Hayes v. State

• Decision Date: 01 April 2004
• Docket Number: No. 03-02-00662-CR.,03-02-00662-CR.
• Citation: 132 S.W.3d 147
• Parties: Parrin HAYES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

132 S.W.3d 147

Parrin HAYES, Appellant, v. The STATE of Texas, Appellee.

No. 03-02-00662-CR.

Court of Appeals of Texas, Austin.

April 1, 2004.

James B. Matthews, Austin, for appellant.

C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for appellee.

Before Chief Justice LAW, Justices MACK KIDD and PURYEAR.

OPINION

MACK KIDD, Justice.

Appellant was convicted of possessing more than four grams but less than two hundred grams of cocaine with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2003).¹ Because he had one prior felony conviction, he received an enhanced sentence of twenty-five years' confinement. Tex. Pen.Code Ann. § 12.42 (West 2003). Appellant argues on appeal that the district court erred in denying his motion to suppress because his detention was unlawful. We agree. We will reverse the judgment of conviction and remand the cause to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts of this case are not in dispute. On February 4, 2001, Austin police officer Clifford Jaeger observed appellant, whom he knew, walking on Sixth Street. Officer Jaeger testified that he had encountered appellant before "a couple of times" and had detained him a few months earlier on another officer's belief that appellant was dealing drugs. In the early morning hours of February 4th, Officer Jaeger observed appellant simply walking across the street, not "doing anything in particular." Appellant did not appear to be intoxicated or under the influence of drugs. Officer Jaeger then approached appellant and initiated a conversation.

During the pretrial suppression hearing, Officer Jaeger was asked by the State: "As you observed [appellant], did you notice anything peculiar that you recognized on his person?" Officer Jaeger answered: "On the initial stop, no. I basically, you know, went up, communicated with him, and at that time I thought, you know, he possibly might have a warrant out. So I basically ID'd him. I already had his name, and I went back to my vehicle and just ran his name to see if he had any warrants out."²

Meanwhile, Officer Rohre was working as a patrol officer in a marked unit and heard over dispatch that Officer Jaeger was going to stop somebody.³ Officer Rohre's job as backup officer was to stand with appellant while Officer Jaeger returned to his vehicle to run a warrant check. For three to four minutes, the three remained posted: Officer Jaeger inside the vehicle with headlights on appellant; appellant standing a few feet in front of the vehicle; and Officer Rohre standing within a few feet of appellant. While acting as Officer Jaeger's backup, Officer Rohre was concentrating on appellant's hands, feet and face because, as he testified, a person's hands are the most dangerous part of the body to an officer, and a person's feet and face "can indicate what direction he may be considering running." Officer Rohre also monitored 360 degrees around himself and Officer Jaeger to ensure that no one else approached unexpectedly.

Officer Jaeger, still sitting in his vehicle, looked up at appellant and, from this vantage point, saw in the headlights something he had not noticed before: a plastic baggie sticking out from appellant's waistband. He emerged from the car to get a better look and recognized residue on the bag that appeared to be crack cocaine. Officer Jaeger seized the baggie and placed appellant under arrest.

An Austin Police Department chemist later dried the contents of the baggie and observed a positive reaction for the presence of cocaine in separate samples from each of twenty rocks and crumbs. Including adulterants and dilutants, the aggregate weight of the baggie's contents was 4.47 grams.

At a suppression hearing, appellant argued that the baggie should be suppressed as the fruits of an unlawful seizure because the police did not have a reasonable, articulable suspicion to justify his detention. The trial court denied appellant's motion to suppress. A jury found appellant guilty of possession of cocaine in an amount of more than four grams but less than two hundred grams with intent to deliver, a first-degree felony. The trial judge then sentenced appellant to twenty-five years' imprisonment.

DISCUSSION

Appellant appeals, arguing: (1) the trial court erred by denying a motion to suppress the fruits of an illegal seizure; (2) the evidence was legally insufficient to establish the offense charged; and (3) the trial court erred by denying a requested instruction for the lesser-included offense of possession of less than four grams of cocaine.

