COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00319-CR
MARLENE COOK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-07321-E
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OPINION
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Marlene Cook appeals from the trial court’s denial of her motion to
suppress. We affirm.
Background
A City of Lewisville police officer arrested appellant without a warrant at
her home after responding to 911 calls about a possible drunk driver and
performing field sobriety tests on appellant in the parking lot in front of her
building. Appellant’s blood was drawn after the arrest. The State filed a
complaint and information alleging that appellant had committed the
misdemeanor offense of driving while intoxicated and that she had a blood
alcohol concentration of 0.15 or more. See Tex. Penal Code Ann. § 49.04(a), (d)
(West Supp. 2016). Appellant filed a motion to suppress the blood evidence and
any statements she made while in custody, in which she contended that she had
been detained without reasonable suspicion and arrested without probable cause
or a lawful warrant in violation of the Texas and United States Constitutions.
After a hearing, at which she also objected that she was arrested in violation of
article 14.03 of the code of criminal procedure, the trial court denied her motion
to suppress. The trial court also filed findings of fact and conclusions of law in
accordance with appellant’s request. Appellant then pled nolo contendere to the
allegations in the information, the trial court found her guilty of the offense as
alleged in the information, and the trial court assessed her punishment at 250
days’ confinement and a $500 fine. The trial court suspended her sentence and
placed her on community supervision for fifteen months.
Motion to Suppress
In her first issue, appellant contends that the trial court erred by denying
her motion to suppress because, under the totality of the circumstances, (1) there
was no probable cause to arrest her and (2) officers did not find her in a
suspicious place because there is no evidence of how much time had elapsed
between when she arrived home and when she was arrested; therefore, her
2
arrest was not authorized by article 14.03 of the code of criminal procedure. Tex.
Code Crim. Proc. Ann. art. 14.03 (West 2015). In her second issue, appellant
contends that the officers did not have reasonable suspicion under the Fourth
Amendment and article I, section 9 of the Texas Constitution to detain her to
perform an investigation.
Preservation
The court of criminal appeals has cautioned that our review of motions to
suppress is subject to traditional error preservation principles. Hailey v. State, 87
S.W.3d 118, 121–22 (Tex. Crim. App. 2002), cert. denied,
538 U.S. 1060 (2003).
Appellant’s written motion to suppress raised only constitutional grounds
regarding lack of reasonable suspicion and probable cause. At the hearing on
the motion, appellant additionally argued that article 14.03 did not authorize the
warrantless arrest because no officer witnessed her committing an offense, the
911 callers’ observations could not be considered to be within the collective
knowledge of the arresting officer, and there is no evidence of the amount of time
that had elapsed between when she arrived home and when she was arrested.
Because these were the only objections at trial related to the validity of the arrest
under article 14.03––as well as appellant’s only arguments on appeal regarding
article 14.03––these are the only potential grounds for reversal as to that statute.
See id.
3
Applicable Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 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).
We give almost total deference to a trial court’s rulings on questions of historical
fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador,
221 S.W.3d at
673; Estrada v. State,
154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State,
68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). When the trial court
makes explicit fact findings, we determine whether the evidence, when viewed in
the light most favorable to the trial court’s ruling, supports those fact findings.
State v. Kelly,
204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). 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.
To suppress evidence because of an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing evidence that rebuts the
presumption of proper police conduct. Amador, 221 S.W.3d at 672; see Young
v. State,
283 S.W.3d 854, 872 (Tex. Crim. App.), cert. denied,
558 U.S. 1093
(2009). A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Amador,
221 S.W.3d at 672. Once the defendant
has made this showing, the burden of proof shifts to the State, which is then
4
required to establish that the search or seizure was conducted pursuant to a
warrant or was reasonable. Id. at 672–73; Torres v. State,
182 S.W.3d 899, 902
(Tex. Crim. App. 2005); Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App.
2005).
Facts Adduced at Motion to Suppress Hearing
At the motion to suppress hearing, Christy Fitzgerald, a public safety
dispatcher with the City of Lewisville, testified that around 9:45 p.m. on the
evening of July 19, 2014, she received a 911 call regarding a possibly intoxicated
driver. According to Fitzgerald, the caller identified herself, said the car at issue
was a silver Hyundai, gave Fitzgerald a license plate number, and said the car
had crossed over “about three lanes” and at some point struck a concrete wall.
