No. 05-09-00062-CR
Opinion Filed September 3, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-45316-T.
Before Justices MOSELEY, O'NEILL, and MURPHY.
Opinion By Justice O'NEILL.
Appellee Brian Edward Minyard was charged with possession of four or more grams but less than two hundred grams of methamphetamine. The trial court granted appellee's motion to suppress and the State appeals. In two issues, the State argues the trial court erroneously identified several conclusions of law as findings of fact, and the trial court abused its discretion in granting appellee's motion to suppress. We affirm.
Background
The State presented one witness during the suppression hearing, Detective Brian Meli with the Richardson Police Department. He testified to the following facts. On July 17, 2008 at approximately 1 a.m., a patrol officer conducted a traffic stop. During the stop, the officer learned a burglary ring was operating out of room 1902 at a Quality Inn Suites in Richardson. This particular Quality Inn Suites was in a known high crime area of Dallas County. Officers obtained more information throughout the day and eventually searched room 1902 and impounded large amounts of stolen property. While the officers searched the room, they heard a knock on the door. Detective Meli and Detective Harris answered it and saw appellee standing at the door. The detectives were dressed in plain clothes, but had their badge holders around their necks with their badges clearly displayed. Appellee asked the detectives, "Is Nick here?" Detective Meli testified one of the suspects in the burglary ring they were investigating was Nicholas Alexander. He also said appellee seemed very nervous. Detective Harris asked appellee for identification. Appellee then said "I must have the wrong room." Detective Harris again requested identification. He said appellee then made a motion backward, and in his opinion, he thought "the chase was on." Detective Harris then grabbed appellee. Appellee's arms went backwards tightening his shirt in the front, and Detective Meli saw a large bulge in his waistband. Detective Meli was concerned the bulge was a gun. Detective Meli lifted appellee's shirt and saw a red pouch stuffed in his pants. He asked appellee what it was, and appellee said "I keep my insulin in it." Detective Meli then asked if he could look inside the pouch, and appellee said "sure." Inside the pouch, he found some syringes, seventeen grams of methamphetamine, some marijuana, and some pills. Appellee was then placed under arrest. During the search incident to the arrest, officers discovered a plastic pouch with a tube of clean urine. Appellee said he was taking it to his probation officer for his urine test. Detective Meli stated that when they first detained appellee he was not under arrest. When Detective Harris asked him for identification, they were simply investigating why he was knocking on the door of that particular room. On cross examination, Detective Meli again stated appellee was free to leave when they first opened the door. When the court asked him "at what point did that change?" Detective Meli answered "when he said that he was looking for Nick." He further stated "the only reason we detained him, we wanted to identify him because he was at this apartment with all this stolen property in it during this investigation. When he made the jerking movement to pull away, to run away when he was asked for ID, that's when he was detained." After further questioning by the court, Detective Meli stated appellee's detention occurred when he asked for Nick, even though he did not know whether appellee was referring to Nicholas Alexander. He also stated appellee was not free to leave when Detective Harris asked him for identification. On redirect, Detective Meli testified when they are working a crime scene and somebody comes to the scene and links himself to a possible suspect of the crime, it is common practice to ask for identification. At that point, they have a suspicion the person is somehow involved. At the end of the hearing, the court asked both parties to provide case law on whether knocking on the door of a crime scene and asking for a person the officers suspect is a participant in a case they are investigating is sufficient for a reasonable detention. At a follow up hearing, the parties presented case law to the court and briefly argued their points. Appellee argued this case was different from the cases presented by the State because here, there were no articulable facts that would lead anyone to be suspicious that he was engaging in any criminal activity. The State responded that based on the detectives' reasonable beliefs at the time, a person knocked on the door of a known crime scene, asked for the suspect of the burglary ring, acted nervous, and then went into flight. The State acknowledged that flight alone was not enough, but it can be enough to detain someone when combined with the other factors. Thus, the State argued the detectives had reasonable suspicion to detain appellee for identification purposes. The court granted appellee's motion to suppress. The State