Affirmed and Memorandum Opinion filed January 9, 2020.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00575-CR
                               NO. 14-18-00576-CR

            ADRIENNE KLEIN AND PETER ORTIZ, Appellants
                                          V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 405th District Court
                           Galveston County, Texas
               Trial Court Cause Nos. 17-CR-1886 & 17-CR-1887

                           MEMORANDUM OPINION

      In these consolidated cases, both of which stem from prosecutions for
possession of a controlled substance, appellants Adrienne Klein and Peter Ortiz
challenge the trial court’s ruling on their joint motion to suppress. Finding no abuse
of discretion, we affirm the trial court’s judgments.
                                   BACKGROUND

       While on patrol at roughly 3:30 in the morning, an officer saw a truck parked
at a storage facility in an area of town where burglaries had recently occurred. The
officer suspected that another burglary may be afoot because vehicles are not
normally parked at that storage facility at such a late hour, even though the storage
facility allows for 24-hour access. The officer pulled in to the storage facility, which
was ungated, and investigated the scene.

       The officer did not find any obvious signs of criminal activity. The truck was
unoccupied and legally parked, and there was no evidence of shattered glass or
broken doors. But because the officer could not discern what was happening inside
of the storage facility, which required an access key at that time, the officer decided
to wait outside until someone returned to the truck. The officer parked his patrol car
along the side of the building, where it could not be seen from the front doors. The
officer then exited the patrol car and walked to the corner of the building, where he
waited.

       After twenty or thirty minutes, Klein and Ortiz exited the storage facility with
luggage in tow. They were both startled by the officer, who introduced himself and
asked if they had a storage unit inside. They responded that they did have a storage
unit (which was later confirmed to be true) and they said that they were moving.

       The officer had received specialized training to recognize signs of intoxication
from both alcohol and drugs, and he drew on this training within ten seconds of
meeting Klein and Ortiz, when he came to suspect that they were under the influence
of a stimulant. The officer noted that their pupils were dilated, even though they
were under very bright fluorescent lights. Their hands were also trembling, and Klein
in particular could not stand still.


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      The officer asked to see their identification. Klein said that her license was in
her purse, which was inside of the truck. She had her license number memorized,
which she gave to the officer instead. Ortiz gave the officer his name and date of
birth. The officer radioed this information to his dispatcher and continued to evaluate
Klein for possible signs of public intoxication.

      The officer asked Klein to close her eyes, and she complied. With her eyes
closed, the officer noticed that Klein was exhibiting eyelid tremors, which can be
caused by a stimulant. The officer then asked Klein to open her eyes, and he shined
a doctor’s light into them. The officer saw that her pupils were still dilated and that
there was very little constriction, which is another sign that she was under the
influence of a stimulant. The officer asked Klein about her history of drug use, and
she responded that she had used methamphetamine as recently as the day before.

      During this evaluation of Klein, the dispatcher informed the officer that there
was an outstanding warrant for Ortiz’s arrest. The officer received this information
over an earpiece, which only he could hear. Without acting on Ortiz’s warrant, the
officer asked for Klein to retrieve her license in order to verify her identity and to
confirm that she was not concealing her own warrants under a different name. Klein
grabbed her purse out of the passenger’s side of the truck and returned to the loading
dock. She left the passenger door open.

      Klein’s license matched the information she had previously given, and she
consented to the search of her purse, which contained nothing illegal. The officer
then informed Ortiz of the arrest warrant, placed him in handcuffs, and sat him down
on the loading dock.

      The officer asked Klein, who was not under arrest, if the truck contained
anything illegal, and her evasive answers led the officer to believe that it did. Klein
claimed that the truck was hers, but she said that she did not know what was in the
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truck because other people had been using it. She also indicated that she had seen a
meth pipe in the truck, but she claimed that it belonged to someone else.

      Klein consented to a search of the truck, and when the officer approached the
passenger side, he saw a small plastic bag in the door handle containing
methamphetamine. The officer placed Klein under arrest after finding this
contraband. Following Klein’s arrest, the officer found another bag containing
methamphetamine in the area by the loading dock where Ortiz had been sitting in
handcuffs.

      Klein and Ortiz were each charged with possession of methamphetamine.
They then moved to suppress that evidence on Fourth Amendment grounds. A joint
hearing was held, and the only testifying witness was the officer.

      At the end of the hearing, Klein argued that the motion should be granted
because her consent to search the truck was tainted by an illegal detention,
unsupported by reasonable suspicion. Ortiz reiterated much of the same points as
Klein, without ever acknowledging that he had an outstanding warrant for his arrest.

      The trial court found that Klein’s interaction with the officer began as a
consensual encounter and that it progressed into an investigative detention after the
officer developed reasonable suspicion that she was committing the offense of public
intoxication. The trial court further found that Ortiz was lawfully arrested pursuant
to a warrant. Based on these findings, the trial court denied the motion to suppress.

      Klein and Ortiz then pleaded guilty to the charged offenses. The trial court
deferred an adjudication of guilt as to Klein, sentenced Ortiz to fifteen months’
imprisonment, and certified that each defendant had a right to appeal the adverse
decision on the motion to suppress. They now challenge that ruling here.



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                                     ANALYSIS

I.    Burden of Proof

      When, as here, a defendant alleges that evidence was obtained in violation of
the Fourth Amendment, the defendant bears the initial burden of rebutting the
presumption of proper police conduct. See Ford v. State, 158 S.W.3d 488, 492 (Tex.
Crim. App. 2005). The defendant can satisfy this burden by producing some
evidence that a search or seizure occurred without a warrant. Id. Once the defendant
has made this initial showing, the burden of proof shifts to the State, which must
then establish that there actually was a warrant or that the search or seizure was
reasonable. Id.

II.   Ortiz was lawfully arrested pursuant to a warrant.

      At the hearing on the motion to suppress, the prosecutor stipulated that there
was “a warrantless arrest” (in the singular, not the plural). But there were two
defendants present at the joint hearing, and the prosecutor did not identify which of
the two defendants was arrested without a warrant (or whether both of them were
arrested without a warrant). Even if we were to assume that both defendants
successfully shifted the burden of proof with the prosecutor’s stipulation, the officer
testified without objection that Ortiz had a warrant for his arrest and that Ortiz was
actually arrested pursuant to that warrant. The trial court credited this portion of the
officer’s testimony, and we must do the same under our standard of review because
the officer’s testimony supports the trial court’s ruling. See St. George v. State, 237
S.W.3d 720, 725 (Tex. Crim. App. 2007) (“Trial courts are given almost complete
deference in determining historical facts.”); see also Tex. Code Crim. Proc. art.
15.26 (providing that an officer may execute an arrest warrant even if the officer
does not have the warrant in his physical possession at the time of the arrest).
Accordingly, we cannot say that Ortiz’s arrest violated the Fourth Amendment. See
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Haley v. State, 480 S.W.2d 644, 645 (Tex. Crim. App. 1972) (holding that the
defendant had no basis to complain about the fruits of his arrest after he was lawfully
arrested pursuant to an outstanding warrant).

III.   Klein’s interaction with the officer began as a consensual encounter.

       As for Klein, there was no evidence that she had any outstanding warrants,
which means that the State had the burden of showing that her warrantless arrest was
reasonable. The primary dispute in the trial court and on appeal is whether the State
satisfied that burden.

       In the trial court, the State argued that the arrest was reasonable because the
officer discovered methamphetamine in Klein’s truck after Klein consented to a
search of the truck. See Welch v. State, 93 S.W.3d 50, 52 (Tex. Crim. App. 2002)
(“Searches conducted without a warrant are unreasonable per se under the Fourth
Amendment, subject only to a few specifically established and well-delineated
exceptions. One recognized exception is when a voluntary consent to search has
been given.”). Klein responded that her consent was invalid because it was the
product of an illegal detention. The trial court resolved this dispute when it
determined that Klein’s initial interaction with the officer was a consensual
encounter that progressed into a lawful detention. Klein challenges that ruling on
appeal, arguing in two parts that the interaction began as an investigative detention
(instead of a consensual encounter) and that the detention was unsupported by
reasonable suspicion.

       Because the State prevailed in the trial court, the State is afforded the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence. See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.
App. 2008). But in deciding whether that evidence amounts to a consensual
encounter or an investigative detention under the Fourth Amendment, our review is
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de novo because that issue involves an application of legal principles to a specific
set of facts. Id.

       Consensual encounters between officers and citizens do not implicate Fourth
Amendment protections. See State v. Woodard, 341 S.W.3d 404, 411 (Tex. Crim.
App. 2011). An officer is free to stop and question a fellow citizen without any
justification needed. Id. Likewise, the citizen is free to ignore the officer’s question
and terminate the encounter. Id. Even when the officer does not communicate to the
citizen that the request for information may be ignored, the citizen’s acquiescence
to the officer’s request does not cause the encounter to lose its consensual nature. Id.

       Courts must take into account the totality of the circumstances when deciding
whether a reasonable person would have felt free to ignore the officer’s request or
to terminate the consensual encounter. See Wade v. State, 422 S.W.3d 661, 667 (Tex.
Crim. App. 2013). If ignoring the request or terminating the encounter is an option—
even an “uncomfortable” option—then no Fourth Amendment seizure has occurred.
Id. at 667–68. But if an officer through force or show of authority succeeds in
restraining a citizen in her liberty, the encounter is no longer consensual. Id. at 668.
It is instead a Fourth Amendment seizure, subject to Fourth Amendment scrutiny.
Id.

       After considering the totality of the circumstances, we conclude that a
reasonable person in Klein’s shoes would have felt free to ignore the officer. The
evidence showed that the officer was on foot and in a public place. He did not have
his gun drawn on Klein. Nor did he put Klein under a spotlight, or otherwise
command that Klein answer his questions. Also, because the officer parked his patrol
car along the side of the storage facility, away from Klein’s truck, Klein could have
ignored the officer and left the storage facility in her truck. Exercising that option



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may have been uncomfortable for Klein, but she could have done so completely
unimpeded.

      A portion of the interaction was recorded on video, and the video showed that
the officer had engaged Klein “in a friendly, conversational manner,” to borrow the
trial court’s own words. There was no display of authority other than the officer’s
uniform, which is insufficient to establish that a detention occurred, absent some
additional showing that the officer’s authority could not be ignored, avoided, or
terminated. Because there was no such showing, the record supports the trial court’s
finding that Klein’s interaction with the officer began as just a consensual encounter.

      Klein counters that she was not free to leave because she asked the officer if
she could briefly return to her storage unit to prevent an automatic lockout, and the
officer told her to “hold off on that for just a minute.” This argument may
demonstrate that a detention occurred at some point, but it does not demonstrate that
the officer detained Klein “at the inception of their interaction,” which is how Klein
has framed her appellate complaint.

      The officer testified that the interaction began when he introduced himself and
asked Klein if she had a unit in the storage facility. There was no evidence that the
interaction began with Klein requesting to return to her storage unit and with the
officer refusing that request. The video captured neither that exchange nor the initial
moments of the interaction. On this record, where the only evidence of the initial
moments is the testimony of the officer, we must conclude that the interaction began
as a consensual encounter, and that it later progressed into an investigative detention,
as we explain more fully below.

IV.   Klein’s subsequent detention was supported by reasonable suspicion.

      The officer testified that his interaction with Klein evolved from a consensual
encounter into a detention for possible public intoxication. The trial court agreed
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with that assessment, and found that Klein had been lawfully detained. Klein
challenges that finding, arguing that the detention lacked reasonable suspicion of
public intoxication.

