Do you guys have anything on you that you are not
suppose[d] to have?not considered custodial interrogation by police officer.[In
the Matter of M.A.O.](09-1-4A)
On December 10, 2008, the San Antonio Court of
Appeals, held that when the circumstances show that the individual acts upon the
invitation or request of the police and there are no threats, express or
implied, that he will be forcibly taken, then that person is not in custody at
that time.
09-1-4A. In the Matter of M.A.O., MEMORANDUM,
No. 04-07-00658-CV, 2008 WL 5170297 (Tex.App.-San Antonio, 12/10/08).
Facts: Shortly after 11:00 p.m. on Tuesday, June
19, 2007, fifteen-year-old M.A.O. and another individual were walking on the
street in a residential area in San Antonio. At the time, San Antonio police
officer Ernest Stevens and another officer were patrolling the area, which had a
reputation for gang activity and violence. Because the individuals appeared to
be minors, Stevens decided to find out if they were violating the city's curfew
ordinance. The ordinance made it unlawful for minors to be on the streets
without an adult after 10:30 p.m. on a weeknight. The officer accompanying
Stevens parked the patrol car about fifteen feet behind the two individuals, but
he did not turn on the emergency lights. Stevens got out of the car, called to
the individuals, and motioned for them to come over to him.
The individuals walked over to Stevens, who asked for
their names and ages. Stevens learned the two individuals were minors and lived
nearby. Stevens did not handcuff M.A.O. and the other minor, nor did he place
them in the back of the patrol car. Stevens did ask, Do you guys have anything
on you that you are not suppose[d] to have? In response, M.A.O. stated, I have
some pills in my pocket that I found. Stevens then searched M.A.O.'s
frontpocket and retrieved nine pills. The pills were not in a container. With
the assistance of the poison control center, Stevens identified some of the
pills and confirmed they contained drugs that were unlawful to possess without a
prescription. Stevens then formally arrested M.A.O.
M.A.O. filed a motion to suppress his oral statement
and the pills retrieved from his pocket. This motion was denied by the trial
court.
Held: Affirmed.
Memorandum Opinion: In his first issue, M.A.O.
argues that even though the initial stop to investigate a possible curfew
violation was proper, Stevens's legal authority was limited to questioning him
about his age and address. M.A.O. contends Stevens's question, Do you guys have anything on you you're not supposed to
have?, went beyond the permissible scope of a curfew investigation, thereby
violating the municipal curfew ordinance and the Fourth Amendment of the United
States Constitution.
An investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop.
Kothe v. State,
152 S.W.3d 54, 63 (Tex.2004);
Davis v. State,
947 S.W.2d 240, 243-44 (Tex.Crim.App.1997).
Once the purpose of the stop has been satisfied, the stop may not be used for a
fishing expedition for unrelated criminal activity.
Davis,
947 S.W.2d at 243 (quoting
Ohio v. Robinette,
519 U.S. 33, 41 (1996) (Ginsburg, J.,
concurring)). Nevertheless, a police officer's questioning, even on a subject
unrelated to the purpose of the stop, is not itself a Fourth Amendment
violation.
United States v. Estrada,
459 F.3d 627, 631 (5th Cir.2006);
United States v. Shabazz,
993 F.2d 431, 436 (5th Cir.1993).
Here, M.A.O. complains of only one question asked by
Stevens. M.A.O. suggests this critical question was asked after the curfew
investigation was completed. The State suggests Stevens's question was asked
shortly after M.A.O. was stopped. In reality, the record is not well-developed
as to the question's timing. Additionally, the record does not establish that
Stevens failed to diligently pursue the curfew investigation, or that the
question unreasonably prolonged the duration of the investigation. Based on the
record before us, we cannot say Stevens's question was unreasonable and violated
M.A.O.'s Fourth Amendment rights. See
Edmond v. State,
116 S.W.3d 110, 114 (Tex.App.- Houston [14th Dist.] 2002, pet. ref'd)
(concluding questioning about drugs during a traffic stop was permissible when
it did not unreasonably prolong the detention). We therefore overrule the first
issue.
Warnings under
Section 51.095 of The Texas Family Code
In his second issue, M.A.O. argues the trial court
should have suppressed his oral statement, I have some pills in my pocket that
I found, because prior to making the statement he was not taken before a
magistrate and given the warnings set out in
Section 51.095(a)(1)(A) of the Texas
Family Code. See Tex.
