Opinion
No. 05-04-01004-CR
Opinion issued February 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 004-80910-04. Reversed and Remanded.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
OPINION
The state appeals the trial court's order granting a motion to suppress John Scott White's statements and the marijuana evidence police found during a search of White's car. In a single point of error, the State contends the court erred by granting the motion to suppress. We agree and reverse the trial court's order granting the motion to suppress. White was charged with possession of two ounces or less of marijuana. White filed a motion to suppress, arguing his vehicle was stopped without reasonable suspicion and therefore, he was arrested without lawful warrant or probable cause. The court held a hearing on the motion, and the State presented testimony of the arresting police officer, Robin Michelle Lewis-Baker. Lewis-Baker's arrest summary was also before the trial court. Lewis-Baker testified that while working off-duty patrolling a movie theater parking lot in her personal car but dressed in her uniform, she observed a black sport-utility vehicle, driven by White, pull into a parking spot at the rear of the theater. The occupants saw Lewis-Baker sitting in her car, which was parked facing out of a parking space. The driver then backed the vehicle out of the space, drove approximately fifty feet away, and parked again. Lewis-Baker started her car, pulled out of her parking space, and drove by the SUV, trying not to make it obvious she was watching the SUV. The driver of the SUV backed out again and drove to the other side of the parking lot and parked; Lewis-Baker drove by the SUV again. The driver of the SUV backed out and left the parking lot. Lewis-Baker called in the registration of the SUV and followed it out of the parking lot. She followed approximately "a car and a half length" behind the SUV. The SUV turned east, crossed the highway, turned north, then pulled into a parking lot of a warehouse building. The SUV pulled into a parking space and stopped, facing east. Lewis-Baker pulled behind the SUV, facing north, approximately "25 or — 25, 30 feet" away from the SUV. Lewis-Baker stated there was space enough that she "could fit probably another vehicle in there behind his car." Lewis-Baker exited her car and approached the SUV. When Lewis-Baker walked up to the SUV, White, sitting in the driver's seat, rolled down the driver's side window. Lewis-Baker observed a large amount of "billowing" smoke come out of the open window, and she smelled burning marijuana. She proceeded to request identification from the vehicle's occupants and waited for an on-duty officer to arrive as backup. When Officer Aaron Levy arrived, they had the occupants exit the vehicle, and Levy performed a pat-down search. Levy and Lewis-Baker searched the vehicle — basing their probable cause to search on the odor of freshly burned marijuana. Lewis-Baker found marijuana in the car, and White was charged with possession. In its sole point of error, the State argues the court erred in granting White's motion to suppress. The State contends Lewis-Baker did not stop White's vehicle but merely approached him. Because an officer requires no justification to approach a person in a public place, the State continues, the contact was permissible. We agree. When reviewing a trial court's ruling on a motion to suppress evidence, we give deference to the trial court's determination of any historical facts and review de novo the application of the law of search and seizure. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). Although an arrest must be supported by probable cause and a detention requires reasonable suspicion, an encounter needs no justification. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995). It is not a violation of the Fourth Amendment for a police officer to approach an individual in a public place. Perez, 85 S.W.3d at 819 ("Police officers `do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place [or] by asking him if he is willing to answer some questions. . . ." (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). Whether a seizure has occurred involves determining whether a reasonable person would believe he or she was not free to leave and whether that person has yielded to the officer's show of authority or been physically forced to yield. Johnson, 912 S.W.2d at 236. In Perez, the court of criminal appeals held that an encounter had occurred when a police officer slowed his patrol car to look at a person, got out of his patrol car, chased that person on foot when he ran away, followed him to an apartment door, and knocked on the door. See Perez, 85 S.W.3d at 819. We conclude the present case, like Perez, was merely an encounter. Lewis-Baker did not run after White, but merely drove behind him, at the legal speed limit, in her personal vehicle. Lewis-Baker did not instruct White to pull over; she merely followed him into the second parking lot and approached his vehicle-not unlike the officer in Perez who knocked on the suspect's door. White was not physically forced to yield, and Lewis-Baker made no show of authority. See Johnson, 912 S.W.2d at 236. We conclude that under the application of search and seizure law, the present interaction was merely an encounter. Accordingly, no facts were necessary to justify Lewis-Baker's initial contact with White. We hold the trial court erred by granting White's motion to suppress. We sustain the State's sole point of error. Accordingly, we reverse the trial court's order granting White's motion to suppress and remand to the trial court for further proceedings.