State v. Garcia-Cantu, Candelario

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOs. PD-0936-07 & PD-0937-07

THE STATE OF TEXAS

v.

CANDELARIO GARCIA-CANTU, Appellee

ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE NINTH COURT OF APPEALS

MONTGOMERY COUNTY

C OCHRAN, J., delivered the opinion of the Court in which M EYERS, P RICE,

W OMACK, J OHNSON and H OLCOMB, JJ., joined. K ELLER, P.J., filed a dissenting opinion

in which K EASLER and H ERVEY, JJ., joined. K EASLER, J., filed a dissenting opinion in

which K ELLER, P.J., and H ERVEY, J., joined.

OPINION

In this case, we examine the distinction between a citizen-police “encounter”and a

citizen-police “detention.” A “detention” implicates the Fourth Amendment’s search and

seizure restrictions and requires articulable suspicion to support even a temporary seizure,

while an “encounter” is not subject to any Fourth Amendment requirements or restrictions.1

1

We granted appellee’s three grounds for review:

(1) Whether the court of appeals eviscerated decades of well established US and Texas

Garcia-Cantu Page 2

We conclude that, under the totality of the circumstances test set out in Florida v. Bostick,2

the trial judge did not err in finding that the officer’s conduct in this case resulted in a Fourth

Amendment detention. We therefore reverse the judgment of the court of appeals, which had

held that the trial court improperly granted appellee’s motion to suppress.3

I.

Appellee was charged with the misdemeanor offenses of possession of marijuana and

carrying a weapon. At the hearing on the motion to suppress, the State and appellee agreed

that the only issue to be litigated was whether the facts supported the finding of a Fourth

Amendment detention or a consensual citizen-police encounter.4

Officer Okland testified that he had been with the Conroe Police Department for

Constitutional, statutory, and case law when it ruled that police officers were not required

to have, much less articulate, a “reasonable suspicion” in order to initiate an investigation

of an occupied, legally parked, non moving automobile, located in a narrow cul-de-sac.

(2) Whether the court of appeals . . . violated its own stated standard of review articulated in

Ross, 32 S.W.3d at 856 (citing Romero v. State, 800 S.W.2d at 543) to uphold the trial

court’s decision if it is correct on any theory of law applicable to the case.

(3) Whether the actions of the police herein constituted a detention requiring reasonable

suspicion.

2

501 U.S. 429 (1991).

3

State v. Garcia-Cantu, 225 S.W.3d 820 (Tex. App.–Beaumont 2007).

4

See State’s Brief at 5 (“As the only issue addressed in the motion to suppress was

whether Off. Okland had lawfully approached the truck, there was no testimony regarding either

what evidence was discovered after Off. Okland approached Appellee or how it was

discovered.”) (citation omitted); id. at 8 n.3 (“The State agrees with Appellee that the evidence

within the record tending to support reasonable suspicion was highly contested, and, as such, the

trial court would not have abused its discretion in granting Appellee’s motion to suppress if

Appellee was, in fact, detained.”).

Garcia-Cantu Page 3

eighteen months. He was on routine patrol in the 300 block of South Pacific at about 4:00

a.m. on December 26 th , when he saw a green Ford truck parked at the end of the block.5

Officer Okland stated that the 300 block of South Pacific is a dead-end street, with two

houses on the right, railroad tracks on the left, and high grass and woods at the end of the

street.6 Officer Okland testified that this was a “high-crime” area for drugs and prostitution,7

but when he was shown a written police call sheet, he did not dispute that there had been only

two drug arrests in the prior six months and no prostitution arrests in that area.8 The officer

5

In his offense report, Officer Okland wrote that the Ford was parked illegally on the left-

hand side of the street. During the hearing, Office Okland agreed that this was incorrect; he

testified that the truck was parked illegally in the middle of the street. But Officer Okland’s

dashboard-mounted video recorder shows that the truck was parked on the right-hand side of the

street. Officer McCreary, the back-up officer who arrived at the scene within five minutes,

testified at first that the truck was parked “legally” on the right hand side of the road, but then he

said that it was parked more than eighteen inches from the side of the road, so it was illegally

parked.

6

Photographs and the video recording confirm this physical description of the area.

7

He defined a “high crime” area as one involving ten to fifteen arrests a month.

8

It was at this point that the trial judge began questioning the witness in an increasingly

skeptical manner. He stated:

I want to find out what the police have in numbers of incidents on this 300 block

of South Pacific, within the past year, prior to this. . . . if he’s going to say that

he’s here because this is a high crime area, then I want to see the facts that support

a high crime area. The facts that would support a high crime area would be the

incident reports for at least a year prior to this incident date, and it would show

whether we have a high crime area here or not . . . I don’t have any evidence that

convinces me this is a high crime area. I’m trying to give the State an opportunity

to come in and let’s prove up what is being said.

The prosecutor, however, declined that invitation: “Your Honor, the State is not going to take

advantage of that. We appreciate that.”

Officer McCreary also testified that, had he been the first officer to drive by, he, too,

would have investigated “[b]ecause that vehicle has never been there. It doesn’t belong there.”