Fam.Code Ann. § 51.095(a)(1)(A) (Vernon
Supp.2008). In response, the State argues the motion to suppress was properly
denied because no custodial interrogation took place and the statement was
admissible under
section 51.095(a)(2) of the Texas
Family Code, which permits the admission
of oral statements of facts or circumstances found to be true and tending to
establish a juvenile's guilt, such as the finding of secreted or stolen
property, or the instrument with which the juvenile states the offense was
committed. See
id. §
51.095(a)(2).
The admissibility of a statement made by a juvenile is
governed by
Section 51.095 of the Texas Family Code.
Id. §
51.095 (Vernon Supp.2008). The statute
provides that a written statement by a juvenile is admissible at trial if it
shows the juvenile was taken before a magistrate and given certain warnings
prior to making the statement.
Id. §
51.095(a)(1). These warnings include
advising the juvenile (1) he may remain silent and not make any statement at
all, and any statement made may be used in evidence against him; (2) he has the
right to have an attorney present before or during questioning; (3) he has the
right to have an attorney appointed if he is unable to employ an attorney on his
own; and (4) he has the right to terminate the interview at any time.
Id. §
51.095(a)(1)(A) (i-iv). An oral statement
recorded by an electronic recording device is admissible if these same warnings
are given by a magistrate prior to the juvenile making the statement. Id. §
51 .095(a)(5).
The warnings specified under
Section 51.095(a)(1)(A)
must precede statements made while the juvenile is in a detention facility or
other place of confinement, in the custody of an officer, or in the possession
of the Department of Protective and Regulatory Services.
Id. §
51.095(d). However, these warnings need
not precede a statement that does not stem from interrogation of a child in
custody.
Id. §
51.095(b)(1). Thus, the statute allows the
admission of a voluntary oral statement by a juvenile that is not the product of
custodial interrogation.
Id. §
51.095(b)(1), (d);
Martinez,
131 S.W.3d at 32.
In this case, the only evidence presented in support
of the motion to suppress was Stevens's testimony. After considering this
evidence, the trial court stated, I am going to rule the child was in custody.
Just for the record, the child was in custody, but I am going to rule he was not
being interrogated while in custody of the officer. So his statement and the
items that were turned over to the officer are admissible. We will uphold the
trial court's ruling if it was correct under any theory of law applicable to the
case, even if the trial court gave the wrong reason for its ruling. See
Armendariz,
123 S.W.3d at 404; Ross,
32 S.W.3d at 856.
Custodial interrogation is questioning initiated by
law enforcement after a person has been taken into custody or otherwise deprived
of his freedom in any significant way.
Cannon v. State,
691 S.W.2d 664, 671 (Tex.Crim.App.1985). A
child is under interrogation if he is subjected to direct questioning or its
functional equivalent, which occurs when police officers engage in conduct that
they know is likely to elicit an incriminating response from the defendant.
Lam v. State,
25 S.W.3d 233, 239 (Tex.App.-San Antonio 2000, no pet.).
A child is in custody if, under the objective circumstances, a reasonable child
of the same age would believe his freedom of movement was restrained to the
degree associated with a formal arrest.
Martinez,
131 S.W.3d at 32; Jeffley
v. State, 38
S.W.3d 847, 855 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd).
In determining whether a child was in custody at the
time of questioning, courts consider the age of the juvenile and all of the
circumstances surrounding the interrogation to decide whether there was a formal
arrest or restraint of movement to the degree associated with formal arrest.
Martinez,
131 S.W.3d at 32; Jeffley,
38 S.W.3d at 855. We apply a two-step
analysis to determine whether an individual is in custody.
Martinez,
131 S.W .3d at 32; In the
Matter of M.R.R.,
2 S.W.3d 319, 323 (Tex.App.-San Antonio 1999, no pet.).
First, we examine all the circumstances surrounding the interrogation to
determine whether there was a formal arrest or restraint of freedom of movement
to the degree associated with a formal arrest. Martinez, 131 S.W.3dat32;
M.R.R.,
2 S.W.3d at 323. This initial
determination focuses on the objective circumstances of the interrogation, not
on the subjective views harbored by either the interrogating officer or the
individual being questioned.
