IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0241-20
SUZANNE ELIZABETH WEXLER, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY
KEEL, J., delivered the opinion of the Court in which KELLER, P.J., and HERVEY, RICHARDSON, YEARY, SLAUGHTER, and MCCLURE, JJ., Joined. WALKER, J., filed a dissenting opinion. NEWELL, J., dissented.
OPINION
Appellant challenges the admissibility of a statement she made to police during the
execution of a search warrant, claiming that the statement was a product of custodial
interrogation. The court of appeals determined that Appellant made the statement before
she was in custody, and it was properly admitted by the trial court. Wexler v. State, 593
S.W.3d 772, 775 (Tex. App.CHouston [14th Dist.] 2019). We granted Appellant=s WexlerBPage 2
petition for discretionary review to decide whether the court of appeals erred in this
determination. We conclude that Appellant failed to meet her burden of showing that
she was in custody when she made the statement, and we affirm the judgment of the court
of appeals.
I. Background
Police were told that the house at 318 Avenue A in South Houston was a site of
drug dealing. During a week of surveillance, narcotics K-9 officers arrested four people
leaving the house in possession of methamphetamine, and police got a warrant to search
the house.
The search warrant was executed with the help of uniformed and plainclothes
officers, narcotics K-9 units, and the Harris County Sheriff=s Office High Risk Operations
Unit (HROU), a SWAT-like team whose function was to secure the residence and detain
any occupants. While uniformed officers in marked police cars blocked both ends of the
street, 20 to 25 HROU officers surrounded the house, announced via loudspeaker from an
armored vehicle that they had a search warrant, and directed occupants to exit the house.
Appellant came out and was detained by HROU officers and put in the back of a patrol
car.
While HROU did a protective sweep of the house, narcotics detective Jerome Hill
questioned Appellant. Hill suspected that Appellant and someone named Jimmy were
involved in distributing drugs, but Hill did not tell Appellant that she was a suspect, and
he did not give her any warnings. The encounter was not recorded, but Hill testified that WexlerBPage 3
he said, AWe have a search warrant. Tell me where the narcotics are. It will save us
some time doing the search. We=re going to find it no matter what.@ Appellant told him
that the drugs were Ain her bedroom in a dresser drawer.@ Hill and other narcotics
officers went into the house to conduct the search and found 25.077 grams of
methamphetamine in the dresser drawer, marijuana packaged for individual sale, drug
paraphernalia, scales, cash, and handgun magazines and ammunition. Hill arrested
Appellant for possession with intent to distribute a controlled substance.
At trial Appellant objected to the admission of her statement that the drugs were in
her bedroom in a dresser drawer. She claimed the statement was hearsay and that it
should be excluded because Hill was trying to extract a confession and obtain evidence
from her without giving her any warnings. The State responded that it was a statement
by a party opponent or a statement against interest and that Appellant was detained but
not in custody when she gave the statement. After voir dire examination of Hill and
arguments of the parties outside the presence of the jury, the trial court overruled
Appellant=s objection and admitted her statement.
Appellant’s friend testified in her defense. He said Appellant and her boyfriend,
Jimmy, had broken up and that she had moved out of the house months before the search;
she was in the house on the day of the search only to retrieve some of her belongings, and
the drugs belonged to Jimmy. During deliberations, the jury asked for clarification of
Detective Hill=s testimony and sent out a note asking, AWhen Ms. Wexler was asked by
Mr. Hill where the drugs would be found, was her response >my bedroom= or >the WexlerBPage 4
bedroom= or another variant?@ The court read back to the jury Hill=s testimony: AThe
defendant told me it would be in her bedroom in a dresser drawer.@ The jury found
Appellant guilty, and the trial court sentenced her to 25 years in prison.
II. Court of Appeals
Appellant claimed on appeal that she was in custody when she was placed in the
back of the patrol car and that she should have been given Article 38.22 and Miranda
warnings before Hill questioned her. Miranda v. Arizona, 384 U.S. 436, 479 (1966);
TEX. CODE CRIM. P. art. 38.22. She said her statement to Hill should have been
excluded because she was not given the warnings. Wexler, 593 S.W.3d at 777. The
court of appeals determined that the statement was properly admitted because Appellant
was temporarily detained rather than under arrest when she made the statement. Id. at
780.
The fact that Appellant=s freedom of movement was restricted when she was
placed in the patrol car did not establish that she was under custodial arrest because a
person under detention also may have her freedom of movement restricted but to a lesser
degree. Id. at 779. There was no evidence that Appellant was aware of the presence of
the armored vehicle or the number of officers on the scene, or that access to the street had
been blocked. Id. at 780. Even if she were aware, this would show only one factor—
the amount of force used—to determine custody. Id. (citing State v. Sheppard, 271
S.W.3d 281, 291 (Tex. Crim. App. 2008)). There was no evidence that police used
physical force on Appellant, handcuffed her, threatened her, displayed a firearm, or even WexlerBPage 5
spoke to her in a hostile tone. Wexler, 593 S.W.3d at 780.
