Opinion
NO. 09-11-00381-CR
03-21-2012
ALBERT JAMES DAUGHERTY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 260th District Court
Orange County, Texas
Trial Cause No. D-100705-R
MEMORANDUM OPINION
Albert James Daugherty was charged with possession of a controlled substance. The trial court denied Daugherty's motion to suppress evidence. Daugherty pleaded guilty to possession of a controlled substance, and the trial court sentenced Daugherty to fifteen years in prison. In his sole appellate issue, Daugherty challenges the trial court's denial of his motion to suppress. We affirm the trial court's judgment.
The record does not contain a written order denying Daugherty's motion to suppress. The reporter's record from the suppression hearing contains the trial court's verbal denial of Daugherty's motion. Additionally, the trial court's findings of fact state that the trial court denied Daugherty's motion, the trial court's docket sheet states that the motion was denied, and the trial court certified Daugherty's right to appeal. Despite the absence of a written order denying Daugherty's motion to suppress, the record is sufficient to demonstrate that the trial court denied Daugherty's motion. See Tex. R. App. P. 33.1(a); see also Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001).
"We review a trial court's ruling on a motion to suppress under a bifurcated standard of review." Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
First, we afford almost total deference to a trial judge's determination of historical facts. The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. He is entitled to believe or disbelieve all or part of the witness's testimony--even if that testimony is uncontroverted--because he has the opportunity to observe the witness's demeanor and appearance.Id. at 447-48 (internal footnotes omitted).
If the trial judge makes express findings of fact, we view the evidence in the light most favorable to his ruling and determine whether the evidence supports these factual findings. When findings of fact are not entered, we "must view the evidence 'in the light most favorable to the trial court's ruling' and 'assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.'"
Second, we review a trial court's application of the law of search and seizure to the facts de novo. We will sustain the trial court's ruling if that ruling is "reasonably supported by the record and is correct on any theory of law applicable to the case."
In his motion to suppress, Daugherty argued that officers violated the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, article I, sections 9, 10, and 19 of the Texas Constitution, and article 38.23 of the Code of Criminal Procedure. See U.S. Const. amends. IV, V, VI, XIV; see also Tex. Const. art. I, §§ 9, 10, 19; Tex. Code. Crim. Proc. Ann. art. 38.23 (West 2005). At the suppression hearing, Daugherty contended that officers acted on information from unidentified witnesses and unlawfully detained him.
Sergeant Jason Laughlin testified that he received telephone calls from neighbors and anonymous callers about possible drug activity and prostitution occurring at a residence. The residence was believed to be unoccupied and without power. Laughlin did not know the last time that someone was arrested for drugs or prostitution at the residence. Laughlin drove to the residence in an unmarked patrol car and parked across the street to watch for activity. An hour to an hour and a half later, after dark, Laughlin saw a pickup truck pull into the driveway and stop, but the driver remained inside the truck. Laughlin testified that the driver, Daugherty, had done nothing illegal and could have had lawful reasons for parking in the driveway. About five minutes later, Laughlin decided to investigate Daugherty's reasons for pulling into the driveway and contacted backup.
Officer Michael Roush, Sr. responded to Laughlin's call for assistance. Roush testified that Laughlin had received complaints about the residence and saw a suspicious vehicle pull into the residence. Both officers parked their patrol cars in front of the residence and activated their overhead emergency lights for traffic safety purposes. Roush's patrol car blocked the driveway of the residence. Laughlin testified that Daugherty was not detained, but he and Roush testified that Daugherty could not leave in his truck because of the position of Roush's patrol car. However, Roush testified that Daugherty would have been allowed to leave had he asked to do so.
When Roush stepped out of his patrol car, he saw Daugherty reach down into the floorboard of his truck. The driver's side door was closed and the truck's engine was turned off. Roush approached the truck, saw there was nothing in Daugherty's hands, and asked Daugherty to step out of the truck. Daugherty complied with this request. Roush testified that Daugherty was free to leave, and he explained that had Daugherty refused to step out of the truck, Roush would have interviewed Daugherty at the door of the truck. Roush testified that Daugherty had done nothing unlawful.
