           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                   NO. PD-0106-13


                         CHEYENNE ESTRADA, Appellant

                                           v.

                              THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTH COURT OF APPEALS
                          BEXAR COUNTY

             KEASLER, J., delivered the opinion of the Court, in which KELLER, P.J.,
and MEYERS, PRICE, WOMACK, HERVEY, COCHRAN, and ALCALA, JJ., joined.
JOHNSON, J., concurred.

                                    OPINION

      Cheyenne Estrada pleaded nolo contendere to possession of marijuana and was placed

on community supervision. On appeal, Estrada argued that a statement she made to police,

acknowledging ownership of the drugs, was the product of an unwarned custodial

interrogation and should have been suppressed. The Fourth Court of Appeals held that
                                                                              ESTRADA—2

Estrada was not in custody when she admitted ownership.1 We agree and affirm its decision.

                                     BACKGROUND

       On November 16, 2009, Officers Rodriguez and Alvarado pulled over a vehicle for

failure to display a front license plate. When Officer Rodriguez approached the driver’s side

window of the vehicle, he smelled the odor of burnt marijuana. He ordered the driver,

Cheyenne Estrada, and her passenger out of the vehicle. Officer Rodriguez searched the

vehicle and discovered a makeup bag under the driver’s seat. Inside the bag were three

baggies of marijuana and various items of drug paraphernalia. Rodriguez then approached

Estrada and her passenger and asked them whom the drugs belonged to. Estrada confessed

that the drugs were hers and was arrested for possession of marijuana.

       Estrada filed a pretrial motion to suppress her confession admitting ownership of the

drugs. She argued that she had not received Miranda warnings2 prior to the officer’s

question regarding ownership and that she had been in custody at that time. At the pretrial

hearing, Officer Rodriguez testified that although Estrada had not been free to leave during

his search of the vehicle, that fact was never communicated to Estrada. Rodriguez testified

that Estrada was arrested because she confessed to owning the drugs, the vehicle was

registered in her name, and the drugs were found under the driver’s seat. The trial judge

denied Estrada’s motion, finding that Estrada had not been in “custody” for Miranda

       1
      Estrada v. State, No. 04-12-00136-CR, 2012 WL 6720655, at *8 (Tex.
App.—San Antonio, Dec. 28, 2012).
       2
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                               ESTRADA—3

purposes when she confessed that the marijuana was hers.

       On appeal, Estrada argued that the trial judge erred in denying her motion to suppress,

again on the ground that she had not been provided with Miranda warnings before being

questioned.3 The court of appeals recognized that Estrada’s claim turned on whether Officer

Rodriguez’s questions constituted a custodial interrogation.4 In reaching its decision, the

court compared the facts in this case to those of a number of other Texas cases where courts

determined whether an individual had been in “custody” when questioned.5 The court

ultimately concluded that Estrada had not been in custody, because “the circumstances in this

case do not indicate a level of coercion that would lead a reasonable person to believe they

were detained to the degree associated with a formal arrest.”6

       Estrada petitioned this Court for discretionary review, and we granted review to

determine whether the Fourth Court of Appeals misapplied our precedent, specifically State

v. Ortiz,7 in reaching its decision.

                                 STANDARD OF REVIEW




       3
           Id. at *2.
       4
           Id.
       5
           Id. at *4–6.
       6
           Id. at *8.
       7
           State v. Ortiz, 382 S.W.3d 367 (Tex. Crim. App. 2012).
                                                                                ESTRADA—4

       A trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard.8

We must give almost total deference to the trial judge’s determination of historical facts,9 and

that same deference must be afforded to the trial judge’s conclusions with respect to mixed

questions of law and fact that turn on credibility and demeanor.10 However, when a case

presents only questions of the validity of a trial judge’s legal rulings, appellate review is de

novo.11 Because the underlying facts are uncontested and the only issue in this case is

whether Estrada was in “custody” when Officer Rodriguez questioned her about the

ownership of the marijuana, we will apply de novo review.