The trial judge then began questioning Officer McCreary: “[I]s there any rule in Conroe that says

Garcia-Cantu Page 4

saw that the truck’s dome light was on and two people were inside the truck. He decided to

investigate.

Officer Okland turned on his patrol car spotlight “to make sure that they weren’t doing

harm to me.” He was “letting them know it was a police officer behind them.” But then he

said, “If I had wanted them to know it was a police officer I would have turned my overhead

lights on, to indicate I was detaining them. But I just wanted to see what they were doing in

there.” He was still driving up behind the truck at the time he put on his spotlight. Officer

Okland parked his patrol car about ten feet behind the truck and to its left, and he turned on

his dashboard-mounted camera to record the investigation. He then saw movement on the

driver’s side area of the truck.9 He got out of his patrol car and began advancing toward the

truck, holding a long flashlight in both hands at shoulder level as he walked forward. When

Officer Okland played his flashlight across the driver’s side of the truck, appellee got out of

that side and met the officer in the middle of the road.

The trial judge questioned Officer Okland further: “[A]nd you got your spotlight on

and you want me to believe that with a spotlight on, they could drive away?” Officer Okland

said, “Yes,” although he agreed that he had “[n]ever had anybody who has had his spotlight

a person can’t park there between say midnight and 6:00 a.m.? Is there a rule about that?” “Not

that I’m aware of,” responded Officer McCreary. When the trial judge asked him what he saw

about the truck or scene when he arrived that caused him to think that appellee’s truck was a

“suspicious vehicle,” Officer McCreary said, “At the time that I arrived there, there was nothing

suspicious.”

9

In his offense report, Officer Okland mentioned only that the front seat passenger

appeared to be making movements toward the back of the truck.

Garcia-Cantu Page 5

turned on them drive away.” The trial judge continued to question the officer about the

location of his patrol car which appeared to block appellee’s truck at the end of the street:

Court: They were stopped. You just came up upon them.

Officer: They would have to back up and I would have to move for them to–

Court: Then you had them blocked in where they couldn’t move?

Officer: They could have backed up

Court: They could have backed up?

Officer: I would have moved. I wouldn’t have let them hit me.

Court: Oh, could they have backed up and gotten out of the parked area they were in

with you not having to move your vehicle?

Officer: No sir.

Court: So you were so close to them that they couldn’t do anything but stay there, is

that right?

Officer: Well, I was a good ten–or about a car length away from their vehicle when I

stopped.

Officer Okland then suggested that appellee could have backed up and driven on the

wrong side of the roadway and around his patrol car, but the video indicates that the officer’s

car was parked well to the left side of the road.10 The trial judge asked a final question:

Court: And what we have here is, you’re telling me that if this person would have

simply backed up, even though your overhead or your spotlight was on, or

whatever was on, and you’re pulled up within ten feet of this other vehicle,

they were free to leave? That’s what you want me to believe?

10

A photograph of the narrow, dead-end street shows that it was unlikely that two cars

could fit side-by-side on the road.

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Officer: Yes, sir.

Mr. Garcia-Cantu, appellee, also testified. He said that he saw Officer Okland pulling

up behind him, but he couldn’t see anything more except a big spotlight, “a big white light.”

The officer didn’t tell him that he could leave, and he didn’t believe that he was free to leave.

Mr. Garcia-Cantu said that he lives about two blocks away, on the other side of the railroad

tracks, and this is his neighborhood. He has friends who live on that block, and he was just

waiting for his friend who was inside the house.11

After hearing all of the testimony, the trial judge granted Mr. Garcia-Cantu’s motion

to suppress without making explicit factual findings, and the State appealed that ruling.

The court of appeals stated that “the record reveals the trial court required that Okland

articulate a reasonable suspicion of criminal activity to justify his approach to Garcia-Cantu’s

truck and that Okland’s use of the spotlight was sufficient to amount to a detention.” 12 The

court of appeals noted that this Court has previously held that a police officer’s use of a

spotlight was insufficient to amount to a Fourth Amendment detention.13 The court of

appeals concluded,

11

Officer Okland agreed that appellee’s friend came out of the house as soon as the

officer got out of his patrol car. The video recording confirms this.

12

225 S.W.3d at 822.

13

Id. at 823 (citing Stewart v. State, 603 S.W.2d 861, 862 (Tex. Crim. App. 1980) (police

officer had spotlighted parked van in residential area at night and then approached it; court noted

that the “mere approach of the police officer to the van interfered with no one’s freedom of

movement and caused minimal inconvenience and loss of time. There was no unconstitutional

search or seizure.”)).

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We also find the trial court abused its discretion in determining under these

circumstances that spotlighting Garcia-Cantu’s truck resulted in Garcia-

Cantu’s detention.14

We granted appellee’s petition to determine, inter alia, whether Officer Okland’s actions

constituted a detention requiring reasonable suspicion under Bostick’s “totality of the

circumstances” test.

II.

A. Standard of Review

In reviewing a trial court’s ruling on a motion to suppress, appellate courts must view

all of the evidence in the light most favorable to the trial court's ruling.15 When the trial court

does not make explicit findings of fact, the appellate court infers the necessary factual

findings that support the trial court’s ruling if the record evidence (viewed in the light most

favorable to the ruling) supports these implied fact findings.16 Thus, we afford almost total

deference to a trial judge’s determination of the historical facts that the record supports,

especially when his implicit factfinding is based on an evaluation of credibility and

demeanor.17 This same highly deferential standard applies regardless of whether the trial

14

Id.

