No. 05-09-01328-CR
Opinion issued July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-82538-08.
Before Justices RICHTER, LANG-MIERS, and MYERS.
Opinion By Justice MYERS.
Troy Franklin Roberts, appellee, was charged by indictment with online solicitation of a minor. See Tex. Penal Code Ann. § 33.021 (Vernon Supp. 2009). The State of Texas appeals from the trial court's order granting appellee's pretrial motion to suppress evidence, arguing the trial court erred in granting appellee's motion to suppress. We reverse and remand.
Background and Procedural History
Sergeant Chris Meehan of the Collin County Sheriff's Office was assigned to the Internet Crimes Against Children Task Force. As part of his duties, Meehan worked undercover by entering into online computer chat rooms posing as a minor, "and wait to be contacted by people to engage in direct contact through instant message one-on-one." Once that occurred, Meehan communicated "back and forth" with the individual "in an undercover capacity." Everything was "logged and recorded." As part of one such undercover operation, Meehan posed as a fourteen-year-old girl from Allen, Texas under the screen name "ashleygyrl14." Using this screen name, Meehan conversed with someone who used the screen name "insufficient-manhood." After numerous sexually explicit chats with "insufficient-manhood," including one instance where insufficient-manhood sent Meehan two photographs of a male penis, Meehan tracked insufficient-manhood's account and IP address to appellee, Troy Franklin Roberts. After obtaining an arrest warrant for appellee and a search warrant for his home and office, Meehan went to appellee's place of employment on September 19, 2008, to interview him. Meehan testified that he did not always execute a warrant after an interview, because he sometimes determined that the owner of the IP address was not the person who had been chatting online or because he arranged for the suspect to turn himself in at a later date. After arriving at appellee's place of work, Meehan, in plain clothes and accompanied by a uniformed officer, informed "Mr. White," who was in charge of security at appellee's place of employment, and "Mr. Lowery," who was appellee's supervisor, that the officers were there to see appellee. Meehan did not tell them that the officers had a warrant for appellee's arrest. Lowery and White accompanied Meehan and the uniformed officer to the cubicle where appellee was working. Lowery identified appellee to the officers and told appellee that he "needed to come talk to these men." Appellee described Lowery's statement as "a cordial business-type" request, although appellee added that Lowery seemed "concerned or stressed." Lowery led them to a small conference room. Appellee and Meehan entered the room and sat down, with appellee sitting in the chair closest to the door. The uniformed officer stood outside the door to the conference room, which was closed but not locked. There was a small window on the door, but Meehan insisted that neither he nor appellee could see outside the conference room because the door "was a great distance from where we were sitting." Appellee, on the other hand, testified that he could see the uniformed officer through the window on the door. Meehan recorded the interview, and a CD recording of the interview was admitted without objection at the suppression hearing. Meehan began the interview by telling appellee that he worked for the "Internet Crimes Against Children Task Force" and the "U.S. Secret Service Electronic Task Force." Meehan explained that a mother had complained that appellee was "talking inappropriately" to her child on the internet. Meehan asked appellee if he had "any idea what it might be about." Appellee said that he "talk[ed] on the internet pretty regularly." Meehan also asked appellee what internet service and online screen name he used. A couple of minutes into the interview, appellee admitted that he used the screen name "insufficient-manhood" as an online chat name, and that he had talked to two individuals who claimed to be underage. Appellee denied ever trying to meet anyone that he talked to online. Meehan asked appellee whether "ashleygyrl" was one of the people he chatted with online. At approximately eight minutes and thirty seconds into the interview, appellee acknowledged that he chatted online with "ashleygyrl." At nine minutes and forty seconds into the interview, Meehan asked appellee if he remembered "how old she claimed to be," and appellee said she claimed to be fifteen or sixteen years old. Appellee later said that he did not know what kind of activity was considered illegal, and Meehan then explained the types of online solicitation offenses. At approximately twenty-three minutes into the interview, Meehan told appellee that he had committed a third degree felony. Appellee asked if he was going to be arrested. Meehan said he had a warrant for appellee's arrest, and that appellee was "gonna have to go with us." Meehan took appellee into custody. At no point during the interview, which Meehan described in his testimony as a "[v]ery cordial . . . back-and-forth conversation," did he tell appellee that he was free to leave, and appellee testified that, once he was in the room, he did not feel like he was free to leave. Appellee filed a motion to suppress all of his statements. At the pretrial suppression hearing, the State acknowledged that the interview should be suppressed after appellee admitted he had been chatting online with "ashleygyrl." But it argued that the first eight minutes and thirty seconds of the interview were admissible because appellee was not yet in custody. At the State's request, the trial court filed findings of fact and conclusions of law. The trial court concluded appellee was in custody during the entire interview, and that all statements from the interview should be suppressed. Discussion