                                   APPLICABLE LAW

       In Miranda v. Arizona, the Supreme Court mandated that suspects be warned of their

constitutional rights before being subjected to custodial interrogation.12 As we stated in

Ortiz, a routine traffic stop does not automatically place a person in custody for Miranda

purposes, but such a stop “may escalate from a non-custodial detention into a custodial

detention when formal arrest ensues or a detainee’s freedom of movement is restrained to the



       8
         Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
       9
            Derichsweiler v. State, 348 S.W.3d 906, 913 (Tex. Crim. App. 2011).
       10
            Guzman, 955 S.W.3d at 87–89; Ortiz, 382 S.W.3d at 372.
       11
        Ortiz, 382 S.W.3d at 372; State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim.
App. 2008).
       12
            See Miranda, 384 U.S. at 467–70.
                                                                                 ESTRADA—5

degree associated with a formal arrest.”13 An assessment of whether a suspect has been

detained to the degree associated with arrest is made on an ad hoc, case-by-case basis.14 In

determining whether an individual was in custody, reviewing courts must determine whether,

given the circumstances surrounding the interrogation, a reasonable person would have

perceived detention by law enforcement officers to be a restraint on his movement

comparable to the restraint of formal arrest.15

       As further guidance to courts regarding the “reasonable person” standard in such an

analysis, we stated in Ortiz:

       In evaluating whether a reasonable person would believe his freedom has been
       restrained to the degree of formal arrest, this Court looks only to the objective
       factors surrounding the detention. The subjective beliefs of the detaining
       officer are not included in the calculation of whether a suspect is in custody.
       But if the officer manifests his belief to the detainee that he is a suspect, then
       that officer’s subjective belief becomes relevant to the determination of
       whether a reasonable person in the detainee’s position would believe he is in
       custody. Conversely, any undisclosed subjective belief of the suspect that he
       is guilty of an offense should not be taken into consideration—the reasonable
       person standard presupposes an “innocent person.”16

                                         ANALYSIS



       13
         Ortiz, 382 S.W.3d at 372 (quoting State v. Stevenson, 958 S.W.2d 824, 828
(Tex. Crim. App. 1997)).
       14
          Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (citing Shiflet v.
State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)).
       15
         Thompson v. Keohane, 516 U.S. 99, 112 (1995); Berkemer v. McCarty, 468
U.S. 420, 441 (1984).
       16
            Ortiz, 382 S.W.3d at 372–73 (references omitted).
                                                                                 ESTRADA—6

       We now turn to the facts of this case to determine whether, at the moment that Officer

Rodriguez questioned Estrada and her passenger about who owned the marijuana that he had

found in the vehicle, a reasonable person would have believed that he was in custody. The

undisputed facts of the case show that, at the time of the question: (1) Officer Rodriguez

smelled a strong odor of marijuana coming from the vehicle; (2) Rodriguez asked Estrada

and her passenger to step out of the vehicle; (3) Rodriguez searched the vehicle and found

marijuana under the driver’s seat; (4) Rodriguez asked both Estrada and her passenger who

the marijuana belonged to. We agree with the court of appeals that these circumstances

would not combine to cause a reasonable person to believe that his liberty was compromised

to the degree associated with formal arrest.

       In arguing that a reasonable person would have believed himself to be in custody at

the time of Officer Rodriguez’s question, Estrada cites primarily to the facts of State v. Ortiz.

In Ortiz, we identified four main reasons why Octavio Ortiz was in custody at the time he

was questioned by police: (1) officers expressed their suspicion that Ortiz possessed drugs

or knew that his wife was in possession of drugs;17 (2) Ortiz’s detention had escalated beyond

that of a routine traffic stop because at least two police cars and three officers were present

when he made the statements;18 (3) officers handcuffed Ortiz when a pat-down revealed




       17
            Id. at 373–74.
       18
            Id. at 374.
                                                                             ESTRADA—7

something illegal or dangerous on Ortiz’s wife’s person;19 and (4) after Ortiz was

handcuffed, officers informed him that something illegal had been found on Ortiz’s wife,

implicitly signaling that Ortiz was now under detention for something more serious than a

speeding infraction.20 We held that these circumstances combined to support the conclusion

that a reasonable person in Ortiz’s position would have believed he was in custody when he

was questioned by the police.21 Here, Estrada cites several of these circumstances in Ortiz

and attempts to relate them to the facts of this case.