There was evidence that an investigation was underway and that Appellant was
detained during a protective sweep of the house, but the detention was brief, Appellant
was questioned on scene, Hill was the only officer to question her, and he did not tell her
that she was a under arrest or even a suspect. Id. (citing Herrera v. State, 241 S.W.3d
520, 525B26 (Tex. Crim. App. 2007) (AThe subjective belief of law enforcement officials
about whether a person is a suspect does not factor into our >custody= determination
unless an official=s subjective belief was somehow conveyed to the person who was
questioned.@)). When Appellant was questioned, drugs had not yet been found, and Hill
did not have probable cause to arrest her. Wexler, 593 S.W.3d at 780.
The court of appeals concluded that the record supported the trial court=s implied
finding that Appellant was temporarily detained and not arrested when Hill questioned
her, so Hill was not required to warn her under Miranda or Article 38.22, and the trial
court did not err in admitting her statement. Wexler, 593 S.W.3d at 780.
The dissenting opinion asserted that under the facts of the case, a reasonable
person would have believed she was under restraint to the degree associated with an
arrest. Id. at 783 (Hassan, J., dissenting) (quoting Dowthitt v. State, 931 S.W.2d 244,
254 (Tex. Crim. App. 1996)). AAppellant left the protections of a private home only
after being instructed by an organized and well-equipped amassment of law enforcement
personnel.@ Wexler, 593 S.W.3d at 784 (Hassan, J., dissenting). According to the
dissent, these facts demonstrate that the police created a situation that would have led a WexlerBPage 6
reasonable person to believe her freedom had been significantly restricted, and Appellant
was entitled to Miranda warnings. Id. at 785 (citing Dowthitt, 931 S.W.2d at 255).
III. Standard of Review
A trial court=s ruling on a motion to suppress is reviewed for abuse of discretion
and should be reversed only if it is outside the zone of reasonable disagreement. State v.
Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018); State v. Story, 445 S.W.3d 729,
732 (Tex. Crim. App. 2014). Custody is a mixed question of law and fact that does not
turn on credibility and demeanor unless the witness testimony, if believed, would always
decide the custody question. State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App.
2013). We apply a bifurcated standard of review, giving almost total deference to the
trial court’s factual assessment of the circumstances surrounding the questioning and
reviewing de novo the ultimate legal determination of whether the person was in custody
under those circumstances. Id.
When a trial court denies a motion to suppress and does not enter findings of fact,
we view the evidence in the light most favorable to the ruling and assume the trial court
made implicit findings of fact that support its ruling as long as those findings are
supported by the record. Herrera, 241 S.W.3d at 527. The party that prevailed in the
trial court is afforded the strongest legitimate view of the evidence, and all reasonable
inferences that may be drawn from that evidence. State v. Garcia-Cantu, 253 S.W.3d
236, 241 (Tex. Crim. App. 2008).
IV. Miranda and Article 38.22 WexlerBPage 7
Miranda and Article 38.22 deem statements produced by custodial interrogation to
be inadmissible unless the accused is first warned that she has the right to remain silent,
her statement may be used against her, and she has the right to hire a lawyer or have a
lawyer appointed. Miranda, 384 U.S. at 479; TEX. CODE CRIM. P. art. 38.22. In
addition, Article 38.22 requires a warning that the accused has the right to terminate the
interview at any time. Herrera, 241 S.W.3d at 526. The warnings are required only
when there is custodial interrogation. Id.
A custody determination requires two inquiries: the circumstances surrounding
the interrogation and whether a reasonable person in those circumstances would have felt
that she was not free to leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). AOnce
the scene is set and the players= lines and actions are reconstructed, the court must apply
an objective test@ to determine whether there was restraint on freedom of movement of a
degree associated with arrest. Id. The ultimate inquiry is whether, under the
circumstances, a reasonable person would have believed that her freedom of movement
was restricted to the degree associated with a formal arrest. Stansbury v. California, 511
U.S. 318, 322 (1994); Dowthitt, 931 S.W.2d at 254. The Areasonable person@ standard
presupposes an innocent person. Dowthitt, 931 S.W.2d at 254 (citing Florida v. Bostick,
501 U.S. 429, 438 (1991)).
Dowthitt outlined four general situations that may constitute custody: (1) the
suspect is physically deprived of her freedom of action in any significant way, (2) a law
enforcement officer tells the suspect that she cannot leave, (3) law enforcement officers WexlerBPage 8
create a situation that would lead a reasonable person to believe her freedom of
movement has been significantly restricted, or (4) there is probable cause to arrest, and
law enforcement officers do not tell the suspect that she is free to leave. 931 S.W.2d at
255.
