State v. Phyllis Jean Whittington

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00365-CR
The STATE of Texas,
Appellant
v.
Phyllis Jean WHITTINGTON,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court No. CR12-0063
Honorable Spencer W. Brown, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 6, 2013
REVERSED AND REMANDED
Phyllis Whittington was charged with driving while intoxicated. After a hearing, the trial
court granted Whittington’s motion to suppress evidence of the arrest and the patrol-car
videotape. On appeal, the State challenges the trial court’s rulings regarding: (1) the point at
which Whittington was arrested; (2) the identification and corroboration of the informant; and
(3) the existence of probable cause to arrest Whittington. Because we reverse the trial court’s
determination on the timing of Whittington’s arrest, we will remand to the trial court to address
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the State’s third issue of whether probable cause existed after the field sobriety tests were
administered.
BACKGROUND
This appeal stems from a collision involving Whittington and Michael Huddleston.
Around 9:00 p.m. one evening, Huddleston’s vehicle approached behind Whittington’s black
Lexus sports utility vehicle (SUV), which was stopped in the roadway for no apparent reason.
Huddleston stopped several yards behind Whittington’s SUV. Whittington then began to reverse
and, despite his honking, hit Huddleston’s car. Whittington seemed unaware of the collision and
drove away. Huddleston followed and called the police. The police dispatcher told Huddleston
to continue following the SUV, so he did.
During this time, Officer Dutchover was dispatched to the 1300 block of Park Street
regarding a two-vehicle accident. Officer Dutchover’s incident report 1 stated dispatch related
that a caller driving a 2009 Mercedes with license plate CV5X222 had been hit by a black SUV
with license plate CV5252, and that the SUV was attempting to flee the accident scene. Officer
Dutchover’s report also stated dispatch advised him that the SUV pulled into the driveway of a
house at 1312 Park Street. Officers Dutchover and Haas soon arrived at the residence and found
Whittington in the driver’s seat of a black Lexus SUV parked in the driveway. Huddleston was
parked across the street from the residence when the officers arrived, but the officers had not yet
identified him as the caller.
1
Although the trial court did not find Officer Dutchover’s testimony during the suppression hearing to be credible
because Officer Dutchover could not clearly remember the events that transpired, the trial court made no findings
relating to Officer Dutchover’s incident report. Because the incident report was prepared the same night as the
arrest, thus alleviating the trial court’s concern with Officer Dutchover’s testimony, we will consider the report to
the extent it is supported by the record; however, we must view the report in the light most favorable to the ruling.
Tucker v. State, 369 S.W.3d 179, 184–85 (Tex. Crim. App. 2012).
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Upon his arrival, 2 Officer Dutchover immediately approached Whittington’s vehicle,
identified himself, and asked, “Were you in a wreck?” Whittington responded that she was not.
Nonetheless, Officer Dutchover informed Whittington that she was involved in a collision and
that she did not stop afterward. Whittington continued to deny any involvement in an accident.
After repeated attempts to obtain her proof of insurance, Officer Dutchover asked Whittington
how many alcoholic beverages she had to drink that night. Whittington replied that she had two
drinks around 4:00, but denied having consumed any alcohol within the hour. He advised
Whittington that there was a strong odor of alcohol on her breath, and she laughed and said
“yeah.” Still trying to produce her proof of insurance, she handed him a map instead of her
insurance card. After he told her he needed her proof of insurance, not a map, she asked, “What
are we looking for?” Officer Dutchover again stated that he needed her proof of insurance.
Whittington then laughed and said her boyfriend was going to be mad at her “because . . . you
know how boyfriends are, they don’t think you should go out . . . work related.” Shortly
thereafter, Whittington found her insurance card.
After obtaining her proof of insurance, Officer Dutchover told Whittington to “just sit
tight” because he needed to talk to Officer Haas for a minute. Whittington inquired, “But who is
that guy?” (She was likely referring to Huddleston, who was still parked across from her
driveway.) The officers can vaguely be heard talking to each other and, after some chat that
cannot be deciphered, Officer Dutchover asked Officer Haas, “Was there a wreck? Are you sure
this is the right house?” To help resolve the matter, Officer Dutchover contacted the dispatcher
and asked where the other party was. The dispatcher said the caller was in a black SUV, and she
communicated that the caller was stating the female who hit him was walking into the house at
2
The patrol-car videotape begins to have audio, in addition to the already viewable visual recording, when Officer
Dutchover parks his patrol car in front of Whittington’s house. From this point forward, we will recite the events as
portrayed on the videotape.
