Affirmed and Memorandum Opinion filed February 7, 2012




                                       In The


                     Fourteenth Court of Appeals

                               NO. 14-11-00153-CR



                      VAUGHN TERRELL KING, Appellant


                                         V.


                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 185th District Court
                              Harris County, Texas
                         Trial Court Cause No. 1272035



                       MEMORANDUM OPINION

      Appellant Vaughn Terrell King appeals the trial court’s denial of his motion to
suppress. After King’s motion was denied, he pleaded guilty to felony possession of
cocaine and, with an agreed recommendation from the State, was sentenced to seventeen
years’ confinement in the Institutional Division of the Texas Department of Criminal
Justice. In a single issue, King contends the trial court abused its discretion in denying his
motion to suppress. Finding no abuse of discretion, we affirm.

                                              I

       At the hearing on King’s motion to suppress, the State presented Deputy Ronnie
Morrison of the Harris County Sheriff’s Department. Morrison testified that around 12:20
a.m. on July 27, 2010, he was patrolling in an area of west Houston he knew from past
experience to be a narcotics hotspot. There were no pedestrians in the area and little to no
traffic, and Morrison noticed two silhouettes moving inside a gray Cadillac that had been
backed into a driveway. Its engine and headlights were both off. Morrison immediately
suspected illegal activity and illuminated the parked car with his patrol car’s spotlight,
revealing two men inside: King was sitting in the passenger seat, and his cousin, Kevin
Biggurs, was in the driver’s seat. Morrison testified that, upon seeing the spotlight, King
immediately leaned forward in his seat and reached behind his body—a motion Morrison
has come to recognize as an attempt to either conceal contraband or grab a weapon.

       Morrison parked his patrol car in front of the driveway but off center so that the
vehicle could have gone around his patrol car. With the spotlight still on, he approached
the passenger side of the Cadillac, holding a flashlight in his left hand and touching his
pistol with his right hand. When he was about ten feet away, King opened his door.
Morrison noticed ―a haze of smoke‖ escaping through the open door, and he immediately
smelled marijuana. King appeared nervous, and Morrison was concerned that he might
take off running. Morrison informed King he was going to pat him down out of safety
concerns, and King cooperated. During the pat-down, Morrison ―felt a rock, chunky-like
substance protruding from the back portion of his pants.‖ Based on his previous
experience and the movements made by King when the spotlight was turned on, Morrison
immediately thought the substance was crack cocaine. Without mentioning the suspicious
substance, Morrison handcuffed King and placed him in the back of the patrol car while
he patted down Biggurs. After a short time, Morrison returned to King and asked him to
hand over ―the dope that was on him.‖ King opened his mouth to reveal a small bag of

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marijuana, and he told Morrison he did not have any other contraband on him. When
Morrison confronted King about the suspicious substance in his pants, King denied he
was hiding anything there. Morrison placed King against the patrol car and retrieved a
bag containing 13 grams of crack cocaine by ―working [it] up from his pants to the top of
his pants.‖

       After hearing King’s motion to suppress, the trial court denied the motion and
found that Morrison’s interaction with King began as a casual encounter and did not
transform to an investigatory detention by Morrison’s use of his spotlight. It recognized
the surrounding facts—the Cadillac’s position, the time of night, and the surrounding
darkness—and found Morrison’s use of the spotlight to be necessary for officer safety.
The trial court also noted that, once Morrison noticed the odor of marijuana, he had
probable cause to arrest King. After the trial court’s ruling, King pled guilty and appealed
the denial of his motion to suppress.

                                             II

       We review the trial court's ruling on a motion to suppress under an abuse-of-
discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005);
Thomas v. State, 297 S.W.3d 458, 460 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d). We give almost total deference to the trial court’s determination of historical facts
but review de novo the trial court’s application of the law to those facts. State v. Ross, 32
S.W.3d 853, 856 (Tex. Crim. App. 2000), modified on other grounds, State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006); Thomas, 297 S.W.3d at 460. When the trial court
does not make explicit findings of fact, we infer the necessary factual findings that
support the trial court’s ruling if the record evidence supports these implied fact findings.
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Ross, 32 S.W.3d at
855. Thus, the party that prevailed in the trial court is afforded the strongest legitimate
view of the evidence and all reasonable inferences that may be drawn from that evidence.
Garcia-Cantu, 253 S.W.3d at 241. But the question of whether a given set of historical



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facts amount to a consensual police-citizen encounter or a detention under the Fourth
Amendment is subject to a de novo review because that is an issue of law. Id.

