Hunter v. State

Decision Date22 October 1997
Docket NumberNo. 0576-95,0576-95
Citation955 S.W.2d 102
PartiesLeroy James HUNTER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

James R. Butler, Houston, for appellant.

Kimberly Aperauch Stelter, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

Appellant was convicted of possession of cocaine with intent to deliver. On appeal to the First District Court of Appeals, appellant complained of the trial court's denial of his motion to suppress the cocaine based upon his claim that the police officers had lacked reasonable suspicion to detain him. The Court of Appeals agreed with appellant and reversed the judgment of the trial court. Hunter v. State, No. 01-93-01158-CR, 1995 WL 215182 (Tex.App.--Houston [1st Dist.], 1993)(unpublished). We granted the State's petition for discretionary review to decide whether the Court of Appeals erred in concluding that appellant was "detained" so as to call for reasonable suspicion. 1

Officers Ralph Rodriguez and Danny Furstenfeld were monitoring the downtown Houston bus station for drug traffickers when they approached appellant as he waited to board a bus to Baton Rouge. Rodriguez asked appellant for permission to speak with him and identified himself as a police officer. He questioned appellant while Furstenfeld stood several feet back, but within hearing range. He asked appellant about where he was traveling and then asked if he could see appellant's bus ticket. Appellant proffered his ticket. Rodriguez returned the ticket to appellant and then asked to see his identification. Appellant had none. He asked if appellant was carrying any narcotics. Appellant replied that he was not. Rodriguez then told appellant that he was a narcotics officer conducting a narcotics interview. He asked appellant if he could look inside his bag, but also informed appellant that he "did not have to let me." Appellant nevertheless agreed to the search of his bag. During that search Rodriguez discovered a white substance, which later proved to be cocaine.

Appellant was subsequently charged with possession of over 400 grams of cocaine and he entered a not guilty plea. The trial court assessed a punishment of twenty-five years confinement and a $50,000 fine. Prior to the disposition of his guilt, however, appellant moved to suppress the cocaine found in his bag, contending that although he had been "detained" by the police officers, there was no "reasonable suspicion" to support the detention. The trial court denied his motion.

The Court of Appeals held that "when Officer Rodriguez' informed appellant that he was a narcotics officer conducting a narcotics interview and he requested permission to search appellant's luggage, a reasonable person in appellant's position would not have believed he was free to leave. At this point, a detention resulted." Hunter, slip op. at 5. The State argues the Court of Appeals opinion does not address the Supreme Court's opinion in Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), which held that officers need not have any level of suspicion to simply ask for permission to do something so long as the officers don't indicate that compliance is required. The State reasons that if an officer does not need reasonable suspicion to request consent to search, then it should not be the case that a person is "detained" solely by virtue of such a request (for which the officer would need reasonable suspicion). Appellant points to this Court's opinion in Daniels v. State, 718 S.W.2d 702 (Tex.Crim.App.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 252 (1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988), to support his argument that a defendant is in fact detained by virtue of an officer's request to search his luggage or bag.

Not every encounter between police and citizens implicates the Fourth Amendment. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386. A police officer is just as free as any other citizen to stop and ask questions of a fellow citizen. Such encounters are consensual "[s]o long as a reasonable person would feel free 'to disregard the police and go about his business.' " Bostick, 501 U.S. at 434, 111 S.Ct. at 2386 (quoting California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). The Supreme Court in Bostick emphasized that

[W]hen officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ...; ask to examine the individual's identification, ...; and request consent to search his or her luggage, ... as long as the police do not convey a message that compliance with their requests is required.

Id. at 435, 111 S.Ct. at 2386 (citations omitted); id. at 437, 111 S.Ct. at 2387-88 (reiterating same test). As in all cases involving a determination of whether a "seizure" has occurred for Fourth Amendment purposes, the particular encounter is assessed by looking at the totality of the circumstances. Id. at 439, 111 S.Ct. at 2388-89.

And so the encounter between appellant and the officers in this case was not rendered a "detention" simply by virtue of the facts that the officers asked for appellant's identification and requested to search his bag. Rather, the dispositive question is whether the officers conveyed a message to appellant that compliance with their requests was required. Another look at all of the circumstances is necessary to this determination.

The officers were dressed in plain clothes and their weapons were not visible. They approached appellant and Rodriguez asked appellant if he could speak with him and identified himself as a police officer. Furstenfeld stood approximately eight to ten feet away during the encounter. Rodriguez asked appellant some questions about his travel plans and then asked to see his bus ticket. Rodriguez returned the ticket to appellant and asked to see his identification. Rodriguez stated that he had none. Rodriguez asked appellant if he was carrying narcotics, to which appellant replied that he was not. Rodriguez then identified himself as a narcotics agent conducting a narcotics interview and asked permission to look inside appellant's bag. He informed appellant that he did not have to consent to the search. 2 Appellant told Rodriguez to "go ahead."

Several facts are noteworthy in deciding whether the officers conveyed a message that compliance with their requests was required. The officers were dressed in plain clothes. Their weapons were concealed throughout the encounter. To the extent that two officers are more intimidating than one, only Rodriguez actually engaged appellant, while Furstenfeld stood several feet back. Rodriguez did not retain appellant's ticket, but gave it back to him. Rodriguez did not affirmatively state that he believed appellant was carrying drugs. Rodriguez specifically told appellant that he did not have to allow him to look in his bag. Rodriguez did not suggest that he would get a search warrant if appellant did not permit him to look in the bag. There is nothing in these facts that conveyed a message that appellant was required to comply with Rodriguez' requests. Under these facts, a reasonable person would have felt free to walk away from Rodriguez at any time during the encounter, prior to the search of the bag. The Court of Appeals erred in holding that a detention occurred because a reasonable, innocent 3 person would not have felt free to leave. 4

The Court of Appeals relied upon Holladay v. State, 805 S.W.2d 464 (Tex.Crim.App.1991). In both Holladay, supra, and Daniels, supra, we held or stated that a detention occurred when the narcotics officers requested to see the defendant's identification and plane ticket, and asked permission to search the defendant's bags. In Holladay, we specifically stated that the consensual encounter was rendered a detention at the point the officers asked permission to search the defendant's luggage. Holladay, 805 S.W.2d at 472 (officer's "request for permission to search appellant's luggage converted this initial encounter into an investigative one"). In both cases, as here, the officers were in plain clothes, the officers identified themselves as narcotics investigators, and the defendants were all told that they did not have to consent to the requested search. 5 Both cases relied upon Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), to support their holdings that a detention had occurred. Holladay, 805 S.W.2d at 472 (citing Daniels and Royer as support for holding detention occurred); Daniels, 718 S.W.2d at 706 n. 2 (citing Justice Brennan's concurring opinion in Royer as support for holding detention occurred). But the facts in Royer, a plurality opinion, were quite different. In Royer, the Supreme Court held, "Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment." Royer, 460 U.S. at 501, 103 S.Ct. at 1326. Although Justice Brennan in a separate concurring opinion stated that "once an officer has identified himself and asked a traveler for identification and his airline ticket, the traveler has been "seized" within the meaning of the Fourth Amendment," no other justices joined this opinion and it is clearly not the law. Id. at 511, 103 S.Ct. at 1331 (Brennan, J., concurring in result).

Bostick, a majority opinion, decided after Royer, made exceedingly clear that asking for identification and permission to search a...

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