
 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-00-00244-CR


The State of Texas, Appellant


v.


John Thomas Daly, Appellee




FROM THE COUNTY COURT OF LLANO COUNTY

NO. 11,147, HONORABLE J. P. DODGEN, JUDGE PRESIDING


The State appeals the county court's order granting appellee John Thomas Daly's
motion to suppress evidence.  See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West Supp.
2000).  The underlying prosecution is for possession of less than two ounces of marihuana.  See
Tex. Health & Safety Code Ann. § 481.121(a), (b)(1) (West Supp. 2000).  We will affirm the
order.

On April 14, 1999, Daly was driving through the Hill Country with his wife and
one-year-old daughter, looking at the wildflowers.  At 12:30 that afternoon, they were stopped
on Highway 29 about four miles west of Llano by Robert Byler, a San Saba police officer
permanently assigned to the 33rd Judicial District Narcotics Enforcement Team.  Officer Byler,
who was patrolling the highway in a marked vehicle, testified that he stopped Daly after seeing
him make a turn without signaling.  Daly and his wife testified that Daly did signal the turn.

The roadside encounter following the stop was videotaped by a camera mounted in
Byler's patrol vehicle.  The videotape was introduced in evidence, and we have watched it during
our review of the record.  The officer was dressed in his "NET uniform": black shirt, black utility
pants, and black combat-style boots.  He did not carry his pistol in the usual Sam Browne belt,
but instead had it strapped to his thigh.  Byler introduced himself to Daly as being with "State
narcotics."  Byler explained to Daly why he had been stopped, took Daly's driver's license, and
returned to his patrol vehicle, leaving Daly standing at the rear of his car.  A radioed check
disclosed no outstanding warrants for Daly.  Byler returned to Daly and issued him a warning for 
failing to signal his turn.(1)
At this point, there is a conflict between the testimony at the suppression hearing
and the events shown on the videotape.  Byler testified that after issuing the warning, he returned
Daly's driver's license and told him he was free to go.  Daly testified that he did not remember
Byler returning his license and that Byler did not tell him he could leave.  The videotape shows
that the officer did return Daly's driver's license, but that he did not tell Daly he was free to go. 
Instead, Byler asked Daly if he would mind answering some questions.(2)  Daly replied that he did
not mind.  At the hearing, Daly explained that he believed that he was in no position to ignore
Byler's questions and walk away "unless he gave me my license and that piece of paper and said,
'You may go.'"  Daly added, "I never heard or felt that I was free to go. . . .  I wouldn't leave
until the officer would say, 'Okay.  You can go,' you know.  And I never heard that.  Believe me,
I would have gotten in my car and gone."  Daly also said that Byler's appearance that afternoon
"was downright scary to me," citing the officer's all-black uniform, sunglasses, and low-slung
pistol. 

Byler began his questioning by asking Daly if he had ever been arrested.(3)  Daly
admitted that he had.  Thereafter, in response to a series of questions by the officer, Daly revealed
that he had been arrested for driving while intoxicated and for possession of marihuana, the latter
offense occurring in the 1970's.  After asking Daly for other details regarding the marihuana
possession, Byler inquired when Daly had last smoked marihuana.  Daly told the officer that it had
been several weeks earlier.  Byler asked if Daly "had any pot on [him]."  Daly said he did not. 
The officer then asked if Daly had any "roaches" (butts of smoked marihuana cigarettes) in the car. 
Daly told Byler that there was a roach under the floor mat on the driver's side of the car.

Byler frisked Daly, asked Daly's wife and child to get out of the car, and retrieved
the remains of the marihuana cigarette.  Byler then asked for and received Daly's permission to
search the car.  The officer found a pill in the glove compartment.  Daly testified that this was an
analgesic for which he had a prescription.

Daly's motion to suppress challenged the legality of both the initial stop and the
subsequent questioning and search.(4)  The county court granted the motion in a written order.  In
the order, the court expressly declined to rule on the propriety of the stop, citing the "conflicting
evidence."  Assuming the propriety of the stop, the court went on to find that Daly was lawfully
detained while Byler checked for outstanding warrants and issued the written warning.  The court
concluded, however, that Daly was unlawfully detained thereafter, and that his consent to the
questioning and search was involuntary.


An "average" citizen (definition being a citizen not fully versed in applicable law
and one not accustomed to questioning by law officers) will be marginally
intimidated by a uniformed officer.  They normally would not know that they are
"free to go" when the cause of detention is completed.


