Keith Edward Bresee v. State

• Court: Court of Appeals of Texas
• Decided: August 4, 2010
• Docket: 04-09-00696-CR
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-09-00696-CR

Keith Edward BRESEE, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law, Kendall County, Texas Trial Court No. 09-120-CR Honorable Bill Palmer, Judge Presiding 1

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: August 4, 2010

AFFIRMED

Keith Edward Bresee argues that the trial court erred in denying his motion to suppress.

We affirm.

BACKGROUND

Bresee, who was charged by information and complaint with the offense of driving while

intoxicated, filed a pretrial motion to suppress, arguing that he was unlawfully stopped and

1 The Honorable Bill Palmer signed the judgment. The Honorable Robert R. Barton presided over the motion to suppress hearing and made written findings of fact and conclusions of law. 04-09-00696-CR

detained in violation of the Fourth Amendment to the Constitution. At the suppression hearing,

Trooper Todd Setliff of the Texas Department of Public Safety testified that on April 11, 2009,

he was on patrol in Kendall County when he heard Kendall County law-enforcement radio

dispatch inform officers about a citizen’s report of a person driving while intoxicated. According

to dispatch, a citizen had called 911 and reported that an intoxicated person had caused a public

disturbance at a bar in Sisterdale, had left the bar driving a blue Saturn vehicle with a license

plate number of “HXT 573,” and had left the bar traveling south on Farm-to-Market Road 1376.

About sixteen minutes after hearing this information, Trooper Setliff saw a blue Saturn vehicle

with the license plate number of “HXT 573” traveling on Farm-to-Market Road 473, about

eleven miles from Sisterdale. Trooper Setliff then radioed dispatch and asked whether the citizen

who had called 911 had identified himself. Dispatch responded that the caller had left his name

and address.

Trooper Setliff testified that he then activated his lights and pulled over the blue Saturn.

After approaching Bresee, the driver of the Saturn, Trooper Setliff testified that he smelled the

odor of alcohol. Trooper Setliff described the odor as being moderate to strong. And, Trooper

Setliff testified Bresee’s eyes appeared glassy. Trooper Setliff asked Bresee for his driver’s

license and explained why he had been stopped. According to Trooper Setliff, although Bresee

was not slurring his words, he was fumbling through his wallet, unable to locate his driver’s

license. Trooper Setliff testified that Bresee’s fumbling was an indicator of intoxication

“[b]ecause normally, most people, when they go through their wallet, they locate their license,

especially when it’s right in front of them they don’t have trouble finding it.” Trooper Setliff

testified that he finally grabbed the license out of Bresee’s wallet himself. Bresee then began

trying to explain his side of the story about the incident at the bar in Sisterdale, and Trooper

-2- 04-09-00696-CR

Setliff asked Bresee to step out of his vehicle. According to Trooper Setliff, Bresee did not deny

that he had been at the bar in Sisterdale. Trooper Setliff then asked Bresee whether he could look

into Bresee’s eyes, explaining that he wanted to make sure Bresee could drive before allowing

Bresee to leave in his car. Bresee responded that he would not take any tests, but would provide a

blood sample. When Trooper Setliff asked Bresee if he would take a portable breath test, Bresee

refused. Trooper Setliff testified that he then arrested Bresee for driving while intoxicated. After

the hearing, the trial court denied Bresee’s motion to suppress. And, upon Bresee’s request, the

trial court made written findings of fact and conclusions of law.

DISCUSSION

In his first issue, Bresee argues that Trooper Setliff did not have reasonable suspicion to

stop his vehicle. Under the Fourth Amendment, a temporary detention is justified when the

detaining officer has specific articulable facts which, taken together with rational inferences from

those facts, lead the officer to conclude that the person detained is, has been, or soon will be

engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968); Brother v. State, 166 S.W.3d

255, 257 (Tex. Crim. App. 2005). These facts must amount to more than a mere hunch or

suspicion. Brother, 166 S.W.3d at 257.