       There are three distinct categories of interactions between police officers and
citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v. Woodard,
341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011); State v. Castleberry, 332 S.W.3d 460,
466 (Tex. Crim. App. 2011). A detention implicates the Fourth Amendment’s search and
seizure restrictions and requires articulable suspicion to support a temporary seizure,
while an encounter is not subject to any Fourth Amendment requirements or restrictions.
Garcia-Cantu, 253 S.W.3d at 238. A police officer is just as free as anyone to stop and
question a fellow citizen. Woodard, 341 S.W.3d at 411; Castleberry, 332 S.W.3d at 466.
An officer may, without reasonable suspicion, request identification and information
from a citizen. Woodard, 341 S.W.3d at 411. Even if the officer did not tell the citizen
that the request for identification or information may be ignored, the fact that the citizen
complied with the request does not negate the consensual nature of the encounter. Id.

       Although no bright-line rule governs when a consensual encounter becomes a
seizure, generally when an officer through force or a showing of authority restrains a
citizen’s liberty, the encounter is no longer consensual. Woodard, 341 S.W.3d at 411;
Johnson v. State, 14-10-01089-CR, 2011 WL 6176184 at *4, ___ S.W.3d ___ (Tex.
App.—Houston [14th Dist.] Dec. 13, 2011, no pet. h.). A Fourth Amendment seizure
occurs when, taking into account all of the circumstances surrounding the encounter, the
police conduct would have communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his business. Garcia-Cantu, 253
S.W.3d at 242; see also Brower v. County of Inyo, 489 U.S. 593, 596–97 (1989) (holding
that a Fourth Amendment seizure occurs when there is governmental termination of
freedom of movement through means intentionally applied). If, on the other hand, such
person has an option to ignore the request or terminate the interaction, then a Fourth
Amendment seizure has not occurred. Woodard, 341 S.W.3d at 411. The surrounding
circumstances, including time and place, are taken into account, but the officer’s conduct


                                             4
is the most important factor when deciding whether an interaction was consensual or a
Fourth Amendment seizure. Id.

                                            III

       In his sole issue, King contends that the trial court erred by concluding the initial
interaction between Deputy Morrison and King was a casual encounter. He argues that
―the combination of the spotlight, the deputy pulling his patrol car across the street, and
his blocking the entrance to the driveway constituted a show of authority‖ that
transformed the encounter into an improper investigatory detention—improper because
Morrison did not have the requisite reasonable suspicion. We disagree.

       The Court of Criminal Appeals has made it clear that the use of a police spotlight,
alone, is not enough to transform a casual encounter into an investigatory detention.
Crain v. State, 315 S.W.3d 43, 50–51 (Tex. Crim. App. 2010); see also Stewart v. State,
603 S.W.2d 861, 862 (Tex. Crim. App. 1980). Here, Deputy Morrison’s use of the
spotlight was the only action he took before he noticed King leaning forward and
reaching back—a motion Morrison recognized as an attempt to either hide contraband or
grab a weapon. Only then did Morrison park his patrol car and approach the Cadillac. He
continued shining the flash light with his left hand and had his right hand on his gun.
Then, Morrison began to exit the vehicle and Deputy Morrison saw and smelled
marijuana smoke.

       At that point, the totality of the circumstances gave rise to Morrison’s reasonable
suspicion: The high-crime area, late hour, backed-in position of the Cadillac, and King’s
furtive movements—all combined—were certainly enough to support an investigatory
detention, though we hesitate to rule that Morrison’s actions to that point constituted such
a detention. Fortunately, we need not rule either way on that issue because Morrison’s
actions were appropriate regardless of whether they constituted an investigatory
detention.




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       We reject King’s argument that Deputy Morrison needed a reasonable suspicion of
criminal activity before he used his spotlight to illuminate the Cadillac. To adopt such a
position would be to severely handicap law enforcement during nighttime hours—the
time when crime is especially likely to occur. See, e.g., Amorella v. State, 554 S.W.2d
700, 701 (Tex. Crim. App. 1977) (using the late hour as a factor in determining whether
law enforcement officer had reasonable suspicion). Thus, the trial court’s characterization
of Morrison’s initial approach as part of a casual encounter is correct, and we find no
abuse of discretion.

                                           ***

       For the foregoing reasons, we affirm.




                                          /s/       Jeffrey V. Brown
                                                    Justice


Panel consists of Justices Brown, Boyce, and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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