15

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.

2000).

16

Kelly, 204 S.W.3d at 819.

17

Ross, 32 S.W.3d at 856.

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court has granted or denied a motion to suppress evidence.18 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. But the question of whether a given set

of historical facts amount to a consensual police-citizen encounter or a detention under the

Fourth Amendment is subject to de novo review because that is an issue of law–the

application of legal principles to a specific set of facts.19

B. Citizen-Police Encounters and Fourth Amendment Detentions

As the Supreme Court has aptly noted, “encounters between citizens and police

officers are incredibly rich in diversity.” 20 They run the gamut from “wholly friendly

exchanges of pleasantries” to “hostile confrontations of armed men, involving arrests,

18

Id. (applying “almost total deference” to trial court’s implied factual findings and

assessment of credibility and demeanor when it granted motion to suppress).

19

United States v. Tyler, 512 F.3d 405, 409-12 (7th Cir. 2007) (given the totality of the

circumstances established, question of whether officers “detained” defendant as a seizure under

the Fourth Amendment reviewed de novo as a question of law); United States v. Vera, 457 F.3d

831, 834 (8th Cir. 2006) (“We review de novo whether there was a seizure, and we review the

district court’s factual determinations for clear error.”); United States v. Smith, 423 F.3d 25, 31

n.4 (1st Cir. 2005) (“The conclusion, reached after review of all the facts of the encounter, that a

seizure triggering the protections of the Fourth Amendment has occurred is a constitutional

interpretation” and subject to de novo review); see generally, Ornelas v. United States, 517 U.S.

690, 691 (1996) (“we hold that the ultimate questions of reasonable suspicion and probable cause

to make a warrantless search should be reviewed de novo”); Kothe v. State, 152 S.W.3d 54, 62-

63 (Tex. Crim. App. 2004) (“questions involving legal principles and the application of law to

established facts are properly reviewed de novo” in deciding the question of the “reasonableness”

of a detention for purposes of the Fourth Amendment).

20

Terry v. Ohio, 392 U.S. 1, 13 (1968).

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injuries, or loss of life.” 21 Given this wide diversity of police-citizen interaction, not every

encounter between the two is subject to Fourth Amendment scrutiny. It is only when an

officer, “by means of physical force or show of authority, has in some way restrained the

liberty of a citizen,” will courts conclude that a Fourth Amendment “seizure” has occurred.22

Such a 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.’” 23

In Florida v. Bostick,24 the Supreme Court reiterated that an encounter between a

police officer and a citizen “will not trigger Fourth Amendment scrutiny unless it loses its

consensual nature.” 25 In Bostick, the United States Supreme Court granted certiorari to

determine whether the Florida Supreme Court’s per se rule that police officers who boarded

buses at scheduled stops and questioned passengers without articulable reasons for doing so

necessarily “seized” those passengers within the meaning of the Fourth Amendment.26 The

21

Id.

22

Id. at 19 n.16.

23

Kaupp v. Texas, 538 U.S. 626, 629 (2003) (quoting Florida v. Bostick, 501 U.S. 429,

437 (1991)).

24

501 U.S. 429 (1991).

25

Id. at 434.

26

Id. at 433 (“We granted certiorari . . . to determine whether the Florida Supreme

Court’s per se rule is consistent with our Fourth Amendment jurisprudence. . . . The sole issue

presented for our review is whether a police encounter on a bus of the type described above

necessarily constitutes a ‘seizure’ within the meaning of the Fourth Amendment.”).

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Supreme Court rejected the lower court’s per se rule because it “rested its decision on a

single fact–that the encounter took place on a bus–rather than on the totality of the

circumstances.” 27 Thus, Bostick mandates that

a court must consider all of the circumstances surrounding the encounter to

determine whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers’ requests

or otherwise terminate the encounter.28

While the “cramped confines” of a bus was certainly one relevant factor for the Florida

courts to consider in evaluating whether a particular interaction between an officer and a

citizen was a consensual encounter29 or a Fourth Amendment detention, that single factor will

not “be dispositive in every case.” 30 The test is both objective and fact specific; “the

‘reasonable person’ test presupposes an innocent person.” 31

Police officers are as free as any other citizen to knock on someone’s door and ask to

talk with them, to approach citizens on the street or in their cars and to ask for information

or their cooperation. Police officers may be as aggressive as the pushy Fuller-brush man at

the front door, the insistent panhandler on the street, or the grimacing street-corner car-

27

Id. at 437.

28

Id. at 439.

29

Id. at 438-39 (noting that “‘[c]onsent that is the product of official intimidation or

harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are

coerced to comply with a request that they would prefer to refuse. The question to be decided by

the Florida courts on remand is whether Bostick chose to permit the search of his luggage.”)

30

Id. at 439.

31

Id. at 438.

