Lisa Cole v. State ( 2008 )


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  •       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-08-00045-CR
    Lisa Cole, Appellant
    v.
    The State of Texas, Appellee
    FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
    NO. C-1-CR-07-209550, HONORABLE ELISABETH ASHLEA EARLE, JUDGE PRESIDING
    MEMORANDUM OPINION
    Lisa Cole pleaded no contest to the offense of driving while intoxicated. See
    Tex. Penal Code Ann. § 49.04 (West 2003). The trial court assessed punishment at three days in jail.
    In a single point of error, Cole challenges the trial court’s denial of her motion to suppress evidence.
    We will affirm the judgment.
    BACKGROUND
    At the suppression hearing, the trial court heard evidence that, on May 19, 2007,
    at approximately 1:45 a.m., Lakeway Police Department Officer Stephanie Campbell was
    traveling eastbound on Lohman’s Crossing, “one of the main roads in and out of Lakeway,” when
    she saw a vehicle pulled over on the side of the road, in a lane specifically marked off for bicycles.
    Officer Campbell described what she saw as follows: “I saw a vehicle—a white passenger car pulled
    over on the side of the road with its light on and the engine running. And the high beams were on
    the vehicle, and it was pulled all the way over, stationary.” When Officer Campbell observed the
    vehicle, she pulled up behind it and put on her rear emergency lights1 and also a directional “aerial”
    or “arrow” stick.2 When asked why she did this, Campbell testified, “It’s a safety—anytime you
    check on any person or vehicle, you put some type of hazard lights on, so that way you don’t get hit
    by a vehicle, and that way you make yourself seen, especially at night.” When asked if she was
    initiating a traffic stop, Campbell testified, “No, ma’am, I wasn’t. I was checking the welfare of the
    subject that was in the vehicle, to see if anyone was even in the vehicle, because it’s an odd place
    for the vehicle to be.” In fact, when asked on cross-examination if she observed any traffic violation,
    Campbell testified, “No ma’am. She wasn’t driving.”
    Officer Campbell walked up to the vehicle and made contact with the driver and sole
    occupant of the vehicle. Campbell testified,
    The driver identified herself as Lisa Kay Cole. She handed me a Florida driver’s
    license. And I proceeded asking her if everything was okay, and where she was
    coming from, where she was headed. She was very disoriented, couldn’t answer my
    questions, thought she was traveling on the wrong side of the roadway, and said that
    she was coming from a friend’s house in Lakeway and trying to get back there, but
    didn’t know if she was still in Lakeway or not.
    1
    Campbell explained, “[W]e have LED lights. And there’s a button, and you can make
    all the lights come on, half the lights come on, or just the rear portion. Whenever I check []
    on somebody to check their welfare, I only put on my rear portion lights . . . so that way, vehicles
    don’t hit my car.”
    2
    In her testimony, Officer Campbell first uses the term “directional aerial stick” and,
    later, uses the term “directional arrow.” The record does not include a description of this
    device, although an “aerial stick” has been described as a “flare emergency personnel place on
    the ground to illuminate roadways.” Junemann v. Harris County, 
    84 S.W.3d 689
    , 692 n.1
    (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
    2
    While Campbell was talking with Cole, she smelled a “very strong” odor of alcohol and asked Cole
    if she had been drinking. According to Campbell, Cole replied that “she had a couple of drinks; the
    last one was around 7 o’clock that evening. And she went to about three or four different bars,
    and also back over to her friend’s house to have a couple of drinks.” Suspecting that Cole might
    be intoxicated, Campbell told her to exit the vehicle and proceeded to administer the standard
    field sobriety tests. Campbell testified that Cole performed poorly on the tests. Campbell
    subsequently arrested Cole for driving while intoxicated.
