Paula Sosa v. State

In

The

Court

of Appeals

Sixth

Appellate District of Texas at Texarkana

______________________________

No. 06-10-00161-CR

______________________________

PAULA

SOSA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Harrison County, Texas

Trial Court

No. 2009-0198

Before Morriss, C.J.,

Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Paula Sosa

filed a motion to suppress the evidence of her intoxication, which Texas

Department of Public Safety Trooper Joe Hill discovered when he interacted with

her late one night as she was parked at the entrance to some Marshall

self-storage units. [1] In the hearing on Sosa’s suppression motion,

the parties focused on the issue of whether Hill had reasonable suspicion to

justify what the parties reasonably assumed was an investigative

detention. After the trial court denied

Sosa’s requested suppression of the evidence, Sosa pled guilty to driving while

intoxicated. [2] She now appeals, urging, as her lone

appellate issue, that the evidence should have been suppressed. [3] Because Hill had insufficient articulable

facts to establish reasonable suspicion to support the investigative detention,

we sustain Sosa’s point of error, reversing and remanding to the trial court

for further proceedings consistent with this opinion.

A trial court’s decision on a motion to

suppress evidence is reviewed by applying a bifurcated standard of review

deferring to the trial court’s determination of historical facts that depend on

credibility, but reviewing de novo the trial court’s application of the

law. Burke

v. State , 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref’d). The appellate court affords almost total

deference to a trial court’s determination of the historical facts supported by

the record, especially when the trial court’s fact findings are based on an

evaluation of credibility and demeanor. Carmouche v. State , 10 S.W.3d 323, 327

(Tex. Crim. App. 2000); Guzman v. State ,

985 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The court also affords such deference to a trial court’s ruling on “application

of law to fact questions,” also known as “mixed questions of law and fact,” if

the resolution of those questions turns on an evaluation of credibility and

demeanor. Guzman , 985 S.W.2d at 89 .

The appellate court, though, reviews de novo those questions not turning

on credibility and demeanor. Id .

The parties

in this case presumed in the trial court that the initial interaction between

Hill and Sosa was an investigative detention. [4] Neither party argued to the trial court that

the initial interaction was an encounter.

A temporary or investigative

detention is a seizure. Josey v. State , 981 S.W.2d 831, 838

(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). Therefore, a certain objective level of

suspicion must be shown by the officer to justify the seizure. State

v. Larue , 28 S.W.3d 549 , 553 n.8 (Tex. Crim. App. 2000). The officer must show reasonable suspicion

the citizen is connected to criminal activity.

Id .

The

United States Supreme Court in Terry v. Ohio established the test for

investigative detentions. Terry

established a two-pronged test for investigative detentions. Terry v. Ohio , 392 U.S. 1 , 19–20 (1968).

To determine the reasonableness of an investigative detention, the court

must inquire: “(1) whether the officer’s

action was justified at its inception; and, (2) whether it was reasonably

related in scope to the circumstances which justified the interference in the

first place.” Davis v. State , 947 S.W.2d 240, 242 (Tex. Crim.

App. 1997); see Terry ,

392 U.S. at 19–20. “Under

the first prong, ‘the police officer must be able to point to specific and

articulable facts which, taken together with rational inferences from those

facts, reasonably warrant that intrusion.’”

Id. (quoting Terry , 392 U.S. at 21 ). These facts must be more than a mere hunch or

suspicion. Id. at 244. Whether the officer’s suspicion was

reasonable is evaluated based on “an objective standard that disregards any

subjective intent of the officer making the stop and looks solely to whether an

objective basis for the stop exists.” Ford v. State , 158 S.W.3d 488, 492 (Tex.

Crim. App. 2005). The specific,

articulable facts, along with rational inferences from those facts, must allow

the officer to reasonably conclude the person detained actually is, has been,

or soon will be engaged in criminal activity.

