Angela Osburn Collins v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00423-CR
ANGELA OSBURN COLLINS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY
TRIAL COURT NO. CCL1-15-0114
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MEMORANDUM OPINION1
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The State charged Angela Osburn Collins with driving while intoxicated.
After the trial court denied her motion to suppress, Collins pleaded guilty, the trial
court found her guilty, and it then sentenced her to 60 days’ confinement in the
county jail and a $300 fine. Collins appeals the denial of her motion to suppress,
1
See Tex. R. App. P. 47.4.
arguing in two related points that she was unlawfully detained and that the police
did not have reasonable suspicion to detain her. We affirm.
Suppression-hearing evidence
Alexander Stewart testimony
At around 2:00 a.m. on December 6, 2014, Alexander Stewart was working
the back window at the Azle McDonald’s, where he operated the intercom and
took orders. Stewart described a female customer he had that night—a customer
who turned out to be Collins—whom he had trouble understanding over the
intercom because she slurred her speech. From that, he took it that she might be
inebriated. Stewart testified that when Collins pulled up to his window, she
“[reeked] of alcohol”; he characterized her slurred speech as “awful.” So he
asked her to pull forward to a reserved parking spot and then called 911.
But on cross-examination, after listening to his 911 call, Stewart
acknowledged that he made that call even before Collins appeared at his
window. During the 911 call, he described Collins as “extremely inebriated” and
“unsafely inebriated.” Stewart called 911 a second time to correct his description
of Collins’s vehicle, which was a silver SUV rather than a white van as Stewart
had initially reported. He also acknowledged that the 911 dispatcher told him to
keep Collins there as long as possible and explained that that was why he
instructed Collins to pull forward. Stewart acknowledged that he was complying
with the dispatcher’s instructions and was “just following dispatch’s orders.”
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Stewart also agreed that the only information he provided the dispatcher was that
Collins was “extremely inebriated” and “unsafely inebriated.”
Stewart did not recall if he took Collins’s money at the window but thought
that he probably did. It was then that he told Collins to pull around the corner and
stay there, and he would have her food brought out to her. Because once people
pay for their food they usually wait for it, Stewart acknowledged that delaying
Collins’s food effectively detained her there for the police.
After the police arrived, Stewart said at the hearing that he then gave them
a statement containing additional information, including such details as her
slurred speech and the odor of alcohol, that he did not give to the 911 dispatcher.
Officer MacQuarrie testimony
Officer Jordan MacQuarrie of the Azle Police Department was also working
around 2:00 a.m. on December 6, 2014, and was dispatched in response to a
911 call involving a suspected intoxicated or inebriated driver in a drive-through.
Initially, the dispatcher told him to look for a white vehicle, but just as he was
pulling into an adjacent parking lot, the dispatcher clarified that he should look for
a silver Ford Escape. That was precisely what he saw pulling around the building
and stopping near the front main entrance in a “through lane.” By having pulled
forward, Collins was not blocked in, and no other vehicles were in the drive-
through at the time. Officer MacQuarrie then stopped about fifty yards behind the
Escape and waited, intending to make contact once the car moved again. But
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when his backup, Officer Shide, arrived, Officer MacQuarrie decided to go ahead
and speak to the driver.
Pulling his patrol car forward and toward the back of the Escape—the front
of which was not obstructed in any way—Officer MacQuarrie got out and
approached Collins’s car from the rear driver’s side. At the same time, a
McDonald’s employee brought Collins her food and then walked away. Officer
MacQuarrie approached the Escape’s driver’s-side window, which was already
down, and identified himself. At the suppression hearing, he denied that Collins
was detained at this point.
Officer MacQuarrie explained to the trial court that dispatch had indicated
simply a possible intoxicated driver, so he and Officer Shide discussed
beforehand the basis of their initial contact and settled on “sort of a welfare
concern” based on the 911 call. When Officer MacQuarrie walked up to Collins’s
car, he acknowledged that he did not know if she was intoxicated. “I only had
basically that welfare call,” he explained, “or the call that she might be
intoxicated.” Officer MacQuarrie testified that he has the authority to walk up to
anyone sitting in a parked car and ask if the car’s occupant is all right: “I can say
hello, I can do a welfare check, or contact anybody.”
