Opinion filed January 19, 2018




                                       In The


          Eleventh Court of Appeals
                                    __________

                                 No. 11-16-00016-CR
                                     __________

                  JULIO CESAR FLORES, JR., Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the County Court at Law
                              Erath County, Texas
                          Trial Court Cause No. 45,713


                      MEMORANDUM OPINION
          After the trial court denied Julio Cesar Flores, Jr.’s motion to suppress
evidence, he pleaded guilty to the offense of misdemeanor possession of marihuana.
The trial court assessed his punishment at confinement in the county jail for a term
of 180 days. However, the trial court probated Appellant’s sentence of confinement
and placed him on community supervision for a term of six months. Appellant
challenges the trial court’s ruling on the motion to suppress in a single issue. We
affirm.
       Detective Jason Schipper of the Stephenville Police Department was the only
witness that testified at the suppression hearing. At 10:30 p.m. on February 7, 2015,
Detective Schipper was patrolling the east side of Stephenville. He observed a green
Ford Explorer parked in the parking lot of the Stephenville Soccer Complex.
Detective Schipper testified that the vehicle was parked in a dark area of the parking
lot at a time when there was no activity taking place at the soccer complex.
Detective Schipper parked his patrol car near the Explorer and approached the four
people sitting inside of it.
       Detective Schipper testified that he asked the driver what they were doing and
that the driver responded that they were waiting on a phone call from a friend.
Detective Schipper further testified that the driver was “fidgeting [and] avoiding eye
contact.” Detective Schipper noticed a pile of fresh tobacco on the ground, which
from his experience indicated that it had possibly been removed from a cigar for the
purpose of refilling the cigar with marihuana. He asked the driver if they had any
marihuana in the vehicle, and the driver answered that they did not have any.
Detective Schipper asked the question again because the driver had hesitated in
answering and would not make eye contact. Detective Schipper also pointed out to
the driver that his answer “was not real convincing.” The driver then admitted that
he had marihuana in the vehicle.
       Detective Schipper requested that the driver step out of the vehicle.
Detective Schipper then asked the passengers in the vehicle if they had any
marihuana on them.             Appellant, a passenger in the vehicle, then handed
Detective Schipper a prescription bottle that had marihuana in it.
       At the conclusion of Detective Schipper’s direct examination, the State
offered into evidence a recording of Detective Schipper’s encounter with the
occupants of the vehicle.            The recording was taken from the dash of
Detective Schipper’s patrol unit. It shows him driving in a dark, open parking area.
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Detective Schipper illuminated the Explorer with a spotlight and pulled up near the
front of the Explorer. The Explorer and Detective Schipper’s patrol unit were
separated by what appears to be a row of utility poles used as parking stops.
Detective Schipper exited his patrol car and, carrying a flashlight, walked to the
Explorer. He greeted the driver by saying, “Hello, what are ya’ll doing here?” The
driver initially responded by saying, “Just chillin.”
        On cross-examination, Detective Schipper testified that he was patrolling the
soccer complex “[b]ecause it’s an area in the past where [he had] found people using
illegal drugs [and] having sex. It’s just one of those places that late at night there is
generally no one down there that has a reason to be down there.” Detective Schipper
testified that he did not observe any criminal offenses occurring prior to getting out
of his patrol car. Appellant’s trial counsel1 asked Detective Schipper the following
question: “So when you shine a spotlight in a car as you’re parked next to them and
walk up to their door and ask for ID, in all circumstances, you would say they’re not
free to just ignore you and drive away, are they?” Detective Schipper replied, “I
believe that would be a fair statement.” Detective Schipper further replied, “I guess
not,” when asked if the driver was free to just ignore him and drive away when he
initially approached the Explorer.
        On redirect examination, Detective Schipper testified that the overhead lights
on his patrol car were not activated when he stopped near the Explorer and that he
did not tell the occupants that they were not free to leave. He also testified that none
of the occupants asked to leave.               On recross-examination, Detective Schipper
testified that he did not believe that a detention was occurring when he approached
the Explorer. He also testified that, had the Explorer driven off when he initially
approached it, he would have permitted it to drive off without pursuing it.

        1
        The driver also filed a motion to suppress. The trial court heard both motions to suppress in the
same hearing. Accordingly, two defense attorneys participated in the hearing on the motions to suppress.

