Francisco Javier Guzman v. State

Affirmed and Memorandum Opinion filed February 6, 2007

Affirmed and Memorandum Opinion filed February 6, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01131-CR

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FRANCISCO JAVIER GUZMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1025049

M E M O R A N D U M   O P I N I O N

Challenging his conviction for possession with the intent to deliver at least four hundred grams of cocaine, appellant Francisco Javier Guzman contends that the trial court erred in denying his motion to suppress evidence of the cocaine based on an allegedly illegal detention. We affirm.

I.  Factual and Procedural Background

On April 27, 2005, three Houston Police officers waited at the El Expresso Bus Station for buses arriving from the Rio Grande Valley, an area from which illegal narcotics were known to be transported.  Officer Mosley (a narcotics officer of twenty years), Officer Bender (a narcotics officer of twelve years and canine handler), and Sergeant Cuevas (a narcotics officer and canine handler) were experienced law enforcement officers.  All three were dressed in plain clothes with their weapons concealed.  As they watched the travelers, they observed, among other things, demeanor, amount of baggage, points of departure, and final destinations.         

Around 6:00 p.m. that evening, a bus from the Rio Grande Valley arrived.  Officers Mosley and Bender stood near the door of the bus and watched the passengers exit.  Appellant caught their attention because, unlike most travelers coming from that area, he carried an unusually small amount of luggageCa single gym bag. He appeared extremely nervous.   When appellant departed the bus, he apprehensively scanned the surrounding area.  Watching the immediate vicinity closely, appellant walked very quickly toward a nearby taxicab.  Officers Mosley and Bender followed. Officer Mosley approached appellant and  identified himself by producing his official police identification, along with his badge. He asked to speak to appellant.  Appellant agreed.  The other two plain-clothes clad officers did not participate in this conversation or indicate that they were in the company of Officer Mosley, but remained in close proximity in case Officer Mosley needed some assistance.

Appellant told Officer Mosley that he had just arrived via the bus from Robstown, a border town just past the checkpoint, and planned to take the taxi to Adame bus line, another bus company that serves the Texas-Mexico border, whose terminal is located about two miles from the El Expresso terminal.  When Officer Mosley asked appellant where he was going, appellant responded that he was traveling to North Carolina.  When Officer Mosley asked to see appellant=s identification, appellant produced his identification and replied that he lived in North Carolina.  Noticing appellant=s shaking hands and nervous demeanor, Officer Mosley asked appellant if he could search his person and his bag.  Again, appellant consented.

In appellant=s bag was a small amount of clothing, and a large bag of Doritos corn chips.  The Doritos bag appeared to be abnormally heavy for its size.  Officer Mosley asked appellant if there was anything in the bag of chips. Appellant hung his head and did not respond.  Officer Mosley stuck his hand in the bag and felt what appeared to be a square object wrapped in plastic.  Appellant, upon being asked, stated that the object was cocaine.  The officers then placed appellant under arrest and read him his warnings.  Subsequent field testing revealed that the contents of the package was indeed cocaine.

Appellant was charged with the felony offense of possession with the intent to deliver at least four hundred grams of cocaine.  After a pretrial hearing in which the trial court denied appellant=s motion to suppress evidence of the cocaine based on an allegedly illegal detention, appellant waived his right to a jury trial and entered a plea of guilty to the charged offense.  Pursuant to an agreed recommendation by the State, the trial court sentenced appellant to twenty years= confinement, and a $1,000 fine.

II.  Issue and analysis

In a single issue, appellant contends that the trial court erred in denying his motion to suppress evidence because his consent to search was tainted by an illegal detention.  We review the trial court=s ruling on a motion to suppress under an abuse‑of‑discretion standard.  Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991).  If supported by the record, a trial court=s ruling on a motion to suppress will not be overturned.   Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented.  Id.  We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor.  See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Did the trial court err in denying appellant=s motion to suppress evidence because of an illegal detention?  

