Opinion
No. 04-15-00205-CR
05-18-2016
The STATE of Texas, Appellant v. Timothy Lynn SIMON, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 458712
Honorable John Longoria, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice REVERSED AND REMANDED
The State appeals from the trial court's order granting, in part, a motion to suppress evidence and statements. The State argues the trial court erred in granting the suppression motion because the appellee, Timothy Lynn Simon, failed to satisfy his burden of proof at the suppression hearing and the trial court failed to apply the law properly in making its ruling. We reverse and remand to the trial court for proceedings consistent with this opinion.
BACKGROUND
Simon was charged with the offense of driving while intoxicated. Simon filed a motion to suppress evidence and statements he made to the police. At the suppression hearing, the State called two San Antonio Police Officers, William Dains and Kevin Dorsey, to testify. In addition, the trial court viewed videotapes from cameras mounted in the officers' patrol cars.
The evidence presented at the suppression hearing showed that Dains was working patrol and driving on a highway in San Antonio, Texas, when he noticed a car speeding. Dains then followed the car and saw it make a lane change without signaling. Dains initiated a traffic stop. The car exited the highway, and pulled into a restaurant parking lot. Dains walked over to the parked car and started talking to its driver, Simon. Simon had already exited his car. Dains asked Simon why he exited his car and commented that most drivers wait inside their car for an officer to approach. Dains told Simon to get back into his car. Simon complied.
Dains saw that Simon was unsteady, but not falling over. As Dains spoke to Simon, he noticed the odor of alcohol on Simon's breath and saw that Simon had red, "kind of bloodshot" eyes. Dains asked Simon if he had been drinking, and Simon said he had consumed three alcoholic beverages that evening. After checking Simon's license, Dains performed a field sobriety test known as the horizontal gaze nystagmus (HGN) test. According to Dains, Simon failed the HGN test, which indicated to Dains that there was a high probability that Simon was intoxicated. Dains, however, did not tell Simon he had failed the test. Instead, Dains told Simon, "Okay, go ahead and get back in your car for me. I'll be back with you in a few minutes."
Dains returned to his patrol car and contacted a driving while intoxicated (DWI) unit for assistance. A second officer, Dorsey, arrived shortly thereafter. When Dorsey arrived, Simon was sitting in his own car. Simon was not handcuffed. Dorsey went over to the car and talked to Simon. However, Dorsey did not administer Miranda warnings before doing so. Simon then made additional statements to Dorsey, including statements that he had consumed three alcoholic beverages earlier that evening. Dorsey advised Simon he was going to administer field sobriety tests to him to see if it was safe for him to drive. At this point, Simon refused to participate in any field sobriety tests, stating that his attorneys had told him not to perform any tests. Dorsey then told Simon to place his hands behind his back so he could handcuff him. At this point, Simon asked, "Are you arresting me?" Dorsey then formally arrested Simon for driving while intoxicated.
Although Dains testified that Dorsey arrived within five to ten minutes, the video shows it was actually less than five minutes.
During the suppression hearing, the first officer, Dains, stated that he believed he had probable cause to arrest Simon after he administered the HGN test. Specifically, Dains testified:
Defense Counsel: [] When did you think you had probable cause?
Officer: After the completion of the HGN. I probably had it before that, but where I a hundred percent felt that I had it was after the completion of the HGN.
Defense Counsel: Based on the totality of the circumstances?
Officer: Yes, sir.
Defense Counsel: So you waited until that moment to believe that you had probable cause for the arrest?
Officer: Yes, sir.
Defense Counsel: And that's when you took him into custody pending the other officer to finish the investigation?
Officer: Yes, sir.
On re-direct examination, Dains testified that Simon was not free to leave at this juncture. Dains characterized Simon's status as "definitely an investigative detention." According to Dains, he did not make a determination to arrest Simon, but called another officer to investigate further.
