Opinion
NO. 02-15-00408-CR
07-21-2016
THE STATE OF TEXAS APPELLANT v. TINO DEFRANCO APPELLEE
FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
TRIAL COURT NO. 1381770 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In four issues, the State of Texas appeals the trial court's pretrial suppression of evidence in the prosecution of Appellee Tino Defranco for driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (West Supp. 2015). We reverse the trial court's order.
Background
At approximately 11:45 p.m. on July 19, 2014, Sergeant Gary Cochran, a reserve police officer with the Blue Mound Police Department, was on patrol when he observed Appellee driving 39 miles per hour in a 30 mile-per-hour zone. As a reserve police officer, Sergeant Cochran's responsibilities included conducting patrols and other "typical" police duties for a minimum of 24 hours each month. His duties also included conducting DWI investigations, but, at trial, Sergeant Cochran admitted that he had conducted only two during his entire career and had not updated his field sobriety test certification since 2006.
Sergeant Cochran recorded Appellee's speed using radar.
Sergeant Cochran initiated the traffic stop by activating the overhead lights on his patrol car, and Appellee pulled over, but before exiting his patrol car, Sergeant Cochran reported Appellee's rear license plate number to police dispatch. Once he had approached the driver's window of Appellee's pickup, Sergeant Cochran explained to Appellee why he had been stopped and asked him for his driver's license and proof of insurance. Appellee produced his driver's license but could not locate his insurance card.
Because he noticed the odor of alcohol while speaking with Appellee, Sergeant Cochran asked Appellee if he had been drinking. Appellee confirmed that he had been drinking—Sergeant Cochran recalled that Appellee stated that he had had about three beers—and was on his way home from work. Sergeant Cochran also noticed that there were "maybe two or three boxes" of liquor or alcohol in the backseat of the pickup, and when asked about the boxes, Appellee answered that he worked at a bar and was in the process of transporting the boxes to another bar.
While Appellee continued to look for his proof of insurance, Sergeant Cochran took Appellee's driver's license and returned to the patrol car. While Sergeant Cochran did verify that Appellee's driver's license was valid, he also determined that the license plate on the back of Appellee's pickup was not. According to the records, the license plate had been cancelled three years earlier, in 2011. Additionally, the cancelled license plate number did not match the registered license plate number on the registration sticker that was displayed on the pickup's windshield.
Because of the late time of night, Sergeant Cochran called for backup. After backup arrived, Sergeant Cochran returned to Appellee in the pickup and inquired about the license plate. Appellee stated that the registration sticker on the windshield was correct, and that although he had received new license plates, he had forgotten to put them on his pickup.
Sergeant Cochran then asked Appellee to exit the pickup and began a DWI investigation. Once Appellee was out of the pickup, Sergeant Cochran no longer smelled alcohol; however, he did notice that Appellee stumbled and swayed and generally exhibited difficulty in maintaining his balance. After Sergeant Cochran conducted standard field sobriety tests, he placed Appellee under arrest for DWI.
In Appellee's motion to suppress, Appellee sought suppression of all evidence secured in connection with his arrest, arguing that there was no probable cause to arrest him for DWI. In response, the State argued that while probable cause may not have existed to arrest Appellee for DWI, Officer Cochran had probable cause to arrest Appellee for the traffic infractions, including displaying cancelled license plates.
At the hearing, Sergeant Cochran confirmed that while the transportation code violation of displaying the cancelled plate was sufficient to justify an arrest, he arrested Appellee for DWI:
Q: So as we stand here, the reason you arrested [Appellee] was driving while intoxicated, correct?
A: That is correct.
Q: No other infraction?
A: Well, he had the cancelled plate, but that's not why I arrested him.
At the conclusion of the hearing, the trial judge articulated two reasons why he granted the motion to suppress: (1) because Officer Cochran failed to identify Appellee on the record, and (2) there was no evidence in the record establishing probable cause for Officer Cochran to arrest Appellee for DWI:
[T]he Court will grant the motion to suppress as there was no evidence on the record of the witness identifying this particular Defendant as well as no testimony from the officer . . . that would
amount to probable cause for the arrest in that nothing from the officer pointed to the fact of drawing a conclusion as to whether or not this Defendant was intoxicated on that night and operating a motor vehicle. There was no conclusory statements as to the officer as to forming an opinion that this Defendant was intoxicated.
The trial court also subsequently entered findings of fact and conclusions of law, including the following:
Findings of Fact
. . . .
16. Cochran called in the license plate attached to the rear of the vehicle and noted that the license plate attached to the vehicle did not match the license plate number on the registration sticker affixed to the windshield of the vehicle.
17. Cochran discovered that the license plate attached to the vehicle was cancelled in 2011.
18. Cochran confronted the driver about the issue of the license plate not matching the license plate number on the registration sticker, and the driver informed Cochran that he forgot to change his license plates.
