Opinion issued May 2, 2019




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00679-CR
                               NO. 01-18-00680-CR
                               NO. 01-18-00681-CR
                            ———————————
                      THE STATE OF TEXAS, Appellant
                                         V.
                   JEROLD JERMAINE GRIFFIN, Appellee


                  On Appeal from the 268th District Court
                          Fort Bend County, Texas
  Trial Court Case Nos. 17-DCR-078992, 18-DCR-080908, 16-DCR-075232B


                          MEMORANDUM OPINION

      After being charged by three indictments with felony drug possession in a

drug-free zone, Appellee Jerold Griffin filed a motion to suppress in all three cases.
After an evidentiary hearing, the trial court granted the motions to suppress, and the

State appeals. We affirm the trial court’s ruling.

                                    Background

      The evidence at the suppression hearing consisted of the testimony of Sugar

Land police officers Joshua Young and Matt Shockey and videos from their body

cameras of the incident. The trial court made the following findings of fact and

conclusions of law:

                               FINDINGS OF FACT

      1.     Officer Joshua Young, a Sugar Land Police Department patrol
      officer on night shift patrol, at approximately 11:30 p.m., while
      patrolling the Mayfield subdivision on September 23, 2016, noticed
      someone sitting on a bench under the pavilion at Mayfield Park. Officer
      Matt Shockey and Officer Jones of the Sugar Land Police Department
      arrived at approximately the same time as Officer Young. Officer
      Shockey was assigned to the Sugar Land Police department training
      division as a range master but was working night patrol this date.
      Officer Young, a less experienced officer, was the first officer arriving
      and was designated as the lead officer.

      2.     The Mayfield subdivision is a known high crime area.

      3.    Griffin approached Officer Young’s vehicle as officer Young
      drove up to the pavilion area. Griffin’s demeanor was calm and he
      began talking to officer Young.

      4.    The Park hours are from dawn to dusk and are posted at the park
      entrance. A sign may be seen beside the pavilion.

      5.     Officer Young advised Griffin of the park hours and told Griffin
      that he was in violation of the park hours. Officer Young observed a
      large wad of cash in Griffin’s pocket and was unable to determine the


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denomination of the cash bills. Officer Young did not observe anything
else in Griffin’s pockets.

6.    There were no other individuals at the park.

7.     Officer Young observed open containers of alcohol on the bench
in the pavilion and Griffin admitted drinking out of the containers.

8.     Officers Jones, Young and Shockey escorted Griffin to the
pavilion. Griffin gave identifying information to Officer Young when
asked. Young left Griffin at the bench in the pavilion to check on
outstanding warrants but found no outstanding warrants on Griffin.

9.    Griffin told the officers that he was homeless. He indicated that
he had lived in the house across the street in the subdivision. Griffin
said he worked at TXU and had been paid.

10. Officer Shockey indicated to Griffin that if he was not causing
trouble and not smoking weed[,] the officers were cool and that they
are not into selective enforcement and not there to split hairs. Officer
Young asked Griffin if he had anything illegal on him and Griffin said
no.

11. Officer Young asked Griffin for consent to search him and no
consent was given.

12. Griffin was told to stand up by Officer Young. Officer Young
then told him he was going to be arrested for violation of the city
ordinance, a fine only offense. While Griffin was standing Officer
Young put his hands on Griffin and turned him around to place Griffin’s
arms behind him. This was the only show of force by anyone at the
time.

13.   Griffin ran at this point.

14. The officers chased Griffin and put him on the ground where a
struggle occurred. All officers struggled with Griffin with Officer
Young attempting to taser Griffin and subsequently putting his weapon
to Griffin’s head.


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15. After a search of Griffin’s pockets the officers found cocaine,
ecstasy and Xanax.

