Eric Eugene Hirsch v. The State of Texas--Appeal from County Court of Wilson County

MEMORANDUM OPINION

No. 04-05-00289-CR

Eric Eugene HIRSCH,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court, Wilson County, Texas

Trial Court No. 04-06-0249-CRC

Honorable Marvin Quinney, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 23, 2005

AFFIRMED

Appellant Eric E. Hirsch appeals his conviction for the offense of possession of less than two ounces of marijuana. Hirsch pled nolo contendere to the charge of possession of less than two ounces of marijuana following the trial court s denial of his motion to suppress evidence. In his sole point of error, Hirsch claims the trial court erred in failing to suppress all evidence and statements resulting from the traffic stop initiated by Officer Broom. Because the trial court could have reasonably believed Officer Broom acted in accordance with his community caretaking functions in seizing Hirsch, we affirm the trial court s judgment.

Factual Background

At the suppression hearing, only Sergeant Investigator Randy Broom, from the 81st Judicial District Narcotics Task Force, testified. On the evening of June 18, 2003, Broom was working, in uniform, running stationary radar in La Vernia, Texas. At about 10:30 p.m., Broom observed Hirsch, approximately two blocks away, driving a white Ford SUV out of a Diary Queen parking lot. Having his windows down, Broom heard a real loud scraping noise coming from Hirsch s vehicle as he exited the parking lot. Broom stated he was concerned something was mechanically wrong with the vehicle and that possibly it could present a danger to somebody else if something...fell off the vehicle.

Upon hearing the loud noise Broom immediately activated his lights and initiated a stop of Hirsch s vehicle. Broom explained he initiated the traffic stop out of concern for Hirsch and others not because he observed traffic law infractions or suspected criminal activity. Hirsch complied and pulled over after, apparently, only traveling a short distance. Broom approached Hirsch and explained why he stopped him. Hirsch, replied that his drive shaft and rotors were scraping causing this loud noise.

Although not discussed at the suppression hearing, Broom s investigative report indicates that he learned of Hirsch s previous arrest for possession of marijuana after the stop. Further, the report reveals, after a series of questions by Broom, Hirsch admitted to possessing a small amount of marijuana within a backpack. Thereafter Broom arrested Hirsch for possession of less than two ounces of marijuana.

At the hearing on the motion to suppress, Hirsch s sole argument was that the State failed to establish the community caretaking exception to the warrant requirement as justification for the initial stop. Conversely, the State urged that the stop was a lawful exercise of the officer s community caretaking function. The trial court denied the motion to suppress and did not make any written findings or conclusions. The facts set out in the record are undisputed.

Standard of Review

We review the trial court s ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to a trial court s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. The trial court s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).

Discussion and Analysis

Hirsch challenges the trial court s ruling on the motion to suppress on the basis that the initial stop was unlawful. Generally, the strictures of the Fourth Amendment require a seizure to be objectively reasonable. Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). Here, Hirsch was seized, within the meaning of the Fourth Amendment, when Officer Broom stopped his vehicle. Id. A seizure based on reasonable suspicion or probable cause will generally be reasonable. Id. However, a police officer may reasonably seize an individual, even without reasonable suspicion or probable cause of an offense, if the officer is exercising community caretaking functions. Id; Wright v. State, 7 S.W.3d 148, 152 (Tex. Crim. App. 1999) (recognizing the community caretaking doctrine as a reasonable exception to the warrant requirement of the United States and Texas Constitutions). The community caretaking function exception to the warrant requirement allows an officer to seize an individual he reasonably believes is in need of assistance. Wright, 7 S.W.3d at 276-77. Because the State validates the initial stop under the community caretaking function, and Hirsch counters that Broom s belief was unreasonable, the crux of this case is whether the community caretaking function exception justifies Hirsch s initial stop.

Community Caretaking Function

Initially, we would address whether Broom was primarily motivated by his community caretaking function, however; Hirsch does not contend otherwise and the record supports such a finding. Corbin, 85 S.W.3d at 277 (indicating if the primary motivation is a noncommunity caretaking function the initial stop is invalid). Therefore, we must next determine whether the police officer s belief that the individual was in need of help was reasonable, taking into account the totality of the circumstances. Id. The Court of Criminal Appeals has provided the following nonexclusive factors in determining whether the officer s belief that the defendant needed assistance was reasonable:

(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.

The purpose of the community caretaking exception is to allow an officer to seize and assist an individual he reasonably believes needs help. Id. As such, the first factor merits the greatest weight in this determination. Id. However, because [a] particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors, all four factors must be analyzed. Id.

1. The Nature and Level of Distress Exhibited by the Individual

The State must show not just distress, but a level and nature of distress that would create a reasonable belief that the defendant was in need of assistance. See Corbin, 85 S.W.3d at 277 (stating [t]he greater the nature and level of distress exhibited, the more likely the police involvement will be...reasonable ). Notably, the only distress identified by Broom was the real loud noise emitting from Hirsch s vehicle. The State argues the real loud noise sufficed to establish, under the community caretaking function, a reasonable belief that Hirsch needed help. On the other hand, Hirsch asserts Broom...could not see the interior of the vehicle and could not tell what level of distress was exhibited [therefore] Broom fail[ed] to meet the first factor.

