COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-132-CR
THE STATE OF TEXAS APPELLANT
V.
CYNTHIA PRIDDY APPELLEE
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FROM COUNTY COURT AT LAW NO. 1 OF W ICHITA COUNTY
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OPINION
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The State appeals from the trial court’s grant of appellee Cynthia Priddy’s
motion to suppress the evidence obtained as a result of an interaction between
appellee and a Burkburnett police officer at appellee’s parked, running vehicle, in
this prosecution for misdemeanor driving while intoxicated (DW I), enhanced with a
prior misdemeanor DW I. W e reverse the trial court’s order of suppression and
remand this case for trial.
Background Facts
At the suppression hearing, Sergeant John Klenk of the Burkburnett Police
Department testified that on the evening of March 20, 2008, he was on patrol when
dispatch received a call from an unidentified person 1 at Red River Hospital regarding
appellee, who had sought admission to the hospital. Over appellee’s hearsay
objection, Sergeant Klenk testified that the person from the hospital told dispatch
that the hospital could not admit appellee because the hospital was full but also said
that appellee had been drinking and appeared to be intoxicated. This person also
said that appellee had left the hospital, gotten into an argument with a person in a
Hummer believed to be appellee’s husband, and left the hospital in a different
Hummer. The person from the hospital provided dispatch with appellee’s name,
make of car, location and direction of her departure, and her address.
Sergeant Klenk located the Hummer at around 11:00 or 11:15 p.m.—about
fifteen minutes after receiving the information from dispatch—on the side of the road
in front of Citibank, legally parked, but still running and with its lights on. The officer
testified that the Hummer was in a “business” area in downtown Burkburnett, and
none of the nearby stores or businesses was open at that time. He pulled in behind
the Hummer, turned his spotlight on it, and ran the license tags, but he could not tell
if anyone was inside because of the heavy tint on the windows. As he approached
1
On cross-examination, Sergeant Klenk conceded that dispatch did not
have caller ID and that the Burkburnett police did not have the name of the
employee who allegedly called.
2
the Hummer, he saw appellee “laid over the seat,” eating a hamburger; when she
saw the officer, she sat up and rolled her window down. Although it is unclear
whether Sergeant Klenk gestured to appellee to roll down the window, we will
presume that the trial court believed he did. 2 At that point, Sergeant Klenk asked
appellee for her driver’s license. Appellee had to fumble around to find it, but she
eventually did. Despite the odor of the hamburger in the vehicle, Sergeant Klenk
could also smell the odor of an alcoholic beverage coming from the vehicle.
Sergeant Klenk observed that appellee’s eyes were bloodshot and glazed. He
asked her to step out.
Upon checking appellee’s license, Sergeant Klenk identified her as Cynthia
Gail Priddy and determined that her license was suspended. Appellee said she had
come from the hospital and admitted she had been drinking. After appellee got out
of the Hummer, Sergeant Klenk asked her to perform field sobriety tests, which she
failed. After appellee failed the tests, Sergeant Klenk arrested her.
W hen asked, Sergeant Klenk said his original stop was for purposes of
community caretaking, which the police generally do if a vehicle is stopped along the
2
Sergeant Klenk initially testified that when he saw appellee in the vehicle,
she sat up and rolled down the window. But on cross-examination, in response to
the question, “Now, and as I understand your testimony, once you saw her, you went
further. In other words, you see her eating the hamburger, and you’re the person
who indicates that she needs to roll down the window to talk to you or get out of the
car or to talk to you or whatever,” Sergeant Klenk answered, “Yes, ma’am. Any time
we make contact with somebody, we usually identify them or stop and identify and
check welfare on them.”
3
side of a roadway, especially with the engine running; he wanted to make sure that
the driver was okay, especially if she was the woman who had left the hospital.
Sergeant Klenk also stated that he was suspicious because the vehicle was parked
close to a closed bank late at night in a high crime area. 3 He characterized his
interaction with appellee as a voluntary encounter because she was free to leave.
Next, Sheryl Mahon, an employee of Red River Hospital, testified. Mahon was
the Admission Specialist on staff the night appellee sought admission to the
hospital’s chemical dependency unit. Mahon had a discussion with appellee about
why she wanted to be admitted and told her that there were no beds available that
night. Mahon suggested that appellee have someone pick her up because of her
“actions and behaviors” and because appellee admitted she had been drinking.
