THE STATE OF TEXAS, Appellant v. CHRISTOPHER EUGENE BISHOP, Appellee

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REVERSED and REMANDED; Opinion issued October 20, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00135-CR
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THE STATE OF TEXAS, Appellant
V.
CHRISTOPHER EUGENE BISHOP, Appellee
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On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 002-83374-05
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OPINION
Before Chief Justice Thomas and Justices Bridges and Lagarde   See Footnote 1 
Opinion By Justice Lagarde
        The State appeals the trial court's January 13, 2006 order granting appellee Christopher Eugene Bishop's motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2006). We reverse the trial court's order and remand for further proceedings.
Background
 
        Appellee was charged by information with knowingly and intentionally possessing a usable quantity of marijuana in an amount of two ounces or less. See Tex. Health & Safety Code Ann. § 481.121 (Vernon 2003). Appellee filed a pretrial motion to suppress, and on December 16, 2005, the trial court conducted a hearing on appellee's motion.
        The parties stipulated that the police had neither an arrest nor a search warrant on the occasion in question. The State, therefore, had the burden of proof at the suppression hearing. Two witnesses testified at that hearing: Frisco police officer Brad Merritt and Frisco police detective Adam Henderson. Appellee did not testify.
        Merritt testified that on May 7, 2005, he was a uniformed Frisco police officer working one- man patrol in a marked squad car. At approximately 12:15 a.m., he was sent to an apartment complex to investigate a citizen complaint about a large party with, perhaps, minors in possession of alcohol and drugs. Merritt arrived at the location within minutes of getting the call. Several units responded to the call, and three arrived simultaneously. Upon approaching the complex, Merritt observed a group of approximately ten to fifteen people in the yard in front of apartment 320B. As the officers were walking up, and before anything was said, the group of people ran. The officers identified themselves as police officers and directed the people to stop. The people did not stop, but ran toward apartment 320B. Some officers went to the front door of the apartment; Henderson, followed by Merritt, went to the back door. Merritt saw a male try to shut the door on Henderson. Nevertheless, both officers entered the apartment, detained several subjects, and ultimately arrested two.
        Inside the apartment, Merritt saw numerous alcohol bottles and smelled marijuana. He estimated there were twelve to fifteen people in the apartment, ranging in age from thirteen to twenty- one. The officers began to secure the premises for officer safety, and to determine if there were weapons inside. Alcohol was also an issue because Merritt recognized some of the people as minors.
        Just inside the back door, in the kitchen area of the apartment, Merritt encountered appellee. When Merritt first saw appellee, he was “just standing there” in handcuffs. There were three or four people in handcuffs. Merritt told appellee he was not under arrest. For officer safety, Merritt patted appellee down for weapons. During the pat-down, Merritt asked appellee if he had any marijuana on him. Appellee said he had a “dime bag” in his right, front pocket. After finding the marijuana, Merritt arrested appellee for marijuana possession. Not all the persons who were handcuffed were arrested.
        Merritt testified Henderson was the first person who saw appellee and handcuffed him. As far as Merritt knew, appellee could have been inside the apartment at all times. Neither officer recalled seeing appellee in the front yard. It was dark, however, and there was a large group of people. Appellee was being detained and was not free to leave. Appellee was standing when Merritt questioned him. Merritt neither read appellee the Miranda   See Footnote 2  warnings nor recorded his exchange with appellee. Merritt had communicated information from student resource officers that appellee had been a drug user in the past. No police weapons were drawn.
        Adam Henderson testified he had worked for the Frisco police department for almost two years and was so employed on May 6, 2005. He was working the 5:00 p.m. to 5:00 a.m. shift on that date. At about 12:18 a.m., Henderson was dispatched as a backup officer to the location in question. Although Henderson was working as a one-man squad, he had a chaplain riding with him during that shift. Henderson was in uniform and in a marked squad car.
        When Henderson approached the location, he identified one of the individuals in front-Daniel Salazar-by the clothing he was wearing. When the group ran, Henderson went to the back door. The door was slightly ajar. Henderson walked up and opened the door slightly, at which time he saw appellee open the door, apparently to leave. Appellee had a “deer in the headlights” look on his face when he saw Henderson standing there. Salazar was standing immediately behind appellee. Henderson decided to detain appellee and Salazar for further investigation. Henderson had only two sets of handcuffs. He handcuffed appellee and a person named Trevino. Henderson could not say that he saw appellee in the front yard when he drove up. Henderson did not frisk appellee before handcuffing him.
        Appellee was not free to leave after being handcuffed. For officer safety, Henderson did not want appellee to move around. Henderson did not recall smelling any alcohol on appellee, and appellee was not cited for illegal consumption of alcohol. Henderson did not recall asking appellee any questions, nor did he read him his Miranda rights. The officers were outnumbered by the people in the apartment. The number of officers inside the apartment varied, and may have been as many as five at times. After handcuffing the two individuals, Henderson helped search the rest of the residence to make sure no one else was there. He was concerned about officer safety and making sure all individuals were to the front of the apartment. He observed alcohol present, and most of the individuals were not of legal drinking age. Salazar was the only person present that Henderson knew. Henderson detained, but did not handcuff, Salazar; Henderson just escorted Salazar outside. Salazar yelled obscenities at Henderson in the living room, but that incident did not involve appellee. Henderson did not tell any other officer about appellee at the time he handcuffed him nor did he place appellee under arrest.
        Originally, three officers arrived at the location simultaneously: Merritt, Henderson, and an officer named Sartain. Henderson did not see a weapon drawn or any other force used. Merritt's report showed that only Salazar and appellee were arrested. Several individuals were cited for minors in consumption of alcohol; however, appellee was not.
        After hearing the evidence, the trial court took the matter under advisement. On January 13, 2006, the trial court granted appellee's motion.
Standard of Review and Applicable Law
 
