Francis v. State

• Decision Date: 15 May 1996
• Docket Number: Nos. 0627-95,0628-95,s. 0627-95
• Parties: Lawrence Howard FRANCIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 176

922 S.W.2d 176

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

Nos. 0627-95, 0628-95.

Court of Criminal Appeals of Texas En Banc.

May 15, 1996.

Bruce W. Cobb, Beaumont, for appellant.

B. Warren Goodson, Jr., Asst. Dist. Atty., Galveston and Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of, among other things, burglary of a habitation and escape. The Court of Appeals affirmed appellant's convictions. Francis v. State, 896 S.W.2d 406 (Tex.App.--Houston [1st Dist.] 1995) (not yet reported). We granted appellant's petition for discretionary review to address the Court of Appeals' holding that a police officer's initial seizure of appellant was "a classic example of a valid temporary investigative detention."

We now find that our decision to grant appellant's petition for discretionary review was improvident. See Tex.R.App.Pro 202(k). Appellant's petition for discretionary review is dismissed.

CLINTON, J., dissents.

BAIRD, Judge, concurring and dissenting on appellant's petition for discretionary review.

Appellant was convicted of burglary of a habitation and felony escape and was sentenced, pursuant to a plea agreement, to two concurrent five-year sentences. Appellant appealed the denial of a motion to suppress evidence. The Court of Appeals affirmed. Francis v. State, 896 S.W.2d 406 (Tex.App.--Houston [1st Dist.] 1995). We granted appellant's petition for discretionary review to address the Court of Appeals' holding that the initial seizure of appellant was an investigative detention rather than an arrest. Contrary to the majority opinion, the decision to grant review in this case was not improvident. We granted review because the case presents a frequently recurring legal issue where our statutory and decisional authority is inconsistent. ¹ Therefore, I dissent to the decision to dismiss this petition. However, for the following reasons, I concur that the judgment of the Court of Appeals should ultimately be affirmed.

I.

On July 3, 1993, the complainants found their home burglarized. While waiting for the police, one of the complainants noticed a man, later identified as appellant, carrying two bags inside the fenced apartment complex. The complainants later saw appellant walking away from the complex with a duffel bag that one of the complainants thought he recognized as his own. When a police officer arrived, the complainants gave this information to the officer and pointed to appellant, who was approximately 100 yards away.

The officer drove to appellant and asked his name. After exiting the patrol car and conducting a weapons pat-down, the officer placed appellant in the patrol car and advised appellant that he had been observed leaving the area of a burglary and that they were going to return to the scene. The officer testified he had reason to believe that appellant was a suspect and that the bags were involved in the burglary. He also testified appellant was not free to leave. The officer placed the bags on the trunk of the patrol car and returned to the apartment complex and the waiting complainants.

As appellant sat in the patrol car, the complainants identified the bags and described items missing from their apartment, which the officer then removed from the bags. The officer opened the car door, advised appellant that he was under arrest for burglary and read him the Miranda warnings. ² While the officer reached for his handcuffs, appellant fled, but was apprehended after a brief chase.

Appellant contended his being placed in the patrol car exceeded the limited restraint allowed for an investigative detention and was, therefore, an illegal arrest. On this basis appellant sought to suppress the evidence. The trial judge denied appellant's motion to suppress.

On direct appeal, appellant contended the trial judge erred in denying the motion to suppress. The Court of Appeals affirmed. The Court of Appeals analyzed the conflicting standards that have been used to distinguish an investigative detention from an arrest. Rejecting the previous standards, which are fraught with difficulty, the Court formulated a new approach based on its reading of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the trend from this Court. Francis, 896 S.W.2d at 411. The Court adopted a totality of the circumstances standard to determine whether there has been an arrest or a temporary investigative detention. Id. Using this standard, the Court held appellant's initial interaction with the police officer was a lawful investigative detention that led to an arrest only after probable cause arose. Id., at 412.

II.

There are three recognized categories of interaction between the police and citizens: encounters, investigative detentions and arrests.

The Fourth Amendment is not implicated in every interaction between police officers and citizens. Terry, 392 U.S. 1, 88 S.Ct. 1868. An encounter is a friendly exchange of pleasantries or mutually useful information. Id., at 13, 88 S.Ct. at 1875-76. "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In an encounter police are not required to possess any particular level of suspicion because citizens are under no compulsion to remain. Hawkins v. State, 758 S.W.2d 255, 259 (Tex.Cr.App.1988); Daniels v. State, 718 S.W.2d 702, 704 (Tex.Cr.App.1986). However, in order for investigative detentions and arrests to be legal, particular levels of suspicion are required.

The concept of investigative detentions originated with Terry, which sought to ensure police action that fell technically short of an arrest was not immune from Fourth Amendment protection. In an investigative detention, also known as a temporary detention or Terry-stop, the officer must have specific articulable facts that, in light of his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped. Terry, 392 U.S. at 21, 88 S.Ct. at 1879-80. There must be a reasonable suspicion by the officer that some unusual activity is or has occurred, that the detained person is connected with the activity and that the unusual activity is related to the commission of a crime. Hoag v. State, 728 S.W.2d 375, 380 (Tex.Cr.App.1987); Daniels v. State, 718 S.W.2d 702, 705 (Tex.Cr.App.1986); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Cr.App.1983). An investigative detention is a seizure under which the citizen is not free to leave, at least for some period of time.

The final level of interaction, an arrest, is also a seizure. It is axiomatic that an arrest must be accompanied by probable cause to believe that a person has engaged in or is engaging in criminal activity. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). This high level of suspicion is meant to protect law-abiding citizens from the high level of intrusion that accompanies an arrest. Unlike an investigative detention, where the seizure may end within a brief period of time, the seizure involved in an arrest will not be brief.

Although the three categories of interaction are easily labeled, they are not so easily distinguished. This is because there is a continuum of human interaction, and what may begin as a consensual encounter can readily become an investigative detention, which may evolve into an arrest. ³ Because the three levels of interaction involve attendant rights and responsibilities, it is essential that peace officers and citizens alike know into which category their interaction belongs.

A.

The controlling distinction between an encounter and either an investigative detention or an arrest is whether there has been a seizure. A seizure occurs when a reasonable person would believe he or she was not free to leave, and whether that person has actually yielded to the officer's show of authority. California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Cr.App.1995) (plurality opinion). In short, interaction without a seizure is an encounter.

However, the standard for distinguishing between an investigative detention and an arrest is not so clear because both are seizures. The standard for determining whether a seizure is an investigative detention or an arrest has been variously termed as: whether one's liberty of movement has been restricted or restrained, Henry v. U.S., 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973); Hoag, 728 S.W.2d at 379; whether a person has been actually placed under restraint, Tex.Code Crim.Proc.Ann. art. 15.22 (Vernon 1977); and whether a reasonable person would have believed that he was not free to leave, Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; Hawkins, 758 S.W.2d at 259. However, these standards do not serve to distinguish investigative detentions from arrests because they focus upon their similarity: both are seizures. ⁴ Consequently, this is not the element upon which a functional distinction can rest.

The Court of Appeals recognized the difficulty posed by the previous attempts to distinguish between investigative detentions and arrests. In formulating a new standard, however, the Court focused solely on the totality of the circumstances to determine whether there was an investigative detention or an arrest. Francis, 896 S.W.2d at 411. However, this approach does not encompass the core distinction between the two, namely their magnitude. An investigative...