Justin W. McKinney v. State ( 2008 )

Opinion Issued April 10, 2008

Opinion Issued April 10, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00173-CR

JUSTIN W. MCKINNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 10

Harris County, Texas

Trial Court Cause No. 1414452

MEMORANDUM OPINION

After the trial court denied his motion to suppress, appellant Justin McKinney pleaded guilty to possession of a controlled substance, between two and four grams of marijuana.  See Tex. Health & Safety Code Ann. § 481.117(b) (Vernon 2003).  In accordance with his plea bargain, the trial court sentenced McKinney to serve three days in jail and assessed a $500 fine.  In his sole issue on appeal, McKinney challenges the trial court’s denial of his motion to suppress.  Finding no error, we affirm.

Background

          On November 6, 2006, Officer R. Kent was working an off-duty job at a private residence in River Oaks.  Around midnight, a citizen approached his guard shack and asked him to check on a man passed out in a black Mercedes at the intersection of Kirby and South Shepherd.  Upon approaching the intersection, Officer Kent found the Mercedes, with its engine running, stopped in the center lane of moving traffic despite a green light.

          Kent opened the unlocked driver’s door, reached into the vehicle, turned the car off, and awakened McKinney. Upon awakening McKinney, Kent noticed signs of intoxication, including the odor of alcohol and slurred speech.  When Kent helped McKinney out of the vehicle, McKinney had difficulty maintaining his balance.  Kent arrested him for public intoxication.  Kent then conducted a search by patting McKinney down for weapons and drugs.  During this search, Kent reached into McKinney’s front pocket and found three to four grams of marijuana.   Kent called for back up because he was off duty and did not have the ability to transport McKinney.  Officer Garcia responded and transported McKinney to jail.

          At trial, McKinney moved to suppress the marijuana, on the ground that the officer did not have reasonable suspicion or probable cause to detain him.  McKinney further contended that, because his detention and subsequent arrest were illegal, the fruits recovered from the detention and arrest were also illegal and should be suppressed.  The trial court denied McKinney’s motion to suppress, and McKinney pleaded guilty.

Motion to Suppress

          McKinney contends that the trial court erred in overruling his motion to suppress because (1) the State failed to show sufficient corroboration of the anonymous tip so as to create a reasonable suspicion that justified a detention, and (2) even taking the tip into consideration, the evidence is insufficient to establish reasonable suspicion to seize McKinney. 

          In reviewing a trial court’s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State.  955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997).  We defer to the trial court’s determination of historical facts, and review de novo the trial court’s application of the law of search and seizure.  Id.; Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  If an issue turns on the credibility of a witness, we defer to the trial court’s ruling, as it stands in a better position to evaluate the credibility of witnesses before it.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). 

          Generally, three categories of interaction occur between police officers and civilians:  (1) encounters, (2) investigative detentions, and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002); Pennywell v. State, 127 S.W.3d 149, 152 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  An encounter occurs when a law enforcement officer approaches an individual in public to ask questions.  Pennywell, 127 S.W.3d at 152. An officer needs no justification for an encounter which triggers no constitutional protections.  Id.  An encounter does not constitute a seizure of the person, but a detention or an arrest does. Id.

In contrast, a police officer may stop and briefly detain a person for investigative purposes only if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.  Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884–85 (1968).[1]   The circumstances can give rise to a reasonable suspicion if the officer has specific, articulable facts at the time of detention which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or soon will be, engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).  A reasonable suspicion is more than a mere hunch or suspicion; a person may not be detained unless the circumstances objectively support a reasonable suspicion of criminal activity.  Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997).  Whether a temporary investigative detention is reasonable depends on the totality of the circumstances.  Woods, 956 S.W.2d at 38. 

          McKinney first contends that the anonymous tip that Officer Kent received “does not establish the level of suspicion required to justify McKinney’s detention.”  “While an anonymous tip or telephone call may justify the initiation of an investigation, it alone will rarely establish the level of suspicion required to justify a detention.”  Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.—Austin 2000, pet. ref’d) (citing Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2416 (1990)).