Appellee was stumbling and her speech was slurred; she dropped things and was
losing things. Eventually, after some persuading by Mahon, appellee called her
husband, who came to the hospital to pick her up. However, after appellee and her
husband talked in the parking lot for about ten or fifteen minutes, they each left in
their own vehicles. Mahon then called the W ichita Falls police 4 because she felt
appellee was intoxicated. Mahon told the police who she was and where she
3
Sergeant Klenk later admitted on cross-examination that he could not
confirm that downtown Burkburnett on March 20, 2008 was a high-crime area, but
he did testify that Burkburnett police officers responded to various property crimes
in that area.
4
Red River Hospital is located in downtown W ichita Falls.
4
worked. She also gave the dispatcher appellee’s name and address, a description
of her vehicle, and the direction she drove off in.
After Mahon testified, appellee called Sergeant Klenk back to testify.
According to Sergeant Klenk, his conversation with dispatch that night was with
Burkburnett Police dispatch; there is no way for the W ichita Falls police dispatch to
communicate directly with Burkburnett officers in their patrol cars.
At the close of the hearing, the trial court granted appellee’s motion to
suppress and filed extensive findings of fact and conclusions of law. 5 The State filed
this interlocutory appeal challenging the trial court’s order. See Tex. Code Crim.
Proc. Ann. art. 44.01(a)(5) (Vernon 2006).
Issues on Appeal
In two issues, the State contends that the trial court erred in granting
appellee’s motion to suppress because (1) the officer’s initial contact with her was
a voluntary encounter and not a detention and, alternatively, (2) the hospital’s call
to police, coupled with the circumstances of appellee’s parked car, created
reasonable suspicion to stop appellee to investigate.
Standard of Review for Motions to Suppress
W e review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim.
5
Those findings and conclusions are attached to this opinion as appendix
one.
5
App. 2007); Guzman v. State, 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). W e give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. Amador, 221 S.W .3d at 673; Estrada v. State, 154
S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W .3d 644, 652–53
(Tex. Crim. App. 2002). W hen the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports those fact findings. State v. Kelly, 204 S.W .3d 808, 818–19
(Tex. Crim. App. 2006). W e then review the trial court’s legal ruling de novo unless
its explicit fact findings that are supported by the record are also dispositive of the
legal ruling. Id. at 818.
Here, the trial court’s findings show that it found Sergeant Klenk credible as
to his testimony regarding his encounter with appellee. Therefore, we review the trial
court’s conclusions of law de novo. State v. Garcia-Cantu, 253 S.W .3d 236, 241
(Tex. Crim. App. 2008); Amador, 221 S.W .3d at 673.
Analysis
In her motion to suppress, appellee contended that Sergeant Klenk
impermissibly detained and interrogated her based on an anonymous tip, that her
statements to him should be suppressed under articles 38.22 and 38.23 of the code
6
of criminal procedure, and that his warrantless arrest of her was impermissible. 6 In
its first issue on appeal, the State contends the trial court erroneously suppressed
the evidence discovered during the interaction between appellee and Sergeant
Klenk because it was a voluntary encounter and that appellee was not detained until
after she rolled down her window and Sergeant Klenk smelled the odor of an
alcoholic beverage, thus giving him reasonable suspicion to investigate her for
possible DW I.
Police-Citizen Interactions
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. U.S. Const. amend. IV. A temporary
detention for purposes of investigation constitutes a seizure for Fourth Amendment
purposes. See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877 (1968).
However, not every encounter between a civilian and a police officer implicates the
Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382,
2386 (1991); Hunter v. State, 955 S.W .2d 102, 104 (Tex. Crim. App. 1997); State
v. Bryant, 161 S.W .3d 758, 761 (Tex. App—Fort W orth 2005, no pet.).
The Texas Court of Criminal Appeals recognizes three categories of
interactions between police officers and citizens: arrests, investigative detentions,
6
On appeal, appellee states, “It is obvious that the trial court’s ruling was
based on a determination that the initial interaction between Sergeant Klenk and
[appellee] was an investigative detention for which Sergeant Klenk lacked
reasonable suspicion.”
