“The Court of Appeals erred when it determined that the interaction between the Appellant and Officers Sallee and Starks was at all times a consensual encounter. Although the encounter may have initially been consensual, the encounter quickly escalated into an investigative detention that was not supported by reasonable suspicion when the Appellant yielded to the officers’ show of authority before the first search.”
During a consensual encounter, Officer Sallee asked Monjaras if he had anything illegal and requested to search him; Monjaras stated he did not have anything illegal and began to empty his pockets. Sallee told him to hold on three times and eventually extended his arm toward Monjaras. Sallee asked for consent to search again, and Monjaras continued to empty his pockets. Sallee briefly placed his hand on the arm Monjaras used to remove items and then put his hand on Monjaras’ back. During this, Officer Starks moved toward Monjaras with his hands out and palms down, gesturing for Monjaras to copy him. Although the initial search yielded nothing, the officers ultimately discovered bullets in a backpack and a gun in Monjaras’ waistband when they searched him while his hands were on the patrol car. The trial court denied Monjaras’ motion to suppress.
A majority of the court of appeals held that the consensual encounter did not turn into a detention. It observed that Sallee’s request to search did not change the interaction’s nature. Monjaras removed items from his pocket, and Sallee did not touch him when he asked him to stop. The officers were trying to help Monjaras understand their request, and they did not exhibit a firearm, speak loudly, or tell Monjaras he could not leave. Further, the search conducted while Monjaras’ hands were on the patrol car did not transform the encounter into a detention.
The dissent concluded that a reasonable person would not have felt free to refuse Sallee’s final request to search. The officers’ statements, made while flanking Monjaras, about not emptying his pockets and how to place his hands were instructions coupled with physical gestures and touch.
Monjaras piggybacks on the dissent in his petition. He contends that he agreed to be searched after Sallee and Starks were next to him, Sallee directed him to stop removing items from his pocket and touched him twice, and Starks told him how to hold his hands. The subjective intent of the officers―to help Monjaras understand―was irrelevant. In the end, there was no way for Monjaras to break free or ignore the officers.