Opinion
NO. 09-11-00547-CR
03-07-2012
THE STATE OF TEXAS, Appellant v. CHRISTOPHER KEMMEL RUDE, Appellee
On Appeal from the County Court at Law No. 4
Montgomery County, Texas
Trial Cause No. 10-261998
MEMORANDUM OPINION
The State charged Christopher Kemmel Rude with driving while intoxicated. Rude filed a motion to suppress, which the trial court granted. In one appellate issue, the State challenges the trial court's decision to grant Rude's motion to suppress. We reverse the trial court's order and remand for further proceedings consistent with this opinion.
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). "First, we afford almost total deference to a trial judge's determination of historical facts." Id. Second, we review a trial court's application of the law to the facts de novo.Id. We will sustain the trial court's ruling if that ruling is '"reasonably supported by the record and is correct on any theory of law applicable to the case."' Id. at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
Deputy Brice Herring sought and obtained a search warrant to obtain a sample of Rude's blood. Herring provided an affidavit stating that he had good reason to believe that Rude had operated a motor vehicle in a public place while intoxicated. He explained that Deputy R. Underwood conveyed information to him about Rude's actions during a stop of Rude's vehicle. According to Herring, Underwood stopped Rude in an attempt to locate a vehicle from a disturbance and that, to avoid law enforcement, Rude had pulled into the driveway of a residence that was unfamiliar to him. During the stop, Underwood found a marijuana pipe, smelled a strong odor of alcohol, and noticed that Rude had slurred speech, was indifferent and talkative, and was staggering. Underwood conducted three field sobriety tests, all of which yielded indicators of intoxication. Rude told Underwood that he smelled of beer because a beer had exploded on him. Rude had refused to provide a breath sample.
In his motion to suppress, Rude argued that the search warrant violated the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, as well as Article I, Sections 9, 10, and 19 of the Texas Constitution and Article 38.23 of the Code of Criminal Procedure. See U.S. Const. amends. IV, V, VI, XIV; see also Tex. Const. art. I, §§ 9, 10, 19; Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005). At the suppression hearing, Rude's counsel explained, "What I'm contesting is the reasonable suspicion on the stop as contained within the four corners of the affidavit and the search warrant." Counsel argued that Herring's affidavit was conclusory and failed to create reasonable suspicion. The State told the trial court that the issue before it was whether the affidavit established sufficient probable cause to issue the search warrant. The following exchange subsequently occurred:
Trial Court: Okay. So, let's see if I understand this. If I was looking at [the affidavit] . . . I would have to make a decision, number one, if there was reasonable suspicion to stop, and then if there was reasonable suspicion to stop, whether there was probable cause to -- of evidence of intoxication to issue the search warrant. But I would have to make a decision first whether there was reason to stop. And if I were looking at the search warrant at home, and if I found that there was not reasonable suspicion for the stop, then that would be the end of it. So there would not be a search warrant. Right?The defense proceeded to argue that the search warrant was not supported by reasonable suspicion. In response, the State argued that Herring's affidavit was sufficient to establish probable cause. The trial court found that the affidavit failed to create reasonable suspicion to stop Rude's vehicle and that the affidavit was conclusory as to the reasons for the stop.
Prosecutor: Correct.
Trial Court: And that's the point you're making.
Defense Counsel: Yes, ma'am.
Trial Court: That there was no reason -- that the reasonable suspicion to stop was not there, therefore the search warrant fails.
Defense Counsel: Correct. And therefore the blood tests and the blood test results would fail.
Trial Court: And you agree with that?
Prosecutor: Yes, Judge.
In its findings of fact, the trial court noted that Herring's affidavit: (1) "does not provide adequate information to establish reasonable suspicion as to how [Rude's] vehicle related to the 'attempt to locate vehicle from a disturbance[;]'" (2) "is vague and does not establish adequate information to constitute reasonable suspicion of a 'disturbance'[;]" (3) "does not connect [Rude] nor provide adequate information to establish reasonable suspicion that [Rude] was involved in a disturbance[;]" and (4) "does not provide adequate information and is speculative and conclusory as to how [the] officer prior to the stop knew that 'subject to avoid law enforcement pulled into a driveway of [a] residence he did not know.'" In its conclusions of law, the trial court found:
The affidavit lacks information within the four corners of the document to support a reasonable suspicion by the officer to detain [Rude].
In the four corners of the affidavit, there was insufficient probable cause for the issuance of the search warrant because the officer did not articulate reasonable suspicion to stop [Rude].
