Wright v. State, 03-97-00231-CR

• Decision Date: 08 January 1998
• Docket Number: No. 03-97-00231-CR,03-97-00231-CR
• Citation: 959 S.W.2d 355
• Parties: Kyle Walker WRIGHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 355

959 S.W.2d 355

Kyle Walker WRIGHT, Appellant, v. The STATE of Texas, Appellee.

No. 03-97-00231-CR.

Court of Appeals of Texas Austin.

Jan. 8, 1998.

David H. Reynolds, Austin, for appellant.

Eugene D. Taylor, Williamson County Attorney, Carol Collins, Assistant County Attorney, Georgetown, for State.

Before KIDD, B.A. SMITH and DALLY ^* JJ.

DALLY, Justice (Retired).

Appellant Kyle Walker Wright appeals from his conviction for possessing less than two ounces of marihuana. See Tex. Health & Safety Code Ann. § 481.121 (West Supp.1997). Appellant entered a no contest plea pursuant to a plea bargain agreement; the trial court deferred adjudication of guilt and placed appellant on community supervision for nine months and assessed a $250 fine.

In his only point of error, appellant asserts that the trial court erred in overruling his motion to suppress evidence. Appellant urges the evidence that the trial court refused to suppress was obtained by officers as a result of appellant's unlawful detention in violation of his federal and state constitutional rights and his state statutory rights. See U.S. Const. amend. IV, XIV; Tex. Const. art. I, § 9; Tex.Code.Crim. Proc. Ann. art. 38.23 (West Supp.1998). We will sustain appellant's point of error.

We summarize the scant evidence adduced on the motion to suppress. Williamson County Deputy Sheriff Jack Tomlinson, the arresting officer, was the only witness who testified. Deputy Tomlinson testified that he was in a training program preparing to go on patrol duty and that he and other officers were parked along the side of Highway 620. At about 4:00 a.m. a car passed; in the right rear seat was a passenger, identified in court as appellant, who was leaning out of the open car window. Appellant was vomiting on the side of the car. The officers stopped the car occupied by the driver, appellant, and another passenger. There was no testimony that the car was being driven recklessly or in any way unlawfully. When Deputy Tomlinson came within two or three feet of the car he smelled odors he associated with alcoholic beverages and marihuana. In plain view on the console between the front seats, Deputy Tomlinson saw a partially burned marihuana cigarette. Other than this partially burned marihuana cigarette, which is the basis of this prosecution, no other drugs were found. After hearing the evidence and argument of counsel, the trial court refused to grant the motion to suppress.

The State asks that we hold the trial court properly refused to grant appellant's motion to suppress because (1) "[T]here is ample basis in law and fact to affirm the judgment of the trial court based on the community caretaking doctrine," or (2) although not raised in the trial court, it "would be correct to affirm the trial court's ruling on appellant's motion to suppress evidence and subsequent conviction based on the presence of reasonable suspicion of criminal activity." The appellant urges that there were no articulable facts to raise a reasonable suspicion that appellant was engaged in criminal activity. Moreover, appellant asserts that even if the community caretaking doctrine were recognized, it would not be applicable in the circumstances of this case.

Although appellant was a passenger in the car which was stopped by officers, he has standing to complain of the admissibility of the evidence obtained because of the stop, if the initial stop of the car were unlawful. See Lewis v. State, 664 S.W.2d 345, 348 (Tex.Crim.App.1984); Dominguez v. State, 924 S.W.2d 950, 953 (Tex.App.--El Paso 1996, no pet.); Metoyer v. State, 860 S.W.2d 673, 677 (Tex.App.--Fort Worth 1993, pet. ref'd); Green v. State, 744 S.W.2d 313, 314 (Tex.App.--Dallas 1988, pet. ref'd).

Typically, a passenger without a possessory interest in an automobile lacks standing to complain of its search because his privacy expectation is not infringed. Whereas the search of an automobile does not implicate a passenger's fourth amendment rights, a stop results in the seizure of the passenger and driver alike. Thus, a passenger of a stopped automobile does have standing to challenge the seizure as unconstitutional.

United States v. Roberson, 6 F.3d 1088, 1091 (5th Cir.1993); "[A] passenger has standing to challenge the constitutionality of a vehicle stop because a stop results in the seizure of the passenger." Jackson v. Vannoy, 49 F.3d 175, 176 (5th Cir.1995). See also, United States v. McKneely, 6 F.3d 1447, 1450 (10th Cir.1993); State v. Carter, 69 Ohio St.3d 57, 630 N.E.2d 355, 360 (1994); State v. Haworth, 106 Idaho 405, 679 P.2d 1123, 1124 (1984); State v. Eis, 348 N.W.2d 224, 225-27 (Iowa 1984); 5 Wayne R. La Fave, Search and Seizure, § 11.3(e) at 170-174 n. 231 (3d ed.1996).

Even without probable cause, a law enforcement officer can stop and briefly detain a citizen for investigative purposes if the officer, in light of his experience, has 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, 1884-85, 20 L.Ed.2d 889 (1968); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App. 1997); Davis v. State, 829 S.W.2d 218, 219 (Tex.Crim.App.1992). "In short, under our interpretation of Terry and its progeny, reasonable suspicion requires 'that there be 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)). "The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity and some indication the unusual activity is related to crime." Id. "[A] temporary detention of this kind is not permissible unless the circumstances upon which the officers rely objectively support a reasonable suspicion that the person detained actually is, has been, or soon will be engaged in criminal activity." Id.

The standard for appellate review adopted by the Supreme Court now requires de novo review to determine probable cause and reasonable suspicion. "[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911, 920 (1996). "[T]he legal rules for probable cause and reasonable suspicion acquire content through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles." Id. The de novo standard for appellate review of reasonable suspicion and probable cause has been adopted by the Court of Criminal Appeals. See Guzman v. State, 955 S.W.2d 85, 87-88 (Tex.Crim.App. 1997). In this case, there is no disagreement about the facts or credibility of the witness; therefore we will review the facts to determine whether appellant's detention was lawful.

At the time appellant was stopped and detained, Deputy Tomlinson was an officer having limited experience in law enforcement duties; he testified that his offense report in this case was one of the first he had prepared. The officer testified that he thought it was unusual for a passenger to be hanging out of a car window vomiting; it was his opinion that...