Opinion issued February 25, 2016




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00488-CR
                           ———————————
                  KELVIN DRISCOLL JONES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 176th District Court
                           Harris County, Texas
                       Trial Court Case No. 1430845


                                 OPINION

      Kelvin Jones pleaded guilty to attempted credit card abuse, a misdemeanor.1

He argues that the trial court erred in denying his pre-plea motion to suppress

evidence that he possessed a debit card issued to a different person because a


1
      TEX. PENAL CODE ANN. § 32.31 (West 2011).
security guard arrested him in violation of the requirements of the statute

governing citizen arrests.2 We affirm.

                                    Background

      J. Lara, a private security guard,3 was on patrol at an apartment complex. He

saw Jones “and a couple of other individuals” on the “patio area of one of the

[residences]” and smelled the “distinct smell of marijuana” coming from that area.

Lara walked over to the group and announced that he was a security guard. Seeing

Jones holding what appeared to be marijuana, Lara asked Jones to “step out of the

patio area so [he could] talk to him away from everybody else that might pose a

threat.”

      Jones complied with Lara’s request. After taking him away from the patio

area, Lara asked Jones what was in his hand. Jones handed Lara the marijuana.

Lara then asked Jones for an ID, which Jones said he did not have on him. Lara

“patted [Jones] down to make sure he didn’t have any weapons or anything that

could pose a threat.” After finishing the pat-down, Lara asked Jones to empty his

pockets. When Jones emptied his pockets on top of a near-by car, Lara saw a debit

card with someone else’s name on it. Jones admitted that the debit card was not

2
      TEX. CODE CRIM. PROC. ANN. art. 14.01(a) (West 2015).
3
      Neither the State nor Jones proffered any evidence to establish Lara was a “peace
      officer” within the meaning of the Texas Code of Criminal Procedure. See TEX.
      CODE CRIM. PROC. ANN. art. 2.12 (West Supp. 2015).


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his. After Jones voluntarily put the card on top of the near-by car and admitted that

it was not his, Lara then called the police and handcuffed Jones. When the police

arrived, they arrested Jones.

      Jones filed a motion to suppress the debit card and marijuana, arguing that

Lara “arrested” him before discovering the debit card. This “arrest” was “illegal,”

according to Jones, because no felony or breach of the peace was committed in

Lara’s presence, a requirement Jones maintains is within the statute authorizing an

arrest by a private citizen. The trial court denied Jones’s motion.

      Following the hearing, Jones pleaded guilty to attempted credit card abuse.

He was sentenced to 120 days in jail. Jones appeals the trial court’s denial of his

motion to suppress.

                           Arrest or Investigative Detention

      Jones argues that the security guard made a citizen’s arrest but failed to

comply with the statutory requirements, making his arrest “invalid,” and, “[t]he

fruits of his arrest, including the debit card, should have been suppressed.” His

admissibility argument is premised on the initial encounter, before he produced a

third person’s debit card, properly being characterized as an arrest and not a mere

investigative detention.




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A.    Standard of review

      Whether an encounter amounts to an arrest is a question of law that we

review de novo. State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008); State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008).

B.    Investigative detention, not arrest

      Texas law provides for a “citizen arrest”: “A peace officer or any other

person, may, without a warrant, arrest an offender when the offense is committed

in his presence or within his view, if the offense is one classed as a felony or as an

offense against the public peace.” TEX. CODE CRIM. PROC. ANN. art. 14.01(a).4 This

statute recognizes that “under some circumstances there is no time to procure a

warrant” and thus, provides authority for a citizen to “make a warrantless arrest

when he has satisfactory proof to believe that a person has committed a felony

offense and is about to escape.” Miles v. State, 241 S.W.3d 28, 41–42 (Tex. Crim.

App. 2007).

      The Texas exclusionary rule applies to citizen’s arrests. Melendez v. State,

467 S.W.3d 586, 592 (Tex. App.—San Antonio 2015, no pet.). “No evidence

obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the

4
      A person commits credit card or debit card abuse when “not being the cardholder,
      and without the effective consent of the cardholder, he possesses a credit card or
      debit card with intent to use it.” TEX. PENAL CODE ANN. § 32.31(b)(8) (West
      2011). This offense is a felony. Id. at § 32.31(d).

