REVERSE and REMAND; and Opinion Filed November 8, 2013.




                                            S   In The
                                    Court of Appeals
                             Fifth District of Texas at Dallas
                                         Nos. 05-13-00194-CR
                                              05-13-00195-CR
                                 THE STATE OF TEXAS, Appellant
                                             V.
                                  MICHAEL LEONARD, Appellee

                       On Appeal from the County Criminal Court No. 6
                                    Dallas County, Texas
                  Trial Court Cause Nos. MB-12-58768-G and MA12-58769-G

                                 MEMORANDUM OPINION
                             Before Justices O’Neill, Lang-Miers, and Evans
                                       Opinion by Justice O’Neill
        The State charged appellee Michael Leonard with unlawful carrying of a weapon and

unlawful possession of marijuana. The trial court conducted a hearing on appellee’s motion to

suppress and granted the motion after finding that Officer George Garcia did not have probable

cause to approach appellee’s car. In a single issue, the State challenges whether the trial court

erred in granting the motion to suppress. We reverse and remand for further proceedings.

                                             Background

        Officer George Garcia testified on behalf of the State at the motion to suppress hearing.

He stated that on the afternoon of June 19, 2012, at approximately 3 p.m., he and his partner

were patrolling the 3800 block of West Ledbetter in Dallas. A car wash in the area was known

for illegal drug activity.
       Officer Garcia explained he noticed appellee’s vehicle leave the car wash and turn into

the parking lot of a motel adjacent to the car wash. Appellee parked his car, and Officer Garcia

parked next to him. Both men exited their vehicles at the same time. Before Officer Garcia said

anything to appellee, he noticed the strong smell of marijuana emanating from the car.

       He questioned appellee and then searched the car. Officer Garcia discovered a backpack

in the back seat, within reaching distance of the driver’s seat, containing twelve baggies of

marijuana and a .38 handgun.

       At the end of the suppression hearing, the trial court granted appellee’s motion. The

State requested findings of fact and conclusions of law. The trial court orally dictated its

findings and conclusions into the record. It specifically stated the following:

       The Court finds the officer cannot use the high crime area as a reason for contact,
       then state they didn’t have a reason for contact, then state they didn’t have a
       reason to contact the defendant and look for a -- and look for probable cause later.
       The officer formed suspicion when he saw the defendant at the car wash. The
       notion of being in a high crime area is not reason alone for contact. The officer
       would have had to make the contact with every single person in the area which
       there was no testimony to suggest such. Therefore the stop was unlawful and the
       arrest is suppressed.

This appeal followed.

                                       Standard of Review

       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of

review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The judge is the sole

trier of fact and judge of the credibility of witnesses and the weight to be given their testimony.

Id. He is entitled to believe or disbelieve all or part of the witness’s testimony, even if that

testimony is uncontroverted, because he had the opportunity to observe the witness’s demeanor

and appearance. Id.

       If the trial court makes express findings of fact, we view the evidence in the light most

favorable to the ruling and determine whether the evidence supports these factual findings. Id.

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We review the trial court’s application of the law of search and seizure to the facts de novo. Id.

We will sustain the trial court’s ruling if that ruling is “reasonably supported by the record and is

correct on any theory of law applicable to the case.” Id. (citing State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006)).

       The parties disagree as to whether the trial court’s findings and conclusions turn on the

credibility of Officer Garcia; therefore, we begin our analysis by determining the appropriate

standard of review. The State argues the record is clear the trial court did not make its ruling

based on officer credibility, but rather based its decision on the fact Officer Garcia did not have

the requisite level of suspicion necessary to approach the vehicle. The State contends because

that issue involves application of search and seizure law to the facts of this case, we should apply

a de novo review.

       Appellee responds we should presume based on the trial court’s granting of his motion to

suppress that the trial court did not believe Officer Garcia to be credible, and therefore, we

should defer to the trial court’s ruling. In support of his position, appellee cites State v. Elias,

339 S.W.3d 667, 674 (Tex. Crim. App. 2011). In that case, the court stated “we must presume

that the trial court implicitly resolved all issues of historical fact and witness credibility in the

light most favorable to the ultimate ruling.” Id. at 674. This included a presumption “that, if the

State’s evidence was uncontradicted and, if believed, would have supported admission of the

evidence sought to be suppressed, the trial court simply chose to disbelieve that uncontradicted

testimony.” Id.

       Appellee’s reliance on Elias is misplaced. The court stated the credibility presumption

applies when a trial court grants a motion to suppress, the State fails to request explicit findings

of fact and conclusions of law, and the trial court makes no express findings of fact and

conclusions of law of its own volition. Id. Here, the State explicitly requested findings and

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conclusions, and the trial court stated “essential findings” on the record. “Essential findings” are

those findings and conclusions “adequate to provide an appellate court with a basis upon which

to review the trial court’s application of the law to the facts.” Id.; see also State v. Cullen, 195

S.W.3d 696, 699 (Tex. Crim. App. 2006).

       A reading of the record makes it clear the trial court was concerned that Officer Garcia

targeted appellee and followed his car only because appellee drove away from a car wash that

was known to be a high drug traffic area. The trial court stated, “We don’t get to the search until

we get to the reasonable suspicion.” To court went on to say, “[Y]ou just can’t stop people

because they pull into an area. Number one, the officer never testified [appellee] violated the

law, never testified he did anything suspicious. . . . You just can’t stop people because there is a

crime in the area.”

