The State of Texas v. Bobby Wayne O'Neal--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00042-CR

The State of Texas,

Appellant

v.

Bobby Wayne O Neal,

Appellee

From the County Court at Law No. 1

McLennan County, Texas

Trial Court No. 2007-3613-CR1

MEMORANDUM Opinion

The State appeals the trial court s granting of O Neal s motion to suppress evidence in his prosecution for misdemeanor driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2008); Tex. Penal Code Ann. 49.04(a)-(b) (Vernon 2003), 49.09(a) (Vernon Supp. 2008). We reverse.

In the State s one issue, the State contends that the trial court erred in granting O Neal s motion to suppress evidence.

The trial court found as follows, in relevant part:

4. About 2:00 A.M. on May 13, 2007, [Texas Department of Public Safety] Trooper [Arturo] Perez observed Defendant s vehicle traveling southbound on Highway 6 near mile marker 494.

5. Trooper Perez observed Defendant s vehicle traveling above the 60 miles per hour speed limit.

6. The trooper confirmed with radar that Defendant was driving his vehicle 70 miles per hour in a 60 miles per hour zone.

7. The trooper initiated the traffic stop.

8. Defendant pulled his pickup truck over near the Imperial Drive exit.

9. The trooper approached Defendant s passenger-side window and signaled for the Defendant to lower the window, which he did.

10. From the passenger side of the Defendant s vehicle, the trooper smelled the strong odor of an alcoholic beverage coming from the inside of Defendant s vehicle.

. . . .

16. Once he told Defendant to exit his vehicle, the trooper observed what was possibly some staggering or strange walking by Defendant as Defendant walked to the rear of his vehicle.

17. Once asked, Defendant told the trooper he had consumed a few beers earlier, and he was coming from Graham s, a nightclub.

18. The trooper saw that the Defendant had red, glassy eyes.

19. The trooper conducted field sobriety tests on the Defendant.

(1 C.R. at 107.) Thereafter, Perez arrested O Neal for driving while intoxicated.

O Neal filed a motion to suppress evidence, in which he ask[ed] the Court to suppress all evidence involved in th[e] case. (1 C.R. at 13.) O Neal argued, as he argues on appeal, that the admission of the statements and/or acts or omissions of the Defendant and also of the seized and derivative evidence would violate the Defendant s . . . constitutional guarantees . . . against unreasonable searches and seizures . . . . (Id. (citing U.S. Const. amend. IV; Tex. Const. art. I, 9).) The trial court granted O Neal s motion, and ORDERED that all evidence in th[e] case discovered or collected as the result of the smell of alcohol in Defendant s vehicle on the occasion in question is deemed by the court to be inadmissible upon the trial of th[e] case. (1 C.R. at 75.)

We review a trial court s ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007) (citing Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)); accord State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985); Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990) (op. on orig. submission), 390-91 (1991) (op. on reh g); see Ramos v. State, 245 S.W.3d 410, 419 (Tex. Crim. App. 2008). We give almost total deference to a trial court s express or implied determination of historical facts and review de novo the court s application of the law of search and seizure to those facts. Dixon at 590 (citing State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000)); accord St. George at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Whether a specific search or seizure was reasonable is a mixed question of law and fact and is conducted de novo. St. George at 725 (citing Kothe v. State, 152 S.W.3d 54, 62-63 (Tex. Crim. App. 2004)); see State v. Mechler, 153 S.W.3d 435, 439-40 (Tex. Crim. App. 2005).

The Fourth Amendment to the United States Constitution provides, The right of the people to be secure in their persons . . . , against unreasonable . . . seizures, shall not be violated . . . . U.S. Const. amend. IV; accord Tex. Const. art. I, 9. [I]n Fourth Amendment terms a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief. Brendlin v. California, 127 S. Ct. 2400, 2406 (2007) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)) (alteration added); see McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).

