No. 05-08-01286-CR
Opinion Filed February 16, 2010. DO NOT PUBLISH. TEX R. APP. P. 47
On Appeal from the County Court at Law No. 1 Collin County, Texas, Trial Court Cause No. 001-89882-07.
Before Chief Justice WRIGHT, Justices RICHTER and FILLMORE.
Opinion By Justice RICHTER.
Appellant, Drew Aaron Callahan, appeals his conviction of driving while intoxicated (DWI). Following a bench trial, the trial court assessed punishment at 60 days confinement, probated for 1 year, and an $800 fine. In a single issue, appellant asserts that the trial court erred by overruling his motion to suppress evidence obtained as a consequence of the unlawful stop of appellant's vehicle. We affirm the trial court's judgment.
Factual and Procedural Background
On December 9, 2007, at 2:13 am, Plano patrol officer Michael Atkins was traveling south on U.S. Highway 75, transporting a prisoner to the Plano City Jail. At trial, Officer Atkins testified that he was traveling at the posted speed limit of 60 miles per hour when a red Nissan Pathfinder or Xterra driven by appellant, Drew Aaron Callahan (Callahan) overtook his marked black-and-white patrol car at a much greater speed. The Nissan passed his patrol car, changed lanes into the same lane in which his squad car was traveling, and continued on at the same excessive speed. Officer Atkins observed the Nissan weave approximately ten times from the far right lane over the solid white line into the right shoulder and then from the far right lane into the right center lane. Based upon his 12 years of experience as a police officer, his DWI training, the time of night, and the manner in which the Nissan was being operated, Officer Atkins formed the opinion that Callahan might be intoxicated. Plano Police Department policy prohibits officers from making traffic stops while transporting prisoners so Officer Atkins used his in-car radio, advised Plano police dispatch he was following a possible DWI and gave the vehicle description and license plate number. Dispatch asked other patrol officers to respond to Officer Atkin's location. Officer Atkins continued to follow the Nissan, providing dispatch with updates as to his location. Officer Atkins' patrol car was equipped with a dashboard camera and recorder that captured video images and sound during the time he followed the Nissan. Sergeant Britton, also traveling southbound on Highway 75, testified that he heard the discussion between Officer Atkins and dispatch and responded to dispatch's request for assistance. Sergeant Britton sped up to approach Officer Atkins' patrol car from behind. Officer Atkins turned on the back lights of his patrol car to signal his location to Sergeant Britton. When Officer Atkins saw Sergeant Britton approach, he changed lanes and let Sergeant Britton pass so Sergeant Britton's patrol car was directly behind the red Nissan. Officer Atkins testified that he kept his eyes on the red Nissan until he was sure that Sergeant Britton was stopping the correct vehicle. After radio confirmation by Officer Atkins that he was following the correct vehicle, Sergeant Britton initiated the traffic stop by applying lights and sirens. Sergeant Britton admits that prior to turning on his lights and siren, he did not see Callahan commit any traffic violations. However, after turning on his lights and siren, Sergeant Britton observed Callahan commit several traffic offenses before coming to a stop. Sergeant Britton testified that the Nissan did not stop immediately but continued down the service road, past several entrances to a mall and businesses. Callahan proceeded to the signal light at the intersection, went through the light, made a wide right turn onto Plano Parkway westbound, and continued driving. Officer Blumerick, on patrol in the vicinity, joined the pursuit as Callahan and Sergeant Britton turned onto Plano Parkway. Callahan stopped shortly thereafter. Sergeant Britton testified that upon approaching the Nissan, he smelled a strong odor of an alcoholic beverage coming from inside the vehicle. He also noted that Callahan's speech was slurred. After identifying Callahan through his driver's license, Sergeant Britton asked him to exit the vehicle and observed that Callahan was unsteady on his feet. Sergeant Britton then turned the investigation over to Officer Blumerick who administered an intoxilyzer test and arrested Callahan for driving while intoxicated. Callahan filed a motion to suppress evidence, requesting that the trial court suppress the use of all evidence obtained after Sergeant Britton initiated the stop because Sergeant Britton did not have a warrant or probable cause to arrest and search Callahan. The trial court heard Callahan's motion to suppress concurrently with a bench trial of the case. At trial, Callahan did not dispute the testimony and evidence of intoxication, including patrol car videotapes and the intoxilyzer results, but argued that because Sergeant Britton did not have reasonable suspicion to lawfully stop Callahan, all such evidence should be excluded as improperly obtained. At the conclusion of the bench trial, the trial court denied the motion to suppress and found Callahan guilty of the misdemeanor offense of driving while intoxicated. Motion To Suppress
