Annette J. Bilyeu v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00151-CR

______________________________

ANNETTE JOY BILYEU, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court of Appeals No. 2

Dallas County, Texas

Trial Court No. MB02-14282-M

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

            Police officer Jeffery Alan Rose and his partner were taking a break on the parking lot of an Addison, Texas, convenience store around 2:00 a.m., June 20, 2002, when an unidentified man approached them. The man reported that he saw a woman asleep at the wheel of a gold Mercedes-Benz automobile stopped at a nearby traffic light—and the light was green. The man then noticed the same vehicle creeping past their location at ten miles per hour in a thirty-five-mile-per-hour zone and pointed it out. The officers followed the vehicle, noticing no traffic violations, and eventually stopped it, identified the driver as Annette Joy Bilyeu, determined she was intoxicated, and arrested her. Bilyeu appeals from her jury conviction for driving while intoxicated (DWI), challenging (1) the legality of the stop and, thus, the evidence obtained from that stop, and (2) the trial court's refusal to charge the jury regarding the legality of the search under Article 38.23 of the Texas Code of Criminal Procedure. We affirm.

Legality of Search

            In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and review de novo any questions of law concerning the search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Thus, we will review de novo the question whether Rose had reasonable suspicion to stop Bilyeu. See Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997). In the absence of explicit findings of fact, we view the evidence in the light most favorable to the trial court's ruling and sustain its decision if correct under any applicable theory of law. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

            To justify an investigative detention, an officer must have reasonable suspicion of possible criminal conduct. See Terry v. Ohio, 392 U.S. 1, 21 (1968); Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989). Courts examine the totality of the circumstances to determine whether reasonable suspicion existed. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997); State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.—Fort Worth 1996, pet. ref'd). An officer must have specific articulable facts which, taken together with rational inferences and the officer's experience and general knowledge, reasonably indicated the detained person was preparing to engage or had engaged in a crime. Davis, 947 S.W.2d at 242.

            Bilyeu contends the information given to Rose by the unidentified citizen is on the same footing as an anonymous tip, that it is insufficient to form reasonable suspicion. Bilyeu correctly states that an anonymous tip cannot, by itself, become reliable enough to support a finding of reasonable suspicion. Here, however, the trial court found the citizen's personally appearing before the officers gave greater reliability to the information he provided them.

            Reasonable suspicion is dependent on both the content of the information possessed by the officer and the degree of reliability of the information. See Davis v. State, 989 S.W.2d 859, 863 (Tex. App.—Austin 1999, pet. ref'd). While an anonymous tip or telephone call may justify the initiation of an investigation, only rarely will a tip from an unnamed informant of undisclosed reliability, standing alone, establish the requisite level of reasonable suspicion to justify an investigative detention. See Florida v. J.L., 529 U.S. 266, 269 (2000). There must be some further indicia of reliability, some additional facts from which a police officer may reasonably conclude that the tip is reliable and a detention is justified. See id.

            A. Accountability

            The facts surrounding the unidentified citizen's report constitute some indicia of reliability. When an unnamed informant puts himself or herself in a position where he or she could easily be accountable, the tip becomes more reliable. See Sailo, 910 S.W.2d at 188. Particularly, unsolicited information given to police in a face-to-face manner should be given serious attention and great weight by the officer even though the informant did not identify himself or herself. United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978). Distinguishing the conversation in Sierra-Hernandez from an anonymous telephone call, the court pointed out that the informant confronted the officer directly and did so while the informant was driving a car. Id. Therefore, although the informant did not identify himself, his identity easily could have been determined from the license plates. Id. These distinctions would have allowed the officer to further question the informant had the officer deemed it necessary and also would have allowed officials to hold the informant accountable for the information he provided. Id.

            In Sailo, an officer stopped and eventually arrested a driver for DWI after a citizen approached the officer with information regarding a possibly drunk driver. Sailo, 910 S.W.2d at 186. The citizen stated that a white Toyota pickup truck was "all over the road and had almost run into a ditch twice." Id. When the truck approached, the officer pulled the driver over. Id. The Fort Worth Court of Appeals concluded the face-to-face nature of the tip increased the reliability of the information and, thus, less corroboration was necessary to justify the investigative detention. Id. at 188. The experience of the officer and his knowledge that drunk drivers frequently travel through that area were sufficient corroboration of the highly reliable information. See id. at 189. Therefore, the totality of the circumstances justified the investigative detention that led to the driver's arrest and conviction. Id.

