Peter Fils Jolivette v. State ( 2014 )

Opinion issued July 1, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00451-CR
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PETER FILS JOLIVETTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Case No. 1360299
MEMORANDUM OPINION
Peter Fils Jolivette pleaded guilty to possession of less than one gram of a
controlled substance, and the trial court assessed punishment at 60 days’
confinement. 1 In one issue, Jolivette contends that the trial court erred by denying
his motion to suppress evidence seized during an illegal investigative detention.
We affirm.
Background
Well after midnight, Officer J. Guzman and D. Hudeck were patrolling a
residential neighborhood and decided to drive by a vacant lot known for narcotics
and prostitution activity. The officers approached the lot in a marked police car. As
they neared the lot, they saw Jolivette’s vehicle parked in the middle of the street
with the headlights off and a man standing next to the car talking to Jolivette
through the driver’s window.
Guzman testified that when he shined the police car spotlight onto the man
talking to Jolivette, the man immediately walked away from the vehicle, toward a
wooded area of the vacant lot. Guzman described the man’s behavior as
“suspicious.” Then, Guzman shined the spotlight onto the driver’s side of the
vehicle. Jolivette responded quickly, making movements “towards the floorboard
area” beneath his seat, “like [he was] trying to conceal something, hide
something.” Guzman parked the patrol car and Hudeck walked toward the man
1
TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(a)–(b), 481.102(3)(D) (West
2010) (criminalizing possession of less than one gram of cocaine as state jail
felony).
2
who had been standing next to the vehicle. Guzman approached the driver’s side of
the vehicle and found Jolivette sitting in the driver’s seat.
Guzman testified that he asked Jolivette to get out of the vehicle “for safety
reasons” and then patted Jolivette down to “make sure he didn’t have nothing on
him.” Guzman did not find any weapons in his search. While Jolivette stood next
to the car, Guzman used a flashlight to look through the open driver’s window
toward the floorboard and saw three items: a crack pipe and two rocks of crack
cocaine. After a field test confirmed that the rocks were cocaine, Guzman arrested
Jolivette.
Jolivette was charged with possession of less than one gram of a controlled
substance. At a pretrial hearing, Jolivette moved to suppress the evidence, arguing
that the pipe and cocaine were inadmissible because Guzman did not have
reasonable suspicion to justify his investigative detention. Officers Hudeck and
Guzman were the only witnesses to testify.
After hearing the evidence, the trial court made the following findings of
fact:
• Officers Guzman and Hudeck exercised discretion based on their
experience and training when patrolling locations known for high
narcotics and prostitution activity and the officers had made “several”
prior narcotics-related arrests at the same location and many had been
tried in criminal court.
• Jolivette’s vehicle was “stopped in the middle of the street” without
headlights at 2:46 a.m.
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• The officers’ spotlight was “bright” and the officers could see through
the windshield of Jolivette’s car from approximately 40 yards.
• Jolivette’s “whole body” moved towards the floorboard of the vehicle
when illuminated by the police spotlight.
• The man standing next to Jolivette’s vehicle walked away, toward the
vacant lot when the police officers arrived.
• Based on the officers’ training and experience, it was a “reasonable
possibility” that there was a narcotics transaction in progress when they
arrived at the scene.
• Officer Guzman asked Jolivette to exit the vehicle for “safety reasons”
and then Jolivette closed the car door.
• Officer Guzman saw a crack pipe and two rocks of cocaine on the
driver’s side floorboard of Jolivette’s car.
The trial court also made the following conclusions of law: the officers had lawful
authority to approach Jolivette’s car because the vehicle was obstructing the
roadway and had its headlights off. Citing Ford v. State, 158 S.W.3d 488, 492–93
(Tex. Crim. App. 2005), the court also concluded that the officers had reasonable
suspicion to conduct an investigative detention because of the officers’ experience
and training, their familiarity with the area’s reputation for criminal narcotics
activity, the time of night, Jolivette’s “obvious bodily movement toward the
floorboard,” and the other man’s fleeing from the vehicle when the officers
arrived.
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The trial court denied the motion to suppress and Jolivette pleaded guilty to
the charge. Jolivette was sentenced to 60 days’ confinement.