Motion to suppress

When reviewing a trial court's ruling on a motion to suppress, we review de novo "mixed questions of law and fact" that do not turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). By contrast, we afford almost total deference to a trial court's determination of the historical facts that the record supports and those fact findings that are based on an evaluation of credibility and demeanor. Id.; see also Leach v. State, 35 S.W.3d 232, 234-35 (Tex.App.-Austin 2000, no pet.). Here, the relevant facts and circumstances are not in dispute, and the resolution of this appeal does not turn on an evaluation of the credibility of a particular witness. Therefore, we review de novo the two questions on which this case turns: whether appellant was "seized" in such a way that invokes his Fourth Amendment rights and, if so, whether the totality of the circumstances gave the detaining officers a reasonable, particularized, and objective basis for suspecting that appellant was engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see Guzman, 955 S.W.2d at 89.

Whether appellant was detained

The Fourth Amendment protects individuals against unreasonable searches and seizures, including those entailing only a brief detention. United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see U.S. Const. amend. IV. A police officer may approach an individual to ask questions or to request a search without having the level of probable cause or reasonable suspicion that is required for a nonconsensual encounter. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). Yet "when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual ... as long as the police do not convey a message that compliance with their requests is required." Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Leach, 35 S.W.3d at 235. Where compliance is not required and the police do not have the quantum of evidence needed to justify an investigatory stop, see, e.g., Terry, 392 U.S. at 38, 88 S.Ct. 1868 any incriminating evidence the police find during the encounter is nonetheless admissible at trial if it is determined that as of the time of the discovery no seizure had yet occurred. See Texas v. Brown, 460 U.S. 730, 735-40, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality op.); Leach, 35 S.W.3d at 236; see also Wayne R. LaFave, Search and Seizure, § 9.3 at 86 (3d ed.1996). Thus, this case turns initially on whether the police had detained appellant so as to "seize" him for Fourth Amendment purposes.

At the suppression hearing, the parties did not contest that appellant had been detained. Rather, they debated whether suspicion of a warrant constituted reasonable suspicion to justify detention of appellant.⁴ Indeed, Officers Jaeger and Rohre consistently described their encounter with appellant as a detention. During examination by defense counsel at the pretrial suppression hearing, Officer Jaeger testified:

Q: And as I understand your testimony, you—you actually stopped and detained Mr. Hayes on the side of the street there, correct?

A: Correct.

Q: He was not free to leave?

A: No, not at that time.

Q: And that was based on a hunch that there was a warrant available for him?

A: Correct. I thought there might have been a warrant issued for him, and I basically ID'd him at that time and went back to my car just to run it and make sure he didn't have one issued from the prior incident [involving the arrest of two juvenile girls for cocaine possession].

Q: And, in fact, he did not have a warrant, did he?

A: No, I don't believe he did.

Further, during examination by the defense counsel, Officer Rohre testified at the pretrial suppression hearing that appellant was not free to leave:

Q: And what was your role in the events dealing with Parrin Hayes?

A: My primary role was—I was actually just detaining Mr. Hayes while Officer Jaeger conducted a background check on him.

Q: So you held Mr. Hayes there on the side of the street?

A: Not physically. I stood with him.

Q: But he was not free to leave, was he?

A: He was not, sir.

We recognize that the officers' nomenclature does not define the contours of the Fourth Amendment analysis. See, e.g. Whren v. United States, 517 U.S. 806, 812, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (explaining that subjective perspective of officers is not determinative of actual nature of encounter). But in addition to the officers' subjective belief that they had detained appellant, the totality of the circumstances indicates that appellant was not free to leave.

First, Officer Jaeger "ID'd" appellant and "went back to his car just to run it." See United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995) ("when law enforcement officials retain an individual's driver's license in the course of questioning him, that individual, as a general rule, will not reasonably feel free to terminate the encounter"). The State urges on appeal that "ID'd" does not necessarily support the inference that Officer Jaeger physically retained appellant's identification. Second, even if we assume...