                    A. OVERT COMMUNICATION OF SUSPICION

       The first circumstance that Estrada says was present in this case is that police made

overt statements revealing a belief that the detainee was involved in criminal activity.

Estrada argues that just as officers in Ortiz communicated their suspicions to Ortiz that he

was engaged in illegal activity, when Officer Rodriguez ordered Estrada out of the car and

asked her whom the marijuana belonged to, his actions revealed his suspicion that Estrada

had committed a crime.

       We agree with Estrada that a reasonable person in her position would have recognized

that Officer Rodriguez suspected her, to some degree, of being engaged in criminal activity.

Rodriguez asked Estrada and her passenger whom the drugs belonged to, indicating a



       19
            Id. at 374–75.
       20
            Id. at 375.
       21
            Id.
                                                                                ESTRADA—8

suspicion that one or perhaps both of them had committed an offense. Likewise, Estrada

correctly points out that the officer’s announcement that he had discovered marijuana in the

vehicle could have placed her in apprehension of arrest, because it might have been presumed

that, as the driver and registered owner of the vehicle, she had possession and control over

its contents.22

       However, while communicated suspicion by an officer to a detainee was present in

this case to some degree, it does not approach the overtly communicated suspicion present

in Ortiz. In that case, the detaining officer asked Ortiz point-blank: “What kind of drugs does

[your wife] have?” and “How much drugs are in the car?”23 We indicated that “[t]his

question, by its very nature, conveyed to the appellee [the officer’s] presupposition that the

appellee was aware that his wife possessed drugs and that the appellee knew what kind of

drugs she possessed.”24

       Conversely in this case, Officer Rodriguez’s question regarding ownership was

directed at both Estrada and her passenger. As the court of appeals pointed out,25 this general

inquiry is not as coercive and accusatory as the statements made by officers in Ortiz, which




       22
         See, e.g., King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (defining
possession as exercising “actual care, control and management over the contraband”).
       23
            Id. at 373–74.
       24
            Id. at 374.
       25
            Estrada, 2012 WL 6720655, at *6.
                                                                               ESTRADA—9

were made to Ortiz directly while he was physically separated from other suspects.26 Here,

Rodriguez was attempting to gather information and ascertain which of the two detainees

should be held responsible for possession of narcotics. We do not believe that Officer

Rodriguez’s general expression of suspicion to both Estrada and her passenger provides

“substantial support” for a conclusion that a reasonable person in Estrada’s position would

have believed that she was in custody when she confessed ownership of the marijuana.27

                                     B. RESTRAINT

       Estrada’s second argument is that the court of appeals over-emphasized handcuffing

as an element of custody. In Ortiz, both detainees were handcuffed,28 but in this case Officer

Rodriguez did not place either Estrada or her passenger in handcuffs. The court of appeals

mentioned this difference as an element of custody that was present in Ortiz but not in the

case at hand.29 Estrada claims that in Ortiz, the fact that the detainees were handcuffed

became an element of custody because it signaled to Ortiz the detaining officer’s suspicion

that Ortiz was involved in illegal activity. But here, she argues, the lack of handcuffing

should not be considered because handcuffing was not needed to signal Rodriguez’s



       26
            Ortiz, 382 S.W.3d at 373–74.
       27
          See id. at 374 (holding that officers’ “overt attitude concerning the appellee’s
likely complicity, because it would have been readily apparent to the appellee,” provided
“substantial support” for a finding that Ortiz had been in custody).
       28
            Id. at 374–75.
       29
            Estrada, 2012 WL 6720655, at *6.
                                                                               ESTRADA—10

suspicion of complicity—that was conveyed through his search of the vehicle and his

question about ownership of the drugs.