Notwithstanding that the defendant had a prior criminal history, he obviously did
not know he was no longer being detained and was "free to go."  It further is the
opinion of the court that the officer's uniform (described during testimony as a
"SWAT uniform and only seen on TV") was intimidating to the defendant to the
point that he felt uncomfortable and therefore an element that led him to feel
compelled to not leave.  Questioning for the purpose of developing reasonable
suspicion was congenial and appropriate in the opinion of the court, although the
detention after conclusion of the traffic stop is another question.


The court rules that consent to questioning and search of the vehicle were
involuntary, based on the aforementioned reasons, all evidence is suppressed
subsequent to issuance of the traffic citation, and the Motion to Suppress is
GRANTED in its entirety.



The standard of review on an appeal from an order granting or denying a motion
to suppress evidence is as follows:


[A]s a general rule, the appellate courts . . . should afford almost total deference
to a trial court's determination of the historical facts that the record supports
especially when the trial court's fact findings are based on an evaluation of
credibility and demeanor.  The appellate courts . . . should afford the same amount
of deference to trial courts' rulings on "application of law to fact questions," also
known as "mixed questions of law and fact," if the resolution of those ultimate
questions turns on an evaluation of credibility and demeanor.  The appellate courts
may review de novo "mixed questions of law and fact" not falling within this
category.



Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (citations omitted).

A traffic stop is a Fourth Amendment seizure analogous to a temporary detention. 
Berkemer v. McCarty, 468 U.S. 420, 439 (1984); Delaware v. Prouse, 440 U.S. 648, 653 (1979). 
The detention may last no longer than is necessary to effectuate the purpose of the stop.  Florida
v. Royer, 460 U.S. 491, 500 (1983).  A detention becomes unreasonable when it is not reasonably
related in scope to the circumstances which justified the detention in the first place.  Davis v.
State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).

Daly was stopped solely on the basis of the observed traffic violation.  There is no
evidence of any suspicious behavior or incriminating circumstance arising after the stop that would
have warranted the officer in detaining Daly beyond the time needed to issue the warning ticket. 
Indeed, Byler acknowledged at the hearing that after the ticket was issued, "Our business was
concluded."  Nevertheless, Byler thereafter sought to question Daly for the purpose of "developing
reasonable suspicion."  But the existence of reasonable suspicion must precede a detention; a
detention that is not based on reasonable suspicion is unlawful.  Terry v. Ohio, 392 U.S. 1, 30
(1968); Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992).  On this record, there was
no basis for continuing to detain Daly after the traffic warning was issued.

The State argues that Daly was not detained beyond the issuance of the warning
ticket.  Instead, the State contends Daly voluntarily remained at the scene to answer the officer's
questions.

The Fourth Amendment does not proscribe voluntary cooperation.  Florida v.
Bostick, 501 U.S. 429, 439 (1991).  A police officer may approach a citizen without probable
cause or reasonable suspicion to ask questions or even to request a search.  Florida v. Royer, 460
U.S. 491, 497-98 (1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). 
"When officers have no basis for suspecting a particular individual, they may generally ask
questions of that individual . . . as long as the police do not convey a message that compliance
with their requests is required."  Bostick, 501 U.S. at 435.  As long as the citizen to whom the
officer puts the questions remains free to disregard the questions and walk away, neither the
Fourth Amendment nor article I, section 9 is implicated.  Royer, 912 U.S. at 497-98; Johnson,
912 S.W.2d at 235. 

Whether a person's consent was in fact voluntary or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the totality of all the
circumstances.  Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).  The State must show by
clear and convincing evidence that consent was voluntarily given.  State v. Ibarra, 953 S.W.2d
242, 245 (Tex. Crim. App. 1997).  "'Consent' that is the product of official intimidation or
harassment is not consent at all."  Bostick, 501 U.S. at 438.

The county court concluded that Daly did not voluntarily consent to Byler's
questioning or to the search of his car on the basis of two findings.  First, the court found that an
average citizen will feel "marginally intimidated" by a uniformed officer, and that Daly himself
felt uncomfortable in the presence of Byler's SWAT-style uniform.  "[M]ost confrontations with
the police are uncomfortable -- given the implicit difficulty in refusing any request from a peace
officer who stands cloaked in the authority of law enforcement . . . ."  Carmouche v. State 10
S.W.3d 323, 333 (Tex. Crim. App. 2000).  "But the Constitution does not guarantee freedom from
discomfort.  And the test is not whether a timid person would feel free to terminate the interview. 
Instead, the [courts use] a 'reasonable person' standard."  State v. Velasquez, 994 S.W.2d 676,
679 (Tex. Crim. App. 1999).  The Constitution "presumes that an actor is invested with a vibrant
sense of his own constitutional rights and will assert those rights when they are implicated." 
Carmouche, 10 S.W.3d at 333.  The question is not whether Daly felt uncomfortable telling Byler
he did not want to answer the officer's questions, but whether Byler, by word or deed, conveyed
the message that compliance with his request was required.