In his sole issue, Callahan contends the trial court erred by denying his motion to suppress. Callahan asserts that the officer who stopped him had neither warrant nor reasonable suspicion to make the stop and did so based solely on the request of a fellow officer. Callahan argues Sergeant Britton did not have specific, articulable facts sufficient to establish reasonable suspicion to justify the stop because (1) Sergeant Britton did not personally observe Callahan engage in any acts or conduct to corroborate Officer Atkin's opinion that Callahan was driving while intoxicated, and (2) Sergeant Britton was not given sufficient facts by Officer Atkins or dispatch on which to base his decision to stop Callahan. The State responds that Sergeant Britton lawfully stopped Callahan because the police officers had collective knowledge of facts sufficient to give rise to a reasonable suspicion that Callahan was driving while intoxicated. Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493(Tex. Crim. App. 2005); Randolph v. State, 152 S.W.3d 764, 769 (Tex. App.-Dallas 2004, no pet.). We do not engage in our own factual review but give almost complete deference to the trial court's determination of historical facts, and review de novo questions of law and mixed questions of law and facts not turning on credibility or demeanor. See St. George, 237 S.W.3d at 725; Ford, 158 S.W.3d at 493. Where, as here, the trial court did not make explicit findings of fact, we view the evidence in the light most favorable to the trial court's rulings and assume the trial court made implicit findings of fact supported by the record. Id. We will uphold the trial judge's decision so long as it is correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); State v. Ross, 32 S.W.3d 853, 854 (Tex. Crim. App. 2000). Discussion
The burden of proof on a motion to suppress evidence on the basis of a Fourth Amendment violation initially rests with the defendant. Once the defendant satisfies this burden by establishing that a search or seizure occurred without a warrant, the burden shifts to the state to prove the reasonableness of a warrantless search. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford, 158 S.W.3d at 492. Because the record reflects that Callahan was stopped without a warrant, we next consider the reasonableness of the stop. Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 30 (1968). A temporary detention is justified when the officer has specific, articulable facts that, when combined 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. Curtis v. State, 238 S.W.3d 376, 380-81 (Tex. Crim. App. 2007) (quoting Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997)); Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). When an accused challenges a warrantless detention on constitutional grounds, we examine the reasonableness of the temporary detention under the totality of the circumstances. State v. Griffey, 241 S.W.3d 700, 703-04 (Tex. App.-Austin 2007, pet. ref'd); State v. Cullen, 227 S.W.3d 278, 281 (Tex. App.-San Antonio 2007, pet. ref'd). In determining the existence of reasonable suspicion, "[w]e look only at those facts known to the officer at the inception of the stop-a stop or search unlawful at its inception may not be validated by what it turns up." Griffey, 241 S.W.3d at 704. At trial, Officer Atkins testified he personally observed Callahan pass his marked black-and-white police car at greater than the posted speed limit and weave in and out of its lane of travel approximately ten times. Officer Atkins further testified that based on his years of experience as a police officer, his specialized DWI training, the time of night, and the manner in which the Nissan was being operated, he suspected that Callahan was intoxicated. Weaving back and forth across several lanes of traffic has been held to be sufficient to give rise to a reasonable suspicion that the driver may be intoxicated. Held v. State, 948 S.W.2d 45, 51 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). However, Callahan does not dispute Officer Atkins' testimony or contend that Officer Atkins had insufficient facts on which to base his suspicion that Callahan was driving while intoxicated. Instead, Callahan focuses on what Sergeant Britton, the detaining officer, saw or knew prior to initiating the temporary detention. Callahan argues that the stop by Sergeant Britton was unlawful because: (1) Sergeant Britton did not personally observe any activity that would give rise to a reasonable suspicion that Callahan was intoxicated; and (2) Sergeant Britton was not given specific articulable facts which, taken together with rational inferences from those facts, could lead to Sergeant Britton having a reasonable suspicion that Callahan was intoxicated. Prior to initiating the stop, Sergeant Britton was given the vehicle description, license plate and location. He was also informed that Officer Atkins suspected the driver of the Nissan was intoxicated and the Nissan had been "all over the road." Callahan contends this information was insufficient to enable Sergeant Britton to form his own reasonable suspicion that Callahan was driving while intoxicated. Callahan argues that if Sergeant Britton stopped Callahan based on nothing more than Officer Atkins' request, it was not a lawful investigative stop. In