State v. Sheppard
Full Opinion (html_with_citations)
OPINION
delivered the opinion of the Court
Appellee, Michael Harvey Sheppard, was charged with possession of methamphetamine and possession of chemicals with intent to manufacture methamphetamine. He filed a motion to suppress evidence that the trial court granted after an evidentiary hearing. The State appealed, arguing that the officerâs conduct was reasonable under the Fourth Amendment. The specific question before us is whether a person is âarrestedâ for purposes of the Fourth Amendment if he is temporarily handcuffed and detained, but then released.
I.
At the hearing on appelleeâs motion to suppress, Anderson County Deputy Sheriff John Smith testified that he received a dispatch call about an assault at Lot No. 14 in Red Rock Ranch. He met the complainant, Arthur Schneider,
Deputy Smith knocked on the door and, when appellee opened it, the first thing the officer noticed was a âvery strong chemical odor coming out of the trailer.â
He testified that he handcuffed appellee for âofficer safetyâ while he walked through the trailer to make sure that there was no one else inside. He explained that he was trying to account for Elizabeth Miley, the third person that Arthur Schneider had told him about: âTo make sure they werenât laying in [there] dead, stabbed to death. There had already been a complaint of someone pulling a knife.â As Deputy Smith walked through the trailer, he saw, in plain view, a small dining table that had a clear plastic bag on it, a purse with some needles in it, and an open orange box with a powdery substance in it.
After Deputy Smith was assured that no one else was inside, he walked back out and released appellee from the handcuffs. He called the drug task force to come because he didnât know if this was a meth lab, and he didnât know anything about meth labs. He asked appellee if he would sign a consent to search form. Appellee did so. They both waited outside until the drug task-force members arrived and began to search the trailer. They discovered that the strong chemical smell had come from a pitcher underneath the sink with crushed-up pills and some type of solvent or acetone in it. The officers also found methamphetamine and a variety of methamphetamine-manufacturing materials.
After hearing the evidence, the trial judge asked the prosecutor and defense counsel a number of questions concerning the legal principles involved, and ultimately he granted the motion to suppress, stating that âthe bottom line for me ... that
II.
The State appeaied, and the Tyler Court of Appeals upheld the trial judges ultimate ruling, although it disagreed with a â
a, number oi his â
*1 inclusions.
If believed, these facts could support the conclusion that Appellee was armed and presented a danger as well as a reasonable suspicion that he was involved in criminal activity.11
But, because the trial judge made the legal conclusion that â[t]he âpat down or frisk of defendantâ was without justification and therefore illegal,â the court of appeals reasoned that the trial judge must not have believed Deputy Smith.
When the trial court makes explicit findings of fact, as was done in this case, those are the facts to which we must give deference. And when a trial court makes an explicit credibility finding, we must give deference to that credibility determination. But we cannot conjure up new and different factual or credibility findings when the trial court has made his findings explicit. That is precisely the point of having trial judges make express factual findings: the appellate courts will not have to guess at what the trial courtâs factual findings and credibility assessments were. In this case, it is clear that the trial court simply did not believe that what Deputy Smith did was reasonable under the Fourth Amendment. The trial court was mistaken on the law.
Appellate courts review the legal determination of detention, reasonable suspicion, and probable cause under the
Here, Deputy Smith had two distinct bases for a Fourth Amendment âpat downâ: he was investigating a complaint of a recent assault with a large knife, and he was investigating Mr. Schneiderâs admission of âdoing speedâ at appelleeâs home.
To support a protective frisk or detention, there must be facts that, when reviewed under an objective standard, would cause a reasonably cautious person to believe that the action taken was*288 reasonable or that the person frisked was presently armed and dangerous.20
Thus, the court of appeals correctly concluded that Deputy Smithâs âfailure to articulate a lawful basis for the frisk or detention does not mean that they were illegal.â
Because the objective facts supported the appropriateness of Deputy Smithâs action, the trial court erred in its conclusion of law âthat the âpat downâ was without justification and therefore illegal.â Although the court of appeals recognized that Deputy Smithâs actions were objectively reasonable and appropriate, it mistakenly accepted the trial courtâs legal finding by speculating that the trial judge must have disbelieved Officer Smith when his explicit fact findings show otherwise.
