State v. Nelson

• Decision Date: 29 June 2007
• Docket Number: No. 03-06-00352-CR.,03-06-00352-CR.
• Citation: State v. Nelson, 228 S.W.3d 899 (Tex. App. 2007)
• Parties: The STATE of Texas, Appellant, v. Mary Guthrie NELSON, Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 899

The STATE of Texas, Appellant, v. Mary Guthrie NELSON, Appellee.

No. 03-06-00352-CR.

Court of Appeals of Texas, Austin.

June 29, 2007.

Christopher G. Taylor, County Attorney, San Angelo, for State.

Jay Moore, Kenneth L. Maxwell, Jr., Moore, Dickson, & Maxwell, PLLC, Sweetwater, for Appellant.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

G. ALAN WALDROP, Justice.

The State appeals an order granting appellee Mary Guthrie Nelson's motion to suppress evidence in this prosecution for possession of less than 28 grams of diazepam. See Tex.Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). The controlled substance was seized following Nelson's arrest for driving while intoxicated. The court concluded that both the initial traffic stop and the subsequent arrest were unlawful. The State contends that a tip from a concerned citizen and the officer's own observations provided a sufficient basis for the stop, and that the knowledge the officer gained after the stop gave him probable cause for the arrest. Although we agree with the State that the initial stop was lawful, we agree with the trial court's conclusion that there was not probable cause for the arrest. Therefore, we will affirm the suppression order.

The Stop

The incident at issue occurred on the night of October 22, 2005. Kathy Winkley testified that she and her daughter-in-law were driving north from Eden toward San Angelo when she noticed the vehicle ahead of them being driven in what she considered to be an erratic fashion. Winkley testified that she first noticed the other vehicle in a highway construction area, when it almost entered the southbound lane in disregard of traffic cones separating the lanes. After the construction zone ended and the highway divided into four lanes with a grass median between the northbound and southbound lanes, she saw the suspect vehicle "going like from the grass on the right side over to [the] other grass on the left side, back-and-forth." At this point, Winkley called 911 on her cell phone "because I didn't feel like it was safe." Winkley testified that she did not get close enough to the suspect vehicle to describe it in detail or get its license number because it would sometimes speed up to ninety miles-per-hour and then the driver would "slam on the brakes." Nevertheless, she kept it in sight as she followed it for about twenty minutes while describing her observations to the dispatcher. When the suspect vehicle was stopped, Winkley also stopped and remained at the scene until a deputy took her statement.

Deputy Joe Ybarra testified that he was dispatched to investigate the report of a possible drunk driver who was "all over the road." The record reflects that there was little traffic, and Ybarra said that he was able to find the two vehicles approaching San Angelo from the south, one following the other in the outside lane. Ybarra testified that he "got in between the vehicles" and began to follow the suspect. He said, "This vehicle was within its lane weaving back-and-forth, and then a couple of times or two occasions it crossed a solid white line leading into the improved shoulder, and it drove on the improved shoulder for some way."

The video camera in Ybarra's patrol car recorded the incident. The videotape was introduced in evidence and has been viewed by this Court. The videotape reflects that Ybarra followed the suspect vehicle for one minute before stopping it. During this time, the vehicle drifted toward the broken line dividing the two northbound lanes three times, touching the line with its left tires. The vehicle also drifted to the right three times, once touching and twice crossing the solid line, also called the fog line, separating the outer lane of traffic from the improved shoulder. The two times the fog line was crossed, the suspect vehicle's right tires were never more than a few inches over the line, and they remained there for no more than one or two seconds. The videotape also shows that twice after weaving to one side of the lane or the other, the driver of the suspect vehicle stepped on the brakes. Ybarra acknowledged that there was no other traffic and that he did not see the suspect vehicle commit an unsafe act.

