Appellees were each charged with the offense of possession with intent to deliver. Appellees' pretrial motion to suppress was granted by the trial court and the State appealed. The Thirteenth Court of Appeals affirmed. State v. Larue, 6 S.W.3d 671 (Tex. App.--Corpus Christi 1999). We granted the State's petition for discretionary review to determine whether the appellate court erred in affirming the trial court's suppression of evidence allegedly obtained in violation of the Fourth Amendment to the United States Constitution.
I.
On November 5, 1997, Officer Louis Boldt was patrolling the Anna Blackley
government housing development in Victoria County. Boldt had been assigned to patrol
government housing for four years. Boldt encountered appellee Larue and, because he
was not familiar with Larue, asked for identification and ran a warrant check on him. (1)
When the check came back showing there were no warrants out on Larue, Boldt thanked
him and began walking back to his personal truck to continue patrolling the area. While returning to his truck, Boldt briefly encountered a second individual, later
identified as appellee Lusk, near a new white Chevrolet Cavalier convertible parked on
the street. Not recognizing the car, Boldt decided to run a license plate check. Boldt
drove his truck down the block and waited for the check to be completed. While waiting,
Boldt observed Lusk and Larue get into the car along with two women and an infant. The license check reflected that the car, which had Texas license plates, was
registered to a Florida rental car company. Boldt decided to speak with appellees about
the status of the car. Boldt drove his truck back down the street and parked behind the
car, which had the ignition on but had not yet been moved. Boldt got out of his truck and
began walking toward the car, at which time Lusk got out of his car and approached
Boldt. Lusk informed Boldt that he did not have a driver's license with him, nor did he
have a rental contract for the car. Lusk gave Boldt what he said was his driver's license
number, identified himself as Sammy Johnson and gave his date of birth. Boldt ran the
driver's license number and found that it did not belong to Sammy Johnson, but was the
number of an entirely different individual. In addition, when Boldt ran the name Sammy
Johnson and the date of birth, he found no record of any such person. Lusk told Boldt that the car was a rental but that he did not know whether or not
his name was on the rental contract as a permitted driver. Lusk explained that his brother
had rented the car in Florida and then driven to Texas, at which time his brother had
allowed Lusk to drive the car for the days remaining on the contract. Boldt decided to
contact the rental car company to determine whether Lusk was authorized to have the car. Boldt had the dispatcher call the rental company and inquire as to whether Sammy
Johnson was listed on the contract as a driver. The rental company responded that the
credit card used to rent the car had been declined, the car was nine days overdue for
return and the company had placed a "repo" on the car and wanted Boldt to take
possession of it. Boldt informed appellees of these facts, stated that he would be
impounding the car, and asked for the keys. Boldt asked appellees if there was any personal property in the car which they
wanted returned to them before the car was impounded. Lusk replied that some of his
personal property was in the passenger compartment of the car. While emptying the
passenger compartment of Lusk's personal property, Boldt discovered some papers
indicating that Lusk, who had identified himself as Sammy Johnson, was actually
Sammey Ray Lusk. Appellees then told Boldt that there was additional personal property, belonging to
both of them, in the trunk of the car. Boldt opened the trunk to give appellees the
remaining personal items and discovered plastic bags containing what appeared to be a
number of rocks of crack cocaine. Appellees argued in a pretrial motion to suppress that Boldt detained them when
he parked his truck directly behind their car. Appellees further argued that Boldt did not,
at that time, have the requisite objective facts to justify such a detention, and therefore,
the crack cocaine found in the trunk of the car should be suppressed. The trial court
ultimately granted the motion to suppress, stating that Boldt "had no lawful authority,
based upon the evidence as presented, to impound the vehicle". (2) The State appealed the trial court's decision, arguing that Boldt had evidence of a
number of potential crimes being committed by appellees involving the rental car and that
this evidence provided him with sufficient probable cause to seize the vehicle. The Court of Appeals upheld the trial court's decision to suppress the evidence.