            The court in State v. Fudge, 42 S.W.2d 226, 229 (Tex. App.—Austin 2001, no pet.), considered the trial court's suppression of evidence in a DWI prosecution. In Fudge, a cab driver approached a police officer stating that a white pickup truck was "all over the road" and that he thought the driver was drunk. Id. at 228. The cab driver then pointed out the truck as the driver drove it around a store parking lot. Id. The officer immediately pulled the truck over and subsequently arrested the driver for DWI. Id. The arresting officer testified he based the stop solely on the cab driver's tip. Id. at 229. The Austin Court of Appeals noted that the officer did not observe any independent acts on which to base the stop. Id. at 230. The record also failed to suggest any other facts to justify the stop. Id. at 232. Relying on Sierra-Hernandez and Sailo, the majority concluded that the cab driver's giving unsolicited information in a face-to-face encounter made the information alone sufficiently reliable to justify the stop. Id.

            Here, we have circumstances similar to those present in Sierra-Hernandez and Sailo. The citizen approached the officers. He provided them with unsolicited information regarding the car he observed four blocks away. Like the unidentified informants in Sierra-Hernandez and Sailo, the concerned citizen here approached the officers in his vehicle, which would have allowed the officers to identify him had they deemed it necessary. The citizen's providing this information directly to the officers, in person, makes the information significantly more reliable than a simple anonymous telephone call.

            B. Corroboration

            Further, corroboration by matters within an officer's knowledge and experience increases the reliability of the information and, ultimately, the justification of the detention. See Sailo, 910 S.W.2d at 189. Corroboration only of details that are easily obtainable at the time the tip is made will not furnish a basis for reasonable suspicion. J.L., 529 U.S. at 271–72; Davis, 989 S.W.2d at 864. The observations need not reveal criminal conduct; even innocent acts can give rise to reasonable suspicion under certain circumstances. Woods v. State, 970 S.W.2d 770, 773 (Tex. Crim. App. 1998). The officer must corroborate facts that would lead him or her to reasonably suspect that "some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to a crime." Davis, 989 S.W.2d at 863.

            For instance, in Dowler v. State, 44 S.W.3d 666, 670 (Tex. App.—Austin 2001, pet. ref'd), after officers received an anonymous call reporting a suspected drunk driver, they observed the suspect drift within his lane of traffic, drive twenty miles per hour below the posted speed limit, and fail to respond to the patrol car's emergency lights. Id. Such conduct, although not criminal, was sufficient to lend reliability to the anonymous tip and to justify investigative detention of the driver on reasonable suspicion. Id.

            Bilyeu relies on Stewart v. State, 22 S.W.3d 646, 648 (Tex. App.—Austin 2000, pet. ref'd), to support her contention that the anonymous tip is insufficient to support reasonable suspicion. Since officers did not observe her commit a traffic offense, she argues, there is no meaningful corroboration of the information provided by the citizen. She calls on this Court to treat the facts before us in a similar manner. In Stewart, according to an anonymous caller, the driver of a green Chevrolet Camaro apparently fell down a couple of times trying to get into his car and appeared to be highly intoxicated. Id. The officers found the suspect's car and followed it for a short time. Id. During that time, it is undisputed that the officers observed no erratic driving and no traffic offense. That being the case, the sole basis for the vehicular stop was the anonymous tip. Id.

            The case before this Court is distinguishable. Here, Rose observed Bilyeu driving a vehicle matching the description just given by the informant. Additionally, Rose observed Bilyeu traveling at a speed of ten miles per hour in a thirty-five-mile-per-hour zone. She continued to drive at that speed despite the fact two police cars were following her, with no indication she noticed their presence. Further, when Rose engaged his emergency lights, Bilyeu initially increased her speed just before she pulled over. Also relevant to Rose's suspicion is the fact that Bilyeu was operating her vehicle after 2:00 a.m. in Addison, an area well-known for its restaurants and bars, according to Rose's testimony. Even though Bilyeu may not have committed a traffic violation, her unusually low speed and her initial lack of reaction to the police, coupled with the circumstances and in light of Rose's experience, provide adequate corroboration of the information provided by the unidentified citizen. Such facts clearly were of such a nature as to indicate that Bilyeu was involved in "some activity out of the ordinary."

