a four o’clock appointment. The trial court bore the burden of resolving these conflicts. See Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (at a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony); see also Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007) (the court may choose to believe or disbelieve any or all of a witness’s testimony). The trial court could have determined that Johnson agreed to show the container to narcotics officers and that the continued detention was justified by the need to await their arrival to inspect the container in order to quickly dispel or confirm suspicions regarding the medicine bottles. See Belcher v. State, 244 S.W.3d 531, 541-42 (Tex. App.—Fort Worth 2007, no. pet.) (legitimate law enforcement purpose served during twenty-seven minute delay in detention while awaiting the arrival of a DWI enforcement officer). We cannot say that Johnson was illegally detained. Johnson further argues that there was no probable cause to arrest him because he was in possession of a drug that had been obtained from a pharmacist. See Tex. Health & Safety Code Ann. § 483.041 (Vernon Supp. 2007) (“A person commits an offense if the person possesses a dangerous drug” unless the person obtains the drug from a pharmacist or a practitioner). However, Johnson was in possession of a dangerous drug that was not prescribed to him; he did not obtain the drug from a pharmacist or practitioner. The officers had probable cause to arrest Johnson. See State v. Ballard, 987 S.W.2d 889, 892 (Tex. Crim. App. 1999) (“Probable cause for an arrest exists where, at that moment, facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonably prudent person in believing that a particular person has committed or is committing a crime”). They were then authorized to perform a search of the van incident to Johnson’s arrest. See State v. Gray, 158 S.W.3d 465, 470 (Tex. Crim. App. 2005) (officer may conduct search of vehicle incident to lawful arrest). Accordingly, the trial court properly denied Johnson’s motion to suppress. We overrule his fourth point of error. Having overruled Johnson’s four points of error, we affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs but a separate opinion will not issue. He notes, however, that an unconstitutional-as-applied challenge was not made by Johnson to his possession of a handgun in what was for all apparent purposes his residence even if he occasionally slept elsewhere.) Affirmed Opinion delivered and filed May 21, 2008 Do not publish [CR25] [1] The jury acquitted Johnson of possessing a dangerous drug. [2] A similar version of the statute was enacted during the same legislative session. See Act of May 31, 1997, 75th Leg., R.S., ch. 1221 § 1, 1997 Tex. Gen. Laws 4684. We look to the statute latest in date of enactment. See Tex. Gov’t Code Ann. § 311.025(a) (Vernon 2005). [3] Johnson later objected to the composition of the jury, complaining that the State essentially received an extra strike and seeking an additional peremptory strike. This request was denied and Johnson complained that he had used all other strikes, forcing him to accept an objectionable juror. [4] Johnson filed three motions to suppress raising various allegations. He challenges only the trial court’s refusal to suppress the gun. [5] The record only contains an unsigned draft of the trial court’s findings of fact and conclusions of law. [6] Johnson complains that police cannot use his refusal to consent to search to form reasonable suspicion. However, “[n]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000). The manner in which Johnson refused to consent, i.e., his continued looks towards the van and his statement “because I have…,” raised the officers’ suspicions.