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window squeegee man. All of these social interactions may involve embarrassment and

inconvenience, but they do not involve official coercion. It is only when the police officer

“engages in conduct which a reasonable man would view as threatening or offensive even

if performed by another private citizen,” does such an encounter become a seizure.32 It is the

display of official authority and the implication that this authority cannot be ignored, avoided,

or terminated, that results in a Fourth Amendment seizure. At bottom, the issue is whether

the surroundings and the words or actions of the officer and his associates communicate the

message of “We Who Must Be Obeyed.”

As Professor LaFave has noted, this approach is useful when examining police

contacts with citizens seated in parked cars.33

The mere approach and questioning of such persons does not constitute a

seizure. The result is not otherwise when the officer utilizes some generally

accepted means of gaining the attention of the vehicle occupant or encouraging

him to eliminate any barrier to conversation. The officer may tap on the

window and perhaps even open the door if the occupant is asleep. A request

that the suspect open the door or roll down the window would seem equally

permissible, but the same would not be true of an order that he do so.

Likewise, the encounter becomes a seizure if the officer orders the suspect to

“freeze” or to get out of the car. So too, other police action which one would

not expect if the encounter was between two private citizens–boxing the car

in, approaching it on all sides by many officers, pointing a gun at the suspect

and ordering him to place his hands on the steering wheel, or use of flashing

lights as a show of authority–will likely convert the event into a Fourth

Amendment seizure.34

32

4 WAYNE R. LA FAVE, SEARCH AND SEIZURE § 9.4(a), at 427 (4th ed. 2004).

33

Id. at 433.

34

Id. at 433-35 (footnotes omitted).

Garcia-Cantu Page 12

Each citizen-police encounter must be factually evaluated on its own terms; there are

no per se rules.35 “The test is necessarily imprecise, because it is designed to assess the

coercive effect of police conduct, taken as a whole, rather than to focus on particular details

of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a

person to conclude that he is not free to ‘leave’ will vary, not only with the particular police

conduct at issue, but also with the setting in which the conduct occurs.” 36 The officer’s

conduct is the primary focus, but time, place, and attendant circumstances matter as well.

“A court must step into the shoes of the defendant and determine from a common, objective

perspective whether the defendant would have felt free to leave.” 37

35

Bostick, 501 U.S. at 440 (“The Florida Supreme Court erred in adopting a per se

rule.”); see also People v. Paynter, 955 P.2d 68, 73 (Colo. 1998) (“rather than rely upon a single

factor and announce a per se rule, a court must consider the totality of the circumstances to

determine whether the police exercised force or authority to effect a stop, or whether the police

merely sought the voluntary cooperation of a citizen through a consensual encounter.”).

In Paynter, the Colorado Supreme Court mentioned numerous factors which might

contribute to a finding, based on the totality of the circumstances, that a particular police

encounter with a person in a parked car would constitute a Fourth Amendment seizure. These

included: (1) whether there was a display of authority or control over the defendant by activating

the siren or any patrol car overhead lights; (2) the number of officers present; (3) whether the

officer approached in a non-threatening manner; (4) whether he displayed a weapon; (5) whether

he requested or demanded information; (6) whether the officer’s tone of voice was conversational

or whether it indicated that compliance with the request for information might be compelled; (7)

whether the officer physically touched the person; (8) whether an officer’s show of authority or

exercise of control over a person impeded that person’s ability to terminate the encounter; (9) the

duration of the encounter; and (10) whether the officer retained the citizen’s identification or

travel documents. Paynter, 955 P.2d at 73-75.

36

Michigan v. Chesternut, 486 U.S. 567, 573 (1988).

37

United States v. Steele, 782 F. Supp. 1301, 1309 (S.D. Ind. 1992).

Garcia-Cantu Page 13

III.

With that general background, we turn to the present case. Here, the court of appeals

relied upon one single fact and found it dispositive. It concluded that Officer Okland’s use

of his spotlight did not effect a Fourth Amendment seizure. 38 It quoted from an Idaho

Supreme Court decision: “A rule that an officer’s use of a spotlight creates a per se detention

would discourage office[r]s from using such lights when necessary for their safety or the

safety of others.” 39 Indeed, that is correct: Bostick stands for the proposition that per se

rules generally do not determine whether any specific citizen-police encounter amounted to

a Fourth Amendment detention. Instead, trial and appellate courts must view “the totality of

the circumstances” of the encounter in the light most favorable to the trial judge’s implicit

(or explicit) factual findings. The question of when an encounter between police officers and

a person in a car constitutes a “seizure” depends on specific facts as to the manner of the

encounter, the degree of authority displayed, and all other circumstances surrounding the

incident. Just as with the determination of probable cause, a piecemeal or “divide and

conquer” approach is prohibited.40

38

Garcia-Cantu, 225 S.W.3d at 823 (“We also find the trial court abused its discretion in

determining under these circumstances that spotlighting Garcia-Cantu’s truck resulted in Garcia-

Cantu’s detention.”).

39

Id. (quoting State v. Baker, 107 P.3d 1214, 1218 (Idaho 2004)).

40

Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007) (“When determining

probable cause, an appellate court considers the totality of the circumstances. This means that a

‘divide-and-conquer’ or piecemeal approach is prohibited.”) (footnote omitted).

