Johnson v. State

Decision Date11 December 2013
Docket NumberNo. PD–0209–12.,PD–0209–12.
PartiesJackie JOHNSON, Appellant v. The STATE of Texas.
CourtTexas Court of Criminal Appeals

OPINION TEXT STARTS HERE

E. Matt Leeper Jr., Attorney at Law, Houston, TX, for Appellant.

David C. Newell, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for State of Texas.

OPINION

JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, WOMACK, and COCHRAN, JJ., joined.

Appellant's motion to suppress asserted that: his seizure was made without any reasonable suspicion that he was engaged in any criminal activity or breach of the peace; acquisition of the evidence that would be offered by the state was not pursuant to a reasonable investigative detention or pursuant to an arrest warrant; no exigent circumstances existed; and the arrest was made without probable cause to believe appellant was engaged in criminal activity. It also alleged that the search was in violation of the laws of this state and of the United States Constitution. After a hearing, the trial court denied the motion.1 In making that ruling, the trial judge specifically found that appellant had been detained, saying that she believed that “the officer acted reasonably under the circumstances and did have articulable facts that justified the minimal detention,” but also denied appellant's motion to suppress. Appellant then plead guilty to the misdemeanor offense of possession of marijuana and, pursuant to a plea agreement, was sentenced to twenty days in jail. He appealed the trial court's denial of his suppression motion. The court of appeals concluded that the trial court did not abuse its discretion in denying the suppression motion and affirmed the trial court's judgment. Johnson v. State, 359 S.W.3d 725 (Tex.App.-Houston [14th Dist.] 2011). We granted review of appellant's petition to this Court. We sustain appellant's grounds for review 2 and reverse and remand this cause to the court of appeals to determine whether the detention was valid.

I. Facts

The record from the hearing on appellant's suppression motion reflects that an identified complainant who was a resident of an apartment complex called 911 to report a suspicious person-an unidentified black male who was sitting on the steps watching cars near her apartment, number 309, which was near the rear of the complex and could not be seen from the front, and only, entrance to the complex. Her report included a description of that person and his clothing. 3 In response to her call, a Houston Police Department officer went to the complex. The officer testified that he had tried to contact the complainant by telephone but was unsuccessful and had made no attempt to contact the resident in apartment 309 in person. He also testified that he was familiar with the complex. According to the responding officer, the call slip indicated that “the guy was standing out front of the leasing office,” 4 so he drove past the leasing office but saw no one there.5

Seeing a vehicle with its lights on backed into one of the parking spaces beside the leasing office, outside of the entrance gate but on the complex property, the officer shined his high-beam spotlight “in the car” and saw appellant sitting in it. He conceded that appellant was parked legally. The spotlight, described by the officer as [p]retty darn bright” and being “a big, big thick lamp,” remained aimed at appellant's car throughout the ensuing events. The officer “pulled kind of on the-the corner of his car.... Kind of parked catty-corner like that,” but not “totally blocking it.” The officer and the court had a brief colloquy about the position of the police car.

The court: ... So is your vehicle blocking his?

The witness: It's—it's in the way a little bit, but no—I wasn't totally blocking it, no.

...

The court: Could he have left if he had wanted to, or would your car have—

The witness: From what I remember, he could have probably maneuvered around me—

The court: Okay.

The witness:—manipulated around me, yeah.