requested findings of fact and conclusions of law, which the court provided. This appeal followed. Standard of Review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). Thus, a trial court's determination of reasonable suspicion and probable cause as they apply to search and seizure are also reviewed de novo. Randolph, 152 S.W.3d at 769. If a trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. Further, the trial court is the sole trier of fact, judges witness credibility, and determines the weight given to witness testimony. Id. When as here the court makes explicit findings of fact, we must determine whether the evidence supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We then review the court's legal ruling de novo unless the court's findings, which are supported by the evidence, are also dispositive of the legal ruling. Id. Likewise, where the resolution of the issue does not turn on an evaluation of credibility and demeanor, an appellate court is in as good a position to review the issue as the trial court; therefore, an appellate court determines the issue independently. Brown v. State, 92 S.W.3d 655, 660 (Tex. App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex. Crim. App. 2003). Consensual Police Encounters and Fourth Amendment Detentions
The Fourth Amendment of the United States Constitution protects persons from unreasonable searches and seizures. U.S. Const. amend. IV. As the Court of Criminal Appeals has aptly noted, "encounters between citizens and police officers are incredibly rich and diverse." State v. Garcia-Cantu, 253 S.W.3d 236, 242 (Tex. Crim. App. 2008) (citing Terry v. Ohio, 392 U.S. 1, 13, 88 S. Ct. 1868 (1968)). They run the gamut from wholly frivolous exchanges of pleasantries to hostile confrontations of armed men, involving arrests, injuries, or loss of life. Id. Given this wide diversity of police interaction, not every encounter between the two is subject to Fourth Amendment scrutiny. Id. It is only when an officer by means of physical force or show of authority, has in some way restrained the liberty of a citizen, will courts conclude a Fourth Amendment "seizure" has occurred. Id. Such seizures occur when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Id. Police officers, however, are as free as any other citizen to knock on someone's door and ask to talk with them, to approach citizens on the street or in their car, and to ask for their cooperation or information. Id. In fact, as the court noted in Garcia-Cantu, police officers may be as aggressive as the pushy salesman at the front door, the insistent panhandler on the street, or the grimacing street corner car-window squeegee man. Id. at 243. It is only when the police officer engages in conduct a reasonable man would view as threatening or offensive, even if performed by another private citizen, does such an encounter become a seizure. Id. "It is the display of official authority and its implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure." Id. Thus, the mere approach and questioning of a person does not constitute a seizure. Id.; Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (en banc) (holding nothing in the record indicated a reasonable person would not have felt free to walk away from officer prior to searching bag). Further, merely asking a person for identification does not turn a consensual encounter into a detention. See Hunter, 955 S.W.2d at 106. As such, each police encounter must be factually evaluated on its own terms because there are no per se rules. The officer's conduct is the primary focus but time, place, and attendant circumstances matter as well. Garcia-Cantu, 253 S.W.3d at 244. It is only when an officer has conveyed that compliance with his requests is required that an encounter becomes a detention. See Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995) (seizure of citizen does not occur until reasonable person would believe he was not free to leave and either yields to officer's show of authority or has been physically forced to yield). 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). Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. Id. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id. Further, a reasonable suspicion determination is made by considering the totality of the circumstances. Id. at 493. Discussion
The trial court specifically found that Detective Meli detained appellee as soon as he asked for "Nick," and when the officer asked for identification, appellee was not free to leave but was already detained. It further found the only facts given for the detention were that appellee asked for "Nick" and one of the suspects in the burglary ring had the first name of "Nicholas." The court then concluded this was insufficient to provide reasonable suspicion that appellee was engaged in criminal activity. It further concluded "knocking on a motel door and asking for a person with a name similar to the name of a suspect in possible criminal activity under investigation is constitutionally inadequate to provide reasonable suspicion for a detention." The State argues on appeal the detectives