No. 14-09-00286-CR
Opinion filed May 6, 2010. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law, Washington County, Texas, Trial Court Cause No. 08-600.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
JOHN S. ANDERSON, Justice.
Appellant, James Koteras, was charged with driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04 (Vernon 2003). Appellant pleaded guilty and was sentenced to eighteen months' community supervision, 100 hours of community service, and assessed a $500 fine. In three issues, appellant challenges the trial court's denial of his motion to suppress, arguing: (1) the traffic stop was conducted without reasonable suspicion or probable cause; (2) the trial court erred in finding the officer was acting within his community caretaking capacity when he stopped and questioned appellant; and (3) the trial court erred in finding the officer did not initiate the traffic stop; because appellant stopped on his own volition. We reverse the trial court's denial of appellant's motion to suppress and remand for a new trial consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2008, Deputy Shane Ray of the Washington County Sheriff's Department arrested appellant for DWI. Deputy Ray was driving westbound on Highway 105 on route to another call. While driving, he noticed appellant's vehicle one vehicle ahead of his. Deputy Ray observed appellant's driver's side tires briefly on the center gravel line. Deputy Ray pulled his vehicle ahead, so that he was directly behind appellant. Shortly after, appellant pulled his vehicle onto the improved shoulder on the right side of the road to allow Deputy Ray to pass. Deputy Ray had no intention of passing appellant and continued to drive behind him. Appellant drove back into the main roadway and Deputy Ray slowed down to increase the distance between the two vehicles. Deputy Ray wanted to indicate to appellant that he did not intend to pass him. For approximately a minute and a half appellant continued to drive on the main roadway. Then, appellant put on his blinker light indicating he was pulling onto the shoulder. Appellant's brake lights came on and he slowed down onto the shoulder. As appellant was slowing down onto the shoulder, Deputy Ray turned on his lights and sirens and pulled his patrol vehicle behind appellant's vehicle. At this point, appellant's vehicle had almost come to a complete stop. During the suppression hearing, Deputy Ray testified he pulled appellant over because of the totality of the circumstances, including appellant's failure to maintain a single lane and appellant's pulling onto the shoulder. At the conclusion of the hearing, the trial court made oral findings of fact. The court found: (1) appellant stopped his vehicle on his own volition; (2) Deputy Ray did not initiate appellant's traffic stop; and (3) when Deputy Ray turned on his lights and sirens he was acting within his community caretaking capacity to investigate. After making its findings, the trial court denied appellant's motion to suppress. Appellant pleaded guilty to DWI, but retained the right to appeal the motion to suppress. After being sentenced to eighteen months' community supervision by the trial court, appellant timely filed this appeal. DISCUSSION
Appellant contends the trial court erred in denying his motion to suppress because (1) Deputy Ray had no reasonable suspicion or probable cause to stop appellant and (2) the circumstances of this stop do not fall under the community caretaking function exception to the warrant requirement. Additionally, appellant contends the trial court erred in finding Deputy Ray did not initiate the stop. I. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court's findings of historical facts and reviewing de novo the trial court's application of the law. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Questions of reasonable suspicion and probable cause are reviewed de novo on appeal. Garcia v. State, 296 S.W.3d 180, 184 (Tex. App.-Houston [14th Dist.] 2009, no pet.). The trial judge is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) As the trier of fact, the trial court is free to believe or disbelieve all or any part of a witness's testimony, even if the testimony is uncontroverted. Id.; Marsh v. State, 140 S.W.3d 901, 905 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When, as here, the trial court makes fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports these fact findings. Id. We then review the trial court's legal ruling de novo unless its fact findings that are supported by the record are also dispositive of the legal ruling. Id. 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, even if the trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). A. Did Deputy Ray initiate the stop of appellant?
We address appellant's third issue first because its resolution bears on the outcome of his remaining issues. The trial court found that Deputy Ray did not stop appellant; rather the court found appellant stopped on his own volition. Viewing the evidence in the light most favorable to the trial court's finding, we agree that Deputy Ray did not initiate the stop. Deputy Ray's patrol vehicle videotape shows appellant putting on his right blinker and his brake lights, pulling his vehicle towards the shoulder, and slowing down. Although appellant was not at a complete stop when Deputy Ray turned on his lights and sirens, we agree with the trial court that appellant stopped on his own volition. Appellant's third issue is overruled. Because we agree with the trial court that Deputy Ray did not initiate the stop, we need not address appellant's first issue: whether Deputy Ray had reasonable suspicion to stop appellant. B. Was Deputy Ray acting pursuant to his community caretaking function?