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the address of 1312 Park Street and was driving a 1999 black Lexus. Officer Dutchover
responded that he was with the female but still needed to know where the other party was. After
again asking the dispatcher about the caller’s location, it sounds as though Huddleston, who was
sitting in his car near the curb, honked his horn. As a result, Officer Haas walked over to
Huddleston’s car and began a discussion with him, while also inspecting the car for damage.
Meanwhile, Officer Dutchover instructed Whittington to step out and come to the back of
her vehicle, advising her that she could lean on the rear of the car for support. Officer Dutchover
inquired about some damage to the rear of her vehicle, and she stated it was already there.
Officer Dutchover asked for Whittington’s keys and requested that she have a seat in her vehicle
because she was unsteady on her feet. She denied being unsteady. A few seconds later, Officer
Haas communicated something to Officer Dutchover, but we cannot decipher what was said.
However, immediately after this communication, Officer Dutchover told Whittington the person
she hit was “right there.” 3 Whittington inquired about where she hit Huddleston, and Officer
Dutchover answered that he was getting the information.
Before moving his car in a position to record Whittington perform field sobriety tests,
Officer Dutchover stated: “Do not go inside, stay right there where you’re at, . . . do not move,
okay?” Whittington replied, “I’m not going to move.” This exchange is the key moment in
dispute on appeal. Officer Dutchover then moved his car and, while doing so, stated on the
video that Whittington “appears to be under the influence of alcohol, is staggering, has a
staggered walk, leaning on the vehicle for support, almost stumbled, slurred speech, is fumbling,
when I asked for her information, . . . she handed me a map . . . .” After moving his vehicle,
Officer Dutchover had Whittington exit her vehicle, and he administered three field sobriety
3
The video shows that Huddleston’s car is parked directly in front of Officer Dutchover’s patrol car and across the
street from Whittington’s driveway.
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tests—the horizontal gaze nystagmus (HGN) test, the walk and turn test, and the one leg stand
test. Whittington was giggling during these tests and did not appear nervous, worried, or
otherwise bothered. After showing signs of intoxication during the tests, Whittington was
formally arrested and transported to the police station.
Prior to trial, Whittington filed a motion to suppress the videotape and evidence of the
arrest. Huddleston and Officer Dutchover testified at the hearing. After hearing the testimony
and considering the evidence, including the videotape, the trial court granted Whittington’s
motion to suppress. Upon the State’s request, the trial court made the following findings of fact:
A. The Kerrville Police Department received a call from an unidentified caller
regarding an automobile accident.
B. The caller was not identified until after the arrest of the Defendant.
C. The information provided by the unidentified caller was not reliable or
credible based [on] the caller not being identified or corroborated until after
the arrest of the Defendant.
D. The responding officers, Officer Dutchover and Officer Haas, arrived to the
residence of the Defendant.
E. The responding officers, Officer Dutchover and Officer Haas, did not observe
the Defendant driving an automobile.
F. The [officers] did not have a warrant for [the defendant’s] arrest.
G. The Defendant, after [] questioning by Officer Dutchover during a temporary
investigative detention, did not acknowledge [] driving a motor vehicle.
H. The testifying officer, Officer Dutchover, incorrectly testified that the
Defendant acknowledged [] driving a motor vehicle during his investigative
detention.
I. Officer Dutchover subsequently testified, after reviewing the video at the
hearing, that his testimony was incorrect as to the Defendant admitting to
driving a motor vehicle during his investigative detention.
J. The State submitted no evidence of any offense being committed in the
presence or view of the officers.
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K. The State presented no reasonably trustworthy information provided by any
person that the Defendant committed an offense.
L. After Officer Dutchover’s questioning during his investigative detention, he
ordered [the] Defendant to sit, not to move, and not to go in her home.
M. Officer Dutchover testified that he arrested the Defendant for Driving While
Intoxicated and for no other offense.