       While the State argued Officer Garcia never stopped or detained appellee but rather it

was a consensual encounter outside of the car, the court continued to focus on “[Officer

Garcia’s] reason for contacting [appellee] at all is because he was in a high crime area.” The

court reiterated this in his oral findings of fact and conclusions of law. Thus, because the record

is clear as to the essential findings for its ruling, which turns on a matter of Fourth Amendment

search and seizure law, we agree with the State that a de novo review is appropriate.

                                            Discussion

       Law enforcement and citizens engage in three distinct types of interactions: (1)

consensual encounters, (2) investigatory detentions, and (3) arrests. State v. Woodard, 341

S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Consensual police encounters do not implicate the

Fourth Amendment. Id. An officer is free to stop and question a fellow citizen, and justification

is not required to request information from the citizen. Id. And citizens may, at will, terminate

consensual encounters. Id. Even if the officer did not communicate to the citizen that the


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request for information may be ignored, the citizen’s acquiescence to an officer’s request does

not cause the encounter to lose its consensual nature. 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

and terminate the interaction. Id. If it was an option to ignore the request or terminate the

interaction, then a Fourth Amendment seizure has not occurred.             Id.   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.

       No bright-line rule governs when a consensual encounter becomes a seizure. Generally,

however, when an officer through force or a showing of authority restrains a citizen’s liberty, the

encounter is no longer consensual. Id. This is the point at which an encounter becomes a

detention or an arrest, both of which are seizures under the Fourth Amendment. Id.

       The State argues appellee’s Fourth Amendment rights were not implicated because the

encounter between him and Officer Garcia was consensual. Based on the record before us, we

agree. Officer Garcia testified he followed appellee’s car from the car wash to the adjacent

parking lot of a motel. He parked next to appellee’s car and both exited. There is no evidence

Officer Garcia turned his lights or sirens on or that he blocked appellee’s car in such a way that

appellee would feel threatened or unable to leave. There is no evidence Officer Garcia made any

threatening statements or pulled a weapon. Moreover, the interaction occurred in a parking lot

during daylight hours, which is different than situations where courts have determined a

defendant could reasonably believe he was not free to leave because officers pulled him over in a

secluded area in the middle of the night. See, e.g., Brown v. State, 790 S.W.2d 357, 360 (Tex.

App.—Houston [14th Dist.] 1990, pet. ref’d) (holding that a reasonable person would not feel

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free to leave or disobey a uniformed officer’s request when approached in the dark and in a fairly

deserted area).

       The law is clear that an officer is free to approach any citizen in a public place and talk

with him. We reached the same conclusion under similar facts in State v. Crawford, 120 S.W.3d

508, 509 (Tex. App.—Dallas 2003, no pet.). In that case, this court held officers were free to

approach the defendant at a truck stop and “no facts were necessary to justify the officers’

encounter with Crawford.”      Id. at 510.    After approaching Crawford, officers noticed his

bloodshot eyes and smelled burnt marijuana. Id. At that time, officers had probable cause to

believe Crawford’s car contained marijuana; therefore, the trial court erred by granting a motion

to suppress. Id. at 510–11.

       Appellee tries to distinguish this case by arguing it involved an officer’s response to a

reported crime and officers approached Crawford because he fit the description given by

dispatch, both of which are facts missing in the present case. Appellee further argues there was

no evidence “to suggest that the Appellee was involved in any suspicious criminal behavior or

activity.” And as previous discussed, it is obvious from the record this was also the basis for the

trial court’s granting of the motion to suppress. This conclusion belies the well-established case

law regarding consensual police encounters.

       Accordingly, we conclude based on the facts of this case and applying the appropriate

case law regarding search and seizure, appellee’s Fourth Amendment rights were not triggered

when Officer Garcia parked his car next to appellee’s car, both men exited their cars, and Officer

Garcia began talking with appellee. The encounter was consensual, and it is immaterial whether

Officer Garcia told appellee he could leave. See Woodard, 341 S.W.3d at 411 (noting that even

if the officer did not communicate to the citizen that the request for information may be ignored,

the citizen’s acquiescence to an officer’s request does not cause the encounter to lose its

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consensual nature). After Officer Garcia smelled marijuana coming from appellee’s car, he

obtained the requisite probable cause to search the vehicle. See Crawford, 120 S.W.3d at 511.

The trial court abused its discretion to conclude otherwise. We sustain the State’s sole issue.

                                           Conclusion

       The judgment of the trial court is reversed, and the case is remanded for further

proceedings.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130194F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                       On Appeal from the County Criminal Court
                                                    No. 6, Dallas County, Texas
No. 05-13-00194-CR        V.                        Trial Court Cause No. MB-12-58768.
                                                    Opinion delivered by Justice O’Neill.
MICHAEL LEONARD, Appellee                           Justices Lang-Miers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 8th day of November, 2013.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE




                                             –8–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

THE STATE OF TEXAS, Appellant                       On Appeal from the County Criminal Court
                                                    No. 6, Dallas County, Texas
No. 05-13-00195-CR        V.                        Trial Court Cause No. MB-12-58769.
                                                    Opinion delivered by Justice O’Neill.
MICHAEL LEONARD, Appellee                           Justices Lang-Miers and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered this 8th day of November, 2013.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE




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