7
and encounters. State v. Perez, 85 S.W .3d 817, 819 (Tex. Crim. App. 2002); Bryant,
161 S.W .3d at 761. Unlike an investigative detention or an arrest—each a seizure
for Fourth Amendment purposes—an encounter is a consensual interaction, which
the citizen may terminate at any time. See Gurrola v. State, 877 S.W .2d 300,
302–03 (Tex. Crim. App. 1994); Bryant, 161 S.W .3d at 761. So long as the citizen
remains free to disregard the officer’s questions and go about his or her business,
the encounter is consensual and merits no further constitutional analysis. See
Johnson v. State, 912 S.W .2d 227, 235 (Tex. Crim. App. 1995) (citing California v.
Hodari D ., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552 (1991)); State v. Woodard, No.
02-09-00052-CR, 2010 W L 1268035, at *4 (Tex. App.—Fort W orth April 1, 2010, no
pet. h.).
Law enforcement officers are permitted to approach individuals without
probable cause or reasonable suspicion to ask questions or even to request a
search. See Florida v. Royer, 460 U.S. 491, 497–98, 103 S. Ct. 1319, 1324 (1983);
State v. Velasquez, 994 S.W .2d 676, 678 (Tex. Crim. App. 1999); Woodard, 2010
W L 1268035, at *4. Such encounters do not require any justification on the officers’
part. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 1877
(1980); State v. Larue, 28 S.W .3d 549, 553 (Tex. Crim. App. 2000); Woodard, 2010
W L 1268035, at *4. A police officer is as free as any other citizen to approach
citizens on the street and ask for information. Garcia-Cantu, 253 S.W .3d at 243;
Woodard, 2010 W L 1268035, at *4. Such interactions may involve inconvenience
8
or embarrassment, but they do not involve official coercion. Garcia-Cantu, 253
S.W .3d at 243; Woodard, 2010 W L 1268035, at *4. Only when the implication arises
that an officer’s authority cannot be ignored, avoided, or ended does a Fourth
Amendment seizure occur. Garcia-Cantu, 253 S.W .3d at 243; Woodard, 2010 W L
1268035, at *4.
W hether a police-citizen interaction is a consensual encounter is determined
by the totality of the circumstances and “whether a reasonable person would feel
free to decline the officer’s requests or otherwise terminate the encounter.”
Woodard, 2010 W L 1268035, at *4; St. George v. State, 197 S.W .3d 806, 819 (Tex.
App.—Fort W orth 2006), aff’d, 237 S.W .3d 720 (Tex. Crim. App. 2007) (quoting
Bostick, 501 U.S. at 436, 111 S. Ct. at 2387)); State v. Murphy, No. 02-06-00267-
CR, 2007 W L 2405120, at *2 (Tex. App.—Fort W orth Aug. 23, 2007, no pet.) (mem.
op., not designated for publication).
Circumstances indicating that a police-citizen interaction is a seizure, rather
than a consensual encounter, include the threatening presence of several officers,
the officer’s display of a weapon, physical touching of the citizen by the officer, the
officer’s words or tone of voice indicating that compliance with the officer’s requests
might be compelled, flashing lights, or the blocking of a suspect’s vehicle.
Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877; Woodard, 2010 W L 1268035, at
*5. But absent this type of evidence, otherwise inoffensive conduct between a
citizen and a police officer cannot, as a matter of law, amount to a seizure of that
9
person. Mendenhall, 446 U.S. at 555, 100 S. Ct. at 1877; Woodard, 2010 W L
1268035, at *5.
Officer’s Initial Interaction With Appellee Was Voluntary Encounter
In its conclusions of law, the trial court correctly concluded that “[a]n officer
does not need reasonable suspicion or probable cause before he talks to a person
in a public place or asks questions.” But the trial court did not otherwise elaborate
on whether Sergeant Klenk’s interaction with appellee was an encounter, an
investigative detention, or both.