            Bilyeu, apparently dismissing the citizen's report, also argues that observing someone driving well below the posted speed limit is insufficient to justify Rose's stop. She cites Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992), and Richardson v. State, 39 S.W.3d 634, 639 (Tex. App.—Amarillo 2000, no pet.), which conclude the traffic stops involved were unjustified since the respective officers had no facts other than observation of slow driving to lead to reasonable suspicion. In Viveros, when the appellant reduced his speed to match the speed of the officers' patrol car, the officers were not justified in stopping him because his actions were insufficient to create a reasonable belief that such actions were related to a crime. Viveros, 828 S.W.2d at 4. Likewise, in Richardson, Department of Public Safety troopers stopped the appellant after they observed the appellant driving forty-five miles per hour in a sixty-five-mile-per-hour speed zone. Richardson, 39 S.W.3d at 639. The cocaine discovered in the subsequent consensual search should have been excluded since the troopers did not have reasonable suspicion to justify initially stopping Richardson. Id. Here, in contrast to the situations in Viveros and Richardson, Rose relied on his observation of Bilyeu's driving and on the report of her being asleep at the wheel at a green light. In Viveros and Richardson, there was no information provided to officers that would have prompted investigation of those matters.

            We hold that Rose, in light of the circumstances, confirmed sufficient facts which enabled him to reasonably conclude the information given to him was reliable, and a temporary detention was, therefore, justified. The evidence of Bilyeu's intoxication, obtained after the detention of the vehicle, was admissible. Accordingly, the trial court did not err in overruling Bilyeu's motion to suppress.

            Even if the stop was not supportable on the basis of a reasonable suspicion of a violation of law, the officers had sufficient information to validate the stop on the basis of the community caretaking function. As part of an officer's community caretaking function, he or she may stop to help someone that "a reasonable person, given the totality of the circumstances, would believe is in need of help." Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim. App. 2002). An officer is not entitled to invoke the community caretaking function if he or she is primarily motivated by a different purpose, such as law enforcement. Id. at 277. Here, the record reflects that Rose was concerned Bilyeu may have been injured, tired, or intoxicated. The trial court, as the exclusive judge of credibility and the fact-finder, could have concluded Rose was primarily motivated by community caretaking concerns. See id. Once that is determined, we examine whether Rose's belief that Bilyeu needed help is reasonable by looking at the following four factors:

(1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.

Id. After being told she had been asleep behind the wheel, stopped at a green light, and then seeing her driving for a time at ten miles per hour, fifteen less than the posted limit, apparently unaware of the officers following her until they activated the lights on the patrol car, officers were justified in believing there was a significant level of distress exhibited by Bilyeu. She was alone at 2:00 a.m., showing unusual behavior, and therefore might very well have been a danger to herself or others. There was ample evidence to support the stop on the basis of the community caretaking function, and the trial court in its role as fact-finder so found.

            We overrule Bilyeu's first point of error.

Jury Instruction

            In her second point of error, Bilyeu complains the trial court committed harmful error when it refused to instruct the jury regarding the legality of the search under Article 38.23. See Tex. Code Crim Proc. Ann. art 38.23 (Vernon Supp. 2004). We disagree. Bilyeu was entitled to an instruction under Article 38.23 only if the evidence raised a factual issue regarding the legality of the detention. Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996). Here, Bilyeu does not dispute any of the testimony as set out in the State's case. See Hamilton v. State, 831 S.W.2d 326, 331 (Tex. Crim. App. 1992). Rather, she argues that those facts cannot justify the officer's stopping her. Her arguments give rise to questions of law, not of fact, and, therefore, the trial court was not required to instruct the jury under Article 38.23. We overrule Bilyeu's second, and remaining, point of error.

