Big Win for Client on Fourth Amendment Issue. Reversed on Appeal!

Big win for our client on a Fourth Amendment issue. The question was whether the police officer had the right to approach the client in the manner that the officer did. The trial court found for the State but the court of appeals reversed and found that the police officer violated our client’s constitutional rights. All evidence suppressed.

Opinion here: http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=0b888583-187e-4882-9d34-3f03eb89a810&coa=coa05&DT=Opinion&MediaID=cd2250dd-d1ba-4119-b789-0f1ac762ca62

The general analysis for an encounter like this is listed below as is the link to the opinion.

General Law

“The Fourth Amendment to the United States Constitution permits a warrantless detention of a person, short of a full-blown custodial arrest, if the detention is justified by reasonable suspicion.” State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013) (citing Terry v. Ohio, 392 U.S. 1, 28, 88 S. Ct. 1868, 20 Ed. 2d 889 (1968)); Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011).

Police and citizens engage in three distinct types of interactions: consensual encounters, investigative detentions, and arrests. State v. Woodard, 341 S.W.3d 404, 411–12 (Tex. Crim. App. 2011). “Consensual police-citizen encounters do not implicate Fourth Amendment protections.” Id. at 411 (citing Fla. v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), and Fla. v. Rodriguez, 469 U.S. 1, 5-6, 105 S. Ct. 308, 83 L. Ed. 2d 165 (1984)). Detentions and arrests are Fourth Amendment seizures and therefore implicate Fourth Amendment protections. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011). “[W]hen a seizure takes the form of a detention, Fourth Amendment scrutiny is necessary—it must be determined whether the detaining officer had reasonable suspicion that the citizen is, has been, or is about to be engaged in criminal activity.” Id. (citations omitted).

“In reviewing a trial court’s ruling on a motion to suppress, appellate courts must view the evidence in the light most favorable to the trial court’s ruling.” State Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). “When the trial court does not make explicit findings of fact, the appellate court infers the necessary factual findings that support the trial court’s ruling if the record evidence (viewed in light most favorable to the ruling) supports these implied fact findings.” Id. “When a trial court makes explicit fact findings, the appellate court determines whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). Such motions are reviewed under a bifurcated standard in which “[t]he trial judge’s determinations of historical facts and mixed questions of law and fact that rely on credibility are granted almost total deference when supported by the record. But when mixed questions of law and fact do not depend on the evaluation of credibility and demeanor, [appellate courts] review the trial judge’s ruling de novo.” Kerwick, 393 S.W.3d at 273 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

Terry Stop Analysis

Under a “Terry Stop” analysis, this Court first decides whether an officer’s action was justified at the inception. Carillo v. State, No. 05-12-000544-CR, 2014 Tex. App. LEXIS 1280, at *6 (Tex.App.—Dallas Feb. 4, 2013, no pet.) (mem. op., not designated for publication). The second prong under a Terry analysis is whether the search and seizure was reasonably related to the circumstances that justified the stop in the first place. Id.

Consensual Encounter v. Investigative Detention

Consensual Encounter

 A consensual encounter is not a governmental seizure, as it is not sufficiently threatening, intimidating, or invasive to trigger Fourth Amendment protections. Bostick, 501 U.S. at 434; see Rodriguez, 469 U.S. at 5–6.

Law enforcement may approach and speak with a fellow citizen without justification. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185, 124 S. Ct. 2451, 159 L. Ed. 2d 292 (2004). And citizens may, at will, terminate such consensual encounters. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). Even when the officer does not communicate to the citizen that the request for information may be ignored, the citizen’s acquiescence to an official’s request does not cause the encounter to lose its consensual nature. Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984). 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.  The surrounding circumstances, including time and place, are considered when determining whether a reasonable person in the defendant’s shoes would have felt free to ignore the police officer or to terminate the communication, but the officer’s conduct is the most important factor when deciding whether an interaction was consensual or a Fourth Amendment seizure. Garcia-Cantu, 253 S.W.3d at 244. “A [reviewing] 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.” Id.

Investigative Detention

To conduct an investigative detention, an officer must have “reasonable suspicion.” Crain, 315 S.W.3d at 52; Brodnex v. State, 485 S.W.3d 432, 436 (Tex.Crim. App. 2016).

An investigative detention is a Fourth Amendment seizure of limited scope and duration that must be supported by a reasonable suspicion of criminal activity.