Appellee points to Sergeant Klenk’s activating his spotlight and what she
characterizes as an order to appellee that she “needed” to roll down her window as
showing that their entire interaction was an investigative detention, for which
Sergeant Klenk did not possess reasonable suspicion. But, viewing the totality of
the evidence in the light most favorable to the trial court’s ruling, we agree with the
reasoning of similar cases holding that actions such as Sergeant Klenk’s do not
constitute such a show of authority as to indicate to a reasonable person that she
would not be free to terminate the encounter. See, e.g., Merideth v. State, 603
S.W .2d 872, 873 (Tex. Crim. App. 1980) (holding interaction was encounter when
officer saw man and woman sitting in parked truck in parking lot, approached truck,
and knocked on driver’s side window); Bryant, 161 S.W .3d at 760 (holding
interaction was encounter when officer “drove to where appellee was parked, got out
of his patrol car, . . . approached appellee’s car,” and knocked on window); Ashton
10
v. State, 931 S.W .2d 5, 6 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding
that interaction was encounter when officer approached parked car and asked
appellant to roll down window); Soto v. State, No. 05-07-00029-CR, 2007 W L
3054283, at *1 (Tex. App.—Dallas Oct. 22, 2007, pet. ref’d) (holding interaction was
encounter when officer approached car stopped at green light in right lane of street
and “directed,” rather than ordered, driver to roll down window) (mem. op., not
designated for publication).
There is no evidence that Sergeant Klenk activated his patrol car’s overhead
lights or its siren when parking behind appellee’s Hummer, nor is there any evidence
that he blocked her egress from where she was parked. Likewise, there is no
evidence that when Sergeant Klenk approached the vehicle and gestured to
appellee to roll down the window that he engaged in any activity that would have
indicated to appellee that she was being detained or was not free to terminate the
encounter.7 Thus, up to the point when appellee rolled down her window and
Sergeant Klenk smelled the odor of an alcoholic beverage, Sergeant Klenk’s actions
were justified as a voluntary encounter. See Merideth, 603 S.W .2d at 873; Stewart
v. State, 603 S.W .2d 861, 862 (Tex. Crim. App. 1980); Woodard, 2010 W L 1268035,
at *6; Bryant, 161 S.W .3d at 761–62. 8
7
For example, there is no evidence that Sergeant Klenk pointed to his
handcuffs or service weapons.
8
The State also contends that the trial court’s actual findings of fact,
although limited, and more particularly its conclusions of law, support a finding that
11
Smell of Alcoholic Beverage, Glazed and Bloodshot Eyes Provided Reasonable
Suspicion for Detention
Once appellee rolled down her window and Sergeant Klenk “smelled the odor
of an alcoholic beverage emitting from the vehicle” and saw appellee’s bloodshot
and glazed eyes, the voluntary encounter became an investigative detention based
upon reasonable suspicion that appellee had been driving while intoxicated. See
Bryant, 161 S.W .3d at 762; Martin v. State, 104 S.W .3d 298, 300–02 (Tex. App.—El
Paso 2003, no pet.). Thus, after that point, Sergeant Klenk was authorized to detain
appellee for the purpose of investigating whether she had been driving while
intoxicated, and the trial court abused its discretion by granting appellee’s motion to
suppress. 9 See Woodard, 2010 W L 1268035, at *6; Bryant, 161 S.W .3d at 762;
Martin, 104 S.W .3d at 302. W e sustain the State’s first issue.
this voluntary encounter was based upon the community welfare and care-taking
function of police. But we need not address this contention because we hold that the
initial encounter was a voluntary encounter; therefore, Sergeant Klenk did not need
any justification for approaching appellee’s vehicle. See W oodard, 2010 W L
1268035, at *3.
9
Moreover, once Sergeant Klenk received confirmation that appellee’s
license was suspended, he had probable cause to arrest her for that offense. See
Givens v. State, 949 S.W .2d 449, 451–52 (Tex. App.—Fort W orth 1997, pet. ref’d).
12
Conclusion
Having sustained the State’s first and dispositive issue, 10 we reverse the trial
court’s suppression order and remand this case to the trial court for further
proceedings consistent with this opinion.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; W ALKER and MEIER, JJ.
PUBLISH
DELIVERED: May 20, 2010
10
Because the State’s second issue is in the alternative and we sustain its
first issue, we need not address the second issue. See Tex. R. App. P. 47.1; Vann
v. State, 216 S.W .3d 881, 889 (Tex. App.—Fort W orth 2007, no pet.).
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