            We affirm the judgment of the trial court.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 29, 2004

Date Decided:             April 29, 2004

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  On Appeal from the County Court at Law #1

                                                             Gregg County, Texas

                                                         Trial Court No. 2010-0592

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                        Opinion by Justice Moseley

                                                                   O P I N I O N

 

            City of Kilgore Police Officer Joseph Harrison saw a vehicle driven by Christopher Charles Meadows turn off of Stone Road and use a roadway that the officer believed was a private driveway (the Roadway) to reach Utzman Street.  Believing that Meadows failed to stop in the Roadway and thus committed a traffic violation, Harrison turned on his overhead flashing lights to initiate a traffic stop.  Despite the flashing lights behind him, Meadows failed to stop, but continued to drive until he reached his nearby home.  After seeing signs that Harrison believed indicated that Meadows was intoxicated, Harrison placed Meadows under arrest.  Meadows refused to submit to a breath test, so Harrison obtained a search warrant for a sample of Meadows’ blood to be used in testing for alcohol levels.  Because the hospital in Kilgore was unavailable to him, Harrison transported Meadows to a hospital in nearby Longview (also in Gregg County) where Meadows’ blood was drawn.  Tests on that blood revealed a blood-alcohol level consistent with intoxication, and he was charged by information with a second offense driving while intoxicated (DWI) and with fleeing from a police officer.  After the trial court denied his motion to suppress the evidence gained from the stop and search, Meadows pled guilty to both charges.

            Meadows appeals from his conviction for fleeing, arguing that the trial court erred by failing to grant his motion to suppress because:  (1) the officer lacked reasonable suspicion to stop him, as the Roadway was a public road; (2) the officer lacked reasonable suspicion to stop him, as Meadows could have stopped in the Roadway; and (3) the blood draw, being a search, exceeded the officer’s geographic jurisdiction.

            We affirm the judgment of the trial court because:  (1) the officer had reasonable suspicion to believe the Roadway was a parking lot, driveway, or private road; (2) the officer had reasonable suspicion to believe that Meadows failed to stop while traversing the Roadway; and (3) a city police officer of a home-rule city may execute a valid search warrant anywhere within the county where he is an officer.

Background Facts

            In the early morning hours of February 7, 2010, Kilgore Police Officer Joseph Harrison observed two vehicles parked in a church parking lot; although the circumstances seemed somewhat suspicious to him, he did not stop to make inquiry of the drivers because the church was just outside the city limits of Kilgore.  He then saw the two vehicles leave the parking lot and he followed them.  Harrison lost contact with one of the vehicles, but continued to follow the remaining vehicle, a truck driven by Meadows. 

            As Harrison followed Meadows’ truck, he saw it turn off Stone Road onto the Roadway, (which Harrison believed to be a private drive).  The Roadway ran between Stone Road and Utzman Street, and it provided access to a car wash and a bank’s automatic teller machine (ATM).  As Harrison continued on Stone Road, he briefly lost sight of Meadows’ truck, but after reasoning that no one would likely wash a car at 1:00 a.m., Harrison turned around and followed Meadows down the “driveway” (the Roadway).  Upon catching up to Meadows’ truck, the officer illuminated his overhead lights and tried to stop Meadows for violating Section 545.423 of the Texas Transportation Code, which prohibits drivers from driving through a private driveway, parking lot, or business or residential entrance without stopping the vehicle.  Tex. Transp. Code Ann. § 525.423 (West 2011).  Meadows ignored the lights on the police car and failed to stop, continuing to drive until he reached his home, about 0.4 miles away.  Harrison arrested Meadows for fleeing a police officer.  During this arrest, although Harrison observed signs of possible intoxication (slurred speech, alcohol on breath, red/glassy eyes, unsteady on his feet), he did not conduct field-sobriety tests at that time; instead, he took Meadows to the Kilgore Police Department station.  After Meadows refused to perform field-sobriety tests or provide a breath specimen, Harrison obtained a search warrant for a blood specimen.  Harrison transported Meadows from the police station to Good Shepherd Medical Center in Longview, Texas, to obtain a blood sample (the test results of which showed elevated blood-alcohol levels). 