Once at Collins’s window, as Officer MacQuarrie testified, “I identified
myself. I told her straightforward why I was talking with her. Explained that it was
because somebody had called and that there was suspicion that she might be
intoxicated.” He stated that he asked Collins if she was all right, and she
4
responded that she was “going through a lot” and was coming from “Reno,” and
“her place,” when Officer MacQuarrie asked where she was coming from. When
Collins responded, he noticed that her eyes were “bloodshot, watered, heavy”
and that her speech was slurred. Even with a fairly strong wind, Officer
MacQuarrie said that he could smell a light odor of alcohol while she was talking
to him, adding that Collins’s voice was very quiet and so he had to lean in to hear
her. According to Officer MacQuarrie, it was only after he made these
observations that he asked Collins to step out of her car and detained her at that
point. (At that time, Officer Shide was standing on the other side of Collins’s car.)
From talking to her, Officer MacQuarrie said he had reasonable suspicion that
she was possibly intoxicated, and that when he detained Collins he had not yet
made up his mind whether he was going to arrest her.2
Officer MacQuarrie acknowledged that the dispatcher had told him that the
vehicle had pulled around the McDonald building’s side and that someone was
going to bring Collins’s food out to her. The dispatcher also indicated that “the
employees would attempt to prevent her from further operation of the vehicle by
delaying the order.” At the hearing, Officer MacQuarrie further acknowledged that
when Officer Shide pulled up, Officer MacQuarrie asked him, “[W]hat are we
2
Collins acknowledged at the suppression hearing that if the trial court
found reasonable suspicion for the detention, then it need not determine whether
probable cause for her arrest existed.
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going on here?” Officer MacQuarrie agreed that he did not then know the
contents of the 911 call but rather only what the dispatcher told him.
Both officers had their flashlights out when they approached Collins’s car.
Officer MacQuarrie testified that his patrol car was fully marked as an Azle Police
Department car, that he was in full uniform, and that he was armed. Officer Shide
parked his own patrol car on the Ford Escape’s passenger side and got out when
Officer MacQuarrie did.3 Describing the parking lot as fairly well-lit, Officer
MacQuarrie did not recall using his patrol-car spotlight to illuminate Collins’s
driver’s-side area and denied having his overhead lights on.
When asked whether two fully armed and uniformed officers approaching
from either side was a “show of authority,” Officer MacQuarrie responded that
“when I made contact with her, my first question was is everything all right[?]” He
added, “Regardless of how it looks, that’s how we would approach a vehicle
anytime.” Pressed further on whether their approach was a show of authority,
Officer MacQuarrie answered, “Uniformed officers always have a presence of
authority,” and agreed that he could “understand” if someone would feel
detained. Nevertheless, Officer MacQuarrie had experienced people leaving in
that situation: “I’ve had people tell me verbatim, you can beat feet and pound
sand. Which basically means leave me alone and go away. And I have had to do
3
Officer MacQuarrie had a civilian passenger that night who remained in
Officer MacQuarrie’s patrol car.
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that.” He denied that if Collins had left, he would have had reasonable suspicion
that she was evading arrest or detention.
In announcing its ruling, the trial court said, “The Motion to Suppress
evidence is denied. And all parties are free to beat feet.” In its factual findings,
the trial court found that Officer MacQuarrie’s initial encounter with Collins was
consensual and that he developed a reasonable suspicion that she was driving
while intoxicated only after talking with her; only then did Officer MacQuarrie
detain her to investigate more thoroughly. No one else detained Collins.
The record supports the trial court’s findings that Collins was not detained
until after Officer MacQuarrie spoke with her in a consensual encounter,
and that based upon what he saw during this encounter, he had reasonable
suspicion to detain her.
Because Collins’s two issues are intertwined, we will discuss them
together. The questions we must answer are, essentially, (1) when was she
detained? and (2) at that particular time, did the police have reasonable
suspicion to detain her? In answering these questions, we can break down the
sequence of events into three possibilities:
 Collins was detained without reasonable suspicion when Stewart,
acting as an agent of the State, instructed her to pull forward for the
express purpose of keeping her there until the police arrived;
 she was detained without reasonable suspicion when Officers
MacQuarrie and Shide approached her vehicle from two sides with
flashlights trained on her, which she contends amounted to a show
of authority not to leave; or
 Officer MacQuarrie did not detain Collins until after speaking with
her, and he had reasonable suspicion then to do so based on what
he observed during his consensual conversation with her.
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Collins argues the first two possibilities. The trial court found, and on
appeal the State argues, the third. We hold that the record supports the third
scenario, and the trial court thus did not err by denying Collins’s motion to
suppress.