At the conclusion of the hearing, Simon argued that he was in custody after Dains administered the HGN test and directed him to get back in his car. According to Simon, any statements he made to Dorsey had to be suppressed because he was in custody when he spoke to Dorsey and he had not yet been advised of his right to remain silent and his other rights as required by Miranda.
Miranda v. Arizona, 384 U.S. 436 (1966).
In ruling, the trial court stated,
It is my belief that Officer Dains said that at one point he was talking 100 percent surety [sic] that he had probable cause and could have arrested Mr. Simon. I believe that the fact that he in his mind had established probable cause, makes everything after the putting of Mr. Simon back in the car, bluntly custodial interrogation. There's no question that he could not have left except by putting himself in danger of being arrested even by force if necessary. So I will suppress the interrogation by Officer Dorsey.(emphasis added). Thus, the trial court suppressed Simon's statement to Dorsey because it concluded the statements were made during a custodial interrogation prior to the issuance of Miranda warnings. The State appealed the trial court's suppression ruling. No findings of fact or conclusions of law were requested or filed.
Now, observations that he may make that he can testify to, that's up to him. But the interrogation itself to me was subsequent to custodial arrest. And for that reason, I would suppress those things that Officer Dorsey interrogated him on verbally. As far as his personal observations, I'm not suppressing that because those were observations of his own. Those are my orders at this time.
The trial court also suppressed the results of the HGN (horizontal gaze nystagmus) test performed by Dains because it concluded that the test was improperly administered. The State does not challenge this part of the trial court's suppression ruling on appeal.
ISSUES PRESENTED
On appeal, the State presents two issues. In its first issue, the State argues the burden was on Simon to establish that his statements to Dorsey were the result of a custodial interrogation and Simon failed to meet his burden. In its second issue, the State argues the trial court erred in relying on the subjective intent and beliefs of one of the officers and on evidence that Simon was not free to leave in making its custody determination.
STANDARDS OF REVIEW
A trial court's ultimate custody determination presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Therefore, we afford almost total deference to the trial court's custody determination, when the questions of historical fact turn on credibility and demeanor. Id. at 526-27. However, when the questions of historical fact do not turn on credibility and demeanor, we review a trial court's custody determination de novo. Id. at 527. The ultimate legal determination of whether an individual was in custody requires us to take the facts, as assessed for weight and credibility by the trial court, and make a legal determination as to whether those facts amount to custody under the law. State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013).
When, as here, the trial court does not file written findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We sustain the trial court's ruling if it is reasonably grounded in the record and is correct on any theory of law applicable to the case. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013).
APPLICABLE LAW
The warnings required under Miranda were established to safeguard an individual's constitutional privilege against self-incrimination during a custodial interrogation. Herrera, 241 S.W.3d at 525. "Custodial interrogation" is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of their freedom in a significant way. Id. A routine traffic stop generally does not place a person in custody for Miranda purposes; however, it may escalate from a non-custodial detention to a custodial detention when formal arrest ensues or the detainee's freedom of movement is restrained to the degree associated with a formal arrest. State v. Ortiz, 382 S.W.3d 367, 372 (2012).
We make custody determinations on an ad hoc basis. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). When reviewing "custody" for Miranda purposes, we apply a reasonable person standard. Herrera, 241 S.W.3d at 525. A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt, 931 S.W.2d at 254 (citing Stansbury v. California, 511 U.S. 318, 322 (1994)).
A custody inquiry requires an examination of all of the objective circumstances surrounding the questioning. Herrera, 241 S.W.3d at 525. "[O]nly the objective circumstances known to the detainee should be considered in deciding what a reasonable person in his position would believe." Ortiz, 382 S.W.3d at 373. In fact, the U.S. Supreme Court has stated: "A policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 421-22 (1984). "[A]n officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave." Stansbury, 511 U.S. at 325. "[I]t is the objective surroundings, and not any undisclosed views, that control the Miranda custody inquiry." Id. Thus, the subjective intent of the officers to arrest is irrelevant unless that intent is somehow communicated or otherwise manifested to the person being questioned. Herrera, 241 S.W.3d at 525-26 (citing Stansbury, 511 U.S. at 324-25).