            Meadows was charged by information with DWI, second offense, and fleeing from a police officer.  Meadows moved to suppress the evidence gained from the stop and search on the grounds that the traffic stop detention and blood draw were both unlawful.  After the trial court refused to grant the suppression motion, Meadows pled guilty to both charges.  On the DWI charge, Meadows was sentenced to one year’s confinement, but was granted community supervision for a period of two years and was ordered to pay court costs.  As conditions of his community supervision, he was ordered to pay an $850.00 fine and serve one seventy-two-hour period in jail.  On the fleeing charge, he was assessed a $350.00 fine and one year’s confinement, these being likewise subject to community supervision for a period of one year.

Standard of Review

            We review a trial court’s decision on a motion to suppress evidence by applying a bifurcated standard of review.  Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.—Texarkana 2009, pet. ref’d). While we defer to the trial court on its determination of historical facts and credibility, we review its application of the law and determination on questions not turning on credibility de novo. Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 n.5 (Tex. Crim. App. 1996); Graves, 307 S.W.3d at 489.  We also afford deference to a trial court’s “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those questions turns on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  In other words, we give almost total deference to the trial court in determining what the actual facts are, and then we review de novo whether those facts are sufficient to give rise to reasonable suspicion.  Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal) (citing Ornelas v. United States, 517 U.S. 690 (1996)).

            Since all the evidence is viewed in the light most favorable to the trial court’s ruling, we are obligated to uphold the denial of Meadows’ motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case.  Carmouche, 10 S.W.3d at 327–28; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

            The Officer Had Reasonable Suspicion to Believe the Roadway Was a Private Drive

            Officer Harrison stopped Meadows for driving through a private driveway without stopping.  As part of his first point of error, Meadows argues that the trial court erred in denying his motion to suppress, because the Roadway in question was actually a part of Utzman Street, a public road, and therefore the officer pulled him over for an act that did not constitute a traffic offense.  Meadows argues that because his actions did not amount to a traffic offense, the officer lacked reasonable suspicion to stop him. 

            A law enforcement officer may lawfully stop and detain a person for a traffic violation committed in the presence of the officer.  Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992); Zervos v. State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref’d).  “A routine traffic stop resembles an investigative detention.”  State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).  The United States Supreme Court in Terry v. Ohio established the test for investigative detentions.  Terry established a two-pronged test for investigative detentions.  Terry v. Ohio, 392 U.S. 1, 19–20 (1968).  To determine the reasonableness of an investigative detention, the court must inquire:  “(1) whether the officer’s action was justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”  Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997); see Terry, 392 U.S. at 19–20.

            Meadows challenges the first prong of the test.  “Under the first prong, ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  Id. (quoting Terry, 392 U.S. at 21).  These facts must be more than a mere hunch or suspicion.  Id. at 244.  Whether the officer’s suspicion was reasonable is evaluated based on “an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists.”  Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).  The specific, articulable facts, along with rational inferences from those facts, must allow the officer to reasonably conclude the person detained actually is, has been, or soon will be engaged in criminal activity.  United States v. Sokolow, 490 U.S. 1, 10 (1989).

            In a motion to suppress setting, the propriety of an arrest or detention need not be proven beyond a reasonable doubt.  See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Lalande v. State, 676 S.W.2d 115, 117–18, 117 n.4 (Tex. Crim. App. 1984).  In the recent case of York v. State, the Texas Court of Criminal Appeals held that the State’s standard of proof is “the one that applies to most constitutional suppression issues: preponderance of the evidence.”^[1] 342 S.W.3d 528, 543 (Tex. Crim. App. 2011) (citations and footnotes omitted).  The court, however, cautioned that appellate courts should not defer to a police officer’s legal conclusions. Garcia, 43 S.W.3d at 531.  Since Garcia, several Texas courts of appeals have noted an officer’s incorrect understanding of the law does not give rise to a reasonable suspicion.  Fowler v. State, 266 S.W.3d 498 (Tex. App.—Fort Worth 2008, pet. ref’d); Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998).  The Third Circuit has explained this distinction succinctly as follows:

[M]istakes of fact are rarely fatal to an officer’s reasonable, articulable belief that an individual was violating a traffic ordinance at the time of a stop, many of our sister circuits have held that mistakes of law—even reasonable ones—can render a traffic stop “unreasonable” under the Fourth Amendment.