Daugherty told Laughlin that he did not live at the residence and had come to give "Jerry" a ride, but he did not know Jerry's last name. Laughlin noticed that Daugherty was shaking, his voice was trembling, and he appeared nervous. During this exchange, Daugherty denied being nervous and denied having or doing anything illegal. Laughlin testified that Daugherty was polite and cooperative.
To confirm Daugherty's story, Laughlin knocked on the door of the residence, but no one answered. Laughlin looked in a window and concluded that no one lived at the residence. Laughlin asked Daugherty for permission to search his truck and his person, and Daugherty consented. Laughlin testified that Daugherty was free to leave had he refused consent. Roush conducted a pat-down search of Daugherty's person. Roush felt a bulge in Daugherty's right shirt pocket, heard a rustling sound like that of a plastic bag, and felt a "rocky substance" in a plastic bag, which Roush knew to be a common method of possessing cocaine. Roush removed the item from Daugherty's pocket and observed an "off-white colored, rocky, powdered substance" that he believed to be crack cocaine. Roush handcuffed and arrested Daugherty. Laughlin continued searching Daugherty's truck and discovered more cocaine. He testified that Daugherty was not detained until the cocaine had been found.
Laughlin testified that two to three minutes passed between the initial contact with Daugherty and discovery of the cocaine. Roush testified that Daugherty had committed no crime before the cocaine was found, and he and Laughlin explained that Daugherty was free to leave before the cocaine was found. Daugherty stipulated that he had a container containing cocaine and that officers seized this container.
At the conclusion of the hearing, the trial court denied Daugherty's motion to suppress. The trial court entered the following findings of fact: (1) Laughlin received anonymous calls and calls from neighbors who complained about possible drug activity and prostitution at the residence; (2) the residence was believed to be unoccupied and without utilities; (3) to investigate the complaints of criminal activity, Laughlin traveled to the residence in an unmarked patrol car and began a "stake out[;]" (4) one to one and a half hours later, Laughlin saw a pickup truck pull into the driveway of the residence and stop; (5) the driver did not step out of the truck and about five minutes later, Laughlin called for backup and parked his patrol car on the street beside the residence; (6) Roush arrived and parked his vehicle behind the truck, effectively blocking Daugherty from leaving unless Roush moved his patrol car; (7) Roush saw Daugherty trying to place something on the floor of the truck; (8) Roush approached the truck, saw there was nothing in Daugherty's hands, and asked Daugherty to step out of the truck and come to the rear of the truck to speak with Roush, as Roush did not want Daugherty within reach of any weapon in the truck; (9) Laughlin asked Daugherty if he lived at the residence and Daugherty said he did not; (10) Laughlin asked Daugherty why he was at the residence and Daugherty stated he was picking up Jerry, but did not know Jerry's last name; (11) Laughlin knocked on the door of the residence, but no one answered; (12) Daugherty appeared nervous and was asked if he had any drugs, but stated he did not; (13) Laughlin asked Daugherty for permission to search the truck and his person; (14) Daugherty consented to the search of his truck and his person; (15) Roush searched Daugherty and found cocaine in his pocket; (16) Laughlin searched the truck and found cocaine in the glove box; and (17) Daugherty was never detained and was free to leave at any time and Roush would have moved his patrol car upon Daugherty's request.
On appeal, Daugherty complains that officers engaged in a "fishing expedition" and that a reasonable person would not have felt free to refuse consent and leave. He contends that the encounter became a detention once he was unable to leave the scene because Roush's vehicle blocked his truck in the driveway of the residence. The State contends that a consensual encounter occurred between the officers and Daugherty.
