Pullen, Alyssa ( 2015 )


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  •                                                       January 28, 2015
    PD-1664-14
    IN THE
    COURT OF CRIMINAL APPEALS
    AT AUSTIN
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
    NO. 01-13-00259-CR
    IN THE
    FIRST DISTRICT COURT OF APPEALS
    HOUSTON, TEXAS
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
    ALYSSA PULLEN,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
    CAUSE NO. 1817849
    IN COUNTY CRIMINAL COURT AT LAW NO. 4
    HARRIS COUNTY, TEXAS
    ⎯⎯⎯⎯⎯♦⎯⎯⎯⎯⎯
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    GARY S. MILLER
    State Bar No: 24051050
    1018 Preston St., Suite 500
    Houston, TX 77002
    tel: (713) 223-4200
    fax: (713) 568-2820
    gary@millerdefense.com
    ORAL ARGUMENT REQUESTED
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to TEX. R. APP. P. 68.4 (c), Appellant requests oral argument.
    Issues raised in this petition are fact specific and oral argument would allow the
    parties to address any concerns or questions this Court may have. The First Court
    of Appeals’ opinion conflicts with decisions from the U.S. Supreme Court.
    Additionally, the issue presents an important question of law that has not yet been
    addressed by this Court.
    !2
    TABLE OF CONTENTS
    STATEMENT REGARDING ORAL ARGUMENT……………………………….2
    INDEX OF AUTHORITIES……………………………………………………… 4
    STATEMENT OF THE CASE……………………………………………………..1
    STATEMENT OF THE PROCEDURAL HISTORY………………………………6
    REASONS FOR REVIEW…………………………………………………………7
    GROUND FOR REVIEW………………………………………………………….7
    Is it reasonable under the Fourth Amendment for an officer with superior expertise
    conducting DWI investigations to detain a suspected intoxicated driver for thirty
    minutes to wait for another officer with inferior DWI expertise with no video
    recording equipment?……………………………………………………………….……..……. 8
    CONCLUSION…………………………….……………………………………..17
    CERTIFICATE OF SERVICE……………….………………………………..… 17
    CERTIFICATE OF COMPLIANCE……………………………………………..18
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    INDEX OF AUTHORITIES
    CASES
    Belcher v. 
    State, 244 S.W.3d at 539
    (Tex. App.—Fort Worth 2007, no pet.)………………………… 10, 11
    Bullock v. State,
    No. 01-11-00347-CR (Tex. App—[1st Dist.], Nov. 21, 2012)………………… 10, 11, 12
    Cady v. Dombrowski,
    
    413 U.S. 433
    , 437 (1973)………………………………………………….….……..… 
    13 Fla. v
    . Royer,
    
    460 U.S. 491
    , 500 (1983)…………………………………………………………….… 7
    Hartman v. State,
    
    144 S.W.3d 568
    , 572 (Tex. App.—Austin 2004)………………………….…… 10, 11, 13
    Kothe v. State,
    
    152 S.W.3d 54
    , 64 (Tex. Crim. App. 2004)……………………………………………. 13
    Michigan v. Summers,
    
    452 U.S. 692
    (1981)……………………………………………………………………. 7
    Sibron v. New York,
    
    392 U.S. 40
    (1968)…………………………………………………………………….. 16
    Smith v. State,
    No. 03-06-00085-CR, 
    2007 WL 700834
    (Tex. App.—Austin
    Mar. 7, 2007, pet. ref.’d)(mem. op., not designated for publication)…………………. 10
    United States v. Brigham,
    
