            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0354-10



                                THE STATE OF TEXAS

                                             v.

                           CORY CASTLEBERRY, Appellee

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

       K EASLER, J., delivered the opinion of the Court in which K ELLER, P.J., M EYERS,
P RICE, W OMACK, and H ERVEY, JJ., joined. J OHNSON, J., concurred. C OCHRAN, J.,
dissented.

                                      OPINION

       Early one May morning in 2008, Officer Barrett was patrolling an urban area where

recent burglaries had occurred. He approached Cory Castleberry and another man walking

behind a closed business and asked them for identification. Castleberry then reached for his

waistband, and Officer Barrett told him to raise his hands. Castleberry reached in his
                                                                        CASTLEBERRY—2

waistband and threw down a baggie of cocaine. We must decide whether the cocaine was

admissible. We conclude that it was.

                                        Background

       The State charged Castleberry with possession of cocaine. Before trial, Castleberry

moved to suppress cocaine found by Officer Barrett of the Dallas Police Department (DPD).

       At approximately 3:00 a.m. on May 31, 2008, Officer Barrett was patrolling the Cedar

Springs-Lemmon-Maple area of town, which is a mix of bars, shops, apartment buildings,

and residences. Officer Barrett described the area as having one of the “higher crime rates.”

Before May 31st, the DPD had caught “quite a few burglars” in the area. Officer Barrett’s

superior had been “hounding [him] to get after” the burglaries. So, when he noticed two men

walking behind a closed business in an area lit by ambient light, he became suspicious.

       To determine “what they [were] doing back there at that time,” Officer Barrett’s

partner dropped Officer Barrett off in front of one of the businesses so that Officer Barrett

could circle around and approach the two men from behind. While Officer Barrett was

circling on foot, his partner drove around the other direction so that he could approach the

men from the front. Officer Barrett testified that, as he approached the two men, he

“probably asked them for ID [and] questioned them why they were walking through there.”

He went on to testify that upon requesting identification from the two men, Castleberry “was

kind of reaching for his waistband” and “I d[id not] know, if he ha[d] a gun or knife . . . .”

When the prosecutor asked Officer Barrett to explain the significance of someone reaching
                                                                          CASTLEBERRY—3

for their waistband, Officer Barrett stated, “That’s commonly where weapons are carried, in

the front waistband, underneath an untucked shirt.” Castleberry testified that his shirt was

untucked.

       When Castleberry reached for his waistband, Officer Barrett immediately instructed

him to put his hands above his head, which is what he “commonly” does in order to “gain

control” so he can “do a patdown.” When told to put his hands above his head, Castleberry

again reached for his waistband. Officer Barrett ordered Castleberry to put his hands behind

his back so he could conduct a Terry frisk, at which time Castleberry reached for his

waistband for a third time. Officer Barrett stated that Castleberry “[p]ull[ed] his right hand

away from my control back towards the front of his waistband” and “that’s when he threw

the baggie.” Officer Barrett determined that the baggie contained cocaine and arrested

Castleberry.

       Officer Barrett testified that when he first noticed Castleberry and his companion,

neither man was carrying a duffle bag nor any tools that could be used in a burglary and that

nothing about them was out of the ordinary for two people walking down the street. He also

testified that he determined that Castleberry was not carrying a weapon. He made this

determination after Castleberry had thrown down the baggie containing cocaine. When

questioned by the prosecutor, Officer Barrett first described the area of the arrest as dark, but,

later, when questioned by the trial judge, he admitted that the area was lit by ambient light.

       Castleberry testified that he was walking from a bar to his apartment, which was
                                                                           CASTLEBERRY—4

located approximately one block from where he was arrested. He explained that the area was

“well lit enough where you could, you know, see what’s going on.”                 And when the

prosecutor asked Castleberry if the area was dangerous, he answered, “No, it’s not dangerous

at all.” Castleberry testified that he always cuts through “the parking lot of the back of Uncle

Julio’s, to go to [his] apartment after walking down on Lemmon.” Castleberry also testified

that he was carrying a compact disc in his waistband and that his companion was not carrying

anything. Then Castleberry admitted that “an officer in a place that . . . isn’t completely well

lit . . . coming up on two people he doesn’t know and one of them reaches . . . to his

waistband . . . has reason to be concerned.” And when the trial judge asked Castleberry if

there was foot traffic in that area at 3:00 a.m., he stated that “[t]here’s quite a bit, actually .

. . .” The trial judge granted Castleberry’s motion to suppress and entered written findings

of fact and conclusions of law, which state, in relevant part:

       •       On May 31, 2008, Officer Russell Barrett, while on routine patrol,
               came in contact with Corey Castleberry in the Cedar Springs/Lemon
               Avenue/Maple area of Dallas, Texas.

