Larry Gordon Randall v. State , 2012 Tex. App. LEXIS 4531 ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00234-CR
LARRY GORDON RANDALL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 10-01347-CRM-CCL2
OPINION
Larry Gordon Randall was convicted of the offense of driving while intoxicated.
TEX. PENAL CODE ANN. § 49.04 (West Supp. 2011). He pled guilty after the trial court
overruled his motion to suppress. Because the trial court did not err in overruling
Randall’s motion to suppress,1 the trial court’s judgment is affirmed.
1 Randall filed three motions to suppress in each of which he complained about the initial contact with
the officer. The trial court’s ruling refers to “[T]he motion to suppress,” in the singular. It is unclear
which motion, or all three, was overruled. We, likewise, use the word, “motion,” in the singular.
BACKGROUND
Jonathan Huth, an officer with the College Station Police Department, saw a car
pulled off to the side of the road on a divided two lane highway with a grass center
median in the early morning hours of February 27, 2010. It was not a well-lit area and
no developments or businesses were in that area. No one was visible around the car
but the car’s lights were on. Huth decided to pull up behind the car to see what was
going on, such as whether the car was broken down or the driver was lost. When he
got behind the car, he turned on his overhead flashing lights and spotlight. He notified
dispatch that he was stopping for a ‚motorist assist.‛ At the hearing on Randall’s
motion to suppress, Huth testified that he turns on his overhead lights just about every
time he gets out of his car when he is on the side of the road for safety reasons. He also
testified that he turned on his lights for this particular encounter as a notice to other
drivers that he was going to be outside of his patrol car on the side of the road.
Huth walked up to the driver’s side window to see who was in it. The window
was rolled down, and Randall was talking on his cell phone. No one else was in the car.
Huth testified at the hearing that as soon as he got up to the window, he could smell the
odor of an alcoholic beverage and noticed that Randall’s eyes were glassy and his
speech was slurred. He also noticed that Randall had what looked to be coffee spilled
on his shirt and all over the center console of the car. Huth stood at the window for ‚a
minute‛ before Randall turned and acknowledged his presence but continued talking
Randall v. State Page 2
on his cell phone. When Randall paused his conversation, Huth asked Randall if
everything was alright, and Randall replied that he was waiting on his wife. After a
little more conversation, Huth then asked Randall to hang up the phone so they could
talk. Huth stated at the hearing that within the first few minutes of him standing by the
window, he suspected that Randall might be under the influence of alcohol.
Randall testified at the suppression hearing that when he saw the officer’s lights
on, he did not feel free to leave. He also testified that he hung up the phone when the
officer tapped on his window and that the officer, when he first arrived at the window,
commanded him to get off the phone.
MOTION TO SUPPRESS
Randall argues that the trial court erred in denying his motion to suppress
because the initial contact between the officer and Randall was a detention rather than a
consensual encounter and that the detention was not justified by the community
caretaking exception to the Fourth Amendment warrant requirement. See Wright v.
State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). See also Corbin v. State, 85 S.W.3d 272,
276 (Tex. Crim. App. 2002) (‚But, even without reasonable suspicion or probable cause
that an offense has been committed, a police officer may reasonably seize an individual
through the exercise of his community caretaking function.‛).
Randall v. State Page 3
Standard of Review
A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006). As the reviewing court, we view all of the
evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253
S.W.3d 236, 241 (Tex. Crim. App. 2008). When the trial court does not make explicit
findings of fact, as is the case here,2 we infer the necessary factual findings that support
the trial court's ruling if the record evidence, viewed in the light most favorable to the
ruling, supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex.
Crim. App. 2006). Thus, the trial court is given almost total deference in its
determination of historical facts, especially if those are based on an assessment of
credibility and demeanor. Garcia-Cantu, 253 S.W.3d at 241. This same deferential
standard applies regardless of whether the trial court has granted or denied a motion to
suppress evidence. Id. ‚Thus, the party that prevailed in the trial court is afforded the
strongest legitimate view of the evidence and all reasonable inferences that may be
drawn from that evidence.‛ Id. The question of whether a given set of historical facts
amounts to a consensual police-citizen encounter or a detention under the Fourth
Amendment, however, is subject to de novo review because it is an issue of law. Id.
2Although the trial court somewhat explained its ruling in a letter order, the court was not requested to,
and did not, make explicit findings of fact.