The county court also found that an average citizen will not know that he is free to
go when the cause of a detention is completed, and that Daly himself did not know that he was free
to leave after the warning ticket was issued.  Such knowledge was not essential to a finding that
Daly voluntarily consented to answer Byler's questions.  Voluntary consent is not equivalent to
a knowing waiver.  "[W]e cannot accept the position . . . that proof of knowledge of the right to
refuse consent is a necessary prerequisite to demonstrating a 'voluntary' consent."  Schneckloth,
412 U.S. at 232-33.  "[W]hile the subject's knowledge of a right to refuse is a factor to be taken
into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent."  Schneckloth, 412 U.S. at 249; see also Ohio v. Robinette, 519
U.S. 33, 39-40 (1996) (Fourth Amendment does not require officer to inform detainee that he is
free to go before consent to search may be deemed voluntary).  The dispositive question is not
whether Daly knew he had the right to refuse to answer Byler's questions, but whether his
agreement to answer the questions was the result of duress or coercion, either express or implied. 
Schneckloth, 412 U.S. at 248. 

While neither Daly's feeling of discomfort nor his lack of knowledge of his rights
is dispositive, both are circumstances that may be considered in determining whether a reasonable
person in Daly's situation would have understood that he could ignore the officer, return to his
car, and drive away.  This cause does not involve a situation in which an officer approaches a
person with whom he has had no previous contact and initiates a conversation.  Instead, Daly had
been seized by Byler within the meaning of the constitution when he was stopped for the traffic
offense.  Byler identified himself to Daly as "State narcotics," was driving a vehicle bearing the
words "narcotics enforcement team," and had his trained narcotics-sniffing dog in the patrol
vehicle.  While the legal justification for the seizure ended with the issuance of the warning ticket,
Daly did not know and was not told that he was free to go about his business.(5)  It is understandable
that Byler did not tell Daly that he was free to go, since by his own admission the officer intended
to question Daly in order to "develop reasonable suspicion" of a narcotics violation.  Indeed, the
videotape demonstrates that even as he was handing Daly the ticket and his driver's license, Byler
was asking Daly if he would answer a few questions.   A reasonable person in these circumstances
would have believed that his detention continued and that compliance with the officer's request
was required.

We hold that the State failed to present clear and convincing evidence that Daly
voluntarily remained at the scene to answer the officer's questions.  The county court properly
concluded that Daly was unlawfully detained after the issuance of the warning ticket.  See
California v. Hodari D., 499 U.S. 621, 625-26 (1991); Johnson, 912 S.W.2d at 235 (person
seized when he yields to officer's show of authority).  Daly's statements to Byler in response to
the officer's questions and the evidence found in the car were the fruits of this unlawful detention.

The order suppressing evidence is affirmed.


  
				Mack Kidd, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed:   December 21, 2000

Publish

1.        Although Byler was ostensibly on traffic patrol, he testified that he was not provided a book
of "regular citations," and carried only warning tickets.  It seems apparent from the record that
Byler's primary interest was narcotics interdiction.  On the videotape, Byler tells Daly that the
improper turn "gave me a reason to stop you."  
2.        Byler testified that the purpose of the questioning was to develop reasonable suspicion of a
narcotics violation.  According to the officer, "We're trained to go through conversations or look
-- while you're standing at the window look for any paraphernalia or anything.  That way you can
develop reasonable suspicion before you ask for consent to search."
3.        The officer testified that this was a "standard question" he was taught to ask at "interdiction
schools."  Byler stated, "I usually ask it, no matter what."
4.        The motion cited article 38.23, the Texas exclusionary rule, but did not specify the
constitutional provision or law allegedly violated.  See Tex. Code Crim. Proc. Ann. art. 38.23
(West Supp. 2000).  The State did not challenge the adequacy of the motion.  It was Daly's
contention at the hearing that Byler's actions violated the federal and state constitutional guarantees
against unreasonable searches and seizures.  See U. S. Const. amend. IV; Tex. Const. art. I, § 9.
5.        By finding that Daly did not know he was free to go, the county court implicitly found that
Byler's testimony on this point was not credible.  See Carmouche v. State, 10 S.W.3d 323, 328
(Tex. Crim. App. 2000).  In any event, the videotape presents indisputable evidence contradicting
the officer's testimony that he told Daly he could go before questioning him.  See id. at 332. 


n
into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent."  Schneckloth, 412 U.S. at 249; see also Ohio v. Robinette, 519
U.S. 33, 39-40 (1996) (Fourth Amendment does not require officer to inform detainee that he is
free to go before consent to search may be deemed voluntary).  The dispositive question is not
whether Daly knew he had the right to refuse to answer Byler's questions, but whether his
agreement to answer the questions was the result of duress or coercion, either express or implied. 
Schneckloth, 412 U.S. at 248. 

