Summary
holding interaction was encounter when officer approached car stopped at green light in right lane of street and "directed," rather than ordered, driver to roll down window
Summary of this case from State v. PriddyOpinion
No. 05-07-00029-CR
Opinion filed October 22, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-83734-05.
Before Justices MORRIS, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
After the trial court denied Appellant Sandy Soto's motion to suppress, she pleaded guilty to driving while intoxicated. In a single issue, she asserts the Plano police officer, who was outside of his jurisdiction when he arrested her, had no authority to make a warrantless detention when he at most observed a "rules of the road" violation. The State responds the roadside encounter was consensual, or alternatively, the police officer was justified in detaining appellant outside of his jurisdiction because he had reasonable suspicion appellant was driving while intoxicated. We affirm. The parties stipulated to the following facts. Plano Police Officer A. Levy received a dispatch to investigate a possible DWI at the intersection of State Highway 121 and Preston Road about 3:25 a.m. on May 21, 2005. This intersection is in the Frisco city limits and outside of Officer Levy's jurisdiction. The dispatcher told Officer Levy a private citizen named Linda (last name unknown) had witnessed appellant's vehicle weaving on the roadway. When Officer Levy arrived at the intersection, he saw appellant's car sitting in the right hand lane, despite having a green light. He further observed appellant slumped over the steering wheel. Officer Levy banged on the window and directed appellant to roll down her window. He then noticed "indicia of intoxication" and arrested appellant. The State charged appellant by information with driving while intoxicated. She filed a motion to suppress, which the trial court denied. She then pleaded guilty, and the court placed her on community supervision for twelve months and assessed a $500 fine. This appeal followed. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review to a trial court's application of law to those facts. Id. We first consider the State's argument that Officer Levy engaged in a consensual encounter with appellant, rather than an investigative detention requiring reasonable suspicion. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in public to ask questions. Id. Such an encounter does not require any justification whatsoever on the part of the officer. Id. The issue in determining whether an encounter occurred is whether the officer "would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter." Id. (citing Sate v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999)). Appellant relies on Ebarb v. State, 598 S.W.2d 842 (Tex.Crim.App. 1979) (op. on rehearing) for the proposition that when a person is sitting in a parked car and a police officer orders her to roll down the window, a temporary seizure occurs at that point for an investigative detention. The facts of Ebarb are distinguishable. In that case, the officers followed defendant's car until it pulled into a private driveway, then blocked the driveway, approached the vehicle, and ordered defendant to roll down the window. Id. at 843, 850. The officer who approached the car further testified the defendant would not have been allowed to leave once stopped. Id. at 844. n. 1. Here, the stipulated facts do not show that Officer Levy ordered appellant to roll down her window, rather he "directed" her to roll it down. Further, there is nothing in the record indicating Officer Levy's actions were such a display of authority that a reasonable person would not have felt free to decline his request for compliance. See, e.g., Harper v. State, 217 S.W.3d 672, 675 (Tex.App.-Amarillo 2007, no pet.). Thus, the facts of this case are more analogous to Ashton v. State, 931 S.W.2d 5 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). In that case, a car was stopped with the doors closed and windows rolled up when an officer approached and motioned for the defendant to roll down the window. Id. at 6. Defendant complied and the officer found cocaine inside her purse, which led to a conviction for possession of a controlled substance. Id. Distinguishing Ebarb, the court concluded no investigatory detention occurred when the officer approached the car and motioned the driver to roll down her window. Id. at 7. We also conclude no investigatory detention occurred under these facts. Police officers are as free as anyone to ask questions of their fellow citizens. See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). Likewise, an officer should be able to determine whether a person, slumped over her steering wheel, is in need of medical assistance or some other type of assistance by approaching a car and directing the person to roll down the window. Because the record does not indicate any other show of authority by Officer Levy, we conclude the roadside encounter was consensual. Even if Officer Levy improperly stopped appellant, the stop was still justified under Texas Code of Criminal Procedure article 14.03. This article provides "a peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace." Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon Supp. 2006); see also id. art. 14.03(g)(1). In Brother v. State, the court of criminal appeals determined whether an officer had reasonable suspicion to stop a car for driving while intoxicated when the officer was outside of his geographical jurisdiction. Brother v. State, 166 S.W.3d 255, 256 (Tex.Crim.App. 2005). In that case, a concerned citizen reported defendant speeding, tailgating, and weaving across several lanes of traffic. Id. The citizen stayed on the line with the dispatcher and continued to follow the car with her hazard lights on so the responding officer would be able to identify the correct car. Id. The officer then arrested defendant for DWI. Id. On appeal, defendant argued the officer did not personally observe any activity giving rise to a reasonable suspicion of DWI; therefore, the stop was not authorized under article 14.03. Id. The court of criminal appeals concluded the officer was aware of sufficient facts to conclude criminal activity was afoot. Id. at 257. "The factual basis for stopping a vehicle need not arise from the officer's personal observation, but may be supplied by information acquired from another person." Id. Thus, the officer had reasonable suspicion to stop the vehicle despite being outside of his geographical jurisdiction. Id. at 260; see also Mitchell v. State, 187 S.W.3d 113, 118 (Tex.App.-Waco 2006, pet. ref'd). Appellant argues Brother is distinguishable from the present facts because the witness who called the dispatcher did not stay in constant contact and follow appellant's car. This minimal factual distinction does not affect Brother's ultimate holding. Thus, when Officer Levy received information that a vehicle was weaving on the roadway and he then observed appellant stopped at a green light, slumped over the steering wheel, he had reasonable suspicion that appellant was driving while intoxicated. Thus, he had authority under article 14.03(d) or 14.03(g) to stop appellant outside of his jurisdiction. Accordingly, the trial court did not err in denying appellant's motion to suppress. We overrule appellant's sole issue. The trial court's judgment is affirmed.