United States v. Sokolow ,

490 U.S. 1, 10 (1989).

Most of Hill’s

specific, articulable facts concern the fact that Sosa was present just outside

the storage facility after its normal business hours and failed to pass through

the gate in the thirty or forty seconds of observation. Hill testified that he believed, [5]

based on his mother renting a unit two years before the events in question,

that the normal business hours of the facility were from 7:00 a.m. to 7:00

p.m. There was also a sign on the gate

providing notice that the facility was open from 7:00 a.m. to 7:00 p.m. “[T]he fact that a car is parked in close

proximity to a business that is closed for the day, is not, in and of itself,

suspicious; instead, it is only a factor to consider in deciding whether there

is reasonable suspicion.” Klare v. State , 76 S.W.3d 68, 74 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref’d).

In addition,

the time of day is not sufficient. While

the time of day can be considered, it is only one factor and is insufficient,

by itself, to create reasonable suspicion.

Crain , 315 S.W.3d at 53; Klare , 76 S.W.3d at 74 . Because the time of day does not “ prov[e] that the suspect is engaged in any sort of

criminal offense,” other circumstances must raise a suspicion that the

particular person is engaged in illegal behavior. Crain ,

315 S.W.3d at 53.

Even

together, Sosa’s presence after hours and the lateness of the hour are

insufficient to create reasonable suspicion.

Klare , 76 S.W.3d at 74

(presence outside business after hours, very late hour, and incidence of crime

in area, insufficient). [6]

Behavior

that is, in itself, innocent, can certainly provide the basis for a showing of

reasonable suspicion. Sokolow , 490 U.S. at 10 . “[T]he relevant inquiry is not whether

particular conduct is innocent or criminal, but the degree of suspicion that

attaches to particular types of noncriminal acts.” Woods

v. State , 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (rejecting

as-consistent-with-innocent-activity test).

The Texas

Court of Criminal Appeals recently released an opinion finding reasonable

suspicion in an admittedly close case involving otherwise innocent

behavior. See Derichsweiler v. State ,

No. PD-0176-10, 2011 Tex. Crim. App. LEXIS 112, at *27 (Tex. Crim. App. Jan.

26, 2010). Derichsweiler , though, is distinguishable from this case. In Derichsweiler ,

noncriminal behavior—repeatedly stopping near and staring at other people in

public parking lots—was held sufficient to allow a reasonable person to

conclude “that criminal activity is afoot.”

Id . at 17. The court

characterized Derichsweiler’s conduct as “bizarre to say the least.” Id. at

25. The court emphasized Derichsweiler’s

conduct involved “the repetition of similar, apparently scrutinizing behavior”

and was “persistent, if admittedly noncriminal.” Id.

at 25–27. In other words, the conduct in

Derichsweiler involved a pattern of

bizarre behavior. In this case, Sosa’s

behavior could not be described as bizarre and nothing suggests a pattern or

repetition of unusual behavior. The

noncriminal, not terribly unusual, nonrepetitive behavior observed in this case

was insufficient to objectively support a belief that criminal activity was or

soon would be afoot.

The specific,

articulable facts relied on by Hill are insufficient to create reasonable

suspicion that criminal activity was occurring.

All the facts indicate is that Sosa was present in front of a business

late at night, after normal business hours, and that storage buildings are

occasionally broken into. Hill failed to

provide, under the totality of the circumstances, sufficient specific,

articulable facts to create an objective manifestation that Sosa was, or was

about to be, engaged in criminal activity.

Hill’s suspicion amounted to nothing more than a mere hunch. Deferring to the trial court’s determination

of historical facts, it was error to overrule Sosa’s motion to suppress.

For the

reasons stated, we reverse and remand for proceedings consistent with this Court’s

opinion.

Josh

R. Morriss, III

Chief

Justice

Date

Submitted: January 26, 2011

Date

Decided: February 4, 2011

Do

Not Publish

[1] While

on patrol, Hill observed Sosa parked at the entrance to DC Self Storage in

Marshall, Texas, at approximately 10:45 p.m.

Based on Hill’s experience when Hill’s mother had previously rented a

unit from that storage facility, Hill believed the normal business hours of the

storage facility were from 7:00 a.m. to 7:00 p.m. Hill proceeded past the storage facility and

stopped on the side of the road. When

Sosa did not enter after thirty to forty seconds, Hill turned around, activated

his lights, and pulled in “behind her.”

