Ida Sanchez v. State

NUMBER 13-99-204-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ IDA SANCHEZ , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 148th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez After an adverse ruling on her motion to suppress and pursuant to a plea bargain, appellant, Ida Sanchez, pleaded guilty to the state jail felony offense of possession of cocaine.(1) The court assessed punishment at six years imprisonment. Appellant appeals the denial of her motion to suppress. See Tex. R. App. P. 25.2. We affirm. A trial court's ruling on a motion to suppress is generally reviewed by an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Gonzalez v. State, 976 S.W.2d 324, 326 (Tex. App.--Corpus Christi 1998, no pet.). In Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997), the court of criminal appeals articulated the standard as a bifurcated standard of review, giving "almost total deference to a trial court's determination of historical facts" and reviewing de novo the court's application of the law of search and seizure. Id. The trial court, in this case, did not make explicit findings of historical fact; therefore, assuming implicit findings of fact supported in the record that buttress its conclusion, we view the evidence in a light most favorable to the court's ruling. See Carmouche v. State, 10 S.W.3d 323, 328-29 (Tex. Crim. App. 2000) (citations omitted). At the hearing on appellant's motion to suppress, Corpus Christi Police Officer James Gray, Jr., testified that he and Officer Norman Morton were dispatched to the Midway Club on June 12th, 1998, on the basis of an anonymous tip in reference to an Hispanic female who was selling drugs and wearing a white cap and a Reebok T-shirt. Officer Gray testified he and Officer Morton drove to the club, went inside and saw appellant. She matched the description given to the officers by the dispatcher. Officer Gray approached appellant and asked "if it would be all right if [she] stepped outside and talked with [them] for a minute." Officer Gray did not tell appellant she was under arrest. He testified that appellant was free to leave had she chosen to do so. Appellant cooperated with the officers and accompanied them outside. Officer Gray told appellant that they were there in reference to someone selling drugs, and that she matched the description. Officer Gray asked appellant "if she had been selling drugs, if she had anything on her that [they] needed to be concerned about." Appellant told them she "may have a roach [a marihuana cigarette] or two in [her] purse." She handed Officer Gray her purse. He asked appellant if he could look inside the purse. She consented. When Officer Gray searched appellant's purse, he found marihuana and a small baggie of powdered cocaine. Officer Gray testified that if appellant had told him "no, that he could not look in her purse," he would not have tried to do a warrantless search. Officer Morton's testimony at the hearing regarding the events that occurred was consistent with that of Officer Gray. Officer Morton testified appellant gave them her consent to look in her purse. The officers also testified that no force, coercion, or threat of any kind was used to obtain appellant's consent. The officers did not promise appellant anything to get her to open her purse. Additionally, Officer Morton testified the consent was given freely and voluntarily. In a single issue, appellant contends her detention was unlawful, and the evidence seized during the search was inadmissible. Appellant claims that the encounter with Officers Gray and Morton constituted an investigative detention, and, as such, required the officers to have reasonable suspicion. The State contends that appellant's contact with police was not a detention, but a consensual encounter which required neither reasonable suspicion nor probable cause. Not every encounter between police and the citizenry implicates the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 16-19 (1968). The threshold issue in this case is whether appellant's encounter with the police officers was a consensual encounter or an investigatory detention. The controlling distinction between a consensual encounter and an investigative detention is whether a seizure has occurred. See California v. Hodari D., 499 U.S. 621, 628 (1991). A seizure occurs when a reasonable person would believe she was not free to disregard the police and walk away. See id.; Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997) (citing Florida v. Bostic, 501 U.S. 429, 432 (1991) (citation omitted)). "As in all cases involving a determination of whether a 'seizure' has occurred for Fourth Amendment purposes, the particular encounter is assessed by looking at the totality of the circumstances." Hunter, 955 S.W.2d at 104 (citing Bostic, 501 U.S. at 439). In the present case, both officers testified, without contradiction, that Officer Gray approached appellant and asked her if it would be all right if she stepped outside the club and talked with them. She agreed to talk with the uniformed police officers, clearly giving her consent to answer their questions. Once outside, the officers told her why they were there and asked if she had anything they needed to know. Appellant told them she had several "roaches" in her purse, and consented to a search of her purse. Appellant was not required to accompany the officers outside or to speak with them. Had appellant refused consent, Officer Gray would not have tried to look in her purse. Appellant voluntarily gave her permission to search the purse, and no force or threat was made, or promises used, to obtain that consent. Based on the totality of the circumstances, we conclude there was no seizure in this case. A reasonable person would have believed she was free to disregard the police officers at any time during the encounter, and walk away. Thus, the encounter between the police officers and appellant was a consensual encounter, not an investigative detention, and this consensual encounter resulted in appellant consenting to a search of her purse which contained marijuana cigarettes and cocaine. Appellant also argues that the officers lacked the required reasonable suspicion because they did not independently investigate to corroborate the anonymous report. See Terry, 392 U.S. at 21 (for investigative detentions to be legal, particular levels of suspicion are required); see also United States v. Sokolow, 490 U.S. 1, 7 (1989) (police can stop and detain a person for investigative purposes if officer has reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause); Florida v. J.L., 120 S. Ct. 1375, 1378-79 (2000) (holding stop was invalid because anonymous tip provided no predictive information leaving police without means to test the informant's knowledge and credibility). However, in a consensual encounter police are not required to possess any particular level of suspicion because citizens are under no compulsion to remain. See Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995); Hawkins v. State, 758 S.W.2d 255, 259 (Tex. Crim. App. 1988). Therefore, having concluded this was a consensual encounter, we do not reach appellant's argument. There was no intrusion upon appellant's liberty or privacy as would require a particular level of suspicion on the part of the police officers. See U.S. v. Mendenhall, 446 U.S. 544, 555 (1980). Accordingly, we conclude the trial court did not abuse its discretion when it denied appellant's motion to suppress and admitted the evidence obtained from the search of her purse. Appellant's sole issue is overruled. We AFFIRM the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 31st day of August, 2000. 1. See Tex. Health & Safety Code Ann. § 481.115(a),(b) (Vernon Supp. 2000).