                                           4
United States of America, shall be admitted in evidence against the accused on the

trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005)

(emphasis added). In applying the rule, the Texas Court of Criminal Appeals has

explained, “[A] private person can do what a police officer standing in his shoes

can legitimately do, but cannot do what a police officer cannot do.” Miles, 241

S.W.3d at 39.

      Jones contends that Luca had no statutory basis for attempting a citizen’s

arrest because possession of marijuana is not a felony, nor is it an offense against

the public peace because “there was no danger that [Jones] was about to cause

physical harm to himself or others.” Before determining, as Jones asks us to do,

whether Lara had the legal authority to arrest him, we must first examine whether

the encounter between Lara and Jones had escalated from an investigative

detention to an “arrest” before discovery of the debit card.

      Three types of investigative encounters exist: (1) consensual encounters;

(2) investigative detentions, which must be supported by a reasonable suspicion of

a crime and be of limited scope and duration; and (3) arrests, which are only

constitutional if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667

(Tex. Crim. App. 2013); see Melendez, 467 S.W.3d at 592 (applying these three

types of encounters to private security guard encounter). No one asserts that this




                                          5
was a consensual encounter; therefore, we consider whether the encounter was an

investigative detention or an arrest.

      Both investigative detentions and arrests are restraints on a person’s

freedom, but an arrest involves a greater degree of restraint. Sheppard, 271 S.W.3d

at 290. To determine whether an encounter is an investigative detention or an

arrest, Texas examines the totality of the circumstances. Curtis v. State, 238

S.W.3d 376, 379 (Tex. Crim. App. 2007). “We evaluate whether a person has been

detained to the degree associated with arrest on an ad hoc, or case-by-case, basis.”

State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). The “primary

question is whether a reasonable person would perceive the detention to be a

restraint on his movement comparable to a formal arrest, given all the objective

circumstances.” Id.

      Although no “bright-line rule” exists to distinguish between an investigative

detention and an arrest, Texas applies several factors to categorize the encounter.

Sheppard, 271 S.W.3d at 291. Jones focuses his argument on four factors: (1) the

amount of force displayed, (2) the duration of the detention, (3) whether it was

conducted at the original location or the person was transported to another location,

and (4) the officer’s expressed intent. See id. But, in general, if a detention

“appears more than necessary to simply safeguard the officers and assure the




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suspect’s presence during a period of investigation, this suggests the detention is an

arrest.” Id.

         The first factor—the amount of force—favors the State. The amount of force

used by Lara was minimal. No evidence showed that Jones felt compelled to

comply with Lara’s request to move outside his patio area, that Lara had a gun or

any other weapon on him when he encountered Jones, or that Lara claimed to be a

police officer or to have lawful authority to make an arrest. Lara only patted Jones

down—for their mutual protection. Other than this pat-down, Lara did not threaten

to use any force against Jones. The only force that Lara did use against Jones—

namely, handcuffing him—did not occur until after Lara discovered the debit

card.5

         The amount of force used by Lara before discovering the debit card is less

than that used by a security guard in Melendez. There, a security guard detained a

defendant who was seen trying to sell cocaine at a nightclub and kept him detained

until a police officer arrived to handcuff him. 467 S.W.3d at 593. After arriving,

the officer asked the defendant two questions, searched the defendant, and, upon

discovering a controlled substance in the defendant’s pocket, placed the defendant

5
         Even that amount of force would not necessarily signal an arrest; handcuffing, by
         itself, is not sufficient to demonstrate an arrest. See Rhodes v. State, 945 S.W.2d
         115, 117–18 (Tex. Crim. App. 1997) (rejecting “bright-line” rule that handcuffing
         constitutes arrest when police officer testified that he only handcuffed defendant
         out of concern for his safety); Melendez, 467 S.W.3d at 592–93 (“use of handcuffs
         does not automatically convert a detention into an arrest”).

                                              7
under arrest. Id. at 590. The security guard’s handcuffing of the defendant while

waiting for the police to arrive was the only force used by the security guard or the

police officer before the search was conducted. Id. at 593. This amount of force did

not convert the investigative detention into an arrest. Id.

