Michael Andre Duncan v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2008
• Docket: 14-07-00267-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 1, 2008

Affirmed and Memorandum Opinion filed May 1, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-07-00267-CR

MICHAEL ANDRE DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No.1035366

M E M O R A N D U M  O P I N I O N

Michael Andre Duncan  appeals a conviction for possession of a controlled substance with intent to distribute on grounds that the trial

 court erred in denying his motion to suppress evidence gathered in connection with an illegal detention.  We affirm.           

Background

On July 25, 2007, Houston police were conducting surveillance near the 1400 block of the Northwest Freeway between Cavender=s Boot City and the InTown Suites motel.  The surveillance was prompted by the high level of auto theft at that location.  As police observed from a van parked in the InTown Suites parking lot, a red car pulled into a parking spot across from the van.  The officers Aran@ the license plate and it came up Asuspicious,@ though not stolen.  The officers decided to approach the vehicle and to question the occupants.

Accounts of what transpired next are contested.  The trial court heard testimony that the police approached wearing jackets that clearly announced they were police officers.  They did not draw their weapons and did not block the red vehicle in with their own vehicles.  As they approached, they observed appellant and his girlfriend leaving room 133 of the motel and entering the parked red car.  Appellant got in the driver=s seat.  According to officers, the car was not running or in gear. 

As officers approached the parked red car, Officer Lohse saw appellant drop a Swisher Sweet cigar on the floor and attempt to hide it when appellant saw the officer approaching.  The officers then asked appellant to step out of the vehicle.  After retrieving the cigar, the officers confirmed that it contained marijuana and then detained appellant on suspicion of possession of marijuana.  The other occupants, one male and one female, were asked to step out of the car to be identified.  After a brief discussion, it was determined that the female was the registered occupant of room 133.  Officer Lohse obtained a written consent from her to search the motel room.

The search of room 133 uncovered crack cocaine and additional marijuana in a night stand.  When officers exited the motel room and displayed the narcotics, appellant immediately told the officers that the drugs belonged to him and not the female to whom the room was registered.   Appellant was then read his Miranda warnings, after which he made a voluntary written statement: A[T]his is my dope in rm 133 not Marilyn.  My dope was in the drawer (crack cocaine) nightstand.@  See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

A suppression hearing was held on March 23, 2007.  Appellant contested the admissibility of the drugs found during the motel room search as fruit of an illegal detention.  The trial court denied the motion to suppress.

Appellant then pleaded guilty and was sentenced to imprisonment for 17 years.  This appeal followed.

Standard of Review

A trial court=s denial of a motion to suppress will not be overturned absent an abuse of discretion.  Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  AAn appellate court reviewing a trial judge=s ruling on a motion to suppress >must view the evidence in the light most favorable to the trial court's ruling.=@ Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)).

Unlike an appellate court, a trial court is uniquely situated to observe a witness= demeanor and appearance.  Wiede, 214 S.W.3d at 24.  As a consequence, the trial judge is granted near complete deference in determining the credibility of the witnesses and the weight to be given their testimony.  Id. at 24B25.  AWhen reviewing a trial judge=s decision to deny a motion to suppress where probable cause to search was challenged, an appellate court must afford >almost total deference to a trial court=s express or implied determination of historical facts and review de novo the court=s application of the law of search and seizure to those facts.=@  Id. at 25 (quoting State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)).

The appellant bears the initial burden of rebutting the presumption that police conduct was proper in a search or seizure at the suppression hearing.  Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986).  The appellant has carried this burden when the search or seizure is made without a warrant.  Id.  When the state acts without a warrant, the burden then shifts back to the State to prove that the search or seizure was reasonable.  Id. at 9-10.  While the police may approach a person to make inquiries, when that person no longer feels free to leave, a seizure has taken place.  See Florida v. Bostick, 501 U.S. 429, 434 (1991) (while free to Aask a few questions,@ once a person no longer feels free Ato go about his business,@ a seizure has occurred); Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (the police are as free as any other person to ask questions of fellow citizens; whether a Aseizure@ has taken place is assessed by a totality of the circumstances test).

Analysis

Appellant contends he was detained without probable cause or reasonable suspicion,  with the result that all evidence gathered as a result of that detention is barred as fruit of the officers= illegal search.  Appellant contends that the officers lacked any evidence of a crime or wrongdoing when they blocked in his vehicle with their own as he was about to pull out.  This act, appellant contends, constituted an illegal detention rendering inadmissible all evidence uncovered in connection with the illegal detention.

According to appellant, after the officers boxed in the car appellant was occupying, the officers approached with guns drawn.  One of the officers observed appellant drop a Swisher Sweet cigar.  Upon recovery of the cigar, it was determined to contain marijuana; appellant and the other occupants were detained.  

The trial court also heard testimony from the officers who conducted the arrest and search.  The police indicated that they approached the vehicle to question the occupants, noting the suspicious hit that had come up on when they ran the vehicle=s license plate.  See  Hunter, 955 S.W.2d at 104 (police are allowed to ask questions, including solicitation of identification or a request for consent to search, provided that the police do not convey a message that compliance is mandated).  They testified that they were wearing civilian clothing, but each had a jacket clearly indicating that they were police officers.  While Officer Lohse could not recall if he had pulled his gun while approaching, Officer Spriggs testified he had not.

Two police vehicles were involved in the surveillance.  Officer Spriggs testified that he believed the police vehicle operated by Officer Lohse might have parked behind appellant, but Officer Lohse testified that he approached the vehicle on foot, and that he was unaware of any police vehicle blocking the path of the vehicle appellant was occupying.  Officer Spriggs testified that he and his partner walked from their parked van, the second police vehicle, across the parking lane to the vehicle occupied by appellant; Officer Spriggs further testified that his vehicle did not block the vehicle appellant occupied.  Each officer testified that the appellant=s vehicle was not running or in gear at the time they approached.

Upon approaching, Officer Lohse testified that he saw appellant drop a Swisher Sweet cigar on the floor and attempt to hide it.  At that time, he had a reasonable suspicion that a crime was in progress, and upon further inspection, his suspicion was confirmed.  The Swisher Sweet cigar contained marijuana.  A common method of smoking marijuana in public is to remove the tobacco from a Swisher Sweet cigar and replace it with marijuana.

The testimony of the police is consistent with their right to approach a fellow citizen to ask questions.  According to the testimony provided at the suppression hearing, the trial court was well within its discretion to believe the account provided by the officers, and to discount or disregard the testimony of appellant and the other occupants.  There is adequate evidence in the record upon which the trial court could rely to believe that the vehicle occupied by appellant was not Aboxed in,@ and that appellant was free to leave until detained for possession of marijuana based upon the evidence of what Officer Lohse saw when approaching the vehicle.  See Citizen v. State, 39 S.W.3d 367, 370 (Tex. App.CHouston [1st Dist.] 2001, no pet.) (ABeginning with the officer=s initial intrusion, we evaluate the reasonableness of each incremental level of intrusion, based on the information possessed by the officer at that time.@).  It is well within the trial court=s discretion to believe the events that led to this consensual encounter becoming an investigative detention.  See Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996) (A[T]here is a continuum of human interaction, and what may begin as a consensual encounter can readily become an investigative detention, which may evolve into an arrest.@).

Because the trial court was within its discretion to believe that no detention occurred prior to Officer Lohse seeing appellant attempting to hide marijuana, the evidence gathered pursuant to the voluntary consent to search the motel room is not inadmissible.

Accordingly, the judgment of the trial court is affirmed.

/s/        William J. Boyce

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2008.

Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).