 

United States v. Delfin–Colina, 464 F.3d 392, 398 (3d Cir. 2006).  We believe the Third Circuit’s holding explains the distinction made by the Texas Court of Criminal Appeals in Garcia.  See Madden v. State, 242 S.W.3d 504, 508 n.7 (Tex. Crim. App. 2007) (noting factual issue was not whether defendant was actually speeding, but whether officer had reasonable belief defendant was speeding).

            The charge lodged against Meadows was not the violation of the Texas Transportation Code in crossing over a private driveway (in common vernacular, “corner cutting”), but fleeing from a police officer and DWI.  Therefore, the question here is not whether Meadows actually violated the traffic law but, rather, the objective reasonableness of the officer’s suspicion that Meadows had violated it.  See id. (noting factual issue not whether defendant was actually speeding, but whether officer had reasonable belief defendant was speeding).  Specifically, based on the facts presented, does a correct interpretation of the law allow a police officer to reasonably suspect that the Roadway was a private drive, parking lot, or other private road?

            Here, there is evidence that the Roadway was a public road.^[2]  Maps from internet sites Google and Planetware label the Roadway as “Utzman Street.”  There are several traffic control signs on the Roadway, including “no left turn,” “one way,” and “no right turn.”  Officer Harrison admitted that the signs appear to be “public – an actual official traffic-control sign,” rather than signs that a private entity would erect.  At the time of the stop, Harrison was unaware that the Roadway had traffic signs on it. 

            There is also evidence that the Roadway was a private road.  Harrison testified that the Roadway was “not on our maps that we use in the police department as a street.  It’s just a driveway.”  However, nothing in the record indicates that Harrison had memorized or consulted these police maps prior to the stop.^[3]  Harrison had personal experience with the Roadway in dispute because he had “used that ATM before.”^[4] 

            Obviously, reasonable minds could differ as to whether the Roadway was actually a public roadway or a private one.  Considering the officer’s prior experience in using the Roadway and the conflicting evidence which supports both the view that it was public and that it was private, we find that Harrison had reasonable suspicion to believe that the Roadway was a private drive. Therefore, we overrule this portion of Meadows’ first point of error.

            The Officer Had Reasonable Suspicion to Believe that Meadows Failed to Stop While Traversing the Roadway

 

            As a part of his first point of error, Meadows contends that the trial court erred by denying his motion to suppress because the officer lacked reasonable suspicion that Meadows failed to stop while traversing the Roadway.  Applying the standards discussed above (and assuming there was sufficient evidence for the officer to reasonably believe the Roadway to be a private drive), the issue is whether the facts presented in the record are sufficient to establish reasonable suspicion that Meadows failed to stop.  See Garcia, 43 S.W.3d at 531. 

            When Meadows turned from Stone Road onto the Roadway, Harrison turned off his video camera and continued along Stone Road for a moment before making a U-turn and turning down the Roadway to follow Meadows.  He saw that Meadows “had made it all the way to Utzman Road,” so Harrison “got on it,”^[5] and once again got behind Meadows and activated his overhead lights and video camera.  Harrison testified that the lights and camera were turned back on at the point Meadows was turning from Utzman Street onto Parkview.  He testified that he only lost sight of Meadows for “probably five or ten seconds,” but he admitted that it would not surprise him to find out that his video camera had remained turned off for almost a full minute.  He did not believe that Meadows “had stopped and then started going again,” so he attempted to pull him over for driving through private property. 

            Here, even though the video camera was turned off for almost a minute, there is evidence that Harrison lost visual contact with Meadows for only a few seconds and that by the time Harrison caught up to Meadows, he had left the Roadway, entered Utzman Street, and was turning onto Parkview.  We find that it is reasonable under these circumstances for an officer to suspect that Meadows lacked an adequate amount of time to stop his truck and then start moving again. Accordingly, we overrule this point of error.

            A City Police Officer May Execute a Valid Search Warrant Anywhere in the County

            In his second point of error, Meadows contends that denying his motion to suppress was error because Harrison lacked the authority to execute the search warrant outside the City of Kilgore. 

            Harrison obtained a search warrant from a Kilgore city judge for a sample of Meadows’ blood.  Because the Kilgore hospital was closed, Harrison transported Meadows outside the City of Kilgore to Good Shepherd Medical Center in Longview, where Meadows’ blood sample was taken. 