Both an investigative detention and an arrest involve a restriction on an individual's freedom of movement. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). However, there is no bright-line test for distinguishing between an investigative detention and an arrest. Id. at 291. Instead, courts consider a number of factors, including: (1) the amount of force displayed; (2) the duration of a detention; (3) the efficiency of the investigative process and whether it is conducted at the original location or the person is transported to another location; (4) the officer's expressed intent—that is, whether he told the person that he was under arrest or was being detained only for a temporary investigation, and (5) any other relevant factors. Id.
We have recently analyzed the difference between an investigative detention and a formal arrest. For example, in State v. Adams, 454 S.W.3d 48 (Tex. App.—San Antonio 2014, no pet.), we determined the appellant's detention did not rise to the level of a formal arrest. There, the appellant was driving a car involved in an accident, left the accident scene, and went to a nearby residence. Id. at 49-50. The officer investigating the accident went to the residence and asked the appellant if he would return to the accident scene with him so the officer could complete his accident report. Id. The appellant agreed to ride in the officer's patrol car to return to the accident scene. Id. at 50-51. The appellant was not handcuffed. Id. at 51. While driving back to the accident scene, the officer noticed that the air was filled with the odor of alcohol and the appellant admitted he had been consuming alcohol. Id. The officer later administered field sobriety tests to the appellant, and after concluding it was not safe for the appellant to drive, formally placed the appellant under arrest for driving while intoxicated. Id. We concluded that these facts supported the conclusion that the interactions between the appellant and the officer, resulting in the appellant accompanying the officer in his patrol car back to the accident scene, constituted only an investigative detention and not an arrest. Id. at 52. We further concluded that the trial court erred in granting the motion to suppress and reversed its suppression ruling. Id.
In State v. Whittington, 401 S.W.3d 263, 275 (Tex. App.—San Antonio 2013, no pet.), we concluded the trial court abused its discretion in determining that the appellant was restrained to the degree associated with a formal arrest. In Whittington, an officer was investigating a two-vehicle accident. Id. at 267. The appellant, who was the driver of the vehicle that caused the accident, had fled the scene in her vehicle. Id. at 267-68. When the officer encountered the appellant, she was sitting in her vehicle in the driveway of her residence. Id. at 267. The appellant denied that she had been involved in an accident, but admitted that she had consumed two alcoholic drinks earlier in the day. Id. After obtaining the appellant's proof of insurance, the officer told the appellant to "just sit tight" while he spoke to another officer at the scene. Id. at 268. The officer then told the appellant to get out of the vehicle, but shortly thereafter told her to have a seat in her vehicle because she was unsteady. Id. The officer also took the appellant's car keys. Id. The officer then decided to move his patrol car so it would be in position to videotape the appellant performing field sobriety tests. Id. Immediately before moving his patrol car, the officer instructed the appellant, "Do not go inside, stay right there where you're at, . . . do not move, okay?" Id. The trial court granted the appellant's motion to suppress, but we reversed. Id. at 269. We concluded that, based on the totality of the circumstances, the appellant was not restrained to the degree associated with a formal arrest. Id. at 275.
OFFICER'S SUBJECTIVE BELIEFS/NOT FREE TO LEAVE
In its second issue, the State argues the trial court erred in relying on the subjective intent and beliefs of one of the officers in making its custody determination. Although Dains testified that he had probable cause to arrest Simon after administering the HGN test, nothing in the record demonstrates that this belief was manifested to Simon. Therefore, to the extent the trial court's ruling was based on Dains's testimony that he believed he had probable cause to arrest Simon after administering the field sobriety test, we conclude the trial court erred. See Stansbury, 511 U.S. at 324-25; Herrera, 241 S.W.3d 525-26.
