Reginald Harris v. The State of Texas--Appeal from 197th District Court of Cameron County

NUMBER 13-01-053-CR

COURT OF APPEALS

  THIRTEENTH DISTRICT OF  TEXAS

    CORPUS CHRISTI  BEDINBURG

REGINALD HARRIS, Appellant,

v.

  THE STATE OF  TEXAS, Appellee.

On appeal from the 197th District Court

  of  Cameron  County,  Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

Reginald Harris, appellant, pleaded guilty to, and was convicted of, the offense of possession of marihuana, with an enhancement count. The court assessed punishment at ten years confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant appeals the trial court=s denial of a pre-trial motion to suppress. We affirm.

Fact Summary

Officer Jose F. Garcia, a narcotics investigator with the Harlingen Police Department, stationed at the bus station, spotted appellant as he stood in line to board a Houston-bound bus.[1] Garcia testified he approached appellant as he waited in line to board the bus, identified himself as a police officer and then began to question appellant. Another officer stood nearby with a drug-sniffing canine. Appellant agreed to talk to Garcia, who asked him where he was traveling and if he had anything illegal in his bag. Appellant told Garcia he was traveling to Houston, Texas, and that he had nothing illegal in his carry on bag. Garcia asked if he could look in appellant's bag, and appellant said Ayes.@ Garcia then asked if he could open the bag, and appellant again answered Ayes@ and Garcia opened the bag.

Appellant=s testimony conflicts with that of Garcia=s. Appellant testified that Garcia asked appellant for consent to search his bag, to which appellant responded Ano.@ At that point, Garcia backed appellant up against a wall and called the canine handler over to bring the drug sniffing canine to sniff appellant=s bag. Then, according to appellant, the canine gave a positive sign and the officers handcuffed appellant and opened the bag. It was undisputed that appellant=s bag contained slightly less than five pounds of marihuana.

The trial court denied appellant's motion to suppress the marihuana. Thereafter, appellant pled guilty, without a plea agreement. The trial court found appellant guilty and sentenced him to ten years imprisonment. Appellant appeals the trial court=s denial of the motion to suppress.

Appellant raises two issues on appeal: (1) whether the Harlingen Police Department, without a plan or guidelines to control police actions, may ask passengers boarding at the bus station, at random, for permission to search their luggage, and if consent is not given, then use that refusal as articulable suspicion to search said luggage; and, (2) whether there was reasonable suspicion sufficient to justify appellant=s detention.

Standard of Review

The standards of appellate review of motions to suppress are set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appropriate standard of review depends on the exact issues presented. Guzman recognizes three different categories of questions and provides the appropriate standard of review for each. Id. Where the issue presented involves the trial court=s determination of historical facts supported by the record, especially those in which the fact findings are based on an evaluation of credibility and demeanor, the appellate court should afford almost total deference to the trial court=s determination. Id. Where the issue presented involves the trial court=s rulings on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ and where the resolution of those ultimate questions turns on an evaluation of credibility and demeanor, the appellate court should again afford almost total deference to the trial court=s rulings. Id. Where the issue presented involves Amixed questions of law and fact@ which do not fall into the second category, that is, do not turn on an evaluation of credibility and demeanor, then de novo review is appropriate. Id. However, the reviewing court should still afford deference to the trial court on the subsidiary factual questions which fall into the first category. Id.

In most cases, an appellate court=s review of a ruling on a motion to suppress will be under a bifurcated standard, in which the historical determinations made by the trial court will be accorded almost total deference while the application of the law to the facts will be analyzed under a de novo standard of review. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). The evidence in the present case was controverted, and accordingly, we will grant almost complete deference to the trial court's finding of the historical facts but we will review de novo the application of the law to the facts. Guzman, 955 S.W.2d at 89; see also Hunter v. State, 955 S.W.2d 102, 105 n.4 (Tex. Crim. App. 1997) (noting that the resolution of the issue of whether an appellant was detained within the meaning of the Fourth Amendment did not turn on the evaluation of credibility and demeanor).

When the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Ross, 32 S.W.3d at 855. If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856.

