Affirmed and Memorandum Opinion filed July 25, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00174-CR

                        ROBERT CHARLES, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 4
                           Harris County, Texas
                       Trial Court Cause No. 2019424

                       MEMORANDUM OPINION

      In this appeal from a conviction for possession of marijuana, the sole question
presented is whether the trial court abused its discretion by denying a motion to
suppress. In ruling on that motion, the trial court determined that appellant’s
interaction with police began as a consensual encounter rather than as an
investigative detention. Because the record supports a finding that appellant was free
to leave after he was first approached by police, we conclude that the trial court did
not abuse its discretion by ruling that the interaction was a consensual encounter.
We therefore affirm the trial court’s judgment.

                                       BACKGROUND

       After being arrested for possession of marijuana, appellant filed a motion to
suppress, arguing that the marijuana was discovered as the result of an unlawful
search and seizure. Testimony at the hearing on the motion offered conflicting
accounts of the events leading up to the arrest, diverging primarily on the method by
which police had approached appellant.

       The State’s Version. Appellant’s arresting officer testified that he and his
partner were working an extra job at an apartment complex to help enforce the
complex’s criminal trespass affidavit.1 A tenant flagged down the officers to
complain of heavy foot traffic stemming from two specific apartment buildings.

       Upon arriving at the area where the tenant had complained, the officer
observed two men, appellant and his friend, exiting a building and approaching a
legally parked minivan in the parking lot. Appellant entered the front passenger’s
side of the van, while his friend took the driver’s side and started the engine.

       The arresting officer walked to the passenger’s side, flashing appellant with
his flashlight to alert him to his presence. The officer’s partner approached the
driver’s side of the van. Appellant remained seated in the passenger seat with the
door ajar as the officer approached. The officer then identified himself and explained
that he and his partner were following up on a tenant’s complaint.

       At some point during this initial interaction, the officer smelled marijuana and
told appellant that he was going to conduct a pat down because of the odor. Appellant

       1
          A trespass affidavit is a document filed with the police by a property owner that authorizes
officers to investigate and arrest individuals on the property for criminal trespass.

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then stepped out of the van and consented to a search. During this pat down, the
officer found a bag of marijuana in appellant’s pocket.

      The Defense’s Version. Appellant and his friend contradicted much of the
arresting officer’s testimony in their recollection of the incident. The friend testified
that appellant left the apartment building alone and walked over to the van, where
the friend had been waiting in the driver’s seat with the engine off. The friend
claimed that the doors and windows of the van were closed by the time the officers
approached with their flashlights, and that the arresting officer knocked on the
passenger’s side window, told appellant to step out of the van, and attempted to open
the door from the outside. He further testified that the officer’s partner was standing
behind the van, preventing him from backing out. The friend also believed that he
was not free at any point to leave or end the interaction.

      Appellant reiterated much of his friend’s testimony. He also alleged that the
officer never told him that he smelled marijuana. Instead, he contends the officer
asked what he was doing there, demanded he step out of the van, and accused him
of criminal trespassing. Appellant admitted that he consented to the search. He
claimed that the officer’s partner was originally behind the van but conceded that
the partner moved up to the driver’s side window at some point during the
interaction.

      The Trial Court’s Ruling. At the end of the hearing, appellant argued that the
initial interaction, everything up until the moment that the officer smelled the
marijuana, was an investigative detention unsupported by reasonable suspicion. The
trial court disagreed, finding that the interaction was a consensual encounter. The
court explained its reasoning as follows:

      I think the keyword here is, you know, free to leave. And the issue is—
      and the one that you just read and the main issue is that the officers

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      positioned their vehicle to block the person in; and in this encounter,
      that didn’t happen. Now, by the testimony of the Defense’s witnesses,
      saying that the officer stayed in the back to block him in while the other
      officer approached the side, the passenger’s side, and pulled him out,
      through my experience in 30 years of doing the same thing, that never
      would an officer stay in the back while one officer approached one side.
      For safety reasons, he would be all over the driver’s side of the vehicle,
      just for the other officer’s safety. And, therefore, I don’t think that
      that—the witness’ testimony in regards to that is credible, and I think—
      I do believe that it was an encounter; it was not an investigation; and
      once he did smell the marijuana, it did turn into a police investigation
      and he had the right, then, to do a pat down and search.
      After the trial court denied the motion to suppress, appellant pleaded guilty to
possession of marijuana while preserving his right to appeal.

                                     ANALYSIS

      There are three distinct categories of interactions between police officers and
citizens: (1) consensual encounters, (2) investigative detentions, and (3) arrests.
State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). In determining which
category an interaction falls into, courts look at the totality of the circumstances.
Gurrola v. State, 877 S.W.2d 300, 302–03 (Tex. Crim. App. 1994). An encounter is
a consensual interaction which the citizen is free to terminate at any time. Perez, 85
S.W.3d at 819. Unlike an investigative detention and an arrest, an encounter is not
considered a seizure that would trigger Fourth Amendment protection. Id. An
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. Id.

