Opinion
NO. 02-15-00085-CR
12-15-2016
JONATHAN SWADLEY APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-04477-D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
A jury convicted Appellant Jonathan Swadley of driving while intoxicated with a blood alcohol content of over 0.15. Tex. Penal Code Ann. § 49.04(a), (d) (West Supp. 2016). The trial court sentenced Appellant to 270 days in jail and assessed a $300 fine but suspended the imposition of the jail sentence and placed him on community supervision for eighteen months. In two issues, Appellant attacks the denial of his motion to suppress based upon the initial stop. First, he argues that the trial court erred because the officer who initiated the traffic stop did not have reasonable suspicion that he was engaged in criminal activity based upon his "unconfirmed" auto insurance status. Second, Appellant contends that the database upon which the officer who initiated the traffic stop relied lacked the necessary and sufficient indicia of reliability to establish reasonable suspicion. We affirm.
Evidence on Motion to Suppress
At the hearing on Appellant's motion to suppress, Officer Jonathan Taylor testified that at about 11:16 p.m. on March 4, 2014, he saw a vehicle leaving a parking lot of a bar, and as it left the parking lot, it drove over the curb to enter the roadway. Officer Taylor conceded that rolling over the curb was not enough to give him reasonable suspicion to make a stop. It was enough, however, to get his attention.
Officer Taylor ran the license plate through the computer, which was connected to the Department of Public Safety database. He testified that the insurance return came back as "unconfirmed," which meant to him that the vehicle was currently not insured. He added,
Just through my training and experience. It's been my experience that when I run a tag and it shows unconfirmed, when I make contact with the driver, they either—they don't have current insurance. They can't show me a current insurance card. They tell me that, ["]Well, I did have insurance, but I stopped making payments, and so, you know, I have this current card, but it's not valid.["]
Oftentimes I'll call the insurance company, depending on the time of day, if it's one that's still open, and try to get a verbal confirmation from them.Officer Taylor had previously relied on the information, and based on his experience, it was accurate and reliable. Because Officer Taylor believed the car did not have insurance, he conducted a traffic stop. Appellant was the driver of the vehicle.
Defendant's Exhibit 1 is a March 4, 2014 printout showing Appellant's auto insurance status as "Unconfirmed" with the additional notation, "Vehicle Last Match Not within 45 days." It also shows an insurance expiration date of May 29, 2014—two months beyond the March 2014 stop. Officer Taylor acknowledged that the computer printout indicated that the policy had not expired yet and had a future expiration date, but he explained that that typically meant "that someone has either cancelled their policy or has stopped paying on their policy and that the policy is no longer in force." When asked what he based that conclusion on, he responded, "My training and experience, just doing traffic stops and finding out reasons why it shows unconfirmed, and historically, that's what I've found." Officer Taylor testified that he had done many traffic stops using the computer system. The unconfirmed insurance was the basis for his stop.
The trial court denied Appellant's motion to suppress.
During trial, Bonnie Putnam, a dispatcher at the Denton County Sheriff's Office, testified outside the jury's presence. Part of her duties was to run vehicles for various agencies. Running a vehicle meant doing a search in a State database through OMNIXX. OMNIXX was software provided by the Department of Public Safety that she could use to check various State and national databases. OMNIXX was a national database. When someone asks her to run a license plate, one of the things the system looks for is an insurance return. Putnam said she received a significant amount of training on how to read the returns. She received monthly and sometimes quarterly updates on how to read the returns. Putnam testified, "The insurance return is pretty simple to read because it is just straightforward. It's, here's the insurance status, you know, your left column, insurance status, and then it says confirmed or unconfirmed." She added,
It tells us who the insurance is registered to, because it may not necessarily be the person of—the registered owner of the vehicle. It tells us the driver's license number. It gives us the license plate or—and the VIN. It gives year, make, and model of the vehicle.When shown Defendant's Exhibit 1, the March 4, 2014 printout showing Appellant's auto insurance status as "Unconfirmed" with the additional notation, "Vehicle Last Match Not within 45 days," Putnam testified,
And then it also indicates the insurance carrier and their policy ID; the type of policy it is, whether it's a commercial policy or a personal policy; and then it gives us policy effective dates.