[A] law enforcement officer s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 178 (2004); see Terry v. Ohio, 392 U.S. 1 (1968); Ford, 158 S.W.3d at 492 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)). [T]he test of reasonableness under the Fourth Amendment is necessarily objective as opposed to subjective . . . . Ybarra v. Illinois, 444 U.S. 85, 109 (1979) (citing Terry at 21-22); Castro v. State, 227 S.W.3d 737, 743 (Tex. Crim. App. 2007); Garcia, 43 S.W.3d at 530. [A]n individual officer s subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively . . . . City of Indianapolis v. Edmond, 531 U.S. 32, 45 (2000) (citing Whren v. United States, 517 U.S. 806, 810-13 (1996)); see Griffin v. State, 215 S.W.3d 403, 409-10 (Tex. Crim. App. 2006) (op. on orig. submission); State v. Gray, 158 S.W.3d 465, 469-70 (Tex. Crim. App. 2005); Faulk v. State, 574 S.W.2d 764, 766 (Tex. Crim. App. 1978).

In such a Terry investigative stop, [t]he officer s action must be justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place. Hiibel, 542 U.S. at 185 (quoting United States v. Sharpe, 470 U.S. 675, 682 (1985)) (ellipses in Hiibel)(some internal quotation marks omitted); see Terry, 392 U.S. at 20; St. George, 237 S.W.3d at 725-26. In assessing whether a detention is too long in duration to be justified as an investigative stop, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. Sharpe, 470 U.S. at 686; see Kothe, 152 S.W.3d at 65 n.42.

When discussing how reviewing courts should make reasonable-suspicion determinations, the United States Supreme Court ha[s] said repeatedly that they must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)); accord Samson v. California, 547 U.S. 843, 848 (2006); see Madden v. State, 242 S.W.3d 504, 517 (Tex. Crim. App. 2007) (citing Kothe, 152 S.W.3d at 62-63); Armstrong v. State, 550 S.W.2d 25, 30-31 (Tex. Crim. App. 1977) (op. on reh g).

Here, the trial court concluded, The strong odor of an alcoholic beverage coming from inside a vehicle does not provide sufficient evidence to raise a reasonable suspicion to detain and investigate whether that person had committed the offense of Driving While Intoxicated. (1 C.R. at 108.) We cannot agree. The smell of alcohol can constitute, or contribute to, reasonable suspicion of intoxication. See Sanchez v. State, 582 S.W.2d 813, 814-15 (Tex. Crim. App. [Panel Op.] 1979); see also, e.g., Shakespeare v. State, No. 03-00-00707-CR, 2001 Tex. App. LEXIS 2727, at *5-6 (Tex. App. Austin Apr. 26, 2001, no pet.) (not designated for publication); State v. Brabson, 899 S.W.2d 747, 749 (Tex. App. Dallas 1995), aff d, 976 S.W.2d 182 (Tex. Crim. App. 1998); cf. Amador v. State, 242 S.W.3d 95, 101 (Tex. App. Beaumont 2007, pet. granted on other grounds); but see Domingo v. State, 82 S.W.3d 617, 622 (Tex. App. Amarillo 2002, no pet.).

Apart from the odor of alcohol, other evidence in Trooper Perez s knowledge at the time he detained O Neal might, too, have objectively and reasonably caused Perez to suspect O Neal of driving while intoxicated. O Neal was speeding at about 2:00 a.m. See Tex. Transp. Code Ann. 542.301(a), 545.351(a) (Vernon 1999). Speeding can contribute to reasonable suspicion of driving while intoxicated. See, e.g., State v. Cullen, 227 S.W.3d 278, 282 (Tex. App. San Antonio 2007, pet. ref d); Arthur v. State, 216 S.W.3d 50, 55-56 (Tex. App. Fort Worth 2007, no pet.); Ainsworth v. State, No. 06-05-00017-CR, 2006 Tex. App. LEXIS 2118, at *8, *14-15 (Tex. App. Texarkana March 20, 2006, no pet.) (not designated for publication) (mem. op.); Kindle v. State, No. 05-01-01818-CR, 2003 Tex. App. LEXIS 9774, at *5-6 (Tex. App. Dallas Nov. 18, 2003, no pet.) (not designated for publication) (mem. op.); Peace v. State, No. 07-02-0347-CR, 2003 Tex. App. LEXIS 7899, at *9 (Tex. App. Amarillo Sept. 9, 2003, no pet.) (not designated for publication); State v. $30,660.00, 136 S.W.3d 392, 399-401 (Tex. App. Corpus Christi 2004, pet. denied). The time of night can also contribute to reasonable suspicion of driving while intoxicated. See $30,660.00, at 399-401.

