IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0582-21
TAIRON JOSE MONJARAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
WALKER, J., delivered the opinion of the Court, in which RICHARDSON, YEARY, NEWELL, and MCCLURE, JJ., joined. KELLER, P.J., and HERVEY, KEEL, and SLAUGHTER, JJ., dissented.
OPINION After the trial court denied his motion to suppress, Appellant Tairon Jose Monjaras pled
guilty to unlawful possession of a firearm by a felon. He was sentenced to five years
imprisonment. On appeal, Appellant argued that the trial court erred in denying his motion to
suppress because his interaction with law enforcement was an investigative detention without
reasonable suspicion rather than a consensual encounter. A majority of the court of appeals
disagreed and found that the interaction was a consensual encounter. We hold that Appellant’s
interaction with law enforcement, which started as a consensual encounter, escalated into an investigative detention. We reverse the judgment of the court of appeals and remand the case to
that court to determine whether the investigative detention was supported by reasonable
suspicion.
I. Background
In December 2018, Officer J. Sallee and Officer C. Starks were patrolling an area of
southwest Houston purportedly associated with gang violence and narcotics trafficking. Around
noon, Officers observed Appellant walking around an apartment complex with a backpack on.
The officers thought it was “not normal” that Appellant looked down as the officers drove by and
looked up when they passed. The officers also believed Appellant—wearing a beanie, light
jacket, and pants—was overdressed for the weather. 1
Officer Sallee wanted “to see where [Appellant] was going or what was going on.” The
officers turned the car around but did not see Appellant. The officers assumed Appellant ran
away; however, they saw Appellant again on the other side of the complex. The officers pulled in
front of Appellant but did not turn their police lights or siren on. Officer Starks can be heard on
his body-worn camera recording announcing that the officers are heading into a “consensual
encounter.” He got out of the vehicle and introduced himself to Appellant. Meanwhile, Officer
Starks exited the passenger side of the vehicle, walked around to the rear of the cruiser, and
stood a few feet away. Both officers were in uniform with their service pistols visible but
holstered. The police car was parked in front of Appellant while the officers stood on either side
of him. There was an apartment building behind Appellant.
After introducing himself, Officer Sallee asked Appellant for basic information including
1 Officer Sallee testified that the temperature was in the mid-sixties or seventies. Appellant’s counsel stated in his closing argument during the motion hearing that the temperature from 6:00 AM to 12:00 PM ranged from fifty- seven to sixty-eight degrees.
2 his name, where he lived, and if he had identification. Officer Sallee stood close to Appellant,
but his demeanor was relatively friendly. Appellant appeared to understand the questions and
replied in broken English. Appellant told Officer Sallee that he lived in an apartment across the
street and had left his identification at home, but he offered to write his name down. Officer
Starks walked to the passenger side of the vehicle to retrieve a fingerprinting device.
While Appellant was writing his name, Officer Sallee asked Appellant if he had ever
been arrested. Appellant responded that he had previously been arrested for “assault, ah,
domestic violence.” Officer Sallee then asked Appellant “You nervous? You look like you’re
nervous. You’re shaking.” Appellant seemingly confirmed that he was nervous. Meanwhile,
Officer Starks returned and stood approximately two feet from Appellant. 2 This placed
Appellant within arm’s length of each officer.
Officer Sallee asked if Appellant had anything illegal on him, including weapons.
Appellant shook his head “no,” and Officer Sallee asked if he could search Appellant. Appellant
did not respond but began emptying his pockets. Apparently trying to stop Appellant, Officer
Sallee quickly responded, “Hold on, hold on, hold on. May I search you?” While asking this,
Officer Sallee placed his hand on Appellant’s arm. Appellant reached into his pocket again while
Officer Sallee put his hand around Appellant’s elbow and said, “It’s a question. Hold on. Talk to
me.” Appellant continued to remove items from his pocket and said, “But I-I-I know. You said—
you said you wanted to search me.” With his hand on Appellant’s back, Officer Sallee
responded, “No, no, no, you’re not understanding what I’m saying.”
Meanwhile, Officer Starks took two steps toward Appellant, extended both hands
2 While Officer Sallee was questioning Appellant, Officer Starks was briefly talking to an individual about an unrelated incident.