Appellant contends that the verbal exchange with Officer Mosley prior to the time appellant gave his consent to search the gym bag amounted to a detention without reasonable suspicion in violation of the Fourth and Fourteenth Amendments to the United States Constitution, and article I, section 9 of the Texas Constitution.  Therefore, appellant argues, the subsequent search and discovery of the cocaine were Afruits of the poisonous tree@ and inadmissible evidence.  We find no merit in appellant=s argument.

 In a suppression hearing, the defendant bears an initial burden of rebutting the presumption that the police conduct was proper.  Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim.. App. 1986).  He can do so by showing that the search or seizure occurred without a warrant.  Id.  The burden then shifts to the State to either produce a warrant or prove that the warrantless search or seizure was reasonable.  Id. at 9‑10.  

Not all encounters between police and citizens invoke the protection of the Fourth Amendment.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).  Police are as free as anyone else to ask questions of their fellow citizens.  Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App.  1997).  Interactions between police and civilians are divided into three categories: (1) encounters, (2) investigative detentions, and (3) arrests.  See State v. Larue, 28 S.W.3d 549, 553 n. 8 (Tex. Crim. App.  2000).  An officer may stop a suspicious individual briefly Ato determine his/her identity or to maintain the status quo while obtaining further information.@  Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1988) (citing Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)).  Such encounters are consensual A[s]o long as a reasonable person would feel free >to disregard the police and go about his business.=@  Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991); Hunter, 955 S.W.2d at 104.  Therefore, even when officers have no basis to suspect an individual, they may generally ask questions of him, ask to examine his identification, and request to search his luggage so long as the police do not convey a message that compliance with their requests is required.  Bostick, 501 U.S. at 434B35, 111 S. Ct. 2382; Hunter, 955 S.W.2d at 104.  A seizure occurs only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Bostick, 501 U.S. at 434, 111 S. Ct. 2382 (citing Terry, 392 U.S. at 19, n. 16, 88 S. Ct. 1868).         The test is whether Ain view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.@  Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980);  Bostick, 501 U.S. at 439, 111 S.Ct 2382; Hunter, 955 S.W.2d at 104.  The dispositive question is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers= requests or otherwise terminate the encounter.  Bostick, 501 U.S. at 439, 111 S. Ct. 2382; Hunter, 955 S.W.2d at 104; State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999).

We first determine whether a detention occurred.  The Court of Criminal Appeals opinion in the Hunter case provides guidance in making this determination.  See Hunter, 955 S.W.2d at 102.  In that case, two police officers who were monitoring a bus station for narcotics traffickers approached the defendant as he waited to board a bus.  Id.  at 103.  One officer asked the defendant for permission to speak with him and identified himself as a police officer.  Id.    He questioned the defendant while the other officer stood several feet back, but within hearing range.   Id.  The officer asked the defendant where he was traveling and then asked if he could see the defendant=s bus ticket.  Id.  The defendant produced his ticket.  Id.  The officer returned the ticket to the defendant and then asked to see his identification.  Id.  The defendant had none.  Id.  The officer asked if the defendant was carrying any narcotics and the defendant replied that he was not.  Id.  The officer then told the defendant that he was a narcotics officer conducting a narcotics interview.  Id.  He asked the defendant if he could look inside his bag, but also informed the defendant that he did not have to consent.  Id.  The defendant nevertheless agreed to the search of his bag.  Id.  The officer discovered a substance in the bag, which later proved to be cocaine.  Id.  The Court of Criminal Appeals concluded that, under these facts, there was nothing to convey a message that the defendant was required to comply with the officer=s requests, and a reasonable person would have felt free to walk away from the encounter at any time prior to the search of the bag.  Id.; see also Jackson v. State, 77 S.W.3d 921, 928B29 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (concluding that defendant=s encounter with airport police was consensual and not detention, and thus, encounter did not rise to level of Aseizure@ implicating Fourth Amendment rights; encounter occurred in open area, defendant agreed to speak with officers, officers were dressed in plain clothes and did not display any weapons, and officers never touched or restrained defendant during encounter through use of overt force or through tone of voice).