An investigative detention results from a person surrendering to the police officer’s show of authority coupled with a reasonable belief that he is not free to leave. Crain, 315 S.W.3d at 49 “The test to determine whether a person has been detained is objective and does not rely on the subjective belief of the detainee or the police.” Furr v. State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016) (citing Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013)). A police officer has reasonable suspicion to detain a person when that police officer has “specific, articulable facts that, when  combined with  rational  inferences  from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Id. However, the officer must have more than an inarticulable hunch or mere good-faith suspicion that a crime was in progress. Crain, 315 S.W.3d at 52. In deciding whether an officer had a reasonable suspicion, appellate courts examine the facts that were available to the officer at the time of the investigative detention. Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997). If it is determined that there was no reasonable suspicion on which to detain an individual, then the investigative detention violates the Fourth Amendment. Id.

When a police officer stops a defendant without a warrant, the State must prove the reasonableness of the stop at a suppression hearing. State v. Cortez, 543 S.W.3d 198, 204 (Tex. Crim. App. 2018).

Cars and Investigative Detentions

The Court of Criminal Appeals explained, in a lengthy footnote, in 2008, that generally when a police car “boxes in” another car, this act usually constitutes a seizure. In this footnote, the Court wrote:

Most courts have held that when an officer “boxes in” a car to prevent its voluntary departure, this conduct constitutes a Fourth Amendment seizure. See, e.g., Riley v. State, 892 A.2d 370, 374 (Del. 2006) (“when police approached the Escort with their badges and flashlights, after having parked their police vehicle behind the Escort so as to prevent it from driving away, a seizure had taken place for purposes of Fourth Amendment analysis”); United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (stating that when officers’ vehicles were parked both in front and behind defendant’s car with a “take down” light shining through his windows and officer approached car with a flashlight and asked occupants to put their hands in the air where she could see them, defendant was detained); United States v. Pavelski, 789 F.2d 485, 488-89 (7th Cir. 1986) (“A reasonable person in this situation, bounded on three sides by police patrol cars, would not have believed that he was free to leave. Indeed, we wonder whether appellants could have maneuvered their car out of the parking lot in this situation.”); United States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir. 1987) (“Kerr stopped and exited his car primarily in response to Deputy Hedrick’s official appearance and conduct, rather than of his own volition. Arriving in uniform and in a marked patrol car, Deputy Hedrick unquestionably appeared to be acting in an official capacity. Instead of waiting in his patrol car at the roadside, or parking and walking, Deputy Hedrick pulled into and blocked the one lane driveway as Kerr was backing out. Deputy Hedrick’s conduct thus precipitated the confrontation with Kerr.”); State v. Struhs, 940 P.2d 1225, 1227-28 (Utah 1997) (totality of circumstances showed Fourth Amendment detention; “Defendant claims that the officer’s action of parking nose-to-nose about one car length away when his car was backed up against a barricade essentially ‘blocked defendant in’ so he was unable to move. While defendant was not completely blocked in, the officer’s positioning of her vehicle is certainly a factor that weighs in favor of finding under a totality of the circumstances that defendant was seized.”); State v. Roberts, 1999 MT 59, 293 Mont. 476, 977 P.2d 974, 979 (Mont. 1999) (concluding that defendant was detained when officer “pull[ed] into the one- lane  driveway and block[ed] Roberts’ exit,  thereby physically constraining Roberts’ means and direction of travel. Furthermore, Officer Oster was armed and in uniform, and his show of authority in immediately exiting his patrol car and approaching Roberts added to the official nature of the encounter. Given these circumstances, the District Court correctly concluded that ‘[a] reasonable person would not have felt free to leave a situation where a uniformed officer, in his patrol car, pulled his car into a driveway behind that person’s car, blocking its exit.’”); State v. Jestice, 177 Vt. 513, 861 A.2d 1060, 1063 (Vt. 2004) (finding a Fourth Amendment detention because of “the show of authority present in this case, where a uniformed officer parked his marked patrol car nose-to-nose against a couple’s car late at night in a darkened trailhead parking lot with no one else around, left the cruiser’s headlights shining in their faces as he approached them, and asked them what they were doing.”); McChesney v. State, 988 P.2d 1071, 1075 (Wyo. 1999) (finding a Fourth Amendment detention when officer activated his emergency lights and blocked defendant’s car in; “Officer Will parked his vehicle directly behind McChesney’s, which was parked at the convenience store’s front doors. McChesney’s vehicle was thus blocked in, and he could not have driven away had he wanted to. Such action has also been found sufficient to constitute a seizure. See 4 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 9.3(a), at 108, n.96.”). On the other hand, when an officer only partially blocks a parked car or merely makes it somewhat inconvenient for the citizen to depart voluntarily, such action is not necessarily, by itself, sufficient to constitute a Fourth Amendment detention. See, e.g., United States v. Kim, 25 F.3d 1426, 1430-31 (9th Cir. 1994) (no detention “where, as here, officers came upon an already parked car,” even though police car “partially blocked” that car); People v. Cascio, 932 P.2d 1381, 1386-87 (Colo. 1997) (noting that, in determining whether the totality of the circumstances established a detention of a citizen in a parked car, “courts have deemed the position of the patrol car relative to the motorist’s vehicle an important consideration”; surveying cases and concluding that “if the police patrol car wholly blocks the defendant’s ability to leave, courts have held that a reasonable person would not feel free to leave, so that the encounter cannot be adjudged consensual,” but when “egress was only slightly restricted. . . with approximately ten to twenty feet between the two vehicles” and the defendant “would have been able to leave by maneuvering the van in a manner akin to parallel parking,” this fact was insufficient, by itself, to establish a detention).