The caller told Fitzgerald that she had followed the driver of the Hyundai until the
car “pulled into a garage at some homes . . . located off Rock[b]rook.” The caller
said the number on the garage was 87. Fitzgerald input this information into the
dispatch call notes, and a different dispatcher “relayed the information to the
officers.”
The trial court listened to the 911 call. The time of the call is recorded as
9:46 p.m. On the recording, the caller identified herself by first and last name,
telephone number, and vehicle color and model. She said that she watched a
silver Hyundai travel over three lanes on westbound Highway 121 and that it
almost hit a concrete barrier. The caller described the direction the Hyundai’s
driver was traveling. As the caller was speaking to Fitzgerald, she exclaimed that
5
the driver of the Hyundai had run into the center median of the road on which
they were traveling. At one point, Fitzgerald indicated that a different caller was
also following the Hyundai and had said that it was pulling into some apartments.
The initial caller kept describing the location where the Hyundai was headed until
the driver pulled onto Rockbrook, into an apartment complex, and from there into
garage number 87. The caller never saw the driver of the Hyundai, but she did
see the car pull into that particular garage. The caller agreed to wait at the scene
until the police could arrive.
Detective Mitchell Colbath with the Lewisville Police Department testified
that he was on duty the evening of July 19, 2014, and he was dispatched to a call
regarding a possible intoxicated driver at around 9:45 p.m. The dispatcher gave
him the location of the call as 2500 Rockbrook Drive. The dispatcher told him
that the car involved was a silver Hyundai, gave the license plate number, and
said the car was “actually going across several lanes of traffic, back and forth,”
and that it “almost struck several vehicles and concrete barriers.” Detective
Colbath met Officer Russell Brininstool at the location on Rockbrook Drive as
well as “several witnesses that had called into dispatch.”
The witnesses had already told Officer Brininstool that the car was in
garage number 87. Because the garages were on the back side of the building
and the doors to the homes were in front, Detective Colbath and Officer
Brininstool walked around to the front of the apartments and found the front door
that had number 87 on it. Appellant answered when they rang the doorbell, but
6
according to Detective Colbath it took her about five to ten minutes to do so.
Appellant identified herself when the officers asked her name, and she said she
had just arrived home after having been driving. Detective Colbath noticed while
he was speaking with appellant that her “eyes were red and watering[,] her
speech was slurred[ and] thick tongued, and there was an immediate odor of
alcohol when she opened the door” that he could smell when she spoke.
Detective Colbath asked appellant if she drove a silver Hyundai, and she
said yes. He then asked appellant to step outside her apartment, and she
agreed. After Detective Colbath asked appellant if she had been drinking, she
told him she had been at a birthday party and had drunk “several . . . glasses of
wine.” He also asked her whether she had drunk anything since coming home,
and she said no. Detective Colbath had appellant perform standardized field
sobriety tests.
The State played a recording from Detective Colbath’s in-car camera for
the trial court but only of events up to the time he arrested appellant. The DVD is
from Detective Colbath’s dashcam, but the officers’ encounter with appellant at
the door can be heard. Detective Colbath can be heard asking appellant if she
was the only one at home; although it is difficult to hear her over the sound of a
dog barking, appellant can be heard answering, “Yes.” She admitted that she
just got home and that she drives a silver Hyundai Elantra. She also told the
officers that she had come home from a birthday party in Mansfield and that she
7
had had “a little bit to drink,” which she later clarified was two or three glasses of
wine.
Detective Colbath and appellant can be seen walking to the front of
Detective Colbath’s car and into the view of the camera. When Detective
Colbath asked appellant about her vehicle, she pointed back toward the
apartment outside of the view of the camera and said, “It’s there.” He asked her
if she was feeling the effects of the alcohol “right now,” and she said yes. She
did not remember hitting a curb while driving, but when Detective Colbath asked
if she felt intoxicated, she answered, “Yes, I’ve had a few drinks.” Appellant had
trouble following Detective Colbath’s instructions during the field sobriety tests,
and she could not walk in a straight line during the heel-toe test. She also had
trouble counting backward, omitting at least one number. Appellant told
Detective Colbath she had not had anything to drink since arriving home.
