Nos. 05-02-01323-CR, 05-02-01324-CR.
Opinion Filed April 2, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-37534-MT and F01-37535-MT. Affirmed.
Before Chief Justice THOMAS, Justices JAMES and HADDEN.
Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN
In cause number 05-02-01323-CR, appellant was charged with possession with intent to deliver 3, 4 methylenedioxy methamphetamine (more commonly known as "ecstacy") in an amount of four grams or more but less than four hundred grams. In cause number 05-02-01324-CR, appellant was charged with possession of marihuana in an amount greater than four ounces but less than five pounds. In each case, the trial court overruled appellant's motions to suppress, but made no findings of fact. Thereafter, appellant entered open guilty pleas to each charge. The trial court accepted appellant's pleas and deferred adjudicating guilt. In the ecstacy case, the court placed appellant on ten years' community supervision and assessed a $2,000 fine. In the marijuana case, the court placed appellant on five years' community supervision and assessed a $1,000 fine. In one issue, appellant challenges the trial court's denial of his motions to suppress.
BACKGROUND
Irving undercover narcotics detective William Bishop ("Bishop") was driving near the intersection of Carl Road and Highway 183 when he noticed a black Chevrolet and a white Ford parked together at a Shell station. Appellant and a female companion were in the Chevrolet. Bishop knew the Shell station was a popular place for illegal drug transactions because he had personally made a dozen drug arrests there. The two vehicles were parked away from the gas pumps and the store. These factors caused Bishop to become suspicious that illegal narcotics activity was afoot, so he maintained surveillance. After a few minutes, the Ford left, but appellant stayed and appeared to be waiting. Appellant's vehicle had New Mexico license plates. According to Bishop, it was common for out-of-state persons to meet near major roadways to conduct narcotics transactions. While waiting, appellant and his passenger opened the trunk and moved things around. Eventually, appellant answered a cell phone call and, after a brief conversation, left the Shell station in the Chevrolet. At this point, Bishop summoned uniformed officer Plunkett to assist in case a traffic stop was needed. Appellant drove to a carwash and parked in the stall next to the Ford. Bishop saw appellant, his passenger, and the Ford's driver transfer objects from car to car, including a black backpack. Both vehicles left the carwash. However, appellant turned into the next available parking lot. In the parking lot, appellant and his companion got out of the vehicle and began talking with each other. Plunkett approached appellant and asked him if there was anything illegal in the car. Appellant said no. Plunkett then asked appellant for consent to search the car, and appellant gave him permission. Plunkett initially searched the passenger compartment, but when he started to search the trunk, appellant asked him to stop. Plunkett stopped, then asked appellant if he had anything to hide. Plunkett testified that, at that point, appellant's head "just dropped." When Plunkett asked appellant to "just tell me what is inside of the vehicle," appellant said he had a pound of marijuana in a black bag in the trunk. Plunkett opened the trunk, found the marijuana, and arrested appellant. During a post-arrest search of appellant's vehicle, the police found the ecstacy. Appellant asserts the stop and detention, as well as the warrantless search of his vehicle, violated his constitutional and statutory rights, and, therefore, the resulting contraband should have been suppressed. Appellant specifically argues the stop and detention were not justified by reasonable suspicion or probable cause to believe that any crime had been or was being committed. In response, the State contends Plunkett's initial interaction with appellant was not a detention. It further contends that even if Plunkett did detain appellant, it was a detention based upon specific articulable facts giving rise to a reasonable suspicion that appellant was involved in criminal activity. Finally, the State argues, once appellant stated there was marijuana in the trunk, the police had probable cause to search the trunk, seize the marijuana, arrest appellant, and had a valid basis to search the vehicle after appellant's arrest. We agree with the State. APPLICABLE LAW
In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and review de novo the court's application of the law of search and seizure. O'Hara v. State, 27 S.W.3d 548, 550 (Tex.Crim.App. 2000). If there are no findings of fact, we review the evidence in a light most favorable to the trial court's ruling. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex Crim. App. 2000). Not every interaction between police officers and citizens involves the Fourth Amendment. A police officer may approach and ask an individual questions without implicating the Fourth Amendment. See State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim. App. 2002); Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim. App. 2002). However, when questioning becomes a detention, it must be supported by a reasonable suspicion. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.-Houston [1st Dist.] 2001, no pet.). ANALYSIS
The record, viewed in the light most favorable to the trial court's decision, shows that Plunkett did not effect a traffic stop on appellant. Appellant voluntarily pulled into the parking lot and voluntarily exited his vehicle. When Plunkett pulled in to the parking lot, appellant and his companion were standing by their vehicle talking. Plunkett was alone when he approached appellant, did not give any commands, but simply engaged appellant in "small talk." When Plunkett asked appellant for consent to search his vehicle, Plunkett used no force or coercion, did not threaten appellant, nor drew his weapon. He simply asked in a polite manner, and appellant responded unequivocally, "Yes, go ahead." These facts support the conclusion that this was merely an encounter. See, e.g., Jackson v. State, 77 S.W.3d 921, 924-28 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (officers at airport, who asked to search defendant's bag, did not detain defendant but merely had an encounter with defendant); State v. Hernandez, 64 S.W.3d 548, 551-52 (Tex.App.-Texarkana 2001, no pet.) (passenger on bus stopped for traffic violation was not detained, even though asked questions by drug task force officer); Citizen, 39 S.W.3d at 371 (defendant not detained when police pulled into his driveway, walked up to him, and talked to defendant while he stood on his porch). We further conclude Plunkett had probable cause to search appellant's trunk and subsequently arrest appellant after appellant told Plunkett he had marijuana. See, e.g., Doyle v. State, 779 S.W.2d 492, 495 (Tex.App.-Houston [1st Dist.] 1989, no pet.) (defendant's admission she had marihuana "roaches" on car floorboard gave probable cause to believe that offense was occurring). Appellant argues he was not told that he was free to leave or that he did not have to consent to a search. However, nothing in the record shows that Plunkett conveyed a message that appellant was obliged to comply with Plunkett's request. Appellant apparently felt free to refuse consent since he instructed Plunkett not to search the trunk. Moreover, the Supreme Court has rejected the notion that police officers must inform citizens of their right to refuse consent to an encounter or a search. United States v. Drayton, 122 S.Ct. 2105, 2113 (2002). Viewing the evidence in a light most favorable to the trial court's ruling we conclude the encounter between Plunkett and appellant was not a detention and did not implicate the Fourth Amendment. The trial court did not err in overruling appellant's motions to suppress. We resolve appellant's lone issue in each case against him. We affirm the trial court's judgments.