19. The driver stated that he had the current license plates in the vehicle.
. . . .
41. The driver of the black Ford pickup was not placed under arrest for displaying a cancelled license plate.
Conclusions of Law
1. This Court concludes as a matter of law that a person commits an offense if the person operates on a public highway during a registration period a motor vehicle that does not properly display the registration insignia issued by the department that establishes that the license plates have been validated for the period under Texas Transportation Code Section 502.473 (a).
2. This Court concludes as a matter of law that except for a speeding offense, an officer may arrest and take into custody a person seen committing a traffic offense. Owens v. State, 861 S.W.2d 419 (Tex. App.—Dallas 1993, no pet.).
. . . .
5. This Court concludes that Sergeant Cochran did not provide testimony regarding the reasons for which he decided to place the driver of the black Ford pickup under arrest for driving while intoxicated.
6. This Court concludes that Sergeant Cochran did not provide testimony sufficient to support probable cause to arrest the driver of the black Ford pickup for driving while intoxicated.
Discussion
The State brings four issues on appeal. In its first three, the State argues that the trial court erred in finding that the State did not establish probable cause to justify Appellee's arrest. In its fourth issue, the State argues that it was not required to identify Appellee in court during the suppression hearing.
A. Probable cause
In its first three issues, the State argues that the trial court (1) "misapplied Fourth Amendment probable cause jurisprudence," (2) "mistakenly applied a subjective standard to the officer's arrest motivation," and (3) "misapplied caselaw authorizing arrests based on non-speeding-related traffic code violations."
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 the trial court grants a motion to suppress and files accompanying findings of fact and conclusions of law, and when the sole witness at the motion to suppress hearing is the arresting officer, the only question before us is whether the trial court properly applied the law to the facts it found. See State v. Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86-87, 89. This is especially true in a case in which the State has not contested the trial court's findings of fact and the trial court's findings show that the court believed the arresting officer but concluded that the officer's testimony was insufficient as a matter of law. See State v. Ross, 32 S.W.3d 853, 856-58 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 89. In this case, we review the trial court's ruling de novo. Gray, 158 S.W.3d at 467, 469.
Under the Fourth Amendment, a warrantless arrest is unreasonable per se unless it fits into one of a "few specifically established and well delineated exceptions." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993); Torres v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005). A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in the code of criminal procedure. Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01-.04 (West 2015 & Supp. 2015).
Probable cause for a warrantless arrest requires that the officer have a reasonable belief that, based on facts and circumstances within the officer's personal knowledge, or of which the officer has reasonably trustworthy information, an offense has been committed. Torres, 182 S.W.3d at 901-02. Probable cause must be based on specific, articulable facts rather than the officer's mere opinion. Id. at 902. We use the "totality of the circumstances" test to determine whether probable cause existed for a warrantless arrest. Id.
Apart from the facts that he knows and can articulate at a hearing, an arresting officer's state of mind is irrelevant to the existence of probable cause. Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 593 (2004); Amador, 275 S.W.3d at 878 ("The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer"). On facts similar to the facts here, the United States Supreme Court in Devenpeck explained:
[The officer's] subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.Devenpeck, 543 U.S. at 153, 125 S. Ct. at 594 (quoting Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996)).
In Devenpeck, a driver was pulled over by Washington State Patrol officers on suspicion of impersonating a law enforcement officer. Id. at 148, 125 S. Ct. at 591. During the traffic stop, the officers noticed that the driver was recording his conversations with the officers, so they arrested him for violating the Washington Privacy Act. Id. at 149, 125 S. Ct. at 592. The privacy act charges were subsequently dismissed by the state trial court, and the driver brought an action under 42 U.S.C. § 1983 (West 2012) alleging that the officers arrested him without probable cause. Id. at 151, 125 S. Ct. at 592. After receiving instructions from the trial court that probable cause exists "if the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a prudent person to conclude that the suspect has committed, is committing, or was about to commit a crime," and that caselaw in existence at the time of the arrest clearly established that the driver's taping of the conversation was not a crime, the jury returned a unanimous verdict in favor of the officers. Id. at 151, 125 S. Ct. at 592-93. The United States Court of Appeals for the Ninth Circuit reversed, holding that because probable cause did not exist for an arrest based on a violation of the Privacy Act or any other "closely related" conduct, probable cause did not support the warrantless arrest. Id. at 153, 125 S. Ct. at 593.