On cross-examination, Detective Colbath confirmed that he was not sure
how long appellant had been home before he contacted her. He did not verify
whether a silver Hyundai was located in garage 87, so he likewise had not
verified whether a car that might have been in the garage had any damage to it
or whether it was still warm. Additionally, the witnesses at the scene never
described the physical appearance of the driver of the car. The information
available to him when he contacted appellant was that witnesses had watched a
silver Hyundai driving erratically and that they had also watched that same car
being driven into garage number 87. Detective Colbath also testified that it
8
appeared appellant would have had time to change clothes after coming home
from the party.
According to Detective Colbath, appellant was detained at the time she
answered the door for him and Officer Brininstool, and he had reasonable
suspicion to detain her for the offense of driving while intoxicated at that time. He
believed that after the initial contact he also had probable cause to arrest
appellant because “she had admitted that she was driving[ and] that she drove
the Hyundai, . . . she had red, watery eyes, slurred speech, and an odor of
alcohol,” and she had told the officers that she was the only one home.
Officer Brininstool described the driving facts he had been told as,
according to witnesses, “the vehicle was all over the roadway.” He said the
address where the vehicle stopped was given by two separate witnesses.1 He
arrived at the location first and made contact with four witnesses who were
parked “out back of the garage that the vehicle pulled into.” The witnesses
confirmed that the car had parked in that garage, which was numbered 87.
Officer Brininstool testified similarly to Detective Colbath regarding the
encounter with appellant. According to Officer Brininstool, appellant told them
that she had just arrived home after driving home from a birthday party in
Mansfield. He believed Detective Colbath had asked her what type of vehicle
she drove and the color, and he confirmed that it corresponded with the 911
1
In addition to the two callers, at least one of the callers had a passenger in
her car.
9
caller’s description. Officer Brininstool described appellant as “having a hard
time keeping her balance,” speaking with a “very thick tongue,” and “kind of”
mumbling. After appellant went into the parking lot with Detective Colbath,
Officer Brininstool left them to take statements from the witnesses; when he was
done, he stayed around the scene, making sure it was safe.
Officer Brininstool confirmed that he and Detective Colbath did not have
any description of the driver and that witnesses did not tell him they saw the
driver. He did say, though, that he had seen the townhomes in which unit 87 was
located when they were being built, and the garages are directly behind the
dwellings corresponding to the same number. Officer Brininstool did not believe
appellant was detained when she opened the front door; rather, he believed that
there was reasonable suspicion to detain appellant once he and Detective
Colbath had confirmed that she had been the driver of the car and saw signs that
she was intoxicated. He did not think there was probable cause to arrest
appellant until after she had completed the field sobriety tests.
In closing, appellant argued that (1) there is no evidence regarding what
dispatch told the officers, (2) at least one of the officers understood there was an
allegation of “weaving,” (3) there is an issue regarding the timing of the arrest
under article 14.03,2 specifically, that the officer did not see an offense in his
2
Appellant never challenged the constitutionality of article 14.03(a)(1);
therefore, we do not address it on appeal. See Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009); Curry v. State,
910 S.W.2d 490, 496 (Tex.
Crim. App. 1995).
10
presence and there are not enough facts to show that appellant was in a
suspicious place, (4) the officers never inspected the Hyundai to see if the driving
facts given by the witnesses could be corroborated, (5) Detective Colbath could
not have had reasonable suspicion to detain appellant when she answered the
door because all he knew was that she was answering the door to a townhome,
and (6) Detective Colbath did not have probable cause to make a warrantless
arrest.
Findings of Fact and Conclusions of Law
The trial court made extensive findings of fact and conclusions of law. It
found that all of the witnesses were credible. It also found that Fitzgerald
received the 911 call “around 9:48 p.m. on July 19, 2014,” that the 911 caller
identified herself and said she was following a silver Hyundai that she identified
by license plate number, that the caller “followed the subject vehicle without
losing sight of the vehicle throughout the duration of the call to 911,” and that the
caller described the subject’s driving as “weaving, almost hit[ting] a concrete
barrier, and . . . hit[ting] a median.” The trial court further found that the same
caller told Fitzgerald that she saw the vehicle enter garage number 87 at 2500
Rockbrook Drive, that she stayed at the townhome until the Lewisville officers
arrived within ten minutes, and that the vehicle never left the garage. The trial
court additionally found that “Fitzgerald relayed all the information she received
from [the caller] to a dispatcher, who then relayed the information to the
responding officers.”