and appellee participated in a consensual encounter in which he was free to leave until he made a motion backwards and Detective Harris grabbed him. At that point, appellee was detained and the officers had reasonable, articulable facts to continue with their search. Appellee contends the encounter was not consensual because a reasonable person would not have felt free to leave from the moment the officers asked for identification. Further, during this time the detectives had no reasonable, articulable facts he had been or was about to be involved in any criminal activity. Thus, the resulting search violated his constitutional right against unreasonable searches and seizures. We begin our analysis by determining whether the initial interaction between appellee and the detectives was a consensual encounter. Despite the trial court's finding that based on Detective Meli's testimony, it was plain he was not going to let appellee go until he identified himself, this did not turn the encounter into a detention. See McCraw v. State, 117 S.W.3d 47, 52 (Tex. App.-Fort Worth 2003, pet. ref'd) (noting the mere opinion of the officer who detains the suspect does not conclusively determine the nature of the detention). Both the trial court and appellee in his brief incorrectly rely on Detective Meli's subjective beliefs about whether the encounter was consensual when the law clearly states "a court must step into the shoes of the defendant and determine from a common, objective perspective whether the defendant would have felt free to leave." Garcia-Cantu, 253 S.W.3d at 244 (emphasis added). Here, appellee knocked on the door, asked for Nick, and then Detective Harris asked for identification. Appellee responded "I must have the wrong room," and he was again asked to identify himself. Appellee then made "a jerking motion" backwards. Although Detective Meli thought "the chase was on," the record does not show appellee was intimidated by any display of authority by the detectives that he could not ignore or avoid. Rather, appellee attempted to leave. See Cantu-Garcia, 253 S.W.3d at 243. In fact, the State agrees by stating in its brief "Appellee said that he must have the wrong room and made a motion backwards after the officer asked him for identification, which indicates that Appellee felt free to decline the officer's request and terminate the encounter." We agree with the State. Asking for identification does not turn a consensual encounter into a detention. See Hunter, 955 S.W.2d at 106. As noted, appellee tried to end the encounter; therefore, he clearly did not feel overcome by an official show of authority by the detectives. Thus, we conclude that although the trial court's factual findings regarding the interaction are supported by the record, its conclusions of law regarding when appellee was detained and whether the encounter was consensual do not flow from the findings. The trial court was simply mistaken about the legal significance of the facts it found. See Sheppard, 271 S.W.3d at 292. Thus, as a matter of law, the facts support a conclusion that appellee and the detectives engaged in a consensual encounter. Accordingly, as the State argues in its brief, the relevant inquiry is whether the detectives had reasonable suspicion to detain appellee when Detective Harris grabbed him as he attempted to leave the scene. Based on a totality of the circumstances, we do not believe reasonable suspicion existed at the time appellee was grabbed and restrained. At the time appellee was detained, by making some backward motion, Detective Meli had the following articulable facts, which the trial court specifically found: (1) they were investigating a burglary scene involving a suspect by the name of Nicholas; (2) during the investigation, appellee knocked on the door and asked for "Nick"; (3) appellee was asked for identification but rather than providing it, he said "I must have the wrong room; (4) appellee was again asked for identification but instead of providing it, he made a motion backwards. In addition to these facts, Detective Meli also testified during the suppression hearing that appellee acted "nervous" when they answered the door, and the motel was located in a high-crime area of Dallas County. First, because appellee and the detectives were involved in a consensual encounter, in which appellee was free to leave at any time, we disregard Detetcive Meli's belief that he thought the "chase was on." As previously noted, appellee thought he was free to go and tried to leave. Further, Detective Meli testified that appellee made a motion backwards. Although "sudden movements" have been repeatedly held to create a "specific articulable suspicion" that a person may be armed and dangerous, the record does not reveal that appellee's movement led Detective Meli to believe he was armed and needed to be detained for a weapons check. See, e.g., Worthey v. State, 805 S.W.2d 435, 439 (Tex. Crim. App. 1991) (after officer's told appellant not to move, she made a sudden movement obstructing the view of her hand and purse, which gave officers a reasonable suspicion she might be armed); Jackson v. State, 14-94-00876-CR, 1996 WL 499468, *4 (Tex. App.