Court of Appeals of Texas,
Dallas.
Rigoberto FLETES, Appellant
v.
The STATE of Texas, Appellee.
No. 05–10–01012–CR.
June 23, 2011.
On Appeal from the 382nd Judicial District Court Rockwall County, Texas, Trial Court Cause No. 2–10–133.
Ted Sansom, for Rigoberto Fletes.
Kenda L. Culpepper, for the State of Texas.
Before Justices O’NEILL, FRANCIS, and MYERS.
MEMORANDUM OPINION
Opinion By Justice FRANCIS.
After the trial court denied his motion to suppress, Rigoberto Fletes pleaded guilty to possession of marijuana of 2,000 pounds or less but more than fifty pounds and, as part of a plea bargain agreement, was sentenced to ten years in prison. In one issue, appellant challenges the trial court’s ruling on his motion to suppress. We affirm.
Rockwall Police Officer Jackye Shouse testified he was on duty on February 13, 2010 when he noticed appellant at a local truck stop on Interstate 30. When Shouse returned to the truck stop about two to two-and-a-half hours later, appellant was still there, and Shouse said it looked like he “was watching me, paying attention.” Shouse struck up a conversation with appellant, who said he was waiting for the roads to clear after snow had fallen in the area. Appellant asked how the roads were, and Shouse told him they were driveable. Over the next few minutes, appellant told Shouse he was traveling from Laredo to Tennessee, but his trailer was carrying only 8,000 pounds, making it harder to drive on ice. Shouse said that statement struck him as “odd” because a trailer usually holds about 60,000 pounds, and he thought it was unusual that appellant was carrying such a light load for such a long distance. Shouse asked the name of the trucking company, and appellant did not know but said the name was on the side of the truck. Shouse asked appellant if they could “go look at it,” and appellant agreed. Shouse drove his patrol car to the back of the lot, and appellant walked. Once there, Shouse asked if appellant minded “talking to me or anything,” and appellant assured him he did not, explaining that he did not get to talk to people very often.
Shouse asked if appellant “minded” if he looked at his logbook, and appellant produced it. Then he asked to see the bill of lading, which appellant also gave him. Once he looked through the paperwork, Shouse said he noticed several inconsistencies between appellant’s statements and the paperwork as well as other odd things: (1) appellant said he was driving to Tennessee, but did not know where the load was going and was supposed to call on arrival; the bill of lading, however, showed the load was bound for North Carolina; (2) appellant did not know the name of the company for whom he was driving; (3) there were different names for the trucking company on the side of the truck, bill of lading, and the log book; (4) the bill showed a weight of 6,100 pounds, while appellant said it was 8,000 pounds; (5) appellant told him someone else loaded and sealed the truck, but he also said the lock belonged to him; and (6) the log book showed appellant arrived in Dallas at 11 p.m. the night before while a receipt showed appellant purchased gas in New Braunfels on the day of the contact. Shouse said it appeared that appellant was attempting to distance himself from responsibility for the load, and asked Shouse if he was responsible for the load if someone else sealed it. Shouse told him he did not know, but appellant “kept wanting to make sure” he would not be in trouble if something happened to the load.
About twenty minutes into the contact, Shouse asked to see appellant’s driver’s license, and appellant produced a temporary commercial driver’s license from the state of California. Shouse ran the license and was notified by dispatch that it showed to be expired. Shouse told appellant and then asked to see his medical card, which apparently was a requirement of his license. Appellant showed him his card. Shouse asked appellant if there was anything illegal in the truck, and appellant said no. About thirty-five minutes into the contact, Shouse told appellant he wanted to make sure “nothing else” was “going on,” and asked if he could search the truck and trailer. Appellant said “okay,” and Shouse said, “That’s okay with you?” Appellant responded, “Yeah.”
After appellant gave consent to search, a second officer arrived at the scene. Shouse entered the trailer, which had a strong smell of a cleaning product, and found four separate crates behind the load identified on the bill of lading. The crates were sealed with silicone and nailed down. Appellant claimed that he knew nothing about the crates. Shouse did not want to destroy or open the crates if he did not need to, so he called for a drug dog. The dog alerted on the crates. Shouse opened the crates and found 1,662 pounds of marijuana. Shouse testified that appellant never withdrew his consent to search. A videotape, which began about four minutes into Shouse’s contact with appellant, was admitted into evidence, and corroborated Shouse’s account of his interaction with appellant. After hearing the evidence, the trial court ruled the interaction between Shouse and appellant was merely an encounter and denied the motion to suppress.
In his sole issue, appellant contends the trial court erred in denying his motion “because the encounter-detention between the officer and [a]ppellant was unduly prolonged, without adequate legal cause, was unreasonable considering the circumstances and rendered [a]ppellant’s consent to search not free and voluntary.” It appears appellant is complaining that his consent was tainted by an illegal detention.