Appellant argues Deputy Ray was not acting pursuant to his community caretaking function when he questioned appellant because appellant's conduct did not rise to the level of distress for the community caretaking function to apply. Through the exercise of a police officer's community caretaking function an officer may reasonably seize an individual, even without reasonable suspicion or probable cause that an offense has been committed. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). Before deciding whether the community caretaking function applies, it is necessary to determine whether the exchange between appellant and Deputy Ray constituted a seizure implicating Fourth Amendment protection; or whether the exchange was merely a consensual encounter not protected by the Fourth Amendment. 1. Nature of the exchange.
It is well settled that not all encounters with the police implicate the Fourth Amendment's protection against unreasonable seizures. Florida v. Bostick, 501 U.S. 429, 434 (1991). Three categories of interactions between police officers and citizens are recognized by the Texas Court of Criminal Appeals: arrests, investigative detentions, and encounters. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002). Unlike investigative detentions and arrests, which are seizures for Fourth Amendment purposes, an encounter is a consensual interaction, which the citizen may terminate the encounter at any time. See Gurrola v. State, 877 S.W.2d 300, 302-03 (Tex. Crim. App. 1994). So long as the person remains free to disregard the officer's questions and go about his business, the encounter is consensual and merits no further constitutional analysis. See Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995) (citing California v. Hodari D., 499 U.S. 621, 628 (1991)). Law enforcement officers are permitted to approach individuals without probable cause or reasonable suspicion to ask questions or even to request a search. See Florida v. Royer, 460 U.S. 491, 497-98 (1983); State v. Velasquez, 994 S.W.2d 676, 678 (Tex. Crim. App. 1999). Such an encounter does not require any justification on the officer's part. See United States v. Mendenhall, 446 U.S. 544, 553 (1980); Daniels v. State, 718 S.W.2d 702, 704 (Tex. Crim. App. 1986), overruled on other grounds, Juarez v. State, 758 S.W.2d 772, 780 (Tex. Crim. App. 1988). Police officers are as free as any other citizens to approach citizens on the street and ask for information. State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008). Such interactions may involve inconvenience or embarrassment, but they do not involve official coercion. Id. Only when the implication arises that an officer's authority cannot be ignored, avoided, or ended, does a Fourth Amendment seizure occur. Id. Determining whether specific facts amount to a detention under the Fourth Amendment or a consensual police-citizen encounter is subject to de novo review because that is an issue of law — the application of legal principles to a specific set of facts. Id. at 241. The occurrence of a consensual encounter is determined by the totality of the circumstances and "whether a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter." Bostick, 501 U.S. at 436. Circumstances that may indicate a police-citizen interaction is a seizure, rather than a consensual encounter, include the threatening presence of several officers, the officer's display of a weapon, the officer's display of authority or control over the defendant by activating the siren or any patrol car overhead lights, physical touching of the citizen by the officer, the officer's words or tone of voice indicating that compliance with the officer's requests might be compelled, or flashing lights or blocking a suspect's vehicle. Mendenhall, 446 U.S. at 554. It is not completely clear from the trial court's oral factual findings, but it appears that the court found an investigative detention occurred when the officer turned on the patrol vehicle lights. Thus, the focus of our inquiry should be on whether appellant, or a reasonable person in his shoes, would have felt free to leave after Deputy Ray turned on his patrol vehicle's lights and sirens. This test is both objective and fact specific; "the `reasonable person' test presupposes an innocent person." Garcia-Cantu, 253 S.W.3d at 243 (quoting Bostick, 501 U.S. at 438). The only show of authority by Deputy Ray in our record is Deputy Ray's use of flashing lights and sirens. Flashing lights and sirens, however, are not a weak demonstration of authority. In Garcia-Cantu, the Texas Court of Criminal Appeals lists ten jurisdictions where courts have held the use of police emergency lights are sufficient to constitute a detention. See Garcia-Cantu, 253 S.W.3d at 245 n. 43. We agree with these cases and conclude that a reasonable person would not feel free to leave when a police vehicle has initiated its flashing lights and sirens after pulling up behind that person's vehicle. Therefore, we hold appellant was seized for Fourth Amendment purposes. 2. Community Caretaking Function