-Houston [14th Dist.] 1996, no pet.) (not designated for publication) (appellant suddenly thrust his hand into his pocket where the officer reasonably believed a weapon could be concealed). Neither party has cited any case law, and we have found none, supporting a detention based on reasonable suspicion when a person simply knocks on the door when police are investigating a possible crime, and the person asks for someone with a similar name as a potential suspect. We conclude this alone is not enough to create specific, articulable facts that appellee was involved in or about to be involved in a crime. We acknowledge that Detective Meli testified the motel was in a high crime area of Dallas County and that he claimed appellee acted nervous when asked for identification. However, it is beyond dispute that being in a high crime area does not alone create reasonable suspicion justifying a detention or search. See Gurrola v. State, 877 S.W.2d 300, 303 (Tex. Crim. App. 1994); Davis v. State, 61 S.W.3d 94, 98 (Tex. App.-Amarillo 2001, no pet.). Similarly, nervousness does not constitute grounds to reasonably suspect criminal activity is afoot. Davis, 61 S.W.3d at 98; see also State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999) (noting even an innocent person's pulse might race when a police officer identifies himself and begins asking questions). Thus, we conclude these factors alone do not establish reasonable suspicion. The State also relies on appellee's proximity to or presence at the crime scene as a factor influencing the existence of reasonable suspicion. However, the cases relied on by the State are distinguishable. In Mays v. State, an officer was dispatched to an apartment complex because of a suspected burglary in progress and upon his arrival a few minutes later, he saw two men standing by the front door of the apartment where the call originated. Based on these facts, the officer had reasonable suspicion to detain the suspects. Mays v. State, 726 S.W.2d 937, 943-44 (Tex. Crim. App. 1986). In Tuck v. State, while investigating a crime scene, officers spotted appellant behind the fence examining the ground as if he were looking for something. When appellant saw the officers, he walked away. Tuck v. State, 01-06-01086-CR, 2008 WL 4757005, *12 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (not designated for publication). Because of his proximity to the crime scene and their concern that he might be disturbing evidence, officers had reasonable suspicion to detain him. Id. In these cases, officers found the appellants already present at the crime scene during their investigation, which indicated the likelihood that they had some involvement with the crime at hand. Here, Detective Meli did not find appellee near the scene when he arrived at the motel, which would indicate appellee's possible involvement in the burglary ring. Rather, appellee knocked on the door unaware that a police investigation was going on inside. Given his later presence at the scene and even asking for Nick, Detective Meli still failed to point to any objective manifestation that appellee was, or was about to be, engaged in criminal activity. See, e.g., Klare v. State, 76 S.W.3d 68, 77 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (officer had no reasonable suspicion to detain appellant who was spotted sitting in his car behind a closed shopping center in an area that experienced burglaries in the past because the officer failed to show appellant was or was about to be engaged in criminal activity). Here, there is simply no indication or reasonable inference of criminal activity. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to a crime. McCraw, 117 S.W.3d at 52. We acknowledge that appellee asking for "Nick" when the suspect's name was "Nicholas" could be considered a suggestion to connect appellee with the unusual activity; however, Detective Meli admitted he did know whether appellee was asking for Nicholas Alexander. He further admitted he had no information about appellee being connected to any crime, particularly the burglary ring. At most, considering the totality of the circumstances, the facts give rise to the kind of inarticulable hunch of illegal activity prohibited by Terry. See Terry, 392 U.S. at 13. Thus, we conclude the detectives initial interaction with appellee was an encounter, but the subsequent restraining of him when he tried to leave conveyed the message he was not free to leave and constituted a detention. We further conclude, based on the record, that when the detectives refused to allow appellee to leave, they did not have reasonable suspicion to detain him. Accordingly, we overrule the State's second issue. Because we affirm the trial court's suppression order as to the illegal detention, we need not address the State's argument that appellee gave consent to search the pouch in which the drugs were discovered following the detention. Conclusion
Having considered the State's arguments, the trial court's order granting appellee's motion to suppress is affirmed.