N. The Defendant was under arrest when Officer Dutch[]over took possession of
her keys and ordered her to sit, not to move[,] and not to go into her residence
based on the totality of the circumstances in that a reasonable person would
believe that her freedom of movement was restrained to a degree of formal
arrest.
The trial court also made the following conclusions of law:
A. The Officer lacked probable cause to arrest the Defendant on December 15,
2012[,] in violation of the Defendant’s rights under the Fourth, Fifth, Sixth[,]
and Fourteenth Amendments of the United States Constitution, Article 1,
Section[s] 9, 10, and 19 of the Texas Constitution, [and] Article[s] 38.23 and
14.01 of the Texas Code of Criminal Procedure.
B. All evidence obtained by the State after the arrest of the Defendant was
obtained illegally and is therefore suppressed.
C. The Court has the sole discretion to judge the credibility and evidence and is
the sole judge of the credibility of the evidence and the weight to be given
such evidence. See Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000).
Further, the trial court is free to believe or disbelieve any or all parts of [a]
witness’s testimony and the Court did not believe Officer Dutchover[’s]
testimony based on his lack of recollection of the events. See Dewberry v.
State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999). The Court did not give
weight or credibility to the testimony of Michael Huddleston for the purposes
of probable cause based on his identity not being determined or corroborated
until after the arrest of the Defendant. See id.
STANDARD OF REVIEW
The parties dispute the amount of deference that should be given to the trial court’s
ruling. Admittedly, the proper standard of review can be difficult to ascertain. We will provide
a comprehensive statement of the standard.
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When reviewing a trial court’s ruling on a motion to suppress, the overarching standard
of review guiding appellate courts is whether the trial court abused its discretion. Tucker v.
State, 369 S.W.3d 179, 184 (Tex. Crim. App. 2012); Montanez v. State, 195 S.W.3d 101, 108
(Tex. Crim. App. 2006). But see, e.g., State v. Mendoza, 365 S.W.3d 666, 669 (Tex. Crim. App.
2012) (stating that a judge’s factual findings should be reviewed for an abuse of discretion while
its legal rulings should be reviewed de novo); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997) (en banc) (“[A]n abuse of discretion standard does not necessarily apply to
‘application of law to fact questions’ whose resolution do not turn on an evaluation of credibility
and demeanor.”). Under an abuse of discretion standard, we must determine whether the trial
court’s ruling was so arbitrary that it is outside the zone of reasonable disagreement. Martinez v.
State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011); State v. Dixon, 206 S.W.3d 587, 590
(Tex. Crim. App. 2006). We must consider all evidence in the record, viewing the evidence in
the light most favorable to the trial court’s ruling. Gonzales v. State, 369 S.W.3d 851, 854 (Tex.
Crim. App. 2012); Tucker, 369 S.W.3d at 185; Carmouche v. State, 10 S.W.3d 323, 328 (Tex.
Crim. App. 2000). The ruling will be upheld if it is correct under any applicable theory of law.
State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008); State v. Stevens, 255 S.W.3d 736,
740 (Tex. Crim. App. 2007).
In determining whether a trial court abused its discretion, an appellate court must utilize a
bifurcated method of review. First, we afford almost total deference to the trial court’s findings
on historical facts supported by the record, “especially when the trial court’s fact findings are
based on an evaluation of credibility and demeanor.” 4 Guzman, 955 S.W.2d at 89. Although it
4
Because we defer to the trial court’s findings of historical fact, particularly on witness credibility, and because the
trial court did not find Officer Dutchover or Huddleston’s testimony credible, we have not presented facts from their
testimony but, instead, have relied exclusively on the statements made on the patrol-car video. We will defer to the
trial court’s other findings of fact to the extent they are supported by the record.
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is particularly important to give deference to historical fact findings based on credibility and
demeanor, we must also defer to all of the trial court’s findings of fact and inferences therefrom
that are supported by the record, including findings based on video evidence. Tucker, 369
S.W.3d at 184–85; Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Montanez,
195 S.W.3d at 109; cf. Carmouche, 10 S.W.3d at 332 (declining to give deference to the trial
court’s implicit findings not supported by the record and particularly contradicted by videotape
evidence, partly because a videotape does not involve credibility assessments to which reviewing
courts must be especially deferential). We defer to the trial court’s fact findings because the trial
court is accustomed to handling these types of matters and is in a better position to make factual
determinations. Mendoza, 365 S.W.3d at 669. If, however, the trial court’s findings and
conclusions are not supported by the record, we are not bound by them. Gonzales, 369 S.W.3d
at 854, 855; Tucker, 369 S.W.3d at 187 (Alcala, J., concurring); see State v. Mazuca, 375 S.W.3d
294, 308–09 (Tex. Crim. App. 2012) (rejecting the trial court’s conclusion on “the flagrancy of
the police action” because it was not supported by the record).