While neither Daly's feeling of discomfort nor his lack of knowledge of his rights
is dispositive, both are circumstances that may be considered in determining whether a reasonable
person in Daly's situation would have understood that he could ignore the officer, return to his
car, and drive away.  This cause does not involve a situation in which an officer approaches a
person with whom he has had no previous contact and initiates a conversation.  Instead, Daly had
been seized by Byler within the meaning of the constitution when he was stopped for the traffic
offense.  Byler identified himself to Daly as "State narcotics," was driving a vehicle bearing the
words "narcotics enforcement team," and had his trained narcotics-sniffing dog in the patrol
vehicle.  While the legal justification for the seizure ended with the issuance of the warning ticket,
Daly did not know and was not told that he was free to go about his business.(5)  It is understandable
that Byler did not tell Daly that he was free to go, since by his own admission the officer intended
to question Daly in order to "develop reasonable suspicion" of a narcotics violation.  Indeed, the
videotape demonstrates that even as he was handing Daly the ticket and his driver's license, Byler
was asking Daly if he would answer a few questions.   A reasonable person in these circumstances
would have believed that his detention continued and that compliance with the officer's request
was required.

We hold that the State failed to present clear and convincing evidence that Daly
voluntarily remained at the scene to answer the officer's questions.  The county court properly
concluded that Daly was unlawfully detained after the issuance of the warning ticket.  See
California v. Hodari D., 499 U.S. 621, 625-26 (1991); Johnson, 912 S.W.2d at 235 (person
seized when he yields to officer's show of authority).  Daly's statements to Byler in response to
the officer's questions and the evidence found in the car were the fruits of this unlawful detention.

The order suppressing evidence is affirmed.


  
				Mack Kidd, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed:   December 21, 2000

Publish

1.        Although Byler was ostensibly on traffic patrol, he testified that he was not provided a book
of "regular citations," and carried only warning tickets.  It seems apparent from the record that
Byler's primary interest was narcotics interdiction.  On the videotape, Byler tells Daly that the
improper turn "gave me a reason to stop you."  
2.        Byler testified that the purpose of the questioning was to develop reasonable suspicion of a
narcotics violation.  According to the officer, "We're trained to go through conversations or look
-- while you're standing at the window look for any paraphernalia or anything.  That way you can
develop reasonable suspicion before you ask for consent to search."
3.        The officer testified that this was a "standard question" he was taught to ask at "interdiction
schools."  Byler stated, "I usually ask it, no matter what."
4.        The motion cited article 38.23, the Texas exclusionary rule, but did not specify the
constitutional provision or law allegedly violated.  See Tex. Code Crim. Proc. Ann. art. 38.23
(West Supp. 2000).  The State did not challenge the adequacy of the motion.  It was Daly's
contention at the hearing that Byler's actions violated the federal and state constitutional guarantees
against unreasonable searches and seizures.  See U. S. Const. amend. IV; Tex. Const. art. I, § 9.
5.        By finding that Daly did not know he was free to go, the county court implicitly found that
Byler's testimony on this point was not credible.  See Carmouche v. State, 10 S.W.3d 323, 328
(Tex. Crim. App. 2000).  In any event, the videotape presents indisputable evidence contradicting
the officer's testimony that he told Daly he could go before questioning him.  See id. at 332. 


n
into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent."  Schneckloth, 412 U.S. at 249; see also Ohio v. Robinette, 519
U.S. 33, 39-40 (1996) (Fourth Amendment does not require officer to inform detainee that he is
free to go before consent to search may be deemed voluntary).  The dispositive question is not
whether Daly knew he had the right to refuse to answer Byler's questions, but whether his
agreement to answer the questions was the result of duress or coercion, either express or implied. 
Schneckloth, 412 U.S. at 248. 

While neither Daly's feeling of discomfort nor his lack of knowledge of his rights
is dispositive, both are circumstances that may be considered in determining whether a reasonable
person in Daly's situation would have understood that he could ignore the officer, return to his
car, and drive away.  This cause does not involve a situation in which an officer approaches a
person with whom he has had no previous contact and initiates a conversation.  Instead, Daly had
been seized by Byler within the meaning of the constitution when he was stopped for the traffic
offense.  Byler identified himself to Daly as "State narcotics," was driving a vehicle bearing the
words "narcotics enforcement team," and had his trained narcotics-sniffing dog in the patrol
vehicle.  While the legal justification for the seizure ended with the issuance of the warning ticket,
Daly did not know and was not told that he was free to go about his business.