In only one issue, the State argues the trial court erred in granting appellee's motion to suppress because it determined appellee was in custody based on facts that were either unknown to the court or that took place after appellee made the complained-of statements. Standard of Review We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Randolph, 152 S.W.3d at 769. We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89; see also State v. West, 20 S.W.3d 867, 870-71 (Tex. App.-Dallas 2000, pet. ref'd). When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as in this case, the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings. Kelly, 204 S.W.3d at 818-19. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. at 818. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). Applicable Law Article 38.22 of the code of criminal procedure sets out certain requirements for admitting a defendant's oral and written statements resulting from custodial interrogation and specifically exempts from its requirements any statement made outside of custody. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966); see Herrera, 241 S.W.3d at 526 (construction of custody for purposes of article 38.22 is consistent with meaning of custody for purposes of Miranda). "A person is in `custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowhitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318 (1994)); see Nguyen v. State, 292 S.W.3d 671, 677-78 (Tex. Crim. App. 2009) (custody satisfied when individual formally arrested or when freedom of movement restrained to degree associated with formal arrest). The "reasonable person" standard presupposes an innocent person. Dowthitt, 931 S.W.2d at 254. At least four general situations may constitute custody: (1) the suspect is physically deprived of his freedom of action in any significant way, (2) a law enforcement officer tells the suspect that he cannot leave, (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Gardner v. State, 306 S.W.3d 274, 294 (Tex. Crim. App. 2009) (citing Dowthitt, 931 S.W.2d at 255). In all four of these situations, the restriction on freedom of movement must amount to the degree associated with an arrest. Dowthitt, 931 S.W.2d at 255. As to the fourth circumstance, the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of the interrogating officer or the person being questioned. Dowthitt, 931 S.W.2d at 255 (citing Stansbury, 511 U.S. at 325). A police officer's subjective intent to arrest is irrelevant unless it is somehow communicated or otherwise manifested to the suspect. Herrera, 241 S.W.3d at 525-26; Dowthitt, 931 S.W.2d at 254-55. The required manifestation can occur if information substantiating probable cause is related by the officer to the suspect or by the suspect to the officer. Dowthitt, 931 S.W.2d at 255. Although an interrogation may begin as a non-custodial interrogation, police conduct during the questioning can cause the initially consensual inquiry to escalate into custodial interrogation. Id. The determination of whether a person is in custody is made on an ad hoc basis considering all the objective circumstances. Herrera, 241 S.W.3d at 532; Dowthitt, 931 S.W.2d at 255. We first determine the circumstances surrounding the interrogation. Herrera, 241 S.W.3d at 532. We then consider whether, given those circumstances, a reasonable person would believe he could not terminate the questioning and leave. Id. The record as a whole must "clearly establish" that the statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526 (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). The defendant bears the initial burden of proving a statement was the product of custodial interrogation. Gardner, 306 S.W.3d at 294; Herrera, 241 S.W.3d at 526. Analysis In its conclusions of law, the trial court determined that appellee's statements arose out of custodial interrogation based on the third and fourth categories of Dowthitt. The court focused on essentially three factors: (1) the existence of the arrest warrant; (2) Meehan's failure to take appellee to a local magistrate "without unnecessary delay," allegedly in violation of chapter 15 of the code of criminal procedure; and (3) the restrictions on appellee's movement. Beginning with the arrest warrant, the trial court's findings focused on Meehan's possession of a warrant for appellee's arrest. It concluded that because the warrant commanded the officer "without discretion" to arrest appellee, he was under arrest "[a]s a matter of law" as soon as Meehan identified him. The court also concluded appellee was in custody because "under the law, [the officers] could not let him go because they had been commanded by the magistrate to arrest him." A person is not in custody merely because an officer has probable cause to arrest him, nor does the existence of an arrest warrant, without more, establish custody. An officer's knowledge that probable cause exists is irrelevant to the custody issue unless it is somehow communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 255. Custody is determined by the objective circumstances, not the subjective beliefs of either party. Stansbury, 511 U.S. at 323. An officer's "unarticulate suspicions" do not affect the objective circumstances of an interrogation, and they do not affect the determination of custody. Id. at 324. The fourth Dowthitt factor does not automatically establish custody; rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. Dowthitt, 931 S.W.2d at 255. In this case, appellee was not told about the arrest warrant until nearly the end of the interview, after approximately twenty-four minutes. The State sought the admission of only the first eight minutes and thirty seconds of the interview, when appellee admitted that he had chatted with "ashleygyrl." The arrest warrant therefore had no bearing on whether appellee was in custody