Randall v. State Page 4
Detention v. Encounter
We first address whether the initial contact between Randall and Huth was a
detention or a consensual encounter. Randall contends that the contact was a detention
because a reasonable person in his situation would view Huth’s act of pulling in behind
Randall’s parked car while Huth activated his overhead red and blue flashing lights as
an instruction to ‚stop,‛ or, ‚do not move, you are not free to leave.‛
A few years ago, the Court of Criminal Appeals had the opportunity to examine
the distinction between a citizen-police encounter and a citizen-police detention in State
v. Garcia-Cantu. State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008). Relying
primarily on the United States Supreme Court’s decision in Florida v. Bostick, the Court
of Criminal Appeals concluded that trial and appellate courts must view "the totality of
the circumstances" of the contact in the light most favorable to the trial judge's implicit
(or explicit) factual findings and that the question of when contact between police
officers and a person in a car constitutes a detention depends on specific facts as to the
manner of the contact, the degree of authority displayed, and all other circumstances
surrounding the incident. State v. Garcia-Cantu, 253 S.W.3d 236, 244 (Tex. Crim. App.
2008); see Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). The
Court noted that Bostick mandates a court to consider all of the circumstances
surrounding the encounter to determine whether the police conduct would have
communicated to a reasonable person that the person was not free to decline the
Randall v. State Page 5
officer's requests or otherwise terminate the encounter. Garcia-Cantu, 253 S.W.3d at 242
(citing Bostick, 501 U.S. at 439). Examples of circumstances that might indicate a
detention has occurred would be the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the citizen,
or the use of language or tone of voice indicating that compliance with the officer's
request might be compelled. Crain v. State, 315 S.W.3d 43, 49-50 (Tex. Crim. App. 2010)
(citing U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)).
"Each citizen-police encounter must be factually evaluated on its own terms; there are
no per se rules." Garcia-Cantu, 253 S.W.3d at 243; see Bostick, 501 U.S. at 439-440.3
In his brief, Randall relies on two cases to support his theory that Huth’s use of
overhead lights turned the contact into a detention. His reliance on these two cases is
misplaced.
The first case relied upon by Randall is Crain v. State, decided by the Court of
Criminal Appeals in 2010. Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010). In
Crain, the Court concluded that the officer’s ‚act of shining his patrol car’s overhead
lights4 in the *pedestrian+ appellant’s direction, coupled with his request-that-sounded-
like-an-order, to ‘come over here and talk to me,’ cause*d+ the appellant to yield to *the
3 The Florida Supreme Court had established a per se rule that police officers who boarded buses at
scheduled stops and questioned passengers without articulable reasons for doing so necessarily "seized"
those passengers within the meaning of the Fourth Amendment. The use of per se rules such as this was
struck down by the United States Supreme Court.
4 These lights were not the emergency red and blue flashing lights.
Randall v. State Page 6
officer’s+ show of authority‛ and that a detention occurred. Id. at 52 (footnote added).
Although the Court recognized that some cases have discussed whether the use of
emergency flashing lights in certain circumstances would be considered a detention, see
id. at 50, 51-52; see also Garcia-Cantu, 253 S.W.3d at 243 n. 43; Hudson v. State, 247 S.W.3d
780, 785 (Tex. App.—Amarillo 2008, no pet.) (‚when a person stops in response to a
patrol car's emergency lights rather than of his own accord, an investigatory detention
has occurred….‛), emergency lights were not used in Crain, and the Court did not
create a per se rule that the use of emergency lights amounted to a detention.
In the second case relied upon by Randall, the Texarkana Court determined that
the use of ‚take down‛ lights combined with the fact that the defendant’s vehicle was
not actually ‚boxed in‛ by the police officer did not convert the initial contact between
the officer and the defendant into a detention. Hughes v. State, 337 S.W.3d 297, 302 (Tex.
App.—Texarkana 2011, no pet.). In route to that decision, the court noted that the lights
used in its case were not the overhead red and blue flashing lights. Id. at 301. The court
then made the statement, upon which Randall relies, ‚Overhead emergency lights are
synonymous with an instruction to stop.‛ Id.
We disagree with the scope of this statement as argued by Randall. First, it is a
general statement which is not supported by case authority and is dicta because it is not
necessary to the disposition of Hughes’ appeal. Second, to determine that the use of
overhead emergency flashing red and blue lights, by itself, transforms a police-citizen
Randall v. State Page 7
contact from an encounter to a detention would be contrary to the rule of Bostick, which
requires a review of the totality of the circumstances, and would establish a ‚per se‛ rule
also contrary to the holding of that case. Although the use of overhead emergency
flashing red and blue lights may give rise to a detention in certain circumstances, it does
not always convert an encounter into a detention. See Franks v. State, 241 S.W.3d 135, 142
(Tex. App.—Austin 2007, pet. ref’d) (use of overhead emergency flashing lights not
determinative); Martin v. State, 104 S.W.3d 298, 301 (Tex. App.—El Paso 2003, no pet.)
