No. 05-05-00907-CR
Opinion Filed May 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-85812-04. Reverse and Remand.
Before Justices MOSELEY, RICHTER and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Michael Lawrence Huschle was charged with the misdemeanor offense of driving while intoxicated. He filed a motion to suppress evidence of intoxication obtained after he was stopped. The trial court, sitting without a jury, carried the motion to suppress along with the trial and ultimately denied the motion. The court found Huschle guilty and sentenced him to 90 days' confinement and a $500 fine, suspended the imposition of confinement and placed Huschle on community supervision for 18 months. In his sole point of error, Huschle appeals the denial of his motion to suppress. For the reasons stated below, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Standard of Review
In this case, the facts are undisputed. Therefore, we apply a de novo review of the trial court's application of the law to the facts. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005); Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref'd). We will uphold the trial court's ruling on a motion to suppress if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Estrada, 154 S.W.3d at 607. Applicable Law
The Fourth Amendment protects people against unreasonable searches and seizures by requiring that searches and seizures be supported by probable cause. U.S. Const. amend. IV; Terry v. Ohio, 392 U.S. 1, 8-9 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997). However, a police officer may stop and briefly detain a person suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry, 392 U.S. at 29; Woods, 956 S.W.2d at 35; Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App. 1991). The initial burden of proof on a motion to suppress rests with the defendant to show the search occurred without a warrant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986), disapproved of on other grounds by Handy v. State, No. PD-1220-04, 2006 WL 93168 at *3 (Tex.Crim.App. Apr. 12, 2006). The burden then shifts to the State to show the reasonableness of the warrantless search. Id. at 10. To make an investigative stop reasonable, the officer must point to specific articulable facts which, taken together with rational inferences from those facts, support a reasonable suspicion the person detained is, has been, or is about to be engaged in criminal activity. See U.S. v. Hensley, 469 U.S. 221, 228-29 (1985); Woods, 956 S.W.2d at 38. These facts "must amount to something more than an inchoate and unparticularized suspicion or hunch." Terry, 392 U.S. at 21; Woods, 956 S.W.2d at 35. We take into consideration experienced police officers' perceptions; and we review their perceptions objectively, not subjectively. See U.S. v. Cortez, 449 U.S. 411, 419 (1981); Ford v. State, 158 S.W.3d 488, 492-94 (Tex.Crim.App. 2005). The totality of the circumstances must be taken into account in determining whether reasonable suspicion existed. Cortez, 449 U.S. at 418; Woods, 956 S.W.2d at 37. Conduct that is not criminal in itself may raise suspicion that illegal conduct is taking place if the conduct renders "the likelihood of criminal conduct greater than it would otherwise be." Crockett, 803 S.W.2d at 311. This conduct "must be of sufficient probative strength to support a reasonable suspicion of criminal misconduc" Id. Background
The testimony showed that on August 21, 2004, at approximately two o'clock in the morning, City of Plano Police Department Officer Eli Cuellar arrived at Toyota of Plano where he worked as an off-duty security officer. He was there to relieve another Plano police officer, Lieutenant Jeff Wise, who also worked as an off-duty security officer at the dealership. The two officers were standing next to their vehicles in a driveway off the access road between the Toyota dealership and the adjacent Lexus dealership when they heard screeching tires behind them. They turned and observed a truck skidding to a stop. Each officer testified about what he observed. We begin with Officer Wise's testimony: Q. Did you observe a black Dodge pickup truck around 2:00 o'clock?
A. Yes, I did.
Q. What happened for you to see that truck?
A. [Cuellar] and I were standing adjacent to Preston Road. There is an access drive that parallels Preston Road that allows vehicles to enter on to Park Place Lexus as well as to Toyota of Plano. Those two businesses sit side-by-side. My vehicle and his vehicle were pulled into the driveway just off the access road. We were standing next to the vehicles talking about what happened that day while I was there and what I had observed, and I was getting ready to leave when I heard tires squealing behind me. When I turned around I saw the black Dodge Ram sliding to a stop along that access road right in front of us.
