PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, HOLCOMB, and COCHRAN, JJ., joined.
In this case, there was substantial disagreement among the Justices of the Seventh Court of Appeals with regard to whether the interaction that took place between the appellant and a police officer was an encounter or a detention for Fourth Amendment purposes.
The appellant was indicted for unlawful possession of a firearm by a felon. The weapon was found on his person when two officers patted him down, suspecting possession of marihuana. The appellant filed a pre-trial motion to suppress the evidence and, at the conclusion of the suppression hearing, the judge overruled the appellant's motion. Following a plea of guilty, the appellant was convicted of unlawful possession of a firearm by a felon.
In the Trial Court
The evidence presented at the suppression hearing showed the following. On July 23, 2006, at approximately 12:30 a.m., Officer Dewayne Griffin of the Amarillo Police Department, while on his way to respond to a theft call, observed the appellant walking in a residential area. Because the appellant "grabb[ed] at his waist" as Griffin drove by him in his marked patrol car, Griffin decided he would return after responding to the theft call to ask the appellant some questions. While at the theft-call scene, Griffin told back-up officer Cody Moore that he wanted to return to where he had observed a suspicious man—the appellant—walking.
After responding to the theft call, Griffin drove back to where he had seen the appellant approximately ten minutes earlier and found him walking across a yard. Griffin called out to the appellant through his rolled-down window "and asked him to come over and talk to me," and shined his patrol car's spotlight on the appellant. On cross-examination, Griffin reiterated that he had "asked" the appellant, even though he had indicated in his report that he "told him to come." Asked, "How did you ask him?", Griffin demonstrated: "Come over here and talk to me." Griffin readily acknowledged that "[t]hat sounds like an order[.]" Griffin testified that, had the appellant refused to talk to him, he would have let the appellant go, as he had not
However, as soon as Griffin began to talk to the appellant at approximately an arm-and-a-half's length away, Griffin smelled what he thought was the odor of recently smoked marihuana coming from the appellant's clothes and breath. At the hearing, Griffin maintained that he detained the appellant when he began to suspect that the appellant, who showed signs of nervousness, was in possession of marihuana. As Griffin and the appellant walked toward the patrol car, without placing the appellant under arrest, Griffin held the appellant's hands behind his back. It was then that back-up officer Moore arrived in another patrol car.
Both officers patted the appellant down. Noticing a bulge under the appellant's shirt, Moore pushed on it and realized it was a pistol. Moore told Griffin that it was a gun and disarmed the appellant. The officers arrested the appellant, and a search incident to arrest revealed no additional contraband. Griffin transported the appellant to the county jail. Griffin testified that, at no time during their interaction did the appellant resist or threaten the officers in any manner that might have required them to threaten him with or make use of a taser or mace. Further, Griffin testified, he never had to tell the appellant to stop or not to run.
Ms. JoAnn Marez was an acquaintance of the appellant, and it was her yard in which Griffin found the appellant. Marez, who had been expecting the appellant that evening, testified that she saw flashing lights through her living room window and walked to the front of the house to see what was happening outside. She briefly moved the sheer curtain and observed the appellant and an officer in her front yard. Marez maintained (contrary to Griffin's testimony) that, while listening to what was happening outside her house, she heard "stop and don't you run" and then "something about, a thousand volts or something." She then decided to sit on the couch by the door and listen, rather than continue to watch. Marez added that it was clear to her that the appellant "knew he had to stop right then. He knew don't go nowhere[,]" and that what she heard was "definitely an order ... a command."
At the conclusion of the evidence, the trial court found that Griffin had made no display of authority until after he smelled marihuana on the appellant, and therefore, the initial interaction was a mere encounter that did not implicate the Fourth Amendment. The use of the spotlight during the initial interaction, the court held, was "a matter of practical necessity due to the time of night."
The appellant appealed that decision to the Seventh Court of Appeals; a majority of that court affirmed, holding that Griffin's conduct would not have communicated to a reasonable person that the appellant was not free to decline Griffin's request and terminate the encounter.
We granted the appellant's petition for discretionary review to decide whether Officer Griffin detained the appellant. We hold that the meeting amounted to a detention and reverse the judgment of the court of appeals.
LAW AND ANALYSIS
Standard of Review on Motion to Suppress
A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of discretion.
When the trial court does not make express findings of fact, an appellate court must view the evidence in the light most favorable to the trial court's ruling, assuming that it made any implicit findings of fact that are supported by the record.
Detention or Encounter?
There are three distinct categories of interactions between police officers and citizens: (1) encounters, (2) investigative detentions, and (3) arrests.
On the other hand, an investigative detention occurs when a person yields to the police officer's show of authority under a reasonable belief that he is not free to leave.