    382 F.3d 500
    , 511 (5th Cir. 2004)………………………………………………….……13
    United States v. Sharpe,
    
    470 U.S. 675
    (1985)…………………………………………………………… 7, 9, 10, 13
    RULES
    TEX. R. APP. P. 66.3 (c)…………………………………………………………… 7
    TEX. R. APP. P. 68.2 (a)…………………………………………………………… 6
    !4
    TEX. R. APP. P. 68.4 (c)….……….…………………………………………..…… 2
    !5
    TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
    STATEMENT OF THE CASE
    Appellant was charged by information with driving while intoxicated. (CR
    3). A jury convicted Appellant of the charged offense and the trial court sentenced
    her to 3 days in the Harris County Jail and a $1,500.00 fine. (CR 58).
    STATEMENT OF THE PROCEDURAL HISTORY
    On August 26, 2014, a unanimous panel of the First Court of Appeals issued
    an unpublished opinion affirming the trial court’s denial of Appellant’s motion to
    suppress. Pullen v. State, No. 01-13-00259-CR (Tex. App. — Houston [1st. Dist.]
    Aug. 28, 2014, pet. filed) (not designated for publication). A motion for en banc
    rehearing was filed by Appellant on October 10, 2014, which was denied on
    November 20, 2014. The First Court of Appeals also issued an order on November
    20, 2014, titled “corrected pages to opinion issued.” (See Appendix A). After one
    extension was granted, this petition for discretionary review is timely if filed by
    January 21, 2015. See TEX. R. APP. P. 68.2(a).
    The First Court of Appeals held that the trial court did not err in denying
    Appellant’s motion to suppress because the thirty minute detention of Appellant
    was reasonable under the Fourth Amendment. Pullen, 14. The Court held that the
    thirty minute delay was justified by legitimate law enforcement purposes in
    furtherance of the investigation. 
    Id. at 13.
    The First Court of Appeals also held that
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    the duration of Appellant’s detention was also reasonable under the Fourth
    Amendment. 
    Id. at 14.
    REASONS FOR REVIEW
    This petition for discretionary review should be granted because the First
    Court of Appeals’ decision conflicts with U.S. Supreme Court cases, namely
    United States v. Sharpe, 
    470 U.S. 675
    (1985), Florida v. Royer, 
    460 U.S. 491
    , 500,
    (1983), and Michigan v. Summers, 
    452 U.S. 692
    (1981).         See TEX. R. APP. P.
    66.3(c).   Appellant’s warrantless detention for thirty minutes failed to effectuate
    the purpose of the detention because the delay was solely to wait for an
    “designated DWI Unit” with inferior expertise and no additional necessary
    video equipment.
    GROUNDS FOR REVIEW
    The U.S. Supreme Court has strictly limited the duration of warrantless
    seizures to the amount of time necessary to quickly dispel the suspicion of criminal
    activity. 
    Sharpe, 470 U.S. at 686
    . The U.S. Supreme Court has never found that a
    citizen could be reasonably detained strictly because of personnel assignments or
    “designations” of particular officers within a police department.     Namely, this
    Court should determine whether a thirty minute detention by an officer with
    superior expertise and knowledge is reasonable under the Fourth Amendment in
    order to wait for an officer with inferior knowledge and less experience but had
    the personnel assignment of being an “designated DWI Unit.” This investigation
    !7
    was not conducted more efficiently or enhanced by waiting for thirty minutes for
    the arrival of the “designated DWI Unit” HPD Officer Sanchez. Officer Musket
    had no video recording equipment and neither did Officer Sanchez. Legitimate
    law enforcement purposes have never been defined by this Court under the
    reasonableness standard of the Fourth Amendment and the courts of appeals have
    improperly expanded permissible legitimate law enforcement purposes.
    GROUND FOR REVIEW
    Is it reasonable under the Fourth Amendment for an officer with superior
    expertise conducting DWI investigations to detain a suspected intoxicated
    driver for thirty minutes to wait for another officer with inferior DWI
    expertise with no video recording equipment?
    The First Court of Appeals ignores the fact that the thirty minute delay
    waiting for “designated DWI Unit” did not directly effectuate the purpose of the
    detention — after the delay an officer with inferior expertise arrived with no
    necessary video equipment.        This Court has the opportunity to define the
    permissible of legitimate law enforcement purposes during warrantless detentions
    in Texas under the Fourth Amendment.           The entire purpose of a warrantless
    detention by one officer is to delay to allow for another officer to arrive in order to
    elevate the investigation through superior knowledge, expertise or equipment —
    thereby, making the delay a worthy and reasonable endeavor.
