1. Is the use of overhead emergency lights, combined with factors present in most if not all encounters, sufficient to seize the occupants of a parked vehicle?
2. If appellant was seized, was it reasonable?
Johnson was parked in a park-and-ride lot around midnight, when it was commonly used as overflow parking for a nearby bar. He was parked away from other cars. Officer Cox, who routinely sweeps the parking lot with his spotlight because of the various crimes committed there, saw there were two people in the car. He stopped ten to fifteen yards away, activated his overhead emergency lights, and approached. Once Johnson lowered his window, Cox smelled marijuana. Johnson was arrested and charged with possession. He lost his motion to suppress and was convicted.
The court of appeals reversed. It noted that the use of emergency lights are not sufficient to effect a seizure in every case—the concurrence disagreed—and that Johnson was not boxed in. But it concluded that Johnson was seized because: 1) Cox’s car was the only one near Johnson’s, 2) Cox twice shined a spotlight into Johnson’s car, 3) Cox stopped his marked car within ten to fifteen yards of Johnson’s car, and 4) Cox “approached the vehicle.” The court held that Cox had no reasonable suspicion because his testimony about the crime in that parking lot failed to specify the type of calls he responded to, their results, and the number of times the various offenses he described were committed there.
The State challenges both holdings. First, it asks the CCA to reaffirm that the use of overhead emergency lights does not automatically effectuate a seizure. Second, if that is still the case, the State argues that the court of appeals effectively ignored that rule because none of the other factors it cited matter. Nearly every encounter has an actor identified as law enforcement approaching the suspect, presumably from a nearby position. And there is no evidence that Cox’s spotlight was used other than during his preliminary sweep of the parking lot, prior to his approach. Third, and alternatively, the State argues that Cox’s decision to investigate was reasonable based on his testimony, deemed credible by the trial court, that the parking lot at that time of night was home to various criminal activities. The court of appeals’s requirement of statistics to support testimony based on an officer’s experience was rejected in Ramirez-Tamayo v. State, 537 S.W.3d 29 (Tex. Crim. App. 2017).