Johnson v. State

• Decision Date: 15 November 1995
• Docket Number: No. 1340-93,1340-93
• Citation: 912 S.W.2d 227
• Parties: Ricardo Lloyd JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 227

912 S.W.2d 227

Ricardo Lloyd JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 1340-93.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 15, 1995.

Rehearing Denied Nov. 15, 1995.

John D. Nation, Dallas, for appellant.

Robert P. Abbott, Assist. Dist. Atty., Dallas, Robert A. Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Our prior opinions are withdrawn.

The trial court convicted appellant of the offense of aggravated possession of cocaine with the intent to deliver. See TEX.HEALTH & SAFETY CODE ANN. § 481.102(3)(D), and § 481.112(a) & (c). On original submission, this Court vacated the judgment of the Court of Appeals and remanded the instant cause to the Court of Appeals "to reconsider appellant's suppression argument by reviewing the totality of the circumstances of appellant's arrest in light of California v. Hodari, D." ¹ Johnson v. State, 825 S.W.2d 126, at 127 (Tex.Cr.App.1992). On remand, the Court of Appeals complied with the order of this Court. Sitting en banc, the Court of Appeals affirmed appellant's conviction. Johnson v. State, 864 S.W.2d 708 (Tex.App.--Dallas 1993). This Court granted appellant's petition for review.

In his only ground for review, appellant asserts:

"The Court of Appeals erred in following the holding in California v. Hodari, D., 111 S.Ct. 1547 (1991) and holding that appellant was not seized within the meaning of Article 1, § 9 of the Texas Constitution either when police officers confronted him in the breezeway of the apartment complex or when police officers pursued appellant."

We will affirm the decision of the Court of Appeals.

I. The decision of the Court of Appeals

Appellant argued before the Court of Appeals that he was "detained" or "stopped" under TEX.CONST. Art. I, § 9, either when the arresting officers initially confronted him in the breezeway or when the officers chased him and made a show of authority by shouting at him to stop. In its opinion, ² the Dallas Court of Appeals explained it understood "a seizure, for purposes of article one, section nine, to occur when the police have intruded on the freedom of a citizen by momentarily detaining the person. The mere approach of police officers that does not interfere with one's freedom of movement and causes only minimal inconvenience and loss of time is not a seizure." Johnson v. State, 864 S.W.2d, at 715; and cases cited therein.

In applying this holding to the facts, the Court of Appeals found when,

"the officers walked around the corner into the breezeway, they did nothing that would lead a reasonable innocent person to believe that he was not free to leave. Their mere presence in this case did not constitute a show of authority. The officers' mere presence in no way intruded on Johnson's freedom by momentarily detaining him. Thus, Johnson was not seized under the Fourth Amendment or article one, section nine, when the officers made their presence known by walking into the breezeway and within the view of Johnson and the other two men."

Johnson v. State, 864 S.W.2d, at 716.

The Court of Appeals then faced the issue whether, under Art. I, § 9, appellant was seized when the officers showed their authority by chasing appellant and shouting at him to stop. The Court of Appeals began by analyzing Art. I, § 9, to determine if it provides more protection than the Fourth Amendment on this issue:

"Heitman clearly gives us the authority to grant defendants greater rights under the Texas Constitution than afforded by the Supreme Court's interpretation of the United States Constitution. Because we can do so, however, does not mean that we should do so. State precedent existing before the Fourth Amendment was made applicable to the states does not support granting defendants greater rights under article one, section nine than they currently enjoy under the Fourth Amendment." ³ (emphasis supplied in original.)

Johnson v. State, 864 S.W.2d, at 718.

Though yielding to precedent in Heitman, the Court of Appeals held that Art. I, § 9 does not provide more protection for appellant than does the Fourth Amendment. They believed Art. I, § 9, does not show "an intent to provide a defendant greater protection under the state constitution than that provided under the Fourth Amendment. See TEX.CONST. Art. I, § 9 interp. commentary (Vernon 1984) ("[T]he language of Article I, Section 9 of the Texas Constitution is substantially the same as that used in the [the Fourth] Amendment.")." Johnson v. State, 864 S.W.2d, at 719-720; and sources cited therein.

