Robert Edward Collins v. State

Affirmed and Memorandum Opinion filed November 6, 2007

Affirmed and Memorandum Opinion filed November 6, 2007.

In The

Fourteenth Court of

Appeals

____________

NO. 14-06-00889-CR

____________

ROBERT EDWARD COLLINS , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 338th

District Court

Harris County, Texas

Trial Court Cause No. 1059194

M E M O R A N D U M O P I N I O N

Appellant, Robert Edward Collins, appeals from his

conviction for possession with intent to deliver of between 4 and 200 grams of

cocaine. After the trial court denied appellant = s motion to

suppress, appellant pleaded guilty, and the trial court found him guilty and

sentenced him to seven years confinement, probated for seven years, and a $500

fine. In two issues, appellant contends that the trial court erred in denying

his motion to suppress because the arresting officer (1) did not have

reasonable suspicion to conduct an investigative detention, and (2) exceeded

the scope of a search permitted during an investigative detention and did not

have probable cause for such search. We affirm.

Background

At the motion to suppress hearing, Sergeant Michael

Tollison of the Jacinto City Police Department testified that on February 25,

2006, at approximately 2:35 a.m., he was patrolling an area of convenience

stores subject to robberies. He observed a vehicle with two people inside of

it parked at gasoline pumps at one of the convenience stores. The occupants

were just sitting there, and this appeared suspicious to him because they were

not filling their car with gas and seemed to have no connection with the

store. When he approached them on foot, A they became

startled and appeared to be nervous. @ He identified

the driver as Nathan Lee Solley, and the passenger as appellant. When he

approached, he asked Solley what they were doing; both occupants answered that

they were pumping gas, which they were not. While he was talking to them, they

still appeared nervous, and their hands were trembling.

Tollison asked Solley to step out of the vehicle; he then

asked Solley for consent to search the vehicle, to which Solley replied A go ahead. @ He further asked

Solley to stay with the other officer at the scene, and he asked appellant to

step out of the vehicle. As appellant was exiting, A clear plastic

baggies fell to the ground and he kicked them underneath the car. @ The A baggies @ fell from

appellant = s clothing. Tollison retrieved the baggies; there was

nothing inside them. He testified that based on his experience, the baggies

were of a type narcotics suspects use to hold marijuana, cocaine, or LSD and to

hide it on their bodies. He explained that the baggies in question differ from

sandwich bags because they are A [a] little bit thicker, smaller @ and square.

He asked Solley and appellant to take off their shoes.

Appellant complied, and when he removed his shoes, Tollison saw a plastic

baggie in appellant = s left shoe containing a green leafy

substance. Tollison retrieved the baggie, and based on his experience, he

determined that it looked and smelled like marijuana. His field test on the

substance was positive for marijuana. He then placed appellant under arrest.

During booking at a police substation, while Tollison

performed a search of appellant = s clothing, a plastic baggie holding

several smaller baggies fell out of appellant = s underwear. The

smaller bags contained a white powdery residue that was determined to be

cocaine weighing 5.5 grams.

On cross-examination, Tollison acknowledged that plastic

bags of that type do have other uses and are not made solely for the purpose of

carrying narcotics. He also admitted that he did not check inside the

convenience store to determine whether anyone with Solley and appellant may

have been in the store. He did not inquire with anyone inside the store as to

whether Solley or appellant had been inside to buy anything.

After the trial court denied the motion to suppress,

appellant pleaded guilty, and the trial court found him guilty. The trial

court subsequently certified appellant = s right to appeal.

Standards of Review

We review a trial court = s ruling on a

motion to suppress evidence under an abuse of discretion standard. Villarreal

v. State , 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression

hearing, the trial judge is the sole fact finder. Arnold v. State , 873

S.W.2d 27, 34 (Tex. Crim. App. 1993). We give almost total deference to the

trial court = s determination of historical facts when supported by

the record, particularly if the findings turn on witness credibility and

demeanor. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); 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). The same deference is accorded to

determinations of mixed questions of law and fact if their resolution depends

upon witness credibility and demeanor. Ross , 32 S.W.3d at 856 . Issues

that present purely legal questions are considered under a de novo standard. Id .

We will sustain 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. Villarreal ,

935 S.W.2d at 138 .

There are three basic categories of interaction between

police officers and citizens: encounters, investigative detentions, and

arrests. Francis v. State , 922 S.W.2d 176, 178 (Tex. Crim. App. 1996).

An encounter is a friendly exchange of pleasantries or mutually useful

information. Id . (citing Terry v. Ohio , 392 U.S. 1 (1968)). In

an encounter, a police officer is not required to possess any particular level

of suspicion, because the citizen is under no compulsion to remain. Id .

In an investigative detention (also known as a temporary detention or A Terry ‑stop @ ), however, the

officer must be able to articulate specific facts that, in light of his

experience and personal knowledge, together with inferences from those facts,

reasonably warrant the intrusion on the freedom of the citizen stopped. Id .