       •       The contact occurred at approximately 3:00 a.m. behind a restaurant
               named Uncle Julio’s.

       •       Officer Barrett described the area as “high crime” and said a few
               burglars had recently been caught in the area. Officer Barrett’s superior
               officer was pressuring him and other officers to “get after” the
               burglaries.

       •       Officer Barrett exited his vehicle and approached Castleberry on foot
               while his partner circled around behind in his cruiser.

       •       Officer Barrett first described the area as “dark” but later clarified that
                                                               CASTLEBERRY—5

    remark by indicating that “ambient light” from nearby businesses lit the
    area enough so that one could walk without additional lighting.

•   Officer Barrett approached Castleberry for the express purpose of
    obtaining his identification and determining why he was there at that
    time of night.

•   At the time Officer Barrett approached Castleberry, he did not have any
    reason to believe that a crime had occurred, was occurring, or was
    about to occur. Castleberry was not carrying anything that looked like
    a weapon or burglary tool. When Officer Barrett first observed
    Castleberry, Castleberry was doing nothing more than simply walking
    in a public area behind a closed business.

•   When Officer Barrett first approached Castleberry, Officer Barrett had
    no information that would lead him to believe that Castleberry was a
    threat to anyone.

•   In response to a request for identification, Castleberry reached for his
    waistband, a common place for carrying identification. Officer Barrett
    noted that the waistband is a common place to carry weapons, but he
    admitted that he did not know if Castleberry had a weapon.

•   None of Castleberry’s actions indicated that Officer Barrett or anyone
    else was in jeopardy.

•   When Castleberry reached for his waistband, a place where
    identification is normally kept, in response to Officer Barrett’s request
    for identification, Officer Barrett ordered Castleberry to place his hands
    in the air. This effectuated a detention of Castleberry. The reason
    Officer Barrett ordered Castleberry to place his hands in the air was so
    that Officer Barrett could gain control of Castleberry and conduct a pat
    down search.

•   Any items seized after the detention were a direct result of the initiation
    of the detention.

•   The State’s power to invade a citizen’s privacy is limited by the
    requirement that searches and seizures must be supported by a showing
    of probable cause.
                                                                         CASTLEBERRY—6


       •      A lower standard of reasonable suspicion is derived from probable
              cause and applies to brief detentions, which fall short of being full-
              scale searches or seizures.

       •      No stop or detention is permissible when the circumstances are not
              reasonably consistent with criminal activity. In such a case, the
              investigation is based only on mere curiosity, rumor, or hunch.

       •      The circumstances must amount to more that an inchoate and
              unparticularized suspicion or hunch. The reasonableness of a
              temporary detention must be examined in terms of the totality of the
              circumstances. The detention will be justified when the detaining
              officer has specific articulable facts, either known personally or through
              the collective knowledge of other officers, which taken together with
              rational inferences from those facts, lead the officer to conclude that the
              person detained is, has been, or soon will be engaged in criminal
              activity or poses a threat to officer safety.

       •      Officer Barrett failed to provide any articulable facts or rational
              inferences therefrom that Castleberry had been, was, or soon would be
              engaged in criminal activity. Nor did Officer Barrett provide any
              articulable facts or rational inferences therefrom that Castleberry posed
              any threat to Officer Barrett. Thus, Officer Barrett exceeded his
              authority in detaining Castleberry.

       •      Any items seized as a fruit of this constitutionally impermissible
              detention are ordered suppressed.

                                     Court of Appeals

       The State appealed the trial judge’s ruling on Castleberry’s suppression motion. In

its opinion, the court of appeals agreed with the trial judge’s finding of fact:

       At the time Officer Barrett approached [Castleberry] and his companion, he
       did not have any reason to believe that a crime had occurred, was occurring,
       or was about to occur . . . [that Castleberry and his companion] were doing
       nothing more than simply walking in a public area behind a closed business .
       . . [and that] [a]t the time Officer Barrett approached [Castleberry] and his
                                                                         CASTLEBERRY—7

       companion he did not have any information which would lead him to believe
       that [Castleberry] was a threat to the Officer or any other person.1

Agreeing with the trial judge, the court of appeals found that Officer Barrett went “too far”

when he asked Castleberry to place his hands in the air in response to Castleberry reaching

for his waistband.2 In light of the foregoing, the court stated: “Since the State failed to

demonstrate sufficient facts to create reasonable suspicion for the detention of [Castleberry],”

the seizure of the baggie containing cocaine was the result of a Fourth Amendment

violation.3

                        State’s Petition for Discretionary Review

       We granted the State’s petition for discretionary review to determine whether: (1)

“[t]he court of appeals improperly required reasonable suspicion to justify a consensual

encounter between Officer Barrett and Mr. Castleberry;” and (2) “[i]n assessing the totality

of the circumstances for reasonable suspicion, the court of appeals employed an improper

presumption that Mr. Castleberry’s conduct in reaching for his waistband was innocent and

improperly ignored key facts that the trial court found to be true.”