Similarly, we conclude that Officer Mosley=s conduct toward appellant would communicate to a reasonable person that the person was free to decline the requests or otherwise terminate the encounter.  See Bostick, 501 U.S. at 435, 111 S. Ct. 2382 (concluding that no seizure occurs when police request consent to search his or her luggage so long as the officers do not convey a message that compliance with their requests is required).  The events took place in an open, public place; the officers were dressed in plain clothes; and their weapons remained concealed throughout the encounter. To the extent that three officers are more intimidating than one, only one officer actually engaged appellant while the others stood back, ready to offer assistance only if necessary. Officer Mosley did not retain appellant=s identification but gave it back to him.  Officer Mosley did not affirmatively state a belief that appellant was carrying narcotics and although Officer Mosley did not specifically tell appellant that he did not have to give consent to search, Officer Mosley never conveyed a message that compliance with his requests was required.  None of the officers suggested that they would obtain a search warrant or bring in a narcotics-detecting dog, if appellant refused consent. Officer Mosley did not threaten appellant either overtly or through his tone of voice; and Officer Mosley did not touch appellant to make him consent to search, but only requested permission to search.  Based on these facts, the trial court could have concluded that Officer Mosley=s conduct toward appellant would communicate to a reasonable person that the person was free to decline the requests or otherwise terminate the encounter.  See id.; see also Mitchell v. State, 831 S.W.3d 829, 833 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (concluding detention occurs when an officer threatens to use a narcotics dog).  Thus, there was no detention.

Because no detention occurred, appellant did not meet his burden of proving that a seizure occurred and no Fourth Amendment rights were implicated.  Therefore, we need not reach the issue of whether the officers had reasonable suspicion to question appellant.  See Bostick, 501 U.S. at 434, 111 S.Ct 2382; Hunter, 955 S.W.2d at 104; see also Wagner v. State, Nos. 05-02-01323-CR, 05-02-01324-CR, 2003 WL 1735225, at *2B3 (Tex. App.CDallas April 2, 2003, pet. ref=d) (not designated for publication) (finding encounter between officer and defendant was not a detention and did not implicate the Fourth Amendment when, among other things, defendant voluntarily pulled into the parking lot and voluntarily exited his vehicle, and when officer approached defendant, did not give any commands, but simply engaged defendant in Asmall talk,@ and when officer asked defendant for consent to search his vehicle, officer used no force or coercion, did not threaten defendant, nor drew his weapon); Beverly v. State, No. 01-02-00259-CR, 2002 WL 31941509, at *3 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (not designated for publication) (concluding that driver voluntarily consented to search of his vehicle after traffic stop in response to erratic driving even though police officer requested consent allegedly after the investigation dispelled the suspicion of an intoxicated driver).^[1] The trial court did not abuse its discretion in denying appellant=s motion to suppress the evidence. 

We overrule the appellant=s sole issue on appeal, and we affirm the trial court=s judgment.      

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed February 6, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  There was conflicting testimony over some of the facts relevant to our analysis, including: (1) whether Sergeant Cuevas was standing away from the taxicab in order to allow appellant the opportunity to walk away if he chose, or physically in between appellant and the door of the taxicab; and (2) whether appellant=s gym bag was near appellant=s feet or already on the seat in the taxicab.   Appellant did not proffer any evidence at the suppression hearing in regard to these issues.  It is the trial court=s function to evaluate and determine the weight of the testimony at the motion-to-suppress hearing.   See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Because the officers= testimony clearly establishes that no detention occurred, and because the trial court could have chosen to disbelieve all or any part of the evidence presented, the record supports the trial court=s conclusion that there was no detention.  See id.