Jolivette timely appealed.
Motion to Suppress
In his sole issue, Jolivette contends that there was no reasonable suspicion to
warrant his investigative detention and, therefore, the evidence obtained from his
car was inadmissible.
A. Standard of review
When a defendant challenges a trial court’s denial of a motion to suppress
evidence, courts of appeals review the trial court’s ruling for an abuse of
discretion. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013);
Ervin v. State, 333 S.W.3d 187, 202 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d). We grant almost total deference to a trial court’s determinations of historical
facts. Turrubiate, 399 S.W.3d at 150; Ervin, 333 S.W.3d at 202. We apply the
same deferential standard for mixed questions of law and fact that require
evaluation of credibility and demeanor. Turrubiate, 399 S.W.3d at 150; Ervin, 333
S.W.3d at 202. However, we review de novo all other mixed questions of law and
fact. Turrubiate, 399 S.W.3d at 150; Ervin, 333 S.W.3d at 202. We imply all
necessary findings of fact that are supported by the record. Turrubiate, 399 S.W.3d
at 150. We must uphold the trial court’s ruling if it is reasonably supported by the
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record and is correct under any theory of law applicable to the case. State v. Ross,
32 S.W.3d 853, 855–56 (Tex. Crim. App. 2000).
When a defendant alleges evidence is inadmissible because it was collected
during an illegal detention, we review de novo the trial court’s determination of
whether reasonable suspicion existed to conduct the detention. Guzman v. State,
955 S.W.2d 85, 87 (Tex. Crim. App. 1997); Klare v. State, 76 S.W.3d 68, 72 (Tex.
App.—Houston [14th Dist.] 2002, pet. ref’d).
B. The totality of the circumstances test
The Fourth Amendment of the United States Constitution prohibits
unreasonable searches and seizures, and this limitation is implicated by a police
officer’s detention of a motorist for the purposes of an investigative detention. U.S.
CONST. amend. IV; see, e.g., Arizona v. Johnson, 555 U.S. 323, 326–27, 129 S. Ct.
781, 784 (2009); Garcia v. State, 827 S.W.2d 937, 943–44 (Tex. Crim. App.
1992). Police officers’ interactions with citizens can be divided into three
categories: encounters, investigative detentions, and arrests. Crain v. State, 315
S.W.3d 43, 49 (Tex. Crim. App. 2010); see also Terry v. Ohio, 392 U.S. 1, 19 &
n.16, 88 S. Ct. 1868, 1879 & n.16 (1968). An encounter is any interaction that a
citizen may freely terminate at any time. See Crain, 315 S.W.3d at 49. Police
interaction with a citizen is no longer an encounter if the officer’s words or actions
would communicate to a reasonable person that he is not free to leave or refuse the
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officer’s requests. See, e.g., Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.—
Houston [1st Dist.] 2003, no pet.) (holding police officer questioning defendant in
back seat of patrol car constituted investigative detention). “An investigative
detention occurs when a law enforcement officer confronts an individual, who then
yields to a display of authority and is temporarily detained without a warrant.” Id.
at 153. When a police officer reasonably suspects that a person is involved in
criminal activity, an investigative detention is permissible. Terry, 392 U.S. at 21,
88 S. Ct. at 1880; see Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002)
(“A seizure [of a person] based on reasonable suspicion . . . will generally be
reasonable.”).
“Reasonable suspicion exists if the officer has specific, articulable facts
that, when combined with rational interferences 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.” Ford, 158 S.W.3d at 492. Courts review the
totality of the circumstances when determining whether a police officer has
reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581,
1585 (1989); Ford, 158 S.W.3d at 492–93; Woods v. State, 956 S.W.2d 33, 38
(Tex. Crim. App. 1997); see Derichsweiler v. State, 348 S.W.3d 906, 909–10, 917
(Tex. Crim. App. 2011) (holding officers had reasonable suspicion to detain and
arrest driver for DWI when he exhibited “bizarre” behavior by driving closely to
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other vehicles and was observed “grinning and staring” at other drivers).