                                           Analysis

       We review a trial judge’s ruling on a motion to suppress by viewing all of the



       1
      State v. Castleberry, No. 05-09-00743-CR, 2010 Tex. App. LEXIS 339, at *6 (Tex.
App.—Dallas, Jan. 20, 2010) (not designated for publication).
       2
           Id. at *7.
       3
           Id.
                                                                         CASTLEBERRY—8

evidence in the light most favorable to the trial judge’s ruling.4 When the trial judge makes

explicit findings of fact, we afford those findings almost total deference as long as the record

supports them,5 regardless of whether the motion to suppress was granted or denied.6

Therefore, the prevailing party is entitled to “the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn from that evidence.”7 We afford the same

amount of deference to the trial judge’s rulings on mixed questions of law and fact, if those

rulings turned on an evaluation of credibility and demeanor.8 Other mixed questions of law

and fact are reviewed de novo.9 So, whether the facts surrounding Officer Barrett and

Castleberry’s interaction constitute a consensual police-citizen encounter or a Fourth

Amendment detention is subject to a de novo review.10

       We recognize that there are numerous ways in which police-citizen encounters might




       4
         State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (citing
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d
808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000)).
       5
            Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       6
            Garcia-Cantu, 253 S.W.3d at 241.
       7
            Id.
       8
            Guzman, 955 S.W.2d at 89.
       9
            Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).
       10
            Garcia-Cantu, 253 S.W.3d at 241; Kothe, 152 S.W.3d at 62–63.
                                                                        CASTLEBERRY—9

unfold.11 The Supreme Court has determined that there are three distinct types of interactions

between police and citizens: (1) consensual encounters, which require no objective

justification;12 (2) investigatory detentions, which require reasonable suspicion;13 and (3)

arrests, which require probable cause.14 When a police-citizen encounter is consensual, the

Fourth Amendment and its protections are not implicated.15 An officer is just as free as

anyone to stop and question a fellow citizen.16 And a citizen is free to terminate a consensual

encounter at will.17 An officer may, without reasonable suspicion, request identification and

information from a citizen.18 Even if the officer did not tell the citizen that the request for

identification or information may be ignored, the fact that the citizen complied with the

request does not negate the consensual nature of the encounter.19

       An encounter is no longer consensual when an officer, through physical force or a


       11
            Terry v. Ohio, 392 U.S. 1, 13 (1968); Garcia-Cantu, 253 S.W.3d at 242.
       12
            Florida v. Bostick, 501 U.S. 429, 434 (1991).
       13
            Terry, 392 U.S. at 30–31.
       14
            Gerstein v. Pugh, 420 U.S. 103, 111–12 (1975).
       15
            Bostick, 501 U.S. at 434; see Florida v. Rodriguez, 469 U.S. 1, 5–6 (1984).
       16
            Bostick, 501 U.S. at 434–35; Garcia-Cantu, 253 S.W.3d at 243.
       17
            Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).
       18
           Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185 (2004);
Bostick, 501 U.S. 434–35; Immigration and Naturalization Service v. Delgado, 466 U.S. 210,
216 (1984).
       19
            Delgado, 466 U.S. at 216.
                                                                        CASTLEBERRY—10

showing of authority, has restrained a citizen’s liberty.20 At this point, the interaction is

considered an investigatory detention or arrest, both of which are Fourth Amendment

seizures.21 And when a seizure takes the form of a detention, Fourth Amendment scrutiny

is necessary22 —it must be determined whether the detaining officer had reasonable suspicion

that the citizen is, has been, or is about to be engaged in criminal activity.23 But there is no

bright-line rule to determine when an encounter becomes a seizure.24 Instead, courts must

take into account the totality of the circumstances surrounding the interaction to determine

whether a reasonable person would have felt free to ignore the police officer’s request or

terminate the encounter.25 “A court must step into the shoes of the defendant and [make this

determination] from a common, objective perspective . . . .” 26 If ignoring the request or