The court of appeals also upheld the trial courtâs conclusion that Deputy Smith âarrestedâ appellee for Fourth Amendment purposes when he temporarily detained and handcuffed him. The appellate court stated:
Giving due deference to the factual determinations made by the trial court, we*289 cannot conclude that the trial court erred when it determined that the deputy arrested Appellee. The deputy walked to Appelleeâs front door and placed the man in handcuffs. A reasonable person could conclude that he was not free to leave at that point.26
Indeed, appellee was not free to leave at that point; he was being temporarily detained while Officer Smith conducted his investigation. That is precisely what Terry permits â a temporary detention, in which the person is not free to leave, while the police officer investigates whether a crime has been committed.
In the present case, the trial court made factual findings that appellee âwas placed in handcuffs and informed that he was not under arrest but only being detained until the scene could be secured,â and then
This was a reasonable course of conduct under the Fourth Amendment. An objectively reasonable and prudent police officer could both (1) temporarily handcuff Mr. Sheppard, who had allegedly just threatened another person with a large knife while using methamphetamine and who still had that knife on his person; and (2) make a brief sweep of the rest of Mr. Sheppardâs trailer to see if Ms. Miley was still present â either as a victim or as someone who posed a danger to Officer Smith during his investigation. As soon as Deputy Smith completed the brief sweep, he uncuffed appellee, and they both went outside.
An âarrestâ under the Fourth Amendment is a greater restraint upon a personâs freedom to leave or move than is a temporary detention, which also restrains a personâs freedom.
The trial judge was simply mistaken about the legal significance of the facts that he found. As a matter of law, these facts support a finding that Officer Smithâs conduct and appelleeâs temporary detention were reasonable under the Fourth Amendment.
The court of appeals noted that the trial court made a factual finding that âDeputy Smith did not have specific articulable facts to support a reasonable suspicion to believe the defendant was engaged in criminal activity to justify the search of defendant or placing him in handcuffs.â
In sum, because there is no indication that the trial judge disbelieved Deputy Smithâs testimony,
We therefore reverse the judgment of the court of appeals and remand this case to the trial court for further proceedings.
. The State's two questions for review ask the following:
1) For the purpose of Fourth Amendment search and seizure jurisprudence, does Vernonâs Ann. C.C.P. Art. 15.22 determine the circumstances that constitute an âarrestâ?
2) Did the court of appeals err by concluding that circumstances that would constitute a "temporary detentionâ under Fourth Amendment search and seizure jurisprudence must be considered to be an "arrest" because of the provisions of Vernonâs Ann. C.C.P. Art. 15.22?
. State v. Sheppard, No. 12-06-00259-CR & 12-06-00260-CR, 2007 WL 1241511, 2007 Tex.App. LEXIS 3325 (Tex.App.-Tyler 2007) (not designated for publication).
.The court of appeals addressed five distinct legal issues. On each one, it agreed that the objective facts supported the reasonableness of the officerâs conduct. Therefore, it assumed that, despite the trial judgeâs factual findings, he must have disbelieved the officer, because otherwise the trial judgeâs ruling on the law was erroneous.
. Several of the participants' names are spelled in various ways by the different parties and courts. We use the names as spelled by the court reporter.
. Deputy Smith did not further describe this "chemical odorâ in his testimony, but after securing the scene, he called for Deputy Smith to come and assist him "in reference to a possible meth lab.â
. The trial judge correctly identified the controlling legal issue: Taking into account the totality of the circumstances, was Officer Smithâs conduct and search constitutionally reasonable?
. The trial courtâs Finding of Facts were as follows:
1) On November 28, 2004, Anderson County Sheriff's Deputy John Smith responded to a call and met complainant Arthur [Schneider] at the nearby convenience store when Mr. [Schneider] informed the deputy that the defendant had threatened him with a knife.
2) Complainant further informed Deputy Smith that [Elizabeth] Miley was also present at the house and everyone had been doing drugs.
3) Deputy Smith went to defendantâs house and knocked on the door.
4) Defendant answered the door and was identified.
5) Deputy Smith noticed a strong chemical odor coming from the residence.