Standards of review
We apply a bifurcated standard of review to a trial court’s ruling on a
suppression motion. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing
the trial court’s decision, we do not engage in our own factual review. Romero v.
State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d
857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole
factfinder and judge of the witnesses’ credibility and the weight to be given their
testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State
v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds
by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). As a result, we give
almost total deference to the trial court’s rulings on (1) historical fact questions,
even if the trial court did not determine those facts based on evaluating credibility
and demeanor, and (2) application-of-law-to-fact questions that turn on credibility
and demeanor evaluations. Amador, 221 S.W.3d at 673; Montanez v. State,
195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d
644, 652–53 (Tex. Crim. App. 2002). But when application-of-law-to-fact
questions do not turn on the witnesses’ credibility and demeanor, we review the
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trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673;
Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson,
68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to its ruling.
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.
2006). When the trial court makes explicit fact findings, we determine whether
the evidence, when viewed in the light most favorable to the ruling, supports
those findings. Kelly, 204 S.W.3d at 818–19. We then review the trial court’s
legal ruling de novo unless its explicit fact findings that are supported by the
record are also dispositive of the legal ruling. Id. at 818.
As for our review of whether a law-enforcement agent had reasonable
suspicion to detain someone, such suspicion exists when, based on the totality of
the circumstances, an officer has specific, articulable facts that when combined
with rational inferences from those facts would lead him to reasonably conclude
that a particular person is, has been, or soon will be engaged in criminal activity.
Hernandez v. State, 376 S.W.3d 863, 869 (Tex. App.—Fort Worth 2012, no pet.).
An objective standard, it disregards the officer’s subjective intent and examines
only whether an objective basis for the stop exists. Id. The facts relied on to
support a reasonable-suspicion conclusion must amount to something more than
an inchoate and general suspicion or hunch. Id.9
A. Who detained Collins and when?
1. Stewart did not detain Collins because he was not an agent of
the State.
Collins argues that Stewart, acting as an agent of the State, detained her
when he followed the dispatcher’s instructions to ask her to pull forward for the
express purpose of keeping her there until the police arrived. We disagree.
Based on our reading of applicable law, Stewart was not an agent of the
State. In the context of Miranda4 warnings and who must give them, for example,
the Texas Court of Criminal Appeals has written that Miranda applies only to
custodial questioning by law-enforcement officers or their agents. Wilkerson v.
State, 173 S.W.3d 521, 527 (Tex. Crim. App. 2005). The court then described the
two types of “state agents.” Id. First, any employee of a state agency is, by
definition, a “state agent.” Id. at 528. Second, even among those, only state
employees working for or on behalf of the police are law-enforcement “state
agents.” Id. The court explained that “[a]lthough state employment clearly makes
a person an ‘agent of the State,’ that label does not, by itself, make the person an
‘agent of the State’ for the purpose of defining ‘custodial interrogation.’” Id. The
court added, “Our law recognizes that different types of state employees serve
different roles. It is law enforcement’s job to ferret out crime, investigate its
4
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct 1602, 1612 (1966). The
Texas Code of Criminal Procedure expressly sets out the Miranda requirements
by requiring officers to inform detainees of their rights before any custodial
interrogation in order to make any resulting statements admissible. Tex. Code
Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 2017).
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commission, arrest the perpetrator, and gather evidence for a possible
prosecution.” Id.
For purposes of detentions, we see no reason to apply a different
standard. Because Stewart was not a state employee, he was not and could not
have been an agent of the state in any capacity. See id. at 527–28; see also
Woods v. State, 970 S.W.2d 770, 774–75 (Tex. App.—Austin 1998, pet. ref’d)
(holding that in temporarily detaining appellant, private security guard employed
by sheriff’s department was agent of the State and had reasonable suspicion to
make the detention, and stating further that even if the guard was not a state
agent, “[a] temporary detention by a private individual does not violate” the
Fourth Amendment.); Garner v. State, 779 S.W.2d 498, 501 (Tex. App.—Fort
Worth 1989) (“[A] private citizen does not have the authority to make a Terry
stop.”), pet. ref’d, 785 S.W.2d 158 (Tex. Crim. App. 1990) (stating expressly that
refusing the State’s petition for discretionary review did not constitute endorsing
or adopting the intermediate appellate court’s reasoning).
Stewart was a citizen assisting the police. The United States Supreme
Court has written that “it is no part of the policy underlying the Fourth and
Fourteenth Amendments to discourage citizens from aiding to the utmost of their
ability in the apprehension of criminals.” Coolidge v. New Hampshire, 403 U.S.
