No. 05-04-00393-CR
Opinion filed November 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-35958-PV. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
DOUGLAS S. LANG, Justice.
Appellant Maria Angelica Salazar was indicted for driving while intoxicated with a child passenger, a state jail felony. See Tex. Pen. Code Ann. § 49.045 (Vernon Supp. 2004-05). Appellant filed a motion to suppress. Following a hearing, the trial court denied appellant's motion. Subsequently, appellant pled nolo contendere to the indictment. In accordance with a plea agreement, the trial court deferred adjudication and placed appellant on community supervision for five years and assessed a fine of $2,000 as a condition of probation. The trial court granted appellant permission to appeal its ruling denying her motion. For the reasons that follow, we resolve appellant's issues against her and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the hearing on the motion to suppress, Stephen Burres, a City of Irving police officer, testified that, on October 12, 2003, he and another officer were dispatched to a domestic violence call at an apartment building. Some of the residents of the apartments, who were appellant's neighbors, reported to the police that appellant and her boyfriend or husband were having an argument, and appellant was throwing property onto the parking lot, causing a disturbance. En route to the call, the dispatcher told Burres that appellant had left the location with her two small children and gave Burres the model of the car and its license plate number. When Burres arrived at the apartment building, appellant's neighbors described "yelling and screaming." He saw the property on the parking lot and disarray in appellant's apartment. The neighbors also "expressed concern that [appellant] was intoxicated and had her children with her." While he was walking back to his patrol car, he saw appellant drive up. Burres recognized the car and the license plate number from his call notes, and the neighbors identified appellant. Burres testified that he walked up to appellant's car and "detained her for a minute." While speaking with her, Burres saw she was crying, and he "detected bloodshot glassy eyes, slurred speech," and a "[s]trong odor of alcoholic beverage on her breath." Burres also testified that he went back to his patrol car and repositioned it (apparently so that he could focus the video camera on appellant) because appellant was "actually kind of alongside my car." Burres intended to capture on video the comments between himself and appellant and the sobriety tests he decided to administer. On cross examination, Burres admitted that he had not taken any neighbors' names and that his police report had no information identifying them. He testified that his intent in detaining appellant was to see if she had been the victim of domestic violence. While talking to her, he determined that she could be intoxicated and "something else other th[a]n just a simple domestic violence case" might be involved. Appellant's motion to suppress states that Burres performed field sobriety tests at the apartment. He then arrested appellant and took her to the city jail, where she was videotaped performing field sobriety tests and gave a breath sample for breath test analysis. Appellant moved to suppress all testimony by officers, including Burres, appellant's oral statements in response to questioning, testimony and videos regarding field sobriety tests, and the results of the breath tests. Relying on the Fourth and Fourteenth Amendments of the United States Constitution and Article I, section 9 of the Texas Constitution, appellant brings two issues on appeal. First, appellant contends that her "stop and arrest" were illegal, and the evidence flowing from these actions was suppressible, because they were based solely upon an anonymous tip, and there was no credible information that a crime had been committed and no crime was committed in the officer's presence by appellant. Second, appellant contends that Burres could not conduct field sobriety tests and arrest her based solely on reasonable suspicion alone and without probable cause. II. STANDARD OF REVIEW
In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of the law of search and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997)). In this case, the trial court did not make explicit findings of historical fact, so we review the evidence in a light most favorable to the trial court's ruling. O'Hara v. State, 27 S.W.3d 548, 550 (Tex.Crim.App. 2000). III. APPLICABLE LAW
The Fourth Amendment and the Texas Constitution forbid only unreasonable searches and seizures. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Terry v. Ohio, 392 U.S. 1, 30 (1968); Brimage v. State, 918 S.W.2d 466, 500 (Tex.Crim.App. 1996). There are three distinct categories of interactions between police officers and citizens: encounters, investigative detentions, and arrests. State v. Crawford, 120 S.W.3d 508, 510 (Tex.App.