3 outwards with his palms facedown and instructed Appellant “manos, manos.” 3 Officer Sallee
then, more insistently, repeated, “May I search you? May I go into your pockets and search
you?” Neither officer informed Appellant that he did not have to consent. After pausing,
Appellant responded, “Yeah.” Officer Sallee then instructed, “Okay, slide your hands on the car
for me, please.”
Appellant complied. Officer Sallee proceeded to search Appellant’s person but did not
find anything. He searched Appellant’s bag and found bullets. After discovering the bullets,
Officer Sallee searched Appellant again and found a pistol under Appellant’s groin. A struggle
ensued between Officer Sallee and Appellant. Officer Starks, believing that Appellant was going
for his gun, subdued Appellant with a taser.
Appellant was arrested and charged with unlawful possession of a firearm by a felon. See
TEX. PENAL CODE Ann. § 46.04(a). Appellant filed a motion to suppress the evidence seized by
law enforcement in connection with his detention and arrest. 4 At the motion to suppress hearing,
both officers maintained that Appellant was free to leave prior to the search and that they would
not have chased him. The trial court denied Appellant’s motion without making written findings
of fact. Appellant subsequently pled guilty; however, he maintained his right to appeal the trial
court’s denial of his motion to suppress.
On appeal, Appellant claimed that the trial court erred in denying the motion to suppress
because the encounter was an investigative detention without reasonable suspicion—rather than
a consensual encounter. See Monjaras, 631 S.W.3d at 803. A divided First Court of Appeals
3 “Mano” is the Spanish word for hand. Mano, LEXICO, https://www.lexico.com/es-en/traducir/mano (last visited Aug. 2, 2022). 4 Appellant additionally moved to suppress: the arrest and evidence relating to the arrest; Appellant’s statements in connection with the case and any testimony regarding such statements; communications intercepted in connection with the case and evidence derived from the communications; and any other matters the trial court believed should be suppressed.
4 found the encounter to be consensual and upheld the trial court’s ruling. Id. at 810. Because the
appellate court found that the encounter was consensual, the majority did not reach the issue of
whether reasonable suspicion existed. Id. at 810 n.4. Justice Goodman dissented, arguing that
while the initial encounter between Appellant and law enforcement was consensual, the
encounter escalated into an investigative detention before Officer Sallee’s search of Appellant
because “[w]hen Monjaras hesitated to consent, the officers detained him by compelling his
compliance through a show of their official authority, which included instructing Monjaras as to
how he was to behave, flanking him, intruding into his personal space, and touching his person.”
Id. at 826 (Goodman, J., dissenting). We granted Appellant’s petition for discretionary review to
determine whether the court of appeals erred in finding that Appellant’s interaction with the
officers was a consensual encounter. 5
II. Law
A. Standard of Review
This Court applies a bifurcated standard of review when evaluating a trial court’s ruling
on a motion to suppress. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We
afford almost total deference to a trial court’s determination of historical facts if supported by the
record, especially when the factfinding is based on an evaluation of credibility and demeanor.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Wade v. State, 422 S.W.3d 661,
666 (Tex. Crim. App. 2013). However, we conduct a de novo review when reviewing a trial
court’s application of law to facts that do not depend on credibility and demeanor. Guzman, 955
5 Specifically, Appellant stated his ground for review as follows: The Court of Appeals erred when it determined that the interaction between the Appellant and Officers Sallee and Starks was at all times a consensual encounter. Although the encounter may have initially been consensual, the encounter quickly escalated into an investigative detention that was not supported by reasonable suspicion when the Appellant yielded to the officers’ show of authority before the first search.
5 S.W.2d at 89. “We view the record in the light most favorable to the trial court’s ruling and
uphold the ruling if it is supported by the record and is correct under any theory of the law
applicable to the case.” Ruiz v. State, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). However, if
evidence is conclusive, such as indisputable video evidence, we may disregard any trial court
findings inconsistent with the conclusive evidence. Miller v. State, 393 S.W.3d 255, 263 (Tex.
Crim. App. 2012).
We review de novo a trial court’s application of the law of search and seizure to the facts.
