State v. Pashko Zef Plumaj

Appellee=s Motion for Rehearing Overruled; Reversed and Remanded; Memorandum Opinion of May 14, 2009, Withdrawn, and Substitute Memorandum Opinion on Rehearing filed July 2, 2009

Appellee=s Motion for Rehearing Overruled; Reversed and Remanded; Memorandum Opinion of May 14, 2009, Withdrawn, and Substitute Memorandum Opinion on Rehearing filed July 2, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00703-CR

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THE STATE OF TEXAS, Appellant

V.

PASHKO ZEF PLUMAJ, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 47,549

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

We overrule appellee=s motion for rehearing, withdraw our opinion of May 14, 2009, and issue this substitute memorandum opinion on rehearing.  The State of Texas brings this interlocutory appeal from the trial court=s grant of a motion to suppress all evidence obtained as a result of a traffic stop of appellee, Pashko Zef Plumaj.  Subsequent to the stop, appellee was charged with the felony offense of driving while intoxicated.  In a single issue, the State contends that the trial court erred in granting the motion because (1) the court used an incorrect legal standard, and (2) the traffic stop was valid.  We reverse and remand.

Background

In his motion to suppress, appellee asserted that the officer who stopped him and subsequently arrested him did not have Aprobable cause@ for the initial traffic stop.  According to appellee, because the officer did not have probable cause for the traffic stop, all evidence obtained as a result of the initial stop should be suppressed.  In response to the motion, the State argued, among other things, that the proper standard for assessing the propriety of a traffic stop is Areasonable suspicion@ not Aprobable cause.@

At the hearing on the motion to suppress, Officer Daniel Dewey of the Missouri City Police Department testified that he stopped appellee on the day in question because appellee was driving with one working headlight and one non-working headlight.  Substantively, the parties disputed in the trial court, and dispute on appeal, whether having one working and one non-working headlight was a valid reason for the stop at the time of day and under the circumstances present when Dewey stopped appellee.  At the conclusion of the hearing, the trial court stated that under the circumstances, having only one working headlight did not provide Officer Dewey with Aprobable cause@ for the traffic stop.  The court subsequently granted the motion to suppress.  In its findings of fact and conclusions of law, the trial court again stated that Officer Dewey did not have Aprobable cause@ for the stop.

Discussion^[1]

In its single issue on appeal, the State argues that the trial court erred in granting the motion because (1) Aprobable cause@ is not the correct standard for assessing the validity of a traffic stop, and (2) appellee=s driving with only one working headlight provided Officer Dewey with a valid reason to make a traffic stop.  We begin by addressing the State=s argument regarding the correct legal standard.

It is well-settled in constitutional jurisprudence that a warrantless traffic stop is a Fourth Amendment seizure equivalent to a temporary detention, and it must therefore be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439 (1984); State v. Nelson, 228 S.W.3d 899, 902 (Tex. App.CAustin 2007, no pet.).  In other words, the officer making the stop must possess specific articulable facts that, taken together with rational inferences from those facts, lead him or her to conclude that the person detained is, has been, or soon will be engaged in criminal activity.  Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Nelson, 228 S.W.3d at 902.  An officer=s suspicion of an alleged traffic violation, however, cannot be based on a mistaken understanding of traffic laws.  United States v. Granado, 302 F.3d 421, 423 (5th Cir. 2002); Goudeau v. State, 209 S.W.3d 713, 716 (Tex. App.CHouston [14th Dist.] 2006, no pet.).  The burden to demonstrate reasonable suspicion is on the State.  Nelson, 228 S.W.3d at 902.

As mentioned above, the trial court clearly considered the propriety of Officer Dewey=s stop of appellee against a Aprobable cause@ standard. Probable cause is the standard that must be met to support a warrantless arrest.  See Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008). Probable cause exists if the arresting officer knows of facts that would lead a reasonable person to believe that the suspect has committed or will soon commit a crime.  Id.  While the Areasonable suspicion@ and Aprobable cause standards@ are by necessity similar, they are not identical.  See id.  The level of suspicion required to justify a traffic stop or temporary detention is clearly less demanding than that for probable cause to arrest.  See Schwartz v. State, 635 S.W.2d 545, 546-47 (Tex. Crim. App. 1982) (citing Adams v. Williams, 407 U.S. 143 (1972)).

The trial court erred in requiring the State to show that Dewey had probable cause, rather than merely a reasonable suspicion, to stop appellee.  Because the trial court held the State to a higher burden than that required by law, we must reverse and remand the order granting the motion to suppress.  Because we reverse and remand on this basis, we do not consider the parties= substantive arguments.

We reverse the trial court=s order and remand for further proceedings in accordance with this opinion.^[2]

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In a prior order of this court, we rejected appellee=s contention that we are without jurisdiction in this matter because the State failed to timely file its notice of appeal.  Appellee argued, inter alia, that the State only had 15 days from the date of the order appealed from in which to file its notice of appeal pursuant to the then-applicable version of Rule 26.2(b) of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 26.2 (1997, amended 2008).  However, the then-applicable version, and still current version, of article 44.01(d) of the Texas Code of Criminal Procedure permitted the State 20 days to file its notice.  Tex. Code Crim. Proc. art. 44.01(d).  In the event of a conflict between a rule of appellate procedure and an article in the Code of Criminal Procedure, the article controls.  See Tex. Gov=t Code ' 22.108(a); Tex. Code Crim. Proc. art. 44.33(a); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993).  The State timely filed its notice within twenty days.

^[2]  We take no position on the validity of the trial court=s factual findings or legal conclusions relative to the motion to suppress but reverse only because the trial court applied an improper standard.  On remand, the trial court may again entertain the motion to suppress invoking the proper standard.