Next, we must apply the correct standard of review depending on the nature of the issues
raised. We give almost total deference to a trial court’s conclusions on mixed questions of law
and fact that turn on an evaluation of credibility and demeanor. Iduarte, 268 S.W.3d at 548;
Guzman, 955 S.W.2d at 89. However, if we are presented with a mixed question of law and fact
that does not hinge on a credibility determination or if it is a purely legal question, we perform a
de novo review. Gonzales, 369 S.W.3d at 854; Guzman, 955 S.W.2d at 89; see also Ornelas v.
United States, 517 U.S. 690, 699 (1996). This is because we have already afforded the trial
court’s underlying fact findings proper deference so it is no longer in a better position than an
appellate court to make the ultimate determination. Loserth v. State, 963 S.W.2d 770, 773–74
(Tex. Crim. App. 1998) (en banc); Guzman, 955 S.W.2d at 87; see also Miller v. Fenton, 474
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U.S. 104, 110–12 (1985). It is well settled that probable cause and seizure determinations are
reviewed de novo. Ornelas, 517 U.S. at 699; State v. Sheppard, 271 S.W.3d 281, 291 (Tex.
Crim. App. 2008); Guzman, 955 S.W.2d at 87.
MOTION TO SUPPRESS
The State argues the trial court erred in determining Whittington was placed under arrest
without probable cause when Officer Dutchover said, “Do not go inside, stay right there where
you’re at, . . . do not move, okay?” The State, instead, asserts Whittington was still being
detained pursuant to an investigative detention and this ongoing detention was supported by
reasonable suspicion. Conversely, Whittington contends the trial court correctly ruled she was
under arrest because a reasonable person in Whittington’s position would have felt a restraint on
her freedom of movement to the degree associated with an arrest. 5 Whittington also argues the
trial court correctly determined the arrest was made without probable cause because the caller
had not yet been identified and the officers lacked sufficient corroboration of the caller’s
information. Whittington correctly points out that neither party asks us to decide whether there
was reasonable suspicion to initially conduct an investigative detention, so we will assume,
without deciding, that Whittington’s Fourth Amendment rights were not violated during her
initial interaction with Officer Dutchover. 6
A. Was This an Investigative Detention or an Arrest?
There are three types of interactions among police officers and citizens: (1) consensual
encounters; (2) investigative detentions; and (3) arrests or their custodial equivalent. Crain v.
State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010); State v. Perez, 85 S.W.3d 817, 819 (Tex.
5
This is the standard for a custody determination under Miranda and Article 38.22.
6
This assumption is consistent with the trial court’s unchallenged implicit conclusion that the period leading up to
the alleged arrest was an investigative detention. This implicit conclusion is evidenced by the trial court’s numerous
references to actions taken and statements made during the “investigative detention.”
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Crim. App. 2002). Because the legality of the initial detention is not questioned, we are only
asked to determine whether Officer Dutchover’s statement, in combination with the totality of
the circumstances, was a degree of restraint on Whittington’s freedom of movement sufficient to
constitute an arrest.
Both a detention and an arrest involve a restraint on one’s freedom of movement; the
difference is in degree. Sheppard, 271 S.W.3d at 290–91; Castro v. State, 373 S.W.3d 159, 164
(Tex. App.—San Antonio 2012, no pet.). An arrest is a greater degree of restraint on an
individual’s freedom of movement than is an investigative detention. Sheppard, 271 S.W.3d at
290. The test for whether a person has been arrested is whether the facts demonstrate the
individual’s liberty of movement was actually restricted or restrained. TEX. CODE CRIM. PROC.
ANN. art. 15.22 (2005); Amores v. State, 816 S.W.2d 407, 411–12 (Tex. Crim. App. 1991) (en
banc).
