State v. Hamlin

871 S.W.2d 796, 1994 Tex. App. LEXIS 96, 1994 WL 17405
CourtCourt of Appeals of Texas
DecidedJanuary 20, 1994
DocketNo. B14-93-00378-CR
StatusPublished
Cited by1 cases

This text of 871 S.W.2d 796 (State v. Hamlin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hamlin, 871 S.W.2d 796, 1994 Tex. App. LEXIS 96, 1994 WL 17405 (Tex. Ct. App. 1994).

Opinions

MAJORITY OPINION

SEARS, Justice.

Appellee was indicted for possession of cocaine. The trial court granted his motion to suppress. The State maintains that the trial court erred in finding that the Appellee was detained when he consented to the dog sniff of his luggage, and in the alternative, that the court erred in finding that the officer lacked reasonable suspicion for the detention. We affirm.

On the morning of December 2, 1992, Officer Luiz and three other officers were conducting surveillance of the Amtrak train station in Houston. They were dressed in civilian clothing, and monitoring train number 522 due to depart Houston at 9:10 am.

Officer Luiz was the first of the team to arrive, and was sitting in the parking lot in her vehicle when a red Suzuki Samurai pulled up behind her. It was approximately 8:03 am. Two men exited the vehicle and walked into the station together. They were not carrying any bags. A few minutes later, the driver stepped outside and returned to the vehicle. A short time later, Appellee followed, carrying a ticket in his hand. The two men sat in the car, talking, while the driver lit a cigarette. They opened up the jacket of the ticket, looked at it, and passed it between themselves.

After a short while, the driver opened the car door, emptied his ashtray, and then lit up another cigarette. The driver and passenger passed this cigarette between themselves. The manner in which they smoked this cigarette was different from the manner in which the driver had smoked the first cigarette. The driver would cup his hands over the second cigarette and Appellee would “duck down” while smoking it. Officer Luiz, however, made no mention of this “suspicious smoking” in her offense report. Further, she stated at the motion to suppress that she did not “pay too much attention to them because [she] didn’t want them to know that [she] was looking.” Officer Luiz then went into the train station. Both men remained in the Samurai. She observed their behavior from inside the station, and noticed that they turned around and looked whenever a car would pull up.

Officer Luiz checked with the agents at the ticket counter for information concerning Ap-pellee’s destination. She was told that Ap-pellee was traveling alone to Altoona, Pennsylvania. He had purchased a one-way ticket under the name of Scott Hewitt and he paid for it in cash. No bags were checked. At 9:00 am the train blew its whistle, and people started lining up to board the train. The driver and Appellee exited the Samurai. Ap-pellee retrieved a brown suitcase and a jacket from the vehicle and proceeded into the station. As they walked towards the boarding platform, the driver pulled Appellee aside, and motioned for him to go around to the side of the station. It was approximately ten minutes to departure time.

At this time, Officer Luiz approached Ap-pellee and identified herself as a Houston police officer. She asked Appellee if she could speak with him, and he consented. She asked him if he was traveling, and he [798]*798stated that he was. She asked him where he was going, and he responded, “Pennsylvania.” She asked to see his ticket, and Appel-lee handed it to her. The name on the ticket read, “Scott Hewitt,” and the destination was Altoona, Pennsylvania. She asked the Ap-pellee if he lived in Pennsylvania, and he told her that he lived in Altoona. She asked him how long and why he had been in Houston, and Appellee responded that he had been here for 3 days visiting his girlfriend. Officer Luiz requested some identification from Appellee, and he indicated that he was not carrying any. She asked him if he thought it was strange for a person to carry no identification. Appellee simply shrugged his shoulders. At this point, all the information the officer had obtained from the ticket agent was confirmed by Appellee.

Officer Luiz informed Appellee that he was not under arrest, but she continued to question him. She asked him how he had arrived at the station, and he pointed to the driver of the Samurai. Appellee asked Officer Luiz what was going on, and she told him “we [are] narcotics officers and we [are] conducting a routine investigation.” She asked him if he was carrying any narcotics, and he responded that he was not. Officer Luiz then asked to look in his bag. Appellee refused the request. At this point, the train was leaving in five to seven minutes. Officer Luiz persisted, and asked Appellee if he had any objections to her “running a narcotics detection dog on the bag.” Appellee then acquiesced. Rico, the trained narcotics dog, alerted on Appellee’s bag. The officers opened the bag and found bundles of marihuana. Upon a search of the appellee, the officers found a gram of cocaine in his shirt pocket.

The trial judge is the sole judge of the witnesses’ credibility and the weight to be given their testimony. Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). A trial court’s findings in a pretrial hearing will not be disturbed absent an abuse of discretion. State v. Gilliam, 832 S.W.2d 119, 121 (Tex.App. — Houston [14th Dist.] 1992, no pet). Upon review of a ruling on a motion to suppress, this court must view the evidence in the light most favorable to the trial court’s ruling. Id.

The State maintains that the trial court abused its discretion in finding that Appellee had been detained. Not all encounters between police and citizens invoke the protections of the Fourth Amendment or the Texas Constitution. “A seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Mitchell v. State, 831 S.W.2d 829, 832 (Tex.App. — Houston [1st Dist.] 1992, pet ref'd). However, once an individual’s freedom of movement is inhibited by means of physical force or a show of authority, that individual is seized for purposes of the Fourth Amendment. Murillo v. State, 850 S.W.2d 198, 200 (Tex.App. — Houston [14th Dist.] 1993, no pet). The inquiry then becomes, taking all of the circumstances into account, whether the police officer’s conduct “would have communicated to a reasonable person that he was not at liberty to ignore [the officer] and go about his business.” Mitchell at 832.

In Holladay v. State, 805 S.W.2d 464 (Tex.Crim.App.1991), the Court of Criminal Appeals addressed the issue of when an individual is detained. The Court held that the officer’s “request for permission to search appellant’s luggage converted the initial encounter into an investigative one, albeit very brief.” They concluded that the individual had been subject to an investigative detention implicating his Fourth Amendment rights. Holladay at 472. In light of Holladay, we hold that Appellee was detained at the time Officer Luiz requested permission to search his bag. Now, we must determine whether Officer Luiz had reasonable suspicion for the detention.

In Crockett v. State, 803 S.W.2d 308 (Tex.Crim.App.1991), the Court of Criminal Appeals addressed the issue of what constitutes reasonable suspicion for a detention. The officers in Crockett

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871 S.W.2d 796, 1994 Tex. App. LEXIS 96, 1994 WL 17405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hamlin-texapp-1994.