Moreover, short of suspecting that O Neal was intoxicated, the strong odor of an alcoholic beverage in O Neal s truck would have given Trooper Perez reasonable suspicion to detain O Neal for investigation of possession of an alcoholic beverage in a motor vehicle. See Tex. Penal Code Ann. 49.031(b) (Vernon 2003).

That evidence objectively gave Trooper Perez reasonable suspicion to detain O Neal while Perez diligently pursued a means of investigation that was likely to confirm or dispel Perez s suspicions quickly. O Neal was the driver and only occupant of a truck whose interior had a strong odor of an alcoholic beverage. Trooper Perez asked O Neal to get out of his truck and answer a few simple questions; that investigation might quickly have dispelled Perez s suspicion that O Neal was intoxicated or in possession of an alcoholic beverage. But very far from dispelling Trooper Perez s suspicions, O Neal immediately confirmed them, and continued to do so at every turn. O Neal staggered when he got out of his truck, and said that he had come from a nightclub where he had been drinking. Trooper Perez testified that the odor of alcohol that he had smelled through the passenger-side window came from O Neal s breath, not just from the truck interior. Trooper Perez also saw that O Neal s eyes were red and glassy.

O Neal argues, The odor of alcohol alone will not support a finding of reasonable suspicion, and Speeding is not evidence of Driving While Intoxicated. (Br. at iii, 9, 17.) For the reasons stated above, however, the odor of alcohol and speeding can contribute to reasonable suspicion of driving while intoxicated. O Neal also argues, Reasonable suspicion for speeding traffic violation [is] not transferrable to DWI investigation. (Id. at iii, 10.) That is, O Neal argues, The stop , if justified, could not exceed the time necessary to issue O Neal a citation (ticket) or warning for speeding. (Id. at 11 (citing Tex. Dep t of Pub. Safety v. Rodriguez, 953 S.W.2d 362, 364 (Tex. App. Austin 1997, no writ)).) But in that brief time, O Neal s conduct tended more and more to confirm Trooper Perez s reasonable suspicion that O Neal was driving while intoxicated; in that case, Perez s further detention of O Neal was reasonable. O Neal also argues, Speeding, the sole reason for the traffic stop in this case, was abandoned. (Br. at iii, 15.) But the trial court found that Trooper Perez gave O Neal a warning citation for speeding, in the citation for driving while intoxicated. (1 C.R. at 107, Finding No. 12.) Lastly, O Neal argues, Speeding is not an offense which authorizes an officer to arrest a driver. (Br. at iii, 11 (citing, e.g., Tex. Transp. Code Ann. 543.004(a), 543.005 (Vernon Supp. 2008)).) The Texas Transportation Code s restrictions on arrests for speeding do not govern here; Trooper Perez arrested O Neal for driving while intoxicated, not for speeding.

Considering the totality of the circumstances objectively, we hold that the trooper did not detain O Neal longer than reasonable suspicion justified. The trial court erred in granting O Neal s motion to suppress evidence. We sustain the State s issue.

Having sustained the State s sole issue, we reverse and remand.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance dissents from the judgment with a note) *

Reversed and remanded

Opinion delivered and filed August 13, 2008

Do not publish

[CR25]

* (The same review standard applies when the State is challenging an adverse ruling on a motion to suppress evidence as when the defendant does. I would defer to the trial court s resolution of the factual matters presented to him and affirm the suppression order in all respects. Abuse of discretion is the standard, and we should reverse only if the trial court s resolution is outside the bounds of reasonable disagreement. See State v. Cantwell, 85 S.W.3d 849, 852 (Tex. App. Waco 2002, pet. ref d).)