(citing Terry , 392 U.S. at 21 ). In other words, to justify a detention,

there must be a reasonable suspicion by the officer that some unusual activity

is or has occurred, that the detained person is connected with the activity,

and that the unusual activity is related to the commission of a crime. Id .

An investigative detention is a seizure under which the citizen is not free to

leave, at least for some period of time. Id . An arrest imposes the

highest level of intrusion and thus requires the highest level of suspicion, or

A probable cause, @ that the citizen

involved has engaged in or is engaging in criminal activity. Id .

(citing Henry v. United States , 361 U.S. 98, 103 (1959)). The seizure

involved in an arrest will generally not be brief. Id . The key

questions in determining whether an interaction is an encounter or a detention

are whether a reasonable person would have believed he or she was free to leave

and whether they actually yielded to the officer = s show of

authority. Id . The key issue in determining whether an interaction

constitutes a detention or an arrest is whether a reasonable person would have

believed the seizure was to be brief. It is also important to note that these

differing levels of interaction often flow from one into the next, and

sometimes the lines between them may blur in any given transaction. See id .

A [W]hat may begin

as a consensual encounter can readily become an investigative detention, which

may evolve into an arrest. @ Id .

Investigative Detention

In his first issue, appellant contends that the trial court

erred in denying his motion to suppress because Officer Tollison did not

possess the requisite reasonable suspicion to initiate an investigative

detention. [1]

Specifically, appellant contends that what began as a casual encounter became

an investigative detention when Tollison ordered Solley and appellant out of

the vehicle. At least in regards to appellant, we disagree. To begin with,

the record does not reflect that Tollison ordered either man out of the

vehicle. Tollison testified that he asked Solley to step out of the vehicle

and then asked Solley for permission to search the vehicle. Only after Solley

consented to the vehicle search did Tollison ask appellant to get out of the

vehicle, apparently so that he (Tollison) could then search the vehicle.

Whether Tollison acted properly in initially asking Solley to exit the vehicle

is not a matter about which appellant can complain. See Kothe v. State ,

152 S.W.3d 54, 59 (Tex. Crim. App. 2004) ( A [A defendant] has

no standing to complain about the invasion of someone else = s personal rights. @ ) (citing

United States v. Salvucci , 448 U.S. 83 , 84‑85 (1980)); Tucker v.

State , 183 S.W.3d 501, 506-07 (Tex. App. C Fort Worth 2005,

no pet.) (discussing Kothe ). The most important point here is that

there is no evidence in the record that Tollison asked appellant to exit for

any reason other than to conduct the driver authorized search. Furthermore,

there is no evidence that Tollison told appellant not to go anywhere or

restricted his movement in any other way.

In Stone v. State , the Amarillo Court of Appeals

held that no detention occurred when a passenger was asked to vacate a vehicle

in order for a consensual search to proceed, stating A it reasonably

falls within the scope of the consent granted by the person in control of the

vehicle to ask those in the car to exit it so the search can be conducted. @ 147 S.W.3d 657,

660 (Tex. App. C Amarillo 2004, pet. ref = d). [2]

We agree with our sister court = s reasoning. Accordingly, the trial court

could have reasonably determined that a detention did not occur when Tollison

asked appellant to step out of the vehicle; thus, a reasonable suspicion was

not required for Tollison to make that request.

Additionally, even assuming that Tollison = s request for

appellant to step out of the vehicle constituted an investigative detention,

Tollison articulated specific facts that C when combined with

rational inferences therefrom C justified the temporary investigative

detention. See Francis , 922 S.W.2d at 178 . Tollison testified that at

approximately 2:35 a.m., he observed appellant parked in a vehicle at a

convenience store in an area where convenience stores were subject to

robberies. Appellant and the driver of the vehicle were just sitting there.

This situation appeared suspicious to Tollison because they were not filling

the car with gas and, indeed, seemed to have no connection with the store.

When he approached them on foot, A they became

startled and appeared to be nervous. @ He asked the driver

what they were doing, and both occupants answered that they were pumping gas,

which they were not. While he was talking to them, both continued to appear

nervous, and their hands were trembling.

Nervousness alone does not constitute grounds to reasonably

suspect criminal activity is afoot. Munera v. State , 965 S.W.2d 523 ,

531 (Tex. App. C Houston [14th Dist.] 1997, pet. refd.). Likewise, a

person = s mere presence in

a high crime area is insufficient to create reasonable suspicion justifying a

search. Gurrola v. State , 877 S.W.2d 300, 303 (Tex. Crim. App. 1994).

And, certainly, simply sitting in a parked car at 2:35 a.m. is not sufficient.

