Francis v. State, s. 01-94-00728-CR

• Citation: 896 S.W.2d 406
• Decision Date: 06 April 1995
• Docket Number: Nos. 01-94-00728-CR,s. 01-94-00728-CR
• Parties: Lawrence Howard FRANCIS, Jr., Appellant, v. The STATE of Texas, Appellee. to 01-94-00731-CR. (1st Dist.)
• Court: Court of Appeals of Texas

Page 406

896 S.W.2d 406

Lawrence Howard FRANCIS, Jr., Appellant, v. The STATE of Texas, Appellee.

Nos. 01-94-00728-CR to 01-94-00731-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

April 6, 1995.

Bruce W. Cobb, Beaumont, for appellant.

Michael J. Guarino, B. Warren Goodson, Jr., Galveston, for appellee.

Before COHEN, TAFT and HEDGES, JJ.

OPINION

TAFT, Justice.

Appellant, Lawrence Howard Francis, Jr., appeals his convictions for burglary of a habitation (trial court cause no. 93CR1117) and felony escape (trial court cause no. 93CR1118). He also appeals two separate adjudications of guilt for burglary of a vehicle (trial court cause nos. 93CR0646 and 93CR0647). Appellant pled not true to the motions to adjudicate and no contest to the other offenses. The trial court assessed punishment, pursuant to a plea agreement, at concurrent five-year sentences for the burglary of a habitation and escape offenses. The trial court adjudicated appellant's guilt and also assessed concurrent five-year sentences for the burglary of a vehicle offenses.

In three points of error, appellant challenges the trial court's denial of his motion to suppress in all four cases. This appeal requires us to examine the standards used to distinguish a detention from an arrest. We affirm.

Summary of Facts

On July 3, 1993, Todd Simms and Todd Sexton returned from work to find their apartment had been burglarized. While waiting for the police, they noticed a man, later identified as appellant, carrying two bags inside the fenced apartment complex. When Officer Alfred Paige arrived, Simms and Sexton noticed the same man walking away from the apartment with a duffel bag Simms recognized as his own. Simms and Sexton gave this information to the officer and pointed out appellant who was approximately 100 yards away.

Officer Paige drove up to appellant and asked his name. After exiting his patrol car and conducting a weapons pat-down for his own safety, Paige put appellant in the patrol car and advised him that he had been observed leaving the area of a burglary and they were going back to the scene. Officer Paige testified that he had reason to believe that appellant was a suspect and that the bags were involved in the burglary. He also testified that appellant was not free to leave. Officer Paige placed appellant's bags on top of the trunk of the patrol car, and drove a couple of blocks back to the apartment.

While appellant waited in the car, Simms and Sexton identified the bags as their own and described the missing contents, which Paige removed from the bags. Officer Paige then opened the car door for appellant, advised him that he was under arrest for burglary, and read him the Miranda ¹ warnings. When Paige reached for his handcuffs, appellant ran down the road. After a short chase, Officer Paige apprehended appellant.

Suppression: the Burglary and Escape Convictions

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress in cause numbers 93CR1117 (the burglary of a habitation) and 93CR1118 (the escape). ² Appellant contends that he was illegally arrested when first stopped by Officer Paige because he was placed in the patrol car and was not free to leave. He admits, however, that a temporary investigative detention would have been justified at that point.

A trial court's ruling on a motion to suppress will not be set aside absent a showing of abuse of discretion. Santos v. State, 822 S.W.2d 338, 339 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). To determine whether the trial court abused its discretion, the evidence is viewed in the light most favorable to the ruling. Id. At the hearing on a motion to suppress, the trial judge is the sole fact finder and may believe or disbelieve all or any part of the witnesses' testimony. Id. Any finding supported by the record will not be disturbed on appeal. Id.

As noted by appellant, the issue is whether his detention was an investigative detention or an arrest, because the nature of the detention determines the constitutional parameters that apply to determine its legality. Amores v. State, 816 S.W.2d 407, 411 (Tex.Crim.App.1991). Although this case requires us to distinguish between an investigative detention and an arrest, it is helpful to place the issue in context by first examining all three categories of police-civilian interaction.