When reviewing a trial court’s ruling on a motion to suppress, we give almost total

deference to the court’s determination of the historical facts that the record supports, especially

when those fact findings are based on an evaluation of the witnesses’ credibility and demeanor.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also State v. Cullen, 195

S.W.3d 696, 699 (Tex. Crim. App. 2006). We accord the same level of deference to the trial

court’s rulings on mixed questions of law and fact if those decisions turn on the credibility and

-3- 04-09-00696-CR

demeanor of the witnesses. Guzman, 955 S.W.2d at 89. We review de novo mixed questions of

law and fact that do not turn on witness credibility. Id.

Here, the trial court made written findings of fact and conclusions of law. The trial court

made the following findings of fact:

On April 11, 2009, State Trooper Todd Setliff, while on patrol in Kendall County, overheard a Kendall County law-enforcement radio dispatch that a person who identified himself by name and address had called the dispatcher, and advised that an individual was intoxicated and had created a disturbance at a bar in the town of Sisterdale, and had driven away in a blue Saturn, license number HXT 573, traveling toward the city of Boerne. About sixteen minutes after hearing the radio dispatch, Trooper Setliff came upon the described vehicle traveling on a public roadway approximately eleven miles from Sisterdale. When Trooper Setliff activated his overhead lights, the suspect vehicle pulled to the shoulder of the road and stopped. The defendant was the driver of the Saturn automobile. He had an odor of an alcoholic beverage about his person, was unable to locate his driver’s license without the trooper’s assistance, and his eyes were glassy. The defendant refused to submit to a breath test and field sobriety tests, but stated that he would give a blood specimen. Trooper Setliff gave the defendant the DIC-24 warning and placed [Bresee] under arrest for the offense of driving while intoxicated. Any statements made by the defendant after his arrest were volunteered and not made in response to custodial interrogation. The defendant never requested counsel.

The trial court then concluded that the information related to the dispatcher by the caller who

identified himself and provided contact information was sufficient to give Trooper Setliff

reasonable suspicion to stop Bresee and investigate whether Bresee was intoxicated. The trial

court also concluded that Trooper Setliff had probable cause to believe that Bresee was

committing the offense of driving while intoxicated and the offense of public intoxication within

Trooper Setliff’s presence or view. Thus, the trial court concluded Trooper Setliff’s arrest of

Bresee without a warrant was lawful.

-4- 04-09-00696-CR

On appeal, Bresee argues that Trooper Setliff did not have reasonable suspicion to stop

his vehicle because Trooper Setliff did not personally see him commit a traffic violation.

However, the factual basis for stopping a vehicle need not arise from the officer’s personal

observation but may be supplied by information acquired from another person. Adams v.

Williams, 407 U.S. 143, 147 (1972); Brother, 166 S.W.3d at 257. A stop based on facts supplied

by a citizen-eyewitness, when adequately corroborated by the officer, does not run afoul of the

Fourth Amendment. Brother, 166 S.W.3d at 259. “‘Corroboration’ does not mean that the officer

must personally observe the conduct that causes him to reasonably suspect that a crime is, has

been, or is about to be committed.” Id. at n.5. Rather, it “refers to whether the police officer, in

light of the circumstances, confirms enough facts to reasonably conclude that the information

given to him is reliable and a temporary detention is thus justified.” Id. “[T]he reliability of a

citizen-informant is generally shown by the very nature of the circumstances under which the

incriminating information became known to him or her.” Id. at 258. Thus, a citizen’s tip deserves

great weight when there is a detailed description of the wrongdoing along with a statement that

the event was witnessed firsthand, when a citizen puts himself in a position to be held

accountable for his intervention, or when the citizen is not connected with the police or a paid

informant. Turley v. State, 242 S.W.3d 178, 181 (Tex. App.—Fort Worth 2007, no pet.). That is,

where the reliability of information is increased, less corroboration is necessary. Id.