The Detention Issue

We first address appellant=s second issue, in which we are asked to decide if a detention occurred and, if so, whether the officers had reasonable suspicion to detain the appellant.

Appellant argues that after he was approached by Officer Garcia and asked questions, he was detained without the officer having reasonable suspicion that appellant was engaged in criminal activity. We must first decide whether appellant was detained.

Not all encounters between police and citizens invoke the protection of the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991); Hunter, 955 S.W.2d at 104. Police are as free as anyone else to ask questions of their fellow citizens. Bostick, 501 U.S. at 434; Hunter, 955 S.W.2d at 104. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. Bostick, 501 U.S. at 434. The appropriate inquiry in determining if the appellant was seized or detained for purposes of the Fourth Amendment is Awhether 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. [The test] applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus.@ State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999) (citing Florida v. Bostick, 501 U.S. 429, 440 (1991)).

In Hunter, the Court of Criminal Appeals held that an encounter Awas not rendered a >detention= simply by virtue of the fact that the officers asked for appellant's identification and requested to search his bag.@ Hunter, 955 S.W.2d at 104. The court asserted that the dispositive question was Awhether the officers conveyed a message to appellant that compliance with their requests was required.@ Id. The court noted that the officers were dressed in plain clothes, and their weapons were not visible. Id. They identified themselves as police officers, with one officer standing apart. Id. The defendant was questioned about his travel plans, but his ticket was not retained. Id. Further, the defendant was informed that he was not required to consent to the search, and no suggestion was made that a search warrant would be obtained if defendant did not consent to the search. Id.

The facts in the present case[2] are similar to those in Hunter. Officer Garcia testified that he was dressed in plain clothes, and there was no testimony as to whether his weapon was visible or not. Garcia had just finished questioning boarded passengers and was disembarking from the bus, when he saw appellant standing in line to board the bus. The other officer and canine were Anearby.@ The record is devoid of any testimony as to whether or not the other officer at the bus station was in uniform or had a weapon. Garcia states he did identify himself as a police officer and began questioning appellant, but did not advise appellant that he could refuse consent to search. However, this one fact is not dispositive. Velasquez, 994 S.W.2d at 679.

We find, taking into account all of the circumstances surrounding the encounter, that the officers= actions would not have communicated to a reasonable person in the appellant=s position that he was not free to decline the officers= requests or otherwise terminate the encounter. Accordingly, we hold that appellant was not detained when Officer Garcia asked appellant for consent to search his carry-on bag. Appellant=s second issue is overruled.

The Checkpoint Issue

In issue one, appellant argues that the officers set up a Acheckpoint@ at the Harlingen bus station, by questioning each northbound passenger with carry-on luggage. Appellant further argues that the officers operating this checkpoint had no procedures or guidelines as required by the U.S. Supreme Court=s decisions in Michigan v. Sitz, 496 U.S. 444, 455 (1990), and Brown v. Texas, 443 U.S. 47, 51 (1979).

In Sitz, the issue before the Supreme Court was whether traffic stops at a D.W.I. roadblock were Areasonable@ under the Fourth Amendment. The court held that the Fourth Amendment is implicated in checkpoint cases because a Aseizure@ occurs when a vehicle is stopped at a checkpoint. Sitz, 496 U.S. at 450. The State of Michigan conceded that a Fourth Amendment Aseizure@ does take place when a vehicle is stopped at a checkpoint. Id.

In the present case, however, we have already found that the officers did not detain appellant, and therefore there was no Aseizure@ of appellant=s person which would implicate the Fourth Amendment. Because we have held that appellant was not detained by the State, we further find that the requirements of Brown and Sitz are not applicable in the present case. Appellant=s first issue is overruled.

We affirm the judgment of the trial court.

_____________________

ROGELIO VALDEZ

Chief Justice

Do not Publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 9th day of May, 2002.

[1]The officer=s duty that day included narcotics interdiction at the Harlingenbus station. The officer was at the station to interview north-bound passengers and request consent to search their luggage.

[2]The trial court did not file findings of fact, and therefore, as previously noted, we view the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).