6) Deputy Smith searched defendant and found a legal large folding knife in defendantâs pocket. Deputy Smith claimed the search was for officer's safety but gave no valid reasons or basis for his concern.
7) Defendant was placed in handcuffs and informed that he was not under arrest but only being detained until the scene could be secured.
8) Deputy Smith did not have specific articu-lable facts to support a reasonable suspicion to believe the defendant was engaged in criminal activity to justify the search of defendant or placing him in handcuffs.
9) Deputy Smith checked the residence for "officer safelyâ and for welfare concerns due to complainant stating there were three people present.
10) Deputy Smith searched in areas where people could be found.
11) While searching, Deputy Smith saw a syringe with brownish liquid lying in plain view in an open purse.
12) Upon finding no other individuals in the house, Deputy Smith released defendant from restraints as he had no probable [cause] to arrest. Deputy Smith asked for
⢠and received written consent to search the residence.
13) Deputy Smith doesnât remember when he read defendant his Miranda warnings-whether either before or after signing the consent to search.
14) Sergeant Rodney Smith and Assistant and Brenda Gray, members of the Dogwood Trails Narcotics Task Force, arrived and conducted the search.
The trial courtâs Conclusions of Law were as follows:
1) The "pat down or frisk of defendantâ was without justification and therefore illegal.
2) The handcuffing of defendant constituted an illegal warrantless arrest of defendant.
3) Deputy Smithâs original entry into the residence was a search without probable cause and therefore illegal.
4) Without adequate proof the defendant was Mirandized prior to being asked about to consent to the search of his residence the conversation requesting such consent constituted illegal custodial interrogation.
5) There is inadequate proof to show that the taint of the original arrest had been attenuated before the written consent to search was executed.
6) For both reasons stated above, the written consent to search was therefore invalid.
7) The search of the residence is therefore found to be illegal and any and all evidence found as a result thereof is suppressed and deemed inadmissible at trial.
. State v. Sheppard, No. 12-06-00259-CR & 12-06-00260-CR, 2007 WL 1241511, 2007 Tex.App. LEXIS 3325 (Tex.App.-Tyler 2007) (not designated for publication).
. Id. at *4, 2007 Tex.App. LEXIS 3325 at *9.
. Id.
. Id.
. Id.
. Although the court of appeals noted that the trial court said, "I'm having a problem with your officer's safety issue,â during the attorneys' post-testimony arguments, the problem he had was with the prosecutor's legal position, not the believability of Officer Smith's testimony.
Court: A person is arrested when he's been placed under restraint or taken into custody by an officer or a person executing or a person arresting without a warrant. I thought the old restraint issue is if you detain somebody, they weren't free to go, that was sufficient to argue an arrest, isnât it?
State: He was only detained, Judge, for officer's safety. He was not under arrest.
Court: I'm having a problem with your officerâs safety issue.
State: They don't release people that they arrest. That's the whole thing, he was released.
Court: What do you mean they don't â â˘
State: Judge, the officer testified that he released him from his handcuffs and he was not under arrest, so even saying that he was arrestedâ
Court: Why didnât he ask for the consent when he originally walked up there?
. Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008) (âthe question of-whether a given set of historical facts amount to a consensual police-citizen encounter or a detention under the Fourth Amendment is subject to de novo review because that is an issue of law-the application of legal principles to a specific set of facts.â); Kothe v. State, 152 S.W.3d 54, 62-63 (Tex.Crim.App.2004) (âquestions involving legal principles and the application of law to established facts are properly reviewed de novo " in deciding the question of the "reasonablenessâ of a detention for purposes of the Fourth Amendment).
. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Id. at 27-28, 88 S.Ct. 1868 (officers could reasonably conclude that the offense of robbery would involve use of weapons, although officer did not observe a weapon or any physical indication of a weapon); see also Carmouche v. State, 10 S.W.3d 323, 329-30 (Tex.Crim.App.2000) ("Law enforcement personnel may conduct a limited search for weapons of a suspect's outer clothing, even in the absence of probable cause, where an officer reasonably believes that the suspect is armed and dangerous.â).
