The State of Texas v. Brian Keith Bosley--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00073-CR

The State of Texas,

Appellant

v.

Brian Keith Bosley,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F40202

MEMORANDUM Opinion

After a legal stop, Brian Keith Bosley was indicted for the possession of a controlled substance (less than one gram). The trial court granted Bosley s motion to suppress the evidence found from a search of his person because the evidence was seized without Bosley being given the warnings under Texas Code of Criminal Procedure article 38.22, 3(a)(2). On appeal, the State alleges that the trial court erred in concluding that Bosley s statements were the result of a custodial interrogation that made it necessary for him to be given his Miranda warnings under article 38.22 3(a)(2). Because we conclude that the evidence supports the trial court s finding that Bosley was in custody when questioned without the benefit of his being given Miranda rights, we will affirm the order of the trial court granting the motion to suppress.

Background

Evidence at the suppression hearing showed that on April 26, 2006, Officer Gillman was patrolling in an area known as Gina Lane in Johnson County. Late that evening, Gillman was completing a traffic stop when he noticed that a vehicle was speeding towards him. Turning on his rear radar, Gillman verified that the vehicle was traveling fourteen miles per hour over the speed limit. As the vehicle approached, Gillman stepped out and waived a flashlight indicating for the driver to pull over. Gillman identified himself, told the driver why he was stopped, and asked for his driver s license and proof of insurance. Bosley was a passenger in the vehicle.

When Gillman returned to his police car to run a computer check on the driver s license, he noticed the driver and Bosley making furtive movements inside the pickup truck. Gillman returned to the vehicle and observed that the driver was overly nervous, his eyes were red and glassy, and there was alcohol on his breath. Gillman asked the driver to exit the vehicle, and when the driver opened the door, Gillman noticed a glass pipe in the door handle and an open beer container sitting upright on the rear floorboard between the driver and Bosley.

Gillman approached the passenger side of the vehicle and asked Bosley about the open beer container. After Bosley stated he had no knowledge of the beer, Gillman asked him to step out of the vehicle and provide identification. As Bosley pulled out his identification, Gillman noticed a glass pipe in Bosley s pocket. Gillman removed the pipe from his pocket, and in doing so, he noticed in Bosley s pockets another pipe and a digital scale, which Gillman removed. Gillman then handcuffed Bosley. After speaking with the driver again, Gillman re-approached Bosley, who was now standing handcuffed behind the truck facing the truck bed. Gillman then began questioning Bosley and told him that honesty would go a long way toward whether or not he would go to jail. Bosley then began to negotiate with Gillman, stating that if Gillman assured him he would not go to jail, he would tell Gillman where the drugs were located. Following Gillman s response that he would not take Bosley to jail for possessing an inconsequential amount of narcotics, Bosley acknowledged that he had methamphetamine in his underwear. Gillman then retrieved a small, clear plastic bag with a crystalline substance inside. The field test confirmed that the substance was methamphetamine, and both Bosley and the driver were taken to jail.

Motion to Suppress

The State argues that the trial court erred by excluding the statements Bosley made to the police admitting that he was in possession of methamphetamine and the subsequent methamphetamine found in his underwear because this evidence was obtained as the result of a lawful investigatory detention. Specifically, the State argues that the initial stop was an investigatory detention and not a custodial arrest because, although Bosley was placed in handcuffs, it was reasonable and necessary to effect the goal of the stop. Further, the State claims that because Bosley was not in custody, Gillman was not required to advise Bosley of his Miranda rights.

Standard of Review

In a suppression case, we apply a bifurcated standard of review, giving "almost total deference to a trial court's determination of historical facts" and reviewing de novo the court's application of the law of search and seizure to those facts. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Accordingly, "determinations of reasonable suspicion and probable cause [are] reviewed de novo on appeal." Id. at 87 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)). When the State is the appellant, it bears the same burden of proving the trial court abused its discretion in granting the motion to suppress. State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998).

Custodial Arrest vs. Investigative Detention

A stop is deemed an investigative detention when a police officer detains a person reasonably suspected of criminal activity to determine his identity or to momentarily maintain the status quo to garner more information. Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987). A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead him to conclude the person detained is, has been, or soon will be engaged in criminal activity. Haas v. State, 172 S.W.3d 42, 50 (Tex. App. Waco 2005, pet. ref d). The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime. Myers v. State, 203 S.W.3d 873, 882 (Tex. App. Eastland 2006, pet. ref'd). A reasonable-suspicion determination is made by considering the totality of the circumstances. Ford v. State, 158 S.W.3d 488, 492-93 (Tex. Crim. App. 2005). An investigative detention must last no longer than necessary to effectuate the purpose of the stop and must involve actual investigation. Akins v. State, 202 S.W.3d 879, 885 (Tex. App. Fort Worth 2006, pet. ref'd).