11
The trial court further found that Detective Colbath was dispatched around
9:48 p.m. on July 19, 2014, that the dispatcher notified him while he was en route
to the call location that several witnesses had called 911, and that the vehicle
was a silver Hyundai with the same license plate number reported by the 911
caller. The trial court found that “Detective Colbath testified that he was informed
via dispatch that the 911 callers followed defendant to the townhomes at 2500
Rockbrook Drive, Lewisville, Texas.” It also found that “Detective Colbath
testified that approximately 5 to 10 minutes elapsed between the time he was
dispatched to the call location and the time he arrived at the scene. Detective
Colbath further testified that he spoke with Officer Brininstool for less than a
minute.” The trial court made the following additional findings relevant to
appellant’s interaction with Detective Colbath:
20. Detective Colbath testified that he was able to locate
garage number 87 and was able to locate the corresponding
residence, demarcated as townhome number 87.
21. Detective Colbath testified that once he located townhome
87 he knocked on the door and made contact with a female.
22. Detective Colbath testified that the female identified
herself as [appellant]. [Appellant] then confirmed that she owns a
silver Hyundai Elantra. She also confirmed that she had driven the
Elantra this evening and had recently arrived at her home.
23. Detective Colbath testified that [appellant] said she was
the only person in the residence at that time.
24. Detective Colbath testified that [appellant] advised she had
driven home from a birthday party in Mansfield and that she had 2 to
3 glasses of wine at the birthday party. Detective Colbath further
12
testified that [appellant] advised she had not had anything to drink
since arriving at her home.
25. Detective Colbath testified that after [appellant] confirmed
that she was the driver and owner of the silver Hyundai Elantra and
had recently arrived home, he asked her to come outside so he
could further investigate.
26. Detective Colbath testified that he observed [appellant]
and noticed watery red eyes, slurred thick [tongued] speech and an
immediate odor of alcohol when [appellant] spoke.
27. Detective Colbath testified that once [appellant] joined him
outside, he requested her to perform the Standardized Field
Sobri[e]ty Test battery, to which she complied.
28. Detective Colbath testified that [appellant] had difficulty
walking and almost fell while walking.
29. Detective Colbath testified that once he concluded his
investigation, he had probable cause to believe that [appellant] had
committed the offense of Driving While Intoxicated and he then
placed [appellant] under arrest.
The trial court made other findings pertinent to Officer Brininstool:
32. Officer Brininstool testified that he was dispatched to a call
for an intoxicated driver around 9:48 p.m. on July 19, 2014.
33. Officer Brininstool testified that while en route to the call
location, he was notified that there were several witnesses who
called 911, that the subject vehicle was a silver Hyundai Elantra, and
he was given the Elantra’s license plate number . . . .
34. Officer Brininstool testified that he was the first officer to
arrive at the call location of 2500 Rockbrook Dr, #87, Lewisville,
Denton County, Texas.
35. Officer Brininstool testified that once on scene, he spoke
with the witnesses, including [the 911 caller], that had called 911 to
report the possible intoxicated driver.
13
36. The witnesses saw the subject vehicle enter garage
number 87.
37. Officer Brininstool testified that he was able to locate
garage number 87 and he further testified that he had seen these
particular townhomes being built thus he knew townhome residence
number 87 was attached to garage 87 and as an added measure of
accuracy, he counted the townhome doors to match the
corresponding garage numbers before knocking on [appellant’s]
door.
38. Officer Brininstool testified that he was present when
Detective Colbath knocked on the door of residence number 87 and
made contact with the female that answered the door.
39. Officer Brininstool testified that he did not believe
[appellant] to be detained at the time she opened the door.
40. Officer Brininstool testified that the female identified
herself as [appellant] and she advised she owned a silver Hyundai
Elantra, had driven that car on this specific evening, and had
recently arrived home.
41. Officer Brininstool testified that [appellant] then
accompanied Detective Colbath outside upon his request.
