Foster v. State
| Decision Date | 06 August 2009 |
| Docket Number | No. 03-08-00457-CR.,03-08-00457-CR. |
| Citation | 297 S.W.3d 386 |
| Parties | Ryan Cameron FOSTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Before Chief Justice JONES, Justices PURYEAR and HENSON.
The State charged Ryan Cameron Foster with the Class B misdemeanor of driving while intoxicated (DWI). See Tex. Penal Code Ann. § 49.04(a) (West 2003). Following the trial court's denial of Foster's motion to suppress, Foster pleaded no contest. The court sentenced him to 120 days' confinement and a $2,000 fine, but suspended imposition of this sentence and placed him on community supervision for eighteen months. In one point of error, Foster argues that the trial court erred by not suppressing evidence obtained by the police during his investigative detention and subsequent arrest because the police did not have reasonable suspicion to investigate him for driving while intoxicated. Because Foster's detention was not supported by reasonable suspicion, we reverse the order of the trial court.
On September 13, 2007, at approximately 1:30 a.m., Kurt Thomas, an Austin Police Department detective, was stopped at a red traffic light in downtown Austin at the intersection of Eighth Street and the southbound frontage road of Interstate 35, near the downtown Austin police station.1
Thomas testified that while he was stopped at the traffic light, Foster drove up behind him in a Ford F-150 truck, with his headlights shining directly into Thomas's rearview mirror. Foster pulled extremely close to Thomas's unmarked vehicle, but did not actually make contact with Thomas's vehicle. According to Thomas, he heard a revving sound and noticed Foster's truck lurch forward once, then a second time, as if attempting to maneuver into the empty lane to the left. During the second lurching movement, Foster's vehicle moved slightly to the left but could not move into the empty lane because it was too close to Thomas's vehicle.
Immediately after the second lurching movement, a marked Austin Police Department patrol car driven by Sergeant Eric De Los Santos pulled alongside Thomas and Foster. Because Foster's truck was stopped on a two-lane, one-way street, he was effectively prevented from moving by the presence of the two police vehicles. Thomas and De Los Santos then exited their respective vehicles and approached Foster.
Upon approaching Foster's vehicle, Thomas and De Los Santos detected the odor of an alcoholic beverage. Foster was removed from his truck and a responding DWI enforcement officer conducted field sobriety tests, resulting in Foster's arrest for driving while intoxicated.
In a pretrial motion, Foster moved to suppress all evidence obtained as a result of the stop on the grounds that his detention was improper because it was not supported by reasonable suspicion. The trial court denied the motion to suppress, making express findings that Thomas's testimony was credible and that Thomas had reasonable suspicion to detain Foster in light of the time of night, the location near Austin's downtown bar district, and Foster's erratic driving, particularly the two lurching movements described in Thomas's testimony. This appeal followed.
On appeal, Foster contends that the trial court erred in denying the motion to suppress because the stop violated the prohibition of unreasonable searches and seizures found in the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution. See U.S. Const. amend. IV; Tex. Const. art. I, § 9. In response, the State argues that Foster was not detained until he was removed from his truck, at which time Thomas had not only observed Foster driving in an erratic fashion late at night near a bar district, but had also detected the odor of alcoholic beverages coming from Foster's vehicle. The State also argues that Thomas was justified in detaining Foster because he had reasonable suspicion that Foster had committed the traffic offenses of unsafe start from a stop position and reckless driving.2
The appropriate standard of review for a suppression ruling is a bifurcated review, giving almost total deference to the trial court's findings of fact, but conducting a de novo review of the court's application of law to those facts. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim.App.2000) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000)); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997). When reviewing the trial court's decision, an appellate court views the evidence in the light most favorable to the trial court's ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim. App.1999). The trial court's ruling must be upheld if it is reasonably supported by the record and is correct under any applicable legal theory. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). This rule holds true 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 police officer may stop and briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Carmouche, 10 S.W.3d at 328. When a warrantless seizure occurs, the burden is on the State to show that the officer had reasonable suspicion to believe that an individual was violating the law. Castro v. State, 227 S.W.3d 737, 741 (Tex.Crim.App.2007). "[R]easonable suspicion requires `that there is something out of the ordinary occurring and some indication that the unusual activity is related to crime.'" Davis v. State, 947 S.W.2d 240, 244 (Tex.Crim.App.1997) (quoting Viveros v. State, 828 S.W.2d 2, 4 (Tex.Crim.App. 1992)). A reasonable suspicion means more than a mere hunch or non-specific suspicion of criminal activity. Tanner v. State, 228 S.W.3d 852, 855 (Tex.App.-Austin 2007, no pet.). We take into consideration experienced police officers' perceptions and review their perceptions objectively, rather than subjectively. Ford v. State, 158 S.W.3d 488, 492-93 (Tex.Crim.App.2005). The reasonableness of a temporary detention must be examined by considering the totality of the circumstances at its inception and the detention will only be justified if the officer can point to specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a specific person had engaged in or was or soon would be engaging in criminal activity. Id.; Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim.App.2001). We look only at those facts known to the officer at the inception of the stop — a stop or search unlawful at its inception may not be validated by what it turns up. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
When was Foster detained?
The State argues that because Foster's truck was "at a standstill of its own accord," Foster was not detained until he was removed from his truck and only after the officers detected a strong odor of alcoholic beverages coming from the vehicle. In essence, the State argues that the two officers were simply initiating a consensual encounter with Foster which then turned into an investigative detention when they detected the odor of alcoholic beverages.
An investigative detention is distinguishable from a consensual encounter, which does not infringe on a constitutional right and requires no justification. Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). An officer without reasonable suspicion of criminal activity may question an individual during a consensual encounter, "as long as the person to whom questions are put remains free to disregard the questions and walk away." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, an investigative detention occurs when a person's freedom of movement is restrained, either by physical force or a show of authority. Johnson v. State, 912 S.W.2d 227, 236 (Tex.Crim.App.1995). A detention occurs when a person yields to an officer's show of authority or when a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); State v. Velasquez, 994 S.W.2d 676, 678-79 (Tex.Crim.App.1999). Determining at what point in time someone is detained is a question of law. Davis v. State, 22 S.W.3d 8, 11 (Tex.App.-Houston [14th Dist.] 2000, no pet.). An investigative detention constitutes a seizure and invokes constitutional safeguards. Mendenhall, 446 U.S. at 553, 100 S.Ct. 1870.
In this case, Foster was stopped on a two-lane, one-way street when he found himself barricaded on the front and side by two vehicles, one of which was a marked police car. While Foster was hemmed in by the two vehicles, police officers exited from the vehicles and began approaching his truck. Under such circumstances, a reasonable person would not only feel that he was not free to leave, but would be physically prevented from doing so, absent an attempt to exit the vehicle and flee on foot. On that basis, we hold that Foster was detained at the time the police officers blocked his vehicle, preventing him from leaving the scene, and began to approach. Thus, the detention must be justified based on the totality of the circumstances at that time.3
On appeal, the State presents two theories to justify the stop. Firs...
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