Opinion
NO. 02-15-00142-CR
04-28-2016
CAROL HOSEY APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2014-0621-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Carol Hosey was convicted of driving while intoxicated, enhanced by two prior convictions of driving while intoxicated. Tex. Penal Code Ann. §§ 49.04, 49.09(b) (West Supp. 2015). In one issue, Hosey appeals the trial court's denial of her motion to suppress. We affirm.
Background
While on patrol in the parking lot of a bar on the evening of September 22, 2012, Carrollton Police Officer Danny Witt's license-plate reader activated. Designed to automatically read and check license plates of nearby vehicles, the reader indicated that a silver Mercedes-Benz with license-plate number BV5G242 was a stolen vehicle. Officer Witt's subsequent manual entry of the license-plate number into his computer system confirmed the "hit"—the Mercedes-Benz had been reported stolen from Farmers Branch, Texas.
At that point, Officer Witt contacted Sergeant Andrew Horn, who arrived at the scene to assist him, followed by Officer Chantel James, who was also dispatched to respond. While the Carrollton Police Department continued in its attempt to verify the current status of the vehicle with the Farmers Branch Police Department—a process Sergeant Horn testified could take "a decent amount of time"—the officers decided that Officer Witt would maintain surveillance of the vehicle from an unmarked police car across the street while the other officers waited nearby in a marked unit.
Approximately an hour later, between 12:45 and 1:30 a.m., Officer Witt saw two women leave the bar, get into the Mercedes, and drive out of the parking lot. Officer Witt then notified Sergeant Horn and Officer James that the vehicle was moving, and all three officers began to follow it.
Eventually the officers initiated a traffic stop. Because a potentially stolen vehicle was involved, the stop was considered "high-risk," and the officers approached the vehicle with their guns drawn. The officers first directed Hosey, the driver, to get out of the vehicle. According to Officer Witt, Hosey initially exhibited some difficulty in following their instructions. Nevertheless, she ultimately complied, and the officers handcuffed her and put her in the back of the patrol car. Hosey's passenger then exited the vehicle as instructed, and she also was handcuffed and placed in the backseat of the patrol car.
The officers then checked the Mercedes to determine whether anyone else was inside. Just as they were completing that task, the officers were notified by dispatch that the Mercedes was no longer stolen but had remained on the stolen-vehicle registry because the owner had forgotten to call the police to update the record when the vehicle's status changed. Officer Witt testified that less than ten minutes elapsed between the time the Mercedes had been pulled over and when Sergeant Horn returned to the patrol car to inform Hosey of the report from dispatch.
Sergeant Horn testified that as soon as he opened the back door to the patrol vehicle to apprise Hosey of the report from dispatch, he noticed that she had a "very strong" odor of alcohol. That, combined with Hosey's earlier failure to follow instructions and the fact that she had been observed leaving a bar at a time that was "generally associated with leaving said establishment after drinking," created, in Sergeant Horn's determination, reasonable suspicion to detain Hosey further in order to investigate a driving while intoxicated offense. At Sergeant Horn's direction, Officer Witt conducted field-sobriety tests, resulting in the arrest of Hosey for driving while intoxicated.
Hosey moved to suppress all evidence obtained by the State after the initial detention for a stolen vehicle ended. After her motion was denied, Hosey pleaded guilty to driving while intoxicated, third offense.
Discussion
While Hosey presents her argument as one issue, we divide it into two sub-issues for the purpose of discussion. First, Hosey argues that the trial court erred in denying the motion to suppress because the officers' continued detention of her was unreasonable once they determined that the Mercedes was not stolen. Second, Hosey argues that the officers' failure to testify to their experience and training demands that no deference be given to their testimony.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).
When, as here, the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007). We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment violation, the defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied, 558 U.S. 1093 (2009). A defendant satisfies this burden by establishing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of proof shifts to the State, which is then required to establish that the search or seizure conducted was reasonable. Id. at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An officer conducts a lawful temporary detention when he or she has reasonable suspicion to believe that an individual is violating the law. Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable suspicion exists when, based on the totality of the circumstances, the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists. Id.
An investigative detention must be temporary, and the questioning must last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325 (1983); Balentine v. State, 71 S.W.3d 763, 770-71 (Tex. Crim. App. 2002); Davisv. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). And once the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition for unrelated criminal activity." Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.Ct. 417, 422 (1996) (Ginsburg, J., concurring)).