On appeal, the State contends that the trial court applied an incorrect standard by focusing on whether reasonable suspicion existed to stop Rude's vehicle instead of focusing on whether the affidavit created probable cause to believe that Rude was driving while intoxicated and that his blood contained evidence of driving while intoxicated. According to Rude, the parties' exchange at the suppression hearing constitutes a concession by the State that Herring's affidavit is insufficient to create reasonable suspicion for the initial detention. The State contends that it was not required to preserve error for appeal and that, even so, it did not waive its complaint.
In some cases, the State need not preserve error to raise a complaint on appeal. See State v. Klima, 934 S.W.2d 109, 110-11 (Tex. Crim. App. 1996) (On appeal of order granting the defendant's motion to suppress, the State could raise the issue of standing for the first time on appeal.); but see State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998) (On appeal of order granting the defendant's motion to suppress, the State could not raise a new theory of law not advanced in the trial court.). Even when a party does preserve a complaint for appeal, that party may waive or forfeit the complaint at a later time. Tucker v. State, 990 S.W.2d 261, 263 (Tex. Crim. App. 1999). The State may forfeit issues through its assertions, concessions, and acquiescence at trial. Klima, 934 S.W.2d at 110 n.1; see Steagald v. U.S., 451 U.S. 204, 209-11, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (The Government may lose its right to raise issues when it has "made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise . . . questions in a timely fashion during the litigation.").
Although the State's response to the trial court's hypothetical questions was misleading, we do not construe it as a concession to the standard advocated by Rude at the suppression hearing. The record indicates that the State maintained, throughout the suppression hearing, that the proper issue before the trial court was whether Herring's affidavit established sufficient probable cause to support issuance of the search warrant and that this is the standard the trial court should apply. We cannot say that the State acquiesced to the trial court's application of the reasonable suspicion standard.
The State cites Hughes v. State, 334 S.W.3d 379 (Tex. App.—Amarillo 2011, no pet.), for the proposition that the trial court should have restricted its analysis to whether Herring's affidavit presented the magistrate with sufficient probable cause to support issuance of the warrant. In Hughes, the Amarillo Court of Appeals rejected Hughes's argument that the officer's affidavit failed to state specific articulable facts to authorize a stop of Hughes and that, as a result, evidence seized pursuant to a search warrant should be suppressed. Hughes, 334 S.W.3d at 386. The Court noted that this "analysis misplaces the analysis of a motion to suppress based upon a lack of reasonable suspicion with the analysis of probable cause to issue a search warrant." Id. The Court explained that "the issue is not reasonable suspicion to detain appellant[;] rather it is probable cause to authorize the issuance of a search warrant following the detention." Id. at 387.
According to Rude, the reasoning in Hughes is flawed and Herring's detailing operative facts of the initial stop in his affidavit should have made the magistrate aware of a lack of reasonable suspicion and led the magistrate to refuse to sign the search warrant. He argues that a contrary conclusion would allow an officer to obtain a search warrant by illegally detaining a person without reasonable suspicion.
The Code of Criminal Procedure expressly requires that probable cause support issuance of a search warrant:
No search warrant shall issue for any purpose in this state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in fact exist for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. . . .Tex. Code. Crim. Proc. Ann. art. 18.01(b) (West Supp. 2011) (emphasis added). "In deciding a motion to suppress evidence seized pursuant to a search warrant, the issue before the trial court is the propriety of the magistrate's finding that there is probable cause to issue the search warrant." Nilson v. State, 106 S.W.3d 869, 871 (Tex. App.— Dallas 2003, no pet.). Therefore, when Rude sought suppression of the search warrant for a blood sample, the proper issue before the trial court was whether the warrant was supported by probable cause. See id.; see also Hughes, 334 S.W.3d at 387. The probable cause standard requires that the affidavit must set out sufficient facts for the magistrate to conclude that the item to be seized will be at the specified location at the time the warrant issues and the search is executed. Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). In this case, the trial court erroneously applied the reasonable suspicion standard when evaluating Rude's motion to suppress. Because the trial court did not apply the appropriate probable cause standard, we sustain the State's sole appellate issue, reverse the trial court's order granting Rude's motion to suppress, and remand the cause for further proceedings consistent with this opinion.
Because the amendments to article 18.01 are not material to this case, we cite to the current version of the statute.
REVERSED AND REMANDED.
STEVE McKEITHEN
Chief Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.