Opinion
NUMBER 13-16-00327-CR
06-29-2017
MARTY WARFORD, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Marty Warford pled guilty to possession of a controlled substance (methamphetamine) in an amount greater than four grams but less than 200 grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West, Westlaw through Ch. 49, 2017 R.S.). In one issue, Warford argues that the trial court erred by denying his motion to suppress. We affirm.
I. BACKGROUND
On April 15, 2015, Senior Officer Sean Ostrander of the Corpus Christi Police Department responded to a disturbance call made by Elizabeth Mauldin. Mauldin informed Officer Ostrander about an encounter with Warford, the manager of the apartments located at 502 E. Lakeside where Mauldin previously resided. According to Officer Ostrander, Warford visited Mauldin's new residence and accused her of taking a refrigerator from the former apartments. Officer Ostrander testified that Mauldin claimed to be in fear because Warford had been yelling. As a result, Maudlin requested that Officer Ostrander contact Warford.
Officer Ostrander and Senior Officer Matt Morrow drove to the 502 E. Lakeside apartments to speak with Warford. The officers entered the parking lot of the apartments and saw Warford standing in the parking lot. Officer Ostrander recognized Warford because of an encounter they had in the past. When Warford witnessed the two patrol cars enter the parking lot, he began to walk away. However, when Officer Ostrander exited his vehicle and called out "Hey, Marty," Warford turned around and walked towards Officer Ostrander. As Warford walked towards Officer Ostrander, both officers saw a clear baggy containing a crystallized substance, which they suspected to be methamphetamine, hanging out of Warford's right pocket. Officer Ostrander instructed Warford to turn around, then retrieved the suspected narcotics and placed Warford under arrest. After searching Warford, Officer Ostrander found a second baggy with the same crystallized substance in the same front pocket. The crystallized substance later tested positive for methamphetamine.
Warford was later indicted for possession of methamphetamine in an amount greater than four grams but less than 200 grams. See id. Warford's motion to suppress was denied by the trial court. The trial court did not issue findings of fact or conclusions of law. The trial court accepted a plea bargain calling for a five-year sentence in the Texas Department of Criminal Justice—Institutional Division. This appeal ensued. Warford argues in one issue that the trial court erred in denying his motion to suppress.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The trial court's ruling on a motion to suppress is reviewed under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 667 (Tex. Crim. App. 2007). The trial court's findings of fact and the application of law to the facts are given nearly full deference when supported by the record. Miller v. State, 393 S.W.3d 255, 261-62 (Tex. Crim. App. 2012). When the trial court does not make explicit findings of fact, we infer the necessary factual findings that support the trial court's ruling. See Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013) (permitting implied factual findings only if the record supports them). Mixed questions of law and fact that are independent of the trial court's credibility and demeanor determinations are reviewed de novo. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). We review the record in the light most favorable to the trial court's ruling. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010).
The Fourth Amendment prohibits government officials from conducting unreasonable searches and seizures. Id. The guiding principle of the Fourth Amendment is "reasonableness." Riley v. California, 134 S. Ct. 2473, 2482 (2014). Generally, for a search or seizure to be deemed reasonable, a warrant must be granted beforehand. Maryland v. Dyson, 527 U.S. 465, 466 (1999). Thus, a warrantless search or seizure conducted for the "purpose of furthering a criminal investigation" is considered reasonable only if it falls under a well-defined exception to the warrant requirement. State v. Sanchez, 501 S.W.3d 165, 169 (Tex. Crim. App. 2017). There are three distinct categories of interactions between police officers and citizens: consensual encounters, investigative detentions, and arrests. Crain, 315 S.W.3d at 49. Unlike detentions and arrests, consensual encounters between individuals and police officers do not raise Fourth Amendment issues. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding the Fourth Amendment will be triggered only if an encounter "loses its consensual nature"); State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011) (ruling the Fourth Amendment is not implicated by "consensual police-citizen encounters").
Generally, an encounter is no longer consensual when an officer has restrained the individual's liberty, by showing authority or physical force. Bostick, 501 U.S. at 434. However, no bright-line rule exists to establish when a consensual encounter becomes a seizure. Woodard, 341 S.W.3d at 411. When evaluating whether an interaction constitutes a seizure, we consider the totality of the circumstances surrounding the interaction to determine whether a reasonable person in the defendant's position would have felt free to disregard the officer. See id. (holding a seizure does not occur if there is an option to ignore the request or terminate the interaction). To determine whether an interaction constitutes a seizure, we review the time, place, and circumstances surrounding the encounter. State v. Castleberry, 332 S.W.3d 406, 467 (Tex. Crim. App. 2011). We give the most weight to the officer's conduct. See Crain, 315 S.W.3d at 49-50 (reviewing officer's use of language and tone of voice).
The United States Supreme Court held that police merely approaching an individual to ask questions does not constitute a violation of the Fourth Amendment. Bostick, 501 U.S. at 434. Even when officers have no grounds for suspecting a particular individual, they may generally question that individual. Id. at 435. The Fourth Amendment is not implicated if the police officer does not convey a message of obligatory compliance. Id. An officer's behavior typically constitutes a seizure when they display a weapon, physically touch the individual, or use a tone of voice indicating that compliance is required. Crain, 315 S.W.3d at 49-50.