However, if an officer develops reasonable suspicion during a valid traffic stop and detention that the detainee is engaged in criminal activity, prolonged or continued detention is justified. See Davis, 947 S.W.2d at 244; Haas v. State, 172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref'd); seealso United States v. Brigham, 382 F.3d 500, 510-11 (5th Cir. 2004); McQuarters v. State, 58 S.W.3d 250, 256 (Tex. App.—Fort Worth 2001, pet. ref'd). Additional facts and information discovered by an officer during a lawful detention may form the basis for reasonable suspicion that another offense has been or is being committed. Haas, 172 S.W.3d at 52.
Relying on the recent case of Rodriguez v. United States, Hosey argues that the officers should have released her as soon as dispatch informed them that the car was no longer stolen. Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015). We believe the facts present in Rodriguez are wholly distinguishable from the facts in this case. In Rodriguez, after initiating a traffic stop for driving on the shoulder of a highway, issuing a written warning to the driver, and returning the driver's license, registration, and proof of insurance to him, the police officer sought permission from the defendant to walk his police dog around the vehicle. Id. at 1613. When the driver refused permission, the officer instructed him to get out of the vehicle. Id. After waiting for a second officer to arrive at the scene, the dog performed a sniff test and alerted to the presence of drugs, and a subsequent search of the vehicle revealed methamphetamine. Id. In Rodriguez, at least seven minutes had passed between the time the officer issued the warning and the time the dog indicated the presence of drugs. Id. The Supreme Court held that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures" and remanded the case to the court of appeals to consider whether reasonable suspicion existed to support the dog sniff independent of the initial traffic violation. Id. at 1612, 1615.
Relying on Rodriguez, Hosey argues that because ten minutes passed before "any indication of alcohol consumption manifested itself," the subsequent driving while intoxicated investigation violated her Fourth Amendment protection against unreasonable search and seizure. Even assuming that Rodriguez imposed a strict eight-minute time restriction beyond which no officer in any circumstance would be permitted to go without running afoul of the Constitution, the ten-minute time period Hosey points to would not be the relevant period for calculation. In Rodriguez, at least seven minutes elapsed between the officer having no further reason to detain the driver and the establishment of reasonable suspicion, by virtue of the dog's reaction, that drugs were present in the vehicle. Id. at 1613. The ten-minute period Hosey points to occurred from the time the vehicle was pulled over until the driving while intoxication investigation began. During most of that ten-minute period, the officers were still awaiting confirmation of the stolen vehicle report as they removed Hosey and her passenger from the vehicle and searched the vehicle for other occupants. Here, for the purpose of analysis under Rodriguez, the relevant time period is how much time passed between the officers having received confirmation that the vehicle was not stolen—the point in time where there was no longer probable cause to detain Hosey—and the time Sergeant Horn smelled the odor of alcohol—the time when reasonable suspicion for driving while intoxicated was established.
Officer Witt was asked, "[F]rom the time frame of you pulling the suspect vehicle over until you discovering that the car was, in fact, not stolen but then also discovering the signs of intoxication, how much time roughly do you think passed?" Officer Witt answered, "To discovering the signs of intoxication? Under ten minutes." --------
The evidence in this case indicates that these two events occurred relatively contemporaneously. Sergeant Horn testified that the no-longer-stolen report from dispatch occurred after the vehicle was pulled over, after Hosey and her passenger had been placed into the backseat of the patrol vehicle, and as the officers were checking the Mercedes for additional occupants. Sergeant Horn's testimony regarding the timeframe is confirmed by the video of the incident recorded from the dashboard of the patrol car and admitted into evidence by the State. At that point, Sergeant Horn returned to the patrol vehicle and opened the back door to impart this information to Hosey, whereupon he immediately smelled the alcohol.
Other testimony established much the same general time frame, but to the extent that Sergeant Horn's testimony conflicts with any other time estimates, any conflicts or determinations of credibility of the officers' testimony were for the trial court to resolve and we must defer to the trial court's determination. State v. Stevens, 235 S.W.3d 736, 739-40 (Tex. Crim. App. 2007).
The facts of this case more closely resemble the facts presented in Richardson v. State, 402 S.W.3d 272 (Tex. App.—Fort Worth 2013, pet. ref'd), than those in Rodriguez. In Richardson, a state trooper stopped a driver for his failure to drive in a single lane and issued a warning to the driver. Id. Contemporaneously with returning the written warning and the driver's license to the defendant, the trooper noticed the smell of breath mints and at that point decided to conduct a driving while intoxicated investigation. Id. at 275. This court held that the smell of breath mints, combined with the trooper's previous observations of the driver weaving in and out of traffic lanes, the car being parked very close to the white line, the presence of an empty pill bottle inside the vehicle, the defendant's nervousness, the mild odor of alcohol, and the passengers' denial of alcohol use were sufficient to provide the trooper with reasonable suspicion of intoxication. Id. at 277.
