Lead Opinion
OPINION
Appellant Jackie Johnson appeals the trial court’s denial of his motion to suppress. After Johnson’s motion was denied, he pleaded guilty to misdemeanor possession of marijuana and, with an agreed recommendation from the State, received a sentence of twenty days’ confinement in jail. In a single issue, Johnson contends the trial court abused its discretion in denying his motion to suppress. Finding no abuse of discretion, we affirm.
I
At the hearing on Johnson’s motion to suppress, the State presented Sergeant Stephen Hendrie of the Houston Police Department. Hendrie testified that around 11:30 p.m. on June 7, 2010, he responded to a 911 call concerning a suspicious person described as a tall, black male wearing a black shirt and beige pants who was lurking around the Copper Cove Apartments at 12901 Brant Rock Drive. Hendrie knew from past experience that robberies had occurred at this complex, and he was concerned the suspicious person might be a robbery suspect. As Hen-drie drove by the apartments, he saw a car backing into a parking space outside the front entrance gate of the complex. Because the car’s headlights were on and the engine was running, Hendrie believed the car might be in use as a getaway car in a robbery. Hendrie parked his marked police vehicle at an angle in front of the ear, partially blocking it,
Hendrie also asked Johnson if he lived there and if he had identification. Johnson told Hendrie that he lived at the complex, and he had identification, but his identification did not reflect the complex’s address. As Hendrie approached the passenger side of the car, he saw that the car’s windows were down, and he detected a faint odor of marijuana. Hendrie smelled a stronger odor of marijuana as he walked around to the driver’s side window, which led him to suspect Johnson had marijuana in the car. At that point, Hen-drie asked Johnson to step out of the car. When he looked inside the car, Hendrie saw a small package of marijuana sitting on the console.
On cross-examination, Hendrie denied that he detained Johnson or told him he could not leave when he first encountered him. Hendrie admitted that he “maybe” used an “authoritative voice,” but he explained that he spoke loudly to ensure Johnson would hear him. Hendrie also stated that, even though his police vehicle was parked partially in front of Johnson’s car and he walked in front of Johnson’s car as he approached the driver’s side door, he was not trying to prevent Johnson from leaving and Johnson could have driven away. When asked whether he instructed Johnson to put his hands up when he got out of the car, Hendrie agreed it was possible, but he did not recall doing so. Hendrie admitted that he did not witness Johnson engaging in any criminal activity when he approached him, nor did Johnson appear to be under the influence of either alcohol or marijuana. Hendrie also acknowledged that no robberies were reported at the apartment complex that night.
Although the caller reported seeing a black male in a black shirt and beige pants, Hendrie acknowledged that Johnson, a black male, had on a dark shirt and dark pants. Hendrie disagreed, however, that the difference in the color of Johnson’s pants meant that Johnson did not match the suspect’s overall description. Hendrie also acknowledged that it was possible that he drew his pistol during the encounter, but he did not believe he did so because he “didn’t feel threatened.” He agreed that Johnson did what he asked him to do. Finally, Hendrie acknowledged that he responded to the 911 call concerning a suspicious person about thirty minutes after it came in, and was unable to contact the person who made the call. He also agreed that the area where he saw Johnson was in a different part of the apartment complex than where the caller’s apartment was located.
After the State rested, Johnson called David T. Davis to testify. Davis, a licensed private investigator with a law-enforcement background, testified that Johnson lived at the Copper Cove Apartments and was parked near his apartment the night of his arrest. In response to a hypothetical question, Davis testified that, based on his experience as a former state trooper with the Department of Public Safety, if he were an officer responding to the suspicious person call, he would first
Johnson also testified at the hearing. He stated that he lived at the Copper Cove Apartments with his girlfriend, and his mother also lived in another apartment in the complex. He admitted he has previously been convicted of felony theft. On the evening of his arrest, he picked up his mother from work and dropped her off at her apartment. He could not find a parking place inside the complex, so he drove outside the gate to park in the available spaces there. As he was backing into a parking space, Hendrie, who was wearing a uniform, approached the right side of his car in a marked police vehicle. Hendrie drove his vehicle in front of Johnson’s at a forty-five degree angle “like a T shape where [he] couldn’t go anywhere” and shined a bright spotlight in his face. Hen-drie “aggressively” walked toward him and “yelled” at him to put his hands up. As he gave the command, Hendrie drew his weapon. Johnson did as Hendrie instructed.
According to Johnson, Hendrie first approached Johnson’s car from the passenger side and looked in the vehicle; he then walked around to the driver’s side and opened the door. Hendrie asked to see Johnson’s driver’s license, but then grabbed his arm and pulled him out of the car saying, “Don’t worry about it.” Hen-drie turned Johnson around, handcuffed him, put him in the police car, and proceeded to search Johnson’s car. Johnson testified that from the time Hendrie pulled up to his car, he did not feel free to leave. He also testified that the marijuana Hen-drie found was not on the console but underneath a cup in the cup holder.