16. Griffin was arrested for possession of illegal narcotics and
resisting arrest in a drug free zone.

                  CONCLUSIONS OF LAW

1.     Officer Young observed Griffin in Mayfield Park after dark
when city parks are closed. There was no one else at the park except
Griffin. The Sugar Land City Ordinances provide that city parks are
open from sunrise to sunset and notice of this rule is posted in city
parks.

2.     Officer Young and officers Shockey and Jones observed open
containers of alcoholic beverages on the park bench where they found
Griffin. The consumption or possession of open containers of alcohol
in city parks is prohibited. Violation of this ordinance may result in a
fine up to $500.00.

3.     Griffin approached Young upon Young’s arrival and was calm
and accompanied Young to the park bench. Young observed a wad of
cash in Griffin’s pocket but did not observe anything else in Griffin’s
pockets. Griffin explained that he had cashed his TXU work check and
that was the cash in his pocket. Young explained to Griffin that he was
in violation of the City of Sugar Land ordinances regarding being in the
park after closing hours and in possession of alcoholic beverages in the
park without permission. Young told Griffin that he was returning to
his police vehicle to check for outstanding warrants.

4.     Shockey and Jones stayed with Griffin at the park bench and
questioned Griffin about his reasons for being in the park. Griffin
explained that he previously lived in the neighborhood but was
homeless. Shockey explained options for housing and indicated to
Griffin that if he was not smoking weed the officers were cool.

5.     Young returned to the park bench and said he found no
outstanding warrants. He then began to question Griffin about whether
he had anything in his pockets and asked for consent to search Griffin.
Griffin denied having anything in his pockets and denied consent to
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       search.

       6.     Griffin violated the city ordinances regarding being in the park
       after closing [h]ours and in possession of alcoholic beverages and
       Young was authorized to write Griffin a citation and remove him from
       the park.

       7.    The officers under the U. S. Fourth Amendment and Art. 1, § 9,
       Texas Constitution had seized Griffin and he was not free to leave.

       8.     There were no exigent circumstances existing after the officers
       determined there was a reasonable explanation for the cash in Griffin’s
       pockets, they had determined that the reason for the stop was for the
       violation of the park hours and alcohol consumption in the park and
       Griffin was cooperating with the officers.

       9.     There were no articulable grounds presented by the officers for
       the request to search Griffin’s pockets as no bulges were observed, no
       evidence of weapons and there was no intent to arrest Griffin.

       10. The officers were there for the ordinance violations and had
       offered Griffin assistance to find housing with no focus on other than
       the ordinance violations.

       11. There was no reasonable suspicion nor probable cause for Young
       to perform a Terry frisk of Griffin nor probable cause to arrest Griffin
       for any offense.

       This Court determines that all evidence seized should be suppressed.

                                        Analysis
       In its sole issue, the State contends that the trial court erred as a matter of law

in granting the motions to suppress because the evidence was obtained in a search

incident to arrest.




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      Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App.

2018). We review the trial court’s factual findings for an abuse of discretion but

review the trial court’s application of the law to the facts de novo. Id. at 190. We

give deference to the trial court’s factual determinations because the trial court is the

sole trier of fact and judge of witness credibility and the weight to be given their

testimony. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Our

deferential review also applies to the trial court’s conclusions regarding mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382

S.W.3d 367, 372 (Tex. Crim. App. 2012). We review de novo purely legal questions,

as well as mixed questions of law and fact that do not turn on credibility and

demeanor. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).

      When the trial court makes explicit findings of fact, we determine whether the

evidence, when viewed in the light most favorable to the trial court’s ruling, supports

the findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We afford

the prevailing party the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563,

571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is reasonably

supported by the record and is correct on any theory of law applicable to the case.


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Lerma, 543 S.W.3d at 190; State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.

2014).

      Search Incident to Arrest

      The State argues that Officer Young’s attempted search of Griffin’s pant

pockets was a lawful search incident to arrest.