While conversing with Sosa, Hill detected the odor of alcohol on Sosa’s

breath and noticed that Sosa’s speech was slurred. Subsequent investigation determined Sosa to

be intoxicated.

[2] The

trial court sentenced Sosa to 180 days in county jail and a $2,000.00 fine, suspended

the sentence, and placed Sosa on twelve months’ community supervision.

[3] The

State provided this Court with a letter affirmatively declining to file a brief

in this case.

[4] If

the initial interaction between Sosa and Hill had been an encounter, reasonable

suspicion would not have been needed to overrule Sosa’s motion to

suppress. The Fourth Amendment does not

require any justification whatsoever on the part of an officer who merely approaches

an individual in public to ask questions.

United States v. Mendenhall , 446 U.S. 544, 555 (1980); Hunter

v. State , 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).

While

the traditional rule is that we should affirm if “the trial judge’s decision is

correct on any theory of law applicable to the case,” Romero

v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990), several Texas courts

have suggested the State’s failure to present a theory to the trial court may

prevent that theory from being “applicable to the case.” See,

e.g. , State v. Allen , 53 S.W.3d

731, 733 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (concluding theories

not presented to trial court are not “applicable to the case”); State v. Gonzales , 850 S.W.2d 672, 675

(Tex. App.—San Antonio 1993, pet. ref’d) (“inappropriate for a reviewing court

to determine that the suppression of evidence is supported on other grounds

when the trial court did not address any other possible grounds for suppression”);

cf . Sedani v. State , 848 S.W.2d 314 (Tex. App.—Houston [1st Dist.]

1993, pet. ref’d) (concluding former Rule 52(a), the predecessor to Rule 33.1

of the Texas Rules of Appellate Procedure, applies to the appellee as well as

the appellant). Although the Texas Court

of Criminal Appeals has yet to adopt this interpretation, it appears to have

applied it sub silentio in at least

two cases. See Sanbury v. State , 88 S.W.3d 229 (Tex. Crim. App. 2002);

(because trial court did not consider Rule 403 of Texas Rules of Evidence, court

refused to consider it); State v.

Sheppard , 271 S.W.3d 281 (Tex. Crim. App. 2008). But see

Rhodes v. State , 945 S.W.2d 115, 118 (Tex. Crim. App. 1997) (affirming on

theory not argued to trial court). This

Court has yet to adopt this interpretation of the general rule; yet, here, it

is not necessary, as this interaction was an investigative detention.

There

are three categories of interactions between police officers and citizens: encounters, investigative detentions, and

arrests. State v. Perez , 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). An encounter is a purely consensual

interaction which a citizen may terminate at any time. Saldivar

v. State , 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006, no pet.). Encounters

are consensual as long as the

person would feel free to go about his or her business. Hunter , 955 S.W.2d at 104 ; see Florida v. Bostick , 501 U.S. 429, 434 (1991); California

v. Hodari D. , 499 U.S. 621

(1991).

An

encounter becomes a temporary detention if a “seizure” occurs. A seizure of the person occurs when an

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

restrained the liberty of a citizen and the citizen has submitted to that

authority. Bostick , 501 U.S. at

434 ; Hodari D. , 499 U.S. 621 ; Johnson v. State ,

912 S.W.2d 227, 235 (Tex. Crim. App. 1995).

Such a determination is made based on the totality of the circumstances

surrounding the event. Bostick , 501 U.S. at 439; Hunter ,

955 S.W.2d at 104 . The crucial test is

whether, taking into account all of the circumstances surrounding the

encounter, the police conduct would have communicated to a reasonable person he

or she was not at liberty to ignore the police presence and go about his or her

business. Bostick , 501 U.S. at 439 ; State v. Velasquez , 994 S.W.2d

676, 679 (Tex. Crim. App. 1999); Hunter , 955 S.W.2d at 104 ; Jackson

v. State , 77 S.W.3d 921, 927 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A person “yields to an officer’s display of

authority” when a reasonable person would not feel free to leave the officer’s

presence or otherwise terminate the encounter.

Bostick , 501 U.S. 429 ; State v. Velasquez , 994 S.W.2d 676,

679 (Tex. Crim. App. 1999).