After the trial court heard closing arguments, the trial court announced that it was denying the motion to suppress. In making its ruling, the trial court stated, “I do believe that the officer acted reasonably under the circumstances and did have ar-ticulable facts that justified the minimal detention.” The trial court did not make findings of fact or conclusions of law.
II
In his sole issue, Johnson contends that the trial court erred in concluding that a reasonable person in Johnson’s position would have felt free to leave or terminate the interaction with Sergeant Hendrie, who “had practically blocked [Johnson’s] vehicle, shined his spotlight into [Johnson’s] vehicle, and authoritatively called out to [Johnson] to produce identification.” Johnson contends this case should be reversed based on the holdings of Crain v. State,
A
We review the trial court’s ruling on a motion to suppress under an abuse-of-discretion standard. Swain v. State,
There are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v. Woodard,
Although no bright-line rule governs when a consensual encounter becomes a seizure, generally when an officer through force or a showing of authority restrains a citizen’s liberty, the encounter is no longer consensual. Woodard,
B
Johnson asserts that when a marked police unit moves to block the forward movement of a vehicle and then uses the marked patrol unit’s spotlight to shine directly inside the blocked vehicle, under an “objective review of the evidence” the blocked vehicle is seized and at that moment the police must have reasonable ar-ticulable suspicion to justify that seizure. Johnson maintains that Crain and Garcia-Cantu support this conclusion. In Crain, the Court of Criminal Appeals held that a detention occurred when an officer shined his vehicle’s spotlight on the defendant, who was walking across a yard, and called out to him to “come over here and talk to me” in a tone that the officer admitted sounded like an order. See
The Court of Criminal Appeals has emphasized that there is no bright-line rule to determine when an encounter becomes a seizure. See Garcia-Cantu,
Johnson’s argument rests on his characterization of the evidence, which he contends indisputably shows that Hen-drie blocked Johnson’s vehicle, shined his spotlight into the vehicle, and “authoritatively called out” to Johnson to produce identification. But although Hendrie’s use of the spotlight was undisputed, whether Hendrie blocked Johnson’s car with his police vehicle and whether Hendrie merely asked Johnson to produce identification or “authoritatively” commanded him to do so were subjects of conflicting testimony. When the trial court does not make explicit findings of fact, we must view all of the evidence in the light most favor able to the trial court’s ruling and infer the necessary factual findings that support the trial court’s ruling if the record evidence supports these implied fact findings. Garcia-Cantu,
In a reply brief, however, Johnson argues that we may not conclude the trial court made implicit findings supporting a conclusion that the encounter was consensual rather than an investigative detention. According to Johnson, the trial court resolved the “detention issue” against the State when it “found” at the conclusion of the hearing, “I do believe that the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention.”
Based on the evidence presented here, the trial court could have determined that Hendrie’s testimony was more credible than Johnson’s concerning the tenor of Hendrie’s initial interaction with Johnson, and reasonably concluded that, when Hen-drie approached Johnson’s car, he asked Johnson “What’s going on, what are you doing here?” and requested to see Johnson’s identification. An officer may, without reasonable suspicion, request identification and information from a citizen. Castleberry,
In summary, viewed in the light most favorable to the trial court’s ruling, the evidence supports implicit findings that during the initial interaction between Johnson and Hendrie (1) Hendrie approached Johnson’s vehicle, which was backed into a parking spot outside the gate of an apartment complex at night with its lights on and engine running; (2) Hendrie parked his police vehicle at an angle that partially blocked Johnson’s egress but did not prevent him from maneuvering around him and driving away; (3) Hendrie shined his police vehicle’s spotlight inside Johnson’s car; (4) Hendrie did not activate his siren or emergency lights, or use a bullhorn or loudspeaker to communicate with Johnson; (5) Hendrie approached Johnson’s car and asked, “What’s going on, what are you doing out here?” and requested Johnson’s identification; and (6) Hendrie did not carry a flashlight, draw a weapon, order Johnson to put his hands up, or otherwise inform him that he was being detained. On these facts, the trial court could have concluded that a reasonable person in Johnson’s position would have believed that he was free to ignore Hendrie’s requests or terminate the interaction, and therefore the initial interaction between Hendrie and Johnson was a voluntary encounter rather than a Fourth Amendment seizure. See Castleberry,
During the consensual encounter, Hen-drie noticed the smell of marijuana. The odor of marijuana alone provides reasonable suspicion for an investigatory detention and probable cause to search a vehicle without a warrant. See Isam v. State,
Based on the foregoing, we conclude the trial court did not abuse its discretion in
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We affirm the trial court’s judgment.
McCALLY, J., concurring.
