COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MARY ISABEL RUIZ,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee.

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No. 08-19-00181-CR

Appeal from the

County Criminal Court #4

of El Paso County, Texas 

(TC#20160C07963)

O P I N I O N

A jury found Mary Isabel Ruiz guilty of driving while intoxicated, and the court assessed 

punishment at 20 months of community supervision. In one issue on appeal, Ruiz challenges the 

trial court’s denial of her in-trial motion to suppress evidence, contending that she was the subject 

of a citizen’s arrest by security personnel which amounted to a prolonged detention in violation of 

the federal and state constitutions. We will affirm.

BACKGROUND

Ruiz was driving towards the Speaking Rock Casino at approximately 2:30 a.m. when she 

rubbed tires with an oncoming car. Ruiz did not stop out on the road, but continued on to the casino 

employee parking lot and drove to the guard shack. She was closely followed by the woman with 

whom she had rubbed tires, who shouted at Ruiz prompting the casino security guards to come 
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over and separate them. The woman told the security guards that Ruiz had hit her and that they 

should not let Ruiz leave. Ruiz testified that the security guards told her that “it was not a good 

idea” to leave and that “we should wait” for the police to arrive. Ruiz and the other driver then 

waited there for approximately an hour and a half before the police arrived. 

The responding police officers testified that they arrived at approximately 4 a.m. Ruiz was 

sitting in the driver’s seat of her vehicle with the engine running, and while the police officers saw 

security guards in the area, on foot and bicycle, no one appeared to be detaining Ruiz at the scene 

“in any way, shape, or form.” On interacting with Ruiz, one of the police officers noted signs of 

intoxication, conducted field sobriety tests on her, and arrested her for driving while intoxicated. 

Ruiz refused a breathalyzer test, and police subsequently obtained a blood sample pursuant to a 

warrant showing her blood alcohol content to be 0.147.

At trial, Ruiz moved to suppress the admission of any evidence obtained following what 

she purported to be an impermissibly long detention by the security guards in violation of her 

Fourth Amendment rights. After hearing the above-described evidence and arguments of counsel, 

the trial court denied Ruiz’s motion to suppress. Following her conviction, Ruiz filed this appeal 

challenging the trial court’s denial of her motion to suppress.

DISCUSSION

Appellant contends that the trial court erred in not granting her motion to suppress because 

the evidence obtained by police was the product of her unreasonably long detention by casino 

security officers, prior to the arrival of police, in violation of her rights under the Fourth 

Amendment. As such, this case turns largely on the nature of the time Ruiz spent while awaiting 

police —was this time spent waiting on police in the casino parking lot consensual, or was Ruiz 
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held without her consent by security guards acting as law enforcement, giving rise to the 

protections of the Fourth Amendment? 

Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated standard of 

review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App. 2013); Valtierra v. State, 310 

S.W.3d 442, 447-48 (Tex.Crim.App. 2010). We review the trial court’s factual findings for abuse 

of discretion but review the trial court’s application of law to the facts de novo. Turrubiate, 399 

S.W.3d at 150; Valtierra, 310 S.W.3d at 447. Where, as here, the trial court does not make explicit 

findings of fact, we infer the factual findings that support the trial court’s ruling if the record 

supports the implied fact-findings. State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.

2008); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). But the question of whether a 

given set of historical facts amount to a consensual police-citizen encounter or a detention under 

the Fourth Amendment is an issue of law that we review de novo. Garcia–Cantu, 253 S.W.3d at 

241. We will uphold the trial court’s ruling if it is reasonably supported by the record and correct 

under any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447–48; State v. Dixon, 

206 S.W.3d 587, 590 (Tex.Crim.App. 2006). 

Can Security Guards’ Actions Trigger the Fourth Amendment?

