State v. Sheppard

• Decision Date: 10 December 2008
• Docket Number: No. 794-07.,No. PD-793-07.,PD-793-07.,794-07.
• Citation: 271 S.W.3d 281
• Parties: The STATE of Texas v. Michael Harvey SHEPPARD, Appellee.
• Court: Texas Court of Criminal Appeals

271 S.W.3d 281

The STATE of Texas v. Michael Harvey SHEPPARD, Appellee.

No. PD-793-07.

No. 794-07.

Court of Criminal Appeals of Texas.

December 10, 2008.

Jeffrey L. Van Horn, State Prosecuting Attorney, Austin, TX, for Appellant.

William M. House, Jr., Palestine, TX, for Appellee.

OPINION

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

Appellee, Michael Harvey Sheppard, was charged with possession of methamphetamine and possession of chemicals with intent to manufacture methamphetamine. He filed a motion to suppress evidence that the trial court granted after an evidentiary hearing. The State appealed, arguing that the officer's conduct was reasonable under the Fourth Amendment. The specific question before us is whether a person is "arrested" for purposes of the Fourth Amendment if he is temporarily handcuffed and detained, but then released.¹ The answer is no — a person who has been handcuffed has been "seized" and detained under the Fourth Amendment, but he has not necessarily been "arrested." The trial judge was mistaken in his belief that a temporary investigative detention equals an arrest under federal or Texas search and seizure law. The court of appeals then mistakenly speculated about possible unexpressed fact findings or credibility assessments by the trial judge.² Because the trial judge did not include these possible credibility assessments or new facts in his express written findings, it was error for the court of appeals to create and consider them.³ We therefore reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings.

I.

At the hearing on appellee's motion to suppress, Anderson County Deputy Sheriff John Smith testified that he received a dispatch call about an assault at Lot No. 14 in Red Rock Ranch. He met the complainant, Arthur Schneider,⁴ at a nearby convenience store. Mr. Schneider explained that he and another friend, Elizabeth Miley, had been "sitting around" in appellee's trailer "doing some speed" when appellee threatened him with a knife. Deputy Smith then followed Mr. Schneider to appellee's trailer to investigate.

Deputy Smith knocked on the door and, when appellee opened it, the first thing the officer noticed was a "very strong chemical odor coming out of the trailer."⁵ On cross-examination, Deputy Smith testified that he had a reasonable suspicion that appellee was engaging in criminal activity at the time he opened his front door because of that strong chemical odor coming out of the house. Deputy Smith then frisked appellee and found a large folding knife in his front pocket. The officer handcuffed appellee and told him that "he was just being detained at the time until [Deputy Smith] could secure the scene." He testified that he handcuffed appellee for "officer safety" while he walked through the trailer to make sure that there was no one else inside. He explained that he was trying to account for Elizabeth Miley, the third person that Arthur Schneider had told him about: "To make sure they weren't laying in [there] dead, stabbed to death. There had already been a complaint of someone pulling a knife." As Deputy Smith walked through the trailer, he saw, in plain view, a small dining table that had a clear plastic bag on it, a purse with some needles in it, and an open orange box with a powdery substance in it.

After Deputy Smith was assured that no one else was inside, he walked back out and released appellee from the handcuffs. He called the drug task force to come because he didn't know if this was a meth lab, and he didn't know anything about meth labs. He asked appellee if he would sign a consent to search form. Appellee did so. They both waited outside until the drug task-force members arrived and began to search the trailer. They discovered that the strong chemical smell had come from a pitcher underneath the sink with crushed-up pills and some type of solvent or acetone in it. The officers also found methamphetamine and a variety of methamphetamine-manufacturing materials.

After hearing the evidence, the trial judge asked the prosecutor and defense counsel a number of questions concerning the legal principles involved, and ultimately he granted the motion to suppress, stating that "the bottom line for me . . . that I'm sitting up here trying to defin[e] is does this constitute a reasonable search?"⁶ The trial judge then entered written findings of fact and conclusions of law that were based upon legal principles and the application of those principles to the officer's testimony. They were not based on the officer's credibility or any disputed evidence.⁷

II.