The State contends that the facts of this case are analogous to those in Stewart v. State,
The State asserts that a reasonable person in the appellant's position would have felt free to leave because Griffin's actions did not amount to anything other than mere questioning, the interaction was only an encounter, not requiring reasonable suspicion of criminal activity. The State insists that merely shining the "patrol car spotlight on [the] appellant did not amount to a police show of authority transforming contact into a detention." Looking at the totality of the circumstances, we disagree.
The appellant argues that the facts of this case are akin to those in Hudson v. State.
Griffin testified that, when he returned to the area where he had first seen the appellant and found him walking across someone's yard, he activated his headlights and, through his rolled-down window, called out to the appellant, "Come over here and talk to me." The appellant took a few more steps, stopped, and turned. It was then that Griffin exited his patrol car and approached the appellant to talk to him. As Griffin approached the appellant, the appellant asked if he was doing something wrong, and Griffin replied that he just wanted to talk to him.
As stated in Justice Quinn's dissent, "[m]issing from the phrase `come over here and talk to me' are words of contingency or option. That is, they are not a mere solicitation of cooperation. Nor do they extend any choice, explicit or implicit. Rather they are mandatory[.]"
Justice Quinn further explained that he could see no difference between the facts of this case and an officer's act of turning on his emergency lights when trying to get a driver to pull his car over. "Both serve to announce the officer's presence
We agree with Justice Quinn and conclude that Griffin's act of shining his patrol car's overhead lights in the appellant's direction, coupled with his request-that-sounded-like-an-order, to "come over here and talk to me," caused the appellant to yield to Griffin's show of authority—a reasonable person in the appellant's shoes would not have felt free to leave or decline the officer's requests.
The Fourth Amendment to the United States Constitution protect citizens from unreasonable searches and seizures at the hands of government officials.
Griffin testified that he became suspicious of the appellant because the appellant was walking late at night in a residential area in which burglaries occurred mostly after midnight and, when the appellant saw the squad car driving past him, the appellant "grabb[ed] at his waist." This combination of circumstances motivated Griffin to return to the area after he responded to a theft call. At the time Griffin returned to talk to the appellant, he had neither any intention nor reason to arrest the appellant. No evidence was produced demonstrating that Griffin believed the appellant was engaged in criminal activity at the time he pointed the patrol car's overhead lights in the appellant's direction and demanded that he "come over here and talk to me."
During cross-examination, Griffin agreed that there were "[a] hundred different things [the appellant] could have been doing ..." at the time he reached for his waistband and that the fact that the appellant had reached for his waistband did not necessarily mean that criminal activity was afoot. Further, testified Griffin during cross, there were no burglaries reported for that residential area on the evening of the appellant's arrest. Griffin also stated that, at the time he began walking toward the appellant he did not know whether the appellant was a resident of the house to which the yard belonged.
Neither time of day nor level of criminal activity in an area are suspicious in and of themselves; the two are merely factors to be considered in making a determination of reasonable suspicion.
Under the totality of the circumstances, we hold that the circumstances apparent to Griffin at the time he shined his light on the appellant and ordered the appellant to come over to the officer and talk to him,—did not provide him with reasonable suspicion to stop the appellant. The appellant was thus illegally detained in violation of his constitutional rights and the subsequent search that led Officer Moore to find a weapon on the appellant's person was the fruit of an unreasonable seizure. Therefore, the evidence obtained as a result of that search should have been suppressed.
Viewing the totality of the circumstances in the light most favorable to the trial court's ruling, we hold that the trial court erred in concluding that a reasonable person in the appellant's position would have felt free to leave or terminate the interaction with Griffin. We hold that Officer
COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.
KELLER, P.J., filed a dissenting opinion in which KEASLER and HERVEY, JJ., joined.
KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.
COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.
Officer Griffin testified that the exact words he used in calling to appellant were, "Come over here and talk to me." That is a command. It is an imperative sentence.
In this case, Officer Griffin testified that he intended to "ask" appellant to come over and talk to him, but what the officer intended is not relevant. What he said is what matters. Courts must view the words from the perspective of their effect upon the reasonable listener, not from the perspective of the officer's intent.
With these comments, I join the majority opinion.
KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.
In concluding that a reasonable person would not have felt free to decline Officer Griffin's request to "Come here and talk to me," the Court overlooks the obvious: appellant did decline the request. He evidently did not think it was a command that had to be obeyed, because he did not obey it. Appellant looked back at Officer Griffin, took a few more steps, and then stopped, but he did not obey what the Court refers to as a "request," and the concurring opinion calls a "command."