because it was manifested to appellee after he made the complained-of statements. See Stansbury, 511 U.S. at 325 ("An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned"); Dowthitt, 931 S.W.2d at 254 (subjective views of the interrogating officer and the person being questioned are relevant only to the extent they may be manifested in the words or actions of law enforcement officials). Further, neither Meehan nor appellee provided information substantiating probable cause during the first eight minutes and thirty seconds of the interview. See Dowthitt, 931 S.W.2d at 255. As for the second factor, the trial court found that Meehan arrested appellee in Hunt County, but Meehan did not promptly bring appellee before a Hunt County magistrate, and appellee was instead taken directly to the Collin County Jail. The trial court also found that Meehan unnecessarily delayed taking appellee before a magistrate in order to interrogate him. The trial court's conclusions of law noted that Meehan was required by chapter 15 of the code of criminal procedure to take appellee before a magistrate in the county where the arrest took place, which was Hunt County, "without unnecessary delay." See Tex. Code Crim. Proc. Ann. arts. 15.16, 15.17 (Vernon Supp. 2009). The trial court also concluded that appellee was interrogated at his place of employment and taken to the Collin County Jail, and that these were unnecessary delays. An arrestee must be taken "without unnecessary delay" before a magistrate. See id. arts. 15.16, 15.17. The purpose of articles 15.16 and 15.17 is to advise the accused of his legal rights so that he does not incriminate himself involuntarily or under duress. See id. arts. 15.16, 15.17; State v. Vogel, 852 S.W.2d 567, 569-70 (Tex. App.-Dallas 1992, pet. ref'd). But absent some causal connection between the officer's failure to take the suspect before a magistrate and the recovery of some incriminating evidence against him, e.g., a confession, the failure to take the accused before a magistrate immediately after arrest does not constitute reversible error. Rocha v. State, 16 S.W.3d 1, 29 (Tex. Crim. App. 2000); Zarychta v. State, 44 S.W.3d 155, 169 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd); Nielhouse v. State, 761 S.W.2d 491, 493-94 (Tex. App.-Dallas 1988, no pet.). Delaying taking a suspect before a magistrate so the officer can conclude his investigation is not an unnecessary delay. See Niehouse, 761 S.W.2d at 493-94; see also Jenkins v. State, 912 S.W.2d 793, 807 (Tex. Crim. App. 1993) (op. on reh'g) (sixteen hours was not an unnecessary delay in taking an arrestee before a magistrate). Meehan testified that he conducted the interview, which lasted approximately twenty-eight minutes, to ensure that appellee was the individual who had been chatting with ashleygyrl14 rather than simply the owner of a computer that was being used by another person. In addition, article 15.17(a) authorizes an officer to take the arrested person before "a magistrate in any other county of this state" if necessary, see Tex. Code Crim. Proc. Ann. art. 15.17(a), and the warrant in this case directed Meehan to bring appellee before Judge Quay Parker, sitting in Collin County. Moreover, even if an unnecessary delay was established in this case, and we do not believe it was, appellee did not show any causal connection between Meehan's failure to promptly take him before a magistrate in Hunt County following arrest and the acquisition of evidence against him, as the interview appellee challenges had already been concluded. The trial court also concluded that appellee was in custody because his freedom of movement was restricted "in a very significant way" to the degree associated with an arrest. It recited eight facts to support this conclusion: (1) Meehan had a warrant for appellee's arrest "when he arrived to interrogate the Defendant"; (2) at Meehan's request, appellee "was taken to a private room for interrogation"; (3) "the door to the room was closed"; (4) a uniformed police officer "stood guard at the door"; (5) "a tape recorder was turned on"; (5) "the interrogation commenced"; (6) appellee confessed; (7) appellee asked Meehan "after the interview if he was going to be arrested"; and (8) and appellee "was placed under arrest immediately after he was questioned as required by Art. 15.01 CCP and the warrant." Reviewing the record, the trial court cited the fact that Meehan had a warrant for appellee's arrest when he arrived to "interrogate" him, yet this information was not conveyed to appellee before he made the complained-of statements. Likewise, the trial court noted that appellee was taken to a private room at the officers' request and the interview was recorded, but these facts were also unknown to appellee at the time of the disputed statements. Appellee testified that Lowery and the two police officers came to his work station and Lowery told him that he "needed to come talk to these men." Neither officer, according to the testimony, instructed or asked appellee to do anything, and appellee testified that he went to the room because of Lowery's instructions. There is no indication in the record that appellee knew or even suspected the interview was being recorded, nor does the recording itself suggest appellee knew he was being recorded. Circumstances that are unknown to appellee cannot be used to determine whether a reasonable person in his position would have believed his freedom of movement was restrained to the degree associated with a formal arrest. See Stansbury, 511 U.S. at 325; Dowthitt, 931 S.W.2d at 254. Other facts noted by the trial court occurred after appellee made the complained-of statements. The trial court stated, for example, that appellee confessed, that he asked if he was going to be arrested, and that he was arrested immediately after the interview. The State acknowledged that all statements