support, Callahan relies on several warrantless arrest cases where the arresting officer did not have probable cause to make the arrest. See Torres, 182 S.W.3d at 902-03 (no probable cause to arrest when the arrest was based on opinions, not facts, of other officers not testifying at the suppression hearing); Rance v. State, 815 S.W.2d 633, 635-36 (Tex. Crim. App. 1991) (no probable cause to arrest where there was no evidence that Rance matched the description of the person who sold drugs to an undercover officer); Colston v. State, 511 S.W.2d 10, 13 (Tex. Crim. App. 1974) (no probable cause to arrest where validity of arrest was dependent on probable cause possessed by unidentified federal agent who was not called to testify). The Torres and Rance cases are not particularly helpful to our analysis because they involve the lack of probable cause to arrest, not reasonable suspicion to temporarily detain for investigative purposes. Torres, 182 S.W.3d at 902-03; Rance, 815 S.W.2d at 635-36. In Colston, the court stated the arresting officers had a right to rely on a teletype request to arrest and assume the officer issuing the teletype had probable cause for an investigative stop, "but where the record fails to reflect that the issuing officer had such `probable cause,' the investigative stop is not insulated from challenge." Colston, 511 S.W.2d at 13. The Colston case is distinguishable from the case before this court because in Colston, the requesting officer who possessed probable cause to arrest Colston did not testify at trial. In the instant case, the requesting officer, Officer Atkins, testified as to the factual basis for his suspicion that Callahan was driving while intoxicated. Acknowledging that Sergeant Britton did not personally see Callahan commit any traffic offenses prior to turning on his lights and siren, the State maintains Sergeant Britton lawfully detained Callahan because the requesting officer (Officer Atkins) had reasonable suspicion that Callahan was intoxicated at the time of the request. According to the State, it was not necessary for Sergeant Britton to have received all information observed by Officer Atkins because the legality of the stop is viewed in light of the collective knowledge of the cooperating officers. Brother, 166 S.W.3d at 257 (the factual basis for stopping a vehicle need not arise from the detaining officer's personal observation of the violation of a traffic law). In determining whether reasonable suspicion exists to temporarily detain persons suspected of criminal activity, we examine the cumulative information of all of the officers who cooperated in the detention. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993); Cullen, 227 S.W.3d at 281. The detaining officer need not have knowledge of circumstances which create reasonable suspicion so long as the officer requesting the stop has such knowledge. State v. Jennings, 958 S.W.2d 930, 933 n. 2 (Tex. App.-Amarillo 1997, no pet.). A stop based on facts observed by another officer and transmitted by radio to the detaining officer does not violate the Fourth Amendment. Armendariz, 123 S.W.3d at 404. However, if the detaining officer made the stop based solely on the request of a fellow officer, the focus lies upon the information known to the officer who made the request. Jennings, 958 S.W.2d at 933. In Jennings, the detaining officer did not personally witness criminal or other suspicious activity. Id. The officer testified she stopped defendant's vehicle for the sole reason that the vehicle matched the description broadcasted by an unnamed officer who did not testify at trial. Id. Concluding the State did not meet its burden to show reasonable suspicion for the initial stop, the Jennings court stated it was incumbent upon the State to present evidence regarding information known to the officer who made the broadcast. Id. In the case before this court, Officer Atkins (the requesting officer) testified at trial regarding the facts upon which he based his suspicion that Callahan was driving while intoxicated. Officer Atkins testified that using his in-car radio, he advised Plano police dispatch that he was following a possible DWI, asked that other units respond to his location, and provided continuous radio updates heard by dispatch and anyone on the Plano police radio channel. Officer Atkins further testified that he followed Callahan's vehicle until Sergeant Britton was in position behind the correct vehicle. He then used his radio to inform Sergeant Britton that he was behind the correct vehicle and that the driver was all over the road. Sergeant Britton testified that police dispatch provided factual information sufficient to locate and identify Callahan's vehicle, which was further verified by Officer Atkins. Based on the totality of the circumstances in this case and the cumulative information of Officer Atkins and Sergeant Britton, we conclude that Sergeant Britton had reasonable suspicion to temporarily detain Callahan. Accordingly, we conclude the trial court did not abuse its discretion by denying Callahan's motion to suppress. Conclusion
Because we have concluded the trial court did not err by denying Callahan's motion to suppress, we decide Callahan's sole issue against him. The trial court's judgment is affirmed.