In

this case, Hill’s show of authority was sufficient to communicate to a

reasonable person that he or she was not free to leave the scene. Hill testified Sosa was not free to

leave. Although the classification of an

interaction is determined based on an objective standard and, therefore, the

police officer’s subjective opinion is not determinative, Hill’s subjective

opinion can be evidence that a reasonable person would not feel free to

terminate the interaction. See Whren v. United States , 517

U.S. 806 (1996) (reasonable suspicion evaluated from objective

perspective). The manner in which Hill

parked his vehicle and the use of overhead emergency lights suggest the

interaction was an investigative detention.

Since Sosa was parked in front of the storage facility’s gate, the

position of Hill’s vehicle effectively prevented her vehicle from moving. Sosa’s vehicle seems to have been trapped

between the storage facility’s gate and Hill’s vehicle. The Texas Court of Criminal Appeals has

considered the fact that a police officer “‘boxed in’ Appellee’s parked truck”

in determining whether a seizure had occurred. See State

v. Garcia-Cantu , 253 S.W.3d 236 , 246 n.44 (Tex. Crim. App. 2008)

(concluding trial court did not err in concluding reasonable person would not

feel free to leave).

Although

“[a]ctivation of overhead lights on a police vehicle does not necessarily make

an encounter non-consensual,” the Texas Court of Criminal Appeals has noted: “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.” Id. at

245 n.43 (spotlight different from overhead lights); see Crain v. State , 315 S.W.3d 43, 52 (Tex. Crim. App. 2010)

(activation of overhead lights factor in concluding pedestrian was detained); Hudson v. State , 247 S.W.3d 780, 785

(Tex. App.—Amarillo 2008, no pet.) (activation of patrol car lights and police

officer’s order caused appellant to yield to show of authority); see Franks

v. State , 241 S.W.3d 135, 142 (Tex. App.—Austin 2007, pet. ref’d) (mere

activation of overhead lights at dark rest park was insufficient, by itself, to

make initial interaction a detention). Franks is distinguishable in that,

there, no evidence suggested that the position of the police car impeded Franks’

ability to terminate the encounter. Franks , 241 S.W.3d at 142 . Further, the police officer in Franks testified he activated the

overhead lights to illuminate the rest area.

Id . There is no evidence in this case that Hill

activated his overhead lights to illuminate the storage facility’s entry

area. When asked whether the area “is

fairly well lit,” Hill responded, “I’d say fairly. It’s not as well lit as you get going on into

town.”

The

assumption of both Sosa and the State that the interaction in this case was an

investigative detention was a reasonable assumption, with which we agree.

[5] Dennis

Hulett, the owner of the storage facility, testified some customers are

provided with twenty-four-hour access codes if they are unable to access the

units between 7:00 a.m. and 7:00 p.m., and there is an after hours telephone

number customers can call. Sosa was not

provided with a twenty-four-hour access code.

Hill testified he was not aware that some customers are provided with

twenty-four-hour access codes. As the

trial court correctly stated, the relevant inquiry concerns the facts the

officer reasonably believes are true even if the reasonable belief was

incorrect. See Garcia v. State , 43

S.W.3d 527, 530 (Tex. Crim. App. 2001); Madden v. State , 242 S.W.3d 504 , 508 n.7 (Tex. Crim. App. 2007)

(police officers “may be mistaken about an historical fact . . . as long as that

mistake was not unreasonable”); cf. Fowler

v. State , 266 S.W.3d 498, 504 (Tex. App.—Fort Worth 2008, pet. ref’d)

(reasonable suspicion, though, “cannot be based on a mistaken understanding” of

the law); Goudeau v. State , 209

S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(Reasonable suspicion cannot be “solely based on a mistaken understanding of the traffic law.”). We will defer to the trial court’s implicit

finding that Hill reasonably believed the normal business hours were from 7:00

a.m. to 7:00 p.m.

[6] Hill

also testified he believed criminal activity might be occurring because “portable

buildings and storage buildings get broken into and robbed a lot.” Hill testified that the area did not have a

high incidence of crime and that he had no knowledge of any recent reports of

theft in this area. In our view, that

adds little.