A. Three Categories of Police-Civilian Interaction

In Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968), the Supreme Court described the rich diversity of police-civilian interactions: "They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life." The court eschewed the suggestion that the Fourth Amendment did not apply to a stop, as it would to an arrest:

We emphatically reject this notion. It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime--"arrests" in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person.

Terry, 392 U.S. at 16, 88 S.Ct. at 1877. The court had no occasion to address the constitutional propriety of an investigative "seizure," upon less than probable cause, for purposes of "detention" or interrogation, or both. Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. Nevertheless, Terry established the framework for recognizing three categories of police-civilian interaction: (1) encounter; (2) detention; and (3) arrest. Only detentions and arrests were determined to amount to "seizures" of persons. Terry, 392 U.S. at 19, 88 S.Ct. at 1879.

In Terry, the Supreme Court also established an analytical approach employing an objective determination of whether, under the circumstances, the particular intrusion was reasonable based on possession by the police officer of specific and articulable facts, taken together with rational inferences from those facts. Terry, 392 U.S. at 21, 88 S.Ct. at 1880.

The three categories of police-civilian interaction have been recognized in subsequent cases, both federal and state. See, e.g., Florida v. Royer, 460 U.S. 491, 498-502, 103 S.Ct. 1319, 1324-1326, 75 L.Ed.2d 229 (1983) (recognizing all three); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App.) (recognizing encounters and detentions), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986); Amores, 816 S.W.2d at 411 (recognizing detentions and arrests).

1. Encounter

Terry portrayed one end of the spectrum of police-civilian interaction as "friendly exchanges of pleasantries or mutually useful information" and pointed out that "[o]bviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." 392 U.S. at 13, 19 n. 16, 88 S.Ct. at 1875, 1879 n. 16. Terry spoke of "encounters" initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute a crime. 392 U.S. at 13, 88 S.Ct. at 1876.

It is now well settled that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual in public to ask questions. Florida, 460 U.S. at 498, 103 S.Ct. at 1324; Daniels, 718 S.W.2d at 704. This encounter does not require any justification whatsoever on the part of an officer. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); Daniels, 718 S.W.2d at 704.

2. Detention

In Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), the Supreme Court defined the "stop" which allows the "frisk" in Terry v. Ohio: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." This stop was identified as an "intermediate response" for which an officer need not have the precise level of information necessary for probable cause to arrest. Adams, 407 U.S. at 147, 92 S.Ct. at 1923. Such a temporary detention requires that an officer have reasonable suspicion that a person is involved in criminal activity. Royer, 460 U.S. at 497, 103 S.Ct. at 1324; Daniels, 718 S.W.2d at 704-05.

3. Arrest

Terry spoke of "arrests" in terms of traditional terminology, i.e., "seizures" which "eventuate in a trip to the station house and prosecution for crime." 392 U.S. at 16, 88 S.Ct. at 1877. Of course, it is well established that an arrest must be justified by probable cause to believe that the suspect has committed, or is committing, an offense. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Amores, 816 S.W.2d at 411, 413.

B. Conflicting Standards for Distinguishing Arrests from Detentions

Appellant relies upon Hoag v. State, 728 S.W.2d 375 (Tex.Crim.App.1987) for the proposition that an arrest occurs when a person's liberty of movement is restricted or restrained. He relies upon TEX.CODE CRIM.PROC.ANN. art. 15.22 (Vernon 1977) for the proposition that a person is arrested when he has been actually placed under restraint. Appellant also relies upon Hawkins v. State, 758 S.W.2d 255 (Tex.Crim.App.1988) for the proposition that a person has been "seized" only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Appellant argues that by placing him in the back seat of the patrol car and by acknowledging that he was not free to leave, Officer Paige had arrested appellant.

This court has previously held that placing a motorist in a patrol car did not amount to a custodial arrest so as to require Miranda warnings, despite the officer's testimony that the motorist was not free to leave during the traffic...