(same). Third, the statement addresses what overhead emergency flashing red and blue
lights may mean if the motorist is moving; but Randall was not moving. And finally, it
overstates what overhead emergency flashing red and blue flashing lights mean in most
circumstances and to most motorists which is simply to yield the right of way to an
emergency vehicle and only if the emergency vehicle follows you to the side of the road
does it indicate ‚stop.‛
Randall suggested in oral argument that we should only review the facts and
circumstances surrounding the contact up until and including the point at which Huth
activated his overhead emergency flashing lights or at the most until he reached
Randall’s car. We need not, he continued, review anything past that point in time.
However, such a bright line demarcation of where to end our review as Randall
suggests runs afoul of Bostick’s totality of the circumstances concept. Certainly we
cannot use hindsight to justify the contact between an officer and a citizen just as we
Randall v. State Page 8
cannot use their subjective beliefs as to whether the officer did not intend to detain the
citizen or whether the citizen believed he was not free to leave. But we must go further
than where Randall argues we stop and review all the facts and circumstances
surrounding the contact. Thus, in order to determine whether, in this case, Huth’s use
of the overhead emergency flashing lights created a detention, we review the totality of
the circumstances surrounding the contact, not simply whether he used the overhead
lights.
In addition to the testimony presented at the suppression hearing, an in-car
video of the initial contact between Huth and Randall was introduced into evidence
which corroborates Huth’s testimony. The video begins with Huth turning onto the
roadway and eventually pulling in behind a car stopped on the side of the road. The
overhead emergency flashing lights are activated when Huth is on the shoulder, still in
his patrol car, and is approaching the parked car. Huth talks with dispatch and then
exits his patrol car. It appears he has a flashlight in his left hand as he walks up to the
car. He approaches the driver’s side of the car, and Randall can be heard talking. Huth
says, ‚hi‛ and waits for a few moments. Randall pauses his conversation, says, ‚yes,
sir,‛ and Huth asks if everything is alright. Randall replies, ‚yeah‛ and explains that he
is trying to direct his wife to his location. After a little more conversation, Huth asks
Randall to do him a favor and call Randall’s wife back in a few minutes.
Randall v. State Page 9
There was nothing threatening or coercive in Huth’s approach to Randall or
Randall’s car. Huth’s flashlight was not used in any threatening manner and no
weapon was drawn. There was no tapping on the window by Huth as Randall had
testified. Because Randall could be heard on the video talking as soon as Huth
approached, the trial court could have found that the window was already down. Huth
did not touch Randall’s person at all. There were no other officers approaching Randall
with Huth. What Huth said and his tone of voice was very casual, not demanding.
Huth did not command Randall to hang up his cell phone as soon as he approached
Randall’s window as Randall had testified. Although Randall also testified that he felt
like he was not free to leave, his subjective belief is not a factor. See California v. Hodari
D., 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (‚…the test for existence of
a "show of authority" is an objective one: not whether the citizen perceived that he was
being ordered to restrict his movement, but whether the officer's words and actions
would have conveyed that to a reasonable person.‛). Further, Randall was not ‚boxed
in‛ by Huth and could have driven away. See Hughes v. State, 337 S.W.3d 297, 302 (Tex.
App.—Texarkana 2011, no pet.). The fact that the overhead emergency flashing lights
were activated is, in this situation, not determinative. Huth’s overhead emergency
flashing lights were not activated in order to pull over Randall; he was already stopped.
And the trial court could have found, based on Huth’s testimony, that they were used
for safety reasons only.
Randall v. State Page 10
CONCLUSION
Viewing the totality of the circumstances in the light most favorable to the trial
court’s implicit findings and ruling, we hold that this initial contact between Huth and
Randall was an encounter, not a detention. Thus, the trial court did not err in
overruling Randall’s motion to suppress for this reason.
Because we have held that the initial contact was not a detention, we need not
determine whether a detention was justified pursuant to the community caretaking
exception to the Fourth Amendment. The community caretaking exception
presupposes a detention. See Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002).
Accordingly, Randall’s sole issue is overruled, and the trial court’s judgment is
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurs without an opinion)
Affirmed
Opinion delivered and filed June 6, 2012
Publish
[CR25]
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