We disagree with Hirsch s narrow interpretation. Reasonableness is an objective standardand thus whether Hirsch exhibited any distress is not entirely dispositive. See Morfin v. State, 34 S.W.3d 664, 667 (Tex. App. San Antonio 2000, no pet.) (stating [t]he fact that the individuals were not exhibiting any distress does not detract from the reasonableness of [the officer s] decision to approach the car and determine if assistance was required ). Because of the unusual circumstances in this case, the nature and level of distress is heavily dependent on Broom s perception of the volume, resonance, and character of the loud scraping noise. In that regard, the trial court was in a better position to determine whether the real loud noise Broom described could have lead a reasonable person to believe Hirsch was significantly in distress. See State v. Cullen, 167 S.W.3d 428, 432 (Tex. App. San Antonio 2005, pet. granted) (stating with a cold appellate record, we must defer to the trial court s assessment of the officer s credibility ).

Broom testified he had previously stopped other drivers out of concern for their safety and the public s, yet also stated he had never before initiated a stop on the basis of a loud mechanical noise. In this instance, the uniqueness and timbre of the noise lead Broom to believe something was severely mechanically wrong with Hirsch s vehicle presenting a danger to the driver, passenger, and the public. Cf. Morfin, 34 S.W.3d at 667 (justifying the officer s initial approach of the defendant s vehicle, under the community caretaking function, because of his overall concern that something was wrong). Viewing the evidence in the light most favorable to the trial court s ruling, and acknowledging the trial court was in a better position to assess the credibility and demeanor of Officer Broom, we conclude the trial court could have accepted the real loud noise as sufficient to create a reasonable belief that Hirsch was significantly in distress. See Guzman, 955 S.W.2d at 89 (declaring, as a general rule, appellate courts should afford almost total deference to a trial court s determination of facts and to mixed questions of law and fact if the resolution of those questions are based on an evaluation of credibility and demeanor).

2. The Location of the Individual

In Morfin v. State, this court held it was reasonable for the officer to believe the individuals within a stopped car were in danger and in need of assistance given the location a dark high crime area. 34 S.W.3d 664, 667 (Tex. App. San Antonio 2000, no pet.). In Corbin v. State, the Court of Criminal Appeals, in reversing the trial court s denial of the defendant s motion to suppress, stated:

[a]lthough the Court of Appeals characterized the location as a somewhat isolated stretch of interstate highway, we find nothing in the record that describes the location other than as an intersection. Since there is nothing in the record indicating that this area is isolated with little traffic and no business or houses nearby, it cannot support the ruling.

85 S.W.3d at 277.

Here, contrary to Morfin and Corbin, the record reveals the location was near or in a residential area, close to shops and a police station in La Vernia, Texas. Notwithstanding the fact that the time of the stop was around 10:30 p.m., the location alone does not seem to support a level and nature of distress that would create a reasonable belief that Hirsch needed assistance.

3. Whether or Not the Individual Was Alone and/or Had Access to Assistance Other Than That Offered by the Officer.

The evidence shows Hirsch was not traveling alone and a police station was nearby. However, Broom may not have known Hirsch was traveling with a passenger at the time he initiated the stop. Alternatively, Broom could reasonably conclude that both the driver and passenger were in danger if something fell off the vehicle. See Morfin, 34 S.W.3d at 667 (stating that [a]lthough two individuals were in the car, the officer could reasonably have concluded that the individuals were in danger if their car was inoperable given their location ).

The location in Morfin was a pivotal factor in justifying the officer s approach under the community caretaking function because the high crime area created the danger. Id. In this case, Broom expressed concerns about the potential for an abrupt structural failure of a moving vehicle on a public road, in or near a residential area and a police station. The danger Broom perceived by the volume and resonance of the scraping noise could reasonably justify Broom s immediate action in order to prevent the corresponding harm. See Cunningham v. State, 966 S.W.2d 811, 813 (holding when an officer has a demonstrable reason that an individual needs assistance, a temporary stop is justified). Moreover, the fact that a police station or residences were nearby, possibly occupied by individuals who could render assistance, becomes immaterial considering Broom s intent was to prevent the harm to Hirsch, the passenger, or the public from effectuating. Considering the perceived danger at hand, the trial court could have reasonably construed the location and access to assistance other than that offered by Broom as neutral factors. See Corbin, 85 S.W.3d at 277 (noting that circumstances unique to a particular case...may swing the balance one way or the other ).

4. To What Extent the Individual, If Not Assisted, Presented a Danger to Himself or Others

Broom testified his concerns were that something might fall off Hirsch s vehicle. Significantly, according to Broom, the noise continued until Hirsch came to a stop. Although Hirsch seemed aware of the problem, his apparent disregard for the potential consequences of driving a vehicle emitting loud scraping noises could reasonably indicate a significant danger to Hirsch, the passenger, and others nearby existed. Furthermore, without assistance, the risk of danger to Hirsch or others appears heavily correlated to the nature and level of distress reasonably perceived. Having concluded that it was reasonable for the trial court to believe Hirsch was significantly in distress, it follows that Hirsch could reasonably present a danger to himself or others if not assisted. Consequently, considering all four factors and the unusual circumstances in this case, we are unable to conclude that the trial court abused its discretion in denying Hirsch s motion to suppress.

Conclusion

We hold that the record reasonably supports the trial court s denial of Hirsch s motion to suppress pursuant to the community caretaking exception to the warrant requirement. Accordingly, we overrule Hirsch s sole point of error and affirm the judgment of the trial court.

Rebecca Simmons, Justice

Do Not Publish