Affirmed and Memorandum Opinion filed September 25, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00725-CR

                   JASON MICHAEL PLACIDE, Appellant

                                        V.
                        THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1353416

                 MEMORANDUM                      OPINION


      Appellant Jason Michael Placide appeals his conviction for possession of
cocaine. In two issues, appellant argues the trial court erred in denying his motion
to suppress because (1) the officers lacked reasonable suspicion to detain him; and
(2) his statement was made as a result of custodial interrogation and was
inadmissible under article 38.22, section 3 of the Texas Code of Criminal
Procedure. We affirm.
                                   BACKGROUND

      Appellant was indicted for possession of between one and four grams of
cocaine. See Tex. Health & Safety Code § 481.115(c). Appellant filed a pretrial
motion to suppress in which he argued that a Houston Police officer “broke into”
his vehicle and searched the vehicle without consent. Appellant argued that “[a]ny
controlled substances found in the vehicle” should be suppressed because the
search was without a warrant and without probable cause. Appellant also sought
suppression of “[a]ny other matters that the Court finds should be suppressed upon
hearing of this motion.” Appellant argued that the evidence should be suppressed
because (1) the narcotics were not in plain view in the vehicle; and (2) the vehicle
search was not incident to a lawful arrest.

      At the hearing on appellant’s motion to suppress Officer Joseph Little of the
Houston Police Department testified that at approximately 4:00 a.m. on July 6,
2012, he was patrolling the north side of Houston in an area known for narcotics
and crime. He received a dispatch call for a disturbance at an apartment complex
located at 8034 Antoine. The 911 caller reported three or four African-American
males using narcotics and loading guns while standing outside a white truck near a
black Dodge Magnum. When Little arrived at the apartment complex he observed
three African-American males standing outside of a white pickup truck near a
black Dodge Magnum. He identified appellant as one of the men he saw that night.
Because Little had received a report that the men were loading weapons, he
detained all three men, handcuffed them, and placed them in separate patrol cars.

      In conducting his investigation, Little shined a flashlight into the black
Dodge Magnum, and observed narcotics on the car’s console. Little saw a bag of
marijuana and a bag of clear pills with no label on them. Little asked appellant if
the black Dodge Magnum was his car, and appellant “admitted that that was his car

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and he had been driving it and he lives at the registered address.” Appellant was
arrested after the marijuana and pills were discovered in the vehicle. After
appellant was arrested, officers found crack cocaine in the vehicle. The pills also
tested positive for cocaine.

       On cross-examination, Little testified that he did not know the identity of the
911 caller. The officers searched all three men, but did not find weapons.

       Officer Matthew was also on the scene and testified to the same events.1
Matthew Little testified that the three men were detained because the call reported
they were loading weapons. The men were handcuffed for officer safety and placed
in the patrol cars so they could not flee the scene until the investigation was
complete.

       Appellant testified that the car belonged to his mother and he had no
knowledge of drugs in the car. On cross-examination, appellant admitted more than
one prior conviction for possession of controlled substances but could not
remember an exact number of prior convictions. Appellant believed he was under
arrest at the time he was handcuffed and placed in the patrol car.

       During his closing statement, appellant’s counsel argued that (1) appellant’s
statement that he owned the car should be excluded because he was under arrest
and officers did not read his Miranda rights;2 and (2) the evidence should be
excluded because the search was warrantless and not a proper inventory search
incident to arrest. The State argued that the officers had reasonable suspicion of a
threat to their safety as a result of the potential weapons reported in the police
dispatch. Officers detained appellant and the other individuals for their safety

       1
        We refer to Joseph Little as “Little” throughout this opinion and refer to Matthew Little
as “Matthew Little.”
       2
           See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

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while they conducted an investigation. The investigation revealed marijuana in
plain view on the console of the black Dodge Magnum. The State further argued
that appellant’s argument about his statement fell outside the scope of the hearing.