When determining the type of seizure at issue, we consider the totality of the
circumstances. Martinez, 348 S.W.3d at 923; Ford v. State, 158 S.W.3d 488, 492–93 (Tex.
Crim. App. 2005). We use an objective standard when making this determination, disregarding
the officer’s subjective intent unless it is manifested to the suspect. Martinez, 348 S.W.3d at
923; Ford, 158 S.W.3d at 492–93. Because this determination is made on an ad-hoc basis, there
is no bright-line test for distinguishing between a detention and an arrest. Sheppard, 271 S.W.3d
at 291. Instead, “common sense and ordinary human experience must govern over rigid
criteria.” Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002) (quoting Rhodes v.
State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997)) (internal quotation marks omitted).
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The Court of Criminal Appeals has provided a list of factors properly considered when
determining whether the seizure was a detention or an arrest 7:
[1] the amount of force displayed, [2] the duration of a detention, [3] the
efficiency of the investigative process and whether it is conducted at the original
location or the person is transported to another location, [4] the officer’s
expressed intent—that is, whether he told the detained person that he was under
arrest or was being detained only for a temporary investigation, and [5] any other
relevant factors.
Sheppard, 271 S.W.3d at 291 (footnotes omitted) (citing 40 GEORGE E. DIX & ROBERT O.
DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 7.34 (2d ed. 2001)).
Additional factors Texas courts have found relevant when determining the reasonableness of a
detention include the nature of the crime under investigation, the degree of suspicion, the
location of the stop, the time of day, the number of suspects present, the reaction of each suspect,
and whether the officer actually conducts an investigation. See Bartlett v. State, 249 S.W.3d
658, 669 (Tex. App.—Austin 2008, pet. ref’d); Akins v. State, 202 S.W.3d 879, 885 (Tex.
App.—Fort Worth 2006, pet. ref’d) (citing Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000)).
1. Use of Force or Show of Authority
During an investigatory detention, officers are permitted to use reasonably necessary
force to maintain the status quo, effectuate an investigation, or protect the safety of individuals at
the scene. Balentine, 71 S.W.3d at 771; Rhodes, 945 S.W.2d at 117 (citing United States v.
Sokolow, 490 U.S. 1, 109 (1989)). For example, it is sometimes reasonable for officers to
handcuff suspects during an investigatory detention in order to maintain the status quo or to
ensure officer safety. See Sheppard, 271 S.W.3d at 286; Castro, 373 S.W.3d at 165. Moreover,
an investigative detention is not automatically converted into an arrest when officers draw their
7
Whittington points to the four situations described in Dowthitt v. State as support for her argument that she was
under arrest. Because the situations in Dowthitt were presented in a custody analysis and because the Court of
Criminal Appeals has declined to decide whether a custody determination always results in an arrest determination,
we likewise decline to consider the situations presented in Dowthitt. See Dowthitt, 931 S.W.2d at 259 n.8.
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weapons. See Marsh v. State, 684 S.W.2d 676, 679 (Tex. Crim. App. 1984) (en banc); Martinez,
304 S.W.3d at 653.
However, a detention can be converted to an arrest when an individual’s freedom of
movement is almost completely restrained by unreasonable force, an unreasonably strong
showing of authority, or an absence of the need to maintain the status quo or officer safety. See
Burkes v. State, 830 S.W.2d 922, 925 (Tex. Crim. App. 1991) (en banc) (without any prior
questioning, officer shined a flashlight in the appellant’s eyes, ordered him to lie on the ground,
and handcuffed him); Amores, 816 S.W.2d at 411 (officer blocked in appellant’s car, ordered
him out of the car at gunpoint, ordered him to lie face down on the pavement with his hands
behind his back, and threatened to shoot if he did not obey); Hoag v. State, 728 S.W.2d 375, 379
(Tex. Crim. App. 1987) (en banc) (suspect removed from the car at gunpoint, taken to the rear of
the car, and given Miranda warnings); Campbell v. State, 325 S.W.3d 223, 236 (Tex. App.—Fort
Worth 2010, no pet.) (keys taken and suspect handcuffed despite a lack of safety concerns since
there were three officers with one suspect); Akins, 202 S.W.3d at 888 (officers blocked
appellant’s vehicle, drew weapons, placed him on the ground, handcuffed him, and asked no
questions prior to these events); State v. Moore, 25 S.W.3d 383, 386 (Tex. App.—Austin 2000,
no pet.) (suspect handcuffed without need to maintain the status quo or officer safety); Gordon v.
