I respectfully dissent.
I do not read Hunter v. State, 955 S.W.2d 102 (Tex.Crim.App. 1997) as broadly as my colleagues. I findHunter distinguishable and would limit it to its particular facts.
In Hunter, a plain clothes police officer approached the defendant in a bus station and, after asking for the defendant's ticket and identification, asked to look inside thedefendant's bag. He told the defendant that compliance was not required; the defendant complied anyway.Id. at 103. The Court of Criminal Appeals held that the officer's actions did not constitute a "detention" because a reasonable person would have felt free to walk away from the officer at any time during the encounter. Id. at 104-105.
This case is quite different from Hunter because first the officer requested and received consent to search appellant's bag. Then, after the search of appellant's bag turned up empty, the officer asked for permission to perform a pat-down search of appellant. It is one thing to stop and request to search one's bags. However, it is quite another to "request" a person to be subjected to touching by a police officer, without more. By its very nature, a pat-down search is more invasive of appellant's rights than is a search of appellant's bags.
At the point of the second request, I do not believe that a reasonable person would have felt free to leave once the officer "requested" permission to perform such a personal search. Therefore, I would not extend Hunter, without more, to apply to pat-down searches of a person's body. I would hold that appellant was "detained" when the officer asked appellant for permission to perform the pat-down search.
Accordingly, I would grant points of error one and two and reverse and remand the case.