Yet, under Heitman, the Court of Appeals recognized it could look to interpretations of the Fourth Amendment only as advisory in interpreting Art. I, § 9, and not as controlling authority. Where the Supreme Court's interpretation of the Fourth Amendment conflicts with Texas public policy or our own interpretations of the Texas Constitution, Texas precedent controls so long as it does not call for a restriction of the rights provided for a defendant under the Federal Constitution. The Court of Appeals then sought to "examine the rationale underlying the Supreme Court's decision in Hodari and determine whether its conclusion is consistent with Texas precedent and sound public policy." Johnson v. State, 864 S.W.2d, at 720-721.

Applying the definition of "seizure" in Hodari D. to the text of Art. I, § 9, the Court of Appeals determined that furthering a public policy of encouraging compliance with a police officer's show of authority will not infringe upon a citizen's right to be free from an unreasonable seizure. The Court of Appeals found that if a fleeing suspect stopped "as a result of the officer's show of authority or if he is physically forced to stop, then he will be "seized" under article one, section nine. As long as he chooses to ignore the officer's show of authority, he will not be permitted to claim that the show of authority interfered with his liberty." Johnson v. State, 864 S.W.2d, at 722.

The Court of Appeals reasoned a suspect will always be able to contest lawfulness of the seizure in court, and the State will always be required to meet the burden of proving beyond a reasonable doubt the police had a reasonable suspicion to investigate.

"Requiring that a suspect yield to a show of authority or be physically stopped by the police before being deemed "seized" under article one, section nine serves the public interest by encouraging compliance with police orders without sacrificing the suspect's constitutional rights to challenge the lawfulness of those orders and invoke the statutory exclusionary remedy."

Johnson v. State, 864 S.W.2d, at 723. The Court of Appeals adopted the conclusion reached by the Supreme Court in Hodari D. to determine when a citizen is seized under Art. I, § 9.

The Court of Appeals then applied this ruling to the facts of the instant case. When the officers chased appellant and shouted at him to stop, their actions "constituted a show of authority that would lead a reasonable innocent person to believe that he was not free to leave." Had appellant complied with this show of authority, the Court of Appeals believed he could claim to have been seized. When appellant continued to flee from the officers, the Court of Appeals found the officers' actions did not have a coercive effect on appellant. The Court of Appeals held "the officers' pursuit of Johnson and ordering him to stop did not constitute a seizure of Johnson under article one, section nine." Johnson v. State, 864 S.W.2d, at 723-724.

Lastly, the Court of Appeals decided that appellant was seized when he complied with the officers' orders, with their guns drawn, for him to drop his gun and to stop. "Clearly, a reasonable innocent person would not feel free to leave when two police officers with guns drawn order him to stop.... When Johnson complied with the officers' orders and stopped, the second prong of the test for seizure was met and he was, at that moment, seized under both the Fourth Amendment and article one, section nine." The Court of Appeals also found appellant was seized when he dropped the gun and, simultaneously, the Crown Royal bag containing the drugs.

The Court of Appeals concluded that when the officers saw appellant in possession of the handgun before he dropped it in response to their orders, "they had probable cause to arrest Johnson for unlawfully carrying a weapon at the time they seized him." The Court of Appeals held the subsequent search of the Crown Royal bag was a "lawful warrantless search incident to a lawful arrest." Johnson v. State, 864 S.W.2d, at 724.

II. The Dispute Before this Court

As noted above, appellant has only asked us to decide if the Court of Appeals erred when it relied on California v. Hodari, D. ⁴ in deciding appellant was not seized under Art. I, § 9 "either when police officers confronted him in the breezeway of the apartment complex or when police officers pursued appellant."

Appellant attacks the opinion of the Court of Appeals as an "inadequately reasoned response to the important issues raised" in his appeal. Appellant alleges the Court of Appeals inadvertently "fused" arrests and investigatory detentions for purposes of constitutional analysis. In this fusion of arrests and investigatory detentions, appellant asserts the Court of Appeals moved police misconduct occurring prior to the time of an actual seizure outside the protection of Art. I, § 9.

In his case, appellant argues the arresting officers lacked an articulate, reasonable suspicion to detain him for purposes of investigation, and lacked the probable cause to arrest him at the point when they confronted him in the breezeway. Appellant implies he was barred from prevailing upon this argument on direct appeal by the Court of Appeals' ruling that he was not seized until he acquiesced to the arresting officers' show of authority.

Appellant urges ...