      The second factor, the duration of the encounter, also weighs in favor of

concluding that Lara’s encounter with Jones was merely an investigative detention.

In Melendez, like here, the record did not establish the duration of the detention.

467 S.W.3d at 593. There is no suggestion in the record that the detention was

prolonged. Cf. Castro v. State, 373 S.W.3d 159, 165–166 (Tex. App.—San

Antonio 2012, no pet.) (holding that detention that lasted approximately from one-

half to one hour was “merely long enough to engage in an investigatory procedure”

and demonstrated that “the officers efficiently pursued an investigation to confirm

or dispel their suspicions.”). By denying Jones’s motion to suppress, the trial court

“could reasonably have inferred” based on the nature of the security guard’s

activities (that Lara announced himself, asked Jones to step out of the patio area,

asked for the marijuana, patted Jones down, had Jones empty his pockets, and then

“immediately . . . called 911”) that the defendant was detained for “only a short

time” before the debit card was produced. See id. This reasonable inference weighs

in favor of classifying the encounter as an investigative detention.




                                           8
      Next, we turn to the third factor: the location of the detention. An

investigating officer’s request that a person move a short distance from the scene

of the initial encounter to separate him from others nearby does not, itself,

necessarily prove an arrest. See Bartlett v. State, 249 S.W.3d 658, 662 (Tex.

App.—Austin 2008, pet. ref’d). In Bartlett, the police investigated an alleged

assault that occurred at a crowded event. Id. The police officers encountered the

defendant, placed him in handcuffs, and took him to a location away from the

event because that was the only “feasible” way to safely investigate the alleged

assault. Id. at 665. Noting that “[s]afety and security reasons may justify moving a

suspect from one location to another during an investigatory stop,” Bartlett held

that the trial court did not err in finding that the officer’s actions showed that he

only intended to “talk to” the defendant, not arrest him. Id. at 670. Thus, the

encounter was an investigative detention, not an arrest. Id. at 671.

      Similarly, an officer’s request for a suspect to move in Perez v. State did not

create an arrest. 818 S.W.2d 512, 513 (Tex. App.—Houston [1st Dist.] 1991, no

writ). Suspecting that a group of people walking through an airport were drug

dealers, police officers stopped the group to question them. Id. After briefly

questioning the group, the police officers asked the defendant, one of the group

members, to move into a separate area of the airport so they could search him. Id.

at 514. Because the defendant voluntarily chose to talk to the police and was free



                                          9
to leave, the officer’s moving of the defendant to a “private area” of the airport

constituted an investigative detention, not an arrest. Id. at 515.

      There is no evidence that Lara compelled Jones to “step out of the patio

area.” There is no evidence that Jones objected to moving. There is no evidence of

the distance that Jones moved. And Lara testified that, like in Barlett and Perez, he

moved Jones to another area out of concern for safety reasons. Under these

circumstances, this factor slightly favors the State or is neutral.

      Finally, we turn to the fourth factor: the officer’s expressed intent. Lara

expressed an intent to “talk to” Jones, not to arrest him. Because the security

officer only evidenced an intention to “talk to” Jones before the debit card was

revealed, we conclude that this factor weighs in favor of the encounter being an

investigative detention. See Melendez, 467 S.W.3d at 593 (no evidence presented

that security guard intended stop to be investigative detention or intended to

conduct citizen’s arrest).

      Considering the totality of the circumstances, we conclude that Lara’s

encounter with Jones prior to the discovery of the debit card was an investigative

detention, not an arrest.

      Because Jones was not under arrest when he produced the fraudulent debit

card, the statute limiting a citizen’s arrest does not apply here. See Melendez, 467

S.W.3d at 593 n.2 (“Because we conclude the security officers did not arrest [the



                                           10
defendant], but only detained him, no citizen’s arrest occurred that would require

further analysis . . . .”). Jones does not raise any challenge to the legality of Lara’s

encounter as an investigative detention. Therefore, Jones has not established any

basis for excluding the evidence. We overrule his sole issue.

                                     Conclusion

      We affirm the trial court’s denial of Jones’s motion to suppress.




                                               Harvey Brown
                                               Justice

Panel consists of Justices Bland, Brown, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).




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