Reasonable suspicion requires more than an “inchoate and unparticularized
suspicion or ‘hunch.’” Terry, 392 U.S. at 27, 88 S. Ct. at 1883; United States v.
Martinez-Fuerte, 428 U.S. 543, 560–61, 96 S. Ct. 3074, 3085 (1976) (“[S]ome
quantum of individualized suspicion is usually a prerequisite to a constitutional
search or seizure.”). We judge the reasonableness of a police officer’s actions from
the perspective of a reasonable officer at the scene—rather than with the advantage
of hindsight. Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. App. 1997).
Jolivette relies on Gamble v. State, 8 S.W.3d 452 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) and Hawkins v. State, 853 S.W.2d 598 (Tex. App.—Amarillo
1993) to support his contention that “the facts that form the basis of [his] detention
could be used to investigate any resident who lives in a high crime area” and,
therefore, the officers lacked reasonable suspicion to detain him. 2
2
Because the State concedes that there was an investigative detention following
Officer Guzman’s pat-down of Jolivette, we consider the totality of the
circumstances leading up to the pat-down in determining whether the officers had
reasonable suspicion to detain him. Compare Johnson v. State, 414 S.W.3d 184,
192–94 (Tex. Crim. App. 2013) (holding defendant subject to investigative
detention when officer partially blocked-in defendant’s vehicle with patrol car,
shined spotlight on defendant’s car, and approached defendant’s asking “What’s
going on, what are you doing out here?”), and Crain v. State, 315 S.W.3d 43, 52
(Tex. Crim. App. 2010) (holding officer conducted investigative detention when
he shined patrol car overhead lights at defendant and ordered defendant to “come
over here and talk to me”), with Ashton v. State, 931 S.W.2d 5, 7 (Tex. App.—
Houston [1st Dist.] 1996, writ ref’d) (holding no investigative detention when
officer approached defendant’s parked car in public place and asked defendant to
roll down her window).
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In Hawkins, the court of appeals held that the police did not have reasonable
suspicion to detain the defendant, even though the police were familiar with his
past criminal record and he was parked in an area “known for [street-level] drug
trafficking,” because there were no outstanding warrants for his arrest and no
reports of drug-dealing in the area on the night of his detention Hawkins, 853
S.W.2d at 602. The court concluded that the defendant’s actions “were as
consistent with innocent activity as with criminal activity” and did not give rise to
reasonable suspicion to detain the defendant. Id.
The Court of Criminal Appeals has since rejected the analysis applied in
Hawkins and now reviews the reasonableness of a detention in terms of totality of
the circumstances. Woods, 956 S.W.2d at 38–39; see also Dixon v. State, 187
S.W.3d 767, 769–70 (Tex. App.—Amarillo 2006, no pet.) (rejecting Hawkins
analysis and stating that “the circumstances before the officer may be as consistent
with innocent activity as with criminal activity is of no moment”). An investigative
detention is justified “when the detaining officer has specific articulable facts,
which taken together with rational interferences from those facts, lead him to
conclude that the person detained actually is, has been, or soon will be engaged in
criminal activity.” Woods, 956 S.W.2d at 38–39; Canales v. State, 221 S.W.3d
194, 198–99 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (applying Woods).
The Court reasoned that certain conduct, “when viewed in a vacuum, [may]
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appear[] purely innocent,” but, when viewed in terms of the totality of the
circumstances, may give rise to reasonable suspicion. Woods, 956 S.W.2d at 38.
In Gamble, the court applied the Woods analysis and determined that the
totality of the circumstances did not give rise to a reasonable suspicion to detain
the defendant. Gamble, 8 S.W.3d at 454. Specifically, the police officer did not
have reasonable suspicion to conduct an investigative detention based on his
observation of the defendant walking up to a house located in an area with a
reputation for high crime and “turning around to watch their patrol car.” Id. at 453.