      The trial court made findings of fact and conclusions of law with the
following preface:

      During the aforementioned hearing, in addition to urging the
      suppression of physical evidence, the Defendant also urged
      suppression of certain oral statements, although such statements were
      NOT mentioned in the MOTION TO SUPPRESS. At the conclusion
      of said hearing, this Court denied the aforementioned MOTION TO
      SUPPRESS. This Court makes the following FINDINGS OF FACT
      AND CONCLUSIONS OF LAW with regard to BOTH the physical
      evidence seized and the oral statements made by the Defendant, while
      not conceding that the consideration of such statements was properly
      before the Court based on the aforementioned MOTION TO
      SUPPRESS:
      Findings of Fact

      1. The Defendant, Jason Michael Placide, was charged by indictment
      in the above styled and numbered cause with the felony offense of
      Possession of a Controlled Substance.
      2. Officers Joseph Little and Matthew Little of the Houston Police
      Department are credible and reliable witnesses who testified truthfully
      at the hearing regarding Defendant’s Motion To Suppress Evidence.
      3. On July 6, 2013, at approximately 4:00 a.m. a report was made to
      the Houston Police Department that three to four black males were
      standing in the area of a white truck and a black Dodge Magnum at
      8034 Antoine, Houston, Harris County, Texas, in possession of
      narcotics and weapons.
      4. On July 6, 2013, shortly after 4:00a.m., Officers Joseph Little and
      Matthew Little responded to the reported disturbance at 8034 Antoine,
      Houston, Harris County, Texas, involving three to four black males
      allegedly in possession of narcotics and weapons in the area of a white
      truck and a black Dodge Magnum.
      5. 8034 Antoine, Houston, Harris County, Texas, is in a high crime
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area known for narcotics, and the officers arrived on scene at
approximately 4:00 a.m., in the hours of darkness.
6. When the officers arrived at 8034 Antoine, Houston, Harris County,
Texas, they observed three black males in the area of a white truck,
and a black Dodge Magnum within three parking spaces of the white
truck, confirming several pieces of information from the report.
7. The officers briefly detained each of the three men, including the
Defendant, Jason Placide, in order to safely investigate and ensure the
continued presence of the suspects at the scene.
8. At the time the Defendant was detained, the scene of the
investigation was not yet secure, and the officers could not be certain
whether there were unsecured weapons in the area.
9. There was no significant show of force during the investigative
detention.
10. As part of the detention, the Defendant was frisked for weapons,
handcuffed, and placed in the back of a patrol car.
11. While conducting their brief investigation with the help of a third
HPD officer, Officers Joseph Little and Matthew Little looked into the
window of the black Dodge Magnum vehicle (with the aid of a 360
lumen flashlight) from outside the vehicle, and observed what they
both believed to be marijuana, based on their training and experience.
12. The Defendant admitted to officers that the black Dodge Magnum
was the vehicle he had been driving, and that he lived at the same
address where the vehicle was registered.
13. The Defendant was arrested after the discovery and recovery of
the marijuana, and after he was linked to the black Dodge Magnum
through his statements.
Conclusions of Law
1. The officer’s testimony established specific, articulable facts (the
confirmed details of the call, the nature of the high crime area, time of
night, and presence of the suspects in suspicious circumstances) and
reasonable inferences substantial enough to support reasonable
suspicion that the suspects had been engaged in criminal activity.
2. The investigative detention of the Defendant was lawful, in order to
ensure officer safety, maintain the status quo, and ensure the
continued presence of the Defendant during the course of a brief
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      investigation, taking into consideration the nature of the area, time of
      night, and verified details of the call. State v. Sheppard, 271 S.W.3d
      281,291 (Tex. Crim. App. 2008); Chambers v. State, 397 S.W.3d 777
      (Tex. App.—Houston [14th Dist.] 2013).
      3. The marijuana in the black Dodge Magnum was in plain view and
      immediately recognizable to the officers as contraband, and the
      officers involved viewed the marijuana from a location where they
      were legitimately and lawfully present.
      4. The officers involved had probable cause to search the black Dodge
      Magnum, and the seizure of the narcotics without a warrant was
      lawful under the automobile exception.
      5. Probable cause to arrest the Defendant did not exist prior to his
      statements linking him to the black Dodge Magnum.
      6. The officers used only a minimal amount of force required to
      investigate, maintain the status quo, and ensure officer safety.
      7. The statements of the Defendant in regards to his connection to the
      black Dodge Magnum were made during an investigative detention
      that had not evolved into custodial interrogation, and therefore are
      admissible pursuant to Article 38.22 of the Texas Code of Criminal
      Procedure.
                              STANDARD OF REVIEW

