Robert Richardson v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00501-CR
ROBERT RICHARDSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY
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OPINION
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I. Introduction
Appellant Robert Richardson appeals following his guilty plea to driving
while intoxicated, challenging the trial court’s denial of his motion to suppress
evidence. He contends in one point that the trial court erred by denying the
motion to suppress because any detention beyond the issuance of a written
warning for a traffic violation was unreasonable. We affirm. 1
II. Background
At the suppression hearing, Trooper Preston Fulford testified that he
worked the 4 p.m. to 3 a.m. shift and was on routine patrol for the Texas
Department of Public Safety on August 25, 2010, when he observed a vehicle
make an unsafe maneuver while traveling north on Interstate 35-E near the City
of Lewisville. Trooper Fulford had been observing a motorcycle because it had
been speeding, but he saw Richardson’s vehicle, a Tahoe, change lanes without
signaling and move into the path of the motorcycle, almost hitting it. Trooper
Fulford followed the Tahoe and observed as it weaved within its lane of traffic
and crossed into the other lane of traffic, and he testified that he decided to make
a traffic stop for failing to drive in a single lane.
Trooper Fulford testified that he followed the vehicle until it was in a safer
area to stop before activating his overhead lights. When the vehicle pulled over,
it slowed down very quickly and almost completely stopped before moving off of
1
By affirming, we necessarily disagree with the dissent’s contention that
the trial court’s ruling on Richardson’s motion to suppress is not before us due to
the lack of a written order denying it. The State is not attempting an interlocutory
appeal of the grant of a motion to suppress. Rather, Richardson is appealing the
judgment that followed the denial of his motion to suppress. Our holding in State
v. Cox is therefore inapplicable here. See 235 S.W.3d 283, 284 (Tex. App.—Fort
Worth 2007, no pet.) (en banc). This court has previously declined to adopt the
dissent’s contentions, and we do so again. See, e.g., Dahlem v. State, 322
S.W.3d 685, 690–92 (Tex. App.—Fort Worth 2010, pet. ref’d); Bracken v. State,
282 S.W.3d 94, 96 n.1 (Tex. App.—Fort Worth 2009, pet. ref’d).
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the freeway. In addition, the vehicle stopped on the fog line, very close to the
lanes of traffic on the freeway. Trooper Fulford testified that his main objective in
stopping the vehicle was the traffic violation but that the possibility of intoxication
was in his mind given the time of day and location.
Trooper Fulford testified that he approached Richardson’s vehicle on the
passenger side because of its proximity to the fog line and that he noticed a mild
odor of an alcoholic beverage while speaking with Richardson through the
passenger-side window. Richardson and the passengers in the vehicle denied
having consumed alcohol. 2 Trooper Fulford advised Richardson that he had
stopped him for failure to maintain a single lane and, while speaking with
Richardson, noticed that there was a prescription pill bottle in the vehicle.
Richardson told Trooper Fulford that the pill bottle belonged to his girlfriend, and
Trooper Fulford asked Richardson to give him the pill bottle. Trooper Fulford
testified that Richardson’s hands were shaking when he handed him the pill
bottle and that Richardson appeared nervous when he was asked about drinking
and about the pill bottle.
Trooper Fulford testified that he, at that moment, was suspicious that
Richardson was driving while intoxicated based on his driving behavior before
the stop, the manner in which Richardson stopped the vehicle, the mild odor of
2
Trooper Fulford testified that Richardson was driving for a limousine
service at the time of the stop, that Richardson was dressed as a professional
driver would be dressed, and that the passengers reported having just left the
airport.
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alcohol, Richardson’s nervousness, the pill bottle, and the passengers’ denials of
any alcohol use. Even so, Trooper Fulford testified that he had not yet decided
to conduct a DWI investigation.
Trooper Fulford testified that he returned to his patrol car to process
Richardson’s driver’s license after advising Richardson that he would receive a
warning for the traffic violation. After processing Richardson’s driver’s license
and preparing the written warning, Trooper Fulford returned to the passenger
window of Richardson’s vehicle. Trooper Fulford testified that, upon arriving at
the passenger window of the vehicle, he noticed an “overwhelming” odor of
breath mints and that he then decided to conduct a DWI investigation.
Trooper Fulford asked Richardson if he had put a breath mint into his
mouth, Richardson confirmed that he had, and Trooper Fulford asked
Richardson to step out of the vehicle. Trooper Fulford testified that he had not
yet advised Richardson that he was free to leave or that the traffic stop was
otherwise complete, but he could not recall if he had previously returned
Richardson’s driver’s license or given him the written warning. He also testified
that the reasons to suspect intoxication at that moment were the failure to
maintain a single lane of traffic, stopping the vehicle very close to the fog line, the
mild odor of alcoholic beverages, the passengers’ denials of alcohol use, the
empty pill bottle, and the breath mints.
Richardson testified that when Trooper Fulford returned from his patrol car
and approached the passenger-side window of the Tahoe, Trooper Fulford
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handed him his driver’s license and a warning ticket. Trooper Fulford then
looked up and said, “Did you just take a breath mint?” Richardson testified that
he had put a breath mint into his mouth, but he denied that it was to mask the
odor of alcohol. Richardson also testified that he returned his driver’s license
and the warning ticket to Trooper Fulford after Trooper Fulford had asked him to
exit the vehicle.
The trial court, after reviewing the entire video of the traffic stop, denied
Richardson’s motion to suppress and dictated findings of fact onto the record.