42. Officer Brininstool testified that once [appellant] was
outside with Detective Colbath, he was not the investigating officer
and his primary duty was that of a back-up officer and scene
security. Officer Brininstool further testified he did not perform the
Standardized Field Sobriety Tests and did not participate in the
decision to arrest [appellant].
43. Officer Brininstool testified that he took statements from
the 911 callers.
The trial court made the following conclusions of law:
1. The Defendant’s Motion to Suppress challenges Detective
Colbath’s reasonable suspicion to detain [appellant] and Detective’s
Co[l]bath’s ability to arrest [appellant] pursuant to Texas Code of
Criminal Procedure Art. 14.03, without a warrant.
14
2. Any officer may arrest, without [a] warrant, persons found in
suspicious places and under circumstances which reasonably show
that such persons have been guilty of some felony, in violation of
Title 9, Chapter 42, Penal Code, breach of the peace, or offense
under Section 49.02, Penal Code, or threaten, or about to commit
some offense against the laws. Texas Code of Criminal Proc. Art.
14.03 (a)(1).
3. Detective Colbath was investigating the offense of driving
while intoxicated when he knocked on the front door of townhouse
#87. Driving while intoxicated is a breach of the peace. Romo v.
State, 577 S.W.2d 251, 253 (Tex. Crim. App. 1979).
4. The Court agrees with Officer Brininstool, not Detective
Colbath. At the moment [appellant] answered the door, there was
not reasonable suspicion to detain [appellant].
5. When [appellant] voluntarily opened the door, Detective
Colbath observed [appellant] and noticed red watery eyes, slurred,
thick [tongued] speech and an immediate odor of alcohol when the
defendant spoke. These factors coupled with [appellant’s]
inculpatory voluntary statements of being the only person inside the
townhouse, that she had recently arrived home and that she had
been driving the suspected car gave Detective Colbath reasonable
suspicion to detain [appellant] and continue his investigation of
[appellant] for the offense of driving while intoxicated.
6. An officer may stop and briefly detain a citizen for
investigative purposes if the officer, in light of his experience, has a
reasonable suspicion supported by articulable facts that criminal
activity may be afoot. Woods v. State, 970 S.W.2d[] 770, 773 (Tex.
App.––Austin 1998, pet. ref’d).
7. “Reasonable suspicion” exists if an officer has specific
articulable facts that, when combined with rational inferences from
those facts, would lead him to reasonabl[y] suspect that a particular
person has engaged, is engaged, or soon will be engaging in
criminal activity. The reasonable suspicion determination is made by
considering the totality of the circumstances. Garcia v. State, 43
S.W[.]3d 527, 530 (Tex. Crim. App. 2001).
8. The detaining officer does not have to be personally aware
of every fact that is taken into account during the reasonable
15
suspicion calculation, but it is the cumulative information known to
detaining officer and other cooperating officers at the time of the
detention. 911 dispatchers and call takers are considered
cooperating officers for purposes of the reasonable suspicion
calculation. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim.
App. 2011).
9. [Appellant] voluntarily submitted to the standardized field
sobriety tests (SFST) battery for Detective Colbath.
10. The additional evidence Detective Colbath discovered
during the administration of the SFST, coupled with the information
from Officer Brininstool and the civilian witnesses rose to the level of
probable cause to arrest [appellant] for the offense of driving while
intoxicated.
11. Any determination of whether a place is a suspicious place
for purposes of Art. 14.03(a)(1) is fact specific, but one factor
consistently considered by the Texas Court of Criminal Appeals is
the time between the crime and the apprehension of the suspect in a
suspicious place. Buchanan v. State, 175 S.W.3d 868, 875-76 (Tex.
App.––Texarkana 2005), rev’d on other grounds, 207 S.W.3d 772
(Tex. Crim. App. 2006).
12. [Appellant’s] townhouse became a suspicious place once
the suspect car parked in the attached garage. There was a short
duration of time between the time the car parked in the attached
garage and the time the officers knocked on the door. This short
duration of time (approximately 15 minutes) was not enough time to
remove the suspicion from the townhouse. Dyar v. State, 125
S.W.3d 460, 468 (Tex. Crim. App. 2003).