Notes
. Specifically, Hendrie testified that he "pulled [his] car to the corner of [Johnson's] car.” The trial court asked Hendrie if his vehicle was blocking Johnson’s, and he answered, “It’s — it's in the way a little bit, but not — I wasn’t totally blocking it, no,” and stated that Johnson probably could have maneuvered around him.
. Hendrie also found a stun gun and a mask that covers the nose and mouth in Johnson’s car. Johnson testified that he used the mask for his work at a molding and fabrication company, and a police report reflected that he told an officer that he carried the stun gun because he had been robbed before.
. Although the trial court stated the basis for its ruling, it did not provide any essential findings adequate to provide this court with a basis upon which to review the trial court's application of the law to the facts. See State v. Elias,
. In his reply brief, Johnson states, “The fact that reasonable suspicion may have existed after Sgt[.] Hendrie’s initial detention is not at issue.”
Concurrence Opinion
concurring.
I disagree with the conclusion of the majority that the denial of appellant’s motion to suppress should be affirmed solely because the interaction between appellant and the police sergeant was an encounter. However, as I conclude that the trial court did not abuse its discretion in determining that the interaction was a detention supported by reasonable suspicion, I concur in the result.
I agree with the majority’s presentation of the controlling principle of constitutional law — there are three, distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests. State v. Woodard,
The majority concludes the interaction between appellant Jackie Johnson and Sergeant Stephen Hendrie was an encounter, for which no further constitutional inquiry is necessary. I disagree. In particular, I disagree with the evidentiary analysis that permits the majority to reach that legal conclusion. The eviden-tiary analysis is flawed because it rests entirely upon inferred facts — as if in deference to the trial court — despite the reality that the trial court expressly reached the opposite legal conclusion.
It is true that when the trial court does not make express findings of fact, we view all of the evidence in the light most favorable to the trial court’s ultimate ruling and infer the necessary factual findings that support that ruling if the record evidence supports these implied fact findings. See id. at 241. However, here, the trial court did make an express finding on a mixed question of fact and law: the trial court found that a detention rather than an encounter had occurred.
Therefore, on this point, we are not to indulge, for example, the inference that the trial court believed Hendrie’s version of the facts and that Hendrie’s police car did not completely block appellant’s departure, or that Hendrie did not call to appellant forcefully, or that Hendrie did not pull his pistol as he exited the vehicle — all credibility determinations that would favor a finding that the interaction was an encounter. We must infer the opposite in favor of the trial court’s finding that the interaction was a detention. Those infer-
Nonetheless, the trial court did not abuse its discretion in denying the motion to suppress. A temporary detention is lawful when the officer has reasonable suspicion to believe that an individual is violating the law. See Carmouche v. State,
Sergeant Hendrie provided the following specific facts supporting his investigative detention: Hendrie was responding to a 30-minute-old 911 call from a resident that there was a suspicious black male wearing a dark shirt and standing near the Copper Cove Apartments leasing office at 12901 Brant Rock Drive. He attempted unsuccessfully to reach the complainant by telephone. The Copper Cove Apartments are gated and the leasing office is outside the gate. Hendrie drove by the leasing office and saw no one standing outside, but determined that he should drive through the complex to complete the investigation. Hendrie was in the process of making the u-turn necessary to enter the apartments when he noted a vehicle backed into a parking space with its headlights on. The vehicle was very close to the leasing office. Therefore, as he made the u-turn, Hendrie turned on his high beam spotlight to shine it into the parked vehicle. He noted a black male in a dark shirt sitting in the car. As he pulled up, he also noted the engine on the vehicle was running. Because Hendrie was aware that the Copper Cove Apartments have a history of robberies, and his experience told him that the vehicle was parked in the same way getaway vehicles do, Hendrie pulled his car into the parking area to the corner of the running vehicle, at least partially blocking the exit of the vehicle.
Thus, Hendrie articulated receipt of a summary of a 911 call that raised unusual activity; that is, a resident of the complex believed a suspicious black man in a dark shirt was lurking just outside of the apartment gate nearing the leasing office. Hendrie articulated a connection between the activity and the detainee; that is, appellant, a black male, was wearing a dark shirt, sitting in a running vehicle, backed into a parking space, adjacent to where a suspicious individual had been reported by a resident. Finally, Hendrie articulated a reasonable suspicion that appellant’s activity was related to an imminent crime; that is, knowing the complex to be a frequent location of robberies, he suspected that appellant’s vehicle, backed into a parking spot, outside the gate, with lights on and engine running, was a robbery getaway vehicle.
Based on the foregoing, I also conclude the trial court did not abuse its discretion in denying Johnson’s motion to suppress, but under an alternative analysis.
. As the majority notes, the trial court specifically articulated that a “minimal detention” had occurred when issuing his ruling. We may not disregard this finding simply because it is an oral pronouncement. See State v. Cullen,