      We review a trial court’s denial of a motion to suppress for abuse of
discretion. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013); Thomas
v. State, 297 S.W.3d 458, 459 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).
We review the evidence in the light most favorable to the trial court’s ruling.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). The trial court is
the exclusive factfinder and judge of the credibility of the witnesses. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Turner v. State, 252 S.W.3d 571, 576
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). We afford almost total
deference to the trial court’s determination of historical facts supported by the
record, especially when the trial court’s findings are based on an evaluation of
credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
                                          6
App. 1997). We afford the same amount of deference to the trial court’s ruling on
mixed questions of law and fact if the resolution of these questions turns on an
evaluation of credibility and demeanor. Id. We review questions not turning on
credibility and demeanor de novo. Id. If the trial court’s decision is correct under
any theory of law applicable to the case, the decision will be sustained. Estrada v.
State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).

                             PRESERVATION OF ERROR

      In his first issue appellant argues his statement was the fruit of a Fourth
Amendment violation because the officers did not have reasonable suspicion to
detain him. The State argues appellant failed to preserve error with regard to the
denial of his motion to suppress his statement because appellant’s written motion
to suppress only sought to suppress the physical evidence recovered from the car.

      A motion to suppress is a specialized objection to the admissibility of
evidence and must be timely and sufficiently specific to inform the trial court of
the complaint. Johnson v. State, 171 S.W.3d 643, 647 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d). To preserve error for appellate review, an appellant must
“let the trial judge know what he wants, why he thinks himself entitled to it, and . .
. do so clearly enough for the judge to understand him at a time when the trial court
is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d
907, 909 (Tex. Crim. App. 1992).

      Appellant’s written motion specifically sought to suppress the physical
evidence recovered from the car, and vaguely sought suppression of “[a]ny other
matters that the Court finds should be suppressed upon hearing of this motion.”
During the oral hearing on appellant’s motion to suppress, appellant argued that his
statement should be suppressed because he was in custody at the time he made it
and officers did not inform him of his Miranda rights. We assume for purposes of
                                          7
the analysis below that appellant’s argument at the hearing regarding suppression
of his statement sufficed to preserved error.

      Appellant also argues on appeal that the officers lacked reasonable suspicion
to detain him and that his statement was an impermissible fruit of that Fourth
Amendment violation. Appellant did not bring such a contention to the attention of
the trial court either in his written motion to suppress or during the oral hearing; he
did not ask the trial court to decide the issue of reasonable suspicion and issue a
ruling. His motion failed to preserve his contention on appeal because it did not
alert the trial court that he wished the issue to be decided. See Tex. R. App. P.
33.1(a)(1) (requiring, in order to preserve error, sufficient specificity to make trial
court aware of complaint and ruling by court on complaint); Broxton v. State, 909
S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that issue on appeal must
comport with complaint made at trial).

      On appeal, appellant argues the officers failed to corroborate the facts of the
dispatch that indicated the occurrence of criminal activity. Appellant did not make
this argument to the trial court; instead, he argued that the search of the vehicle
was improper because (1) the officers could not have seen the contraband in plain
view, and (2) the search was not conducted as a proper inventory search after
arrest. We conclude that appellant did not preserve this contention for appeal
because neither his written motion nor his arguments at the hearing alerted the trial
court to a contention that the officers lacked reasonable suspicion justifying an
investigation. Additionally, appellant did not secure a ruling on such a complaint.
See Tex. R. App. P. 33.1(a)(1); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim.
App. 2005) (concluding that when appellant failed to object to admission of
statement at motion-to-suppress hearing on ground for suppression raised on
appeal, but instead, argued a different basis for suppression, issue was not

                                          8
preserved); Mbugua v. State, 312 S.W.3d 657, 666–67 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d) (holding that appellant did not preserve his complaint
regarding admissibility of his custodial statement because complaint on appeal did
not comport with grounds argued in motion to suppress). We overrule appellant’s
first issue.

                                      CUSTODY

       In his second issue, appellant argues his statement concerning ownership of
the car was the product of a custodial interrogation. Appellant argues the statement
was inadmissible because he did not receive warnings under Miranda.

       The Fourth Amendment and article 38.22 of the Texas Code of Criminal
Procedure allow admission of noncustodial statements. See, e.g., Miranda, 384
U.S. at 444; Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Thus,
to determine whether appellant’s statement about ownership of the car was
admissible, we must first determine the point at which officers placed appellant in
custody.