Martinez,
131 S.W.3d at 32; M.R.R.,
2 S.W.3d at 323. [T]he restriction upon
freedom of movement must amount to the degree associated with an arrest as
opposed to an investigative detention.
Dowthitt v. State,
931 S.W.2d 244, 255 (Tex.Crim.App.1996).
Second, in light of those circumstances, we consider
whether a reasonable person would have felt free to terminate the interrogation
and leave.
Martinez,
131 S.W.3d at 32; M.R.R.,
2 S.W.3d at 323. Traditionally, courts
consider four factors in making this determination (1) whether probable cause to
arrest existed at the time of questioning; (2) the subjective intent of the
police; (3) the focus of the investigation; and (4) the subjective belief of the
defendant.
Dowthitt,
931 S.W.2d at 254. However, the subjective
intent of both the police and the defendant is irrelevant except to the extent
that the intent may be manifested in the words or actions of law enforcement
officials.
Martinez,
131 S.W.3d at 32; M.R.R.,
2 S.W.3d at 323. The custody determination
is based entirely upon objective circumstances.
Martinez,
131 S.W.3d at 32; M.R.R.,
2 S.W.3d at 323. Additionally, being the
focus of a criminal investigation does not amount to being in custody.
Meek v. State,
790 S.W.2d 618, 621-22 (Tex.Crim.App.1990).
When the circumstances show that the individual acts upon the invitation or
request of the police and there are no threats, express or implied, that he will
be forcibly taken, then that person is not in custody at that time.
Dancy v. State,
728 S.W.2d 772, 778 (Tex.Crim.App.1987)).
Applying the first part of the analysis, we examine
all the circumstances surrounding the questioning to determine whether there was
a restraint of freedom of movement to the degree associated with a formal
arrest. Here, upon initiating contact, the officers did not use the patrol car's
emergency lights, or pursue M.A.O. Instead, Stevens called out to M.A.O., who
responded to this request by walking over to Stevens. At this juncture, M.A.O.
was not patted down, handcuffed, or placed in the patrol car. When M.A.O. made
his oral statement, he was standing on a public street and was accompanied by
one of his friends. Based on all the circumstances surrounding the questioning,
we conclude M.A.O. was not under formal arrest or under a restraint of freedom
of movement to the degree associated with a formal arrest.
Turning to the second part of the analysis, we examine
whether a reasonable fifteen-year-old in the same situation as M.A.O. would have
felt free to terminate the interrogation and leave. In making this
determination, we evaluate the four traditional factors. First, we recognize
probable cause to arrest M.A.O. did not exist at the time of questioning.
Second, as to the subjective intent of police, we note that even though Stevens
stated he would not have allowed M.A.O. to walk away, nothing in the record
indicates Stevens objectively manifested such an intention through his words or
his actions. See
Jeffley,
38 S.W.3d at 854 (The subjective intent
of law enforcement officials to arrest is irrelevant unless that intent is
somehow communicated or otherwise manifested to the suspect.). Third, we
recognize that even though M.A.O. was the focus of a curfew violation
investigation, he would not have been taken into custody for such a violation.
Stevens testified that for a first violation, the curfew ordinance only
authorized him to issue a warning to the juvenile and report the incident to a
designated youth agency, which in turn contacted the juvenile's parent or
guardian. See SAN ANTONIO, TEX. MUNICIPAL CODE, ch. 21, art. V, § 21-124
(1991). Finally, we note that no evidence was presented as to M.A.O.'s
subjective beliefs. Our evaluation of the four traditional factors leads us to
conclude that a reasonable fifteen-year-old in the same situation as M.A.O.
would have felt free to terminate the questioning and leave.
Conclusion: Based on the totality of
circumstances, M.A.O. was not in custody when he made his oral statement.
Because M.A.O. was not in custody when he made his oral statement, the
requirement that a magistrate give him the warnings set forth in
Section 51.095(a)(1)(A) of the Texas
Family Code did not apply to him. See
In the Matter of R.A.,
No. 03-04-00483-CV, 2005 WL 1412119, at *3 (Tex.App.-Austin 2005, no pet.)
(denial of motion to suppress based on failure to give
Section 51.095
warnings was proper because custody is a precursor to the warning requirements
of
Section 51.095
and juvenile was not in custody). Accordingly, the trial court did not abuse its
discretion in denying the motion to suppress. We overrule the issue.