      “If an officer has probable cause to arrest, a search incident to arrest is valid

if it is conducted before a formal arrest—at least if it is immediately before the

arrest.” State v. Sanchez, 538 S.W.3d 545, 550 (Tex. Crim. App. 2017). This

argument is belied by the evidence—particularly the body camera video—which

reflects that the officers were not going to arrest Griffin and that Officer Young was

not attempting to search Griffin in the context of arresting him.

      Officer Young testified that, after asking Griffin several times for consent to

search his pockets: “At that point, I told him to stand up, put his hands behind his

back, that I was going to arrest him for the city ordinance violations.” This testimony

is contradicted by the body camera video, which shows that, after confirming that

Griffin had no outstanding warrants, Officer Young stated to Griffin: “As long as

you’re not doing anything illegal, I’m cool with that. . . . as long as you’re not

causing any kind of ruckus, or you’re not smoking weed out here.”

      Officer Shockey, one of the other two officers, then discussed with Griffin

that the park closed at dark by city ordinance, that they try not to do selective


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enforcement, and that they understood that, with Griffin being homeless, he had to

do what he had to do to get by. They then discussed Griffin’s employment situation

and that there were programs and assistance available to help him with his homeless

situation and lack of a vehicle, and Officer Shockey concluded by telling Griffin:

      Whatever you do, man, just don’t get too drunk out here with that vodka
      and that beer and then you start getting stupid when you’re all drunk. .
      . . You’re not really supposed to drink in the parks, but we’re not out
      here trying to split hairs either. . . . Just be smart about it, like Officer
      Young said, we’re just making sure people aren’t out here causing a
      ruckus or doing anything wrong. All right, man?

Griffin replied, “Yes, sir.”1

      Officer Shockey and the third officer then turned as if to start walking away,

but Officer Young then addressed Griffin, stating: “Before we leave you, man, like

I said, I don’t want anything illegal going on, man. So, you don’t have anything

illegal on you? No drugs, weapons, something like that, man?” Griffin replied, “No,

sir,” shaking his head in the negative in response to those questions.

      Officer Young then immediately asked, “Can I check just to make sure, man?”

Griffin calmly replied, “No, sir.” Officer Young said, “Huh?” Griffin replied, “No,

I’m saying I don’t have nothing.” Officer Young then asked, “You got nothing

illegal on you?” Griffin replied, “No, sir.”



1
      In response to a question from the trial judge, Officer Shockey testified that
      the normal course of action for persons in the park “after hours” is, “more
      times than not, it’s just a warning or we write a ticket.”
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      Officer Young continued, “Okay, I’m asking, can I check to make sure you

don’t have anything illegal on you? If you don’t, I’ll leave you here, brother, to do

your thing.” Griffin continued to deny having anything illegal and to refuse Officer

Young’s request to search. Griffin then stood up and turned his back to Officer

Young, who said, “Put your hands back here.” As Griffin began to put his hands

behind his back, he started running but was quickly apprehended.

      In short, nothing in the video suggests that Officer Young intended to arrest

Griffin for a city ordinance violation or was going to perform a search incident to

such an impending arrest.2 In fact, both officers’ statements in the video reflect the

opposite—that as long as Griffin was not smoking “weed” or causing a ruckus, they

were going to let him stay at the park. And Officer Young then added that he would

let Griffin stay in the park and “do his thing” if the officer could check whether

Griffin had anything illegal on his person. The record does not support the State’s

argument that Officer Young’s attempted search was incident to an arrest.3




2
      After reviewing the videos and Officer Young’s testimony, it is clear that the
      trial court’s Finding of Fact No. 12 is a recitation of Officer Young’s
      testimony rather than a recitation of the colloquy on the video. The trial court’s
      Conclusion of Law No. 9 (“there was not intent to arrest Griffin”) confirms
      this determination.
3
      Griffin was not indicted for the offense of evading arrest or resisting arrest.
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                                         Conclusion

      The trial court did not err or abuse its discretion in granting Griffin’s motions

to suppress. We overrule the State’s sole issue and affirm the orders of the trial court.



                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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