At the outset, we note that Ruiz’s allegations of unreasonable delay regarding the detention 

turn upon time she spent in the casino parking lot awaiting the arrival of police. Ruiz seems to 

argue that this time amounted to either an investigative detention or a citizens’ arrest by the casino 

security guards sufficient to invoke and violate her Fourth Amendment rights.
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Few Texas cases have discussed the types of searches and seizures conducted by private 

citizens that are illegal for purposes of the Texas exclusionary rule. Miles v. State, 241 S.W.3d 28 

(Tex.Crim.App. 2007). The Court of Criminal Appeals in Miles put forth a principle to explain the 

holdings consistent with the purpose of the Texas exclusionary rule in Article 38.23—that a private 

person standing in the shoes of a police officer can do what a police officer in those circumstances 

can legitimately do, but cannot do what a police officer cannot do. Id. at 39; TEX.CODE 

CRIM.PROC.ANN. art. 38.23(a). Under the exclusionary rule, this means no evidence obtained by 

an officer or other person in violation of law may be admitted against a defendant on the trial of 

any criminal case. Id. This applies to illegal searches or seizures conducted by law enforcement 

officers or other persons, even when those other persons are not acting in conjunction with, or at 

the request of, government officials. See Miles, 241 S.W.3d 28, 36; U.S. CONST. AMEND. IV. 

Miles also makes clear that the statutory authorization for both officers and citizens to arrest 

for an “offense against the public peace” codifies an “exigent circumstances” exception to the 

warrant requirement, and relevant to our inquiry here, includes the offense of DWI. Id. at 39-40. 

To the extent Ruiz argues that the security guards stood in the shoes of police to effect her detention 

or even arrest, our analysis does not turn on laws unique to citizens’ arrests or security guard 

actions. Rather, we view the actions of the security guards through the prism of the holding in 

Miles - that the actions of private citizens, when standing in the shoes of police, must be subjected 

to the same constitutional scrutiny as actions of the police. As such, to evaluate this case we apply 

the body of search and seizure law to the facts in the record before us, whether security guard or 

police, focusing on whether a reasonable person in Ruiz’s position would feel free to go about her 

business under the totality of the circumstances. See Florida v. Bostick, 501 U.S. 429, 434 (1991). 

Applicable Law of Search and Seizure
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Not every encounter between a citizen and law enforcement implicates the Fourth 

Amendment. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). There are three 

categories of interactions between police officers and citizens: encounters, investigative 

detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002). An encounter 

does not rise to the level of a seizure as it is a purely consensual interaction which a citizen may 

terminate at any time. Saldivar v. State, 209 S.W.3d 275, 281 (Tex.App.—Fort Worth 2006, no 

pet.). Encounters are consensual as long as the reasonable person would feel free to go about his 

business. Hunter, 955 S.W.2d at 104; see Bostick, 501 U.S. at 434; California v. Hodari D., 499 

U.S. 621 (1991). Temporary or investigative detentions and arrest, in contrast, rise to the level of 

a seizure and implicate the Fourth Amendment. Josey v. State, 981 S.W.2d 831, 838 (Tex.App.—

Houston [14th Dist.] 1998, pet. ref’d). 

In determining whether a seizure of the person has occurred for Fourth Amendment 

purposes, a court must consider the totality of the circumstances surrounding the encounter. 

Bostick, 501 U.S. at 439; Hunter, 955 S.W.2d at 104. 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 she was not at liberty to ignore the police presence and go 

about her business. Bostick, 501 U.S. at 439; State v. Velasquez, 994 S.W.2d 676, 679 

(Tex.Crim.App. 1999); Hunter, 955 S.W.2d at 104; Jackson v. State, 77 S.W.3d 921, 927 

(Tex.App.—Houston [14th Dist.] 2002, no pet.).

Application of the Law to This Record

Ruiz maintains that the casino security guards detained her without consent and that a 

reasonable person under the circumstances would not have believed she was free to leave. The 
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State argues that Ruiz’s encounter with casino security was consensual and thus did not trigger 

Fourth Amendment protections. 

Ruiz supports her contention by noting: (1) that the other driver called out to the casino 

security guards to not let Ruiz leave; (2) that Ruiz testified as to her belief that she “wasn’t able to 

leave;” (3) that for some unspecified time a security guard stood by Ruiz’s car door; (4) that 

security “made it clear to me that it was not a good idea, that we should wait for the police 

department;” and (4) that security “told me not to go ahead and leave until the police department 

got there.”