Furthermore, the Court says that Officer Griffin's statement to appellant was a "request" that sounded like an order. I am at a loss to understand why this Court thinks that it knows better than the trial court what the request sounded like. The concurring opinion analogizes Officer Griffin's statement to a mother using a "sugary tone of voice" while nevertheless letting her child know that there will be consequences for disobedience. But we don't know what Officer Griffin's tone of voice was. We defer to the trial court because, unlike us, that court actually heard the officer's tone of voice as he repeated his statement at trial.
And it is not just the tone of voice about which we owe deference to the trial court. The trial court was entitled to put the specific words said (in whatever tone) in context with the rest of the officer's testimony. Here is what Officer Griffin actually said when he saw appellant walking across someone's yard after midnight:
"I ... I spotlighted him, saw him—get a good look at him, and I asked him to come over and talk to me."
"Well, I called him from my patrol— while I was sitting in the patrol car and asked him to come over and talk to me."
"I—I believe I told him, hey, come over here and talk to me."
"We were just going to talk to him, see what he was doing and where he was headed, where he was coming from."
On cross-examination, when asked directly whether he "told him to get over here" or "asked" him, Officer Griffin said, "Well, I asked him." He testified that he asked him by saying, "Come over here and talk to me." I believe the Court errs in confining its analysis to the most restrictive view of the words used rather than considering the entirety of the testimony. "Hey, come over here and talk to me" may or may not sound like a command. It was up to the trial court to decide whether those words, said in the tone of voice the court listened to, and in the context of all the evidence, were a command or a request.
Moreover, the fact that appellant did not comply with the officer's request is relevant to the legal issue before us. In Estrada v. State, Estrada argued that his own subjective belief that he was free to leave was irrelevant because the legal test for custody is an objective one. We disagreed, saying that it is relevant to the legal test for custody that a defendant "subjectively believes that he is free to leave while the police are questioning him."
Also, even if the police officer's request were construed to be a command to "come over," no seizure would have occurred until appellant complied.
I am not entirely sure that the specific issue before us was preserved. The motion to suppress referred to various constitutional provisions without any attempt to apply them specifically to the facts. At the hearing, the argument was not about whether there was an encounter or a detention, but about whether Officer Griffin had a right to detain appellant when the officer first saw him. Defense counsel cited cases that hold, essentially, that facts such as it being late at night and in a high-crime area are not sufficient to justify detaining an individual. The State pointed out that, unlike in those types of cases, once Officer Griffin approached appellant and smelled marijuana, he did have a right to detain him. In other words, the arguments to the trial court concerned only whether the actual undisputed detention (after marijuana was smelled) was justified; they did not concern the nature of the initial meeting.
In closing, the assistant district attorney argued that the officer had a right to approach the individual in a public place to ascertain information to protect the public. He said, "[T]o hold otherwise—I mean, my God, that—what do we have them in the streets for?" I have to agree.
I respectfully dissent.
The interaction under scrutiny in this case is properly classified as a consensual encounter, requiring no reasonable suspicion or probable cause. Words carry various shades of meaning when the tone and inflection of the speaker is considered. Examining only a cold record, the majority wrongfully discounts the credibility findings made by the trial judge, who witnessed testimony provided by Officer Dewayne Griffin firsthand.
Officer Griffin testified that he observed Crain walking alone across a yard in a residential neighborhood half past midnight. In his marked patrol car, Officer Griffin pulled up and shined a spotlight on Crain to get at look at Crain and the surrounding area. Officer Griffin then "told" or "asked" Crain to "come over here and talk to me." On cross-examination, Officer Griffin stated that his statement may have sounded like an "order." Crain turned toward Officer Griffin, took a few more steps, and stopped. Officer Griffin got out of his patrol car and approached Crain. Crain asked Officer Griffin what he was doing wrong, and Officer Griffin said that he just wanted to talk to him. During this exchange, Officer Griffin smelled a strong odor of marijuana emanating from Crain's mouth and clothing.
The trial judge found Officer Griffin's testimony to be credible and denied Crain's motion to suppress.
As the majority observes, and then improperly disregards, appellate courts are required to defer to a trial judge's resolution of mixed fact and law issues when that determination is based on an evaluation of credibility and demeanor.
I would affirm the court of appeals's judgment.
For her part, Presiding Judge Keller argues that the appellant did not submit to a show of authority for Fourth Amendment purposes because he did not do precisely as Griffin requested/ordered him to do. She cites California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). But Hodari D. does not support the proposition that, before it can be said that a suspect has been detained for Fourth Amendment purposes, he must submit to authority in precisely the way he is ordered to. In Hodari D., though he was ordered to halt, the defendant did not stop, and the question was whether a seizure occurred "even though the subject does not yield." Id. Here, by contrast, it is clear enough that the appellant would not have stopped and turned around but for Griffin's request/order to "Come over here and talk to me." We think this constitutes sufficient yielding to authority to implicate the Fourth Amendment.
Id. at 851.
887 N.E.2d at 1067.