III. ANALYSIS
Warford argues that the trial court erred in denying his motion to suppress because (1) Ostrander entered private property without suspicion of criminal activity; (2) the consensual encounter doctrine does not apply to the facts at hand and a reasonable citizen would not have felt free to leave; and (3) under the totality of the circumstances, the initial encounter was a detention. On a motion to suppress, Warford bears the initial burden to show that he was seized without a warrant. Woodard, 341 S.W.3d at 413. To shift the burden to the State, Warford must defeat the presumption of proper police conduct by presenting evidence associated with a seizure. Id.
A. Suspicion of Criminal Activity
We first address Warford's sub-argument that Officer Ostrander entered private property without suspicion of criminal activity. This issue was not raised in trial court. As a general rule, we cannot reverse the trial court's findings when the error was not preserved. See Morris v. State, 89 S.W.3d 146, 150 (Tex. App.—Corpus Christi 2002, no pet.) (holding defendant did not preserve error for review if the trial court objection differs from the complaint on appeal). As such, Warford has waived error. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (failing to preserve an error for review results in no opinion as to the merit of the appeal).
Even if Warford had preserved this error for review, it would not change the outcome of this appeal. As we discuss below, suspicion of criminal activity is not required because the initial interaction was a consensual encounter in a public place. See Florida v. Bostick, 501 U.S. 429, 435 (1991) (holding police officers may ask general questions when no suspicion exists); Cuero v. State, 845 S.W.2d 387, 391 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd.) (categorizing parking lots as public areas).
B. Consensual Doctrine Applies
Warford next argues that the facts at hand do not amount to a consensual encounter and violate his Fourth Amendment rights. We disagree. In the case at bar, Officer Ostrander testified that Warford was in the middle of the parking lot with other people around. A person is more likely to feel at liberty to terminate or ignore an encounter with the police when approached in a place with others nearby. See Castleberry, 332 S.W.3d at 468. Further, the manner in which Officer Ostrander called to Warford is uncontested. Thus, considering how Warford was approached, we cannot find a message of obligatory compliance in saying "Hey, Marty." See Crain, 315 S.W.3d at 49-50. Considering the totality of the circumstances surrounding the interaction, we conclude Warford did not meet his burden because he failed to show that his liberty was restrained by the officer's conduct. Woodard, 341 S.W.3d at 411. Under these facts, we conclude that a reasonable person in Warford's shoes would have felt free to terminate the encounter at any time before the arrest, making it consensual.
C. Initial Encounter was Consensual
Warford's third sub-argument is that the initial encounter was conducted upon private property and thus, "the most stringent protection" of the Fourth Amendment should be applied. Warford cites no authority showing how entering private property differs from public property. Nevertheless, we review this sub-argument to the extent that he meant to raise an issue of whether the officers invaded the curtilage of his apartment. Curtilage is determined by factors which bear upon an individual's reasonable expectation of whether an area should be treated as the home itself. United States v. Dunn, 480 U.S. 294, 300 (1987). The curtilage concept extends to the area immediately surrounding a dwelling house, while excluding any open fields. See id. at 295 (establishing that government's encroachment upon open fields is not an unreasonable search); see also Cuero v. State, 845 S.W.2d 387, 392 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd.) (describing an open field need not be "open" nor a "field"). However, precedent categorizes apartment parking lots as public places. See Bouyer v. State, 264 S.W.3d 265, 270 (Tex. App.—San Antonio 2008, no pet.) (holding parking lots and sidewalks are deemed public spaces); see also Cuero, 845 S.W.2d at 391 (defining a public place as any place where a substantial public group has access).
In the present case, both officers entered a public place when they arrived at the apartment's parking lot. Accordingly, we must give deference to the trial court's implied findings of fact, while reviewing questions of law de novo. Miller, 393 S.W.3d at 261-62. As such, we conclude it is unreasonable for Warford to expect the same level of privacy of a home in a parking lot because it is a public place accessible to a substantial group of the public. Cuero, 845 S.W.2d at 391.
D. Plain View
In this case, a baggy containing methamphetamine was hanging out of Warford's pocket in plain view of Officer Ostrander during a consensual encounter. "It has long been settled that [illegal] objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure." Harris v. United States, 390 U.S. 234, 236 (1968). We conclude that the trial court could have reasonably found that Officer Ostrander legally seized the methamphetamine under the plain view doctrine. See id.
E. Summary
We conclude that Warford failed to establish that he was illegally seized without a warrant. Warford also did not present sufficient evidence to defeat the presumption of proper police conduct and failed to shift the burden of proof to the State. Furthermore, the drugs were legally seized under the plain view doctrine. We overrule Warford's sole issue.
IV. CONCLUSION
We affirm the trial court's ruling in denying the motion to suppress.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 29th day of June, 2017.