    !8
    The sole reason for the thirty minute delay of Appellant was waiting for the
    “designated DWI Unit” to arrive the scene. Both Officers Muskiet and Sanchez
    did not have video recording devices on their HPD patrol vehicles. Musket never
    testified he felt that he was in danger or needed back-up officers for officer safety
    purposes. No evidence was presented that the “designated DWI Unit” had superior
    training or experience, in fact, the opposite was true. Officer Muskiet (the initial
    officer) had conducted far more DWI investigations in his career than Officer
    Sanchez.      Muskiet testified that he was fully qualified to conduct DWI
    investigations and had done so many occasions and could efficiently and
    effectively investigate Appellant’s suspected intoxication. (RR III 38, 47). Nothing
    prevented the fully trained and available officer from investigating Appellant
    except Muskiet calling in for a “DWI Unit” - anticipating and expecting an officer
    with superior knowledge and expertise (like a HPD DWI task force officer) to
    arrive.    HPD Officer Sanchez’s investigation at the scene was a total of eight
    minutes compared to the delay of 30 minutes waiting for her arrival. She failed to
    even offer the Appellant the full battery of the three standardized field sobriety
    tests — contrary to her training, again, demonstrating her detriment to the
    investigation.
    In United States v. Sharpe, 
    470 U.S. 675
    (1985), the U.S. Supreme Court
    found that the patrol officer was justified in waiting for the DEA agent to arrive
    because he knew about the investigation and had superior training, knowledge, and
    !9
    experience in handling narcotics investigation. 
    Id. at 687.
    The Supreme Court’s
    standard in Sharpe exemplifies the direct nature of the delay — it enhanced and
    furthered the investigation in order to be conducted by an expert officer.
    Appellant’s case is the reverse of the officers involved in Sharpe - the thirty minute
    delay was spent waiting for an officer with inferior training, knowledge and
    experience handling DWI investigations.          Court of appeals in Texas have
    improperly expands the U.S. Supreme Court’s definitions of legitimate law
    enforcement purposes in order to find that legitimate law enforcement purposes
    existed in Appellant’s case.
    Courts of Appeals throughout Texas have routinely affirmed warrantless
    detentions based on the reasonable detention of DWI suspects while waiting for a
    DWI Task Force officer to arrive at a scene. Bullock v. State, 
    426 S.W.3d 226
    (Tex.
    App.—Houston [1st Dist.] 2012, no pet.); Hartman v. State, 
    144 S.W.3d 568
    , 573
    (holding that a five to fifteen minute delay in DWI investigation so another officer
    could arrive at the scene with a video camera served a legitimate law enforcement
    purposes); Belcher v. State, 
    244 S.W.3d 531
    , 541 (Tex. App. Fort Worth 2007, no
    pet.) (holding that the initial officer asked the suspect questions in furtherance of
    the DWI investigation, such as where the suspect had been drinking, where he had
    been prior to the stop and where he was going. Also the initial officer had less
    experience and was less efficient at conducting DWI investigations.); Smith v.
    State, No. 03-06-00085-CR, 
    2007 WL 700834
    , at 3–4, Tex. App.—Austin Mar. 7,
    !10
    2007, pet. ref.’d)(mem. op., not designated for publication)(holding an
    investigative delay waiting for a rookie officer for the purpose of training was
    reasonable because it further a legitimate law enforcement purpose.) [emphasis
    added].
    In Belcher v. State, the court held that a twenty-seven minute delay waiting
    for a more experienced officer who could perform the investigation quicker was
    not unreasonable in duration and served a legitimate law enforcement purpose.
    Belcher v. State, 
    244 S.W.3d 531
    , 540-541 (Tex. App.—Fort Worth 2007, no pet.).
    Inherently, DWI task force officers are experts in efficiently investigating,
    identifying, conducting standardized field sobriety tests, documenting and
    testifying about their findings in court. The delay in Belcher is directly justified
    and effectuated by an improvement in the investigation as a result of it being
    conducted by an officer with more DWI investigation expertise. The distinction in
    Appellant’s case occurs because the delay was waiting for a non- DWI Task Force
    officer — this distinction is never discussed in Appellant’s case. The delay in the
    Hartman case was directly justified as legitimate law enforcement purposes by the
    assistance of waiting for the second officer with a video recording equipment to
    arrive at the scene. Again, neither Officer Muskiet or Sanchez had video recording