Wade, 422 S.W.3d at 667; Valtierra, 310 S.W.3d at 447. Specifically, we review de novo
whether a police-citizen interaction amounts to a consensual encounter or an investigative
detention “because that is an issue of law-the application of legal principles to a specific set of
facts.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Johnson v. State,
414 S.W.3d 184, 192 (Tex. Crim. App. 2013). “We review de novo the question of whether a
consensual encounter has advanced into a detention.” Furr v. State, 499 S.W.3d 872, 877 (Tex.
Crim. App. 2016)
B. Consensual Encounter Versus Investigative Detention
The Fourth Amendment guarantees citizens the right to be free from “unreasonable
searches and seizures[.]” U.S. CONST. amend. IV. The law has recognized three types of police-
citizen interactions related to searches and seizures: (1) consensual encounters that do not
implicate the Fourth Amendment; (2) investigative detentions that must be supported by a
reasonable suspicion of criminal activity; and (3) arrests that are reasonable only if supported by
probable cause. Furr, 499 S.W.3d at 877; Wade, 422 S.W.3d at 667.
An encounter is consensual only if the citizen is free to leave and terminate the
interaction at any time. Johnson, 414 S.W.3d at 193; Crain v. State, 315 S.W.3d 43, 49 (Tex.
6 Crim. App. 2010). An encounter is a detention if an officer, through a showing of force or
authority, restrains a citizen to the point that an objectively reasonable person would not feel free
to decline the officer’s requests or terminate the encounter. Wade, 422 S.W.3d at 667–68; Crain,
315 S.W.3d at 49. “There is no bright line rule dictating when a consensual encounter becomes a
detention.” Furr, 499 S.W.3d at 877. Rather, reviewing courts must “examine the totality of the
circumstances to determine whether a reasonable person would have felt free to ignore the
officer’s request or to terminate the consensual encounter.” Id. at 877; State v. Castleberry, 332
S.W.3d 460, 467 (Tex. Crim. App. 2011). The test to determine whether a citizen has been
detained is objective; the subjective intent or belief of the detainee or law enforcement is
irrelevant. Furr, 499 S.W.3d at 878.
A consensual encounter will not escalate into an investigative detention solely because an
officer asks a citizen for identification and permission to search. Hunter v. State, 955 S.W.2d
102, 104 (Tex. Crim. App. 1997). Nor will a consensual encounter become an investigative
detention merely because an officer fails to inform the citizen that he does not have to comply
with the requests. Castleberry, 332 S.W.3d at 466. However, an investigative detention does
occur if the officer conveys to the citizen that compliance with the requests is required. See
Florida v. Bostick, 501 U.S. 429, 434–35 (1991); Castleberry, 332 S.W.3d at 467.
In determining whether an interaction is a consensual encounter or an investigative
detention, the “time, place, and surrounding circumstances must be taken into account, but the
officer’s conduct is the most important factor[.]” Castleberry, 332 S.W.3d at 467. This Court has
also used the factors in United States v. Mendenhall 6 when assessing “what a reasonable person
might have perceived during a given interaction with an officer[.]” Crain, 315 S.W.3d at 49; see
6 446 U.S. 544, 554 (1980) (Stewart, J.).
7 also Garcia-Cantu, 253 S.W.3d at 248 n.45; Salcido v. State, 758 S.W.2d 261, 264 n.3 (Tex.
Crim. App. 1988). Under Mendenhall,
[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Mendenhall, 446 U.S. at 554; Crain, 315 S.W.3d at 49–50 (quoting Mendenhall).
III. Analysis
Our issue is whether the court of appeals erred in affirming the trial court’s ruling and
finding that Appellant’s interaction with Officers Sallee and Starks was a consensual encounter. 7
For the reasons below, we find that the court of appeals was incorrect. Appellant’s interaction
with Officers Sallee and Starks escalated into an investigative detention.
A. Appellant’s Initial Interaction with the Officers Was a Consensual Encounter
We agree with Justice Goodman that the initial encounter between Appellant and Officers
Sallee and Starks was consensual. See Monjaras, 631 S.W.3d at 818 (Goodman, J., dissenting).