The State also argues the trial court erred when it focused on evidence that Simon was not free to leave. During his testimony, Dains testified that Simon was not free to leave. "[N]ot being free to leave is an inherent feature of a temporary detention." Whittington, 401 S.W.3d at 274 (emphasis in original); see also Sheppard, 271 S.W.3d at 289 (providing that the essence of a temporary detention is that a person is not free to leave while the officer investigates whether a crime has been committed). Therefore, to the extent the trial court's ruling was based on evidence that Simon was not free to leave, we conclude the trial court erred. See Sheppard, 271 S.W.3d at 289; Whittington, 401 S.W.3d at 274. The State's second issue is sustained.
RESTRICTION ON FREEDOM OF MOVEMENT
In its first issue, the State argues the burden was on Simon to establish that his statements to Dorsey were the result of a custodial interrogation, and Simon failed to meet this burden. At trial, the defendant bears the initial burden of establishing that the statements he seeks to suppress were the product of custodial interrogation. Herrera, 241 S.W.3d at 526. The mere filing of a suppression motion does not require the State to show compliance with Miranda unless and until the defendant proves that the statements were the product of custodial interrogation. Id. Therefore, the State correctly argues that the burden was on Simon to establish custodial interrogation.
We next turn to the question of whether Simon met his burden to establish that he was in custody at the time the second officer, Dorsey, started questioning him. We examine the evidence to determine whether, at this critical time, the restraint on Simon's freedom of movement was similar to the restraint on freedom of movement associated with a formal arrest.
Simon asserts that a reasonable person in his situation, having admitted to drinking alcohol, having taken a field sobriety test, and having been instructed to sit in his car and wait, would clearly understand that his freedom of movement was restrained to the degree associated with a formal arrest. Because there is no bright-line test for distinguishing between an investigative detention and an arrest, we examine the previously-articulated factors to make this determination.
First, the evidence presented in this case shows that no force was displayed. At the relevant time period, Simon was not handcuffed. Simon was not confronted with a multitude of officers and police cars. Nor was any force threatened. Instead, the officer simply talked to Simon in a calm, firm tone of voice. Simon cites Alford v. State, 22 S.W.3d 669 (Tex. App.—Fort Worth 2000, pet. ref'd), to support his argument that he was under restraint to the degree associated with a formal arrest. However, Alford, is readily distinguishable from this case. There, the evidence showed the officer observed the appellant's truck passing cars and weaving in and out of lanes. Id. at 671. After the appellant's truck was stopped, the appellant did not heed the officer's request to get out of his truck. Id. The officer removed the appellant from the truck, put him on the ground, and handcuffed him because he did not want him to run or fight. Id. The officer then stood the appellant up by the truck. Id. The appellate court concluded the appellant was restrained to the degree associated with a formal arrest and determined he was in custody for purposes of Miranda. Id. at 672. Thus, in Alford, the evidence showed that the officer displayed a significant amount of force: the appellant was taken out of his truck, put on the ground, and handcuffed. In the present case, by contrast, Dains displayed no force whatsoever.
Second, the evidence shows the duration of the detention was brief. The total time—from the time Dains pulled Simon over to the time Dorsey completed his investigation and placed Simon in handcuffs—amounted to less than seventeen minutes. Furthermore, the time Simon and Dains spent waiting for Dorsey to arrive on the scene was very brief. In his testimony, Dains estimated that the time spent waiting for Dorsey was about five or ten minutes; however, the video shows the wait time was under five minutes. See Castro v. State, 373 S.W.3d 159, 165-66 (Tex. App.—San Antonio 2012, no pet.) (concluding that a twenty-five to forty-five minute detention was not unreasonable when officers had to find and detain a second suspect and transport both suspects for an on-site identification); Hartman v. State, 144 S.W.3d 568, 572-73 (Tex. App.—Austin 2004, no pet.) (concluding a five to fifteen-minute delay was not unreasonable in traffic stop that developed into a DWI investigation). During this time, Simon was waiting alone, unhandcuffed, in his own car.