Garcia-Cantu Page 14

In this case, the totality of the circumstances, viewed in the light most favorable to the

trial judge’s ruling, show:

1. Officer Okland decided to “investigate” the presence of appellee’s truck

parked at the dead-end portion of the 300 block of South Pacific.41

The video recording supports the trial judge’s implicit finding that

Officer Okland used an authoritative, commanding voice and demeanor that

brooked no disagreement into his official investigation. Although reasonable

fact finders could disagree, we must give great deference to the trial judge’s

assessment of the facts.

2. It was 4:00 a.m. on December 26 th , Christmas night.42

41

Because the Fourth Amendment test is an objective one, an officer’s subjective intent

“to investigate” is relevant only to the extent to which such an intent is communicated to the

citizen by means of an authoritative voice, commanding demeanor, or other objective indicia of

official authority. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (“a Fourth

Amendment seizure does not occur whenever there is a governmentally caused termination of an

individual’s freedom of movement . . ., nor even whenever there is a governmentally caused and

governmentally desired termination of an individual’s freedom of movement . . ., but only when

there is a governmental termination of freedom of movement through means intentionally

applied.”); see generally, LA FAVE, § 9.2(a), at 414 (“The objective nature of the test also means

that whether an encounter has become a seizure ‘depends on the officer’s objective behavior, not

any subjective suspicion of criminal activity’; in other words, it is not the case that an ‘officer can

engage in a consensual encounter only with citizens whom he does not suspect of wrongdoing.’”)

(quoting United States v. Waldon, 206 F.3d 597, 603 (6th Cir. 2000)).

42

The lateness of the hour may be subject to various different inferences: It may indicate

a natural community-caretaking concern on the part of an officer or a fellow citizen–is this

person safe or has this truck been abandoned? Alternatively, it may indicate that the encounter is

taking place at a time and setting in which one is isolated from the public and the reasonable

person would be especially vulnerable to official coercion and authority. See State v. Morris, 72

P.3d 570, 579 (Kan. 2003) (noting that activating patrol-car emergency lights does not inevitably

signal a Fourth Amendment seizure because they might be activated for community-caretaking

purposes, but concluding that a reasonable person in this defendant’s position, parked at night in

a remote public park location, would not conclude that any travelers were in need of assistance;

“a reasonable person would not believe that the lights had been activated for safety reasons.

There was no showing that other traffic necessitated activating the emergency lights.”); Swift v.

State, 899 A.2d 867, 877 (Md. 2006) (noting that the “time of night of the encounter [3:13 a.m.],

the officer’s conduct before he approached petitioner [repeatedly driving past him as he was

walking in a ‘high crime area’], the blocking of petitioner’s path with the police cruiser,

Garcia-Cantu Page 15

3. Officer Okland turned on his patrol-car spotlight to light up appellee’s truck

even before he stopped his car, and he activated his dashboard camera to

record the encounter.43

headlights shining on petitioner, the officer’s testimony that he was conducting an investigatory

field stop, and the warrants check, taken together, lead us to conclude that petitioner was

seized”); see generally United States v. Jerez, 108 F.3d 684, 690 (7th Cir. 1997) (noting that the

trial court, “required to assess the totality of the circumstances, failed to consider adequately two

significant factors: the place and the time of the encounter. The police confronted the appellants

in the middle of the night and sought admission to their dwelling place.”). Although a late-night

police encounter at someone’s home carries a significantly greater potential for objectively

communicating coercive authority, the place and time of a police encounter with citizens in a

parked car is not wholly irrelevant in assessing the totality of the circumstances. It is a

reasonable inference that the objectively reasonable person would feel freer to terminate or

ignore a police encounter in the middle of the day in a public place where other people are nearby

than he would when parked on a deserted, dead-end street at 4:00 a.m.

43

The use of “blue flashers” or police emergency lights are frequently held sufficient to

constitute a detention or seizure of a citizen, either in a parked or moving car. See, e.g.,

Hammons v. State, 940 S.W.2d 424, 427-28 (Ark. 1997) (defendant sitting in parked

automobile was seized when police activated blue light; light was display of authority that would

indicate to reasonable person he was not free to leave); People v. Bailey, 176 Cal. App. 3d 402,

405-06 (Cal. Ct. App. 1985) (officer pulled in behind parked car and activated emergency lights;

defendant seized as reasonable person would not have felt free to leave); State v. Donahue, 742

A.2d 775, 779-80 (Conn. 1999) (defendant was seized when officer pulled up behind parked

vehicle and activated red, yellow, and blue flashing lights); Hrezo v. State, 780 So. 2d 194, 195

(Fla. Dist. Ct. App. 2001) (when a police officer turns the emergency and takedown lights on

behind a lawfully parked vehicle, a reasonable person in that vehicle would expect to be stopped

if he or she drove away); Lawson v. State, 707 A.2d 947, 949-50 (Md. 1998) (the activation of

the emergency lights was a show of authority that constituted a seizure because it communicated

to a reasonable person in the parked car that there was an intent to intrude upon the defendant’s

freedom to move away); State v. Walp, 672 P.2d 374, 375 (Ore. Ct. App. 1983) (use of

emergency lights after defendant had voluntarily stopped was sufficient show of authority and

reasonable person would not have felt free to leave); State v. Gonzalez, 52 S.W.3d 90, 97 (Tenn.