Judging the interaction by the totality of the circumstances and in the shoes of an objectively
reasonable person, we cannot say that Appellant initially would have felt compelled to continue
talking to the officers. See Castleberry, 332 S.W.3d at 467. While it appears the officers
followed Appellant around the apartment complex to observe him, this was not impermissible.
7 The State claims Appellant has not preserved the argument he is presenting to this Court. The State is incorrect. Appellant filed a motion to suppress alleging that Officer Sallee and Officer Starks violated his constitutional and statutory rights by subjecting him to an investigative detention without reasonable suspicion. Before the court of appeals, Appellant again argued that Officer Sallee and Officer Starks detained him. Today, Appellant again asserts this argument. Thus, error is preserved, and the case is properly before us. See Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013) (“An adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice to preserve error on appeal[.]”); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“As regards specificity,” for preservation purposes, “all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”).
8 See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the
public . . . is not a subject of Fourth Amendment protection.”). Additionally, the officers’
subjective intent at the time of the interaction is not part of our detention analysis; it is irrelevant
why the officers were following Appellant. See Furr, 499 S.W.3d at 878.
Further, in applying the Castleberry and Mendenhall factors, we note that the officers
approached Appellant around midday in a public location using a tone that was not overtly
hostile. See Castleberry, 332 S.W.3d at 467; Mendenhall, 446 U.S. at 554. Appellant was
outnumbered as he was alone, and two officers were present, but Officer Starks limited his
proximity to Appellant when the officers initially made contact—at one point walking away
entirely. See Mendenhall, 446 U.S. at 554. Besides a brief handshake, the officers did not
initially touch Appellant or speak to him in a manner indicating that compliance was required.
See Castleberry, 332 S.W.3d at 467 (looking at officers’ conduct); Mendenhall, 446 U.S. at 554
(looking at officers’ language to see if compliance with request might be compelled). Officer
Sallee asked Appellant to provide identifying information, and Appellant complied without
hesitation. See Castleberry, 332 S.W.3d at 466 (“[T]he fact that the citizen complied with the
[officer’s] request does not negate the consensual nature of the encounter.”).
Looking at the totality of the circumstances, we see officers who approached a citizen in
a public place and questioned him for a short period of time regarding basic information. This
interaction would arguably make an objectively reasonable person uncomfortable; however, this
alone is not enough under our law to evidence more than a consensual encounter. See
Castleberry, 332 S.W.3d at 463–64, 468 (finding initial encounter between law enforcement and
citizen to be consensual when the officer approached the citizen at 3:00 AM behind a restaurant
and asked the citizen for his identification and why he was in that location); State v. Woodard,
9 341 S.W.3d 404, 407–08, 412 (Tex. Crim. App. 2011) (finding initial encounter between citizen
and law enforcement officer to be consensual when the officer approached the lone citizen on a
sidewalk around 10:00 PM and immediately began questioning him).
“[T]he Constitution does not guarantee freedom from discomfort.” State v. Velasquez,
994 S.W.2d 676, 679 (Tex. Crim. App. 1999). Appellant’s initial encounter with Officer Sallee
and Officer Starks was consensual. However, this is not dispositive. In conducting the required
totality-of-the-circumstances analysis, we must analyze the rest of the interaction in the context
of this initial approach to determine whether the consensual encounter escalated into an
investigative detention.
B. The Initial Consensual Encounter Escalated Into an Investigative Detention
If a citizen’s initial encounter with law enforcement is consensual, but an officer’s
official display of authority or show of force indicates that ignoring the officer’s request or
terminating the encounter is no longer an option, the consensual encounter has escalated into a
seizure (or investigative detention) implicating the Fourth Amendment. See Castleberry, 332
S.W.3d at 467; Garcia-Cantu, 253 S.W.3d at 243. In finding that Appellant’s interaction with
law enforcement was a consensual encounter that did not escalate into an investigative detention,
the court of appeals noted that Officers Sallee and Starks approached Appellant in the middle of
the day, did not turn on their overhead lights or siren, “did not block appellant’s path with their
patrol car”; did not exhibit their weapons prior to finding Appellant’s firearm; and did not
indicate “to appellant that he was not free to leave” or that he was required to comply. Monjaras,
631 S.W.3d at 805–07. The appellate court also stated that Appellant willingly listened to and
voluntarily answered the officers’ questions. Id. at 805–06. Regarding the search, the court of
appeals noted that “[t]o clarify that Sallee only wanted to know if he could search appellant,
10 Sallee and Officer Starks asked appellant to stop taking items out of his pockets” and that the
“officers were trying to help appellant understand what Sallee meant when he asked appellant for
his consent to search him.” Id. at 808–09. The appellate court also correctly notes that Officer
Starks did not touch Appellant. See id. at 808.