        The standard of appellate review of a pretrial order on a motion to suppress is well established. We defer to the trial court's factual determinations but review de novo the court's application of the law to the facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court did not make explicit findings of historical facts. Consequently, we assume the trial court made implicit findings of fact supported in the record, and we review the evidence in a light most favorable to the trial court's ruling. See Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). We will uphold the trial court's ruling on any theory of law supported by the evidence, even if the trial court gave an incorrect reason for its ruling and even if the theory was not raised in the trial court. See Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). We will not, however, reverse the trial court's ruling on a ground not raised in the trial court or argued on appeal. See Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002).
        Whether a seizure is an arrest or an investigative detention depends on the reasonableness of the intrusion under all of the facts. See Rhodes v. State, 913 S.W.2d 242, 247 (Tex. App.-Fort Worth 1995), aff'd, 945 S.W.2d 115 (Tex. Crim. App. 1997). The handcuffing of a suspect is not ordinarily proper, but may be resorted to in special circumstances, such as when necessary to thwart the suspect's attempt “to frustrate further inquiry.” See Rhodes, 945 S.W.2d at 117 (citing 3 LaFave, Search and Seizure, § 9.2(d), 364 (1987); 4 LaFave, Search and Seizure § 9.2(d), 36-38 (1996)). The officer's opinion, while not determinative, is a factor to be considered, along with the other facts and circumstances of the detention, in determining whether an arrest has taken place. Id. (citing Amores v. State, 816 S.W.2d 407, 412 (Tex Crim. App. 1991)). It is also important to consider whether the officer actually conducts an investigation after seizing the suspect. See Rhodes, 945 S.W.2d at 119-20 (Meyers, J., concurring and dissenting) (citing United States v. Sharpe, 470 U.S. 675, 686 (1985)). There is no bright-line rule that handcuffing always constitutes an arrest. See id. at 118 (majority op.). Officers may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety. See id. (citing United States v. Sokolow, 490 U.S. 1 (1989)).
        Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). In determining whether an interrogation is custodial for purposes of Miranda, we look to the objective circumstances, not to the subjective views harbored by either the interrogating officer or the person being questioned. See Stansbury v. California, 511 U.S. 318, 323 (1994) (per curiam). The determination of custody must be made on an ad hoc basis, after considering all of the objective circumstances. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)). The subjective views of the interrogating officer and the person being questioned are relevant only to the extent they may be manifested in the words or actions of law enforcement officials. See id. at 254.
        Four general situations may constitute custody: significant deprivation of freedom; a police command not to leave; a reasonable subjective belief of the suspect that his freedom is significantly restricted; and when there is probable cause to arrest and the suspect is not told he is free to leave. However, concerning the first three situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. See id. at 255 (citing Shiflet, 732 S.W.2d at 629). Concerning the fourth situation, the officers' knowledge of probable cause must be manifested to the suspect. Id. And, inasmuch as “probable cause” is only a factor to be considered, probable cause to arrest, alone, does not automatically establish custody. Rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. See id.
 
