Johnson v. State

• Decision Date: 12 May 2021
• Docket Number: NO. PD-0561-20,PD-0561-20
• Citation: 622 S.W.3d 378
• Parties: Jacob Matthew JOHNSON, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

622 S.W.3d 378

Jacob Matthew JOHNSON, Appellant

v.The STATE of Texas

NO. PD-0561-20

Court of Criminal Appeals of Texas.

Delivered: May 12, 2021

John R. Messinger, for State.

Dominic John Merino, Alvin, for Appellant.

Keller, P.J., delivered the opinion of the Court in which Hervey, Yeary, Newell, Keel, and Slaughter, JJ., joined.

An officer activated his emergency lights and approached a parked vehicle at a "park and ride" lot.We conclude that the officer had reasonable suspicion to conduct an investigative detention because the parking lot had a significant association with criminal activity and because the occupants of the vehicle engaged in activity that appeared secretive and was unusual for the time and place.Consequently, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

I.BACKGROUND

A.Suppression Hearing

The only witness at the suppression hearing was Sergeant Robert Cox, from the patrol division of the Brazoria County Sheriff's Office.He testified about events occurring on August 28, 2016, at a park-and-ride parking lot.

The main use of the park-and-ride was "during the daytime for people that go into plant traffic and park," but it was open twenty-four hours.The park-and-ride was close to a bar, and because the bar's own parking lot was small, patrons often parked at the park-and-ride and walked over.Sergeant Cox knew that the park-and-ride was a place where "a variety of criminal activity" took place, including burglaries of motor vehicles, public lewdness, and illicit drugs.In his ten years of patrolling the area, Sergeant Cox could not say how many times he had been at the park-and-ride on calls, but it had been "a lot."In the months around August 28, he personally had been at the park-and-ride on calls "maybe three or four" times.When he was not on a call, but was simply patrolling the park-and-ride, the sergeant's general practice was to drive around the lot and shine a spotlight on the vehicles.

Shortly after midnight, Sergeant Cox saw a vehicle parked by itself away from where other vehicles were parked.This solitary vehicle's headlights and other outside lights were off, and there were no lights on inside the vehicle.When he shined his spotlight on the vehicle, Sergeant Cox could tell that there were two occupants and that there was movement inside the vehicle.In Sergeant Cox's experience, it was out of the ordinary for someone to be inside a vehicle at the park-and-ride after midnight "[w]ith no other vehicle there to pick them up and give them a ride."

The sergeant pulled to a stop 10 to 15 yards behind the vehicle and activated his overhead emergency lights.¹He activated those lights to start the recording equipment and also to let the occupants of the vehicle know he was a police officer "and so nobody shoots [him]."He approached the vehicle on foot, made contact on the driver's side using caution, and identified himself.At some point, the driver's side window was rolled down, and once that occurred, Sergeant Cox smelled marijuana.At that point, the sergeant also noticed that Appellant was wearing baggy shorts and that his shorts were unbuttoned and unzipped.

During the hearing, defense counsel asked the sergeant, "And you had—you know, so if you turned on your overhead lights, it would be like a normal police car pulling somebody over if you got a traffic ticket.Right?I mean, that's what your vehicle looked like?"Sergeant Cox responded, "Yes, sir."

The State sought to offer a copy of the video recording captured by the patrol car.Defense counsel objected that the video recording was irrelevant because the events it depicted occurred after the defendant was seized.The defense theory was that a seizure of Appellant occurred once the overhead emergency lights were activated and that the sergeant did not have reasonable suspicion to initiate that seizure.Since the recording captured only events that occurred after the overhead emergency lights were activated, the defense reasoned, the events on the recording would necessarily be post-seizure.²The trial court sustained the defense objection.It agreed with the defense "somewhat" and concluded that the issue before it was whether the officer had reasonable suspicion.

B.Trial Court's Findings

The trial court made the following written findings of fact that seem relevant to the inquiry before us:

2.Sergeant Robert Cox testified that he was on routine patrol around 12 AM.

3.Sergeant Cox further testified that as part of his routine patrol, he regularly checks the park and ride located at the intersection of FM 2004 and FM 523.He regularly spotlights vehicles parked overnight in that park and ride to deter drug activity and burglaries.