Larue, 6 S.W.3d at 674. The court looked to Penal Code section 31.04, "Theft of
Service", to determine whether the seizure was justifiable. Texas Penal Code section
31.04 states that: (b) For purposes of this section, intent to avoid payment is presumed if: After setting out the above subsections of section 31.04, subsection (c) (3) and subsection
(f) (4), which more specifically pertain to the notice requirement of subsection (b)(2), the
Court of Appeals held: The record shows that the car was only nine days overdue when the
officer took possession of it. The record does not show that notice was
given in accordance with subsection (c), above, nor does it show
compliance with subsection (f)...We hold that the trial judge was correct in
granting the motion to suppress. We deny the relief sought by the State
herein. Larue, 6 S.W.3d at 674. (5) II. We granted the State's petition for discretionary review to determine whether the
Court of Appeals erred in holding that the officer could not have had probable cause to
believe the rental car was stolen unless he also had probable cause to believe the
conditions supporting the presumption under section 31.04(b)(2) were met. The section 31.04(b)(2) presumption provides a short-hand way to prove Theft of
Service where notice has been given and the requisite number of days have passed
following receipt of the notice. But Theft of Service may also be proven by other
evidence that simply meets the elements of the crime as defined in section 31.04(a)(3).
Nothing in the plain language of the two sections renders section 31.04(b)(2) a
prerequisite to establishing the elements of the offense under section 31.04(a)(3). (6) To the
extent the Court of Appeals' opinion can be read to require that the section 31.04(b)(2)
presumption be met in order to prove an offense under section 31.04(a)(3), it erred in so
holding. We hold that failure to meet the presumption does not mean that Theft of
Service is not or cannot be proven. (7) The State in the instant case did not rely on the section 31.04(b)(2) presumption to
establish legal justification for Boldt's seizure of the car. In both the trial court and the
Court of Appeals, the State argued that Boldt had the requisite reasonable suspicion to
believe an offense was committed, based on evidence apart from the presumption. The
State maintained that when Boldt parked behind appellees' car, the interaction that
ensued was a mere encounter, thereby requiring no justification on the part of the officer. (8)
The State then argued that by the time the encounter became an investigative detention,
after Boldt and Lusk spoke, Boldt had reasonable suspicion to believe that the car, and
possibly Lusk himself, were connected to some criminal activity. The Court of Appeals did not address whether Boldt had reasonable suspicion or
probable cause to believe an offense had occurred apart from evidence concerning the
presumption, even though the State presented these arguments. Accordingly, we vacate
the judgment of the Court of Appeals and remand to that court to address the State's
arguments concerning the question of the officer's legal justification for seizing the car,
apart from any issue as to the presumption under section 31.04(b)(2). Delivered - October 4, 2000 Publish
1. During the Motion to Suppress hearing, Officer Boldt explained that maintaining a safe
environment within the government housing units is an essential part of his job. Boldt asserted
that in order to perform this job, he must know all of the residents of Anna Blackley, any regular
visitors to the property and everything that happens in the area. Boldt explained that he relies on
conversation with the residents as well as observation to keep himself informed as to what goes
on at the Anna Blackley addition. 2. Initially, the trial court denied appellees' motion to suppress. Appellees were granted a
rehearing on the motion to suppress and presented new evidence of the police dispatch recording,
in an attempt to bolster their claim that Boldt was performing a traffic stop when he parked
behind appellees' car. After the rehearing, the trial court asked all parties to submit letter briefs
addressing whether Boldt had the requisite legal justification to seize the car when he did. After
examining the aforementioned evidence, the trial court suppressed the cocaine found in the trunk
of appellees' car.
3. Texas Penal Code section 31.04(c) reads:
For purposes of Subsection (b)(2), notice shall be notice in writing, sent by registered or
certified mail with return receipt requested or by telegram with report of delivery requested, and
addressed to the actor at his address shown on the rental agreement.
4. Texas Penal Code section 31.04(f) reads:
Notwithstanding any other provision of this code, any police or other report of stolen
vehicles by a political subdivision of this state shall include on the report any rental vehicles whose
renters have been shown to such reporting agency to be in violation of Subsection (b)(2) and shall
indicate that the renting agency has complied with the notice requirements demanding return as
provided in this section.
5. The Court of Appeals also noted the State bears the burden of showing that a warrantless
search falls within a recognized exception to the requirement for a search warrant. 6. The elements of an offense under section 31.04(a)(3) are (1) the actor has control of
property under a written contract; (2) the actor holds the property beyond the expiration of the
rental period without the effective consent of the owner; and (3) the actor's holding of the
property deprives the owner of the property of its use and further rentals.
7. Specifically for purposes of the instant case, failure to have probable cause or reasonable
suspicion to believe that the section 31.04(b)(2) presumption is met does not preclude the
existence of the requisite level of suspicion to believe an offense has been committed under
section 31.04(a)(3).
8. "There are three recognized categories of interaction between the police and citizens:
encounters, investigative detentions and arrests."