Sergeant Horn testified that Hosey had a "very strong" smell of alcohol that "hit [him] as soon as [he] opened the door" to the patrol car to speak to Hosey about the call from dispatch reporting that the car was not currently stolen. Of course, the smell of alcohol may be indicative of intoxication. See, e.g., Cotton v. State, 686 S.W.2d 140, 142-43 (Tex. Crim. App. 1985) (holding evidence of intoxication may include the odor of alcohol on one's breath or body, bloodshot eyes, slurred speech, unsteady balance, and a staggered gait); Burkett v. State, 179 S.W.3d 18, 26 (Tex. App.—San Antonio 2005, no pet.) (holding evidence sufficient to support driving while intoxicated conviction where three police officers smelled "a strong odor of alcohol" and none of appellant's physical impairments could have caused him to smell like alcohol although they could have affected performance on sobriety tests). Like the officer in Richardson, Sergeant Horn determined that the odor of alcohol, combined with the facts he already knew—the time and location of the stop and Hosey's difficulty following instructions—presented reasonable suspicion of driving while intoxicated to justify further investigation. This is not similar to the situation in Rodriguez, where the continued detainment for seven or eight minutes was based on a "large hunch." Rodriguez, 135 S. Ct. at 1613. We therefore disagree with Hosey's argument that the officers' continued detention of her for the purpose of investigating a driving while intoxicated offense was unreasonable, and we overrule her argument on this basis.
Hosey next argues that the absence of evidence as to Officer Witt's and Sergeant Horn's training, qualifications, and experience is "crucial to the analysis" of what, if any, deference should be afforded to the officers' opinions and conclusions. Hosey argues that the lack of evidence of training, qualifications and experience mandates that the trial court give the officers' opinions and conclusions no deference. To support this position, Hosey relies upon Foster v. State, 326 S.W.3d 609, 610 (Tex. Crim. App. 2010). In Foster, a police detective was stopped at a red light a few blocks from Austin's Sixth Street bar district when a truck pulled up behind him and lurched forward more than once. In finding reasonable suspicion to detain the driver of the truck, the court of criminal appeals pointed to evidence of the detective's experience as a traffic patrol officer in the Sixth Street area and his consequent awareness that many people are impaired in that area late at night. Id. at 614. While the court did attach significance to the evidence of the officer's experience in reaching its holding, it did not hold that such evidence is necessary as a prerequisite to receiving an officer's testimony that time of day or location near a bar district are factors indicative of intoxication. Id.; see also Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 676 (2000) ("[T]he reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior.").
To the contrary, in the context of determining whether probable cause exists to issue a warrant, the court of criminal appeals has held that a court may infer that an "officer on patrol" has the experience of a typical "police officer in today's society." Davisv. State, 202 S.W.3d 149, 156-57 (Tex. Crim. App. 2006). In Davis, an officer stated in his affidavit in support of a warrant that he "could smell a strong chemical odor he has associated with the manufacture of methamphetamine," but he did not delineate his previous experience or credentials. Id. at 155-56. While the court of criminal appeals did acknowledge that the best practice would be to include information about an officer's experience and background in the affidavit, the court nevertheless held that it is not unreasonable to infer that as a police officer in "today's society" he had previously come into contact with a methamphetamine laboratory and could recognize the odor it emits. Id. at 157-158.
The lower standard of reasonable suspicion is derived from the probable cause standard. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997). And while it might be a better practice to include in the record testimony of an officer's relevant experience and training, the trial court could have inferred that Officer Witt and Sergeant Horn, as police officers with three-and-a-half and eight years of experience, respectively, had experience in identifying signs and circumstances that support reasonable suspicion of intoxication.
Officer Witt and Sergeant Horn observed Hosey leave a bar between 12:45 and 1:30 in the morning, and Sergeant Horn testified that this is "prime time" for drinking, noting that bars stop serving alcohol at 2:00 a.m. and close at 2:15 a.m. This, combined with the additional factors of Hosey's difficulty following directions during the initial stop and the "very strong" smell of alcohol on Hosey, permit rational inferences leading to reasonable suspicion that Hosey was intoxicated. See, e.g., id. Therefore, we hold that based upon the evidence before it, the trial court did not err by concluding that reasonable suspicion existed to justify the continued detention of Hosey beyond the original investigation into the stolen vehicle or by denying the motion to suppress. We overrule Hosey's sole issue.
Conclusion
Having overruled Hosey's sole issue, we affirm the judgment of the trial court. See Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: LIVINGSTON, C.J.; GABREIL, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 28, 2016