Among the trial court’s findings of fact were that Trooper Fulford returned
Richardson’s driver’s license to him contemporaneously with noticing the smell of
breath mints and that the totality of the circumstances, up through and including
the smell of the breath mints, provided Trooper Fulford with reasonable suspicion
to continue the detention. Richardson pleaded guilty following the trial court’s
ruling on the motion to suppress, and this appeal followed.
III. Discussion
Richardson argues in one point that the trial court erred by denying his
motion to suppress. Richardson does not challenge the traffic stop itself, arguing
instead that there was not reasonable suspicion to continue the detention beyond
the issuance of the written warning.
A. Applicable Law
We 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.
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Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We 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).
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214
S.W.3d 17, 24 (Tex. Crim. App. 2007). To suppress evidence because of an
alleged Fourth Amendment violation, the defendant bears the initial burden of
producing evidence that rebuts the presumption of proper police conduct.
Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872 (Tex.
Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). A defendant satisfies this
burden by establishing that a search or seizure occurred without a warrant.
Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the
burden of proof shifts to the State, which is then required to establish that the
search or seizure was conducted pursuant to a warrant or was reasonable. Id. at
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
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specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he or she has reasonable
suspicion to believe that an individual is violating the law. Crain v. State, 315
S.W.3d 43, 52 (Tex. Crim. App. 2010); Ford, 158 S.W.3d at 492. Reasonable
suspicion exists when, based on the totality of the circumstances, the officer has
specific, articulable facts that when combined with rational inferences from those
facts, would lead him to reasonably conclude that a particular person is, has
been, or soon will be engaged in criminal activity. Ford, 158 S.W.3d at 492. This
is 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. Id.
B. Analysis
Richardson argues that the purpose of the traffic stop was complete when
Trooper Fulford returned his driver’s license and gave him the written warning
and that any detention beyond that moment was unreasonable. As mentioned,
Richardson does not challenge the legality of the initial stop.
An investigative detention must be temporary, and the questioning must
last no longer than is necessary to effectuate the purpose of the stop. Florida v.
Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Balentine v. State, 71
S.W.3d 763, 770–71 (Tex. Crim. App. 2002); Davis v. State, 947 S.W.2d 240,
245 (Tex. Crim. App. 1997). Once an officer concludes the investigation of the
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conduct that initiated the stop, continued detention of a person is permitted for
the purpose of issuing a citation. Kothe v. State, 152 S.W.3d 54, 65 n.43 (Tex.
Crim. App. 2004) (citing United States v. Wellman, 185 F.3d 651, 656 (6th Cir.
1999)); see Coleman v. State, 188 S.W.3d 708, 719 (Tex. App.—Tyler 2005, pet.
ref’d) (holding that purpose of stop was complete upon the issuance of the
citation), cert. denied, 549 U.S. 999 (2006). Further, once the reason for the stop
has been satisfied, the stop may not be used as a “fishing expedition for
unrelated criminal activity.” Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette,
519 U.S. 33, 41, 117 S. Ct. 417, 422 (1996) (Ginsburg, J., concurring)).
However, if an officer develops reasonable suspicion during a valid traffic
stop and detention that the detainee is engaged in criminal activity, prolonged or
continued detention is justified. See Davis, 947 S.W.2d at 244; Haas v. State,
172 S.W.3d 42, 52 (Tex. App.—Waco 2005, pet. ref’d); see also United States v.
Brigham, 382 F.3d 500, 510–11 (5th Cir. 2004); McQuarters v. State, 58 S.W.3d
250, 256 (Tex. App.—Fort Worth 2001, pet. ref’d). Additional facts and
information discovered by an officer during a lawful detention may form the basis
for a reasonable suspicion that another offense has been or is being committed.
Haas, 172 S.W.3d at 52.
The question in this case is whether Trooper Fulford had specific
articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably suspect that Richardson had engaged in criminal
activity. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880; Garcia v. State, 43 S.W.3d
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527, 530 (Tex. Crim. App. 2001); McQuarters, 58 S.W.3d at 255. The trial court
found that Trooper Fulford returned Richardson’s driver’s license
contemporaneously with noticing the smell of breath mints. And before smelling
the breath mints, Trooper Fulford had previously observed or learned of
Richardson’s failure to maintain a single lane of traffic, Richardson’s quick
deceleration when pulling the vehicle off of the highway, Richardson’s parking
the vehicle very close to the fog line, the empty pill bottle, Richardson’s
nervousness, the mild odor of alcoholic beverages, and the passengers’ denials
of alcohol use. These facts, which Trooper Fulford identified during his testimony
at the suppression hearing, were sufficient to provide him with reasonable
suspicion that Richardson had been driving while intoxicated. See Mohmed v.
State, 977 S.W.2d 624, 628 (Tex. App.—Fort Worth 1998, pet. ref’d) (“An officer
is entitled to rely on all of the information obtained during the course of his
contact with the citizen in developing the articulable facts which would justify a
continued investigatory detention.”) (citing Ortiz v. State, 930 S.W.2d 849, 856
(Tex. App.—Tyler 1996, no pet.)); see also Newman v. State, No. 01-00-00106-
CR, 2001 WL 279182, at *3 (Tex. App.—Houston [1st Dist.] Mar. 22, 2001, no
pet.) (not designated for publication) (affirming denial of motion to suppress and
holding trial court could have found reasonable suspicion based on the
appellant’s nervousness and strong odor of alcohol, which was inconsistent with
the appellant’s explanation). Trooper Fulford was thus justified in continuing the
traffic stop to further investigate the driving while intoxicated offense. See Davis,
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947 S.W.2d at 244; Haas, 172 S.W.3d at 52. We overrule Richardson’s sole
point.
IV. Conclusion
Having overruled Richardson’s sole point, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: April 18, 2013
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