And so by—you know, by effective date, most people are given insurance on a six-month status or a one-year status. And so the policy date could—let's assume, say January to June. And then so the insurance policy is from January to June. And then the last piece would be the information on whether or not the insurance was valid within the last 45 days.
So it would tell us—if it was confirmed, it would just tell us that insurance from January to June is confirmed in the last 45 days. If it's unconfirmed, it gives us all of that same information.
The system is updated weekly, okay. It's updated by the DPS, the vehicle registrations. It's updated by insurance carriers, private and commercial insurance carriers. And that information is given to the FRVP, the financial responsibility people, weekly.She testified that she relied on the entire database every day. She added, "It's the essence of what makes our job efficient." She said she relied on the insurance database and found it reliable. She thought that the insurance database had been available for the last six years and testified that she used it every day; she estimated having used it twenty-five times that morning alone.
And in that last 45 days, this particular vehicle, this license plate, has not been found to have had insurance.
She based her assessment that the database was reliable on the fact that she had been asked to confirm unconfirmed insurance during normal business hours. Officers had asked her to verify an unconfirmed twice, and each time it came back negative. She said, "And those two times that I've actually called, that—they have indicated that the subject—the insurance is expired." She acknowledged being asked to call only twice in about eight years. Based upon those two calls, she said the reliability was 100%.
When shown a copy of a "DPS Chaparral" magazine, Putnam said she had never heard of it. For purposes of the hearing, however, the trial court admitted it as Defense Exhibit B. Defendant's Exhibit B is the July 2008 publication of "DPS Chaparral." The magazine features an article entitled "TexasSure cracks down on insurance violators" about the unveiling of the "TexasSure, Vehicle Insurance Verification database" in June 2008. In part, it provided,
Law enforcement officers will run a vehicle's license plate to access the TexasSure database, and the response will help the officer ascertain whether the vehicle has insurance and officers can take appropriate action.
. . . .
It is important to note that DPS does not believe the law allows the database to be used for probable cause in stopping a vehicle. The vehicle would first have to be pulled over for a separate traffic violation.
Defense Exhibit A was a document that Putnam was given in her training in December 2014. Defendant's Exhibit A was a document entitled "The Texas Financial Responsibility Verification Program (FRVP)." It identifies four possible responses: (1) "Confirmed," (2) "Unconfirmed," (3) "Verify Manually," and (4) "Multiple." Under "Unconfirmed," the database will provide additional information: (1) "Vehicle coverage expired," which contains the additional footnote that "[t]he system considers vehicle coverage expired when the policy has been expired for over 14 days[]"; (2) "No vehicle coverage found"; (3) "Vehicle last match not within 45 days"; (4) "Vehicle coverage expired; Vehicle last match not within 45 days"; or (5) "Vehicle coverage expiration unknown; Vehicle last match not within 45 days." The third, fourth, and fifth examples carry the same footnote, which provides: "'Vehicle last match not with 45 days' indicates the insurance company has not reported insurance for the vehicle and/or person in the past 45 days. This could be the vehicle and/or person is no longer insured or they have changed companies and the new company has not reported insurance for them."
The FRVP provides the following "Additional Information":
By law, the information provided by the database is to be used by law enforcement strictly as a tool to help identify if a driver is insured or uninsured. This information must not be used for any other law enforcement/investigative purpose.
1. FRVP is a tool provided to local law enforcement agencies to assist in verifying insurance. It is up to the local law enforcement agency to establish policies and procedures regarding information obtained from the FRVP database. Because local policies may vary substantially, DPS is not publishing policies for the local agencies.
2. DPS does not consider the information provided by the FRVP database in and of itself to be adequate probable cause for an officer to stop a vehicle. The database can only be used as a tool to verify insurance once a stop has taken place.
3. If the FRVP system provides a response of "Unconfirmed," "Verify Manually", or "Multiple" it does not necessarily mean that the person and/or vehicle is uninsured. The officer should verify insurance through existing methods before taking any action.
4. TxDPS is aware that some local jurisdictions have ordinances that allow vehicles to be impounded for no insurance. If the FRVP system provides a response of "Unconfirmed," "Verify Manually", or "Multiple" the officer should verify insurance through existing methods before taking any action. It should be noted that a response of "Unconfirmed," "Verify Manually", or "Multiple" from the database does not provide authority to impound the vehicle based solely on the Texas Transportation Code.