    equipment, therefore, no directly related investigative tool caused the delay.
    In Bullock v. State, 
    426 S.W.3d 226
    (Tex. App.—Houston [1st Dist.] 2012,
    no pet.), specifically involved a delay waiting for a DWI task force officer after the
    !11
    initial officer had the suspect perform the HGN test (a standardized field sobriety
    test), he first called for a DWI task force officer and even made a second follow-up
    call during the delay to check on the status of the DWI task force officer.
    Appellant’s case is factually distinguishable on many levels from Bullock (besides,
    there is no DWI task force officer whatsoever); including the lack of investigative
    activity taken by Muskiet. Musket was fully trained and qualified to have had
    Appellant perform the HGN standardized field sobriety test during the delay but he
    simply waited instead. Muskiet never made a second call during the delay to
    inquiry regarding the arrival time of Sanchez.
    The Court of Appeals’ opinion on pages 12-13 stated the following:
    “Muskiet also explained that while a designated DWI Officer is conducting her
    investigation, it is the “usual practices” of patrol units to begin completing
    necessary paperwork, such as completing a “tow slip” if a defendant’s automobile
    must be towed from the scene.”
    However, none of these actions are found in the record as actually being
    performed by Muskiet.       No evidence of written paperwork by Muskiet was
    presented or offered into evidence by the State during trial. Muskiet never testified
    that he actually completed any paperwork in Appellant’s case - including no
    mention at all of completing a “tow slip.” Muskiet did not write an Offense Report
    or a supplement regarding any investigative actions he undertook. No tow slip was
    ever offered into evidence during the trial by the State. Absent from the record is
    !12
    any mention of whether or not Appellant’s vehicle was towed from the scene.
    Therefore, the opinion relied upon non-existent legitimate law enforcement
    purposes to justify the thirty minute detention of Appellant. This vague reference
    fails to articulate any concrete facts in order to justify Appellant’s detention. The
    distinct lack of specific details of legitimate law enforcement purposes undermines
    the State’s arguments and the Opinion issued.
    The lack of any diligent investigation into Appellant’s suspected intoxication
    by Muskiet also rendered the duration detention unreasonable under the Fourth
    Amendment. The length of a temporary investigative detention is generally
    considered reasonable as long as the police are diligently engaged in a means of
    investigation that is likely to permit the officers to quickly and efficiently confirm
    or dispel their reasonable suspicions of criminal activity. 
    Sharpe, 470 U.S. at 686
    ,
    Kothe v. State, 
    152 S.W.3d 54
    , 64 (Tex. Crim. App. 2004). The question is also
    whether the law enforcement officer acted unreasonable in failing to choose a less
    intrusive method. Hartman, at 574 citing 
    Sharpe, 470 U.S. at 687
    , (quoting Cady v.
    Dombrowski, 
    413 U.S. 433
    , 437 (1973). There is no bright line rule as to how long a
    traffic stop may reasonably continue; however, courts consider “whether the police
    diligently pursued a means of investigation that was likely to confirm or dispel
    their suspicions quickly, during which time it was necessary to detain the
    defendant.” 
    Sharpe, 470 U.S. at 686
    -87, 105 S. Ct. at 1575-76; see United States v.
    Brigham,
    382 F.3d 500
    , 511 (5th Cir. 2004).        Musket failed to administer any
    !13
    standardized field sobriety tests, failed to ask Appellant any questions about her
    activities that evening, how many alcoholic drinks she consumed, where she was
    coming from, what she had to eat, etc. He did not perform any other actions in
    furtherance of the investigation of Appellant’s suspected intoxicated. Muskiet had
    thirty minutes which provided him an abundance of time to complete the entire
    investigation of Appellant with his DWI expertise.
    The thirty minute detention of Appellant (at her own apartment complex -
    with her expectation of returning to her residence) was almost four times as long in
    duration as Sanchez’s entire investigation which only lasted eight minutes. The
    only action that Musket took was to call for “a designated DWI patrol officer” even
    though it caused the thirty minute delay. Muskiet made a single request and then
    waited and did not exercise any due diligence to investigate Appellant. He failed
    to ask Appellant any questions about her activities that evening, how many drinks
    she consumed, where she was coming from, what she had to eat, etc. He did not
    perform any other actions in furtherance of the investigation of Appellant’s