      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. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). When the court is
conducting its determination of whether the interaction constituted an encounter or


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a detention, the court focuses on whether the officer conveyed a message that
compliance with the officer’s request was required. Id. 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. In determining what factors
may contribute to what a reasonable person might have perceived during a given
interaction with an officer, the United States Supreme Court opinion in Mendenhall
is instructive:

       Examples of circumstances that might indicate a seizure . . . would be
       the threatening presence of several officers, the display of a weapon by
       an officer, some physical touching of the person of the citizen, or the
       use of language or tone of voice indicating that compliance with the
       officer’s request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 554 (1980).

       To suppress evidence on an alleged Fourth Amendment violation, the
defendant bears the initial burden of producing evidence that rebuts the presumption
of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).
A defendant satisfies this burden by establishing that a search or seizure occurred
without a warrant. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002).
Once the defendant has made this showing, the burden of proof shifts to the State
where it is required to establish that the search or seizure was conducted pursuant to
a warrant or was reasonable. Id.

       In reviewing a trial court’s ruling on a motion to suppress, we view all of 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). When the trial court does not make explicit
findings of fact, we infer the necessary factual findings that support the trial court’s
ruling if the record evidence (viewed in the light most favorable to the ruling)
supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim.


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App. 2006). Thus, we afford almost total deference to a trial court’s determination
of the historical facts that the record supports, especially when the court’s implicit
fact finding is based on an evaluation of credibility and demeanor. State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000). 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).

      Appellant had the initial burden of proving that a seizure occurred when the
police approached him in the parking lot, before the odor of marijuana was even
detected. See State v. Woodard, 341 S.W.3d 404, 413 (Tex. Crim. App. 2011).
Appellant produced evidence that his interaction was an investigative detention, but
the trial court disagreed with that conclusion, and the evidence supports the trial
court’s finding that the interaction was just a consensual encounter.

      When viewed in the light most favorable to the trial court’s decision, the
evidence showed that the police approached appellant on foot to ask questions
regarding a tip. The arresting officer testified that he walked to the passenger’s side
door, using his flashlight to alert appellant to his presence. The officer’s partner
walked to the driver’s door. Neither officer blocked the vehicle from leaving. The
officers’ presence was not threatening; there was no evidence that they used a loud,
authoritative voice; and they did not brandish their weapons or physically touch
appellant. Based on this record, the trial court could have reasonably concluded that
a reasonable person in appellant’s situation would have felt free either to speak with
police or to terminate the interaction. See Jordan v. State, 394 S.W.3d 58, 63 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d) (holding that an interaction where two
officers approached the defendant in a stationary car was a consensual encounter).



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      Appellant counters that the officer’s use of a flashlight was evidence of a
detention, comparing the facts before us to those in Johnson v. State, 414 S.W.3d
184 (Tex. Crim. App. 2013). However, the interaction in Johnson involved patrol
car spotlights, and there were other circumstances establishing a Fourth Amendment
detention. The officer in Johnson partially blocked the defendant’s car, used a loud
authoritative voice, demanded identification, and may have even brandished his
service pistol. Id. at 189, 193. Those circumstances are absent in this case. The
flashlight here was used to alert appellant to the officer’s presence. The mere use of
a flashlight does not necessarily indicate that a reasonable person would believe that
he was being detained. See Garcia-Cantu, 253 S.W.3d at 245 n.43 (“Thus, the use
of a spotlight, by itself, is not a circumstance that necessarily converts a consensual
encounter into a Fourth Amendment detention.”); see also Neale v. State, No. 14-
15-00553-CR, — S.W.3d —, 2017 WL 2384692, at *4 (Tex. App.—Houston [14th
Dist.] June 1, 2017, no pet.) (game warden’s use of flashlight to alert boater to her
presence not sufficient to create an investigatory detention).

      Appellant also argues that his interaction was a detention because the arresting
officer testified that he approached appellant for the purpose of investigating him “to
a degree.” But, as the Court of Criminal Appeals recognized in Garcia-Cantu, “an
officer’s subjective intent ‘to investigate’ is relevant only to the extent to which such
an intent is communicated to the citizen by means of an authoritative voice,
commanding demeanor, or other objective indicia of official authority.” Id. at 244
n.41. Considering the record in the light most favorable to the trial court’s findings,
there is no evidence that the officer conveyed to appellant that he specifically was
under investigation; rather, there was only evidence that the officer approached
appellant to ask him questions. See Crain, 315 S.W.3d at 49 (“An encounter takes
place when an officer approaches a citizen in a public place to ask questions, and the


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citizen is willing to listen and voluntarily answers.”); Woodard, 341 S.W.3d at 412–
13 (holding that an interaction was a consensual encounter even though the officer
“stopped” the citizen to make an inquiry about an accident).

      Looking at the interaction between the police and appellant in the light most
favorable to the trial court’s ruling, we have a clear picture of the encounter. The
police approached the car in a way that did not block it from backing out of the
parking spot, used their flashlights to alert the car’s occupants to their presence, and
initiated a conversation with the passenger of the vehicle who was sitting with the
door open. These circumstances would not have led the reasonable person to believe
that he was not free to end the interaction. Therefore, the trial court did not abuse its
discretion by concluding that the interaction was a consensual encounter and by
denying appellant’s motion to suppress.

                                   CONCLUSION

      The judgment of the trial court is affirmed.




                                         /s/       Tracy Christopher
                                                   Justice



Panel consists of Justices Christopher, Busby, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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