I must disagree with the opinion of the majority. Both the majority and the trial court below have missed the issue in this case: did the officer communicate a message that compliance was required? If the officer did, then the conversation was not consensual and defendant was illegally detained. If he did not, then the conversation was consensual and no detention occurred.
This case presents us with mixed questions of fact and law sode novo review is appropriate. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim App. 1997). In addition, since the mixed questions of law and fact turn on the evaluation of the credibility and demeanor of witnesses, we review the evidence in the light most favorable to the trial court's ruling and do not disturb on appeal any finding of fact supported by the record. Id.
When officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request to search his or her luggage, as long as the police do not convey amessage that compliance with their requests is required. Floridav. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387,115 L.Ed.2d 389 (1991). The crucial test is whether "taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Id. (emphasis added). The dispositive question is whether the officers conveyed a message to defendant that compliance with their request was required. Hunter v. State, 955 S.W.2d 102,105 (Tex.Crim.App. 1997).
We have filed by the trial court, findings of fact and conclusions of law from the suppression hearing. The trial court's first conclusion of law stated: "That the black bag which was searched by Officer Corley and Officer Ordaz was abandoned as a result of police activity." The court's second conclusion of law stated: "That officer Corley did not have probable cause to approach the defendant and engage him in conversation or to detain the bus to conduct his investigation."
In finding of fact number two, the court found: "Officer Corley is a credible witness, and the Court accepts as true his testimony regarding his observations of the defendant and hisconversation with the defendant." (Emphasis added.) In finding of fact number three, the court found: "the defendant engaged in aconsensual conversation with Officer Corley while on the bus." (emphasis added.) Clearly, the trial court believed Officer Corley, and, more importantly, found that the conversation between Corley and defendant was consensual. Irrespective of the trial court's legal conclusion that police activity was involved, if the conversation was consensual, whether the officers had probable cause or reasonable suspicion to detain the bus or not does not matter; defendant was not detained and the abandonment of the bag was not tainted by an illegal detention.
In reviewing the trial court's unambiguous finding that the conversation was consensual, the majority declares that what the trial court really meant to say was that the conversation started off as consensual and became an unlawful detention. Asserting that it is considering the totality of circumstances surrounding the encounter, the majority *Page 78 decides the trial court could have reasonably concluded that the officers' conduct communicated to defendant that he was not at liberty to ignore the officers' presence and go about his business. In effect, the majority finds that the conversation was not consensual.
Then, in proceeding with its own analysis, the majority implicitly seems to rely on these facts: (1) that the encounter occurred on a "cramped bus"; (2) that the bus driver, knowing the officers were on board, apparently did not leave on time; (3) that defendant was not picked at random, (unlike in Bostick); (4) the officers boarded the bus immediately after the defendant; (5) the officers pulled the bus door closed after they entered; (6) defendant claimed Corley told him he had reason to believe defendant was carrying narcotics; and (7) Corley gave no indication that defendant was not required to cooperate.
Bearing in mind that what must be decided is whether or not the officer conveyed a message that compliance was required, I respectfully note some important circumstances not mentioned by the majority except in the recitation of the facts. First, and perhaps most important, Officer Corley testified that he showed defendant his badge, identified himself as a police officer, andasked defendant if he could talk to him. Defendant replied, "Sure." Then when Corley asked his destination, defendant responded, "Corpus Christi." When Corley asked if he could see defendant's ticket, defendant responded affirmatively, gave Corley his ticket and said, "Well, I'm actually going to Victoria." Corley then returned the ticket. In response to Corley's request, defendant gave Corley his driver's license. Corley then gave the driver's license back to defendant. Corleyasked defendant if he was going to Victoria on business, and defendant said he lived there. Corley asked defendant how long he had been in Houston, and defendant said he had been there for several days. Other circumstances worth noting are that the officers were not in uniform. Their weapons were not visible to defendant, and Officer Ordaz sat down in a seat a couple of rows in front of defendant, rather than adding his presence to Corely's near the defendant.
The totality of the circumstances shows that the conversation was consensual. It is true that the bus was cramped,1 that Corley may have told defendant that he had reason to believe he was carrying narcotics, that the bus did not leave on time, that the door was closed, and that the two officers boarded immediately after defendant. However, these facts do not outweigh defendant's apparently consensual answer of "sure" and cooperative responses to all of Corely's questions, as well as the fact that the officers were in plain clothes, that their guns were not visible, that only one of them approached defendant, that they did not confiscate defendant's ticket or identification, and they did not move him to another location.
Even if we accept as true defendant's claim that Corely at some point told him he had reason to believe he had narcotics, there does not seem to be any message here that defendant had no choice but to comply. In fact, Corely's communications were generally in the form of requests, and defendant appeared to be happy to cooperate.
Finally, as to the majority's concern that Corley gave no indication that defendant was not required to cooperate, Corley all but indicated that defendant was not required to cooperate. He did nothing but ask or request, and he never resorted to his authority by telling or ordering defendant to do something or threatening him. See, e.g., Mitchell v. State, 831 S.W.2d 829,832 33 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (defendant was detained where after police request *Page 79 to search bag, defendant asked if he had a privacy right, and officer said he could use a narcotics dog instead). The majority seems to be saying that an officer cannot just ask if he can speak to a person; first, he must warn the person that even though he is only asking, the person has a legal right to refuse. I do not think the law requires that warning.
The trial judge's finding of fact that the conversation was consensual was correct, but the conclusion of law that the bag was searched as a result of police activity was error. Unless an officer's request to speak with someone is a detention, defendant in this case was not detained. The bag was legally searched because it was abandoned. I would reverse.