Here, Trooper Setliff heard through his radio that a citizen had called 911 to report that

an individual was intoxicated and causing a disturbance at a bar in Sisterdale. The dispatcher said

that the citizen saw the intoxicated individual leave the bar driving a blue Saturn with the license

plate number “HXT 573,” traveling southbound on Farm to Market Road 1376. Trooper Setliff

then came upon a blue Saturn vehicle with the license plate “HXT 573,” traveling on Farm to

-5- 04-09-00696-CR

Market Road 473, about eleven miles from the bar in Sisterdale. Trooper Setliff called dispatch

and asked whether the citizen had left his name and address; Trooper Setliff was told that the

caller had indeed left his name and address. Thus, although Trooper Setliff did not personally

observe any signs of intoxication before stopping Bresee’s vehicle, the unsolicited information

provided by the 911 caller was sufficiently corroborated by Trooper Setliff: the vehicle’s

description, license plate number, and proximity of the vehicle was consistent with the 911

caller’s report. Further, Trooper Setliff inquired into the reliability of the 911 caller and

confirmed that the 911 caller, by giving his name and address, had put himself in a position to be

held accountable for his intervention. Under the facts of this case, the trial court did not err in

determining that Trooper Setliff had reasonable suspicion to stop Bresee’s vehicle. See Brother,

166 S.W.3d at 259-60; Martinez v. State, 261 S.W.3d 773, 776-78 (Tex. App.—Amarillo 2008,

pet. ref’d); Turley, 242 S.W.3d at 181-82; State v. Nelson, 228 S.W.3d 899, 904-05 (Tex. App.—

Austin 2007, no pet.).

In his second issue, Bresee argues that his continued detention was unreasonable because

Trooper Setliff could not remember whether he smelled the odor of alcohol while Bresee was

inside his vehicle or outside his vehicle. Thus, Bresee argues that “it was unreasonable to force

appellant from his vehicle to perform a standardized field sobriety test.” An investigative

detention must be temporary and last no longer than is necessary to effectuate the purpose of the

stop. Florida v. Royer, 460 U.S. 491, 500 (1983); Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.

App. 2004). Once the reason for the stop has been satisfied, the stop may not be used as a

“fishing expedition for unrelated criminal activity.” Ohio v. Robinette, 519 U.S. 33, 41 (1996)

(Ginsberg, J., concurring).

-6- 04-09-00696-CR

Here, Trooper Setliff stopped Bresee’s vehicle based on his reasonable suspicion that

Bresee was driving while intoxicated. Trooper Setliff approached Bresee’s vehicle, asked Bresee

for his driver’s license, and explained why Bresee had been stopped. Trooper Setliff testified that

he then smelled the moderate to strong odor of alcohol and noticed that Bresee was fumbling

with his wallet, unable to retrieve his driver’s license that was right in front of him. Trooper

Setliff also noticed that Bresee’s eyes appeared to be glassy. When asked whether he smelled

alcohol before or after Bresee stepped out of the vehicle, Trooper Setliff responded that he could

not “state exactly when, but it was during the initial conversation” with Bresee. We hold that

Trooper Setliff did not unreasonably detain Bresee for purposes of conducting his investigation.

In his third issue, Bresee argues that Trooper Setliff did not have probable cause to arrest

him for driving while intoxicated. “‘Probable cause’ for a warrantless arrest exists if, at the

moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge

and of which he has reasonably trustworthy information are sufficient to warrant a prudent man

in believing that the person arrested had committed or was committing an offense.” Amador v.

State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964)); see also TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (Vernon 2005) (“A peace officer

may arrest an offender without a warrant for any offense committed in his presence or within his

view.”). When analyzing whether facts are sufficient to equal probable cause, we use a

“common-sense” approach and view the facts “as understood by those versed in the field of law

enforcement.” Texas v. Brown, 460 U.S. 730, 742 (1983).

Here, Trooper Setliff testified that he pulled over the blue Saturn, which was being driven

by Bresee. According to Trooper Setliff, he smelled the moderate to strong odor of alcohol.

Trooper Setliff testified that Bresee fumbled through his wallet and was unable to locate his

-7- 04-09-00696-CR

driver’s license and that Bresee’s eyes appeared glassy. We hold that the trial court did not err in

determining that Trooper Setliff had probable cause to arrest Bresee for driving while

intoxicated.

CONCLUSION

We affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

-8-