Law enforcement officers may stop and question a citizen, and such consensual encounters require no objective justification. State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011); State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). Citizens may terminate consensual encounters. Woodard, 341 S.W.3d at 411. Even when the officer does not communicate to the citizen that the request for information may be ignored, the citizen's acquiescence to the officer's request does not cause the encounter to lose its consensual nature. Id. If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment seizure has not occurred. Id. Moreover, an officer's asking questions and requesting consent to search do not, standing alone, render an encounter a detention. Hunter v. State, 955 S.W.2d 102, 106 (Tex. Crim. App. 1997). Only if the officer conveyed a message that compliance was required has a consensual encounter become a detention. Id.
"Courts consider the totality of the circumstances surrounding the interaction to determine whether a reasonable person in the defendant's shoes would have felt free to ignore the request or terminate the interaction." Woodard, 341 S.W.3d at 411. We consider the time, place, and surrounding circumstances, but the officer's conduct is the most important factor when deciding whether an interaction was consensual. Id. When deciding whether a consensual encounter has become a detention, we consider several factors: "(1) whether the officer was in uniform; (2) whether the officer exhibited a weapon; (3) the number of officers present; (4) whether the officer suggested that he would get a warrant if the defendant did not comply; (5) whether the officer told the defendant he believed the defendant was carrying drugs; and (6) whether the officer told the defendant that compliance was or was not required." Melugin v. State, 989 S.W.2d 470, 472 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (citing Hunter, 955 S.W.2d at 104). We view the totality of the circumstances of the encounter in the light most favorable to the trial court's implicit or explicit factual findings; a piecemeal approach is prohibited. State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App. 2008).
In this case, the officers were entitled to approach and question Daugherty, even without personal knowledge of any criminal activity that had occurred at the residence, information to support a conclusion that the complainants were credible or reliable, or knowledge that Daugherty had committed an offense. See Woodard, 341 S.W.3d at 412-13. The record does not indicate that the officers displayed weapons, suggested that a warrant would be obtained if Daugherty failed to comply, told Daugherty that he was suspected of possessing narcotics, demanded information, or ordered compliance. See id. at 411; see also Hunter, 955 S.W.2d at 104; Melugin, 989 S.W.2d at 472.
The officers activated the overhead lights on their patrol cars for safety purposes and not to effectuate a stop of Daugherty's truck or to obtain Daugherty's submission to a show of authority. See Hudson v. State, 247 S.W.3d 780, 785 (Tex. App.—Amarillo 2008, no pet.) ("Activation of overhead lights on a police vehicle does not necessarily make an encounter non-consensual[,]" but "when a person stops in response to a patrol car's emergency lights rather than of his own accord, an investigatory detention has occurred and reasonable suspicion is required."); see also Martin v. State, 104 S.W.3d 298, 301 (Tex. App.—El Paso 2003, no pet.) ("[D]epending on the facts, the officers may well activate their emergency lights for reasons of highway safety or so as not to unduly alarm the stopped motorists."). The position of Roush's patrol car made it difficult for Daugherty to depart the scene voluntarily, but Daugherty could have asked Roush to move his patrol car or could have left the scene on foot. See Garcia-Cantu, 253 S.W.3d at 246 n.44 (When an officer partially blocks a parked car or makes it somewhat inconvenient for the citizen to depart voluntarily, such action is not alone sufficient to constitute a detention.). The record does not suggest that the officers conveyed a message to Daugherty that he must comply with their requests, including Laughlin's request to search Daugherty's truck and person. See Hunter, 955 S.W.2d at 104, 106.
Under these circumstances, we conclude that the initial interaction between the officers and Daugherty was a consensual encounter. See Woodard, 341 S.W.3d at 411; see also Castleberry, 332 S.W.3d at 468; Hunter, 955 S.W.2d at 106. Once the officers found narcotics pursuant to a search conducted with Daugherty's consent, the officers had probable cause to arrest Daugherty. See Leday v. State, 3 S.W.3d 667, 671 (Tex. App.—Beaumont 1999, pet. ref'd) ("Probable cause to arrest exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe an offense has been or is being committed."). Accordingly, the trial court properly denied Daugherty's motion to suppress. We overrule Daugherty's sole issue and affirm the trial court's judgment.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ.