Opinion filed April 17, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-12-00145-CR
                                   __________

                     THE STATE OF TEXAS, Appellant
                                        V.
                    ROBERT MENDOZA, JR., Appellee



                      On Appeal from the 35th District Court
                               Brown County, Texas
                          Trial Court Cause No. CR21615



                      MEMORANDUM OPINION
       Appellee, Robert Mendoza, Jr., was charged with the offense of possession
of methamphetamine, with intent to deliver, in an amount of four grams or more
but less than 200 grams. Mendoza filed a pretrial motion to suppress the evidence
in which he asserted that the officers found the methamphetamine as a result of his
illegal detention. The trial court granted Mendoza’s motion. The State has filed
this interlocutory appeal from the trial court’s order. In its sole issue on appeal, the
State asserts that the trial court erred when it granted Mendoza’s motion to
suppress. We reverse and remand.
      The evidence at the suppression hearing showed that, on the morning of
June 18, 2011, Brownwood Police Officer Walker Willey was dispatched in
response to an anonymous caller’s report to police that a suspicious vehicle was
parked in the parking lot of a strip mall in Brownwood before businesses in the
mall had opened for the day. The caller stated that the car had been there since
before 8:30 a.m. and that there were occupants in the car. The caller provided the
police with a description of the car and the license plate number for the car.
      Officer Willey was in a marked patrol vehicle. He arrived at the strip mall at
9:27 a.m. to perform a welfare check on the occupants of the car. Officer Willey
saw a parked Cadillac in a parking space in front of the Western Union store. The
Cadillac matched the description and had the license plate number that the
anonymous caller had provided. Officer Willey said that the parking lot was a
public parking lot.
      Officer Willey parked his patrol car in a parking space that was behind the
Cadillac. He did not block the Cadillac with his car. He said that there was at least
a car length between the two vehicles and that there was room for traffic to pass
between the vehicles.     Officer Willey got out of his car and approached the
Cadillac. At that time, he contacted Rosa Isela Cortez, who was on the sidewalk of
the strip mall. She told Officer Willey that she was going to the Western Union to
get money. Cortez entered the Western Union.
      Enemencio Delarosa IV was in the driver’s seat of the Cadillac, and
Mendoza was in the front passenger’s seat. Officer Willey told Delarosa through
the rolled-down driver’s window the reason that he had been dispatched to the
scene. Before Officer Willey requested anything from          Delarosa and Mendoza,
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they informed him that they were at the Western Union to get money wired to them
so that they could buy gas for the Cadillac and then go to San Angelo.
      Officer Willey asked Mendoza and Delarosa for identification as part of his
standard operating procedure for a welfare check. Neither Mendoza nor Delarosa
had a valid driver’s license. Delarosa told Officer Willey that he had not driven
the Cadillac but that Cortez had been the driver. In response to Officer Willey’s
questions, Delarosa told Officer Willey that the group had been to Dallas and was
returning to San Angelo. Mendoza told Officer Willey that his driver’s license had
been suspended. Mendoza claimed that he owned the Cadillac. Officer Willey
told Mendoza that the Cadillac was registered to someone else. In response,
Mendoza told Officer Willey that he was buying the car from the registered owner.
      Cortez came out of the Western Union. Officer Willey asked her if she had
a driver’s license. Cortez showed Officer Willey a Texas driver’s license and told
him that her license was in good standing. Officer Willey performed driver’s
license checks on Mendoza, Delarosa, and Cortez through dispatch. Based on the
check, Officer Willey learned that Cortez’s license was suspended.
      Officer Willey told Mendoza, Delarosa, and Cortez that they could not drive
the Cadillac because they did not have valid driver’s licenses. Officer Willey did
not arrest anyone for an offense of driving with a suspended license in connection
with the group’s trip to Brownwood. He did not know who had driven. Officer
Willey said that Mendoza, Delarosa, and Cortez made telephone calls in an effort
to find a licensed driver to drive the Cadillac. After they made some calls, they
informed Officer Willey that a licensed driver was coming from Winters, Texas, to
get them. Officer Willey said that the drive from Winters to Brownwood takes
over an hour. Officer Willey believed that, if he left the scene before the licensed
driver arrived, Mendoza, Delarosa, or Cortez would drive the Cadillac away.


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Therefore, Officer Willey stayed at the scene to make sure that Mendoza, Delarosa,
or Cortez did not commit another driving offense.
      While they waited for the licensed driver, Officer Willey asked Cortez for
details about the group’s trip. Like Delarosa, Cortez told Officer Willey that the
group had been to Dallas. Cortez did not tell Officer Willey whether she had
gotten any money at the Western Union.
      Officer Willey was suspicious about the group’s version of events related to
their trip. He asked Cortez whether there was anything illegal in the vehicle.
Cortez responded that she did not know, that the Cadillac was Mendoza’s vehicle,
and that Mendoza was in charge of the vehicle. Officer Willey asked Cortez to
walk to the sidewalk so that she would not be in traffic in the parking lot.
      Mendoza stood with Officer Willey near the trunk of the Cadillac.
Officer Willey asked Mendoza whether there was anything illegal inside the
Cadillac. Mendoza responded, “No.” Officer Willey requested consent from
Mendoza to search the Cadillac. Mendoza told Officer Willey, “No.”
Officer Willey asked Mendoza to go to the sidewalk while the group waited on the
licensed driver. At that time, Delarosa was already on the sidewalk. Mendoza
went to the sidewalk, and he, Delarosa, and Cortez sat on the sidewalk in the shade
while they waited for their driver.
      Officer Willey looked through the windows of the Cadillac. He did not see
any contraband in plain view. As he walked around the back of the car, Mendoza
opened the trunk with a key fob, even though Officer Willey did not request him to
do so. Officer Willey said that the group did not have any luggage or personal
effects in the trunk that would have been consistent with taking an overnight trip to
Dallas.
      Officer Willey testified that, because his suspicions were raised, he
requested the assistance of a canine unit for an “open-air search” around the
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Cadillac. After he requested the canine unit, Officer Willey did not have any
further conversations with Mendoza, Delarosa, or Cortez. Officer Willey did not
tell Mendoza, Delarosa, or Cortez that they could not walk away from the scene,
and they did not request to leave.
      Detective James Stroope of the Brown County Sheriff’s Office arrived with
his police dog at 10:15 a.m., less than twenty minutes after Officer Willey
requested assistance. Before Detective Stroope directed his dog to perform the
free-air sniff, he explained the process to Mendoza.         Detective Stroope told
Mendoza that the police dog was trained to alert to cocaine, methamphetamine,
marihuana, and heroin. Detective Stroope said that Mendoza and his companions
did not indicate that they wanted to leave the scene.
      The police dog performed a free-air sniff around the Cadillac. The dog
alerted on the driver’s door. Based on the alert, Detective Stroope let the dog into
the car. The dog alerted to an area between the radio and the glove box.
Detective Stroope and Officer Willey then searched the Cadillac. They found a
white paper sack in the glove compartment with two plastic bags inside it. The
bags contained about forty-five grams of methamphetamine. Mendoza, Delarosa,
and Cortez were placed into custody and arrested for possession of
methamphetamine.
      After the evidence was concluded, the trial court granted Mendoza’s motion
to suppress. The trial court entered findings of fact and conclusions of law in
support of its ruling. The trial court listed eighteen different items in its findings
and conclusions but did not state which of the items it considered to be findings of
fact and which of the items it considered to be conclusions of law. The trial court
entered the following pertinent findings and conclusions, among others:
            1. Officer Willey of the Brownwood Police Department was
      originally dispatched to the scene of his encounter with [Mendoza] on

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the morning of June 18, 2011[,] in response to a call regarding a
suspicious vehicle.

       2. Officer Willey was in police uniform and driving a marked
patrol unit when he arrived on the scene.

      3. Officer Willey located the described vehicle pulled into a
parking space in front of a Western Union.

       4. Officer Willey parked his car directly behind and across the
traffic lanes from the described vehicle.

    5. Officer Willey initiated contact with the individuals Robert
Mendoza, Enemencio Delarosa IV, and Rosa Isela Cortez.

       6. Officer Willey parking his unit behind the described vehicle
and initiating contact with Robert Mendoza, Enemencio Delarosa IV,
and Rosa Isela Cortez constituted a show of authority under which a
reasonable person would not have felt free to leave and thus
constituted a detention.

      7. The original purpose of Officer Willey’s detention and
questioning of Robert Mendoza, Enemencio Delarosa IV, and Rosa
Isela Cortez was satisfied upon his determination that they were
outside the Western Union because they were waiting on money for
gas.

       8. Officer Willey unreasonably and illegally extended the
detention when he continued to question Robert Mendoza, Enemencio
Delarosa IV, and Rosa Isela Cortez after determining the reason for
their waiting outside the Western Union.

      9. Even if Officer Willey’s discovery that none of the
individuals had a valid driver’s license would have given him
reasonable suspicion to extend the detention, the purpose of such
extended detention was satisfied upon his determination that he was
not going to attempt to charge any of the three individuals with an
offense related to driving without a valid license.



                                  6
            10. Officer Willey unreasonably and illegally extended the
     detention when he continued to question Robert Mendoza, Enemencio
     Delarosa IV, and Rosa Isela Cortez after determining that he was not
     going to attempt to charge any of the three individuals with an offense
     related to driving without a valid license.

            11. Officer Willey’s telling Robert Mendoza, Enemencio
     Delarosa IV, and Rosa Isela Cortez that they could not leave until a
     driver with a valid license arrived and then continuing to question
     them after being informed that a licensed driver was on the way and
     determining that he was not going to attempt to charge any of the
     three individuals with an offense related to driving without a valid
     license constituted an illegal detention.

           ....

            16. Under the totality of the circumstances, once he had
     determined that he was not going to attempt to charge any of the three
     individuals with an offense related to driving without a valid license,
     Officer Willey had no objectively articulable reason to suspect that an
     illegal activity had occurred, was occurring, or soon would occur.

            17. Any subsequent additional discoveries or determinations
     made by Detectives Stroope or [Joe] Aaron [Taylor] were the direct
     result of an illegal detention and did not remove the taint of the illegal
     detention that preceded and was ongoing when they were made.

            18. The call for the drug dog, open air sniff, and subsequent
     search of the vehicle were initiated without an objectively articulable
     reason to suspect that an illegal activity had occurred, was occurring,
     or soon would occur and were the products of an illegal detention.
     Any evidence thus seized or statements taken in connection with the
     arrests in this matter are thus the product of [an] illegal detention and
     should be suppressed.

     The State contends in its appellate issue that the trial court erred when it
found that Officer Willey detained Mendoza.         The State asserts that Officer
Willey’s contact with Mendoza was a consensual encounter. Alternatively, the


                                         7
State contends that, if Officer Willey, in fact, detained Mendoza, any detention was
reasonable. Based on its alternative contentions, the State argues that the trial
court erred when it granted Mendoza’s motion to suppress. Mendoza contends
(1) that the reason for Officer Willey’s dispatch to the scene was concluded when
Officer Willey determined that Mendoza, Delarosa, and Cortez were there to
obtain money at the Western Union, which was a lawful activity; (2) that “Officer
Willey’s continued questioning of [Mendoza] and his companions, directing them
out of the vehicle and onto the sidewalk, and circling and peering into the vehicle
constituted repeated and continuing shows of authority which turned the initial
encounter into an illegal detention”; and (3) that “[t]he initial illegal detention was
further illegally extended when Officer Willey continued to hold and question
[Mendoza] and his companions after determining he was not going to charge them
with Driving While License Invalid.” Based on his contentions, Mendoza argues
that the trial court did not err when it granted his motion to suppress.
      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. Lujan v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). We
review the evidence in the light most favorable to the trial court’s ruling. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). When, as here, the
trial court makes explicit findings of fact, we afford those findings almost total
deference as long as the record supports them, and we afford the same amount of
deference to the trial court’s rulings on mixed questions of law and fact if those
rulings turned on an evaluation of credibility and demeanor. State v. Castleberry,
332 S.W.3d 460, 465–66 (Tex. Crim. App. 2011). We apply a de novo standard of
review to pure questions of law and mixed questions of law and fact that do not
depend on credibility determinations. Martinez v. State, 348 S.W.3d 919, 922–23
(Tex. Crim. App. 2011). The application of legal principles to a specific set of
facts is an issue of law that is subject to de novo review. Johnson v. State, 414
                                           8
S.W.3d 184, 192 (Tex. Crim. App. 2013). Thus, the question of whether a given
set of historical facts amounts to an encounter or a detention under the Fourth
Amendment is a legal issue that we review de novo. Id.; Garcia-Cantu, 253
S.W.3d at 241.
      Police and citizens may engage in three distinct types of interactions:
consensual encounters, investigative detentions, and arrests. Johnson, 414 S.W.3d
at 191. Unlike an investigative detention and an arrest, consensual police-citizen
encounters do not implicate Fourth Amendment protections. State v. Woodard,
341 S.W.3d 404, 411–12 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43,
49 (Tex. Crim. App. 2010). Police officers are as free as any other citizen to ask
for information or cooperation; no justification is required for an officer to request
information from a citizen. Wade v. State, No. PD-1710-12, 2013 WL 4820299,
at *2 (Tex. Crim. App. Sept. 11, 2013); Woodard, 341 S.W.3d at 411.                 A
consensual encounter takes place when an officer approaches a citizen in a public
place to ask questions, and the citizen is willing to listen. Crain, 315 S.W.3d at 49.
An officer may ask questions of an individual, may ask to examine the individual’s
identification, and may request consent to search, as long as the officer does not
convey a message that compliance with his requests is required.            Florida v.
Bostick, 501 U.S. 429, 434–35 (1991).           A consensual encounter may be
uncomfortable for a citizen, but it does not constitute a seizure under the Fourth
Amendment. Wade, 2013 WL 4820299, at *2. Citizens may, at will, terminate
consensual encounters. Woodard, 341 S.W.3d at 411. Even when the officer does
not communicate to the citizen that the request for information may be ignored, the
citizen’s acquiescence in the request does not cause the encounter to lose its
consensual nature. Id.
      Courts consider the totality of the circumstances surrounding the interaction
to determine whether a reasonable person in the defendant’s shoes would have felt
                                          9
free to ignore the request or terminate the interaction. Woodard, 341 S.W.3d at
411. If it was an option to ignore the request or terminate the interaction, then a
Fourth Amendment seizure has not occurred. Id. The surrounding circumstances,
including time and place, are taken into account, but the officer’s conduct is the
most important factor when deciding whether an interaction was consensual or a
Fourth Amendment seizure. Id.
      No bright-line rule governs when a consensual encounter becomes a
detention. Woodard, 341 S.W.3d at 411. To analyze the issue, courts focus on
whether the officer conveyed a message that compliance with his request was
required. Crain, 315 S.W.3d at 49. Generally, when an officer through force or a
show of authority restrains a citizen’s liberty, the encounter is no longer
consensual. Woodard, 341 S.W.3d at 411. An investigative detention, which
implicates Fourth Amendment protections, occurs when a person yields to a police
officer’s show of authority under a reasonable belief that he is not free to leave.
Crain, 315 S.W.3d at 49. Some examples of circumstances that might indicate a
detention has occurred 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, the blocking of the defendant’s vehicle with a police vehicle, or the use of
language or a tone of voice indicating that compliance with the officer’s request
might be compelled. Johnson, 414 S.W.3d at 193; Crain, 315 S.W.3d at 49–50.
When there is a detention, courts must decide whether the detaining officer had
reasonable suspicion that the citizen is, has been, or soon will be engaged in
criminal activity. Woodard, 341 S.W.3d at 411.
      The trial court concluded that the initial interaction between Officer Willey
and Mendoza constituted a detention.       Specifically, the trial court stated that
Officer Willey engaged in a show of authority when he parked his patrol car
behind Mendoza’s Cadillac and initiated contact with Mendoza, Delarosa, and
                                         10
Cortez.   The trial court concluded that, based on the show of authority, a
reasonable person would not have felt free to leave and that, therefore, the
interaction constituted a detention.
      The record does not support the trial court’s conclusion that the initial
interaction was a detention. Officer Willey did not conduct a stop of Mendoza’s
Cadillac. Rather, Mendoza and his companions parked the car in a public parking
lot at the strip mall before Officer Willey arrived at the scene. As the trial court
found, Officer Willey arrived at the scene in his marked patrol unit and saw the
Cadillac in a parking space in front of the Western Union. Also as the trial court
found, Officer Willey parked his car in a parking space that was behind and across
a traffic lane from the Cadillac. There was at least a car length between the
vehicles. Thus, Officer Willey did not park his car in a manner that blocked
Mendoza’s Cadillac in the parking lot.
      Officer Willey approached the Cadillac. Officer Willey’s interaction with
the group occurred in broad daylight. He first contacted Cortez, who was on the
sidewalk. She told Officer Willey that she was going to get money at the Western
Union. Officer Willey did not stop Cortez from going into the Western Union.
Mendoza and Delarosa told Officer Willey that they needed the money to buy gas
for the Cadillac.
      The trial court concluded that Officer Willey unreasonably and illegally
extended the detention because he continued to question Mendoza, Delarosa, and
Cortez after he determined that they were at the Western Union to get money for
gas. The record shows that Officer Willey asked Delarosa questions about the
group’s trip to Dallas. Officer Willey also asked the members of the group for
information related to driver’s licenses. As noted above, Officer Willey was free
to approach Mendoza and his companions, ask them questions, and ask them for
information.    See Woodard, 341 S.W.3d at 411; Crain, 315 S.W.3d at 49.
                                         11
Officer Willey could also ask to examine their driver’s licenses for identification
purposes.   See Bostick, 501 U.S. at 434–35.       Officer Willey’s questions and
requests for information did not amount to a seizure or a show of authority. See id.
Officer Willey did not, through words or action, convey a message to the members
of the group that they had to answer his questions or comply with his requests for
information.
      The facts found by the trial court do not support the conclusion that
Officer Willey exercised a show of authority during the initial interaction, much
less a show of authority under which a reasonable person would not have felt free
to leave. See Crain, 315 S.W.3d at 49–50. Officer Willey asked questions that he
was permitted to ask. Officer Willey was not required to stop asking questions
when the members of the group told him that they were at the Western Union to
obtain gas money. Based on our consideration of the totality of the circumstances,
including Officer Willey’s conduct, we conclude that Officer Willey’s initial
interaction with Mendoza and his companions was a consensual encounter; a
reasonable person would have felt free to terminate the interaction. Accordingly,
we hold that the trial court abused its discretion when it concluded (1) that the
initial interaction between Officer Willey and Mendoza was a detention and
(2) that Officer Willey either detained or illegally extended the detention when he
continued to question the group after he learned the reason they were at the
Western Union.
      During the consensual encounter, Officer Willey learned that none of the
members of the group had a valid driver’s license. Delarosa was in the driver’s
seat when Officer Willey arrived at the scene.            However, Delarosa told
Officer Willey that Cortez had been the driver. Officer Willey did not know who
had driven the Cadillac to the strip mall in Brownwood, and he decided not to
charge anyone with an offense related to driving without a valid license.
                                         12
      The trial court concluded that Officer Willey unreasonably and illegally
extended the detention because, after he decided not to charge anyone with a
driving offense, he continued to question Mendoza and his companions. The trial
court also concluded that Officer Willey illegally detained Mendoza and his
companions when he told them that they could not leave until a licensed driver
arrived and then continued to question them after they told him that a licensed
driver was on the way.
      Officer Willey told Mendoza, Delarosa, and Cortez that, because none of
them had a valid driver’s license, they could not leave the scene in the Cadillac
until a licensed driver arrived to drive it. In the absence of a valid license,
Mendoza and his companions could not lawfully drive any car. If Officer Willey
had permitted them to leave in the Cadillac, whoever drove the car would have
committed another offense. Once Officer Willey determined that none of the
members of the group had a valid license, his decision not to let them drive away
in the Cadillac was “quintessentially” reasonable. United States v. Rodriguez-
Morales, 929 F.2d 780, 785 (1st Cir. 1991). Officer Willey’s decision to stay at
the scene to ensure that Mendoza and his companions did not drive away in the
Cadillac was also reasonable. At least one of the members of the group had
already committed an offense by driving from Dallas to Brownwood without a
valid license.   We hold that Officer Willey’s reasonable decisions did not
transform the consensual encounter into a detention. Officer Willey told the group
that they could not drive away from the scene in the Cadillac; he did not tell them
that they could not walk away or leave the scene by other means. We conclude
that a reasonable person would have felt free to walk away from the encounter.
The fact that Mendoza and his companions chose to stay while they waited for
their driver did not change the encounter into a detention.


                                         13
      Nor did the fact that Officer Willey asked Mendoza and his companions
additional questions change the encounter to a detention. Officer Willey asked
Cortez additional questions about the group’s trip. He also asked her if there was
anything illegal in the car. She said that she did not know and that the car
belonged to Mendoza. Officer Willey then asked Mendoza whether there was
anything illegal in the car. Mendoza responded that there was nothing illegal in the
car. Mendoza then denied Officer Willey’s request for consent to search the
Cadillac. Again, Officer Willey was free to ask questions and to request consent to
search during the encounter. Bostick, 501 U.S. at 434–35. For safety reasons,
Officer Willey asked Cortez and Mendoza to wait on the sidewalk. Officer Willey
did not order or direct them to wait on the sidewalk. Mendoza, Cortez, and
Delarosa all sat on the sidewalk while they waited for the licensed driver to arrive.
Officer Willey walked around the Cadillac and looked through its windows.
Officer Willey’s conduct—observing items in plain view—did not implicate the
Fourth Amendment. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).
Mendoza opened the trunk even though Officer Willey did not request that he open
it.
      Officer Willey’s conduct is the most important factor to consider in the
analysis of whether the consensual encounter changed to a detention. Woodard,
341 S.W.3d at 411. Officer Willey did nothing by means of physical force or show
of authority to convey a message to Mendoza and his companions that they had to
answer his questions or that they were not free to leave. Based on the totality of
the circumstances, we conclude that the consensual encounter did not change to a
detention. The trial court erred when it concluded that Officer Willey detained
Mendoza at any point during the interaction. The canine sniff of the Cadillac in
the public parking lot was not a search under the Fourth Amendment, and the
officers were not required to have reasonable suspicion to justify it. Illinois v.
                                         14
Ceballes, 543 U.S. 405, 409 (2005); State v. Weaver, 349 S.W.3d 521, 527–28
(Tex. Crim. App. 2011). When the drug dog alerted on the Cadillac, the officers
had probable cause to search the vehicle. Parker v. State, 297 S.W.3d 803, 812
(Tex. App.—Eastland 2009, pet. ref’d). Because the officers did not find the
methamphetamine as the result of an illegal detention or an illegal search, the trial
court abused its discretion when it granted Mendoza’s motion to suppress. The
State’s sole issue is sustained.
      We reverse the trial court’s order granting Mendoza’s motion to suppress,
and we remand this cause to the trial court for further proceedings consistent with
this opinion.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


April 17, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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