While the court of appeals is correct on some of these points, its argument that the
encounter did not escalate to a detention fails because the majority’s analysis undertook “a
piecemeal or ‘divide and conquer’ approach” instead of viewing the totality of the
circumstances—as a reviewing court is required to do. See Garcia-Cantu, 253 S.W.3d at 244
(“Just as with the determination of probable cause, a piecemeal or ‘divide and conquer’ approach
is prohibited” when determining whether a police-citizen interaction constitutes a seizure.); see
also Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (The test to determine whether a person
has been seized for Fourth Amendment purposes “is necessarily imprecise, because it is designed
to assess the coercive effect of police conduct, taken as a whole, rather than to focus on
particular details of that conduct in isolation.”). The appellate court’s analysis relies on snippets
of Appellant’s interaction with the officers—primarily focusing on the officer’s initial contact
with Appellant—rather than looking at the interaction in its entirety. Further, the court of appeals
erred in placing import on the subjective intent of the officers instead of viewing the
circumstances from the perspective of an objectively reasonable person in Appellant’s
circumstances. See Furr, 499 S.W.3d at 878.
Viewing the totality of the circumstances, when Officer Starks moved closer to Appellant
with his hands extended and said “manos, manos” while Officer Sallee had his hand on
Appellant’s body, a reasonable person in Appellant’s shoes would no longer feel free to
disregard the officers’ requests in light of the officers’ show of authority. See Furr, 499 S.W.3d
11 at 877–78; Castleberry, 332 S.W.3d at 467. As evidenced by the officers’ body-camera
recordings, when Officer Sallee first asked Appellant if he could search him, Appellant did not
respond—even though he had orally responded to Officer Sallee’s other questions—and
immediately attempted to remove his belongings from his pockets on his own. In response,
Officer Sallee instructed Appellant to “hold on” and placed his hand on Appellant’s arm:
Figure 1. As seen from Officer Sallee's body camera, Sallee's Figure 2. As seen from Officer Starks's body camera, Sallee's hand is on Appellant's arm in the lower-right of the image. hand is on Appellant's arm.
When Appellant still did not respond and continued to reach into his pockets, Officer Sallee put
his hand around Appellant’s elbow:
Figure 3. As seen from Officer Sallee's body camera, Sallee's Figure 4. As seen from Officer Starks's body camera, Sallee's hand is around Appellant's elbow in the lower right of the partially-obscured hand is around the area of Appellant's image. Sallee’s thumb is in the crook of Appellant’s elbow, elbow. while his fingers are behind Appellant’s elbow.
Officer Starks then moved in even closer proximity to Appellant, and Officer Sallee once again
12 placed his hand on Appellant—this time on Appellant’s lower back. Officer Starks instructed
Appellant “manos, manos” while holding his hands out in front:
Figure 5. As seen from Officer Sallee's body camera, Officer Figure 6. As seen from Officer Starks's body camera, Officer Starks has stepped towards Appellant and is holding his Starks's fingers are splayed out in front of his body, at the hands out in front of his body while telling Appellant, very bottom of the image. Officer Sallee’s hand behind "manos, manos." Officer Sallee’s hand, barely in the image, Appellant is obscured by Appellant’s body. is on Appellant’s back.