    Cole moved to suppress the above evidence of her intoxication on the basis that
    Officer Campbell’s “detention” of Cole did not fall within the community-caretaking exception to
    the warrant requirement of the United States and Texas Constitutions. See U.S. Const. amend. IV;
    Tex. Const. art. I, § 9; Cady v. Dombrowski, 
    413 U.S. 433
    , 441 (1973); Wright v. State, 
    7 S.W.3d 148
    , 151 (Tex. Crim. App. 1999). The State argued in response that, at the time Campbell first
    encountered Cole, there was no detention. Therefore, according to the State, there was no need for
    the requirements of the community-caretaking exception to be satisfied.
    The trial court denied the motion to suppress.        Subsequently, Cole pleaded
    no contest to the offense of driving while intoxicated and was sentenced to three days in jail.
    This appeal followed.
    STANDARD OF REVIEW
    A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse of
    discretion. State v. Dixon, 
    206 S.W.3d 587
    , 590 (Tex. Crim. App. 2006). In other words, the trial
    court’s ruling will be upheld if it is reasonably supported by the record and is correct under any
    3
    applicable legal theory. 
    Id. That 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). The trial judge is the
    sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their
    testimony. State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000); Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997). We give trial courts almost complete deference in determining
    historical facts, but we review de novo the trial court’s application of the law. Carmouche v. State,
    
    10 S.W.3d 323
    , 327 (Tex. Crim. App. 2000).
    ANALYSIS
    Cole asserts that the trial court abused its discretion in denying her motion to suppress
    because Officer Campbell’s initial “detention” of her was not justified by either reasonable suspicion
    or the community-caretaking exception to the Fourth Amendment’s warrant requirement. The State
    maintains that, until Campbell asked Cole to exit her vehicle to perform field sobriety tests,
    Campbell’s interaction with Cole was merely an encounter that did not implicate Cole’s
    constitutional rights.
    Encounters are distinct from detentions. An investigative detention occurs when a
    police officer restrains a person’s freedom of movement, either by physical force or a show of
    authority. State v. Griffey, 
    241 S.W.3d 700
    , 705 n.6 (Tex. App.—Austin 2007, pet. ref’d)
    (citing Johnson v. State, 
    912 S.W.2d 227
    , 234 (Tex. Crim. App. 1995)). An investigative detention
    constitutes a seizure and implicates constitutional safeguards.             
    Id. (citing United
    States
    v. Mendenhall, 
    446 U.S. 544
    , 554 (1980)). Investigative detentions require reasonable suspicion.
    See Ford v. State, 
    158 S.W.3d 488
    , 492 (Tex. Crim. App. 2005) (“An officer conducts a lawful
    4
    temporary detention when he has reasonable suspicion to believe that an individual is violating the
    law.”); State v. Nelson, 
    228 S.W.3d 899
    , 902 (Tex. App.—Austin 2007, no pet.) (“A warrantless
    automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be
    justified by reasonable suspicion.”). Reasonable suspicion exists if the officer has specific,
    articulable facts that, when combined with rational inferences from those facts, would lead him
    to reasonably conclude that a particular person actually is, has been, or soon will be engaged
    in criminal activity. Castro v. State, 
    227 S.W.3d 737
    , 741 (Tex. Crim. App. 2007) (citing Garcia
    v. State, 
    43 S.W.3d 527
    , 530 (Tex. Crim. App. 2001)).
    In contrast to detentions, encounters are consensual interactions between citizens and
    police that do not require reasonable suspicion and do not implicate constitutional rights. Florida
    v. Royer, 
    460 U.S. 491
    , 497-98 (1983). Encounters occur when police officers approach an
    individual in a public place to ask questions, request identification, or request consent to search as
    long as the interaction is consensual—that is, as long as an officer does not convey a message that
    compliance with the officer’s request is required. Florida v. Bostick, 
    501 U.S. 429
    , 434-35 (1991).