-Dallas 2003, no pet.) (citing State v. Perez, 85 S.W.3d 817, 819 (Tex.Crim.App. 2002)). An encounter needs no justification; a detention requires reasonable suspicion; and an arrest must be supported by probable cause. Id. (citing Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995)). Police officers do not violate the Fourth Amendment by approaching an individual on the street or in another public place and questioning her. Id. A police officer may briefly stop a suspicious individual in order to determine her identity or to maintain the status quo momentarily while obtaining more information. Gurrola v. State, 877 S.W.2d 300, 302 (Tex.Crim.App. 1994) (citing Hoag v. State, 728 S.W.2d 375, 380 (Tex.Crim.App. 1987)). Although police officers may approach and question an individual, the individual may refuse to answer any questions put to her and may go on her way. Id. (citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)). A temporary investigative detention may be reasonable if: (1) the officer's action was justified at its inception; and (2) the detention was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20. To justify a temporary detention, the officer must have specific articulable facts which, in light of his experience and general knowledge, taken together with rational inferences from those facts, would reasonably warrant the intrusion on the citizen. Gurrola, 877 S.W.2d at 302. Even in the absence of bad faith, detention based on a mere hunch is illegal. Id. There must be a "reasonable suspicion" by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. Id. This standard is an objective one. Garcia v. State, 43 S.W.3d 527, 539 (Tex.Crim.App. 2001). There need only be an objective basis for the stop; the subjective intent of the officer conducting the stop is irrelevant. Id. The reasonable suspicion determination is made by considering the totality of the circumstances. Id. When the initial detention is unlawful, any evidence seized subsequent to such a detention is inadmissible. Gurrola, 877 S.W.2d at 302. Article 14.01(b) of the code of criminal procedure provides that "[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view." Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). The test for probable cause for a warrantless arrest under this provision is whether at that moment the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense. Beverly v. State, 792 S.W.2d 103, 104-05 (Tex.Crim.App. 1990); Lunde v. State, 736 S.W.2d 665, 667 (Tex.Crim.App. 1987). For purposes of analysis, the questions presented here are: (1) whether there was reasonable suspicion to investigate at the first stage of Burres's contact with appellant, when she drove into the apartment building parking lot, and at the second stage of contact, when Burres smelled alcohol on her breath after she had been driving with children in the car, and (2) whether Burres had probable cause to arrest appellant for driving while intoxicated with a child passenger. IV. DISCUSSION
Appellant argues that Burres's actions regarding the initial "stop" and investigatory detention were based solely on anonymous tips, first from the "disturbance calls" and then by the neighbors at the scene, which were insufficient for reasonable suspicion. Appellant argues that Burres could not lawfully stop her to investigate without first observing her commit some infraction. Appellant relies on Hall v. State, 74 S.W.3d 521 (Tex.App.-Amarillo 2002, no pet.). In Hall, an anonymous individual reported a traffic offense by a person driving a red pickup truck. The information was broadcast. Police officers saw a red pickup, which was being driven by Hall. The police officers stopped Hall, administered field sobriety tests, and arrested and charged him with driving while intoxicated. Id. at 523-24. The anonymous tip served as the basis of the stop; neither officer saw Hall do anything wrong. Id. at 525. Because the tip was not sufficiently corroborated, the Amarillo Court of Appeals concluded the officers were without probable cause or reasonable suspicion to stop Hall. Id. at 527. When the circumstances implicate an anonymous tip, caution must be taken. Id. at 525. This is so because the tip, standing alone, seldom provides the reasonable suspicion necessary to authorize an investigative stop and detention. Id. (citing Alabama v. White, 496 U.S. 325, 329 (1990)). In other words, "a police officer generally cannot rely alone on a police broadcast of an anonymous phone call to establish reasonable suspicion." Id. (quoting Garcia v. State, 3 S.W.3d 227, 234-35 (Tex.App.-Houston [14th Dist.] 1999), aff'd, 43 S.W.3d 527 (Tex.Crim.App. 2001)). This is so because the court has no way of evaluating the reliability of the information provided by the anonymous source. Id. Consequently, there must be some further indicia from which a police officer may reasonably conclude that the tip is reliable and a detention is justified. Id. That indicia may come in the form of an officer's prior knowledge and experience and his corroboration of the details of the tip. Id. Regarding the latter, the tip must be corroborated not only as to the identity of the individual sought to be accused but also as to the improper nature of his conduct. Id. Unsolicited information concerning a crime in progress provided to police in a face-to-face encounter by a concerned citizen who is not connected with police and is not a paid informant is inherently reliable. Harrison v. State, 144 S.W.3d 82, 86 (Tex.App.-Fort Worth 2004, no pet.); State v. Sailo, 910 S.W.2d 184, 188 (Tex.App.