13. Since Detective Colbath had probable cause to arrest
[appellant] for a breach of the peace and Detective Colbath found
[appellant] in a suspicious place, Detective Colbath was acting within
his constitutional and statutory power to arrest [appellant]. Texas
Code of Criminal Proc. Art. 14.03 (a)(1).
Analysis
Appellant challenges whether the officers had reasonable suspicion to
detain her to investigate a possible drunk driving offense and also whether her
16
arrest was authorized under article 14.03. Because the chronology of events is
important, we will review her issues together, but we address reasonable
suspicion first.
Reasonable Suspicion
Officers had been dispatched to the townhomes based on information
given to the police by 911 callers. Appellant voluntarily answered her door in
response to their knock. See Cornealius v. State, 900 S.W.2d 731, 733–34 (Tex.
Crim. App. 1995) (noting that nothing in United States or Texas constitutions
prohibits officer from knocking politely on closed door). In determining whether
the totality of the circumstances, viewed objectively, provide a justifiable basis for
detention, we consider the cumulative information known to the cooperating
officers at the time of the stop rather than whether those officers are “personally
aware of every fact that objectively supports a reasonable suspicion to detain.”
Derichsweiler v. State,
348 S.W.3d 906, 914 (Tex. Crim. App. 2011), cert.
denied,
132 S. Ct. 150 (2011). Information provided to police from a citizen-
informant who identifies herself and may be held to account for the accuracy and
veracity of her report may be regarded as reliable. Id. at 914–15. The court of
criminal appeals has held that in such a scenario, the only question is whether
the information that the known citizen-informant provides, viewed through the
prism of the detaining officer’s particular level of knowledge and experience,
objectively supports a reasonable suspicion to believe that criminal activity is
afoot. Id. at 915.
17
As in Derichsweiler, there is no issue in this case with respect to the
reliability of the citizen-informant because she identified herself and, along with at
least one passenger, stayed at the scene to give witness statements to the
police. See id. at 915. Here, the collective information known to the police as
provided by the citizen-informant to the 911 dispatcher, appellant’s condition as
further witnessed by the officers, and her statements to them when she
answered the door and voluntarily spoke to them––the facts specifically listed in
the trial court’s conclusion number 5––were sufficient to give the officers
reasonable suspicion to detain appellant to further investigate whether probable
cause existed to arrest her for the offense of driving while intoxicated. See
Dunkelberg v. State, 276 S.W.3d 503, 504–06 (Tex. App.––Fort Worth 2008, pet.
ref’d); Ortiz v. State,
930 S.W.2d 849, 856 (Tex. App.––Tyler 1996, no pet.).
Accordingly, we overrule appellant’s second issue.
Validity of Warrantless Arrest
Appellant further argues that the totality of the circumstances do not show
that Detective Colbath had probable cause to arrest her or that she was located
in a suspicious place. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1).
Under the Fourth Amendment, a warrantless arrest is generally
unreasonable per se unless the arrest fits into one of a “few specifically defined
and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372,
113 S. Ct. 2130, 2135 (1993); Torres v. State,
182 S.W.3d 899, 901 (Tex. Crim.
App. 2005). “A police officer may arrest an individual without a warrant only if
18
probable cause exists with respect to the individual in question and the arrest
falls within one of the exceptions set out in Tex. Code Crim. Proc. art. 14.01–
14.04.” Torres, 182 S.W.3d at 901 (emphasis added); see Tex. Code Crim.
Proc. Ann. arts. 14.01–.04 (West 2015 & Supp. 2016). The requirement that an
arrest must be in accordance with article 14 as well as be supported by probable
cause affords a heightened level of protection under Texas law than under the
Fourth Amendment. E.g., Milton v. State,
549 S.W.2d 190, 192 (Tex. Crim. App.
1977).
Probable Cause
Probable cause for a warrantless arrest requires that the officer have a
reasonable belief that––based on facts and circumstances within the officer’s
personal knowledge, or of which the officer has reasonably trustworthy
information––an offense has been committed. Torres, 182 S.W.3d at 901–02.
Probable cause must be based on specific, articulable facts rather than the
officer’s mere opinion. Id. at 902. We use the “totality of the circumstances” test
to determine whether probable cause existed for a warrantless arrest. Id.