The court determined that factors like time of day and prevalence of criminal
activity—by themselves—do not give rise to a reasonable suspicion to detain a
suspect. Id. However, they may be considered as part of the totality of the
circumstances. See Klare, 76 S.W.3d at 74 (noting that “time of day is not
suspicious in and of itself” and “the fact that a given locale is well-known for
criminal activity will not itself justify [an investigative detention] but it is among
the various factors that officers may take into account.”); see also Brown v. Texas,
443 U.S. 47, 53, 99 S. Ct. 2637, 2641 (1979) (holding nighttime not per se
sufficient to give rise to reasonable suspicion).
In King v. State, 35 S.W.3d 740 (Tex. App.—Houston [1st Dist.] 2000, no
pet.), the court of appeals held that the police had reasonable suspicion to detain a
defendant who was blocking a moving lane of traffic in the middle of the street. Id.
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at 742. The police officer was patrolling a neighborhood known for criminal
activity in which he had made prior arrests. Id. at 743. Based on this knowledge,
when he saw the parked car with several men standing around it and the people ran
away as he approached in his marked police car, the officer suspected that a drug
deal was “in progress.” Id. at 742. The officer “knew from experience” that this
behavior was consistent with a drug transaction. Id. Therefore, the court held that
he was justified in asking the defendant to exit the vehicle for questioning. Id. at
743–44. When the defendant exited his vehicle, the officer seized a small film
canister filled with marijuana. Id. at 744–45. The court concluded that the trial
court properly determined that the officer had reasonable suspicion to detain the
defendant and that he was justified in also seizing the film canister. Id. at 746.
A person’s nervous conduct may also support a trial court’s conclusion that
a police officer has reasonable suspicion to conduct an investigative detention.
Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 2002). The Court
determined that nervous, evasive behavior constituted “specific, articulable facts”
which, based upon the totality of the circumstances, supported the officer’s
reasonable suspicion to detain the defendant. Id. (noting that defendant “appeared
to be nervous, and was constantly looking over his shoulder” in officer’s direction
while walking away from scene of shooting (citation omitted)). In addition to
nervous behavior, a person’s furtive movements can be a factor when determining
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whether an officer had reasonable suspicion. See Kelly v. State, 331 S.W.3d 541,
549–50 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“[N]ervous behavior
and furtive movements may constitute factors in determining reasonable
suspicion.”); Zone v. State, 84 S.W.3d 733, 738–39 (Tex. App.—Houston [1st
Dist.] 2002), aff’d, 118 S.W.3d 776 (Tex. Crim. App. 2003) (holding furtive
movements are factor in determining reasonable suspicion).
Finally, a police officer may temporarily detain a person for investigative
purposes if he reasonably suspects that the person has committed a traffic
violation. Klare, 76 S.W.3d at 75; Foster v. State, 326 S.W.3d 609, 613 (Tex.
Crim. App. 2010); see Johnson, 555 U.S. at 326–27, 129 S. Ct. at 784 (outlining
conditions warranting “stop and frisk” search of vehicle and occupants because
motorist following traffic violation); see also Armitage v. State, 637 S.W.2d 936,
939 (Tex. Crim. App. 1982) (“It is well settled that a traffic violation committed in
an officer’s presence authorizes an initial stop.”); see, e.g., Hamilton v. State, 831
S.W.2d 326, 330–31 (Tex. Crim. App. 1992) (noting that police had reasonable
suspicion because defendant drove on wrong side of road).
In Valencia v. State, 820 S.W.2d 397 (Tex. App.—Houston [14th Dist.]
1991, writ ref’d), the combination of a high-crime area and a traffic offense
supported the court of appeal’s conclusion that the trial court did not err in
overruling the defendant’s motion to suppress evidence. Id. at 400. The police
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officers had detained the defendant for a possible traffic violation in a “residential
neighborhood that was known for its very high crime and its high narcotics
trafficking.” Id. When the officers first approached the van, it was blocking a
street; however, as the officers’ patrol car drove closer, the van drove away,
“swerving from one side of the street to the other.” Id. at 398–99. As one of the
officers approached the vehicle, he observed that the driver appeared to be
intoxicated and that one of the passengers “continually” moved his hands, despite
the officer’s instructions to keep his hands in sight. Id. at 399. The court held that
the trial court properly determined that the officer was justified in conducting a
“brief” investigative detention when the defendant appeared to commit various
traffic offenses in an area known for very high crime and narcotics trafficking and
the officer observed the vehicle occupants’ “suspicious activity.” Id. at 400.