       A police officer may stop and briefly detain a person reasonably suspected
of criminal activity in the absence of probable cause to arrest the person. Terry v.
Ohio, 392 U.S. 1, 22 (1968). The officer may use such force as is reasonably
necessary to effect the goal of the stop: investigation, maintenance of the status
quo, or officer safety. Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App.),
cert. denied, 522 U.S. 894 (1997). There is no bright-line test providing that mere
handcuffing is always the equivalent of an arrest. Id. at 118. Instead, when
evaluating whether an investigative detention is unreasonable, “common sense and
ordinary human experience must govern over rigid criteria.” Id.

       A police officer’s interaction with a citizen can be classified as an encounter,


                                           9
detention, or arrest. See State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim.
App. 2011). “A person is arrested when he has been actually placed under restraint
or taken into custody by an officer or person executing a warrant of arrest, or by an
officer or person arresting without a warrant.” Tex. Code. Crim. Proc. art. 15.22;
Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—Houston [14th Dist.] 2007, no
pet.). But this restraint-of-liberty standard is not adequate when distinguishing
between an arrest and a detention because it is a characteristic common to both.
Mount, 217 S.W.3d at 724. Rather, the distinction is a matter of degree depending
on the length of the detention, the amount of force employed, and whether the
officer actually conducted an investigation. Id.; Woods v. State, 970 S.W.2d 770,
775 (Tex. App.—Austin 1998, pet. ref’d).

       A court must determine reasonableness from the perspective of a reasonable
officer at the scene, making allowances for the fact that officers must often make
quick decisions under tense, uncertain, and rapidly changing circumstances.
Rhodes, 945 S.W.2d at 118. Relevant factors in the reasonableness inquiry are the
nature of the crime under investigation, the degree of suspicion, the location of the
stop, the time of day, the reaction of the suspect, and whether the officer actually
conducted an investigation after seizing the suspect. Mount, 217 S.W.3d at 725;
Chambers v. State, 397 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2013,
pet. ref’d).

       The trial court found that “[t]he investigative detention of the Defendant was
lawful, in order to ensure officer safety, maintain the status quo, and ensure the
continued presence of the Defendant during the course of a brief investigation,
taking into consideration the nature of the area, time of night, and verified details
of the call.”

       During the suppression hearing, Little testified that he received a dispatch

                                         10
describing three or four African-American males using drugs and loading weapons
near a white pickup truck and a black Dodge Magnum at 8034 Antoine. When the
officers arrived at 8034 Antoine, they observed three African-American males
standing around a white pickup truck with a black Dodge Magnum parked nearby.
For officer safety the officers patted down the three men, handcuffed them, and
placed them in separate patrol cars. Little testified that although they found no
weapons during the pat-down search the handcuffs were necessary for the officers’
safety, and detention in the patrol cars was necessary to prevent the suspects from
fleeing. The officers then shined a flashlight into the white pickup truck and the
black Dodge Magnum. In response to Little’s question, appellant admitted the
Dodge Magnum was his vehicle.

      Although Little detained appellant in the patrol car with handcuffs, the
amount of force was reasonable under the circumstances. The incident took place
at 4:00 a.m. in a parking lot in a high-crime area where Little had previously
responded to narcotics and weapons calls. Little conducted a brief investigation in
which he discovered narcotics in a car appellant admitted to be his. The trial
court’s finding that Little did not use more force than reasonably necessary to
protect himself and those around him during his brief investigation is supported by
the evidence at the hearing. See Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim.
App. 2002) (handcuffing and escorting appellant to patrol car did not transform
investigative detention into arrest where officer had reasonable concern for safety
because he was investigating crime involving a weapon).