The United States Supreme Court disagreed, reiterating that probable cause is to be decided based on the facts known to the arresting officer at the time of the arrest, not the officer's subjective intent. Id. at 152-54, 125 S. Ct. at 593-94. Noting that, "[w]hile it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody," the court clarified, "we have never held that to be constitutionally required." Id. at 155, 125 S. Ct. at 595. Thus, if the officers had probable cause to arrest the plaintiff for completely unrelated violations—in that case, either obstructing the officers' investigation or impersonating an officer—then the arrest was valid. Id. at 155-56, 125 S. Ct. at 595; see also State v. Rascbaum, No. PD-1221-05, 2007 WL 1706035, at *2 (Tex. Crim. App. June 13, 2007) (not designated for publication) (citing Devenpeck and holding that the fact that "[the driver] was placed under arrest for the offense of driving while intoxicated is irrelevant; [the officer] was authorized to arrest [the driver] for the stop-sign violation, so the arrest was lawful.").
As the Supreme Court went on to observe, defendants will not be left to wonder for long as to the reason for their arrest. Id. at 155 n.3, 125 S. Ct. at 595 n.3. "[P]ersons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause." Cty. of Riverside v. McLaughlin, 500 U.S. 44, 53, 111 S. Ct. 1661, 1668 (1991).
In so holding, the Supreme Court expressly rejected the "closely related offense" rule—the proposition that when probable cause is lacking for the charge as identified by the arresting officer at the time of arrest, to rely on any other offense to support probable cause for the warrantless arrest, the offense must be closely related to and based on the same conduct identified by the arresting officer at the time of arrest. Id. at 153, 125 S. Ct. at 594.
In this case, probable cause existed to arrest Appellee for various violations of the transportation code. During the traffic stop, Appellee admitted to Sergeant Cochran that the license plates on the pickup had been cancelled in 2011 and did not match the registration sticker on the windshield. The trial court concluded that displaying invalid license plates violated section 502.473(a) of the transportation code. See Tex. Transp. Code Ann. § 502.473(a) (West Supp. 2015) ("A person commits an offense if the person operates on a public highway during a registration period a motor vehicle that does not properly display the registration insignia issued by the department that establishes that the license plates have been validated for the period."). As the trial court further correctly concluded—and Appellee does not dispute—Sergeant Cochran could have arrested Appellee for this traffic offense. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2015) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view."); Vela v. State, 871 S.W.2d 815, 819 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (holding that officer had probable cause to arrest defendant for use of an incorrect or "fictitious" license plate); Owens v. State, 861 S.W.2d 419, 420 (Tex. App.—Dallas 1993, no pet.) ("[A]n officer may arrest and take into custody a person seen committing a traffic offense"). Whether Sergeant Cochran intended to arrest Appellee for DWI is irrelevant. See Devenpeck, 543 U.S. at 153, 125 S. Ct. at 593; Amador, 275 S.W.3d at 878. Probable cause existed to arrest Appellee, and the trial court erred in finding otherwise. See, e.g., Rascbaum, 2007 WL 1706035 at *2.
"Public highway" includes a public road or street. Tex. Transp. Code Ann. § 502.001(35) (West Supp. 2015).
Although the prosecutor mentioned only this section of the transportation code at the hearing, displaying cancelled plates violates several other provisions of the code. See id. at § 502.407 (West Supp. 2015) (providing that a person commits an offense by driving with an expired license plate); Id. at § 504.943 (West Supp. 2015) (providing that a person commits an offense by driving a vehicle that does not display two license plates that have been assigned for the period during which the vehicle is being driven); Id. at § 504.945 (West Supp. 2015) (providing that a person commits an offense by displaying a license plate that "is assigned for a registration period other than the registration period in effect").
Appellee relies upon case law that states that an officer must have "additional facts constituting probable cause to arrest the defendant for driving while intoxicated" after the officer stops a defendant for a traffic offense. Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd); see also, McClain v. State, 984 S.W.2d 700, 704 (Tex. App.—Texarkana 1998, pet. ref'd) (op. on reh'g); Texas Dep't of Public Safety v. Rodriguez, 953 S.W.2d 362, 364 (Tex. App.—Austin 1997, no pet.); State v. Hopper, 842 S.W.2d 817, 820 (Tex. App.—El Paso 1992, no pet.). However, these cases do not address whether the arresting officers could have arrested the defendants for another crime, such as a traffic offense. Furthermore, these cases predate Devenpeck, which clearly states that the officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck, 543 U.S. at 153, 125 S. Ct. at 594; see also Amador, 275 S.W.3d at 878 (holding probable cause evaluation is to be made based upon objective facts).
We therefore sustain the State's first through third issues and reverse the trial court's order.
B. Identification of Appellee
In its fourth issue, the State argues that the trial court erred in finding that the State did not identify the driver of the pickup during the suppression hearing. Both parties agreed at oral argument that this issue need not be addressed if we held in favor of the State on the first three issues. Because we have so held, we do not address the State's fourth issue.
Conclusion
Having sustained the State's first three issues, we reverse the trial court's order granting Appellee's motion to suppress and remand for further proceedings consistent with this opinion.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE PANEL: WALKER, MEIER, and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 21, 2016