For the first three situations, the restriction upon freedom of movement must
amount to the degree associated with an arrest as opposed to an investigative detention.
Id. For the fourth situation, the officer=s knowledge of probable cause must be
manifested to the suspect, and custody is established only if the manifestation of probable
cause, combined with other circumstances, would lead a reasonable person to believe she
is under restraint to a degree associated with an arrest. Id.; Stansbury, 511 U.S. at 325.
An officer=s subjective intent to arrest the suspect is irrelevant unless that intent is
communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 254
(citing Stansbury, 511 U.S. at 324-25 (police knowledge or beliefs bear on the custody
issue only if they are conveyed to the suspect)).
To evaluate whether a reasonable person in the suspect’s situation would have felt
that there was a restraint on her freedom to a degree associated with arrest, the record
must establish the circumstances manifested to and experienced by her. State v. Ortiz,
382 S.W.3d 367 (Tex. Crim. App. 2012) (Aonly the objective circumstances known to the
detainee should be considered in deciding what a reasonable person in his position would
believe.@). See also Thompson, 516 U.S. at 113 (Aif encountered by a >reasonable
person,= would the identified circumstances add up to custody@); Berkemer v. McCarty, WexlerBPage 9
468 U.S. 420, 442 (1984) (A[T]he only relevant inquiry is how a reasonable man in the
suspect=s position would have understood his situation.@).
It is the defendant=s initial burden to establish that her statement was the product of
custodial interrogation. Herrera, 241 S.W.3d at 526; Wilkerson v. State, 173 S.W.3d
521, 532 (Tex. Crim. App. 2005).
V. Analysis
Appellant had to do more than object to the admission of her statement; she had to
show that it was a product of custodial interrogation. Herrera, 241 S.W.3d at 526. She
failed to do so.
A. The Circumstances Surrounding the Interrogation
It is undisputed that HROU announced over a loudspeaker that the house was
being searched and that any occupants must exit. Appellant exited and was seated in the
back of a patrol car while HROU did a protective sweep of the house. Narcotics officers
had not yet searched the house when Hill asked Appellant about the drugs in the house,
and Hill arrested Appellant after the drugs were found. The record supports findings that
the detention was brief, the investigation was efficient, Hill was the only officer to
question Appellant, Appellant was not removed from the location of the search, and she
was not told she could not leave. Viewing the evidence in the light most favorable to the
trial court’s ruling, Appellant failed to show that the objective circumstances of her
detention would lead a reasonable person to believe that her freedom was restrained to a
degree associated with an arrest. WexlerBPage 10
Appellant argues that the record demonstrates that she would have been aware of
the large contingent of officers on the scene, but she offered no evidence of her
awareness of the police presence, and the trial court was not required to infer it. See
York v. State, 342 S.W.3d 528, 544 (Tex. Crim. App. 2011) (with respect to suppression
issues, the trial judge can draw rational inferences in favor of either party). Although
Hill testified about the various law enforcement entities that helped execute the warrant,
no one testified about whether Appellant would have been able to see them. For
example, Hill testified that the HROU had an armored vehicle and over 20 officers who
“surrounded” the house, but he did not testify where the vehicle was or where the officers
were positioned. Hill testified about the presence of narcotics officers on the scene, but
he did not testify about their number or their location. Hill testified that patrol cars
blocked the ends of the street, but he did not testify about their distance from the house or
whether they were visible to Appellant at any point.
B. Would a reasonable person in those circumstances have felt that she was not free to leave?
Appellant says the court of appeals’ majority failed to consider whether a
reasonable person in her circumstances would have perceived that her physical freedom
was restricted to the degree associated with a formal arrest. She argues that custody for
Miranda purposes does not turn on the reasonableness of the police actions under the
Fourth Amendment or merely a distinction between investigative detention and full
arrest. She maintains that the court of appeals erred in focusing on the reasonableness of WexlerBPage 11
the actions of the police and relying on Sheppard, 271 S.W.3d at 291.
We agree with Appellant that the majority opinion did not clearly articulate the
“ultimate inquiry” pertinent to the custody question for Miranda purposes—whether a
reasonable person in the defendant’s circumstances would have believed that her freedom
of movement was restricted to the degree associated with a formal arrest. Stansbury,
511 U.S. at 322. And Sheppard, a Fourth Amendment case, did not deal with that
“ultimate inquiry.” Sheppard, 271 S.W.3d at 283 (describing issue before the Court as
“whether a person is ‘arrested’ for purposes of the Fourth Amendment if he is
temporarily handcuffed and detained, but then released.”) (footnote omitted).