       The court of appeals was correct in finding that handcuffing was an indicium of

custody present in Ortiz but not present in this case. Failing to consider restraint as a factor

would undermine the requirement that a determination of custody should be made by looking

at the totality of the circumstances.30 In Ortiz, we stated that handcuffing is “one [factor in]

a range of relevant factors” used to make a custody finding.31 In that case, not only was Ortiz

handcuffed, he was handcuffed immediately after something allegedly illegal was discovered

on Ortiz’s wife’s person, conveying to Ortiz the detaining officer’s belief that Ortiz was

associated with the illicit behavior.32 We held that this circumstance “lends additional

support” to the conclusion that a reasonable person in Ortiz’s position would have considered

himself in custody.33

       None of our reasoning regarding handcuffing in Ortiz can be applied to this case.

Estrada and her passenger were not handcuffed. And there is certainly no link here between

the physical restraint of a detainee and an officer’s overtly communicated suspicion of illegal



       30
         See Stansbury v. California, 511 U.S. 318, 323 (1994) (a determination of
custody turns on the objective circumstances surrounding the interrogation).
       31
            Ortiz, 382 S.W.3d at 374.
       32
         Id. at 374–75 (immediately after contraband was discovered on Ortiz’s wife, the
detaining officer said, “Yep. Turn around. Put your hands behind your back.”).
       33
            Id. at 375.
                                                                               ESTRADA—11

activity. The court of appeals was correct in finding that the lack of physical restraint

supported a conclusion that Estrada was not in custody when Rodriguez asked her about

ownership of the drugs.

                          C. COERCIVE NATURE OF THE STOP

       Estrada’s third argument centers on the number of officers present at the scene. In

Ortiz, two police vehicles and at least three officers were present when Ortiz was first

questioned.34 The detaining officer in that case had called for backup so that a female officer

could pat down Ortiz’s wife.35 In this case, only one police car and two officers were

present. Estrada argues that the court of appeals erred when it found that fewer police

vehicles and fewer officers were elements that weighed against a finding of custody. Indeed,

Estrada argues that the situation she faced was more coercive than that in Ortiz, not less.

       We are unpersuaded by Estrada’s reasoning. While we did indicate in Ortiz that the

number of vehicles and officers present only contributed “marginally” to a custody

determination,36 the court of appeals did not err in taking such circumstances into account.

We stated in Ortiz that “[a]n ordinary traffic stop usually involves a single police car and one

or two officers,” precisely the number of vehicles and officers present in this case. As the

court of appeals held, the “ordinary” number of vehicles and officers being present weighs



       34
            Id. at 374.
       35
            Id. at 370 n. 8.
       36
            Id. at 374.
                                                                              ESTRADA—12

against a custody finding.

       Estrada also says that her detention was more coercive that Ortiz’s because she was

“ordered” instead of “asked” to step out of her vehicle, and she was “told” what illegal

substance had been found in the vehicle rather instead of being “asked” what would be found

in the vehicle.37 These arguments are without merit. In Ortiz, the detainees were separated

and questioned by different officers; Ortiz was accused individually and directly about the

presence of drugs in the vehicle; Ortiz was handcuffed after something was found on his

wife’s person; and Ortiz was directly accused of being complicit with his wife in transporting

drugs.38 None of these coercive circumstances were present in this case, and it strains

credulity for Estrada to claim that her detention was “more coercive” than Ortiz’s.