-Fort Worth 1995, pet. ref'd). This is because in such situations the citizen puts himself in a position of being identified and held accountable for his intervention. Harrison, 144 S.W.3d at 86; Sailo, 910 S.W.2d at 188. Burres was investigating 911 calls, apparently from appellant's neighbors, who reported domestic violence. Upon arriving at the location, he determined from neighbors that appellant had driven off in her car with her children and they were concerned that she was intoxicated. Then, Burres observed the appellant's car pull up and park by the apartments. The facts are in conflict, but Burres either observed and talked to appellant at her car or as she walked from her car towards the apartments. Burres noticed that appellant smelled of alcohol and had red eyes. Because Burres's broadcast information regarding appellant's leaving the location with her two small children was corroborated by an inherently reliable source, appellant's neighbors at the location, who also told Burres they were concerned that she was intoxicated, this situation is distinguishable from Hall. Nevertheless, appellant argues that Burres's reason for initially approaching her car and detaining her was to determine if she had been the subject of domestic violence. However, Burres's subjective intent is irrelevant, and there was an additional objective basis for the stop and investigatory detention, that is, the possibility of driving while intoxicated with child a passenger. See Garcia, 43 S.W.3d at 530. Appellant also cites State v. Rivenburgh, 933 S.W.2d 698 (Tex.App.-San Antonio 1996, no pet.), to support her argument that the stop for an investigation of whether she had been harmed by domestic violence could not form the basis for investigation of the smell of alcohol on her breath to determine if she was intoxicated and should be arrested for driving while intoxicated with a child passenger. However, Rivenburgh is not applicable. Rivenburgh was arrested for DWI after being stopped for disorderly conduct. Apparently, Rivenburgh was stopped at a red light, but did not immediately move when the light turned green. Other drivers became impatient and honked their horns. In response, Rivenburgh made a vulgar gesture with her hand and mouthed an obscenity. The officer observed this activity and stopped her to arrest her for the offense of disorderly conduct. Id. at 700. Then, the officer arrested Rivenburgh for DWI. Id. Rivenburgh moved to suppress the evidence of DWI on the ground that the officer had no probable cause or reasonable suspicion to investigate the DWI. The State argued that "the instant case presented an issue of whether the officer had reasonable suspicion to stop Rivenburgh to investigate." Id. However, the San Antonio Court of Appeals affirmed the trial court's conclusion that the officer did not have probable cause to arrest Rivenburgh for disorderly conduct. Id. "Either Rivenburgh had committed the offense [of disorderly conduct] prior to being stopped by the officer, or she had not." Id. Accordingly, where there was no probable cause to arrest Rivenburgh without a warrant in the first instance for disorderly conduct, no investigation could be undertaken in conjunction with an unlawful, warrantless arrest. See id. at 701. In this case, the contact with appellant was premised on Burres's intention to investigate information received from neighbors in the 911 calls and in conversations with neighbors when he arrived at appellant's apartment building, that is, the possibility that she had been harmed by domestic violence and the possibility that she was driving while intoxicated with children in her car. Those reports from the neighbors constitute reasonable suspicion upon which a detention and investigation can proceed. This is not a situation, as in Rivenburgh, where the stop and subsequent arrest for one infraction were found to be unsupported by probable cause which dictated that any investigation for another offense would be unlawful. Rather, our conclusion is based on the rule that to justify a stop and investigatory detention, an officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion that the detained person is connected with the unusual activity, and some indication that the activity is related to a crime. See Gurrola, 877 S.W.2d at 302. Here, Burres did not pull appellant over; rather, she was stopped. Burres observed that appellant had been driving with her children in her car. Even if Burres had not learned facts from the neighbors that they feared she was intoxicated, his contact with her to determine if she had been the victim of domestic violence was a lawful basis for an encounter. See Perez, 85 S.W.3d at 817; Crawford, 120 S.W.3d at 510. Even if the contact with appellant was a "stop" and a detention, it was lawful since Burres could not ignore the facts which the neighbors provided. Those facts, if true, would have been relevant not only as to appellant's health and safety, but certainly as to the children. Once Burres made contact with appellant and smelled alcohol on her breath when she was either in or near her car in which her children were riding, Burres possessed facts which would support a reasonable suspicion to investigate further by administering appropriate field sobriety tests. We conclude that, pursuant to Terry, 392 U.S. at 19-20, and Gurrola, 877 S.W.2d at 302, Burres's information met the test for reasonable suspicion. Moreover, Burres's observation of appellant driving into the apartment building parking lot and that she had red eyes and smelled of alcohol, together with the results of field sobriety tests, constituted probable cause to believe that appellant had committed the offense of driving while intoxicated with a child passenger. See Tex. Code Crim. Proc. Ann. art. 14.01(b); Beverly, 792 S.W.2d at 104-05. Accordingly, we reject appellant's argument that her arrest was not based on probable cause. CONCLUSION
Having rejected appellant's arguments that Burres lacked reasonable suspicion for a "stop" and investigatory detention and probable cause to arrest her for the offense of driving while intoxicated with a child passenger, we resolve appellant's two issues against her. Accordingly, we affirm the trial court's judgment.