      Appellant argues the officers deprived him of his freedom to a degree
comparable to a formal arrest. In support of his argument, appellant cites Ramirez
v. State, 105 S.W.3d 730, 740 (Tex. App.—Austin 2003, no pet.), and Alford v.
State, 22 S.W.3d 669, 672 (Tex. App.—Fort Worth 2000, pet. ref’d). Ramirez and

                                        11
Alford are distinguishable.

      In Ramirez, an officer who arrived at Ramirez’s home in response to a
neighbor’s complaint noticed marijuana paraphernalia, marijuana residue, and the
odor of marijuana as Ramirez stepped out of the garage and closed the door behind
him. 105 S.W.3d at 735. A second individual, Reynosa, exited the garage and left
the door partially open. Id. at 736. The officer called for back-up because he
recognized Reynosa as a suspect in a shooting and became concerned that Reynosa
or Ramirez may have had weapons. Id. Reynosa was subjected to a pat down,
which revealed a knife and a plastic bag containing marijuana. Id. Reynosa was
arrested and moved away from the garage. Id. Ramirez was also subjected to a pat
down; while conducting the pat down, the officer told Ramirez he was being
detained and placed him in handcuffs. Id. The officer informed Ramirez that he
could see drug paraphernalia and drug residue in the garage and asked, “Is there
anything else I’m going to find in there that’s illegal, any more marijuana?” Id.
Ramirez replied, “Well, I guess there’s some pot in the red cooler.” Id.

      The Austin Court of Appeals determined that Ramirez was in custody at the
time the officer asked whether he was going to find anything else in the garage
because a reasonable person in Ramirez’s position would likely believe his
freedom of movement had been restrained to the degree associated with an arrest.
Id. at 740. The court determined that by handcuffing Ramirez, telling him he was
being detained, and informing him that they had seen illegal items in the garage, a
reasonable person would have thought he was under arrest. Id.

      The facts in Ramirez are distinguishable because Ramirez was near his
home; had been told he was being detained; and knew the officers had seen illegal
contraband in his garage. In contrast, the officers in this case had a report that there
were weapons being loaded and the men were in a parking lot in a high crime area

                                          12
after dark. In Ramirez, unlike this case, the officers did not conduct an
investigation after detaining Ramirez.

       In Alford, the appellant was seen driving on an interstate highway passing
cars and weaving in and out of lanes. Id. at 671. A police officer activated his siren
after following Alford’s truck for a distance; Alford responded by turning off the
interstate highway and into the back of a mobile home park. Id. When Alford did
not heed the officer’s request to get out of the truck, the officer pulled Alford out
of the truck; placed him on the ground; handcuffed him; and called for back-up. Id.
When back-up arrived six or seven minutes later, Alford was still in handcuffs and
the arriving officer asked whether he had been drinking. Id. at 672. Alford
admitted drinking six beers. Id.

       The Fort Worth Court of Appeals held that Alford was in custody at the time
he admitted to drinking six beers. The court emphasized that by removing Alford
from the vehicle, placing him on the ground, handcuffing him, and holding him for
back-up officers, the circumstances were elevated beyond those of an ordinary
traffic stop. Id. at 673.

       Alford is distinguishable because Alford was physically removed from his
truck, placed on the ground, and handcuffed following a traffic stop. Id. at 671.
Alford then remained handcuffed for six or seven minutes until another officer
arrived on the scene who questioned him about his alcohol consumption. Id. at
671–72. In Alford, as in Ramirez, no investigation took place, and Alford was
“subjected to treatment that resulted in his being in custody for practical purposes.”
Id. at 673.

       The facts here are closer to Balentine v. State, 71 S.W.3d at 767. Balentine
was placed in handcuffs and escorted to a patrol car while being questioned.
Before placing Balentine in the patrol car, an officer frisked him and did not find
                                         13
any weapons. Id. Despite finding no weapons, the officer handcuffed Balentine,
placed him in a patrol car, and drove Balentine to a friend’s home. Id. Before being
released Balentine was patted down a second time and handcuffed for officer
safety despite the fact that the officer did not find any weapons. Id. The Court of
Criminal Appeals concluded that Balentine’s detention was not an arrest based on
the circumstances surrounding the investigation. Id. at 771. The court determined
that the detention was temporary and that the handcuffs and placement in the patrol
car did not elevate the temporary detention to an arrest because the officer
encountered Balentine in an area where gunfire had been reported; Balentine
exhibited suspicious behavior; and the restraint was necessary for officer safety
while investigating Balentine’s possible involvement in gunfire. Id. at 771.

      We conclude that Little’s investigative detention of appellant was reasonable
and justified under the circumstances and did not constitute an unlawful arrest. The
trial court did not abuse its discretion in denying the motion to suppress appellant’s
oral statement. We overrule appellant’s second issue.

      We affirm the trial court’s judgment.




                                       /s/    William J. Boyce
                                              Justice



Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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