. See Carmouche, 10 S.W.3d at 330 (when officers stopped defendant based upon an informantâs tip that he was carrying cocaine, it was reasonable for officers to conduct a Terry frisk for weapons; âSince weapons and violence are frequently associated with drug transactions, the officers reasonably believed that the individual[] with whom they were dealing [was] armed and dangerous.â) (internal quotations and citation omitted).
. Griffin v. State, 215 S.W.3d 403, 409-10 (Tex.Crim.App.2006) (âWe decline to hold that it is objectively unreasonable for a reasonably prudent officer to protect himself by frisking a possibly violent drug-dealer for weapons even though the officer conducting the frisk in the case at hand testifies that he was not subjectively afraid of the suspect.â).
. Terry, 392 U.S. at 27-28, 88 S.Ct. 1868; Cannouche, 10 S.W.3d at 330; Griffin, 215 S.W.3d at 409-10.
. Sheppard, 2007 WL 1241511, at *4, 2007 Tex.App. LEXIS 3325, at *8 (citing OâHara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000) (âWhether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officerâs actual state of mind at the time the challenged action was taken'.â)).
. Id. In United States v. Wallen, 388 F.3d 161, 167 (5th Cir.2004), the Fifth Circuit addressed a similar situation in which the trial court found that the officer had failed to adequately explain his rationale for a Terry frisk:
The district court's finding that [the officer] did not in fact fear for his safety is incorrect, because the validity of the protective search is based on objective evidence. The subjective motivations of police are irrelevant to determining whether a search or seizure is reasonable under the Fourth Amendment. Specifically with regard to the matter of a protective sweep under Long, this court has emphasized that there is no legal requirement that an officer subjectively fear for Iris own safety before engaging in such a search. Even if the district court was correct in finding that [the officer] was not actually fearful for his safety, the circumstances of this case would be enough objectively to put a reasonable officer in fear and thus to justify the instant search under Long.
Id. (citing Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)).
. Sheppard, 2007 WL 1241511, at *4, 2007 Tex.App. LEXIS 3325, at *9.
. 27 S.W.3d 548 (Tex.Crim.App.2000).
. Id. at 551; see also United States v. Tharpe, 536 F.2d 1098, 1101 (5th Cir.1976) (noting that there is "no legal requirement that a policeman must feel 'scared' by the threat of dangerâ because "[s]ome foolhardy policemen will never admit fear.â), overruled in part on other grounds, United States v. Causey, 834 F.2d 1179 (5th Cir.1987).
. Sheppard, 2007 WL 1241511, at *5, 2007 Tex.App. LEXIS 3325, at *10-11.
. Id. at *6, 2007 Tex.App. LEXIS, at *13.
. Teny, 392 U.S. at 30-31, 88 S.Ct. 1868.
. See Balentine v. State, 71 S.W.3d 763, 771 (Tex.Crim.App.2002) (police officers who temporarily handcuffed and detained suspect in their patrol car had not "arrestedâ him for purposes of the Fourth Amendment; "There is no bright-line test providing that mere handcuffing is always the equivalent of an arrest. Instead, when evaluating whether an investigative detention is unreasonable, 'common sense and ordinary human experience must govern over rigid criteria.â") (internal citation omitted); Rhodes v. State, 945 S.W.2d 115, 117-18 (Tex.Crim.App.1997) (officer handcuffed defendant âprimarily out of concern for his safety, based on the circumstances: it was dark; the area was a high-crime location; the officers had just concluded a car chase which was initiated due to commission of a traffic violation and during which a bag was dropped from the car; and, his partner was chasing the driver, leaving [officer] alone with the suspectâ; handcuffing was reasonable under the circumstances and did not constitute an arrest); Mays v. State, 726 S.W.2d 937, 943-44 (Tex.Crim.App.1986) (officerâs conduct in handcuffing two men was not an arrest and was reasonable under the circumstances as a temporary investigative detention; the lone police officer arrived at the scene of a possible burglary and saw two men in front of the door; officer told the men that he would have to frisk them, he did so, and then handcuffed them for his own protection, "due to the nature of the call and the way they were acting scared like maybe they had been caught at something, and I was alone, and two of them, and they was both bigger than I was.â).