given after appellee admitted he had been chatting with "ashleygyrl" should be suppressed because it was a pivotal statement that established custody. This occurred approximately eight minutes and thirty seconds into the interview. Appellee did not ask if he was going to be arrested until approximately twenty-four minutes into the interview, and this was after Meehan explained the various on-line criminal offenses and told appellant that he had committed a third degree felony. Appellee was then told that he "was going to have to go with us," and was arrested. Such events could not have led a reasonable person in appellee's position to believe he was under arrest approximately fifteen minutes before, when the complained-of statements were made. See Dowthitt, 931 S.W.3d at 257 (concluding custody began immediately after appellant's pivotal admission because it established probable cause to arrest appellant and a reasonable person in appellant's position would have realized the incriminating nature of the admission); see also Ruth v. State, 645 S.W.2d 432, 436 (Tex. Crim. App. 1979) (suspect was in custody from the moment he admitted to shooting the victim and subsequent statements were governed by Miranda). Moreover, the remaining facts noted by the trial court — appellee was in a private room with the door closed, a uniformed officer stood outside the door, and "the interrogation commenced" — do not show that appellee was in custody at the time in question. The evidence shows that appellee went to the room at the request of his supervisor, not the officers, and the officers did not say anything prior to entering the room. Appellee also testified that his supervisor's statement was a "cordial business-type" request. The door to the room was closed but not locked. Meehan did not handcuff or threaten appellee during the first eight minutes and thirty seconds of the interview, and he never promised appellee anything in exchange for making a statement. Appellee did not ask to leave the room and Meehan did not tell him there was a warrant for his arrest, nor did Meehan indicate that appellee was free to leave. Given the totality of the circumstances, the physical aspects of the interview room did not convert the interview into a custodial interrogation. We further conclude, based on the totality of the circumstances, that a reasonable person would not have believed his freedom was restricted to the degree associated with an arrest during the first eight minutes and thirty seconds of the interview. The State also calls our attention to a relatively recent unpublished decision from this Court, Bailey v. State, No. 05-08-01590-CR, 2009 WL 4725348, at *4 (Tex. App.-Dallas Dec. 11, 2009, pet. ref'd) (not designated for publication). In Bailey, officers came to the defendant's home to talk to him about sexually explicit online chats the defendant had supposedly been having with a minor, who was actually an undercover police officer. The lead officer questioned the defendant while a uniformed officer stood by the front door to the apartment. Id. at *1. The officers had a warrant for the defendant's arrest but did not tell him they had a warrant, and, as in this case, the interview was recorded. Id. at *1-2. The defendant was arrested at the end of the interview. Id. at *2. We concluded that the interview was not custodial until the officer manifested probable cause to the defendant by reading from the sexually explicit portions of the online chats that the officer was investigating. Accordingly, no Miranda warnings were required to admit the initial portion of the interview, where the defendant admitted to using a particular screen name and chatting with the screen name used by the officer. See id. at *4. The State argues that our ruling in Bailey is persuasive and should be followed, but there are some differences between Bailey and the present case. In Bailey, for example, the defendant was interviewed in his home, not his place of employment. The defendant in Bailey allowed the officer to enter his residence late in the evening, and the defendant's wife was present during the interview. Id. at *2-3. Despite these differences, however, our Bailey opinion is instructive in at least one respect: we noted that the record contained no evidence the defendant was subjected to any restriction of movement during the time period at issue, which was the first six minutes and thirty seconds of the questioning, and it was not reasonable for him to believe he was restricted. Furthermore, because the officers did not manifest their probable cause until later in the interview, the defendant was not in custody until that time. See id. at *4. The record in the present case leads us toward a similar conclusion. There is no indication in the record that appellee was subjected to restrictions on his movement during the first eight minutes and thirty seconds of the interview, nor that a situation was created that would have led appellee to reasonably believe his freedom of movement was significantly restricted during that time period. Carefully considering the objective circumstances surrounding the first eight minutes and thirty seconds of the questioning in the light most favorable to the trial court's ruling, we therefore conclude a reasonable person in appellee's position would not have felt his freedom of movement was restrained to the degree associated with a formal arrest. Because appellee did not satisfy his burden of establishing that he was in custody from the beginning of the questioning, article 38.22 did not apply to any statements made before the questioning escalated into custodial interrogation. Given the record before us, we conclude the trial court erred by refusing to admit the recording of the first eight minutes and thirty seconds of the interview. We reverse the trial court's order and remand this case for further proceedings.