            The search warrant directs “any Sheriff or any Peace Officer of Gregg County, Texas, or any Peace Officer of the State of Texas,” to seize Meadows and carry him to a “physician, registered nurse, or medical laboratory technician skilled in the taking of HUMAN BLOOD . . . and the said physician, registered nurse, or laboratory technician shall take” samples of Meadows’ blood.  There is no dispute that the search warrant itself is valid county-wide, that Harrison is a peace officer of Gregg County, that both Kilgore and Longview are municipalities within Gregg County, or that the sample was taken in a proper manner. 

            Meadows’ sole argument rests upon the fact that the Texas Local Government Code specifically grants general-law municipal police departments countywide jurisdiction, but does not similarly grant this same authority to home-rule municipalities, such as Kilgore.^[6] Thus, Meadows maintains, police departments of home-rule municipalities have only city-wide jurisdiction to execute search warrants.  

            Section 341.001 of the Texas Local Government Code, applying to Type A municipalities, states:

            (e)        A police officer has:

                        (1)        the powers, right, duties, and jurisdiction granted to or imposed on a peace officer by the Code of Criminal Procedure; and

                        (2)        other powers and duties prescribed by the governing body.

            (f)        A police officer may serve in each county in which the municipality is located all process issued by a municipal court.

 

Tex. Loc. Gov’t Code Ann. § 341.001 (West 2005).  This blanket grant of statutory authority given to police officers in Type A municipalities contrasts with Section 341.003 of the Local Government Code, entitled “Police Force of a Home–Rule Municipality,” which says only that “[a] home-rule municipality may provide for a police department.”  Tex. Loc. Gov’t Code Ann. § 341.003 (West 2005).

            If a police officer’s geographic jurisdiction is not found in some statute, it is controlled by the common law.  State v. Kurtz, 111 S.W.3d 315 (Tex. App.—Dallas 2003), aff’d, 152 S.W.3d 72 (Tex. Crim. App. 2004) (traffic stop improper because offense occurred outside city limits); see Angel v. State, 740 S.W.2d 727, 732–33 (Tex. Crim. App. 1987) (relying on former revised civil statutes Articles 998 and 999, held that officer’s jurisdiction is county-wide, but case was later superseded by statute, and it continues to be cited today for holding that jurisdiction is determined by common law if it is not found in statute).  At common law, a police officer’s jurisdiction was confined to the limits of his city.  See Landrum v. State, 751 S.W.2d 530, 531 (Tex. App.—Dallas 1988), pet. ref’d, 795 S.W.2d 205 (Tex. Crim. App. 1990) (per curiam).  Thus, unless there exists some statutory authority for extension of that jurisdiction, the city officer’s jurisdiction was limited to the city’s geographical limits.  See Angel, 740 S.W.2d at 732.  However, we find the Kurtz line of cases to be distinguishable from the present case because the investigative stop in Kurtz was a detention, falling under the powers of arrest, rather than a search, such as we have here.

            Our sister court in Fort Worth directly addressed this issue in $27,877.00 Current Money of United States v. State, and determined that “a home-rule municipal police force’s jurisdiction for the execution of a valid search warrant is at least as broad as that of a general-law municipality, that is, at least countywide.”  331 S.W.3d 110, 117 (Tex. App.—Fort Worth 2010, pet. denied) (citing Brother v. State, 85 S.W.3d 377, 385 (Tex. App.––Fort Worth 2000), aff’d, 166 S.W.3d 255 (Tex. Crim. App. 2005) (holding jurisdiction of a Type A municipality police officer is “at least county-wide”); see also Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998) (“[A] home rule city . . . has all the powers of the state not inconsistent with the Constitution, the general laws, or the city’s charter . . . .”).  The Fort Worth court reasoned:

Home-rule municipalities are different from general-law municipalities because a “home rule city derives its power not from the Legislature but from Article XI, Section 5, of the Texas Constitution.”  Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 643 (Tex. 1975); see also Tex. Const. art. XI, § 5.  They possess “the full power of self government and look to the Legislature not for grants of power, but only for limitations on their power.”  Dallas Merchs.’ & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993).  A home-rule municipality’s powers may therefore be limited by statute, but only when the legislature’s intention to do so appears “with unmistakable clarity.”  Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998).