However, we find that the totality of the circumstances here C including

nervousness and trembling, presence in a high crime area (specifically presence

in front of a convenience store in an area known for convenience store robberies),

sitting in a parked car in a public place at 2:35 a.m., and giving inaccurate

information to a police officer C constituted sufficient articulation of

specific facts to support the trial court = s determination to

validate the temporary investigative detention. See , e.g. , Crooks

v. State , 821 S.W.2d 666, 668-69 (Tex. App. C Houston [14th

Dist.] 1991, no pet.) (holding that validity of investigative detention was

supported by evidence that defendant was observed at night sitting in a vehicle

in an empty parking lot in a high crime area and acted A nervous and

jittery @ when he saw

police officer). Accordingly, we overrule appellant = s first issue.

Search &Seizure

In his second issue, appellant contends that the trial

court erred in denying his motion to suppress because: (1) Tollison = s search of

appellant = s shoes, in which contraband was discovered, exceeded

the permissible scope of a search incident to an investigative detention, and

(2) Tollison did not otherwise have probable cause to search appellant = s shoes. We find

both of appellant = s arguments to be without merit.

Regarding the first argument, there is no evidence in the record that Tollison

conducted a pat-down search for weapons incident to an investigative detention;

thus, the law regarding such searches is not implicated here. See generally

Terry , 392 U.S. at 29-30 (authorizing a pat-down search for weapons when

the officer is justified in believing a detainee may be armed and dangerous); Balentine

v. State , 71 S.W.3d 763, 769-70 (Tex. Crim. App. 2002) (discussing Terry ).

Regarding appellant = s second argument,

although appellant states that Tollison A told both young

men to take off their shoes, @ in his testimony, Tollison stated only

that he asked appellant to remove his shoes, and appellant complied. [3]

Appellant neither asserts nor cites evidence suggesting that his removal of his

shoes was anything other than consensual, or that the consent was the product

of any express or implied duress or coercion. Generally, in the absence of

duress or coercion, when a person voluntarily and expressly consents to a

request to search, there is no need for the requesting law enforcement officer

to have probable cause for the search. Schneckloth v. Bustamonte , 412

U.S. 218, 219-23 (1973); Flores v. State , 172 S.W.3d 742, 749 (Tex. App. C Houston [14th

Dist.] 2005, no pet.); see also Champenois v. State , 874 S.W.2d 254, 258

(Tex. App. C Houston [1st Dist.] 1994, pet. ref = d) (holding that

defendant = s consent to search his shoes was voluntarily given).

Accordingly, appellant = s second issue is overruled.

We affirm the trial court = s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered

and Memorandum Opinion filed November 6, 2007.

Panel consists of

Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The State initially argues in its brief that

appellant = s issues on appeal do not comport with the issues he

raised in the trial court, citing Rezac v. State , 782 S.W.2d 869, 870

(Tex. Crim. App. 1990). Specifically, while on appeal appellant argues that

the search and seizure was illegal under both the United States Constitution

and the Texas Constitution, in the trial court, appellant only referenced Texas

Constitutional provisions. See generally U.S. Const. amend. IV; Tex.

Const. art. I, ' 9. Although the State is accurate in pointing out

this discrepancy in appellant = s arguments, it

is a highly technical point. The State does not identify any way in which the

analysis of appellant = s issues would be substantively different if

undertaken pursuant to the Texas Constitution as opposed to the United States

Constitution, and we are aware of no such distinction in this case. See,

e.g., Rothenberg v. State , 176 S.W.3d 53, 57-61 (Tex. App. C Houston [1st Dist.] 2004, pet. ref = d) (discussing Crittenden v. State , 899 S.W.2d

668 (Tex. Crim. App. 1995), and Johnson v. State , 912 S.W.2d 227 (Tex.

Crim. App. 1995)). Consequently, in the interests of justice, we will address

the substance of appellant = s arguments.

[2] Appellant cites Ebarb v. State , 598 S.W.2d

842 (Tex. Crim. App. 1979), for the proposition that a detention occurred as

soon as Tollison ordered appellant out of the vehicle. As discussed above, the

evidence demonstrates that Tollison asked appellant to vacate the vehicle and

did not order him out. Furthermore, Ebarb is distinguishable because in

that case (1) the officers were acting on a tip that Mrs. Ebarb had a handgun

in her vehicle; (2) the officers followed the vehicle until it stopped in a

private driveway belonging to Mrs. Ebarb = s

son, and (3) the vehicle belonged to the passenger, Mrs. Ebarb, who exited

after being asked if the officers could search the vehicle. Id . at

843-44. Here, Officer Tollison merely came upon Solley and appellant in a

parked vehicle and asked appellant to exit only after obtaining permission to

search from the vehicle = s owner, Solley. Thus, the facts of the present case

are more similar to those in Stone than those of Ebarb .

[3] Indeed, elsewhere in his brief, appellant states

that Tollison A asked @ appellant to

take off his shoes.