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      After the hearing on the motions to suppress concluded, the trial court issued
a letter to the attorneys that provided the court’s basis for denying the motions to
suppress.    The trial court informed the parties that it concluded that
Detective Schipper’s interaction with the occupants of the Explorer consisted of a
consensual encounter rather than an investigative detention. The trial court based
this determination on the fact that Detective Shipper did not display his weapon, that
he did not threaten the occupants, that he did not use harsh language or touch the
occupants, that he did not activate his overhead flashing lights, that he did not
demand the driver to roll down his window, and that he did not park in a manner that
prevented the occupants from leaving.
      In a single issue on appeal, Appellant challenges the trial court’s denial of his
motion to suppress.      He focuses his challenge on the question of whether
Detective Schipper’s initial contact with the occupants of the Explorer constituted a
consensual encounter or a detention. We review a trial court’s denial of a motion to
suppress for an abuse of discretion and apply a bifurcated standard of review,
affording almost complete deference to the trial court’s determination of historical
facts, especially when those determinations are based on assessments of credibility
and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We
review de novo the trial court’s ruling on pure questions of law, or of mixed
questions of law and fact not turning on an evaluation of credibility and demeanor.
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)
       “There are three distinct types of police-citizen interactions: (1) consensual
encounters that do not implicate the Fourth Amendment; (2) investigative detentions
that are Fourth Amendment seizures of limited scope and duration that must be
supported by a reasonable suspicion of criminal activity; and (3) arrests, the most
intrusive of Fourth Amendment seizures, that are reasonable only if supported by
probable cause.” Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013). This
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case implicates a distinction between a consensual encounter and an investigative
detention. The question of whether a given set of facts amount to a consensual
police-citizen encounter or a detention under the Fourth Amendment is a question
of law that we review de novo. Garcia-Cantu, 253 S.W.3d at 241.
      Not every encounter between a civilian and a police officer implicates the
Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434 (1991). “Each citizen-
police encounter must be factually evaluated on its own terms; there are no per se
rules.” Garcia-Cantu, 253 S.W.3d at 243. A consensual encounter does not
implicate the Fourth Amendment because it is a consensual interaction, and the
citizen is free to terminate the encounter at any time. State v. Woodard, 341 S.W.3d
404, 411 (Tex. Crim. App. 2011). A consensual encounter “takes place when an
officer approaches a citizen in a public place to ask questions, and the citizen is
willing to listen and voluntarily answers.” Crain, 315 S.W.3d at 49. “On the other
hand, an investigative detention occurs when a person yields to the police officer’s
show of authority under a reasonable belief that he is not free to leave.” Id. So long
as the person remains free to disregard the officer’s questions and go about his
business, the encounter is consensual and merits no further constitutional analysis.
Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995).
      When the court is conducting its determination of whether the interaction
constituted an encounter or a detention, the court focuses on whether the officer
conveyed a message that compliance with the officer’s request was required. Crain,
315 S.W.3d at 49. The question is whether a reasonable person in the citizen’s
position would have felt free to decline the officer’s requests or otherwise terminate
the encounter. Id. “Courts consider the totality of the circumstances surrounding
the interaction to determine whether a reasonable person in the defendant’s shoes
would have felt free to ignore the request or terminate the interaction.” Woodard,
341 S.W.3d at 411 (citing Brendlin v. California, 551 U.S. 249, 255 (2007)). “If it
                                          5
was an option to ignore the request or terminate the interaction, then a Fourth
Amendment seizure has not occurred.” Id. (citing Brendlin, 551 U.S. at 255). “The
surrounding circumstances, including time and place, are taken into account, but the
officer’s conduct is the most important factor when deciding whether an interaction
was consensual or a Fourth Amendment seizure.” Id. (citing Garcia-Cantu, 253
S.W.3d at 244).
      Law enforcement officers are permitted to approach individuals without
probable cause or reasonable suspicion to ask questions or even to request a search.
Florida v. Royer, 460 U.S. 491, 497–98 (1983) (holding that police officers “do not
violate the Fourth Amendment by merely approaching an individual” and asking
questions).    Despite any inconvenience or embarrassment caused by these
encounters, there is no official coercion. Garcia-Cantu, 253 S.W.3d at 243. Even
if the officer did not tell the citizen that his request could be ignored, “the fact that
the citizen complied with the request does not negate the consensual nature of the
encounter.” State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011).
Only when the implication arises that an officer’s authority cannot be ignored,
avoided, or ended, does a Fourth Amendment seizure occur. Id. at 466–67.
      What constitutes a restraint on one’s liberty, prompting a person to conclude
that he is not free to leave, will vary, not only with the particular police conduct at
issue, but also with the setting in which the conduct occurs. Garcia-Cantu, 253
S.W.3d at 244. “The officer’s conduct is the primary focus, but time, place, and
attendant circumstances matter as well.” Id. “A court must step into the shoes of
the defendant and determine from a common, objective perspective whether the
defendant would have felt free to leave.” Id. (quoting United States v. Steele, 782 F.
Supp. 1301, 1309 (S.D. Ind. 1992)).
      Appellant relies heavily on a response by Detective Schipper at the hearing
indicating that he did not believe that the occupants of the vehicle were free to leave
                                            6
when he initiated contact with them. However, Detective Schipper’s subjective
belief is not relevant to our inquiry because we are required to focus on the objective
perspective of the defendant. Id. at 244 n.41. Because the Fourth Amendment test
is an objective one, an officer’s subjective intent is relevant only to the extent to
which such an intent is communicated to the citizen. Id. In this case, there is no
evidence that Detective Schipper communicated any statements to the occupants
about his thoughts as to whether or not they were free to leave or ignore his requests.
      In the past decade, the Texas Court of Criminal Appeals has addressed cases
involving officers approaching citizens located inside parked vehicles. The officer
in Johnson approached a car parked in a parking space of an apartment complex.
414 S.W.3d at 188. The court concluded that the officer’s interaction with the
defendant constituted a detention rather than a consensual encounter because the
officer shined a “pretty darn bright” spotlight onto the defendant’s vehicle, parked
his police car in such a way as to partially block the defendant’s vehicle, and spoke
to the defendant in a “loud authoritative voice.” Id. at 193. The court concluded
that this was an interaction that a reasonable person would not feel free to terminate.
Id.
      The officer in Garcia-Cantu approached a vehicle parked at the end of a dead-
end street at 4:00 a.m. 253 S.W.3d at 239. The officer illuminated the defendant’s
vehicle with a spotlight, spoke to the defendant in an authoritative and commanding
voice, parked his patrol unit in a manner that “boxed in” the defendant’s vehicle, and
approached the defendant’s vehicle in an authoritative manner and carrying a
flashlight. Id. at 245–49. Based upon these facts, the Court of Criminal Appeals
concluded that the trial court did not err in concluding that a reasonable person in
the defendant’s position would not have felt free to leave or terminate the encounter
with the officer. Id. at 249.


