Perez v. State

• Decision Date: 10 October 1991
• Docket Number: No. 01-90-00425-CR,01-90-00425-CR
• Citation: 818 S.W.2d 512
• Parties: Francisco Javier PEREZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 512

818 S.W.2d 512

Francisco Javier PEREZ, Appellant, v.The STATE of Texas, Appellee.

No. 01-90-00425-CR.

Court of Appeals of Texas Houston (1st Dist.).

Oct. 10, 1991.

Rehearing Denied Nov. 7, 1991.

Roy Beene, Houston, for appellant.

John B. Holmes, Jr., Harris Co. Dist. Atty., Lester Blizzard, Susan Brown, Asst. Harris Co. Dist. Attys., for appellee.

Before MIRABAL, DUGGAN and O'CONNOR, JJ.

OPINION

MIRABAL, Justice.

After the trial court overruled a motion to suppress evidence, appellant, Francisco Perez, entered a plea of guilty to the charge of possession of marihuana in a usuable quantity of more than five pounds and less than 50 pounds.The trial court found appellant guilty and assessed punishment, in accordance with a plea bargain agreement, at five years confinement, probated, and a $2000 fine.We affirm.

The issue before this Court is whether the trial court abused its discretion in denying appellant's motion to suppress based on what appellant contends was an illegal arrest that tainted his consent to search the automobile where marihuana was found.

On February 17, 1989, Houston Police Officer M.L. Gant was assigned to the Narcotics Division, Airport Detail.Gant testified he received a telephone call around 4:00 p.m. from a Drug Enforcement Agency agent named Sosa, who was stationed at the airport in Atlanta.Sosa informed Gant a male suspect came to the counter and purchased one-way tickets to Houston for himself and a female.The suspect paid for the tickets in cash and was acting very nervous; he acted like he didn't know what name to give the ticket agent when she was issuing the tickets.Sosa thought it was possible the male suspect might be involved in a narcotics transaction, and she gave Gant a full description of him.

Gant and a fellow officer, Bernias, observed the two suspects leaving the plane with two other males in Houston.The suspects appeared to be nervous and were glancing back over their shoulders as they walked down the concourse.When they reached the main lobby, they met appellant.The suspects and appellant shook hands, began talking, and walked toward the luggage area.After bypassing the luggage area, they proceeded toward the exit for private and passenger cars, which is at a different end of the terminal than the exit for taxis.

The officers, who were not in uniform, walked up and identified themselves as police officers to appellant and his companions.The female continued walking toward the exit, where Gant caught up with her and asked her to come back into the terminal.After she returned to the group, she stated that she was not flying with the others.The officer then asked for her ticket, and she pointed to one of the male suspects to indicate that he had the ticket.She acted scared.The police asked the group if they would mind talking with the officers.The suspects agreed to the questioning.

Bernias spoke with appellant, while Gant spoke with the others about two to four feet away.Bernias asked appellant whether he knew the other men in the group, and appellant said no.When Bernias asked why appellant had approached the other people and had shaken their hands, his answer was that he was a friendly type and was just talking to them.Appellant said he had come to the airport to pick up his girlfriend, and that he had arrived in a taxi.Bernias asked appellant if he would stick around while Bernias asked the other folks some questions.According to appellant's testimony, he stayed, but he believed he could have walked out if he had wanted to.

While Bernias was talking to appellant, Gant was talking to the other people.He told the group he had information from Atlanta, he asked if the suspects were transporting narcotics, and he asked if he could look through the female suspect's purse.The female became irate and dumped the contents of her purse out on the floor.The purse contained several small pieces of marihuana and a bag with $5,000 in cash.The female suspect was acting angry and was crying.

Bernias then assisted Gant in interviewing Mr. Lipsey, one of the other suspects. $25,000 in cash was found in Mr. Lipsey's jacket.

The officers then asked the suspects and appellant to move to a more private place, and they all walked to the customs area.Access to this area is by coded card, and the enclosure is not open to the public.Someone on the inside opened the door when the officers knocked.Once in the customs area, Gant asked one of the male suspects if he would mind if the police searched his bag.The police found another $5,000.