Crim. App. 2000) (a police officer clearly initiates a seizure by turning on his blue lights behind a

parked vehicle because the lights convey the message that the occupants are not free to leave);

State v. Burgess, 657 A.2d 202, 203 (Vt. 1995) (even if officer subjectively intends to activate his

blue lights for safety reasons, the use of the lights on the defendant served as a restraint to

prevent his departure from the pull-off area of the road); Wallace v. Com., 528 S.E.2d 739, 741-

42 (Va. Ct. App. 2000) (driver of parked vehicle seized because a reasonable person with a

police cruiser parked behind him with its emergency lights flashing would not have felt free to

leave); State v. Stroud, 634 P.2d 316, 318-19 (Wash. Ct. App. 1981) (“the officers’ attempt to

summon the occupants of the parked car with both their emergency lights and high beam

Garcia-Cantu Page 16

4. He parked his patrol car about ten feet behind and to the left of appellee’s

truck. The testimony, photographs, and video recording all support the trial

judge’s implicit factual finding that Officer Okland “boxed in” appellee’s

parked truck, preventing him from voluntarily leaving.44

headlights constituted a show of authority sufficient to convey to any reasonable person that

voluntary departure from the scene was not a realistic alternative” and, had driver attempted to

leave after being so signaled, he could arguably have been charged with misdemeanor).

The use of a patrol car spotlight, however, may also indicate to the reasonable person that

the officer is carrying out his community caretaking function, and such conduct is frequently

necessary to protect officers during any type of night-time police-citizen encounter. Thus, the

use of a spotlight, by itself, is not a circumstance that necessarily converts a consensual encounter

into a Fourth Amendment detention. See State v. Baker, 107 P.3d 1214, 1218 (Idaho 2004)

(“This court joins the many other jurisdictions which have held that the use of a spotlight alone

would not lead a reasonable person to believe that he was not free to leave, though it may be

considered under the totality of the circumstances.”); People v. Cascio, 932 P.2d 1381, 1388

(Colo. 1997) (officers’ use of a spotlight and flashlights were “a matter of practical necessity as

the encounter took place when it was getting dark, and we do not attribute any significance to

their use.”); State v. Clayton, 45 P.3d 30, 35 (Mont. 2002) (“The police officers did not initiate

the stop, but only pulled in behind [the defendant] and shined the spotlight to determine how

many people were in the vehicle. The officers did not have their sirens or emergency lights on

and the encounter took place on a public street.”); State v. Calhoun, 792 P.2d 1223, 1225 (Or. Ct.

App. 1990) (noting that the “fact that the headlights and spotlight were on did not transform the

encounter into a stop,” where the officer did not park in such a way that prevented the defendant

from driving away).

On the other hand, the use of a spotlight, combined with other circumstances, may well

establish a Fourth Amendment detention. See Commonwealth v. Mulholland, 794 A.2d 398, 402

(Pa. Super. Ct. 2002) (based on totality of circumstances–including facts that officer,

“determined to investigate, parked his cruiser in such a fashion as to make it difficult if not

impossible for the van to leave the parking lot. . . . [and] [b]efore exiting his cruiser, the officer

shone bright, spotlight-like lights in the direction of the van”–evidence supported a finding that

officer detained defendant).

44

Most courts have held that when an officer “boxes in” a car to prevent its voluntary

departure, this conduct constitutes a Fourth Amendment seizure. See, e.g., Riley v. State, 892

A.2d 370, 374 (Del. 2006) (“when police approached the Escort with their badges and

flashlights, after having parked their police vehicle behind the Escort so as to prevent it from

driving away, a seizure had taken place for purposes of Fourth Amendment analysis”); United

States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994) (stating that when officers’ vehicles were

parked both in front and behind defendant’s car with a “take down” light shining through his

windows and officer approached car with a flashlight and asked occupants to put their hands in

the air where she could see them, defendant was detained); United States v. Pavelski, 789 F.2d

485, 488-89 (7th Cir. 1986) (“A reasonable person in this situation, bounded on three sides by

Garcia-Cantu Page 17

police patrol cars, would not have believed that he was free to leave. Indeed, we wonder whether

appellants could have maneuvered their car out of the parking lot in this situation.”); United

States v. Kerr, 817 F.2d 1384, 1386-87 (9th Cir. 1987) (“Kerr stopped and exited his car primarily

in response to Deputy Hedrick’s official appearance and conduct, rather than of his own volition.

Arriving in uniform and in a marked patrol car, Deputy Hedrick unquestionably appeared to be

acting in an official capacity. Instead of waiting in his patrol car at the roadside, or parking and

walking, Deputy Hedrick pulled into and blocked the one lane driveway as Kerr was backing out.