    To determine whether an encounter between a police officer and a citizen rises to the level of a
    detention, the inquiry is whether, “taking into account all of the circumstances surrounding the
    encounter, the police conduct would have communicated to a reasonable person that he was not at
    liberty to ignore the police presence and go about his business.” State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 242 (Tex. Crim. App. 2008) (citing Kaupp v. Texas, 
    538 U.S. 626
    , 629 (2003)).
    As support for its argument that the initial interaction between Officer Campbell and
    Cole was merely an encounter, the State relies on this Court’s decision in Franks v. State,
    5
    
    241 S.W.3d 135
    (Tex. App.—Austin 2007, pet. ref’d). In Franks, a police officer noticed a vehicle
    parked just off the highway “after dark.” 
    Id. at 139.
    The vehicle was stopped at a rest area, but its
    engine was running and its dome light was on. 
    Id. The officer
    parked his patrol car behind the
    vehicle, activated his overhead lights,3 approached the vehicle, and began talking to Franks, the
    driver and sole occupant of the vehicle. 
    Id. At some
    point during the conversation, Franks asked
    the officer if she could leave. 
    Id. The officer
    told her that she could not. 
    Id. Eventually, Franks
    was
    asked to step out of her vehicle, the vehicle was searched, and cocaine was found. 
    Id. Franks filed
    a motion to suppress the evidence, which the trial court denied. 
    Id. at 140.
    This Court held that, once the officer refused Franks’s request to leave, the encounter
    became an investigative detention requiring reasonable suspicion of criminal activity. 
    Id. at 142-43.
    Finding none, this Court reversed the trial court’s denial of the motion to suppress.4 
    Id. at 145.
    However, this Court also explained why the initial interaction between the officer and Franks was
    not a detention:
    The initial interaction between [the officer] and appellant, after he approached the
    car, was an encounter. Although [the officer] parked his vehicle behind appellant’s,
    nothing in the record suggests that the position of his vehicle blocked hers or
    prevented appellant from leaving the rest area by simply driving forward. Moreover,
    appellant does not allege that the patrol car’s siren was activated, that she received
    any command over the patrol car’s loudspeaker, or that [the officer] told her to turn
    off her car’s engine when he approached.
    3
    The officer testified that he activated the overhead lights on his patrol car to
    illuminate the rest area, which did not have any lighting. Franks v. State, 
    241 S.W.3d 135
    , 142
    (Tex. App.—Austin 2007, pet. ref’d).
    4
    This Court also explained why the community-caretaking exception to the warrant
    requirement did not apply to the facts of that case. 
    Id. at 143-45.
    6
    
    Id. at 142.
    The initial interaction between Officer Campbell and Cole is similar to the initial
    interaction in Franks. Cole’s vehicle was already pulled over on the side of the road. The engine
    was running and the lights were on. Campbell parked her patrol car behind Cole’s, activated her rear
    emergency lights, approached the vehicle, and initiated a conversation with Cole. There is nothing
    in the record to indicate that the position of Campbell’s patrol car blocked Cole’s or that Cole was
    prevented from leaving by simply driving forward. Nor does the record reflect that the patrol car’s
    siren was activated, that Cole received any command from Campbell, or that Campbell told Cole to
    turn off her engine.
    Cole asserts that the activation of Officer Campbell’s rear emergency lights late at
    night made the initial interaction a detention. However, in Franks, this Court observed that the
    activation of a patrol car’s lights, particularly “in an area that appeared dark and unoccupied,”
    “does not necessarily constitute a detention.” 
    Id. This is
    because, “depending on the facts, officers
    may well activate their emergency lights for reasons of highway safety or so as not to unduly alarm
    the stopped motorists.” Martin v. State, 
    104 S.W.3d 298
    , 301 (Tex. App.—El Paso 2003, no pet.).
    In this case, the record supports the trial court’s implied finding that the patrol car’s rear emergency
    lights were activated for safety reasons, as Campbell testified that she activated them so that other
    vehicles would not hit her car.