While in the customs area, appellant was questioned repeatedly by Officer Bernias about how he came to the airport.Appellant reiterated that he used a taxi.Officer Bernias then asked appellant if he had car keys.Appellant stated he had car keys, but that his car was at home.After the officer asked appellant again about the location of his car, appellant said his car was outside in the parking lot.Bernias then asked appellant if he would show the officer his car, and appellant agreed.The officer walked outside, following appellant, and requested permission to look in the car and search the trunk.Bernias said he advised appellant at least three times that he had the right to refuse to allow the search.After appellant consented, Bernias found a duffel bag in the trunk that contained marihuana.Bernias then handcuffed appellant and read him his Miranda ¹ warnings.

Appellant testified he did not consent to the search of his automobile, and he repeatedly asked to call a lawyer.The officers said appellant did not ask to call a lawyer.

In four points of error, appellant contends the trial court erred in denying his motion to suppress the fruits of his illegal arrest and questioning, including the search of his automobile, because: (1) the police conduct in stopping him constituted an illegal arrest; (2) his detention was for an unreasonable period of time without reasonable cause for suspicion that he had committed a crime; (3) the police conduct in taking him to the nonpublic customs clearance area constituted an illegal arrest; and (4) the search of his automobile and the seizure of the marihuana were not conducted pursuant to a valid consent by appellant, but were the result of coercion by police officers.²

The trial court is the sole judge of the credibility of the witnesses in a pretrial hearing and, absent a showing of an abuse of discretion, the trial court's findings will not be disturbed.Freeman v. State, 723 S.W.2d 727, 729(Tex.Crim.App.1986);Walker v. State, 588 S.W.2d 920, 924(Tex.Crim.App.[Panel Op.]1980).On appellate review, the evidence adduced at the suppression hearing is viewed in the light most favorable to the trial court's ruling.Daniels v. State, 718 S.W.2d 702, 704(Tex.Crim.App.1986);Walker, 588 S.W.2d at 924.

Applying the appropriate standard of review, we conclude the trial court could have reasonably concluded from the evidence:

1.The initial encounter between appellant and the police in the open lobby area by the exit door did not constitute a detention or a stop.

2.When the officers, appellant, and the other suspects moved to the customs area, appellant was "seized" or "detained" at that point, for investigatory purposes, but appellant was not under arrest.

3.The lawful investigatory detention was temporary and lasted no longer than necessary to effectuate the purpose of the stop, and therefore the detention did not constitute an arrest requiring probable cause.

4.Appellant voluntarily consented to the search of his car, and the consent was not tainted by any illegal detention.

Therefore, we find the trial court did not abuse its discretion in denying appellant's motion to suppress the evidence found as a result of the search of his car.

No stop or detention occurs, for fourth amendment purposes, if a police officer merely approaches a person in a public place and asks questions, as long as the person is free to walk away.Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229(1983);Holladay v. State, 805 S.W.2d 464, 471(Tex.Crim.App.1991);Daniels v. State, 718 S.W.2d 702, 704-706(Tex.Crim.App.1986).The fact that the officer identifies himself as a police officer during the questioning, without more, does not convert the encounter into a seizure requiring some level of objective justification, Royer, 460 U.S. at 497-98, 103 S.Ct. at 1323-24;United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497(1980)(opinion of Stewart, J.)(5-4 decision).

In the present case, when appellant and his three companions were near the private car exit of a crowded Intercontinental Airport, the police officers, in plain clothes, came up to them, identified themselves as police officers, and asked if they would mind talking.Appellant and the others said they didn't mind talking.Officer Bernias testified that, if appellant and his companions had said they didn't want to talk to the officers, the officers would have just let them go.Officer Gant testified appellant and his friends were told they could leave.Appellant testified and acknowledged that, even after the female suspect had dumped out her purse on the floor, appellant supposed he"still could have walked out the door."

It is relevant that one police officer spoke with appellant, while another police officer spoke with the described suspect and his companions, two to four feet away.The officer speaking to appellant did not mention the tip they had from Atlanta, did not say he was conducting an investigation, and did not ask to see appellant's identification.Rather, the officer asked appellant if he knew the other men in the group, and when appellant said "no," the officer asked why appellant had come to the airport, and asked how he had gotten there.That was the sum total of the officer's questions to appellant, other than to ask if appellant...