    suspected intoxicated.     Muskiet had thirty minutes which provided him an
    abundance of time to complete the entire investigation of Appellant.
    Eavesdropping on Appellant’s phone conversation does not demonstrate any
    diligence on Muskiet’s behalf because that was not conducted in furtherance of
    investigating her suspected intoxication.
    !14
    Sanchez’s inexperience and inadequate knowledge regarding DWI
    investigation were repeatedly demonstrated throughout the trial.        The officer
    conducted an improper HGN demonstration, she did not know the three phases of
    DWI investigation and detection as taught by NTSHSA (RR III 127)., had only
    been involved in maybe a total of four prior DWI investigations, she had only been
    out the police academy six months prior to Appellant’s arrest, she was not a
    member of the Houston Police Department DWI Task Force, there was no video
    camera in her car, she needed assistance from Officer McRae, and she signed the
    DIC-23 document without actually personally reading it to Appellant.
    It is inherently unreasonable under the Fourth Amendment to wait for an
    inexperienced officer whom is not a member of HPD DWI Task Force to arrive to
    conduct an investigation when Officer Muskiet, the initial officer, is much more
    qualified to continue the investigation without any delay. Muskiet is present at the
    scene and fully qualified to investigate Appellant’s suspected intoxicated - nothing
    prevented him from continuing. His decision to wait thirty minutes intentionally
    delayed the investigation which made it more complex and slower.         The HPD
    policy is for patrol units to call for HPD DWI Task Force members to assist them
    on scene.    Being labeled as a “DWI Unit” does not mean Sanchez has any
    specialized DWI knowledge or training         - she was grossly mis-assigned that
    evening. Muskiet failed to comply with HPD policy - the entire reason the DWI
    Task Force exists is because of their superior expertise and knowledge regarding
    !15
    DWI investigations. Muskiet called for a HPD DWI Task Force member to come
    to Appellant’s scene. Sanchez was not a member of the HPD DWI Task Force and
    had less knowledge than Muskiet which the panel’s opinion fails to analyze or
    acknowledge.
    Muskiet never testified that he was purposely holding Appellant for Sanchez
    to gain experience as a new officer– contrary to the initial officer in the Smith case
    whom purposely waiting for a rookie officer so they could gain experience. Smith,
    at 3-4 (unpublished). The record is silent as to whether Muskiet was concerned
    about officer safety and was not argued by the State as a reason to justify
    Appellant’s detention.
    The mere existence of a police policy alone does not render a particular
    search or seizure reasonable or otherwise immune from scrutiny under the Fourth
    Amendment. See Sibron v. New York, 
    392 U.S. 40
    , 61, (1968) (“The question in
    this Court upon review of a state-approved search or seizure is not whether the
    search (or seizure) was authorized by state law. The question is rather whether the
    search was reasonable under the Fourth Amendment”). A police department whom
    assigns officers without any specialized knowledge or expertise in the particular
    subject matter should not be allowed to detain citizens pursuant to such a policy —
    in order to wait for for an inferior investigator with no necessary equipment.
    Delays in an investigation must directly enhance and elevate law enforcement
    !16
    officers’ investigative efforts, if not, the Fourth Amendment protects citizens from
    warrantless detentions.
    CONCLUSION
    It is respectfully requested that this Petition be granted, the First Court of
    Appeals’ judgment be reversed, and the court ordered to enter findings consistent
    with this Court’s opinion.
    Respectfully submitted:
    /S/ GARY S. MILLER
    GARY S. MILLER
    Attorney for Alyssa Pullen
    State Bar No: 24051050
    1018 Preston St., Suite 500
    Houston, TX 77002
    phone: (713) 223-4200
    fax: (713) 568-2820
    gary@millerdefense.com
    CERTIFICATE OF SERVICE
    Pursuant to TEX. R. APP. P. 9.5, this certifies that on January 21, 2015, a
    copy of the foregoing Petition was mailed to the following address: Assistant
    District Attorney Carly Dessauer, Harris County District Attorney’s Office, 1201
    Franklin Street, Houston, Texas 77002.
    /S/ GARY S. MILLER
    GARY S. MILLER
    !17
    CERTIFICATE OF COMPLIANCE
    I, Gary S. Miller, hereby certify that the Appellant’s Petition for
    Discretionary Review contains 3,319 words according to Apple Pages 5.1 which
    was used to generate this document according to TEX. R. APP. P. 9.4 (3).
    GARY S. MILLER /S/
    GARY S. MILLER
    Date: January 21, 2015
    !18