Appellant points out that no witnesses identified her as the driver of the
silver Hyundai, that officers did not conduct any investigation regarding any other
cars that might have been in the garage, that Detective Colbath did not ask her
what kind of car she had driven that night,3 that officers did not obtain any
3
Appellant argues that the video of the field sobriety tests “clearly
contradicts the statements provided by [Detective] Colbath that [she] admitted
19
evidence that would affirmatively link her to the vehicle that had been driven into
garage number 87, and that there is no evidence linking her to the license plate
number of the vehicle that the witnesses saw. But although whether some facts
are absent may be considered in making a probable-cause determination, the
absence of those facts must nevertheless be considered along with the totality of
the facts available. See Parker v. State, 206 S.W.3d 593, 601 (Tex. Crim. App.
2006); State v. Garrett,
22 S.W.3d 650, 655 (Tex. App.––Austin 2000, no pet.);
State v. Long, No. 03-11-00725-CR,
2012 WL 1959316, at *6 & n.7 (Tex. App.––
Austin May 31, 2012, no pet.) (mem. op., not designated for publication) (noting
that cases describing standard of review hold that “probable-cause determination
is based on the totality of the facts and circumstances in each case, and the
absence or presence of any particular fact or circumstance is not dispositive”).
Like reasonable suspicion, probable cause is also subject to the collective
knowledge doctrine. See U.S. v. Powell, 732 F.3d 361, 369, 372 (5th Cir. 2013),
cert. denied,
134 S. Ct. 1326 (2014); State v. Duran,
396 S.W.3d 563, 569 n.12
that she was driving any vehicle on the day of her arrest” and that “[t]he officer’s
question can be interpreted as what vehicle she normally drives rather tha[n]
what vehicle she drove home that evening (if any).” However, considering the
totality of the circumstances, it is reasonable to infer that appellant had been
driving the silver Hyundai when she admitted that she drove a silver Hyundai,
she had been driving home from a party, witnesses had followed a silver Hyundai
to her apartment complex, and one of the officers knew that the garages for the
apartments were behind the units. See State v. Woodard,
341 S.W.3d 404, 410
(Tex. Crim. App. 2011) (“[C]ourts afford the prevailing party ‘the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence.’”).
20
(Tex. Crim. App. 2013). The trial court found that probable cause to arrest
appellant for driving while intoxicated arose after Detective Colbath administered
the field sobriety tests and Officer Brininstool interviewed the 911 callers and
other civilian witnesses. We agree. See LeCourias v. State, 341 S.W.3d 483,
489–90 (Tex. App.––Houston [14th Dist.] 2011, no pet.); see also Smith v. State,
491 S.W.3d 864, 868–72 (Tex. App.––Houston [14th Dist.] 2016, pet. ref’d)
(concluding that police had probable cause to arrest Smith without a warrant in
hospital waiting room in accordance with “‘family violence’ exception” to article
14.03 after interviewing complainant who told them that Smith was her boyfriend
and had “stabbed and then also stomped on” her at home). Accordingly, we
conclude and hold that appellant’s failure of the field sobriety tests, coupled with
the information giving rise to reasonable suspicion to detain her, gave Detective
Colbath probable cause to arrest her.
Suspicious Place
Code of criminal procedure article 14.03(a)(1) provides that “[a]ny peace
officer may arrest, without warrant: (1) persons found in suspicious places and
under circumstances which reasonably show that such persons have been guilty
of some . . . breach of the peace.” Tex. Code Crim. Proc. Ann. art. 14.03(a)(1)
(emphasis added). For purposes of this section, driving while intoxicated is an
offense that constitutes a breach of the peace. Gallups v. State, 151 S.W.3d
196, 201 (Tex. Crim. App. 2004) (citing Romo v. State,
577 S.W.2d 251, 253
(Tex. Crim. App. [Panel Op.] 1979)). “[F]ew, if any places are suspicious in and
21
of themselves. Rather, additional facts available to an officer plus reasonable
inferences from those facts in relation to a particular place may arouse justifiable
suspicion.” Dyar v. State, 125 S.W.3d 460, 464–65 (Tex. Crim. App. 2003)
(quoting Johnson v. State,
722 S.W.2d 417, 421 (Tex. Crim. App. 1986) (op. on
reh’g), overruled on other grounds by McKenna v. State,
780 S.W.2d 797, 800
(Tex. Crim. App. 1989)). “Any ‘place’ may become suspicious when a person at
that location and the accompanying circumstances raise a reasonable belief that
the person has committed a crime and exigent circumstances call for immediate
action or detention by police.”4 Swain v. State,
181 S.W.3d 359, 366 (Tex. Crim.
App. 2005), cert. denied,
549 U.S. 861 (2006).
Whether a place is suspicious so as to justify a warrantless arrest under
article 14.03(a)(1) is a highly fact-specific analysis. Dyar, 125 S.W.3d at 468.