Deputy Hedrick’s conduct thus precipitated the confrontation with Kerr.”); State v. Struhs, 940

P.2d 1225, 1227-28 (Utah 1997) (totality of circumstances showed Fourth Amendment

detention; “Defendant claims that the officer’s action of parking nose-to-nose about one car

length away when his car was backed up against a barricade essentially ‘blocked defendant in’ so

he was unable to move. While defendant was not completely blocked in, the officer’s positioning

of her vehicle is certainly a factor that weighs in favor of finding under a totality of the

circumstances that defendant was seized.”); State v. Roberts, 977 P.2d 974, 979 (Mont. 1999)

(concluding that defendant was detained when officer “pull[ed] into the one-lane driveway and

block[ed] Roberts’ exit, thereby physically constraining Roberts’ means and direction of travel.

Furthermore, Officer Oster was armed and in uniform, and his show of authority in immediately

exiting his patrol car and approaching Roberts added to the official nature of the encounter.

Given these circumstances, the District Court correctly concluded that ‘[a] reasonable person

would not have felt free to leave a situation where a uniformed officer, in his patrol car, pulled

his car into a driveway behind that person’s car, blocking its exit.’”); State v. Jestice, 861 A.2d

1060, 1063 (Vt. 2004) (finding a Fourth Amendment detention because of “the show of authority

present in this case, where a uniformed officer parked his marked patrol car nose-to-nose against

a couple’s car late at night in a darkened trailhead parking lot with no one else around, left the

cruiser’s headlights shining in their faces as he approached them, and asked them what they were

doing.”); McChesney v. State, 988 P.2d 1071, 1075 (Wyo. 1999) (finding a Fourth Amendment

detention when officer activated his emergency lights and blocked defendant’s car in; “Officer

Will parked his vehicle directly behind McChesney’s, which was parked at the convenience

store’s front doors. McChesney’s vehicle was thus blocked in, and he could not have driven

away had he wanted to. Such action has also been found sufficient to constitute a seizure. See 4

Wayne R. LaFave, Search and Seizure § 9.3(a), at 108, n.96.”).

On the other hand, when an officer only partially blocks a parked car or merely makes it

somewhat inconvenient for the citizen to depart voluntarily, such action is not necessarily, by

itself, sufficient to constitute a Fourth Amendment detention. See, e.g., United States v. Kim, 25

F.3d 1426, 1430-31 (9th Cir. 1994) (no detention “where, as here, officers came upon an already

parked car,” even though police car “partially blocked” that car); People v. Cascio, 932 P.2d

1381, 1386-87 (Colo. 1997) (noting that, in determining whether the totality of the circumstances

established a detention of a citizen in a parked car, “courts have deemed the position of the patrol

car relative to the motorist’s vehicle an important consideration”; surveying cases and concluding

that “if the police patrol car wholly blocks the defendant's ability to leave, courts have held that a

reasonable person would not feel free to leave, so that the encounter cannot be adjudged

consensual,” but when “egress was only slightly restricted. . . with approximately ten to twenty

Garcia-Cantu Page 18

5. Officer Okland got out of his patrol car, holding his large flashlight in both

hands at shoulder-level, and started to approach the driver’s side of appellee’s

truck in a manner that could fairly be described as authoritative.45

6. Appellee then got out of his truck and started to walk toward Officer Okland,

who immediately asked, “What are you doing here?” 46

Although these words are not, by themselves, sufficient to convert an

otherwise consensual encounter into a detention, much depends upon the tone

and level of voice, as well as the questioner’s demeanor. The trial judge could

have concluded that, based upon Officer Okland’s tone and demeanor on the

witness stand, as well as his tone and demeanor as seen and heard on the video

recording, that the officer’s questioning was more in the nature of an official

command rather than a friendly or neutral inquiry.47

feet between the two vehicles” and the defendant “would have been able to leave by maneuvering

the van in a manner akin to parallel parking,” this fact was insufficient, by itself, to establish a

detention).

45

See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (noting that one factor to

consider in deciding whether a police-citizen encounter is a Fourth Amendment “seizure” is “the

use of language or tone of voice indicating that compliance with the officer’s request might be

compelled”); Orhorhaghe v. INS, 38 F.3d 488, 495-96 (9th Cir. 1994) (Fourth Amendment

seizure supported by finding that agent acted in “an officious and authoritative manner” that

indicated to defendant that he was not free to decline agent’s requests; “The tenor of the agent’s

instruction was not that of ‘every citizen’ addressing questions to fellow citizens; it was brusque

and authoritative and appeared to give [defendant] no option to refuse to comply. [Agent]

testified that he said words to the effect of ‘Let’s go into your apartment.’ To a reasonable

person under the circumstances, this statement bears the indicia of a command, not a request.”).

46

The State asserts that the trial judge concluded that Officer Okland “detained” appellee

merely by approaching the truck. This is not correct, nor is it what the trial judge necessarily

concluded. Suppose that Officer Okland’s first words to appellee had been: “We’re looking for

a little four-year-old girl with blond pigtails in pink pajamas who wandered away from her home

two blocks over. Have you seen her?” What looked like the beginning of a Fourth Amendment

detention has, by the officer’s words, been immediately converted into a community-caretaking,

police-citizen encounter. Thus, it is not the officer’s mere approach that defines the detention; it

is the totality of the circumstances as they unfolded, both before and after that approach.

