                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                 §
 VALERIE RENEE CRANE,                                            No. 08-13-00132-CR
                                                 §
                   Appellant,                                      Appeal from the
                                                 §
 v.                                                         County Criminal Court No. 9
                                                 §
 THE STATE OF TEXAS,                                           of Tarrant County, Texas
                                                 §
                   Appellee.                                        (TC# 1257243)
                                                 §

                                         OPINION

       Valerie Renee Crane appeals her conviction on one count of driving while intoxicated. In

her sole appellate issue, Crane contends the trial court incorrectly denied her motion to suppress

certain incriminating statements that she maintains were fruits of an illegal seizure. We affirm.

                                        BACKGROUND

       At the suppression hearing, North Richland Hills Police Officer Jonathan Richerson

testified that he was patrolling an area known for high amount of drug activity near a Motel 6 on

Bedford Euless Street. As he pulled into the parking lot, Officer Richerson witnessed Appellant

back out of a parking space and move toward a driveway before stopping for about fifteen

seconds to look through the car’s center console. She then looked up and made eye contact with

Officer Richerson, who was sitting in a marked police vehicle. Appellant drove through the
driveway at a normal rate of speed to the part of the parking lot on the other side of the motel and

parked there. Officer Richerson conceded that Appellant did not weave, hit a curb, or do

anything to otherwise indicate that she was intoxicated while maneuvering through the driveway.

       Officer Richerson then witnessed Appellant exit the vehicle after thirty seconds and walk

through a breezeway to a spot near the pool. He drove his car around to a different side of the

motel so he could see her better. From the other side of the motel, he could see that Appellant

was talking on a cell phone. Officer Richerson further testified that when she saw him parked on

the other side of the motel, she walked back through the breezeway she had just come from.

Officer Richerson then drove back around to his original position, exited his vehicle, and

approached Appellant.

       Officer Richerson stated that as he approached Appellant, he said “Hi, what are you

doing?” At the time he called out to Appellant, he was standing about twenty feet away from her

and he did not have his weapon drawn, nor did he flash his red and blue police lights before

approaching Appellant. He maintained that he did not impede her path of egress, as she could

have walked away using the sidewalk or simply turned around and walked back through the

breezeway. Officer Richerson also did not affirmatively identify himself as a police officer,

although he was driving a marked police unit and wore a police uniform.

       Officer Richerson testified that Appellant threw away her keys before coming over to talk

to him. He further testified that as she approached him, he noticed that she had bloodshot eyes,

and he could smell the odor of alcohol. Appellant told him that she had just come from Chili’s

Restaurant and Rack Daddy’s, a bar Officer Richerson knew sold alcohol. She also said her

friends were coming to pick her up from the motel because she was too drunk to drive. Officer

Richerson testified that following this initial conversation with Appellant, he developed



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reasonable suspicion that she had been driving while intoxicated.

       The trial court admitted a copy of Officer Richerson’s dash camera video into evidence.

The video starts shortly before Officer Richerson and Appellant’s first interaction. Officer

Richerson and Appellant are not visible in the video. However, there is some audible audio of

the interaction between Officer Richerson and Appellant, though much of the dialogue is

unintelligible. From what can be heard, Officer Richerson says “hi, what are you doing?”

Appellant denied that she had driven to the motel, stating that her friends had driven her car to

the motel and dropped her off so that other people could come pick her up. She also stated that

she was “too drunk to drive” and that she had only driven around through the parking lot. About

three minutes and thirty seconds into the video, a second police officer drives a marked unit to

the area, exits the vehicle, and approaches Officer Richerson and Appellant off-camera. The

remainder of the video consists of continuing questioning and an off-screen sobriety test.

       At the conclusion of the hearing, the trial court made a series of oral findings and denied

Appellant’s motion to suppress, holding that the interaction between Appellant and Officer

Richerson was a consensual encounter requiring no special Fourth Amendment protections.

       Crane appealed.

                                         DISCUSSION

       In her sole issue, Appellant complains that Officer Richerson unlawfully detained her

without reasonable suspicion from the moment he asked her what she was doing, rendering any

subsequent statements she made the result of a Fourth Amendment violation. We disagree.

                   Standard of Review and Fourth Amendment Framework

       We review the trial court’s suppression ruling under a bifurcated standard, assessing “a

trial court’s determination of historical facts” for abuse of discretion “and reviewing de novo the



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court’s application of the law of search and seizure.” Carmouche v. State, 10 S.W.3d 323, 327

(Tex.Crim.App. 2000). Where video evidence is present in the record, we may review the

“indisputable visual evidence contained in [the] videotape” de novo. State v. Duran, 396 S.W.3d

563, 570-71 (Tex.Crim.App. 2013)[Internal quotations and citation omitted](appellate court need

not defer to fact finder where “indisputable visual evidence contradicting” testimony appears in

record). However, “the appellate court must defer to the trial judge’s factual finding on whether

a witness actually saw what was depicted on a videotape or heard what was said during a

recorded conversation.” Id.