An arrest occurs when a person's liberty of movement is restricted or restrained by an officer or person executing a warrant of arrest or without a warrant. Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 2005); Medford v. State, 13 S.W.3d 769, 772-73 (Tex. Crim. App. 2000); Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991).

A reviewing court should examine the degree of force used to effect the seizure. Akins, 202 S.W.3d at 886. In an investigative-detention situation, officers may use such force as is reasonably necessary to effect the goal of the stop. For example, there is no bright-line rule that handcuffing a suspect always constitutes an arrest. See Rhodes v. State, 945 S.W.2d.115, 118 (Tex. Crim. App. 1990). Handcuffing is not ordinarily proper in a mere investigative detention, but it may be resorted to in special circumstances, such as when necessary to maintain officer safety or to thwart the suspect's attempt to frustrate further inquiry. Id. at 117. However, if the force utilized exceeds the goal of the stop, such force may transform an investigative detention into an arrest. See, e.g., State v. Moore, 25 S.W.3d 383, 385-86 (Tex. App. Austin 2000, no pet.) (holding that although officer possessed reasonable, articulable facts justifying an investigative stop, handcuffing of suspect constituted excessive force under the circumstances and transformed detention into an arrest).

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, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (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, 114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994). 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). The subjective views of the interrogating officer and the person being questioned are relevant only to the extent that 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. Owen v. State, 905 S.W.2d 434, 436 (Tex. App. Waco 1995, pet. ref d). 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 Dowthitt, 931 S.W.2d at 255. 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.

We must look at the totality of the circumstances and determine whether Bosley's freedom of movement was restrained to a degree associated with a formal arrest at the time of the interrogation. Gillman testified at the hearing that he did not consider Bosley to be under arrest when he handcuffed Bosley. But we must also consider whether handcuffing Bosley was reasonably necessary to preserve the status quo or to promote officer safety during the investigation. Rhodes, 945 S.W.2d at 117. Gilman spoke with both the driver and Bosley before placing Bosley in handcuffs. Gilman noted that although both Bosley and the driver were larger than him, neither acted in an aggressive manner. He also noted that Bosley was not acting overly nervous when initially questioned, but began to get anxious once he was asked to exit the vehicle.

Before questioning Bosley, Gillman looked into the car and found an open beer container and drug paraphernalia, but he found no weapons. He asked Bosley for identification and saw that Bosley was carrying a pipe typically used to smoke illegal drugs. He then himself removed the pipe from Bosley s pockets along with an additional pipe and digital scale. He determined that one of the pipes contained residue in it, and it was at that time that he placed handcuffs on Bosley. Gillman then went and spoke with the driver about the pipe seen in the door handle. The driver admitted that he and Bosley had smoked methamphetamine within the last hour, and Gillman then handcuffed the driver. He returned to find Bosley facing the rear of the truck.

Gillman had probable cause to arrest Bosley once the drug paraphernalia was found in his pants. Gillman handcuffed Bosley, although he had not exhibited any dangerous behavior, and removed the paraphernalia from inside of his pockets. Before questioning Bosley, Gillman did not do a pat-down search to determine if weapons were on his person, an objective indicator that he did not fear that Bosley was carrying a weapon. Although it appears that the stop began as an investigative detention, the restrictions and forces used by Gillman transformed the stop into a custodial arrest.

Therefore, we cannot say that the trial court abused its discretion in concluding that Bosley was under arrest when he was questioned about the location of the methamphetamine. The evidence further establishes that (1) Bosley and the driver were not free to go; (2) based on Bosley s responses, Gillman found additional contraband that he would not have previously discovered; (3) Bosley s statement regarding the methamphetamine was made without him being given the article 38.22 warnings; and (4) Bosley acted in a way that showed he believed he was under arrest.

In light of the above, we conclude that at the time he made the statement at issue in this case, Bosley was physically deprived of his freedom of action in a significant way. Gillman did not tell Bosley he was free to leave, and Bosley was handcuffed, indicating that he was required to stay. Under the circumstances, we conclude that Gillman created a situation that would lead a reasonable person to believe that his freedom of movement was significantly restricted and that he could not leave. Thus, we hold that Bosley was in custody at the time he made the statement regarding the methamphetamine in his underwear. Because he was in custody but had not been admonished under article 38.22, his statement is inadmissible. Accordingly, we overrule Bosley s sole issue and affirm the trial court's order granting themotion to suppress.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment only. A separate opinion will not issue.)

Affirmed

Opinion delivered and filed July 2, 2008

Do not publish

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