         20
          Brendlin v. California, 551 U.S. 249, 254 (2007); Bostick, 501 U.S. at 434;
Delgado, 466 U.S. at 215; United States v. Mendenhal, 446 U.S. 544, 552 (1980); Garcia-
Cantu, 253 S.W.3d at 242.
         21
              Crain, 315 S.W.3d at 49.
         22
              Bostick, 501 U.S. at 434; Garcia-Cantu, 253 S.W.3d at 242.
         23
              Rodriguez, 469 U.S. at 5; State v. Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App.
2008).
         24
              Brendlin, 551 U.S. 255; Garcia-Cantu, 253 S.W.3d at 243.
         25
          Brendlin, 551 U.S. at 255; United States v. Drayton, 536 U.S. 194, 201 (2002);
California v. Hodari D., 499 U.S. 621, 627–28 (1991); Bostick, 501 U.S. at 439; Delgado,
466 U.S. at 215.
         26
              Garcia-Cantu, 253 S.W.3d at 244.
                                                                     CASTLEBERRY—11

terminating the encounter was an option, then no Fourth Amendment seizure has occurred.27

Additionally, when a suspect fails to yield to a show of physical force and there has been no

actual use of physical force, then there is no seizure.28 The time, place, and surrounding

circumstances must be taken into account, but the officer’s conduct is the most important

factor in determining whether a police-citizen interaction is a consensual encounter or a

Fourth Amendment seizure.29

       Further, if a police officer reasonably suspects that a person is armed, a limited pat

down of that person is permissible.30 The State has the burden to present facts sufficient to

show reasonable suspicion.31 Whether the State has met its burden must be determined by

considering the specific facts known by the officer at the moment of detention.32 This

determination of reasonable suspicion may also be “based on commonsense judgments and

inferences about human behavior.” 33

       In this case, the State first contends that the court of appeals improperly required



       27
         Brendlin, 551 U.S. at 255; Drayton, 536 U.S. at 201; Hodari D., 499 U.S. at
627–28; Bostick, 501 U.S. 439; Delgado, 466 U.S. at 215.
       28
            Hodari D., 499 U.S. at 621.
       29
            Garcia-Cantu, 253 S.W.3d at 244.
       30
            Arizona v. Johnson, 129 S. Ct. 781, 784 (2009); Terry 392 U.S. at 27.
       31
            Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001).
       32
            Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
       33
            Illinois v. Wardlow, 528 U.S. 119, 125 (2000).
                                                                       CASTLEBERRY—12

reasonable suspicion to justify a consensual encounter between Officer Barrett and

Castleberry. The State is correct. Indeed, both the trial judge and the court of appeals failed

to properly identify the type of interaction that initially occurred between Officer Barrett and

Castleberry.

       The court of appeals agreed with the trial judge that when Officer Barrett initially

approached Castleberry, he did not have reasonable suspicion that Castleberry was a threat

or that a crime had occurred, was occurring, or was about to occur. But this was a consensual

police-citizen encounter; whether Officer Barrett had reasonable suspicion is therefore of no

consequence.34 By taking into account the totality of the circumstances, we conclude that a

reasonable person in Castleberry’s position would have felt free to decline Officer Barrett’s

request for identification and information.

       As noted above, an officer’s conduct is a determinative factor in deciding whether an

interaction was a consensual encounter or Fourth Amendment seizure.35 Officer Barrett

testified that as he approached Castleberry and his companion, he “asked them for ID [and]

questioned them why they were walking through there.” And the trial judge found that

Officer Barrett approached Castleberry for the express purpose of obtaining his identification

and determining why he was there at that time of night. Because an officer is just as free as

anyone to question, and request identification from, a fellow citizen, Officer Barrett’s



       34
            Bostick, 501 U.S. at 434.
       35
            Garcia-Cantu, 253 S.W.3d at 244.
                                                                         CASTLEBERRY—13

conduct shows that the interaction was a consensual encounter.36

       Next, we consider the time, place, and surrounding circumstances of the interaction.

We have explained that a “reasonable person would feel freer to terminate or ignore a police

encounter in the middle of the day in a public place where other people are nearby than he

would when parked on a deserted, dead-end street at 4:00 a.m.”37 Castleberry testified that

he was walking from a bar to his apartment, which was located approximately one block

from where he was arrested. He explained that the area was “well lit enough where you

could, you know, see what’s going on.” Officer Barrett said that a person would not need

a flashlight to walk there safely because it was lit by “ambient light from the surrounding .

. . area.” Castleberry also explained that the area has “quite a bit” of foot traffic at 3:00 a.m.

Under these facts, we conclude that a reasonable person in Castleberry’s shoes would have

felt free to terminate the encounter, making it consensual.

