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impermissible. Additionally, the officers’ into a seizure (or investigative detention)
subjective intent at the time of the interaction is implicating the Fourth Amendment.
not part of our detention analysis; it is irrelevant
why the officers were following Appellant. In finding that Appellant’s interaction with law
enforcement was a consensual encounter that
Further, in applying the Castleberry and did not escalate into an investigative detention,
Mendenhall factors, we note that the officers the court of appeals noted that Officers Sallee
approached Appellant around midday in a and Starks approached Appellant in the middle
public location using a tone that was not overtly of the day, did not turn on their overhead lights
hostile. Appellant was outnumbered as he was or siren, “did not block appellant’s path with
alone, and two officers were present, but Officer their patrol car”; did not exhibit their weapons
Starks limited his proximity to Appellant when prior to finding Appellant’s firearm; and did not
the officers initially made contact—at one point indicate “to appellant that he was not free to
walking away entirely. Besides a brief leave” or that he was required to comply. The
handshake, the officers did not initially touch appellate court also stated that Appellant
Appellant or speak to him in a manner willingly listened to and voluntarily answered
indicating that compliance was required. the officers’ questions. Regarding the search,
Officer Sallee asked Appellant to provide the court of appeals noted that “[t]o clarify that
identifying information, and Appellant Sallee only wanted to know if he could search
complied without hesitation. Looking at the appellant, Sallee and Officer Starks asked
totality of the circumstances, we see officers appellant to stop taking items out of his
who approached a citizen in a public place and pockets” and that the “officers were trying to
questioned him for a short period of time help appellant understand what Sallee meant
regarding basic information. This interaction when he asked appellant for his consent to
would arguably make an objectively reasonable search him.” The appellate court also correctly
person uncomfortable; however, this alone is notes that Officer Starks did not touch
not enough under our law to evidence more Appellant.
than a consensual encounter.
While the court of appeals is correct on some of
“[T]he Constitution does not guarantee freedom these points, its argument that the encounter
from discomfort.” Appellant’s initial encounter did not escalate to a detention fails because the
with Officer Sallee and Officer Starks was majority’s analysis undertook “a piecemeal or
consensual. However, this is not dispositive. In ‘divide and conquer’ approach” instead of
conducting the required totality-of-the- viewing the totality of the circumstances—as a
circumstances analysis, we must analyze the reviewing court is required to do. The appellate
rest of the interaction in the context of this initial court’s analysis relies on snippets of Appellant’s
approach to determine whether the consensual interaction with the officers—primarily focusing
encounter escalated into an investigative on the officer’s initial contact with Appellant—
detention. rather than looking at the interaction in its
entirety. Further, the court of appeals erred in
If a citizen’s initial encounter with law placing import on the subjective intent of the
enforcement is consensual, but an officer’s officers instead of viewing the circumstances
official display of authority or show of force from the perspective of an objectively
indicates that ignoring the officer’s request or reasonable person in Appellant’s
terminating the encounter is no longer an circumstances.
option, the consensual encounter has escalated
May/June 2024 www.texaspoliceassociation.com • (512) 458-3140 41