In response to the prosecutor's question as to what brought his attention to appellant's car, the officer stated, “It was backed in. So I thought maybe it could be, you know, a get-away vehicle or a get-away driver in there. Could be the suspect, you know, had just done a robbery and was going to leave. So it was backed in. That's what brought my attention to it.” The officer testified that he continued to shine his patrol car's large spotlight on appellant's vehicle as he got out of his own vehicle and spoke to appellant “us[ing] a loud authoritative voice maybe. I said a loud voice so I could hear him. I was far away. I had to use an outside voice.” The officer walked in front of appellant's car, going first to the passenger side, then to the driver's side. Appellant matched the description of the suspicious person in the call slip to the extent that he is a black male. His clothing matched the complainant's description of the suspect in that he was wearing a dark shirt, but his pants were also dark, not beige as described in the call slip, and he was not wearing a do rag or anything else on his head. The officer testified that, during the course of that interaction, he smelled a little bit of an odor of marijuana when he was at the passenger door and that the odor was quite strong on the driver's side. But when the prosecutor asked the officer when he saw the marijuana, the officer responded that he did not see the marijuana until he “asked [appellant] to step out of the vehicle. And then I did a—I detained him. And then I looked in the car, and it was sitting on the front console.”

When questioned by defense counsel about the discrepancy between his testimony—he smelled marijuana at the passenger door—and his offense report—no mention of smelling marijuana at the passenger door or of the seized marijuana sitting on the front console in plain view, the officer responded, “I don't write everything that happened out there in my police report. This is just to refresh my memory when I come [to court].” The officer also testified that “it didn't seem to me that [appellant] was” under the influence of either alcohol or marijuana, nor was there, in appellant's car, any physical evidence, such as roaches, of marijuana having been smoked in the car. The officer arrested appellant and charged him with misdemeanor possession of marijuana. After the arrest, the officer confiscated from appellant's back seat a stun gun and a mask that “covers your nose and your mouth and just your eyes showing.” 6

On cross-examination, the officer appeared evasive and argumentative, resulting in two defense requests to the trial court that the officer be instructed to answer the question that had actually been asked instead of arguing with defense counsel. After the second request, the trial court stated, “Just wait for the question, answer only the question that's posed.” For example, the officer was reluctant to concede that the call slip, Defense Exhibit 5, did not state a criminal offense, repeatedly asserting what could have been going on—a robbery, a criminal trespass—rather the words on the call slip that reflected merely a report of a suspicious person. After numerous attempts and failures by defense counsel to obtain agreement that the call slip did not report a crime, the trial court commented, “You're never going to get him to say it, but I can read.”

Although the officer continued to maintain that appellant could have just driven around him and that appellant was not under arrest, he did testify that appellant had yielded to his authority.

Q: But it's possible that you pulled your pistol out, also?

A: It's possible. It's possible.

Q: Basically what Mr. Johnson did is he—you know, you have the authority as a police officer to command people to do certain things. You'd agree with me there, right?

A: Correct.

Q: And basically what he did that day is he yielded to your authority, didn't he? He followed what you told him to do?

A: Correct.

Appellant presented the testimony of David Davis, a retired Department of Public Safety officer who had spent a total of 32 years in law enforcement. He testified that he had visited the complex and taken photographs, the building numbers were easily seen, the majority of persons that he saw on his daytime visit were young black males, and he had stood at the door to apartment 309 and could not see Building 700 or the leasing office. He also stated that he had transcribed the 911 tape, as he had done with “many, many” such tapes during his service as a peace officer, and that the complainant on the tape had not reported a crime, only a suspicious person.

The state challenged Davis as to the ability to see building numbers at night. Davis pointed out, as had the responding officer, that police cars have large spotlights on them that would render the building numbers easily readable. The state also posed a hypothetical: If, as an active officer, he had received a report from an apartment complex of a suspicious person who was identified by height, ethnicity, and clothing, what would he have done if he had gone to the reported location and saw someone who matched the description? Davis answered, “I would go to the complainant, to the proximity of the complainant, get more information, look in that—that direct area for this described suspicious person.”

The state added more information: “If the person was on foot, what would you do?” Davis responded, “I would drive around the complex looking for someone that looked like him or walk round the complex, whatever it required.” The state continued, “So if you saw a person who was walking around the complex and that matched the description, you would continue around looking for other people? Is that what you're saying?” Davis answered, “I would go straight to the complainant for information. If I saw that person, yes, I would check them out.”

Defense counsel posed another hypothetical. [W]hen you...

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