Starks’s words “manos, manos” (“hands, hands”) and his actions stepping toward Appellant and
holding his hands out conveyed the message to Appellant to “stop what you’re doing and keep
your hands where I can see them”—a message that a reasonable person would take as an order
requiring compliance. An investigative detention occurs if the officer conveys to the citizen that
compliance with the requests is required. See Bostick, 501 U.S. at 434–35 (an encounter remains
consensual “as long as the police do not convey a message that compliance with their requests is
required.”); see also Castleberry, 332 S.W.3d at 467 (“whether a reasonable person would have
felt free to ignore the police officer’s request”). It was only then, after being told to stop what he
was doing and hold his hands out, that Appellant acquiesced and allowed Officer Sallee to search
him. While the appellate court notes that the officers’ instructions and actions were merely to
help Appellant understand what the officers were attempting to do, 8 we cannot rely on the
officers’ subjective intent in determining whether a person has been detained. See Furr, 499
8 Monjaras, 631 S.W.3d at 809.
13 S.W.3d at 878.
In considering the Castleberry 9 and Mendenhall 10 factors, we again note that the time
and location of Appellant’s interaction with Officers Sallee and Starks is not necessarily
indicative of a seizure. Like the location in Castleberry, the apartment complex encountered
some foot traffic—Officer Starks is seen on video talking to another tenant during the interaction
with Appellant. See Castleberry, 332 S.W.3d at 468. The interaction occurred outside around
midday. See id. (discussing lighting in area where interaction took place). And neither officer
pulled out his weapon until after the altercation began, although the officers’ firearms were
visible in their holsters. Mendenhall, 446 U.S. at 554 (noting “display of a weapon by an officer”
could indicate a detention).
However, Mendenhall notes that “physical touching of the person of the citizen” can
indicate a seizure invoking the Fourth Amendment, and Castleberry states that “the officer’s
conduct is the most important factor” in determining whether an investigative detention
occurred. Mendenhall, 446 U.S. at 554; Castleberry, 332 S.W.3d at 467. As we recognized in
Crain, under the totality of the circumstances, a statement that may sound like a request in one
context can sound like an order—leaving no choice but to acquiesce—in another context. See id.
at 52 (noting that an officer’s asking an appellant to “come over here and talk to me” when
coupled with the shining of a patrol car’s overhead lights in the appellant’s direction would not
allow a reasonable person to feel “free to leave or decline the officer’s requests”).
In this context, even though the officers used relatively mundane tones, did not initially
display their weapons, and did not use their lights or sirens, a reasonable person in Appellant’s
position would not feel free to ignore Officer Starks’s statement “manos, manos.” Before
9 332 S.W.3d at 467. 10 446 U.S. at 554.
14 Appellant “consented” to Officer Sallee’s request to search, the investigative detention was
underway. While beginning as a consensual encounter, Appellant’s interaction with Officers
Sallee and Starks rose to the level of an investigative detention when Officer Starks stepped
towards Appellant, stated “manos, manos” (“hands, hands”), and showed Appellant to hold his
hands out while Officer Sallee had his hand on Appellant’s back.
For an investigative detention to be permissible under the Fourth Amendment, it must be
supported by reasonable suspicion. Furr, 499 S.W.3d at 877; Wade, 422 S.W.3d at 667. Because
the court of appeals did not reach the issue of whether reasonable suspicion existed, remand is
appropriate. See Osorio-Lopez v. State, ___ S.W.3d ___, No. PD-0354-21, 2022 WL 2335394, at
*5 (Tex. Crim. App. June 29, 2022) (“[T]his Court reviews only decisions of the courts of appeal
unless ‘the proper resolution of the remaining issue is clear . . . .’”) (citing Davison v. State, 405
S.W.3d 682, 691–92 (Tex. Crim. App. 2013)).
IV. Conclusion
Although initially consensual, the encounter between Appellant and the officers became
an investigative detention. Appellant was detained when Officer Starks moved very close to
Appellant, told Appellant “manos, manos” while holding his hands out to direct Appellant to
follow suit while Officer Sallee had his hand on Appellant’s back. At the time this happened one
officer had his hand on Appellant’s back, the other officer was two or three feet in front of
Appellant, the patrol car was within four or five feet from one side of Appellant and the
apartment complex was approximately twenty-five feet from Appellant’s other side. A
reasonable person in Appellant’s shoes would not feel free to leave under these circumstances.
We conclude the appellate court erred in finding that Appellant was not detained. Accordingly,
we reverse the judgment of the court of appeals and remand to that court to determine in
15 accordance with this opinion whether Officer Sallee and Officer Starks had reasonable suspicion
to detain Appellant and whether that detention was valid.
Delivered: November 23, 2022 Publish