 

The reason that section 341.003 does not grant home-rule police countywide jurisdiction is because home-rule municipalities do not receive their grants of power from the legislature.  See Lower Colo. River Auth., 523 S.W.2d at 643. General-law municipalities, on the other hand, do.  See Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 645 (Tex. 2004) (“General-law municipalities . . . are political subdivisions created by the State and, as such, possess those powers and privileges that the State expressly confers upon them.”).  We do not see in local government code sections 341.001 or 341.003, or in any other statute, any clear intent by the legislature to restrict a home-rule municipality police force to a jurisdiction any less than that of a general-law municipality.

 

$27,877.00 Current Money of United States, 331 S.W.3d at 115–16.

            It is the duty of every peace officer, when a search warrant is duly delivered to him, to “execute it without delay.”  Tex. Code Crim. Proc. Ann. art. 18.06 (West 2005).  A search warrant is sufficient if it “command[s] any peace officer of the proper county to search forthwith the person, place, or thing named.”  Tex. Code Crim. Proc. Ann. art. 18.04 (West 2005).  The search warrant in this case authorized “the Sheriff or any Peace Officer of Gregg County, Texas or any Peace Officer of the State of Texas” to conduct the search described within it.  City police officers are “peace officers” as defined by Article 2.12(3) of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 2.12(3) (West 2010).  The Texas Penal Code does not define the phrase “of the county” or “of the State of Texas,” but since a warrant must command a peace officer “of the proper county,” we take “Peace Officer of Gregg County” to mean a peace officer with jurisdiction throughout Gregg County.  See $27,877.00 Current Money of United States, 331 S.W.3d at 117. 

            We agree with the well-reasoned opinion in $27,877.00 Current Money of United States, and hold that a home-rule municipal police force’s jurisdiction for the execution of a valid search warrant is at least countywide.  Because the search warrant in this case was issued in Kilgore, in Gregg County, by a magistrate with jurisdiction in Gregg County, to a Kilgore police officer with jurisdiction in Gregg County, we hold that Officer Harrison acted within his duty and jurisdiction to accept the search warrant and execute it.  Accordingly, we overrule this point of error.

            We affirm the trial court’s judgment. 

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          October 19, 2011

Date Decided:             November 15, 2011

 

Publish           

 

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^[1]In York, the court noted that “[i]n at least one instance--the voluntariness of consent--the burden of proof is ‘clear and convincing evidence.’”  342 S.W.3d at 543 n.85 (citations omitted).

 

^[2]Formal dedication of a roadway is only one means by which a roadway can become a public thoroughfare.  There are other ways, including prescriptive easement, Allen v. Keeling, 613 S.W.2d 253, 254 (Tex. 1981), and implied dedication, Lindner v. Hill, 691 S.W.2d 590, 592 (Tex. 1985).

 

^[3]There is no sign on the Roadway labeling the known public streets at either end of the Roadway, and no “stop” or “yield” signs at either end of the Roadway.  The surface of the Roadway is the same type and pattern as that of the bank’s parking lot.  However, there is no evidence in the record that Harrison was aware of, or that he considered, such evidence at the time of the stop.

 

^[4]We note that Harrison testified that the presence of the ATM on the Roadway “did not enter [his] mind until” it was brought up at Meadows’ license revocation hearing.  However, Harrison was not testifying regarding the public or private nature of the Roadway, but rather, the initial reason he believed Meadows had turned onto the Roadway in the first place—“I figured he was going to wash his car.” 

^[5]We presume “got on it” to mean that Harrison sped up quickly, that is, he “gunned it,” “floored it,” or “put the pedal to the metal.” 

^[6]According to the City of Kilgore’s website, http://cityofkilgore.com/government, Kilgore is a home-rule municipality, and on our own initiative, we take judicial notice of that fact.  See Tex. R. Evid. 201(b)(2), (c), (d), (f) (at any stage of proceeding, court in its discretion and on its own motion can take judicial notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned); see also Watkins v. State, 245 S.W.3d 444, 455 (Tex. Crim. App. 2008).