Q. What did you do when you heard that truck?
A. Well, first I jumped because it startled me, then I turned around and observed the truck. At that point [Cuellar] immediately began to approach the driver's side to see what the problem was.
. . .
Q. And then once he stopped did he back up or do you remember?
A. Yes, sir, it appeared that he was attempting to put the car in reverse and back up.
. . .
Q. And was it-At what point in that chain of events did [Cuellar] approach the car?
A. As he was trying to put it in reverse.
Q. Was he already backing up?
A. No. When [Cuellar] first approached the vehicle it was still resting, but as he cleared the front of the vehicle you can see him moving the hand lever and the vehicle moved a little bit and [Cuellar] said, "stop, step out of the vehicle."
. . .
Q. You said he put it in reverse. How do you know that he put it in reverse?
A. Because the truck moved just a fraction of an amount.
Wise also testified the driving lanes on Preston Road and the access road were not separated by any type of barrier and it appeared the vehicle had moved into the access road thinking it was the access road to Highway 190. We next consider Cuellar's testimony about the events of that night: Q. Did you observe a black Dodge Ram pickup truck that evening or that morning?
A. Yes, I did.
Q. What was going on when you first saw that truck?
A. Well, essentially what brought my attention to it — to that vehicle was the sound of screeching wheels coming to a skid or stop.
Q. When you heard the screeching wheels were you able to immediately see the truck?
A. Yes, I did. I immediately turned to see where that sound was coming from and observed the black pickup truck headed right for me and for another officer that I was standing next to talking to.
. . .
Q. Where were you standing at the time?
A. I was standing in the southern most driveway or entrance or exit to the dealership. . . .
. . .
Q. When you say the truck almost hit you, what do you mean?
A. Well, the truck, as I first observed it, was skidding and still moving forward pretty much in our direction. As I recall he stopped just shy of actually striking the southern most curb of the driveway or in other words, just as he would have passed the property.
. . .
Q. What did you do then?
A. I immediately went to make contact with the driver, not knowing whether the person might have been injured, and just generally investigat[e] to find out why this person had come to a screeching halt there.
. . .
Q. But up to that point you haven't seen him do anything illegal by what I understand your testimony to be, he was just-had just found himself in the wrong place and tried to back up out of there?
A. That is correct.
Cuellar also testified he motioned to the driver to stop, but he continued to back up. Cuellar ordered him to stop and tapped on the driver's window to get his attention. At that point, Cuellar said Huschle "finally realized or seemed that he realized there was somebody there" and stopped the vehicle. Cuellar did not know whether Huschle was speeding and stated, "All I can testify to is the fact that he came to a screeching halt." After he made contact with Huschle, Cuellar suspected he was intoxicated and called for an on-duty officer. Officer Robin Lewis-Baker arrived and performed field sobriety tests. Huschle did not perform satisfactorily on the tests, and Lewis-Baker arrested him on suspicion of driving while intoxicated. In determining whether the officers had reasonable suspicion to stop Huschle, the trial court also considered the testimony of Lewis-Baker: A. I was called out on suspicion of DWI. [Wise and Cuellar] were working a side job and they called me out.
. . .
Q. What did you find out from the officers?
A. They stated that the vehicle had come to a screeching stop, almost hitting the curb where the access lane was, and that after they made contact with the subject they felt that he possibly was intoxicated, and then gave that to me as far as making contact with him to make my own observations.
. . .
Q. And without going through the entire discussion, is it fair to say in sum and substance they did not report any law violation that they had seen or reckless driving, but simply told you this car screeched to a stop and they went to see what was going on?