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      The only factors in common between this case and the circumstances in
Johnson and Garcia-Cantu are that Detective Schipper illuminated the Explorer with
a spotlight. As noted in Garcia-Cantu, the use of a spotlight does not create a per se
rule for or against a finding of a detention. 253 S.W.3d at 244. In this instance, the
recording indicates that the area was quite dark. Accordingly, Detective Schipper’s
use of the spotlight would not necessarily lead to the conclusion that it constituted a
show of authority but, rather, was necessary in order for the officer to determine if
the Explorer was occupied. Detective Schipper also used a flashlight. However, the
recording indicates that he used it to light the path that he was walking over to the
Explorer. The recording also confirms the trial court’s findings that
Detective Schipper did not display his weapon, that he did not threaten the occupants
or speak in an authoritative tone, that he did not activate his overhead lights, and that
he did not park in a manner to prevent them from leaving.
      We conclude that Detective Schipper’s initial interaction with the occupants
of the Explorer constituted a consensual encounter because we conclude that a
reasonable person would have felt free to terminate the encounter at its inception.
Detective Schipper’s conduct did not constitute a show of authority that would have
placed a reasonable person in a position of having to yield to it. See Woodard, 341
S.W.3d at 411. As noted by the court in Garcia-Cantu, the mere approach and
questioning of persons seated in a parked car does not constitute a seizure. 253
S.W.3d at 243 (citing 4 Wayne R. LaFave, SEARCH AND SEIZURE § 9.4(a), at 433–
35 (4th ed. 2004)). That result is not changed if the officer uses some generally
accepted means of gaining the occupant’s attention. Id.
      We disagree with Appellant’s contention that he was in a “Catch-22 situation”
of either submitting to the officer’s authority or fleeing and thereby creating
reasonable suspicion for Detective Schipper to detain him. If Appellant’s contention
were correct, no consensual encounter would ever occur because every citizen
                                           8
approached by an officer would have the same choice. As set forth above, courts
have consistently held that an officer may approach a citizen in a public place and
ask him questions. See Crain, 315 S.W.3d at 49. We overrule Appellant’s sole
issue.
                                         This Court’s Ruling
         We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   JUSTICE
January 19, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




         2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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