Consensual police-citizen encounters do not implicate Fourth Amendment protections. State v. Woodard, No. PD–0828–10, 2011 WL 1261320, at(Tex.Crim.App. Apr.6, 2011). Law enforcement is free to stop and question a fellow citizen; no justification is required for an officer to request information from a citizen. Id. Citizens may, at will, terminate consensual encounters. Id. Even when the officer does not communicate to the citizen that the request for information may be ignored, the citizen’s acquiescence to an official’s request does not cause the encounter to lose it consensual nature. Id. Courts consider the totality of the circumstances surrounding the interaction to determine whether a reasonable person in the defendant’s shoes would have felt free ignore the request or terminate the interaction. Id. If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment seizure has not occurred. Id. The surrounding circumstances, including time and place, are taken into account, but the officer’s conduct is the most important factor when deciding whether an interaction was consensual or a Fourth Amendment seizure. Id.
There is no bright-line rule governing when a consensual encounter becomes a seizure, but generally when an officer through force or a showing of authority restrains a citizen’s liberty, the encounter is no longer consensual. Id. The Court of Criminal Appeals has identified several circumstances that might indicate an investigative detention has occurred: the threatening presence of several officers; display of weapon by an officer; some physical touching by police; and the use of language or tone of voice indicating compliance with the officer’s request might be compelled. Crain v. State, 315 S.W.3d 43, 49–50 (Tex.Crim.App.2010).
Appellant does not identify any particular point at which he contends the encounter evolved into a detention, instead focusing on the fact that the interaction continued for about thirty-five minutes before consent to search was requested. While we believe the length of the encounter could be a factor within the totality of the circumstances that a court may consider, it is not dispositive. In this case, during the thirty-five minutes, Officer Shouse never unholstered his gun, activated his lights, touched appellant, threatened appellant, raised his voice, or spoke in a tone of voice indicating compliance with his questions was compelled. About twelve or thirteen minutes into the encounter, Shouse asked appellant if he minded talking to him, and appellant assured him that he did not. When Officer Shouse asked to see appellant’s papers, log book, and identification, the questions were not phrased in such a way as to appear to be a command or order, but were phrased in such a way as to allow appellant a choice. Appellant never said he needed to leave or indicated any desire to leave. To the contrary, he engaged the officer in conversation, asking about the condition of the roads, responsibility for the load, and Officer Shouse’s career as a police officer. Finally, it was only after appellant gave consent to search that a second officer even arrived on the scene. Having reviewed the officer’s testimony as well as the videotape and considering the totality of the circumstances, we cannot conclude the trial court abused its discretion in concluding the interaction was an encounter that did not implicate Fourth Amendment protections.
Additionally, we note that although Officer Shouse did not detain appellant, he certainly had reasonable suspicion to do so. A police officer has reasonable suspicion to detain if he has specific, articulable facts that, combined with rational inferences from those facts, would lead him reasonably to conclude the person detained is, has been, or soon will be engaged in criminal activity. Derichsweiller v. State, No. PD–0176–10, 2011 WL 255299, at(Tex.Crim.App. Jan.26, 2011). To support a reasonable suspicion, the articulable facts must show some activity out of the ordinary has occurred, some suggestion to connect the detainee to the unusual activity, and some indication that the unusual activity is related to crime. Id. at *5. It is not a sine qua non of reasonable suspicion that a detaining officer be able to pinpoint a particular penal infraction. Id. at *6. It is enough that the information is sufficiently detailed and reliable, that is, it supports more than an unarticulate hunch or intuition, to suggest that something of an apparently criminal nature is brewing. Id.
The contact between Officer Shouse and appellant began as a conversation about road conditions and appellant’s destination. As it continued, Officer Shouse became suspicious because appellant was carrying a small load for such a large truck over a long distance (from Laredo to Tennessee), did not know where in Tennessee the load was going, and did not know the name of the trucking company for whom he was driving. Once Officer Shouse looked at appellant’s log book and papers, he found several inconsistencies. Contrary to appellant’s assertion that the load was bound for Tennessee, the bill of lading showed a destination of North Carolina; his paperwork provided different names for the trucking company, both of which were different from that on the side of the truck; the bill showed a load nearly 2,000 pounds less than what appellant had claimed; and the log book showed appellant arriving in Dallas at 11 p.m. the night before, but a receipt showed appellant bought gas in New Braunfels on the day of the contact. Officer Shouse articulated more than a “hunch;” he articulated specific facts that something of an apparently criminal nature was brewing. Consequently, even if the encounter evolved into an investigative detention, the record shows the detention was lawful and based upon reasonable suspicion.
Appellant’s argument regarding the voluntariness of his consent to search is premised on his assumption that he was illegally detained. Having concluded otherwise, we likewise reject any complaint that his consent was involuntary. We overrule the sole issue.
We affirm the trial court’s judgment.