4.The park and ride at the intersection of FM2004 and FM 523 is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness.Sergeant Cox testified that he had personally made several arrests in the months prior to this offense for such offenses in that park and ride.

5.While conducting his routine patrol on or about the day in question, Sergeant Cox spotted the defendant's vehicle parked in the park and ride and observed movement inside.Other vehicles were present in the park and ride and that [sic]defendant's vehicle was parked away from the other vehicles.

6.Sergeant Cox parked behind defendant's vehicle then turned on his overhead lights.

7.Sergeant Cox did not block the defendant's vehicle from leaving when he parked behind it.

8.Sergeant Cox then approached defendant's vehicle.

9.Once the defendant rolled down his window, Sergeant Cox observed the defendant's pants to be undone and detected the smell of marihuana.

The trial court issued the following conclusions of law:

1.Officers do not need reasonable suspicion to initiate a consensual encounter with a citizen.Sergeant Cox's initial encounter with the defendant was a proper consensual encounter that later evolved into an investigative detention.

2.The sole fact that Sergeant Cox activat[ed] his overhead lights alone did not elevate the consensual encounter into an investigative detention.

3.If the initial encounter was a detention, it was properly supported by reasonable suspicion of criminal activity as necessary to detain the defendant based on specific, articulable facts, namely: his presence in the park and ride, a high crime area, after the park and ride's normal operating hours.³

C.Appeal

The court of appeals concluded that a seizure had occurred before Appellant rolled down his car window.⁴That court observed that "fact patterns involving a police officer's use of a patrol car's overhead emergency lights are frequently held sufficient to constitute an investigative detention of a citizen, whether in a parked car or a moving car."⁵But, the court of appeals said, "[C]ourts must consider the circumstances" and ultimately "context matters."⁶The court noted that a police car might pull to the side of the road at night and activate emergency lights for safety purposes.⁷After reviewing the circumstances of Appellant's case in the light most favorable to the trial court's ruling, the court of appeals concluded that the evidence demonstrated that Officer Cox "through a show of authority, sufficiently conveyed the message that appellant was not free to leave the Parking Lot or to ignore a request to lower the car window."⁸

The court of appeals further concluded that Sergeant Cox lacked reasonable suspicion to initiate the seizure.⁹The appellate court first took issue with the trial court's conclusion that the park-and-ride was a high crime area.¹⁰The court of appeals noted that the Sergeant testified to responding to three or four calls during a time period and that he also testified that burglaries of motor vehicles, drug crimes, and public lewdness occurred at the park-and-ride, but the court of appeals stated that the sergeant did not say that the calls were for those crimes or that the calls resulted in any arrests.¹¹The appellate court also stated that Sergeant Cox did not testify that the park-and-ride was a high crime area.¹²The court of appeals concluded that the record does not support the trial court's finding that the park-and-ride "is a high crime area for burglaries of motor vehicles, drug crimes, and public lewdness and that Officer Cox testified he had made several arrests for these types of offenses in the months prior to the charged offense."¹³Consequently, the court of appeals disregarded these findings.¹⁴

Next, the court of appeals noted that the time of day and level of criminal activity in the area are relevant to reasonable suspicion but that "courts generally require something else particular to the suspect's behavior to justify a suspicion of criminal activity."¹⁵The appellate court pointed to one of its earlier cases, in which reasonable suspicion was lacking, when the following factors were present:

(1) it was 2:30 a.m.; (2) while driving on a highway, the officer saw a truck parked behind a shopping center; (3) the businesses in the shopping center were closed; (4) there had been burglaries at the shopping center in the past, though the police officer did not say how recent or how many; (5) the officer turned into the parking lot shortly afterwards and discovered that the truck was gone; (6) the officer then turned onto an adjoining road and within fifteen to twenty seconds came upon a truck that he believed to be the same as the one at the shopping center; and (7) the officer wanted to identify the truck.¹⁶

After analyzing the earlier case, the court of appeals concluded that, even in the light most favorable to the trial court's ruling, the record in this case did not reasonably support the trial court's determination that Sergeant Cox had the requisite reasonable suspicion.¹⁷Ultimately, the court of appeals reversed the trial court's judgment and remanded the case for further proceedings.¹⁸

The concurring opinion would have held that ...