                              D. BERKEMER V. McCARTY

       Estrada also claims that Berkemer v. McCarty39 mandates a custody finding in this

case. First, Estrada states that “[a]ccording to Berkemer, at the time Officer Rodriguez posed

his question to Ms. Estrada, this encounter was no longer an investigative detention” because

the only purpose of his question was to obtain an incriminating response. Berkemer does not

stand for such a proposition. In Berkemer, the Court indicated that a non-custodial,

investigative detention will typically involve “a moderate number of questions to determine


       37
         Id. at 369, 370 (Ortiz and his wife were “asked” to step out of the car; the
detaining officer asked Ortiz “point-blank” “How much drugs are in the car?”).
       38
            Id. at 370.
       39
            468 U.S. 420 (1984).
                                                                              ESTRADA—13

his identity and to try to obtain information confirming or dispelling the officer’s

suspicions.”40 This statement does not limit questions asked during an investigative detention

to non-incriminating ones. The fact that an officer is authorized to ask questions for the

purpose of confirming or dispelling his suspicions assumes that such questions could be

potentially incriminating.41 Ultimately, the Supreme Court in Berkemer stated that a

determination of custody turns on whether a detainee’s freedom is curtailed to a degree

associated with formal arrest,42 the test this Court and the court of appeals have applied to

this case.

       Estrada also argues that the question asked by Officer Rodriguez was impermissible

because it contained an essential element of the suspected offense. She cites Berkemer to

support her theory that questions that contain elements of an offense assume special

significance in making a custody determination. However, in Berkemer, the Supreme Court

acknowledged that a question asked by police of an arrestee contained an element of an

offense only in order to distinguish it from a different question asked on a separate occasion




       40
             Id. at 439.
       41
          See Minnesota v. Murphy, 465 U.S. 420, 429–30 (1984); Oregon v. Mathiason,
429 U.S. 492, 495 (1977) (finding that although police-citizen interactions may have a
coercive aspect because law enforcement is investigating the possibility of criminal
activity, Miranda warnings are required only when restriction on an individual’s freedom
renders him “in custody.”).
       42
         Berkemer, 468 U.S. at 439 (citing California v. Beheler, 463 U.S. 1121, 1125
(1983) (per curiam)).
                                                                            ESTRADA—14

for purposes of a harm analysis.43 The Supreme Court did not identify “questions that

contain elements of an offense” as circumstances indicative of custodial arrest, and we

likewise decline to do so. It is true that Rodriguez’s question to Estrada was potentially

incriminating, and that an answer might amount to a confession. However, as we indicated

above, police are free to ask potentially incriminating questions during non-custodial

interrogation. The fact that a question contains an element of a criminal offense bears no

independent significance on a custody determination beyond the officer’s suspicion

communicated to the detainee by the nature of the question itself, which we have already

taken into account.

                             APPLICATION AND CONCLUSION

       In the end, Estrada can identify only one circumstance that might lead a reasonable

person to consider himself in custody for Miranda purposes: the fact that Officer Rodriguez

asked Estrada and her passenger whom the drugs belonged to. Every other factor identified

by this Court and the court of appeals—that Estrada was not handcuffed; that she was not

subjected to a pat-down; that the “ordinary” number of police vehicles and officers were

present during her detention; that she was not informed that she was not free to leave; and

that she was not separated from her passenger and interrogated individually—indicate that

the stop was a simple investigative detention and never rose to the level where a reasonable

person would consider himself in custody. Other circumstances that Estrada mentions in her


       43
            Id. at 443–44.
                                                                            ESTRADA—15

brief—for example, that Officer Rodriguez ordered her to exit the vehicle and then searched

the vehicle—are likewise not indicative of custody and are procedures that routinely occur

when an officer detects an odor of marijuana inside a vehicle.44

       Because no other circumstances are indicative of custody, we decline to hold that a

single incriminating question, directed at multiple individuals who might have had access to

the drugs at issue, is sufficient to establish that a “reasonable person would perceive the

detention to be a restraint on his movement comparable to formal arrest.”45 Estrada was not

in custody for Miranda purposes when she responded that she was the owner of the

marijuana. The judgment of the court of appeals is affirmed.



DATE DELIVERED: March 12, 2014

DO NOT PUBLISH




       44
          Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978) (upholding the
warrantless search of an automobile and investigative detention of the vehicle’s
passengers based on the odor of marijuana officers smelled at the time they stopped the
vehicle).
       45
            Ortiz, 382 S.W.3d at 372 (ellipsis omitted).