State, 4 S.W.3d 32, 37 (Tex. App.—El Paso 1999, no pet.) (suspect handcuffed and placed in the
patrol car in the absence of evidence that such measures were necessary); Rodriguez v. State, 975
S.W.2d 667, 675–77 (Tex. App.—Texarkana 1998, pet. ref’d) (prior to any investigation,
officers blocked suspect’s car, removed him from the car at gunpoint, and forced him to lie face
down); Flores v. State, 895 S.W.2d 435, 441 (Tex. App—San Antonio 1995, no writ) (suspect
removed from the car at gunpoint and ordered to assume a spread-eagle position).
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In this case, Officer Dutchover did not use the type of force or show of authority usually
associated with an arrest. Officer Dutchover did not use physical force, or display or threaten to
use a weapon when he directed Whittington not to move and not to enter her residence. Officer
Dutchover did not yell or use a hostile tone of voice when he gave this instruction to
Whittington. Immediately before making the statement in controversy, Whittington asked
Officer Dutchover where she hit Huddleston and he responded that he was trying to obtain that
information. He then told her not to enter her residence, not to move, and to sit where she was.
Immediately after this, Officer Dutchover moved his patrol car. Although Whittington was
asked to sit in her vehicle while Officer Dutchover moved his car, the door of her vehicle
remained open. This is a lesser degree of restraint than handcuffing a suspect or ordering a
suspect to lie face down on the ground. Officer Dutchover’s instruction to sit, not to move, and
not to enter her residence does mean she was not free to leave; however, not being free to leave
is an inherent feature of a temporary detention. Crain, 315 S.W.3d at 49; Sheppard, 271 S.W.3d
at 289 (“That is precisely what Terry permits—a temporary detention, in which the person is not
free to leave, while the police officer investigates whether a crime has been committed.”).
2. Duration of Detention
We may consider the duration of the detention in determining whether Whittington was
under arrest. Officer Dutchover made the disputed statement less than ten minutes after first
making contact with Whittington, and he conducted field sobriety tests, handcuffed her, and
informed her she was being arrested less than twenty minutes after first arriving at the residence.
Additionally, Whittington was sitting in her vehicle for only one minute and twelve seconds
while Officer Dutchover was moving his patrol car. Neither the amount of time before
Whittington was directed to sit in her vehicle, the amount of time Whittington was actually in her
vehicle, nor the total length of the interaction prior to the formal arrest was sufficiently long to
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elevate this interaction from a detention to an arrest. See Belcher v. State, 244 S.W.3d 531, 542
(Tex. App.—Fort Worth 2007, no pet.) (concluding that a twelve-minute initial investigation
followed by a twenty-seven minute period of waiting for an officer trained in DWI investigation
was not unreasonable because the wait served legitimate law-enforcement purposes); see also
United States v. Sharpe, 470 U.S. 675, 687–88 (1985) (rejecting the notion that a twenty-minute
detention is unreasonable when the investigation was done in “a diligent and reasonable
manner”); Castro, 373 S.W.3d at 165–66 (holding that a twenty-five to forty-five minute
detention was not unreasonable when police were performing tasks pursuant to investigatory
procedure).
3. Transportation, Investigation, and Officer’s Intentions
We also note that Whittington was never transported prior to the formal arrest at the
conclusion of the field sobriety tests. Officer Dutchover never told Whittington she was under
arrest or said anything to that effect. Cf. Castro, 373 S.W.3d at 166 (concluding that Castro was
subjected to an investigative detention despite being handcuffed and told he was under arrest).
In the seconds preceding the instruction to sit in her car, Whittington was asking Officer
Dutchover questions about the accident, and he replied that he was in the process of gathering all
of the information. If anything, this exchange shows that he was in the midst of an investigation.
Also, Whittington was giggling periodically during the interaction leading up to the statement
and was seemingly undisturbed by Officer Dutchover’s instruction for her not to move.