The State appealed, and the Tyler Court of Appeals upheld the trial judge's ultimate ruling, although it disagreed with a number of his legal conclusions.⁸ The court of appeals first noted that there were sufficient "objective facts that could have supported a frisk and detention."⁹ Mr. Schneider had called the police and reported that appellee threatened him with a knife — a felony offense of aggravated assault with a deadly weapon.¹⁰ Mr. Schneider also reported that the assault occurred while he, appellee, and a woman, Elizabeth Miley, were sitting around "doing speed" — using methamphetamine — another felony offense. Deputy Smith and Mr. Schneider drove separately to appellee's house to investigate. When appellee opened the door, Deputy Smith smelled the strong odor of chemicals. This strong odor corroborated Mr. Schneider's description of the trio "doing speed." Deputy Smith then frisked appellee because Mr. Schneider had said that appellee had threatened him with a big knife. As the court of appeals stated,

If believed, these facts could support the conclusion that Appellee was armed and presented a danger as well as a reasonable suspicion that he was involved in criminal activity.¹¹

But, because the trial judge made the legal conclusion that "[t]he `pat down or frisk of defendant' was without justification and therefore illegal," the court of appeals reasoned that the trial judge must not have believed Deputy Smith.¹² That is not necessarily so. In fact there is nothing in the hearing record or the findings of fact that would indicate that the trial court did not believe Deputy Smith or his factual testimony.¹³ The written factual findings are entirely consistent with Deputy Smith's testimony.

When the trial court makes explicit findings of fact, as was done in this case, those are the facts to which we must give deference. And when a trial court makes an explicit credibility finding, we must give deference to that credibility determination. But we cannot conjure up new and different factual or credibility findings when the trial court has made his findings explicit. That is precisely the point of having trial judges make express factual findings: the appellate courts will not have to guess at what the trial court's factual findings and credibility assessments were. In this case, it is clear that the trial court simply did not believe that what Deputy Smith did was reasonable under the Fourth Amendment. The trial court was mistaken on the law.

Appellate courts review the legal determination of detention, reasonable suspicion, and probable cause under the Fourth Amendment de novo while granting great deference to a trial court's factual findings.¹⁴ The United States Supreme Court has long held that an officer has the right to briefly detain and investigate a person when the officer has a reasonable suspicion that the person is involved in criminal activity.¹⁵ That officer may also conduct a limited "pat down" of a person if the officer has a reasonable belief that the person is armed and dangerous.¹⁶

Here, Deputy Smith had two distinct bases for a Fourth Amendment "pat down": he was investigating a complaint of a recent assault with a large knife, and he was investigating Mr. Schneider's admission of "doing speed" at appellee's home.¹⁷ According to the trial judge's explicit factual finding, "Deputy Smith noticed a strong chemical odor coming from the residence." Officer Smith was not required to testify that he was "afraid" of appellee or explicate each fact that led him to frisk appellee for "officer safety."¹⁸ The trial court's factual findings include a statement that Deputy Smith "gave no valid reasons or basis for his concerns" before frisking appellee. He did not need to; the objective facts that the trial court found speak for themselves: a reasonable and prudent police officer investigating a recent assault involving a knife in a residence where the alleged attacker and victim were using methamphetamine would conduct a brief "pat down" or frisk to see if the person still had that weapon on him.¹⁹ As the court of appeals correctly noted, an "officer safety" frisk is based upon objective criteria, not upon the officer's subjective state of mind or his asserted rationale:

To support a protective frisk or detention, there must be facts that, when reviewed under an objective standard, would cause a reasonably cautious person to believe that the action taken was reasonable or that the person frisked was presently armed and dangerous.²⁰

Thus, the court of appeals correctly concluded that Deputy Smith's "failure to articulate a lawful basis for the frisk or detention does not mean that they were illegal."²¹ The court of appeals concluded that, viewed objectively, Deputy Smith's testimony supported appellee's frisk and detention.²² As we noted in O'Hara v. State,²³ regardless of whether a police officer states that he was afraid of the suspect, "the validity of the search must be analyzed by determining whether the facts available to [the officer] at the time of the search would warrant a reasonably cautious person to believe that the action taken was appropriate."²⁴

Because the objective facts supported the appropriateness of Deputy Smith's action, the trial...