C. Application of the totality of the circumstances test
The totality of the circumstances here includes a number of factors that
support the officer’s reasonable suspicion to conduct an investigative detention.
First, based on their training and experience in patrolling locations known for high
narcotics and prostitution activity, both officers testified that it was uncommon for
residents to be socializing so late at night. See Valencia, 820 S.W.2d at 400; see
also King, 35 S.W.3d at 743. Second, the location of the interaction supports the
conclusion that the totality of the circumstances gave rise to the police officer’s
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reasonable suspicion. Both of the police officers had made several prior arrests for
narcotics-related activity at the same location where Jolivette was parked and
testified that the men’s behavior was consistent with narcotics-related transactions.
See State v. Castleberry, 332 S.W.3d 460, 469 (Tex. Crim. App. 2011) (holding
investigative detention was justified based on officer’s testimony of specific facts
that suspect actually is, has been, or will be involved in criminal activity).
Third, the men exhibited nervous, suspicious behavior. When Officer
Guzman shined the patrol car spotlight onto Jolivette’s car, the officers saw
Jolivette make “obvious, suspicious” movements toward the floorboard area
beneath his seat, as if Jolivette were “trying to conceal something, hide
something.” See Castleberry, 332 S.W.3d at 469 (holding officer had reasonable
suspicion to detain defendant when defendant’s movement could be reasonably
construed as reaching for weapon). At the same time, the man talking to Jolivette
walked away from the car toward a wooded area of the vacant lot. See, e.g., King,
35 S.W.3d at 743 (running away from vehicle illegally parked in street justified
police officer’s reasonable suspicion of narcotics-related activity). Lastly, Officer
Guzman testified that when he approached the car, Jolivette appeared nervous. See
Balentine, 71 S.W.3d at 769 (holding investigative detention was reasonable based
in part on defendant’s “nervous” behavior); cf. Valencia, 820 S.W.2d at 399
(noting officer may “conduct a brief investigative detention . . . based upon his
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observations of suspicious activity by the occupants of the vehicle before and after
the stop”).
Finally, the officers could have reasonably concluded Jolivette was violating
traffic laws by being parked in the middle of the street, failing to use his
headlights, and obstructing the roadway. 3 See TEX. PENAL CODE ANN. §
42.03(a)(1) (West 2011) (criminalizing obstruction of street with vehicle); TEX.
TRANSP. CODE ANN. § 547.302(a)(1) (West 2010) (requiring operation of vehicle
headlights at nighttime); see TEX. TRANSP. CODE ANN. § 541.451 (defining
nighttime as beginning one-half hour after sunset and ending one-half hour before
sunrise). This traffic violation conducted in Guzman’s presence also supports
Guzman’s reasonable suspicion to conduct an investigative detention. Armitage,
637 S.W.2d at 939.
Based on the totality of these circumstances, Officer Guzman testified to
specific, articulable facts giving rise to a reasonable suspicion to detain Jolivette.
See Terry, 392 U.S. at 27, 88 S. Ct. at 1883 (noting reasonable suspicion requires
3
Jolivette contends that there is conflicting evidence to support whether the car’s
engine was running when the police arrived at the scene and whether it was a
violation to park without operating the headlights. We defer to the trial court’s
determinations regarding the weight of the evidence and hold there was sufficient
evidence upon which the trial court could have relied in determining the Jolivette’s
car engine was running and that the car was subject to traffic laws governing the
operation of vehicles at nighttime. See Turrubiate v. State, 399 S.W.3d 147, 150
(Tex. Crim. App. 2013) (noting reviewing courts defer to trial court’s findings of
fact and determinations regarding witness credibility). Regardless, there was other
sufficient evidence for the trial court to conclude that Officer Guzman had
reasonable suspicion to detain Jolivette.
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more than an unarticulated suspicion or “hunch” (citation omitted)). We conclude,
therefore, that the trial court did not abuse its discretion in denying the motion to
suppress.
Conclusion
Having overruled Jolivette’s sole issue, we affirm.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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