Garcia-Cantu, 253 S.W.3d at 246 n.44.

Exemplar Cases for Reasonable Suspicion

Garcia v. State

 In Garcia, the Court of Criminal Appeals answered the question, “[d]oes a small child’s looking back several times at a following police car, by itself, give rise to a reasonable suspicion that the child is not wearing a seat belt?” Garcia v. State, 43 S.W.3d 527, 528 (Tex. Crim. App. 2001). The Court answered that question “no.” Id.

In Garcia, the Court described the facts as: On the morning of December 12, 1996, Pasadena police officer Larry Candelari, responding to an anonymous tip that appellant possessed a substantial amount of marijuana, placed appellant’s trailer home under surveillance. Officer Candelari soon observed appellant, accompanied by a small child and an adult male, leave the trailer home and drive away in a pickup truck. Officer Candelari began a discreet pursuit of appellant that continued from Pasadena into South Houston. At that point, Officer Candelari requested assistance from the South Houston Police Department to conduct a stop of appellant’s truck. Officer D.L. Sills responded to this request and followed appellant’s truck for approximately two blocks. During this time period, Officer Sills noticed that a child, who was the middle passenger, “looked back” at him several times.

This comment that the child “looked back” was made by Officer Sills at the motion to suppress hearing in the following colloquy concerning the possible existence of a traffic violation:

PROSECUTOR: How long were you behind the small pickup truck before you stopped him?

SILLS: Probably a good two blocks.

PROSECUTOR: Okay. And during that time period, did you observe anything, to you, that might be a traffic violation or that you knew to be a traffic violation?

SILLS: The middle passenger, small child, looked back at me several times.

PROSECUTOR: Okay. And what about that indicated that there might be a traffic violation?

SILLS: The traffic violation would be the child was not wearing a seat belt.

PROSECUTOR: And based on the request from Pasadena and that possible traffic violation, did you stop the vehicle?

SILLS: Yes, sir.

After Sills stopped appellant’s vehicle and approached, he observed that appellant (the driver) and the child were, at that time, wearing seat belts. However, the adult passenger appeared to be just holding his unlocked seat belt buckle across his body. Sills then determined that appellant was unable to provide any proof of insurance. Immediately afterwards, Officer Candelari approached and questioned appellant regarding the possible possession of marijuana. Id. at 528–29.

The Court then explained:

The State is correct that it need not establish with absolute certainty that a crime has occurred in order to show reasonable suspicion. Nevertheless, the State was required to elicit testimony of sufficient facts to create a reasonable suspicion that the child was not wearing a seat belt. The State contends that the record in this case shows more than the child looking back, but the State reads too much into the record. The quoted passage set out earlier in this opinion is the only portion of the record that describes the child’s behavior while appellant was being followed by Sills. Officer Sills did not in any way qualify the manner in which the child “looked back.” He simply concluded from the child’s looking back that the child might not have been wearing a seat belt. The State seems to have been under a similar misimpression before the trial court. There, the prosecutor contended that Sills “did observe the child turn around and look back at him several times.” However, nothing in the record supports the notion that the child “turned around.” Id. at 530–31.

The Court concluded, “[i]n the present case, however, all the record shows is that the child ‘looked back’ several times. We hold that this fact is simply not enough to give rise to reasonable suspicion that the child was not wearing a seat belt. Given the record before us, we find that there was insufficient evidence to establish reasonable suspicion for the stop based upon the child’s failure to wear a seat belt.” Id. at 531–32.