    Cole also contends that providing her driver’s license to Officer Campbell
    demonstrated that “she was submitting to the officer’s show of authority.” However, an officer
    asking for and examining a driver’s license, without more, does not transform an encounter into
    7
    a detention. See 
    Royer, 460 U.S. at 501
    .          There must be additional actions taken by the
    officer which “amount to a show of official authority such that a reasonable person would
    have believed that he was not free to leave.” Id.; see also 
    Bostick, 501 U.S. at 437
    (holding that
    “no seizure occurs when police ask questions of an individual, ask to examine the individual’s
    identification, and request consent to search his or her luggage—so long as the officers do not
    convey a message that compliance with their requests is required.”); Hunter v. State, 
    955 S.W.2d 102
    , 104 (Tex. Crim. App. 1997) (holding that encounter not rendered detention simply by virtue
    of fact that officer asked for defendant’s identification). For example, in Royer, “officers identified
    themselves as narcotics agents, told [the defendant] that he was suspected of transporting narcotics,
    and asked him to accompany them to the police room, while retaining his ticket and driver’s license
    and without indicating in any way that he was free to depart.” 
    Id. Based on
    those additional
    circumstances, the Supreme Court held that the defendant had been detained. See 
    id. Similarly, in
    Hayes v. State, this Court held that an encounter became a detention when an officer took the
    defendant’s identification back to his patrol car to run a warrant check and had a backup officer
    remain with the defendant while he was running the check.               See 
    132 S.W.3d 147
    , 153
    (Tex. App.—Austin 2004, no pet.).
    In this case, there is no indication in the record of actions by Officer Campbell
    regarding Cole’s driver’s license of the sort that could transform the encounter into a detention. The
    testimony in the record relating to Cole’s driver license is limited to the following: “The driver
    identified herself as Lisa Kay Cole. She handed me a Florida driver’s license. And I proceeded
    8
    asking her if everything was okay, and where she was coming from, where she was headed.” There
    was no further testimony elicited about the circumstances surrounding the driver’s license.
    Again, the test as articulated by the court of criminal appeals is whether, “taking into
    account all of the circumstances surrounding the encounter, the police conduct would have
    communicated to a reasonable person that he was not at liberty to ignore the police presence and go
    about his business.” 
    Garcia-Cantu, 253 S.W.3d at 242
    (emphasis added). We hold that the record
    supports the trial court’s finding that the initial interaction between Campbell and Cole was an
    encounter, not a detention.
    The State concedes that, once Officer Campbell asked Cole to step out of her car to
    perform field sobriety tests, the encounter became a detention. At that point, however, the record
    supports the trial court’s finding that Campbell had reasonable suspicion to believe that Cole was
    driving while intoxicated. Campbell testified that she smelled a “very strong” odor of alcohol
    coming from Cole when she was speaking with her. Campbell also testified that, when she was
    talking to Cole, Cole “was very disoriented,” “couldn’t answer my questions,” “thought she was
    traveling on the wrong side of the roadway,” and “didn’t know if she was still in Lakeway or not.”
    Cole also admitted to Campbell that she had drinking that night, went to “about three or four
    different bars, and also back over to her friend’s house to have a couple of drinks.” These are
    specific, articulable facts that, when combined with rational inferences from those facts, would lead
    Campbell to reasonably conclude that Cole was driving while intoxicated. Because we conclude that
    Campbell’s detention of Cole was supported by reasonable suspicion, we need not address the
    applicability of the community-caretaking exception.
    9
    The trial court did not abuse its discretion in denying Cole’s motion to suppress. We
    overrule Cole’s sole point of error.
    CONCLUSION
    We affirm the judgment of the trial court.
    __________________________________________
    Bob Pemberton, Justice
    Before Chief Justice Law, Justices Puryear and Pemberton
    Affirmed
    Filed: August 20, 2008
    Do Not Publish
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