5. Self-insured individuals and companies having commercial policies are not required to participate in the FRVP at this time. DPS provides weekly submissions of self-insured data. Law enforcement officers should continue to accept the self insurance certificate issued by DPS as proof of insurance.
6. Responses to inquiries on trailers will be "Verify Manually." Trailers are not self-propelled and are not considered a motor vehicle; therefore, trailer information is not reported to the database.(Footnote omitted.) Putnam acknowledged that in the FRVP, it did not say that "unconfirmed" meant the vehicle was not insured. She added, "That is why the officer is the defining factor."
7. Insurance companies are not required to report passenger vehicles insured on a commercial auto policy; however, some companies do report these policies voluntarily. Therefore, passenger autos insured under a commercial auto policy will generally not be confirmed through the system. The officer should use existing methods to determine if proof of insurance exists.
8. At this time, the driver license information is not included in the FRVP database. DPS is currently in the process of initiating a new driver license system (NDLS). Once NDLS has been established, the FRVP database will be updated and the insurance information will be available on a query by driver license number and/or name and date of birth.
9. Drivers are still required to carry proof of insurance.
10. DPS conducted a pilot program in Travis County for a period of 60 days. It was determined that about eighteen percent (18%) of the responses required the officer to verify insurance using existing methods.
Putnam acknowledged that she was not a police officer. She had never been trained on reasonable suspicion or probable cause. In her eleven years as a supervisor, she said she had never relayed insurance information to an officer before the officer initiated the stop. She said that would be very unusual, but she would do it if she were asked. Putnam's understanding was that officers never asked her to verify insurance before pulling a car over and that officers had probable cause to pull the car over on some other basis; her understanding was that their requests for insurance verification came long after the stop.
The trial court denied Appellant's motion to suppress a second time. The trial court stated,
I agree with the Defense that it says you can't stop them for probable cause, but I believe you can stop them for reasonable suspicion. . . . So they can get reasonable suspicion to stop me, then ask me for my insurance papers. If I have them, they can't do anything to me. But if I don't have them, they can give me a ticket. So I believe that that's the current state of the law.
STANDARD OF REVIEW
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).
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 v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). 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 officer has probable cause to stop and arrest a driver if he observes the driver commit a traffic offense. State v. Gray, 158 S.W.3d 465, 467, 469-70 (Tex. Crim. App. 2005); see State v. Ballman, 157 S.W.3d 65, 70 (Tex. App.—Fort Worth 2004, pet. ref'd).
A routine traffic stop is more analogous to a Terry stop than to a formal arrest. Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). A Terry stop occurs when an officer, having a reasonable suspicion to believe that an individual is involved in criminal activity, conducts a brief investigative detention. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) (citing Terry, 392 U.S. at 21, 88 S. Ct. at 1868).
The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances and will be justified when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead
him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity.
Id.
DISCUSSION
The case law addressing an officer's stop based upon an ambiguous answer from a database search falls into two categories. In the first category—the one upon which Appellant relies—the courts have held an officer did not have reasonable suspicion where the evidence was not developed to determine the ambiguous answer's meaning or reliability. See State v. Daniel, 446 S.W.3d 809, 815-16 (Tex. App.—San Antonio 2014, no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—Amarillo 2010, pet. ref'd); Gonzalez-Gilando v. State, 306 S.W.3d 893, 896-97 (Tex. App.—Amarillo 2010, pet. ref'd); see also United States v. Esquivel-Rios, 725 F.3d 1231, 1236-39 (10th Cir. 2013) (remanding case for further development of evidence regarding database). In the second category—the one upon which the State relies—courts have held that reasonable suspicion existed when the officer, through experience or training, had additional information about what the ambiguous answer from the database meant and some idea regarding the data's reliability. See Oliva-Arita v. State, No. 01-15-00140-CR, 2015 WL 7300202, at *3-4 (Tex. App.—Houston [1st Dist.] Nov. 19, 2015, no pet.) (mem. op., not designated for publication); Crawford v. State, 355 S.W.3d 193, 197-98 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (op. on reh'g); Tellez v. State, No. 09-10-00348-CR, 2011 WL 3925627, at *3 (Tex. App.—Beaumont Aug. 24, 2011, no pet.) (mem. op., not designated for publication); Short v. State, No. 09-10-00489-CR, 2011 WL 3505611, at *3-4 (Tex. App.—Beaumont Aug. 10, 2011, no pet.) (mem. op., not designated for publication); see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1204 (10th Cir. 2007), cert. denied, 552 U.S. 1123 (2008).