Ybarra testified that he stopped the suspect vehicle, which was driven by Nelson, for failing to maintain a single lane and for driving on the improved shoulder. See Tex. Transp. Code Ann. §§ 545.058, .060 (West 1999). The State contends that Ybarra's testimony and the videotape evidence establishes that the deputy had a reasonable basis for suspecting a traffic violation on the basis of his observations alone. The State further contends that when the information received from Winkley is considered, the deputy had a reasonable basis for suspecting that appellant was driving while intoxicated. In either case, the State contends that the stop was justified.

A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.-Austin 1998, pet. ref'd). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App.1997). A detaining officer must have specific articulable facts that, taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Id.; Hernandez, 983 S.W.2d at 869. It is the State's burden to prove that a warrantless detention was lawful. State v. Huddleston, 164 S.W.3d 711, 716 (Tex. App.-Austin 2005, no pet.).

When reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the court's determination of the historical facts that the record supports, especially when those fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App.1997). The same level of deference is accorded the trial court's rulings on mixed questions of law and fact if those decisions turn on the credibility and demeanor of the witnesses. Id. We review de novo mixed questions of law and fact that do not turn on witness credibility. Id.

The trial court made written findings of fact and conclusions of law. With regard to the initial traffic stop, the court found:

• Deputy Ybarra overheard a dispatch call about a possible drunk driver on Highway 87 and he responded to the call in his patrol unit.

• The driver who made the call was on the phone with the dispatcher and was following the vehicle operated by the Defendant.

• Deputy Ybarra received information from the dispatcher that the vehicle was "all over the road" but did not recount what, if any, other information he received about the vehicle operated by the Defendant.

• Deputy Ybarra admitted that the information he had prior to the time he pulled in behind the vehicle operated by the Defendant was insufficient to allow him to form a reasonable suspicion or probable cause to effect a traffic stop of the Defendant.

• Deputy Ybarra located the vehicles and pulled in behind the vehicle operated by the Defendant and began to observe the Defendant's driving ability.

• Deputy Ybarra stated there was nothing unsafe in the movements of Defendant's vehicle as he followed behind the Defendant.

• Based on the Court's viewing of the videotape (State's Exhibit # 1) and considering the testimony of Deputy Ybarra, the Defendant did not drive in an unsafe manner.

• The videotape admitted as State's Exhibit # 1 contradicted some of Deputy Ybarra's observations at the scene and his testimony at the suppression hearing which had a direct bearing on his credibility.

The court concluded that the stop "cannot be justified as pursuant to a traffic violation" or "under the totality of the circumstances that were either testified to or observable from the videotape."

The factual basis for stopping a vehicle need not arise from the officer's personal observation but may be supplied by information acquired from another person. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.App.2005). A stop based on facts supplied by a citizen-eyewitness, when adequately corroborated by the officer, does not run afoul of the Fourth Amendment. Brother, 166 S.W.3d at 259. "Corroboration" does not mean that the officer must personally observe the conduct that causes him to reasonably suspect that a crime is, has been, or is about to be committed. Id. at n. 5. Rather, it refers to whether the officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is thus justified. Id. Unsolicited information regarding a crime in progress provided by a citizen who has no relationship with the police and who makes herself accountable by providing contact information is inherently reliable. See id. at 258; Reesing v. State, 140 S.W.3d 732, 737 (Tex.App.-Austin 2004, pet. ref'd); Pipkin v. State, 114 S.W.3d 649, 655 (Tex.App.-Fort Worth 2003, no pet.).

In Brother, the defendant's erratic driving was reported by a citizen who called 911 on her cell phone after she witnessed the defendant speeding, tailgating, and weaving across several lanes of traffic. 166 S.W.3d at 256. The citizen continued to follow the defendant and monitor his driving, remaining in contact with the 911 operator until the defendant was stopped by a police officer. Id. at 257. The citizen remained at the scene of the stop and provided the officer with her contact information. Id. Although the officer did not personally witness a traffic offense, the court of criminal appeals affirmed the court of appeals's judgment...