A. That would be correct.
Analysis
Huschle's argument on appeal is that the officers did not articulate specific facts known to them prior to the stop to give rise to a reasonable suspicion that he was (1) driving while intoxicated, (2) driving unsafely or recklessly, or (3) in need of assistance to justify a stop under the community caretaking function of the police. Here, it is undisputed the officers stopped Huschle without a warrant. Therefore, the State had the burden of proving the stop was reasonable under the totality of the circumstances. See Woods, 956 S.W.2d at 38. Driving While Intoxicated
Huschle argues the officers did not have reasonable suspicion he was driving while intoxicated until after they stopped him, relying on Bass v. State, 64 S.W.3d 646 (Tex.App.-Texarkana 2001, pet. ref'd) and Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.-Austin 1998, pet. ref'd). In Bass, the officer testified he observed a driver swerving within his lane and followed the car for about three miles. When he saw the car swerve into the next lane, he stopped the driver for failure to maintain a single lane. The officer did not offer any testimony that he subjectively believed the driver was intoxicated. Bass, 64 S.W.3d at 650. Nor did he provide testimony that, based on the objective circumstances of time, location, and vehicle movement, a reasonable officer would have suspected Bass was driving while intoxicated. Id. The court concluded the State failed to carry its burden to show articulable facts that reasonable suspicion existed that Bass was driving while intoxicated. Id. Hernandez is similar to Bass. Hernandez also was stopped for failing to maintain a single lane. The officer testified he stopped Hernandez because he was concerned about the driver's "well-being." Hernandez, 983 S.W.2d at 870. But he did not articulate facts that would give rise to a reasonable suspicion that Hernandez was driving while intoxicated. Id. at 870 (testimony driver moved approximately two feet into next lane one time not reasonable suspicion to stop for driving while intoxicated). As a result, the court concluded the State failed to prove the stop was legal. Id. at 870, 872. The State argues that the totality of the circumstances gave rise to reasonable suspicion Huschle was driving while intoxicated, citing Huschle's unsafe driving and attempt to flee, the time of day, and the officers' experience. We disagree. The officers testified the reasons for stopping Huschle were to see "what the problem was," "not knowing whether the person might have been injured" and "just generally investigat[e] to find out why this person had come to a screeching halt there." The officers did not testify that, based on their experience, the squealing tires and screeching to a halt would have caused a reasonable officer to suspect Huschle was driving while intoxicated at the time he was ordered to stop the vehicle. We must view the officers' perceptions objectively and, in this case, the officers did not articulate any specific facts about Huschle's driving or operation of the vehicle that would give rise to a reasonable suspicion that he might be intoxicated. Accordingly, we conclude the State failed to satisfy its burden of proving reasonable suspicion to stop Huschle for driving while intoxicated. Driving Unsafely or Recklessly
Huschle next argues the evidence does not support the stop under a theory of unsafe or reckless driving. The State argues Huschle's driving was "clearly unsafe." In support, the State cites cases concluding that erratic or unsafe driving can provide sufficient basis for reasonable suspicion to conduct a traffic stop. However, in those cases, the officers testified to specific facts that gave rise to the suspicion. See, e.g., James v. State, 102 S.W.3d 162, 172 (Tex.App.-Fort Worth 2003, pet. ref'd) (officer testified he believed driver's faculties impaired because driver entered highway from bar parking lot without signaling and failed to maintain single lane); Cook v. State, 63 S.W.3d 924, 929 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (suspicious activity included speeding, stopping at gas station for ten to fifteen seconds, driving "all over" unmarked roadway and "constantly crossing" over marked lanes); Blount v. State, 965 S.W.2d 53, 55 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (speeding in mall parking lot, jumping curbs, and crossing sidewalk and grassy median to evade police, and entering street without stopping). Here, the officers did not offer any testimony that Huschle's driving was unsafe. But even though there is no testimony Huschle violated a traffic law, the State argues it was 2:00 a.m., Huschle attempted to flee, and he almost struck two officers. The State argues these factors contributed to the officers' reasonable suspicion that Huschle's driving was consistent with criminal activity. We disagree. Viewing the officers' perceptions from an objective standpoint, Huschle had not violated any law at the time he was stopped. One explanation for Huschle's abrupt stop was that he mistakenly entered