Because the trial court did not issue findings of fact or conclusions of law, we imply the 

fact-findings necessary to the trial court’s judgment that are supported by the evidence. State v. 

Kelly, 204 S.W.3d 808, 818–19 (Tex.Crim.App. 2006). Based on the record, we cannot conclude 

that Appellant met her initial burden for establishing that the time spent waiting for police was not 

a consensual encounter. See State v. Woodard, 341 S.W.3d 404, 413 (Tex.Crim.App. 2011). 

To the contrary, the record supports an implied finding by the trial court that the interaction 

was consensual. Viewing the evidence in the light most favorable to the trial court’s ruling, we 

conclude that the trial court could have determined that a reasonable person in Ruiz’s position 

would have believed that she was free to ignore the security guard’s suggestions, and thus, the 

interaction between Ruiz and casino security was a voluntary encounter rather than a detention or 

arrest implicating the Fourth Amendment. See Shepherd v. State, 273 S.W.3d 681, 684 

(Tex.Crim.App. 2008); Perez, 85 S.W.3d at 819 (explaining that in an encounter, a police officer 

may approach an individual in a public place, and request information if he is willing to listen). 

With conflicting testimony in the record, we must defer to the trial court’s implied findings 

of historical fact because they turn on an evaluation of the credibility of the witnesses. In denying 
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Ruiz’s motion to suppress, the trial court could have implicitly found that the security guards’ 

behavior was such that a reasonable person in the defendant’s position could have felt free to go 

about her business. See Bostick, 501 U.S. at 434. Ruiz and the other driver had drawn the guards’ 

attention to separate them in a scuffle, as opposed to the guards engaging Ruiz to investigate a 

crime. Although Ruiz testified that she “wasn’t able to leave,” she also said the security guards 

told her “that it was not a good idea, that we should wait for the police department” - language 

arguably more in the nature of suggestions than commands. The police officers arrived later to 

find Ruiz sitting in her car with the engine running, unattended by security guards - inconsistent 

with Ruiz’s argument that she was being detained by the casino guards. The police testified that 

they did not speak to the casino guards, take the case over from them, or see the guards detain Ruiz 

“in any way, shape, or form,” further supporting a finding that the guards’ role was not one of 

detaining Ruiz or investigating any crime. There is no evidence in the record that the security 

guards questioned Ruiz, investigated any crime, or made any effort to block her car from leaving. 

See Miles, 241 S.W.3d 28 (evidence of car being blocked or corralled from leaving supported 

finding of non-consensual detention). Nor is there evidence that the security guards used a tone of 

voice or other show of authority that would have tended to make a reasonable person feel they 

were not free to leave. On this record, giving the trial court’s holding almost total deference as we 

must, we cannot say that the trial court abused its discretion by denying Ruiz’s motion to suppress.

The trial court’s ruling on the motion to suppress is reasonably supported by this record, 

and we conclude that the court did not err in denying Ruiz’s motion to suppress.

CERTIFICATION OF RIGHT TO APPEAL

We note that the trial court has certified Appellant’s right to appeal in this case, however 

the defendant’s name is typed on the signature line of the receipt notification section of the 
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certification. It is unclear whether this was intended to be an electronic signature from the 

defendant or not. Because under the circumstances it is unclear whether the defendant received 

notice of her right to appeal, we order Appellant’s attorney, pursuant to TEX.R.APP.P. 48.4, to send 

Appellant a copy of this opinion and this Court’s judgment, to notify Appellant of her right to file 

a pro se petition for discretionary review, and to inform Appellant of the applicable deadlines. See

TEX.R.APP.P. 48.4, 68. The Court further ORDERS Appellant’s attorney to comply with all the 

requirements of Rule 48.4.

CONCLUSION

We overrule Appellant’s sole issue on appeal, affirm the trial court’s denial of the motion 

to suppress evidence, and affirm the district court’s judgment of conviction.

April 30, 2021

JEFF ROSE, Former Chief Justice, Third Court of Appeals

Before Palafox, J., Alley, J., and Rose, Former C.J.

Rose, Former C.J. (Sitting by Assignment)

(Do Not Publish)