47

See Bostick, 501 U.S. at 437 (noting that officers specifically advised defendant that he

could refuse consent and explaining that “no seizure occurs when police ask questions of an

individual . . . so long as the officers do not convey a message that compliance with their requests

Garcia-Cantu Page 19

7. Officer Okland then played his flashlight across the female passenger’s side

of the truck to track the passenger’s exit from the truck. She came around to

where the officer and appellee were standing at the rear of the truck.

8. Officer Okland then played his flashlight into and across appellee’s eyes as if

he were looking for signs of intoxication. He did the same to appellee’s friend

who came out of the house.

9. Officer Okland then asked appellee, “You got any I.D. on you?” Apparently

appellee said that it was in the truck because Officer Okland immediately went

back to the driver’s side and looked inside the truck. He then came back to the

rear of the truck and told appellee to go get his I.D. out of the truck. Appellee

did so.

10. Appellee testified that he did not subjectively feel free to leave or terminate the

encounter.

That fact is not particularly relevant because the test is whether a

reasonable person in the citizen’s position would have felt free to leave.48

However, given the facts that Officer Okland initiated the incident by blocking

appellee’s exit with his patrol car, turning on his spotlight, approaching

appellee’s truck with a long flashlight playing over the driver’s side,

immediately saying, “What are you doing here?”, using his flashlight to wave

the passenger back to the rear of the truck, and, standing toe-to-toe with

appellee, shining his flashlight into appellee’s eyes, it is hard to conclude that

is required”); United States v. Bueno, 21 F.3d 120, 124 (6th Cir. 1994) (no detention when

“questions were posed in a calm and non-threatening way”); United States v. Springs, 936 F.2d

1330, 1333 (D.C. Cir. 1991) (no seizure when officer “never exhibited a weapon” and “spoke in

a normal, conversational tone of voice”); State v. Grant, 392 So.2d 1362, 1365 (Fla. Dist. Ct.

App. 1981) (officer “did not order Grant to comply with his request” for information, and “the

tone of the entire approach appears to have been non-authoritative”).

48

In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court reviewed the

objective test set out in Mendenhall and clarified that Mendenhall

states a necessary, but not a sufficient, condition for seizure–or more precisely, for

seizure effected through a ‘show of authority.’ Mendenhall establishes that the test

for existence of a ‘show of authority’ is an objective one: not whether the citizen

perceived that he was being ordered to restrict his movement, but whether the

officer’s words and actions would have conveyed that to a reasonable person.

Id. at 628.

Garcia-Cantu Page 20

any reasonable person would feel free to drive or walk away or to terminate the

questioning.

Viewing the totality of these particular circumstances in the light most favorable to the trial

court’s ruling, we hold that the trial court did not err in concluding that a reasonable person

in appellee’s position would not have felt free to leave or terminate this encounter with

Officer Okland.

The State argues that the evidence was “undisputed” in many respects in which the

trial court obviously did find it disputed. For example, the State argues: “It is also

undisputed that the location of Off. Okland’s patrol car approximately one car length behind

Appellee’s truck did not prevent Appellee’s egress.” 49 “[T]he incontrovertible evidence

shows that Appellee was free to leave in his vehicle if he so chose. . . . Off. Okland testified

only that Appellee could not back straight out of his parking place without hitting the patrol

car.” 50 The trial judge, however, was not required to believe this particular testimony, and

his skeptical questioning of Officer Okland supports the inference that he did not. The State

also argues that “the record unequivocally shows that Appellee had two other available

means of driving away from the scene.” 51 He could have turned around in a driveway that

is partway down the street or he could have made a U-turn over the railroad right-of-way.52

49

State’s Brief at 6.

50

Id. at 11-12.

51

Id. at 12.

52

Id.

Garcia-Cantu Page 21

Had the trial court ruled against appellee, we would have to defer to the trial judge’s implicit

factual finding that these methods of egress were possibilities (although the photographs and

videotape do not necessarily support them), but the trial court implicitly found that appellee

was blocked in by Officer Okland and the patrol car, and that appellee could not move his

car.

In sum, the State does not quarrel with the law or its application; it simply has a

different view of the evidence and of the inferences to be drawn from that evidence. Had the

trial court agreed with the State’s view of the evidence and ruled against appellee because

“the incontrovertible evidence show[ed] that Appellee was free to leave in his vehicle if he

so chose,” we could uphold such a fact finding based upon the totality of the circumstances

and the credibility of the witnesses.53

The court of appeals erred in focusing upon one single fact–Officer Okland’s use of

a spotlight–instead of the totality of the circumstances. We conclude that, viewed in the light

most favorable to the trial judge’s ruling, the totality of the circumstances support his

conclusion that appellee was detained by Officer Okland for purposes of the Fourth

Amendment. We therefore reverse the judgment of the court of appeals, uphold the trial

court’s suppression ruling, and remand the case for further proceedings in the trial court.

Delivered: May 7, 2008

Publish

53

See Bostick, 501 U.S. at 439; Brower, 489 U.S. at 596-97; Chesternut, 486 U.S. at 573-

74; Steele, 782 F. Supp. at 1309; Mulholland, 794 A.2d at 401-02; see also supra note 44.