4. Additional Factor—Taking Whittington’s Keys
This case presents an additional and less common circumstance for consideration: the fact
that Officer Dutchover took Whittington’s keys prior to making the statement at issue. Although
this is an additional restraint on Whittington’s freedom of movement, it is not enough to escalate
this detention into an arrest. In Campbell v. State, the Fort Worth Court of Appeals addressed
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whether an individual will be deemed arrested after an officer takes his keys. Campbell, 325
S.W.3d at 235. Much like this case, the officer did not explain why he was taking the keys, and
the officer retained the keys during the remainder of the interaction. Id. Nonetheless, the court
determined the officer’s actions surrounding his taking of the keys, mainly asking questions to
confirm or dispel his suspicions, were consistent with actions taken during an investigative
detention; thus, the court declined to find that taking Campbell’s keys escalated the stop beyond
a detention. Id. Additionally, in Horton v. State, 16 S.W.3d 848, 852 (Tex. App.—Austin 2000,
no pet.), the Austin Court of Appeals concluded Horton was subjected only to an investigative
detention when the officers “ordered him out of the car, took his keys, and prevented him from
reentering the car.” Id. This is because the officers had been at the scene only momentarily,
Horton was not physically restrained, and there was an ongoing investigation. Id. In White v.
State, No. 08-06-00050-CR, 2007 WL 853134, at *4 (Tex. App.—El Paso March 22, 2007, no
pet.) (not designated for publication), the El Paso Court of Appeals also held that taking the
appellant’s keys did not prevent the stop from being a detention because the officer had not
dispelled his suspicion that the appellant was intoxicated, and allowing the appellant to retain his
keys could have created a dangerous situation. Id.
Much like the cases cited above discussing an officer’s seizure of the suspect’s keys,
Officer Dutchover was justified in taking and retaining Whittington’s keys in order to maintain
the status quo while he moved his car and to protect the safety of himself, Whittington, Officer
Haas, and Huddleston. Whittington was unaware that she had been in an accident less than an
hour earlier, and she was displaying signs of intoxication. It was not unreasonable for Officer
Dutchover to take her keys and thereby prevent her from trying to leave or otherwise move her
vehicle while he was moving his patrol car. Further, after moving his vehicle, Officer Dutchover
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returned to Whittington and continued his investigation by conducting three different field
sobriety tests.
After a de novo application of the law, the question becomes whether the trial court’s
ruling that Whittington was under arrest was outside the zone of reasonable disagreement.
Martinez, 348 S.W.3d at 922–23; Dixon, 206 S.W.3d at 590. Even if we defer to the trial court’s
credibility determinations and, as a result, disregard all testimony, which we do not contend is
necessary, the video evidence still indisputably shows the trial court’s findings to be erroneous.
Considering the totality of the circumstances, the degree of restraint does not “appear[] [to be]
more than necessary to simply safeguard the officers and assure the suspect’s presence during a
period of investigation.” Sheppard, 271 S.W.3d at 291. Thus, we conclude the trial court abused
its discretion when it ruled that Whittington was arrested when told to sit, not to move, and not to
enter her home.
B. Was the Informant Identified and Was the Information Corroborated?
We are next asked to determine whether the trial court erred in finding that the informant
was not identified and the information was not adequately corroborated prior to Officer
Dutchover’s statement to Whittington to sit in her car. Both of these findings by the trial court
are shown to be incorrect by the patrol-car video. The video clearly shows that Huddleston had
been identified by both officers before Officer Dutchover made the statement at issue. This is
reflected when Officer Haas, who had identified and was interviewing Huddleston, yelled to
Officer Dutchover, and Officer Dutchover immediately thereafter advised Whittington that the
person she hit was “right there.”
The video also reflects that the information provided by Huddleston had been
corroborated prior to Officer Dutchover’s statement. Whittington was found in a black SUV like
the one Huddleston reported at the address Huddleston reported. Further, between the
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information provided by Huddleston, Huddleston following Whittington to her residence after
the collision, the fact that Whittington was found sitting in the driver’s seat of her vehicle,
Whittington’s statements that her boyfriend would be mad she had been out, and the fact that she
never indicated she was not driving, it can be inferred that she had only recently arrived home.
Additionally, both cars were inspected by the officers and minor damage was found on
Whittington’s back bumper, which is consistent with Huddleston’s report. The trial court’s
findings of fact that Huddleston was unidentified and that there was inadequate corroboration are
not supported by the record and, indeed, are indisputably proven to be incorrect by the video
evidence. Therefore, we need not defer to the trial court’s findings of fact on these issues.