      An officer may stop and briefly detain a person for investigative purposes on
less information than is constitutionally required for probable cause to arrest. See
Foster v. State, 326 S.W.3d 609, 613 (Tex. Crim. App. 2010). But these investigative
detentions must still be supported by reasonable suspicion. See Castro v. State, 227
S.W.3d 737, 741 (Tex. Crim. App. 2007). Reasonable suspicion exists if an officer
has specific, articulable facts that, when combined with rational inferences from
those facts, would lead the officer to reasonably conclude that a particular person
actually is, has been, or soon will be engaged in criminal activity. Id. A
determination of reasonable suspicion is made by considering the totality of the
circumstances, giving almost total deference to the trial court’s determination of
historical facts and reviewing de novo the trial court’s application of the law to those
facts not turning on an evaluation of credibility and demeanor. Id.

      To support the detention in this case, the officer needed reasonable suspicion
that Klein was “appear[ing] in a public place while intoxicated to the degree that
[she] may endanger [herself] or another.” See Tex. Penal Code § 49.02(a) (defining
the offense of public intoxication). The storage facility constitutes a “public place,”
because it is a “place to which the public or a substantial group of the public has
access.” Id. § 1.07(a)(40). And the evidence established that the officer had specific,
articulable facts to believe that Klein was intoxicated in that public place. In
particular, Klein’s eyes were dilated, despite being under bright lights. She was
exhibiting eyelid tremors. Her hands were jittery, and she could not remain still.
According to the officer, who had experience dealing with substance abusers, all of
these symptoms were consistent with being under the influence of a stimulant.

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      Klein counters that the officer lacked reasonable suspicion to believe that she
presented a danger to herself or to others because she did not smell of alcohol, she
was not unsteady on her feet, and she did not leave her truck running, all of which
are factors that other courts have considered in cases involving public intoxication.
But the public intoxication statute is not limited to intoxication by alcohol; it can
also apply to intoxication by drugs, and Klein admitted that she had recently
consumed methamphetamine. Even though Klein represented that her consumption
had occurred the day before, the officer could have reasonably determined that the
consumption was even more recent, based on her physical symptoms. See York v.
State, 342 S.W.3d 528, 537 (Tex. Crim. App. 2011) (“Although Officer Johnson did
not smell alcohol as he approached the car, that fact did not cause reasonable
suspicion to dissipate, in part because appellant could still have been intoxicated by
drugs.”). And given Klein’s proximity to her truck, her statement about moving, and
her possession of so much luggage, the officer could have reasonably determined
that Klein may be driving (not walking) to her next destination—especially after
Ortiz had been arrested and there was no other person available to transport her and
her belongings. The officer could have likewise determined that if Klein drove on
the nearby highway in her current state of intoxication, she may pose a threat to
herself or to others. Id. (“Or he might have returned to the road, where he would
pose a threat to others who were traveling. It would be reasonable to suspect that
appellant posed a danger to himself or others.”); see also State v. Martinez, 569
S.W.3d 621, 628 (Tex. Crim. App. 2019) (holding that the danger element is
satisfied if there is evidence that the defendant rendered herself or others subject to
“potential danger”); Harper v. State, 217 S.W.3d 672, 675–76 (Tex. App.—
Amarillo 2007, no pet.) (holding in a prosecution for possession of
methamphetamine that an officer could reasonably suspect that the defendant was
committing, or would soon commit, the offense of public intoxication, where the
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officer found the defendant behind the wheel in a parking lot “in a groggy or ‘out of
it’ state,” even though the defendant had already been evaluated by EMS and was
found to not be in any sort of medical distress).

      We need not determine whether, on this record, the evidence would be
sufficient to support a determination of guilt for public intoxication, an offense for
which Klein was neither arrested nor charged. Instead, we need only determine
whether the officer had specific, articulable facts, combined with the rational
inferences from those facts, that would permit the reasonable suspicion that Klein
actually was, had been, or soon would be committing the offense of public
intoxication. After considering all of the evidence and the totality of the
circumstances, we conclude that the officer could have formed that reasonable
suspicion. Because that reasonable suspicion supported the officer’s investigative
detention of Klein, we further conclude that the consent given by Klein to search her
truck was not tainted, and that the discovery of drugs and subsequent arrest of Klein
were lawful.

                                  CONCLUSION

      The trial court’s judgments are affirmed.




                                        /s/    Tracy Christopher
                                               Justice


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




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