Page 43 - TPA Journal May June 2024
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“It’s a question. Hold on. Talk to me.” Appellant than a consensual encounter. A divided First
continued to remove items from his pocket and Court of Appeals found the encounter to be
said, “But I-I-I know. You said— you said you consensual and upheld the trial court’s ruling.
wanted to search me.” With his hand on Because the appellate court found that the
Appellant’s back, Officer Sallee responded, encounter was consensual, the majority did not
“No, no, no, you’re not understanding what I’m reach the issue of whether reasonable suspicion
saying.” Meanwhile, Officer Starks took two existed. Justice Goodman dissented, arguing
steps toward Appellant, extended both hands that while the initial encounter between
outwards with his palms facedown and Appellant and law enforcement was
instructed Appellant “manos, manos.” Officer consensual, the encounter escalated into an
Sallee then, more insistently, repeated, “May I investigative detention before Officer Sallee’s
search you? May I go into your pockets and search of Appellant because “[w]hen Monjaras
search you?” Neither officer informed Appellant hesitated to consent, the officers detained him
that he did not have to consent. After pausing, by compelling his compliance through a show
Appellant responded, “Yeah.” Officer Sallee of their official authority, which included
then instructed, “Okay, slide your hands on the instructing Monjaras as to how he was to
car for me, please.” behave, flanking him, intruding into his
personal space, and touching his person.” We
Appellant complied. Officer Sallee proceeded granted Appellant’s petition for discretionary
to search Appellant’s person but did not find review to determine whether the court of
anything. He searched Appellant’s bag and appeals erred in finding that Appellant’s
found bullets. After discovering the bullets, interaction with the officers was a consensual
Officer Sallee searched Appellant again and encounter.
found a pistol under Appellant’s groin. A
struggle ensued between Officer Sallee and This Court applies a bifurcated standard of
Appellant. Officer Starks, believing that review when evaluating a trial court’s ruling
Appellant was going for his gun, subdued on a motion to suppress. We afford almost total
Appellant with a taser. Appellant was arrested deference to a trial court’s determination of
and charged with unlawful possession of a historical facts if supported by the record,
firearm by a felon. Appellant filed a motion to especially when the factfinding is based on an
suppress the evidence seized by law evaluation of credibility and demeanor.
enforcement in connection with his detention However, we conduct a de novo review when
and arrest. At the motion to suppress hearing, reviewing a trial court’s application of law to
both officers maintained that Appellant was free facts that do not depend on credibility and
to leave prior to the search and that they would demeanor.
not have chased him. The trial court denied
Appellant’s motion without making written “We view the record in the light most favorable
findings of fact. Appellant subsequently pled to the trial court’s ruling and uphold the ruling
guilty; however, he maintained his right to if it is supported by the record and is correct
appeal the trial court’s denial of his motion to under any theory of the law applicable to the
suppress. case.” However, if evidence is conclusive, such
as indisputable video evidence, we may
On appeal, Appellant claimed that the trial disregard any trial court findings inconsistent
court erred in denying the motion to suppress with the conclusive evidence.
because the encounter was an investigative
detention without reasonable suspicion—rather We review de novo a trial court’s application of
May/June 2024 www.texaspoliceassociation.com • (512) 458-3140 39