Third, the investigative process was efficient. Again, only seventeen minutes elapsed from the time Simon was stopped to the time he was handcuffed and formally arrested. The time spent waiting for the second officer was under five minutes. Furthermore, the investigation took place at a single location. Simon was not transported to another location to continue the investigation.
Fourth, as to the officer's expressed intent, Simon was never expressly told he was under arrest, nor was he told that he was being detained for a temporary investigation. Dains administered a single field sobriety test, and then told Simon to get back in his car. Dains did tell Simon he would get back to him. However, Dains did not tell Simon that he failed the HGN test.
Finally, we consider other relevant factors. All of the interaction between Dains and Simon took place in a public parking lot. Dains did in fact conduct a check of Simon's license. Before administering the HGN test, Dains told Simon that he needed to determine if it was safe for him to drive. Later, when Dorsey approached Simon, Dorsey reiterated that he needed to determine if it was safe for Simon to drive.
After considering the totality of the circumstances from an objective standpoint, we conclude that a reasonable person in Simon's situation would not have believed that his freedom of movement during the relevant time was restrained to the degree associated with a formal arrest. See Adams, 454 S.W.3d at 51-52; Whittington, 401 S.W.3d at 272-75.
Simon further argues that because the custody determination in this case turns on the credibility and demeanor of the officers, we must afford the trial court's ruling total deference. In particular, Simon points to Dains's conflicting testimony as to whether, immediately following the HGN test, Simon was in custody or simply detained for further investigation. Simon essentially argues that we must defer to the trial court's implied credibility findings concerning Dains's testimony. However, "the fact that credibility and demeanor are important in the trial court's assessment does not always mean the question 'turns' on an evaluation of credibility and demeanor." Saenz, 411 S.W.3d at 494. "Rather, a question 'turns' on credibility and demeanor when the testimony of one of more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue." Id. (internal quotations omitted).
Here, Dains's testimony that he had probable cause to arrest Simon after the completion of the HGN test and that he took Simon into "custody" pending the arrival of the another officer was not enough to determine the substantive issue in this case. As previously discussed, unless Dains's subjective beliefs were manifested to Simon, they had no bearing on the custody determination in this case. See Stansbury, 511 U.S. at 324-25; Herrera, 241 S.W.3d 525-26. Nothing in the record shows that Dains's subjective beliefs were manifested to Simon. We conclude the custody determination in this case does not "turn" on an evaluation of credibility and demeanor. Therefore, in reviewing the trial court's suppression ruling, we defer to the trial court's factual assessment of the circumstances, but make a legal determination as to whether those facts amount to custody under the law. See Saenz, 411 S.W.3d at 494.
We acknowledge that we must afford Simon, who was the prevailing party below, the strongest legitimate view of all the evidence and reasonable inferences that may be drawn from that evidence. State v. Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011) ("The prevailing party is afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence."). However, even after viewing the evidence in the light most favorable to the trial court's ruling, we conclude that Simon failed to meet his burden to show that, under the totality of the circumstances, his freedom of movement at the relevant time was restrained to the degree associated with a formal arrest. The State's first issue is sustained.
CONCLUSION
We conclude the trial court erred in concluding that Simon's statements to Dorsey were the product of custodial interrogation. We reverse the trial court's granting of Simon's motion to suppress as to Simon's statements to Dorsey and remand to the trial court for further proceedings consistent with this opinion.
At the suppression hearing, Simon argued that any reference to painkillers was not relevant and was "unfairly prejudicial" under Rule 403 of the Texas Rules of Evidence. We note that these objections are typically raised at trial. The record shows the trial court did not expressly rule on these objections, but instead stated that the matter was "covered" by its ruling suppressing all statements made to Dorsey. In the concluding paragraph of his appellate brief, Simon asks us to either (1) partially affirm the trial court's ruling and suppress his statements to Dorsey about taking painkillers; or (2) instruct the trial court to rehear the motion to suppress. We deny these requests. --------
Karen Angelini, Justice Do not publish