. 4 Wayne R. LeFave. Search and Seizure, § 9.2(d), at 311-13 (4th ed.2004) (collecting federal and state cases upholding handcuffing during a temporary detention as proper under the particular circumstances). Compare Zayas v. State, 972 S.W.2d 779, 789-90 (Tex.App.-Corpus Christi 1998, pet. ref'd) (officer acted reasonably in handcuffing defendant at beginning of investigatoiy detention because he was sole officer, defendant did not comply with his directions, and officer did not know whether other suspects were there; "The reasonableness of a particular officer's actions is to be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight, and allowances must be made for the fact that officers must make quick decisions under tense, uncertain, and rapidly changing circumstances.â), and Salazar v. State, 805 S.W.2d 538, 540 (Tex.App.-Fort Worth 1991, pet. refâd) (handcuffing the detainee was, under the circumstances, "a reasonable corollary to the investigative detentionâ and did not amount to an arrest), with State v. Moore, 25 S.W.3d 383, 387 (Tex.App.-Austin 2000, no pet.) (officer acted unreasonably in handcuffing defendant detained for investigation of forgery because detention occurred in well-lit store, suspect was cooperative, and forgery is not a crime normally associated with violence).
. Maryland v. Buie, 494 U.S. 325, 327-28, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (stating that a "protective sweepâ is a âquick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or othersâ; sweep of defendantâs basement upheld "in case there was someone else down thereâ).
. See Laney v. State, 117 S.W.3d 854, 861 (Tex.Crim.App.2003) (emergency-doctrine exception set out in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) applies and permits a warrantless entry into a home for a brief "sweepâ of that residence if an officer has a reasonable belief of an immediate need to protect or preserve life or avoid serious injury).
. See generally, 40 George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 7.34 (2d ed.2001).
. Tex Code Crim. Proc. art. 15.22. In this Court, appellee now argues that the trial court "properly applied the definitionsâ in article 15.22, and therefore, under a state statute, the trial court correctly found that he was âarrestedâ when he was temporarily detained at his front door. Appellee never mentioned article 15.22 in his motion to suppress, and the trial court never mentioned article 15.22 in either his factual findings or his conclusions of law. Instead, appellee's motion to suppress claimed that
[t]he actions of the law enforcement agents violated the constitutional and statutory rights of the Defendant under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 9, of the Texas Constitution, and under Article 38.23 of the Texas Code of Criminal Procedure.
. Dix & Dawson, § 7.34, at 460.
. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Francis v. State, 922 S.W.2d 176, 179 n. 4 (Tex.Crim.App.1996) (Baird, J., concurring and dissenting). Article 15.22 was first enacted in 1856 and has remained virtually unchanged for 150 years. It is not a statute that was drafted in contemplation of federal or
. "[Officers may use such force as is reasonably necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety.â Rhodes, 945 S.W.2d at 117; see United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (police are not required to use "least intrusive meansâ to verify or dispel their suspicions; officers were not unreasonable in forcibly detaining defendant).
. Dix & Dawson, § 7.34, at 464-67.
. Id. at 462; see United Slates v. Smith, 3 F.3d 1088, 1095-96 (7th Cir.1993) ("Courts will look to several factors in determining the distinction between a stop and an arrest, among them are the officersâ intent, impressions conveyed, length of stop, questions asked and any search made. This list is not exhaustive nor are any of the factors decisive.â).
. Dix & Dawson, § 7.34, at 466.
. Sheppard, 2007 WL 1241511, at *3-7, 2007 Tex.App. LEXIS 3325, at *7-16; see note 7, supra, Findings of Fact (8).
. See note 14, supra.
. See State v. Ross, 32 S.W.3d 853, 859-60 (Tex.Crim.App.2000) (Womack, J., concurring) ("No matter how many times we have said it, there is no justification for us to 'assume that the trial court made implicit findings of fact that support its ruling.... It is just as possible that the resolution of the issue turned on the trial court's understanding of the law. Indeed, it is more likely that the trial courtâs ruling is one of law when the evidence was uncontradicted.â).
. If, on remand, the trial judge wishes to reconsider his original ruling or findings of fact to make explicit credibility findings on specific testimony, he has the authority to do so.