the access road and was attempting to back up. Additionally, neither officer testified to any specific, articulable facts which would have led a reasonable police officer to believe Huschle almost hit the officers. Although the officers testified the truck was "headed right" for them and "skidding and still moving forward pretty much in our direction," the evidence showed the officers were standing in the driveway next to their vehicles and Huschle was on the access road. And as soon as the officers heard the squealing tires, Cuellar immediately approached the vehicle. Although Wise testified at one point he was about four feet from the truck, neither officer testified he had to move out of the way of the vehicle or that he feared for his safety. And Lewis-Baker testified she was told Huschle almost hit the curb. Additionally, neither officer testified that Huschle attempted to flee the scene. In fact, Cuellar testified that when Huschle "finally realized there was somebody there," he stopped. We conclude the State failed to carry its burden to articulate specific facts giving rise to a reasonable suspicion to stop Huschle for driving unsafely or recklessly. Community Caretaking Function
Huschle also argues the officers did not articulate specific facts which would justify the stop based on the community caretaking function. We agree. A police "officer `may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.'" Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App. 2002) (quoting Wright v. State, 7 S.W.3d 148, 151 (Tex.Crim.App. 1999)). Although this point was not argued below, we will presume for purposes of this issue that Cuellar was "primarily motivated by community caretaking concerns" when he stopped Huschle. See id. at 276 (officer cannot justify stop based on community caretaking concerns if primary motivation for stop was for non-community caretaking purpose). Factors we consider in making a determination whether such a stop was reasonable include: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone or had access to assistance from someone other than the officer; and (4) whether the individual presented a danger to himself or others if not assisted. Id. Here, the officers did not testify to any specific, articulable facts about Huschle's appearance, actions, or the manner in which he operated his truck that would give rise to a belief that he might be injured or in need of help. Instead, the officers testified it appeared Huschle thought he was on a different access road and screeched to a stop when he realized the road ended. After stopping, he began to back up as if to leave. This activity alone does not indicate that Huschle was in distress or in need of assistance. See id. at 277-78. This factor weighs against the stop. As for the second factor, the location, the evidence shows that Huschle was on a dead-end access road leading to two businesses that were closed for the evening. Wise testified it appeared Huschle "had moved into this lane here thinking it was the access road to 190." Consequently, the location does not weigh in favor of the stop. The third factor weighs in favor of the stop because Huschle was alone with no apparent access to assistance except from the officers. See id. at 278. The fourth factor, whether Huschle presented a danger to himself or others, weighs against the stop. As soon as the vehicle stopped, Huschle began backing up in an apparent effort to correct his mistake. This conduct does not indicate that Huschle may have presented a danger to himself or others. Applying these factors to the totality of the circumstances, we conclude the community caretaking function did not provide a reasonable basis upon which to stop Huschle. See id.; see also Andrews v. State, 79 S.W.3d 649 (Tex.App.-Waco 2002, pet. ref'd) (stop not reasonable when officer observed driver stop on shoulder, passenger opened door and appeared to vomit, and car drove off); Wright v. State, 18 S.W.3d 245 (Tex.App.-Austin 2000, pet. ref'd) (stop not reasonable when officer observed rear seat passenger hang head out of window and appear to vomit). Conclusion
We take into consideration experienced police officers' perceptions and realize the evidence was undisputed. However, without specific, articulable facts, a reviewing court has no means to assess whether an officer's opinion was objectively reasonable. Ford, 158 S.W.3d at 493. The manner in which Huschle operated his vehicle led to nothing more than an inference that there was something out of the ordinary occurring. See Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App. 1992). Neither officer testified to anything that would lead a reasonable person to believe Huschle was engaged in a criminal act. Because the State did not elicit testimony of facts that would allow the officers to objectively determine Huschle was violating a traffic law, the State did not carry its burden of establishing reasonable suspicion existed for the stop. We conclude the trial court erred by denying Huschle's motion to suppress. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.