Ford v. State

In Ford, a state trooper temporarily detained Ford for an alleged traffic violation and, in that temporary detention, discovered contraband in Ford’s vehicle. Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005). Ford, who was later indicted for possession of the contraband, moved to suppress, arguing that the trooper did not have reasonable suspicion to justify the temporary detention. At the suppression hearing, the only evidence presented about the reasonableness of the temporary detention was the trooper’s testimony that he stopped Ford’s vehicle because it was “following too close behind” the vehicle in front of it. Peavy was the only officer to testify to the facts surrounding the stop. The Court of Criminal Appeals summarized his testimony writing:

Q: And on September 2nd of 2001 did you notice something that caught your eye around 5:47 at night?

A: Yes, ma’am. I was patrolling and I saw a maroon utility vehicle following too close behind—I was patrolling 290 westbound. I saw a maroon GMC or Chevy utility vehicle following a white car, following too close.

Q: And where were you when you noticed this vehicle? A: I was directly behind him.

Q: And at the time that you noticed this, what did you do?

A: I activated my emergency overheads and the vehicle pulled over.

. . .

Q: And when you were approaching the vehicle, what were your intentions before you approached the vehicle?

A: To talk to him about his violation he had committed. Q: Which violation is that?

A: Following too close.

The trial court denied the motion to suppress, and the court of appeals upheld that denial. The Court of Criminal Appeals reversed, holding that the trooper’s testimony was nothing more than “a conclusory statement that Ford [had] violate[d] a traffic law” and was, therefore, insufficient to support a finding of reasonable suspicion. Id. at 493–94.

Exemplar Cases on Consensual Encounters and Investigative Detentions

State v. Garcia-Cantu

In Garcia-Cantu, the Court of Criminal Appeals reversed the intermediate- appellate court’s finding that the trial court erred in granting the defendant’s motion to suppress because under the facts of the case the case was not “a citizen-police ‘encounter’” but was instead “a citizen-police ‘detention.’” Garcia-Cantu, 253 S.W.3d at 238.

The Court of Criminal Appeals described the facts as follows:

Officer Okland decided to “investigate” the presence of appellee’s truck parked at the dead-end portion of the 300 block of South

The video recording supports the trial judge’s implicit finding that Officer Okland used an authoritative, commanding voice and demeanor that brooked no disagreement into his official investigation. Although reasonable fact finders could disagree, we must give great deference to the trial judge’s assessment of the facts.

It was 4:00 a.m. on December 26th, Christmas. Officer Okland turned on his patrol-car spotlight to light up appellee’s truck even before he stopped his car, and he activated his dashboard camera. He parked his patrol car about ten feet behind and to the left of appellee’s truck. The testimony, photographs, and video recording all support the trial judge’s implicit factual finding that Officer Okland “boxed in” appellee’s parked truck, preventing him from voluntarily

Officer Okland got out of his patrol car, holding his large flashlight in both hands at shoulder-level, and started to approach the driver’s side of appellee’s truck in a manner that could fairly be described as

Appellee then got out of his truck and started to walk toward Officer Okland, who immediately asked, “What are you doing here?”

Although these words are not, by themselves, sufficient to convert an otherwise consensual encounter into a detention, much depends upon the tone and level of voice, as well as the questioner’s demeanor. The trial judge could have concluded that, based upon Officer Okland’s tone and demeanor on the witness stand, as well as his tone and demeanor as seen and heard on the video recording, that the officer’s questioning was more in the nature of an official command rather than a friendly or neutral inquiry.

Officer Okland then played his flashlight across the female passenger’s side of the truck to track the passenger’s exit from the truck. She came around to where the officer and appellee were standing at the rear of the

Officer Okland then played his flashlight into and across appellee’s eyes as if he were looking for signs of intoxication. He did the same to appellee’s friend who came out of the

Officer Okland then asked appellee, “You got any D. on you?” Apparently appellee said that it was in the truck because Officer Okland immediately went back to the driver’s side and looked inside the truck. He then came back to the rear of the truck and told appellee to go get his I.D. out of the truck. Appellee did so.

Appellee testified that he did not subjectively feel free to leave or terminate the

That fact is not particularly relevant because the test is whether a reasonable person in the citizen’s position would have felt free to leave. However, given the facts that Officer Okland initiated the incident by blocking appellee’s exit with his patrol car, turning on his spotlight, approaching appellee’s truck with a long flashlight playing over the driver’s side, immediately saying, “What are you doing here?”, using his flashlight to wave the passenger back to the rear of the truck, and, standing toe-to-toe with appellee, shining his flashlight into appellee’s eyes, it is hard to conclude that any reasonable person would feel free to drive or walk away or to terminate the questioning. Id. at 244–49.

The Court of Criminal Appeals then found that “the totality of the circumstances support his conclusion that appellee was detained by Officer Okland for purposes of the Fourth Amendment.” Id. at 250.