443, 488, 91 S. Ct. 2022, 2049 (1971), overruled on other grounds by Horton v.
California, 496 U.S. 128, 137–42, 152, 110 S. Ct. 2301, 2308–11, 2315 (1990).
In this case, Stewart—in his citizen capacity—did nothing more than aid the
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police so that they could speak to someone who he thought posed a danger to
herself and others. See id. Deliberately delaying a food order to facilitate that
conversation between the police and Collins is not against the law. See Tex.
Code Crim. Proc. Ann. art. 38.23(a) (West 2005) (“No evidence obtained by an
officer or other person in violation of [the law] shall be admitted in evidence
against the accused on the trial of any criminal case.”); see also Escobedo v.
State, No. 08-08-00318-CR, 2010 WL 2621579, at *3 (Tex. App.—El Paso June
30, 2010, no pet.) (not designated for publication) (“The government may not
encourage conduct by private persons that the government itself cannot do
. . . .”).
2. Officers MacQuarrie and Shide did not detain Collins by
approaching her car with flashlights and from two sides.
Collins next argues that Officers MacQuarrie and Shide detained her when
they approached her car from opposite sides with flashlights shining because
their actions amounted to a show of authority to restrain her liberty. Because a
show of authority differs from a show of authority that is tantamount to a
detention, we disagree.
Courts will conclude that a Fourth Amendment “seizure,” or detention, has
occurred only when an officer, by means of physical force or a show of authority,
has in some way restrained a citizen’s liberty. State v. Garcia-Cantu, 253 S.W.3d
236, 242 (Tex. Crim. App. 2008). Such a seizure occurs when, taking into
account all the circumstances surrounding the encounter, the police’s conduct
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would have communicated to a reasonable person that he was not at liberty to
ignore the police presence and go about his business. Id.The evidence showed that Officer MacQuarrie did not use his overhead
lights, and there is no mention of his using his siren or a loud-speaker, which in
these circumstances would have been clear-cut shows of authority equivalent to
a directive not to leave. Collins contends that she was partially blocked in—from
the rear and the side—but the evidence shows that she was in a through lane
and was not prevented from going forward. The officers neither boxed her in with
their patrol cars nor approached her vehicle from the front with any hand
gestures or other signals not to leave. No guns were drawn. Neither officer
instructed her to leave her car before having spoken to her.
What the officers did do is approach her car from two sides, at night and
with flashlights. Collins emphasizes that when a police officer engages in conduct
that a reasonable person would view as threatening or offensive—even if another
private citizen performed it—the encounter becomes a seizure. See id. at 243.
But no per se rules exist to determine when a detention occurs, and each set of
facts must be evaluated on its own, based on the totality of the circumstances. Id.If private citizens approached Collins’s vehicle in this manner at this time of
night, she might be well-advised to drive away. Similarly, if private citizens
approached a vehicle in this manner, the driver might feel free to tell them to go
away and leave her alone. But of course these were not private citizens; these
were police officers.
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As Officer MacQuarrie candidly acknowledged, uniformed police officers
always have a presence of authority. Under these circumstances, a reasonable
citizen might not feel free to simply drive away, if only because, despite the
presumption of innocence, fleeing the scene might be construed as a sign of
guilt. See Illinois v. Wardlow, 528 U.S. 119, 122, 124, 120 S. Ct. 673, 676 (2000);
Garcia-Cantu, 253 S.W.3d at 243; Baxter v. State, No. 06-07-00054-CR,
2007 WL 4118170, at *3 (Tex. App.—Texarkana Nov. 21, 2007, no pet.) (mem.
op., not designated for publication); Smithers v. State, No. C14-89-00615,
1990 WL 93181, at *1 (Tex. App.—Houston [14th Dist.] July 5, 1990, pet. ref’d)
(not designated for publication). Although Officer MacQuarrie testified that
citizens can drive away or tell the officers to “beat feet and pound sand” under
these circumstances without repercussions, for an innocent citizen to do so
would be atypical. Furthermore, compliance with the police should be
encouraged. See California v. Hodari D., 499 U.S. 621, 627, 111 S. Ct. 1547,
1551 (1991). The dynamics between citizens interacting with one another and
citizens interacting with the police are different, and fleeing or evading a police
officer can have bad consequences.