       The Fourth Amendment to the United States Constitution shields “the people” from

unreasonable government searches and seizures of their “persons, houses, papers, and effects,” or

from unreasonable searches of any area in which they possess a reasonable expectation of

privacy. U.S. CONST. AMEND. XIV; United States v. Jones, 132 S.Ct. 945, 950-51, 181 L.Ed.2d

911 (2012). Police detention constitutes a seizure under the Fourth Amendment. Wade v. State,

422 S.W.3d 661, 668 (Tex.Crim.App. 2013). However, not every police-civilian interaction

constitutes a seizure triggering Fourth Amendment protections. Id. at 667. Where a police

officer approaches a civilian and initiates conversation, the interaction is considered to be

consensual unless “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.” State

v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999)(citing Florida v. Bostick, 501 U.S.

429, 439, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991)). Consensual encounters do not need to

be supported by reasonable suspicion or probable cause, as the civilian is free to disengage from

the conversation and leave at any time and for any reason. Id.

       Where a reasonable person would no longer “fe[el] free to ignore the police officer’s



                                                4
request or terminate the consensual encounter[,]” the encounter escalates into a detention subject

to Fourth Amendment scrutiny. Wade, 422 S.W.3d at 667. “No bright-line rule governs when a

consensual encounter becomes a detention[;] [c]ourts must take into account the totality of the

circumstances of the interaction . . . .” Id. There are two types of detention under the Fourth

Amendment: investigative stops, also known as Terry1 stops, and arrests. An investigative stop

must be limited in scope and duration and must be supported by reasonable suspicion to be

constitutional. Id. at 667. An arrest must be supported by probable cause. Id. Absent the

requisite level of reasonable suspicion or probable cause necessary to justify a Terry stop or an

arrest, the police detention is unreasonable under the Fourth Amendment, and its evidentiary

fruits are subject to suppression. Id.

                                                       Analysis

           Upon our review of the record before us, we find no Fourth Amendment violations to

support Appellant’s suppression argument. Nothing in Officer Richerson’s testimony or in the

dash camera video suggests that in his initial approach and conversation with Appellant he acted

in a threatening way or otherwise indicated to her that she was not free to leave so as to indicate

she was detained.            State v. Garcia-Cantu, 253 S.W.3d 236, 243 n.35 (Tex.Crim.App.

2008)(identifying “whether the officer approached in a non-threatening manner” and “whether

he requested or demanded information” as factors to consider in totality of the circumstances

analysis). Although there is no useful visual evidence contained in the video, the audio from

Officer Richerson’s dash camera shows that he used a non-threatening tone of voice in asking

Appellant his initial questions. Id. (identifying whether officer asked or demanded information

as a factor). His uncontroverted testimony also established that Appellant had two options of

egress if she had wished to terminate the encounter. Id. (elimination of path of egress a factor).
1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)

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           We do note that at approximately three minutes and thirty-five seconds into the video, a

second police unit parks in front of Officer Richerson’s car, and a back-up police officer exits

and walks toward where Officer Richerson and Appellant are presumably standing off-screen.

Under certain circumstances, the presence of multiple police officers during questioning may

lead a reasonable person to assume they are not free to leave, thereby escalating a consensual

encounter into an investigatory stop triggering Fourth Amendment protections. Garcia-Cantu,

253 S.W.3d at 243 n.35.

           We need not decide whether the additional officer’s presence did, in fact, convert the

consensual encounter into an investigatory stop.                  Assuming it did, investigatory stops are

constitutionally proper when supported by reasonable suspicion. Here, before the second officer

arrived, Appellant admitted to Officer Richerson that she was “drunk” and “not driving

anywhere” because of her intoxication. Prior to that, Officer Richerson observed Appellant enter

her car and drive it from one side of the motel parking lot to another. Officer Richerson also

testified that Appellant had bloodshot eyes and smelled like alcohol, and Appellant admitted to

having just come from a bar, though she maintained that her friends had driven her car to the

motel and dropped her off so another friend could pick her up. Based on the circumstances,

Officer Richerson could have had a reasonable suspicion that Appellant had been driving under

the influence, thereby justifying any investigatory stop.

           Since Appellant does not argue that the stop ripened into a full arrest requiring probable

cause and Miranda2 warnings, our analysis concludes there.                       The initial interaction was a

consensual encounter, and to the extent the encounter ripened into a Terry stop, reasonable

suspicion existed to support it. Suppression was unwarranted, and the trial court properly denied

Appellant’s motion.
2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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       Issue One is overruled. The judgment of the trial court is affirmed.



October 15, 2014
                                            YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge, sitting by assignment)

(Do Not Publish)




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