       The State also contends that in assessing the totality of the circumstances for

reasonable suspicion, the court of appeals employed an improper inference that Castleberry’s

act of reaching for his waistband was innocent conduct, and it ignored key facts that the trial

judge found to be true. Once again, the State is correct.

       The court of appeals agreed with the trial judge that none of Castleberry’s actions




       36
            Bostick, 501 U.S. at 434–35; Delgado, 466 U.S. at 216.
       37
            Garcia-Cantu, 253 S.W.3d at 249 n.42.
                                                                        CASTLEBERRY—14

indicated that Officer Barrett or anyone else was in jeopardy.38 But this conflicts with the

fact that when Officer Barrett asked Castleberry to produce his identification, Castleberry

reached for his waistband. The court of appeals agreed with the trial judge’s reasoning that

the waistband is a common location for carrying identification.39 By doing so, the court of

appeals determined that Castleberry could have been innocently reaching for his

identification and agreed with the trial judge that Officer Barrett went “too far.” 40 It is true

that Castleberry could have been reaching for his identification. But “[t]he possibility of an

innocent explanation does not deprive the officer of the capacity to entertain reasonable

suspicion of criminal conduct. Indeed, the principal function of [an] investigation is to

resolve that very ambiguity . . . .”41 Officer Barrett admitted that, at that point, he did not

know if Castleberry was carrying a weapon—and the trial judge included this in his findings

of fact.

       If an officer has a reasonable belief that a citizen may be armed, a limited pat down

of that citizen is permissible.42 And “[t]he officer need not be absolutely certain that the

individual is armed; the issue is whether a reasonably prudent man in the circumstances


       38
            Castleberry, 2010 Tex. App. LEXIS 339, at *6.
       39
            See id. at *7 n.1.
       40
            Id.
       41
         Woods v. State, 956 S.W.2d 33, 37 (Tex. Crim. App. 1997); accord United States
v. Arvizu, 534 U.S. 266, 274–75, 277–78 (2002).
       42
            Terry, 392 U.S. at 27.
                                                                       CASTLEBERRY—15

would be warranted in the belief that his safety or that of others was in danger.”43 In Glazner

v. State, a police officer admitted that he did not “immediately perceive [the] appellant to be

a threat.”44 But, because the officer saw what looked like a knife in Glazner’s pocket, he

conducted a pat down.45 Glazner challenged the pat down.46 But, because the officer

“believed, based on observation and experience, that appellant had a knife,” we held that the

pat down was justified.47 Likewise, when Officer Barrett first made contact with Castleberry,

he had no reason to believe Castleberry was a threat, nor did the officer immediately observe

any weapons. But Officer Barrett did find Castleberry behind a closed business in a high

crime area. And when asked for his identification, Castleberry reached for his waistband,

an act that could be reasonably construed as reaching for a weapon. At that point, Officer

Barrett did not know if Castleberry was carrying a weapon. We thus conclude that a

reasonably prudent person in the same circumstances as Officer Barrett would be warranted

in believing that his or her safety may be in danger.48 Officer Barrett’s brief detention and

weapons frisk of Castleberry was justified under these circumstances.




       43
            Id.
       44
            175 S.W.3d 262, 265 (Tex. Crim. App. 2005).
       45
            Id. at 264.
       46
            Id. at 264–65.
       47
            Id. at 265.
       48
            See Worthey v. State, 805 S.W.2d 435, 439 (Tex. Crim. App. 1991).
                                                                       CASTLEBERRY—16

       Finally, we note an alternative basis on which to reverse the trial judge’s and court of

appeals’s decision. As stated above, when a suspect refuses to yield to physical force or an

officer’s show of authority, there is no seizure.49 Here, despite Officer Barrett’s repeated

demands to Castleberry to put his hands above his head, Castleberry ignored the orders and

tossed the baggie of cocaine on the ground. Officer Barrett then arrested Castleberry. Under

the Fourth Amendment, Castleberry was not seized until he was arrested. Because

Castleberry voluntarily abandoned the cocaine before he was arrested, the cocaine was not

the fruit of a seizure.50

                                         Conclusion

       The court of appeals failed to separate Castleberry and Officer Barrett’s encounter into

two distinct parts: (1) Officer Barrett’s initial approach of Castleberry, which was a

consensual encounter; and (2) Castleberry’s act of reaching for his waistband, which

provided Officer Barrett with reasonable suspicion to detain and frisk Castleberry. We

therefore reverse the court of appeals’s judgment, hold the seized contraband to be

admissible, and remand the cause to the trial court.




DATE DELIVERED: March 2, 2011
PUBLISH




       49
            Hodari D., 499 U.S. at 626, 629.
       50
            Id.; Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003).