          Here, however, Officer Kent’s initial contact with McKinney was merely an encounter, not a detention. Upon receiving the tip, Officer Kent proceeded to the location, where he found the black Mercedes stopped in the center lane of traffic in an intersection, with McKinney passed out inside.  Contrary to McKinney’s assertion, Officer Kent did not need to corroborate the citizen’s allegation to justify such an encounter.  Nevertheless, Officer Kent did corroborate the tip by finding McKinney just as the tip had predicted.

          According to the Texas Transportation Code, the operator of a vehicle may not stop, stand or park a vehicle in an intersection.  Tex. Transp. Code Ann. § 545.302(a)(3) (Vernon 2007).  Any peace officer may arrest, without a warrant, a person found committing a violation of the transportation code.  Tex. Transp. Code Ann. § 543.001.

          When Officer Kent found McKinney passed out in his stopped vehicle at an intersection in the middle lane of traffic, he observed a traffic violation. See id. § 545.302(a)(3).  Because an officer may arrest anyone violating the transportation code, we hold that the evidence was sufficient to establish Officer Kent’s reasonable suspicion to detain McKinney.

          A person commits an offense of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger himself or another.  Tex. Penal Code Ann. § 49.02(a) (Vernon 2007).  “Intoxicated” means not having the normal use of mental or physical functions, by reason of the introduction of alcohol into the body or having an alcohol concentration of 0.08 or more.  Tex. Penal Code Ann. § 49.01(2).  A warrantless arrest for public intoxication is valid only if the arresting officer has reason to believe that the suspect is not merely intoxicated, but intoxicated to the degree that he “may endanger himself or another.”  Berg v. State, 720 S.W.2d 199, 201 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d).  Thus, the State must demonstrate proof of potential danger either to the appellant or to others.  See Simpson v. State, 886 S.W.2d 449, 455 (Tex. App.—Houston [1st Dist.] 1994, writ ref’d).

          Upon reaching the car, Officer Kent saw McKinney’s vehicle stopped in traffic.  After he turned the car off and awakened McKinney, Kent noticed a strong odor of alcohol emanating from McKinney and observed that McKinney spoke with slurred speech and could not maintain his balance.  The encounter led to Kent’s observations, which established reasonable suspicion to detain McKinney.  Based on his observations, Kent had probable cause to believe that McKinney was intoxicated.  See Vasquez v. State, 682 S.W.2d 407, 412 (Tex. App.—Houston [1st Dist.] 1984, no writ) (holding that officer testimony regarding observations of defendant’s slurred speech, the smell of alcohol on his person, swaying, and unsteadiness was sufficient to find appellant was “highly intoxicated.”).  McKinney’s location in a stopped car in the middle of a busy intersection while intoxicated could endanger others.  We therefore hold that the evidence is also sufficient to establish probable cause to arrest McKinney for public intoxication.

          Once an officer has probable cause to arrest, he may search the accused incident to the arrest.  McGee v. State, 105 S.W.3d 609, 614 (Tex. Crim. App. 2003).  A search incident to a lawful arrest requires no additional justification.  State v. West, 20 S.W.3d 867, 871 (Tex. App.—Dallas 2000, pet. ref’d) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973)).  As part of a search incident to arrest, police may search a suspect’s personal effects.  Snyder v. State, 629 S.W.2d 930, 934 (Tex. Crim. App. 1982).  McKinney was under arrest when Kent conducted the search.  We therefore hold that the discovery of marijuana in McKinney’s pocket was the result of a lawful search incident to arrest.

Conclusion

          Having determined that reasonable suspicion existed to detain McKinney, we conclude that the trial court did not err in denying his motion to suppress. Accordingly, we affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish.  See Tex. R. App. P. 47.4.

---

[1]               Texas courts also follow Terry in determining the legality of an investigative detention under the state constitution.  See Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992).