Here, police officers in police uniforms were approaching Collins from
police cars. Indeed, Collins’s argument is premised on the fact that these were
police officers. Although it was night, the parking lot was lit. And although the
officers’ conduct might be threatening if performed by other citizens, it should not
necessarily be threatening when performed by police officers. Moreover, for
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safety reasons, it makes sense that officers would approach a vehicle at night
with their flashlights and, regardless of whether it was day or night, that they
would approach from opposite directions. In the context of this case, the officers’
conduct—while certainly a show of authority—was not necessarily a show of
authority for the purpose of detaining Collins.
Rather, the officers’ conduct showed that they clearly wanted to speak with
Collins. But that does not translate into a detention; it is instead an implicit
request for a consensual encounter. For Fourth Amendment purposes, an
officer’s request differs from an officer’s order. See Crain v. State, 315 S.W.3d
43, 54 (Tex. Crim. App. 2010) (Cochran, J., concurring). As Judge Cochran put it:
“A request signifies a consensual encounter beyond the purview of the Fourth
Amendment; a command, if heeded, usually denotes a Fourth Amendment
detention. A request is a question that asks for an answer; an order is a
command which requires obedience.” Id. at 54–55 (footnotes omitted). As noted,
if the officers had wanted to make a show of authority that Collins was not to
leave, they had several unequivocal means by which to do so. What matters is
whether Collins was restrained in her freedom to move. See Garza v. State,
771 S.W.2d 549, 556 (Tex. Crim. App. 1989). Although Officers MacQuarrie and
Shide approached Collins’s vehicle in a manner designed to maximize officer
safety, they did nothing to restrain her freedom of movement.
We are not persuaded that citizens are put to the Hobson’s choice of
(1) standing their ground and ignoring an officer’s presence—that is, pretending
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the officer is not there—or (2) leaving without acknowledging the officer,
notwithstanding the officer’s signaled request for a consensual encounter. A
reasonable, presumptively innocent person might ask the officer how he or she
could be of help, and when Officer MacQuarrie asked if Collins was okay, she
could have responded that she was fine, thanked the officer for his concern, and
remarked that if there was nothing else, she would be on her way.5 The United
States Supreme Court has consistently held that a refusal to cooperate, without
more, does not furnish the minimal level of objective justification needed for a
detention or seizure. Florida v. Bostick, 501 U.S. 429, 437, 112 S. Ct. 2382,
2387 (1991). Here, though, by saying she was “going through a lot,” Collins
effectively responded that she was not okay and proceeded to voluntarily talk
with Officer MacQuarrie.
An encounter will not trigger Fourth Amendment scrutiny unless it loses its
consensual nature. Id. at 434, 112 S. Ct. at 2386. The test is whether, taking into
account all circumstances surrounding the encounter, the police conduct would
have communicated to a reasonable person that she was not at liberty to ignore
the police presence and go about her business. Id. at 437, 112 S. Ct. at 2387. As
the Texas Court of Criminal Appeals has analogized, Collins never told the
“pushy Fuller-brush man at the front door”—as she could have—that she was not
5
Although articulated differently, this is just a polite paraphrase of “beat feet
and pound sand.” That is, a citizen can engage the officer for the limited purpose
of declining a consensual encounter.
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interested. See Garcia-Cantu, 253 S.W.3d at 243. To the contrary and in short,
Collins consented to interact with Officer MacQuarrie.
We hold that the trial court did not err by finding that no detention occurred
until after Officer MacQaurrie had spoken with and observed Collins.
B. Did Officer MacQuarrie have reasonable suspicion to detain Collins
after speaking with her?
Having determined that the detention occurred only at the point when
Officer MacQuarrie instructed Collins to get out of her car, we now turn to
whether he had reasonable suspicion for doing so.
While Collins was explaining why she was not okay, Officer MacQuarrie
noticed signs of intoxication. Her eyes were “bloodshot, watered, heavy.” Her
speech was slurred. Even with a wind, he could smell alcohol. Earlier, he had
watched her drive her car forward to the waiting area. On these facts, we further
hold the trial court did not err by finding that Officer MacQuarrie had reasonable
suspicion to detain Collins for driving while intoxicated based on his conversation
with her. See id.; Rubeck v. State, 61 S.W.3d 741, 745 (Tex. App.—Fort Worth
2001, no pet.) (op. on reh’g).
We overrule Collins’s first and second issues.
Conclusion
Having overruled both of Collins’s issues, we affirm the trial court’s
judgment.
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/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: WALKER, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 1, 2018
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