Gonzales, 369 S.W.3d at 854, 855; Tucker, 369 S.W.3d at 187 (Alcala, J., concurring);
Carmouche, 10 S.W.3d at 331–32.
Because we do not agree that Whittington was under arrest at the time Officer Dutchover
made the statement at issue, we need not address whether the information available at that time
was sufficient for probable cause. The State, on the other hand, argues Huddleston’s information
was reliable and adequately corroborated and, under the totality of the circumstances, it provided
reasonable suspicion for the continued detention of Whittington in order to perform field sobriety
tests. We agree.
The quality of information provided by an informant generally relates to the legality of
the initial stop. See, e.g., Martinez, 348 S.W.3d at 923; Brother v. State, 166 S.W.3d 255, 257
(Tex. Crim. App. 2005). However, that is not challenged here. Still, the reliability of
Huddleston’s tip contributes to the reasonable suspicion necessary for the continued detention of
Whittington for driving while intoxicated. See Martinez, 348 S.W.3d at 923 (“To justify further
investigation, the state must show that, at the time of the detention, the officer had specific,
articulable facts that established reasonable suspicion” that the individual has been, is, or will be
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engaged in criminal activity). Huddleston’s information was reliable and provided Officer
Dutchover with a reasonable belief that Whittington had been driving and had earlier been
involved in an accident that she was unaware of. This knowledge, in combination with Officer
Dutchover’s observation of possible intoxication, justified continued investigation.
A tip from an anonymous caller, standing alone, rarely supplies reasonable suspicion for
a stop because it lacks “sufficient indicia of reliability.” Martinez, 348 S.W.3d at 923. However,
information provided by a citizen can prove to be sufficiently reliable under certain
circumstances. Brother, 166 S.W.3d at 260. “An inverse relationship exists between the
reliability of the informant and the amount of corroborated information required to justify the
police intrusion; the less reliable the tip, the more information is needed.” Martinez, 348 S.W.3d
at 923. It is well established that “information provided to police from a citizen-informant who
identifies himself and may be held to account for the accuracy and veracity of his report may be
regarded as reliable.” Derichsweiler v. State, 348 S.W.3d 906, 918 (Tex. Crim. App. 2011), cert.
denied, 132 S. Ct. 150 (2011); see also Martinez, 348 S.W.3d at 923; Brother, 166 S.W.3d at
257.
Huddleston placed himself in a position to be accountable for the information he
provided by remaining at Whittington’s residence, identifying himself to police, speaking with
police at the residence, and testifying at the suppression hearing. Prior to Officer Dutchover’s
statement and the continued detention, Huddleston had been identified and was being
interviewed by Officer Haas. Although Officer Dutchover may not have known all of the
details, 8 reasonable suspicion is based on the collective knowledge of the government actors,
8
The trial court appeared to rely heavily on the mistaken belief that an officer must personally observe an offense or
suspicious behavior. See Brother v. State, 166 S.W.3d 255, 257, 260 (Tex. Crim. App. 2005) (citing Adams v.
Williams, 407 U.S. 143, 147 (1972)).
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including the dispatcher. Derichsweiler, 348 S.W.3d at 918. Thus, Officer Dutchover was
entitled to rely on the information that Whittington had been driving and was involved in an
accident, and he had reason to suspect Whittington may have been intoxicated based on the odor
of alcohol on Whittington’s breath when he approached and Whittington’s stumbling, fumbling,
and unsteadiness on her feet during their initial interaction. Under these circumstances, Officer
Dutchover was reasonable in suspecting that a crime, driving while intoxicated, had been
committed, and his continued detention was reasonably necessary to confirm or dispel his
suspicion.
CONCLUSION
Based on the totality of the circumstances, we hold that Whittington was not under arrest
when told to sit, not to move, and not to go into her home. Because she was not under arrest, we
need not determine whether probable cause existed at that time. We do, however, conclude that
Officer Dutchover had reasonable suspicion to continue his investigation. For these reasons, we
reverse the trial court’s grant of Whittington’s motion to suppress and remand to the trial court
for further proceedings consistent with this opinion.
Catherine Stone, Chief Justice
PUBLISH
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