A police officer may reasonably seize an individual through the exercise of his community caretaking function. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999). Because a police officer's duties involve activities other than gathering evidence, enforcing the law, or investigating crime, the Supreme Court has characterized a police officer's job as encompassing a community caretaking function. Cady v. Dombrowski, 413 U.S. 433, 441 (1973); Corbin, 85 S.W.3d at 276. As part of an officer's duty to "serve and protect," an officer "may stop and assist an individual whom a reasonable person, given the totality of the circumstances would believe is in need of help." Wright, 7 S.W.3d at 151. The community caretaking function, however, is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin, 85 S.W.3d at 276-77. As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose. Id. at 277. Deputy Ray testified he approached appellant because of the totality of the circumstances, including appellant's continuing failure to maintain a single lane, his pulling onto the shoulder, and his eventual stop on the shoulder. Deputy Ray explained that he merely wanted to see what was going on in appellant's vehicle. The trial court, as the exclusive judge of credibility and finder of fact, could have concluded Deputy Ray was primarily motivated by community caretaking concerns. See Corbin, 85 S.W.3d at 277. Once it is determined that an officer is primarily motivated by his community caretaking function, it must then be determined whether the officer's belief that the defendant needs help is reasonable. Wright, 7 S.W.3d at 151-52. In evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. at 152. In reviewing these factors, the nature and level of distress exhibited is entitled to the greatest weight. Corbin, 85 S.W.3d at 277. Here, the first factor, the nature and level of the distress exhibited, is low. Deputy Ray testified that he witnessed appellant driving at the speed limit the entire time he was following him. He explained he saw appellant briefly touch the divider line with his two driver side wheels and then moved back into the center of the lane. The first time appellant pulled onto the shoulder it was, by Deputy Ray's admission, most likely to allow Deputy Ray to pass appellant, as Deputy Ray had just passed the vehicle behind appellant. Deputy Ray continued to follow appellant and testified appellant was not driving erratically. When appellant finally stopped his vehicle on the shoulder he did not display any level of distress. This factor weighs against the application of the community caretaking function. See Eichler v. State, 117 S.W.3d 897, 902 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (a single swerve alone does not necessarily constitute a driver in distress). Regarding the second factor, the location of the appellant, Deputy Ray testified that they were driving on highway 105, a fairly well traveled thoroughfare with moderate traffic at night. The factor also weighs against the application of the community caretaking function. See Franks v. State, 241 S.W.3d 135, 145 (Tex. App.-Austin 2007, pet. ref'd) (finding second factor did not weigh in favor of detention where record did not show the location was unsafe or isolated from traffic, businesses, and residences). The third factor, whether the individual was alone or had access to assistance, supports the community caretaking function. The record indicates appellant was alone in his vehicle. The fourth factor, the extent to which the individual posed a danger to himself or others if not assisted, weighs against the community caretaking function. The record shows at the time Deputy Ray detained appellant, he knew the following facts: (1) appellant had been driving at the speed limit; (2) appellant drove for a short period on the center line of the highway; (3) appellant pulled onto the shoulder to allow Deputy Ray to pass and; (4) appellant finally pulled onto the shoulder to stop. There was nothing to indicate to Deputy Ray that appellant posed a danger to himself or others. Deputy Ray testified appellant's driving was not unsafe or erratic. Once appellant stopped his vehicle, his conduct was not out of the ordinary. Appellant could have been easily stopping to check a map, make a cellular telephone call or a number of other activities that would require him to stop his vehicle on the shoulder. Applying the above factors, we hold Deputy Ray's exercise of his community caretaking function was unreasonable. Merely pulling one's vehicle onto the shoulder of the road does not warrant detention by a law enforcement officer. Furthermore, the curiosity of an officer to see "what was going on" is not sufficient to meet the community caretaking function. Accordingly, we sustain appellant's second issue. CONCLUSION
Because we hold Deputy Ray unlawfully detained appellant, we reverse and remand for a new trial consistent with this opinion.