In Cortez-Galaviz, the officer relied on a database response of "INSURED/Not Found: AS OF /9/30/2005 Recommend request proof of insurance." Cortez-Galaviz, 495 F.3d at 1204. The stop was on October 20, 2005—twenty days after September 30, 2005. Id. The officer testified that he stopped about 200 people a month and acknowledged that on several occasions, he had stopped vehicles only to determine that the vehicle was actually insured. Id. at 1208. Despite the fact that the database was not infallible, the court held that the officer had reasonable suspicion to make the stop and wrote,
To be sure, the "not found" response [the officer] received from the database did not as definitively indicate criminal activity as a "no" response, but neither did it equate to an exculpatory "yes," and the suggestive ambiguity of the particularized and objective information [the officer] had at hand justified his decision to warrant a brief traffic stop—even though it surely would not have sufficed for an arrest. Indeed, the resolution of particularized and objective yet still ambiguous—potentially lawful, potentially unlawful—facts is the central purpose of an investigative detention. See Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, . . . (2000) ("Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. . . . Terry recognized that the officers could detain the individuals to resolve the ambiguity."); Terry, 392 U.S. at 22, 88 S. Ct. 1868 (recognizing "that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly
criminal behavior even though there is no probable cause to make an arrest").Id. at 1206.
The facts in this case fall in line with the second category of cases. Officer Taylor had enough experience with the database and from other stops to know that a result of "unconfirmed" with an expiration date in the future probably meant—but did not necessarily mean—that the vehicle had insurance at one time but that it had lapsed for some reason. From the readout and his experience, Officer Taylor had specific articulable facts from which he could draw the rational inference that Appellant's vehicle had an insurance issue that Officer Taylor was authorized to investigate further. See Balentine, 71 S.W.3d at 768 (providing standard of review on reasonable suspicion). We overrule Appellant's first issue.
The trial court admitted Defendant's Exhibit C, which was a printout from State Farm Insurance Company showing that Appellant's vehicle was, in fact, insured. Appellant does not expressly pursue this argument on appeal. To the extent Appellant complained at trial that he was, in fact, insured, reasonable mistakes about facts may still legitimately justify an officer's conclusion that reasonable suspicion exists to detain. Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 2012). Mistakes about the facts—if reasonable—will not vitiate an officer's actions in hindsight so long as his actions were lawful under the facts as he reasonably, although mistakenly, perceived them to be. Id. at 720-21; see United States v. Miranda-Sotolongo, 827 F.3d 663, 669-70 (7th Cir. 2016). Based upon Officer Taylor's previous experience using the database, he had a reasonable, articulable basis for suspecting Appellant's insurance had lapsed; Officer Taylor was not required to know with certainty before effecting a stop. See Miranda-Sotolongo, 827 F.3d at 669-70. --------
Regarding Appellant's second issue attacking the reliability of the database, once again, the facts of this case fall in line with the second line of cases and not the first. Through experience, Officer Taylor had determined that the readout of "unconfirmed" meant that the vehicle had insurance but that it had possibly lapsed. Defendant's Exhibit A verified that the readout meant that the vehicle, at least at some point, had insurance but that at the time of the stop there was a question about whether the vehicle remained insured. Putnam's testimony established that the database was updated weekly. Regarding the Department of Public Safety's disclaimers within Defendant's Exhibits A and B, the trial court was not bound by them. The trial court effectively agreed with the Department that the database could not be used to arrest someone without additional investigation. For purposes of establishing reasonable suspicion to stop the vehicle, however, the trial court had enough information upon which to find the database sufficiently reliable. The Department's disclaimers do not address reasonable suspicion. We overrule Appellant's second issue. See Amador, 221 S.W.3d at 673 (providing standard of review on motion to suppress).
CONCLUSION
Having overruled both of Appellant's issues, we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: December 15, 2016