Analysis
 
        The narrow issue we must decide is whether the handcuffing of appellee transformed an otherwise investigative detention into a custodial arrest, thereby triggering the application of federal and state constitutional protections, as well as state statutory protections. See U. S. Const. amends. IV, V, VI, XIV; Tex. Const. art. 1, §§ 9, 10, 19; Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).
        The State contends the trial court erred in granting the motion to suppress. The State argues that appellee was only detained for purposes of investigation and he was not under custodial arrest. Thus, no custodial interrogation occurred when Merritt asked appellee if he had any marijuana and appellee replied that he did. In support of its argument that it was reasonably necessary to handcuff appellee to effect the goal of the investigative detention, the State relies primarily on Rhodes v. State, 945 S.W.2d 115 (Tex. Crim. App. 1997).
        Appellee responds that when he was handcuffed, he was under custodial arrest. It is undisputed appellee was not read his Miranda rights and his statement was not recorded. Therefore, because the requisites of article 38.22, section 3 were not met, the trial court properly granted the motion to suppress.
        In reviewing the contentions of the parties, we defer to the trial court's implied factual determinations but review de novo the court's application of the law to the facts. See Guzman, 955 S.W.2d at 89. The officers were investigating a citizen complaint involving drinking and perhaps drugs. Minors were also involved. Drinking and drugs often involve guns and violence. The officers were outnumbered by the people in the apartment. The group did not cooperate, but instead ran upon seeing the police. Appellee was trying to leave the premises by the back door when he was confronted by Henderson. At the time appellee was handcuffed, the investigation was just beginning. No probable cause had been established to arrest appellee at that point.   See Footnote 3  Both officers told appellee he was not under arrest.
        Reviewing de novo the application of search and seizure law to the implied facts, we conclude that under all the facts the limited intrusion upon appellee's freedom by handcuffing him did not rise to the degree of a formal or custodial arrest, as opposed to an investigative detention. Because appellant was only being detained, and was not under custodial arrest, no custodial interrogation occurred when Merritt asked him if he had any marijuana and appellee replied he did. Therefore, article 38.22, section 3 did not apply. We, therefore, conclude the trial court erred in granting appellee's motion to suppress. We resolve the State's issue in its favor.
        We reverse the trial court's order granting the motion to suppress and remand for further proceedings.
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
060135F.U05
 
Footnote 1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 3 Appellee states in his brief: “[T]he trial court ruled that handcuffing an eighteen-year-old person during a search of a residence was an illegal arrest for which the officer did not have probable cause,” and “The trial court correctly granted the motion to suppress as the police officers[sic] actions demonstrate that Bishop had been arrested without probable cause.” The State points out in its reply brief that probable cause to arrest is not the issue. We agree. Moreover, the fact there was no probable cause to arrest at the point when appellee was handcuffed reinforces the position that appellee was only being detained and was not under custodial arrest.

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