Although cases discuss different factors in determining whether a place may be
“suspicious” under the statute, “only one factor seems to be constant throughout
the case law. The time frame between the crime and the apprehension of a
suspect in a suspicious place is short.”
Id. Courts have held homes to be
suspicious places when an eyewitness to a suspected crime or breach of the
peace followed a suspect to the home afterwards. See Crowley v. State,
842
S.W.2d 701, 703 (Tex. App.––Houston [1st Dist.]), pet. ref’d as improvidently
granted,
830 S.W.2d 613 (1992) (holding that garage was suspicious place when
4
Appellant has not challenged whether exigent circumstances existed.
22
driver of other vehicle involved in traffic accident with Crowley—from which she
fled—followed her to a detached garage at a private residence and left his
passenger to watch the home while he left to call the police); Freeman v. State,
No. 05-96-00418-CR, 1997 WL 433781, at *2 (Tex. App.––Dallas Aug. 4, 1997,
pet. ref’d) (not designated for publication) (holding that Freeman’s apartment was
suspicious place when witnesses told officers they saw her driving carelessly,
leaving the scene of an accident, and stumbling to her apartment and witness
watched apartment until officers arrived to ensure Freeman did not leave).
As to whether her apartment could be considered a suspicious place,
appellant contends that there is no concrete evidence of how much time had
elapsed between the 911 call, the dispatch of the officers to the scene, and her
subsequent arrest. She claims that no evidence supports the trial court’s finding
that only fifteen minutes had elapsed between the time the officers were
dispatched and the time they spoke to her at her front door. According to
appellant, too much time had elapsed for officers to conclude that she had
recently been driving the car.
In Banda v. State, another case involving a possible drunk driver found at
his or her home based on police investigation of information from identified,
eyewitness 911 callers, the court of appeals held that the short amount of time
between Banda’s arrival at his home and the police officer’s arrival––about ten
minutes––supported the conclusion that Banda was in a suspicious place. 317
S.W.3d 903, 912 (Tex. App.––Houston [14th Dist.] 2010, no pet.); see also
23
Garcia v. Cockrell, No. CIV.A.301CV2261M, 2002 WL 1398550, at *1, 3–4 (N.D.
Tex. June 25, 2002, order) (adopting findings of magistrate, among them that
police had authority to arrest appellant under article 14.03(a)(1) when he was
found at home of murder suspect for whom police had warrant and appellant
admitted owning Lexus parked in front of home, which police had linked to the
murders); Dyar,
125 S.W.3d at 468 (concluding that hospital where Dyar had
been taken after one-person rollover accident was suspicious place when, while
talking to Dyar at hospital, DPS trooper saw intoxication clues and Dyar admitted
he had been drinking and driving). Here, the evidence shows that one of the 911
calls began at 9:46 p.m., that the caller told the 911 dispatcher that the person
had pulled into a garage around 9:49 p.m., that the 911 dispatcher told the caller
to stay at the scene, that Detective Colbath’s dashcam showed that he knocked
on appellant’s door around 9:57 p.m., and that appellant answered about a
minute to a minute and a half later. We conclude and hold that on these specific
facts, the trial court did not err by determining that appellant’s home was a
suspicious place for purposes of article 14.03(a)(1). Because we have also
concluded that the totality of the circumstances support probable cause, we hold
that the trial court did not abuse its discretion by determining that the warrantless
arrest was legal.
We overrule appellant’s first issue.
24
Conclusion
Having overruled appellant’s two issues, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., filed a dissenting opinion.
GARDNER, J., concurs without opinion.
PUBLISH
DELIVERED: November 10, 2016
25