But the majority below correctly recited the reasonable person standard and the
need to examine “all the objective circumstances surrounding the questioning.” Wexler,
593 S.W.3d at 778. It relied on cases addressing custody for Miranda purposes. Id. at
778-79 (citing, e.g., Herrera, 241 S.W.3d at 525, and Dowthitt, 931 S.W.2d at 255).
And it looked not only at the actions of the police, but also at whether Appellant was
aware of those actions. Wexler, 593 S.W.3d at 780. Ultimately, its holding was in line
with Berkemer, 468 U.S. 420.
In Berkemer, the Supreme Court considered whether a traffic stop rendered a
person in custody for Miranda purposes. 468 U.S. at 435. A traffic stop significantly
curtails the freedom of the driver and passengers and is a seizure for Fourth Amendment
purposes, but due to the nonthreatening, noncoercive aspect of the detention, a traffic stop
usually does not constitute custody for Miranda purposes. Berkemer, 468 U.S. at 436- WexlerBPage 12
40. This is true even though a person temporarily detained pursuant to a traffic stop
would not feel free to leave. Id. at 436. A motorist detained pursuant to a traffic stop is
entitled to Miranda protections if he is subjected to treatment that renders him in custody
for practical purposes; Miranda safeguards become applicable as soon as a suspect’s
freedom is curtailed to a degree associated with a formal arrest. Berkemer, 468 U.S. at
440. In concluding that the officer’s treatment of Berkemer was not the functional
equivalent of a formal arrest, the Court considered the short duration of the detention, its
public setting, and the fact that Berkemer was not informed that the detention would not
be temporary. Id. at 441-42.
Similarly, Appellant’s detention was of short duration, it was in a public setting,
and she was not told that her detention would not be temporary. There was no evidence
that Appellant was aware of an overwhelming police presence. Accordingly, the court
of appeals correctly held that Appellant failed in her burden of proving that she
experienced the functional equivalent of a formal arrest.
Appellant relies on Ortiz, but it is distinguishable. Ortiz was stopped for a traffic
offense and interrogated by an officer named Johnson about drug possession. Ortiz, 382
S.W.3d at 369-70. By the time Ortiz made the incriminating statements that the bundle
under his wife’s skirt was cocaine, he and his wife were faced with at least two police
cars and three officers, they had been handcuffed and frisked, the bundle had already
been found, Ortiz knew it had been found, Ortiz knew that Johnson knew that Ortiz was
on probation for cocaine possession, and Johnson’s several questions and their timing WexlerBPage 13
conveyed his suspicion that Ortiz and his wife were acting in cahoots with respect to the
drugs taped to her leg. Ortiz, 382 S.W.3d at 370-71, 374 fn.32. Given the objective
circumstances, a reasonable person in Ortiz’s position would have believed he was in
custody when he made the incriminating statement. Id. at 377.
Appellant points to the number of officers she faced as compared with the number
faced by Ortiz and argues that the show of force was overwhelming, but unlike the record
in Ortiz, which included video of the traffic stop, id. at 369, the record here does not
show what Appellant saw or knew about the show of force arrayed against her.
Appellant also argues that Hill’s question of her was like the questions posed to Ortiz
because it suggested that Hill suspected her of drug possession. But whereas Hill posed
a single question before any search took place, Johnson repeatedly asked Ortiz about
drugs, and the questions yielded an incriminating response only after another officer told
Johnson in Ortiz’s presence that they had found “something” under Mrs. Ortiz’s skirt.
Id. at 375. That announcement was a relevant consideration only because Ortiz
“apparently heard it[.]” Id.
Significantly, the Ortiz opinion’s custody analysis scrupulously divorced the
circumstances that were known to Ortiz from those that were not and considered only
those known to him. See, e.g., id. at 370 fn.8 (declining to consider the request for
backup because “it is unclear whether the appellee could have overheard” it); id. at 370
fn.11 (declining to consider that the bundle taped to Mrs. Ortiz’s leg was known to be
cocaine because “that information was not related to Johnson within the appellee’s WexlerBPage 14
earshot”); id. at 374 fn. 32 (noting that Ortiz knew that Johnson knew that Ortiz was on
probation for a drug offense, making it a relevant consideration in the custody analysis).
That scrupulousness underscores that the suspect’s knowledge of the circumstances
surrounding the interrogation is crucial to the custody analysis. But in this case, that
crucial element is missing, and the trial court was not compelled to fill in the evidentiary
gaps by inference.
VI. Conclusion
Appellant did not meet her burden to establish on the record facts showing that her
statement to Hill was the product of custodial interrogation, and the trial court properly
admitted the statement. The judgment of the court of appeals is affirmed.
Delivered: June 30, 2021 Publish